JLM

A Jailhouse Lawyer’s
Manual
Chapter 1:
How to Use the JLM
Columbia Human Rights Law Review

8th Edition 2009
LEGAL DISCLAIMER
A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

Human Rights Law Review. The law prohibits us from providing any legal advice to
prisoners. This information is not intended as legal advice or representation nor should you
consider or rely upon it as such. Neither the JLM nor any information contained herein is
intended to or shall constitute a contract between the JLM and any reader, and the JLM
does not guarantee the accuracy of the information contained herein. Additionally, your use
of the JLM should not be construed as creating an attorney-client relationship with the JLM
staff or anyone at Columbia Law School. Finally, while we have attempted to provide
information that is up-to-date and useful, because the law changes frequently, we cannot
guarantee that all information is current.
CHAPTER 1
HOW TO USE THE JLM

A. General Comments
If you have been convicted of a crime and sentenced to prison, A Jailhouse Lawyer’s
Manual (the “JLM”) is for you. It contains information about challenging your conviction or
your sentence, about your rights while you are in prison, and about different ways to obtain
an early release from prison.
The JLM contains thirty-six Chapters. You should begin by reading Chapters 2, 5, and 6.
These Chapters teach you the basics of understanding and using legal materials. You can
also look in the Table of Contents for the subject or subjects that are related to your
concerns.
The Appendices at the end of the JLM are also important. Appendices I and II contain
the addresses of the federal courts and state courts in New York. Appendix III is a list of
addresses for District Attorneys’ offices in New York. Appendix IV contains a list of several
organizations that help prisoners. Appendix V contains a dictionary of legal terms used in
the JLM.
The JLM discusses only those areas of law that refer to prisoners’ rights. To learn about
the law relating to other matters—such as automobile accidents or apartment leases—you
will need to look elsewhere. Chapter 2, “An Introduction to Legal Research,” explains how to
research these and other areas of law in your prison law library.
Similarly, although the JLM explains the procedures you can use to attack your
conviction, it does not explain many other areas of the law, such as the constitutional limits
on the power of the police to search you, to seize evidence from you, or to arrest you. The
JLM does not describe the limits on a grand jury’s power to indict you, or the limits on what
the prosecutor can say to the jury or ask witnesses or defendants during the trial. If you have
been convicted of a crime, these are areas of law that you will probably need to know more
about to determine whether your conviction was lawful. The most important rules in these
areas of the law derive from the Fourth, Fifth, and Sixth Amendments of the U.S.
Constitution, and court rulings declaring what these amendments mean in relation to cases
like your own. The best way to learn about Fourth, Fifth, and Sixth Amendment issues is to
research them in the library using the skills you will learn by reading Chapter 2 of the JLM.
In general, it is always a good idea to seek the assistance of a lawyer in pursuing any
legal action. But, it is often not possible to get professional legal assistance—at least at first.
If you do not have a lawyer, the JLM can help you initiate a legal action on your own, or
interest a lawyer in your case. Even if you have a lawyer, the JLM will be helpful because no
one is more concerned about your rights and needs than you. If you know what your lawyer
should be doing, what papers he or she should be filing, and what questions he or she should
be asking, you will be better able to actively participate in your case. You might even be able
to help your lawyer with some of the work. Remember, in criminal appeals and most other
actions, very strict time limits exist. Learn these time limits and make sure your attorney
files all necessary papers on time.
Two final suggestions about using the JLM: use it cautiously and share it. Use it
cautiously because it may contain statements that are out-of-date by the time you read them
and because it may take years of litigation before you can vindicate your rights in court. To
make sure that a statement, statute, or holding is not out-of-date, follow the steps described
in Chapter 2, which explain “Shepard’s” and “pocket-parts.” Never forget that an incorrect or
weak legal argument may waste a valuable opportunity to challenge a violation of your
rights.
Share the JLM because there are not enough to go around. Share it also because you will
benefit from others’ understanding and assertion of their rights. One prisoner’s victory in
court may bring about changes in prison conditions that will improve life for all prisoners,
including you.
B. How to Use the JLM to Learn About the Law
If you are not a jailhouse lawyer and you want to learn the basic tools of the jailhouse
lawyer, begin by reading Chapter 2, “An Introduction to Legal Research.” If at all possible,
read Chapter 2 in the law library and look at each book the Chapter mentions. Do not expect
to understand all of Chapter 2 the first time you read it. It often takes law students many
months before they understand how all of the different research tools work. The key to
learning how to do legal research is practice.
The next step is to read Chapter 6, which introduces you to basic legal documents and to
the most common types of legal proceedings. After you have read Chapters 2 and 6, you will
be able to understand how the research for the memorandum in Chapter 6 was done and why
the memorandum was written. From this point on, it is simply a question of refining your
skills and broadening your familiarity with the law. The best way to do this is to read the
remainder of the JLM.
If you come across a word in the JLM that you do not understand, refer to Appendix V. If
the word is not explained there, use the legal dictionary in your prison’s law library.
If you already know how to do legal research but have a specific problem, look at the
Table of Contents to see which sections may be applicable to your problem. If you need to
determine your rights in an area covered by the JLM, like religious freedom or temporary
release programs, read the appropriate Chapter and then confirm what it states through
research in the library. This is done by finding the part(s) of the Chapter discussing your
problem and then writing down the cases or statutes that are cited in the footnotes. If these
authorities are cases, read the cases and then Shepardize them; if they are statutes, find the
statutes, check their pocket-parts to make sure that they have not been repealed or
amended, and then look at the “notes of decisions” in the pocket-parts to see if they have
been recently interpreted by the courts. Although terms like “Shepardize” and “notes of
decisions” may seem strange to you right now, Chapter 2 will explain them. You should make
sure to read all the Chapters that might contain information on any part of your case.
You should read Chapter 5 if you have a serious problem and you think you require relief
(help) from a court. This Chapter directs you to other Chapters that explain the kinds of legal
proceedings you can use. Again, verify and update anything cited in the JLM that you plan
to use in your case. Outdated and incorrect cases or statutes will jeopardize your chances of
winning or may delay the process.
If no Chapter in the JLM discusses your problem, you will have to start from the
beginning, using the legal research skills that you will learn by reading Chapter 2. It is also
possible that one of the Chapters in the JLM discusses a similar problem. If this is the case,
it may be helpful to start your research by reading some of the cases or statutes cited in that
Chapter.
C. How to Use the JLM When Filing a Lawsuit
Once you have decided that your rights have been violated or that you have a valid claim
and you want to go to court, you should turn to the sample legal papers in Chapters 9, 16,
and 17 (and Chapters 10, 20, and 22 for New York State Prisoners). Each of these Chapters
discusses a different kind of lawsuit and provides examples of the legal papers that you must
send to the court in order to initiate the suit. These legal papers are called “forms” because
you use the basic language and fill in the blanks with the facts that apply to your case. For
example, Chapter 9, “Appealing Your Conviction or Sentence,” contains the types of papers
you will need to start a criminal appeal.
It is important that you do not tear these sample legal papers out of the JLM and do not
copy them word for word. If you tear them out and try to send them to a court, or if you
simply copy them and then send your copy to a court, the court will either throw them out or
send them back to you. In order to use these forms, you must read the first part of the
Chapter that discusses how to use them. Then follow the footnotes contained in each legal
paper. These tell you exactly how to prepare your own version.
After you have written your version of the legal papers, you must make copies of what
you have written. Each Chapter tells you how many copies you will have to make. Then you
will have to mail the original plus several copies to a court. Appendices I and II explain to
which court the papers should be sent. You may also have to send copies to the District
Attorney. Appendix III contains the mailing addresses of all of the District Attorneys in New
York. Most prisons have photocopying machines. If your prison does not, you can copy your
papers by retyping or rewriting them.
Chapters 4 and 9 also explain how to request a court-appointed lawyer to pursue your
case. When you make this request—by filing “poor person’s” or in forma pauperis papers—
you can also ask the court to assume the responsibility for “serving” all of your papers on
your opponents and to allow you to proceed without paying court fees up front. Under the
Prison Litigation Reform Act (“PLRA”), prisoners may be required to pay court-filing fees in
full. The full cost of the fees will be deducted gradually from your prison account. For a fuller
discussion of the PLRA and how it affects your rights, read Chapter 14 of the JLM, “The
Prison Litigation Reform Act.”
D. How to Use the JLM if You Are Not Imprisoned in New York State
Many of the Chapters in the JLM discuss the law as it exists in New York State. If you
are not a prisoner in the state of New York, these laws do not apply to you. You must find out
what laws and regulations your state or municipality has issued. Similarly, cases decided by
New York state courts that are described in the JLM do not apply directly to non-New York
state prisoners.
Do not be discouraged if you are unable to find materials dealing with the laws and
regulations of your particular state. The JLM is valuable for prisoners outside of New York
for at least two reasons. First, many of the Chapters discuss laws that affect prisoners
outside of New York. Several Chapters have parts on, or are entirely devoted to, the law of
states other than New York. Furthermore, as you will learn in Chapter 2, all the decisions by
the United States Supreme Court discussed in the JLM apply to all prisoners throughout the
nation. Second, by reading the Chapters in the JLM you will learn how to effectively
research the laws of your own state. Chapter 2 gives you the skills to become an excellent
jailhouse lawyer no matter what state law applies to you.
Although this book does not always present you with the exact answer you need, it
teaches you how to get the answer on your own. Wherever you are imprisoned, you can use
your new-found skills to protect your rights and advance your interests. A careful reading of
the Chapters that relate to your problem will allow you to think like a lawyer and to analyze
your problem from a legal perspective. Knowing how to think this way is very important
because what matters most is not what remedies you think best, but the remedies to which
you are entitled by law.
Manual
Chapter 2:
Introduction to Legal Research

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 2
INTRODUCTION TO LEGAL RESEARCH*

A. Introduction
To be an effective “jailhouse lawyer,” you must understand both how the judicial system
is organized and how to find and use the law so that you can work within that system.
Effective legal research helps you learn about your rights and the law. It allows you to
present your position to the court in a persuasive and understandable form. The purpose of
this Chapter is to explain how the courts are organized and to introduce you to the methods
of legal research.
To research the law properly, it is necessary to first understand how courts are organized
and the powers and functions of each level of the judicial system. The arguments you present
to a court will depend on the type of court it is and what powers it has. For example, while it
may be appropriate to present one argument to a trial court, it may be inappropriate to make
the same argument to an appellate court. Part B of this Chapter explains how the judicial
system is organized and will help you understand the powers each court has at the different
levels of the system. Part C explains basic legal research and suggests an outline for the
development of your legal arguments.
B. An Overview of the Court System
In order to move your case successfully through the judicial system, you need to
understand the system’s basic structure. Courts are responsible for determining what a law
means, both in general and in particular cases. The courts are divided based on what type of
subject matter or arguments they can hear and where they are located. Furthermore, there
are two types of law: law created by a legislature and law created by judges on a court.
Understanding this basic structure will help you to be an effective jailhouse lawyer.
1. The Court System
The American judicial system is made up of two types of courts: trial courts and appellate
courts. Trial courts are the courts where evidence is put forth and the facts of the case are
established. Criminal trials determine the guilt or innocence of the accused while civil cases
determine whether the defendant is liable (i.e., responsible for damages or wrongs) to the
plaintiff. (In civil cases, one party sues another party for a remedy.) Appellate courts review
the legal conclusions of trial courts for errors. This review may result in the appellate court
ordering a new trial. The major difference between the two levels of courts is that trial courts
decide issues of fact (did person A hit person B with a baseball bat?), while appellate courts
restrict their review to how the trial court applied the law to those facts (if person A did hit
person B, is this assault?). Appellate courts will rarely interfere with a factual finding of a
trial court. (If the trial court decided person A did hit person B, the appellate court will
generally accept that as true.) Thus, factual disputes are not normally considered in
appellate courts.1
Criminal defendants usually have an automatic right to appeal their conviction or
sentence to an appellate court.2 This intermediate appellate court is often called the Court of
Appeals in the state system and the Circuit Court of Appeals in the federal system. Whether
* This Chapter was revised by Susan Maples based on previous versions by Kristin Heavey, Jennifer
Parkinson, Paul Quinlan, William H. Knight, Andrew Cameron, and Patricia A. Sheehan.
1. Normally, appellate courts will overturn factual findings of a trial court only if there was no
evidence presented at trial to support the trial court’s factual finding.
2. Prosecutors, on the other hand, can only rarely appeal.
you can appeal the intermediate appellate court’s decision to a higher appellate court usually
depends on whether or not the higher appellate court agrees to hear your case. Usually, only
cases that raise new legal issues will be granted permission for a second appeal. This higher
appellate court is normally the “court of last resort” and is often called the Supreme Court.
The typical court structure is shown below in Figure 1.
State Courts Federal Courts

U.S. Supreme Court
State Supreme Court
↑ ↑
Court of Appeals Circuit Court of Appeals
↑ ↑
Trial Court Federal District Courts
Figure 1: Typical Organization of State and Federal Courts. (For a more detailed
diagram, see the inside front and back covers of the JLM).
Some states have different names for their courts, but the basic organization remains the
same.3 Each state, as well as the District of Columbia and the federal government, has its
own system of courts. Each is a separate “jurisdiction.” Jurisdiction is the area over which a
court has the power to resolve disputes and enforce its decisions. Jurisdiction is restricted by
both geographic area and subject matter. Both ideas are discussed in more detail in the
following paragraphs.
(a) Subject Matter Jurisdiction
Courts are divided into state and federal courts. Federal courts are limited to hearing
cases that involve the U.S. Constitution or a law passed by the U.S. Congress4 (called a
“federal statute”). State courts are generally free to deal with any matter. Defendants often
prefer to bring their case in federal court, if possible, because federal courts can often hear
cases more quickly than state courts. Another difference is that some state court judges are
elected, while all federal judges are appointed for life by the President with the approval of
the U.S. Senate.
Some courts are also limited in the subject matter of law they may consider. For
example, the New York City Criminal Court can only hear non-felony criminal case; the
Federal Tax Court can only hear tax cases.5
(b) Territorial Jurisdiction
Not only are courts restricted in the subject matter they can consider; they are also
limited to hearing cases from particular regions. For example, the Criminal Court of New
York City is geographically restricted to hearing matters that arise within New York City.
Similarly, the federal court for the Eastern District of New York is geographically limited to
matters arising in Long Island, Queens, Brooklyn, and Staten Island.
3. New York State has a more complicated court structure but still follows the basic pattern for
states. In New York, the names of the courts are different from most states. The highest court is called
the Court of Appeals. The intermediate appellate courts are the four departments of the Appellate
Division. The trial court is called the Supreme Court. This structure concerns New York State only. For
more details on the organization of the New York State court system, see the diagrams on the inside
back cover of the JLM.
4. U.S. Const. art. III, § 2. The § symbol means section. Additional federal statutes also provide
original jurisdiction in federal district court for civil cases that concern the “Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331 (2000). You can also file a civil complaint in federal
district court if you and the other party are citizens of different states and more than $75,000 is
involved. 28 U.S.C. § 1332 (2000).
5. Handeland v. Comm’n of Internal Revenue, 519 F.2d 327, 329 (9th Cir. 1975).
Appellate courts also have limited geographic jurisdiction. Each federal Circuit Court of
Appeals is given a number and represents a specific geographic area which can include
several states. The following are the twelve Circuit Courts and the states (and territories)
that are in their jurisdiction:
A. First Circuit: Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode
Island;
B. Second Circuit: Connecticut, New York, and Vermont;
C. Third Circuit: Delaware, New Jersey, Pennsylvania, and the Virgin Islands;
D. Fourth Circuit: Maryland, North Carolina, South Carolina, Virginia, and West
Virginia;
E. Fifth Circuit: Louisiana, Mississippi, and Texas;6
F. Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee;
G. Seventh Circuit: Illinois, Indiana, and Wisconsin;
H. Eighth Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota,
and South Dakota;
I. Ninth Circuit: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada,
Oregon, Washington, and the Northern Mariana Islands;
J. Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming;
K. Eleventh Circuit: Alabama, Florida, and Georgia;
L. D.C. Circuit: District of Columbia.
The U.S. Supreme Court is the highest appellate court in the federal judicial system. As
such, it is the final court of appeal in all cases arising in the federal court system. The Court
also has the power to hear criminal appeals from the highest appellate state court, but only
on issues of federal law.7 If no issue of federal law is raised, the state Supreme Court is the
court of last resort in criminal cases that began within the state court system.
To properly conduct research, you must first understand the position and powers of
different courts to make sure that the court you present your argument to is the proper court
and has the power to grant the remedy that you seek. Knowledge of the jurisdiction of
various courts will also allow you to ensure that no court has acted beyond its powers. For
example, if you were convicted of a felony in the Criminal Court of New York City, the
conviction is invalid. The reason is that the court is only authorized to hear non-felony
criminal cases and therefore exceeded its subject matter jurisdiction. 8 Similarly, if the
offense took place outside the City of New York, the Criminal Court of New York City would
have no jurisdiction over the case.
2. The Basis of Judicial Decision Making: What is “The Law”?
Judges make decisions based on law. Your task as a jailhouse lawyer is to convince the
judge that the law supports your arguments. The law is found in three places: (1)
constitutions; (2) legislation (also called “statutes” or “statutory law”); and (3) case law.
Judges generally give weight to each source of law according to the order set out above. In
other words, constitutions are more influential than legislation, and legislation is more
persuasive than case law. The basic hierarchy, or organization, is set out below in Figure 2.
6. Before Oct. 1, 1981, the 5th Circuit included all of the states that are now in the 5th Circuit
plus all of the states now in the 11th Circuit.
7. As explained in Part B(1)(a) of this Chapter, this includes matters involving the Constitution,
a federal statute, or a treaty.
8. As noted in Part B(1)(a) of this Chapter, the New York City Criminal Court can only consider
non-felony cases.
U.S. Constitution (strongest authority, most persuasive)
↑
Federal legislation
↑
State constitutions
↑
State legislation
↑
Case law from appellate courts
↑
Case law from trial courts (weakest authority, least persuasive)
Figure 2: Hierarchy of Sources of Law

Part C of this Chapter will describe how to find the law. However, before you begin legal
research, you must understand a few more things about the different types of law that exist.
A constitution is the supreme law of the jurisdiction and is enacted by a special
procedure. Each state has its own constitution in addition to the United States Constitution.9
Legislation is passed by the legislative body in each jurisdiction. Legislation is the typical
form in which laws are enacted. Case law is the law that results when a court decides a case.
In deciding a case, the court is making law in two ways. First, the court determines what
the law says about the dispute between the parties directly involved in the case. On a
broader level, the decision affects other people, because the court’s resolution of the issues in
the case forms precedent for other similar cases. This means that when a court decides a
case, it will look at how other courts decided similar issues and will follow those examples.
Stare decisis, which means “already decided,” refers to the system by which courts rely on
earlier, similar cases as precedent. The greater the similarity between the cases, the stronger
the precedent. Thus, it is very important to find out whether issues in your case have already
been decided by your court or other courts. These other cases will give you a good idea about
how your case will be decided. Knowledge of the other cases will allow you to find out what
arguments might be successful. This knowledge may also reveal what arguments you will
need to rebut (argue against) when your case is before the court.
Once suitable precedent cases have been found, you must convince the court that the
precedent case is sufficiently similar to your case and that its conclusion should be followed.
If the precedent case works against you, you must convince the court that the precedent case
is different from your case, and its conclusions should not be applied to your case. This is
often referred to as “distinguishing” a case. 10 For example, suppose that you have been
placed in solitary confinement for having complained to a newspaper reporter about prison
conditions. You should look for a precedent case saying that the prison cannot punish a
prisoner, or put a prisoner in solitary confinement, for such complaints. If you find such a
case, your next step is to convince the court that you were placed in solitary confinement
because of your complaints, and not for a different, valid reason.
Not all precedent cases are equally persuasive. If the precedent case was decided by a
judge on the same court as your judge, or by an appellate court above your court, the
precedent case is very strong. In effect, the earlier case defined the law in that particular
jurisdiction. A lower court risks almost certain reversal by a higher court if it does not follow
the precedent. The court that created the precedent is also unlikely to overrule itself without
9. The U.S. Constitution is considered the “supreme law of the land.” U.S. Const. art. VI.
Therefore, neither state constitutions nor state or federal legislation can be in conflict with the U.S.
Constitution.
10. Ignoring the case is not a good idea because the other side will likely use it against you in its
arguments.
extremely good reasons. These types of precedents are sometimes called “controlling
precedents.”11 Courts will only rarely refuse to follow controlling precedents. However, in
some instances, older controlling precedents may carry less weight when applied to a modern
case. Furthermore, precedents may be overruled (and become useless) by legislation or by a
higher court that believes the lower court made an incorrect decision. It is therefore very
important to make sure the precedent you have found is still good law (i.e., has not been
overruled).
Precedents from other jurisdictions are also valuable but are not “controlling.” For
instance, if most courts in other states decide an issue in the same way, those out-of-state
decisions are not controlling precedent in your state, but can provide a suggestion for how
your state should decide the issue.
Chapter 6 of the JLM, “An Introduction to Legal Documents,” will discuss the legal
papers that you will need to provide to a court. These documents are very important and
should be written in the most persuasive manner possible. The first step in the process is to
figure out your most compelling or convincing arguments and to find support for those
arguments. As discussed above, finding precedents will allow you to learn which arguments
were successful with other courts and which arguments were not. The higher the court the
case comes from and the greater the similarity between your case and the precedent case, the
stronger the precedent. You should search for similar cases not only in your jurisdiction but
also in other jurisdictions (although cases from your own jurisdiction will be much more
persuasive). You should also consider public policy reasons why a court should rule in your
favor. Public policy reasons are arguments that a particular outcome should be avoided
because it is bad for society as a whole, not just for you.
If much of the case law is against you, you must explain to the court why the reasoning of
the earlier cases should not be applied to your case. One common way of distinguishing your
case from others is by pointing out the factual differences between your case and the earlier
cases. A superficial difference like the following will not help your case: “that case involved
them, but my case involves me.” A useful distinction is one that casts doubt upon whether
the precedent should be applied in your case. An example of a useful distinction would be: “in
that case the pretrial detainee’s own actions prevented a speedy trial; while in my case, trial
has been repeatedly delayed through no fault of my own.”
C. Legal Research: How to Find and Support Legal Arguments
a. Sources for Legal Research
The resources in a law library may be separated into three categories. The first category
is “primary sources.” Primary sources are themselves “law” and include constitutions,
legislation, court decisions, regulations passed as a result of legislation, executive orders, and
the rulings of administrative tribunals. Executive orders, regulations, and the rulings of
administrative tribunals are examples of delegated authority. Since legislative bodies such
as the U.S. Congress cannot regulate the details of every law, other government bodies are
appointed to fill in the details of generally worded statutes, usually by creating regulations.
Courts base their decisions on all of these primary sources of law.
11. Certain state court systems are structured to require trial courts to consider the decisions of
all appellate courts within the state as controlling. For example, New York’s first level appellate courts
are called its Appellate Division. The Appellate Division is divided into four Departments. An appellate
decision from any Department is controlling for all trial courts within the state. Stewart v. Volkswagen
of Am., Inc., 181 A.D.2d 4, 7, 584 N.Y.S.2d 886, 889 (2d Dept. 1992); Mountain View Coach Lines, Inc.
v. Storms, 102 A.D.2d 663, 664, 476 N.Y.S.2d 918, 919–20 (2d Dept. 1984). But see People v. Salzarulo,
168 Misc. 2d 408, 411, 639 N.Y.S.2d 885, 887 (Sup. Ct. N.Y. County 1996) (holding that trial courts are
only bound by the Appellate court in their Judicial Department).
A second category of resources found in a law library are “secondary sources.” Secondary
sources are not themselves law. Instead, secondary sources discuss and comment on the law.
This commentary can be helpful in figuring out what the law is and where to find it.
Secondary sources include textbooks, treatises, form books, dictionaries, periodical literature
such as law journals, and manuals like the JLM. Secondary sources can be used not only to
find and help explain the law, but also to persuade the court. While courts prefer primary
sources, secondary sources are also sometimes considered. Manuals like the JLM should
not be used as authority for the court, but other secondary sources—like law review articles
and treatises—are appropriate if you cannot find any applicable cases or statutes. Along with
cases and statutes, law reviews and treatises can also support your arguments.
The third category of resources found in a law library is search books. Search books are
library tools that help you to find primary and secondary sources of authority. They include
digests of court decisions, citators (such as Shepard’s), and annotated statute books. Each of
these search tools is discussed in more detail in the remainder of this Chapter.
2. Methods of Legal Research
The goal of legal research is to find relevant primary sources. Your prison library will
contain not only these primary sources, but also research tools to help you find authorities
relevant to your case. Though the research necessary to prepare for each case will be
different, the research process has seven basic steps:
(1) Analyze the problem;
(2) Get an overview of the subject matter;
(3) Find relevant legislation;
(4) Find relevant cases;
(5) Check other sources;
(6) Update your research; and
(7) Cite cases.
While prior experience with an issue may allow you to skip some steps, it is
recommended that you conduct each step for each research issue.
Remember, your research will be more successful if you take careful notes during your
research. It will provide a record of your research and will help you avoid losing information.
(a) Analyze the Problem
Your case will begin with a story, not a precise series of legal issues. While you will
eventually translate the story into a set of legal issues, you must first confirm the facts of
your story. This will require you to review any evidence from the trial court transcript if you
are preparing an appellate case. For civil cases (for example, suing the prison for use of
excessive force), you should gather as much information as possible about your issue,
preferably written documentation. As your research progresses, you will need to look at the
facts again to determine which facts are most important.
If you are conducting research for appellate review of a lower court decision, remember
that the appellate court will accept the facts as found by the lower court. Unless you intend
to challenge the factual findings of the lower court (see footnote 1 in this Chapter) you should
limit your review to these facts as found by the lower court.
Once you have a firm grasp of the applicable facts, you need to examine the legal issues
raised by your case. Before beginning an extensive research project, you should ask yourself
three questions:
(1) what are the legal issues that I want to raise?;
(2) which court has the power to hear my case and rule on the issues I will raise?; and
(3) if the merits of my legal arguments are accepted, does the court have the power to
award me the relief I seek?
The final question raises the issue of remedy. Remedies are discussed in detail in
Chapter 9 and Chapters 13–17 of the JLM. The research issues associated with the first two
questions are dealt with in the remainder of this Part of the Chapter.
The first question gets to the heart of your case: what are the issues that you want the
court to consider? To determine these, you must focus on the general areas of law raised by
your case. Is your case about arrest? bail? parole?
In a civil case, you will need to determine what you need to prove to show that the
defendant is liable for each claim you are asserting. (In civil cases, you are the plaintiff and
the person or prison you are suing is the defendant.) You should also be prepared to rebut
any defenses the defendant makes. Most of this information will be found in case law,
although statutes may also be important.
In an appellate case, your focus will be on errors made by the trial court. A general
review of secondary sources covering arrest and trial practices will help you know what to
look for. Then you should thoroughly review the lower court proceedings and decision in your
case to identify areas of possible error. The next step is to conduct focused research on the
laws applicable to your case and figure out whether an error was made.
In deciding which issues to investigate, it will help to break down the general areas of
law into more specific problems. Thus, you would go from a broad area (such as “criminal
procedure”) to a narrower area (such as “searches incident to arrest”) and ultimately to a
narrow question (such as whether a police officer can use a “choke hold” to arrest a suspect
and search for drugs). It is easier to research a narrow issue and build it into a larger case
than to try to research the entire case right away.
The second question you need to consider and resolve is that of jurisdiction. A court is
limited in the type of case it can consider. As discussed in Part B(1) of this Chapter, there are
both territorial and subject matter limits on a court’s power. Therefore, you must first
determine the proper court in which to bring an action or appeal. Territorial jurisdiction for a
trial court will depend on where the alleged crime took place. For an appellate court,
territorial jurisdiction will depend on the court from which the appeal is being made (see
Part B(1) of this Chapter). You should also confirm subject matter jurisdiction before
beginning extensive research on the merits of your case. Most cases will not involve
complicated jurisdictional issues. But, you must not ignore jurisdiction as a court will not
consider your case if it lacks jurisdiction to hear it.
(b) Get an Overview of the Subject Matter
Starting on legal research is often difficult. It is helpful to understand generally the
areas involved in your case before you focus on narrow issues. Background reading will help
you understand how to apply the current law to your facts. Two particularly helpful sources
for general overviews are legal encyclopedias, which provide concise summaries of the law,
and treatises, which provide a more detailed analysis. Prison libraries usually have the two
most common legal encyclopedias, American Jurisprudence and Corpus Juris Secundum, as
well as copies of treatises such as McCormick on Evidence, Johnson’s The Elements of
Criminal Due Process, Kerper’s Introduction to the Criminal Justice System, and Kerper’s
Legal Rights of the Convicted. When reading these sources, be sure to keep track of any
cases, legislation, or constitutional “provisions” that may help your case. A provision is a
phrase or section of a constitution or law that stands for a specific legal right or principle. To
find a subject in an encyclopedia or treatise, use either the “index” (usually found in the back
of a book; if you are talking about more than one index, the plural is “indices”) or the “table of
contents” (usually found in the beginning of a book). Both types of research are fully
described later in this Chapter.
(c) Find Relevant Legislation
After learning the basics of the subject area, turn to the main sources of law—legislation
and cases. Research can take a very long time. It is helpful to write out good notes about the
sources you read and follow the outline this Chapter provides. If you do this, you will
increase your chances of successful research.
After this Chapter, legislation should be the starting point for your research. Legislation
includes constitutions, federal and state statutes, and supporting governmental enactments,
such as regulations and administrative decisions. Constitutions and statutes are generally
broken down into parts called articles, sections (the § symbol means “section”), and clauses.
Regulations issued by state or federal agencies, such as the New York Department of
Correctional Services or the U.S. Bureau of Prisons, are an important form of legislation and
should be checked during your research.
(i) Federal Constitution
Constitutions create the structure of government and define individual rights and
liberties. They are the most important authorities, and the Constitution of the United States
is the supreme law of the United States. Any federal case or statute, or any state
constitution, case, or statute that violates the U.S. Constitution is “unconstitutional,” which
means it is completely invalid. Thus, the Constitution should be your first source to research
your case, and you should determine if a constitutional provision applies to your case at the
beginning of your research. The first ten amendments to the Constitution (known as the “Bill
of Rights”), along with the Fourteenth Amendment, are the most important parts of the
Constitution for criminal defendants and prisoners. They contain guarantees of personal
rights and liberties. Of particular interest are the First Amendment (freedom of speech), the
Fourth Amendment (search and seizure), the Fifth Amendment (grand jury indictment,
double jeopardy, self-incrimination, and due process), the Sixth Amendment (jury trials for
crimes and procedural rights), and the Eighth Amendment (excessive bail and cruel and
unusual punishment). The Fourteenth Amendment is also very important because it
prohibits state governments from depriving you of life, liberty, or property without due
process of law (i.e., certain legal procedures), and it guarantees the equal protection of law.
Similar rights are guaranteed to you from the federal government through the Fifth
Amendment. The text of the Constitution can be found in each of the first twenty-eight
volumes of the United States Code Annotated (“U.S.C.A.”).
(ii) State Constitutions
Each state has its own constitution. The text of the New York State Constitution appears
in the first few volumes of McKinney’s Consolidated Laws of New York Annotated
(“McKinney’s”). Each state’s constitution is supreme over all other laws of that state,
including statutes the legislature passes and cases its courts decide. But, state constitutions
are not supreme over federal law, which means the U.S. Constitution and laws the U.S.
Congress passes. State constitutions apply only to state law. While many provisions of state
constitutions are similar to provisions found in the U.S. Constitution, your state constitution
may give you more rights than the U.S. Constitution. Thus, you should consult your state
constitution after reviewing the U.S. Constitution.
The U.S. Constitution and most state constitutions are found in “annotated” volumes.
Annotated volumes include the text of each constitutional provision and summaries of cases
that have interpreted them. Following the constitutional text is a section titled “Notes of
Decisions,” which has case summaries grouped into separate legal subjects. There is an index
to these legal subjects at the beginning of each Notes of Decisions section. The case citation12
12. Case citations are discussed in Part D of this Chapter.

for the case being summarized follows the summary. Annotated volumes also contain other
research tools that can help you. These include cross-references, which are citations to legal
encyclopedias and relevant treatises in which the subject is discussed, as well as the West
“key number system” (discussed later in this Chapter). Finally, annotated volumes often
contain summaries of legislative history, which gives you information about why a particular
law was passed.
To find the relevant constitutional provisions for your case, use the constitutional index
found at the back of the final constitutional volume. 13 The methods you use to locate
statutes14 and cases15 related to your legal question are also applicable to finding relevant
constitutional provisions in a constitutional index.
(iii) Federal Statutes
The U.S.C.A. contains the text of the U.S. Constitution and all laws passed by the U.S.
Congress. Following the text of many of the legislative provisions is a section titled “Notes of
Decisions” which contains summaries of cases that have interpreted each provision. These
summaries are not law but will give you an idea of which cases may be helpful to read in
detail. The U.S.C.A. also contains other useful research tools such as cross-references to the
West key number system, discussed in Part C(2)(d) of this Chapter, located in the section
entitled “Library References,” found after each legislative provision.
The U.S.C.A. is divided into fifty “titles.” Each title brings together in one place all
federal laws in a particular subject area. For example, Title 18 brings together all federal
laws concerning crimes and criminal procedure while Title 28 does the same for laws
concerning the judiciary and judicial procedure. There is a paperback index to the entire
U.S.C.A. (excluding the constitutional volumes) shelved after the main volumes. Each title
also has its own index located in its last volume.
The text of all federal laws also appears in the United States Code (“U.S.C.”). The U.S.C.
is organized in exactly the same way as the U.S.C.A. It differs from the U.S.C.A. in that each
title contains only the law, not the Notes of Decisions. Your prison library may have the
U.S.C.A., the U.S.C., both, or neither.
If you are charged with an offense under federal law, a useful starting point is to review
the text of the provision under which you are charged. Beneath the text of that provision of
law there may be summaries of cases interpreting the text that will allow you to see how
courts have applied that provision in other cases.
It is essential that your research be current. Hardcover volumes of sources are not
replaced frequently. The most up-to-date information is found in soft cover updates found in
a folder inside the back cover of each hardcover volume or next to the volumes on the shelf
(“pocket part”). Soft cover updates contain information received after publication of the
hardcover volume. These pocket parts will reveal any recent amendments to the statutory
provision and any recent cases interpreting that provision. You must check the pocket part
for the most current law whenever you use a hardcover volume of any source in your
research.16
13. Note that there is a separate index for the constitutional volumes of the U.S.C.A. A larger
multi-volume paperback index is published for the rest of the U.S.C.A. volumes that refer to legislation,
but that index does not contain any references to the Constitution.
14. Statutes are described in Part C(2)(c)(v) of this Chapter.
15. Cases are described in Part C(2)(d) of this Chapter.
16. When a statute has been amended or repealed within the past twelve months, the pocket
part may not have the most recent change. For the most up-to-date information, consult the paperback
supplement normally shelved at the end of the volumes you are using. Paperback supplements are
updated monthly.
The entire U.S.C. is updated every six years. The most recent volumes are from 2006.
The U.S.C.A. is updated more frequently. If your prison library has not updated its collection
of hardcover volumes, you should continue to check the pocket parts to make sure that your
research is up to date.
You should always check whether statutes have changed before relying on them in a
legal paper. When referring to a federal statute, cite to the most recent U.S.C. or U.S.C.A. in
your prison library, meaning the book and pocket parts that you looked at while researching
your case. It may not be the same year as the versions cited in the JLM.
(iv) State Statutes
State statutes are organized in a manner similar to federal statutes. Each state
organizes its statutes a little differently, but consider New York as an example. The
permanent laws of New York are found in McKinney’s Consolidated Laws of New York
Annotated (“McKinney’s”).17 Like the U.S.C.A., McKinney’s is organized according to subject
matter but divided into “books” rather than “titles”, and arranged in alphabetical order.
Thus, Book 10B brings together all New York laws on the subject of Correction Law (Prison
Law), Book 11A does so for Criminal Procedure, and Book 39 for Penal Law (Criminal Law).
McKinney’s also contains “Notes of Decisions” summarizing cases that have interpreted each
provision. When working with state statutes, as with federal statutes, be careful to consult
the pocket parts for the most current legislation and cases. State statutes are updated
frequently, using pocket parts. The years listed in JLM citations to state statutes may not
correspond to the version in your prison library. As with federal statutes, cite to the version
in your prison library.
McKinney’s also contains a section called “Practice Commentary” following certain
provisions. This commentary is neither a case summary nor law, but it reflects the comments
of a lawyer who has studied the statute. The commentaries help researchers understand the
law. Like general summaries of particular subjects, commentaries can be useful sources of
analysis and research information.
If you are charged with an offense under state law, a useful starting point is to review
the text of the provision under which you are charged. In New York, crimes are defined in
Book 39, “Penal Law”. The procedural aspects of criminal prosecution are found in the New
York Criminal Procedure Law (“N.Y. Crim. Proc. Law”). The N.Y. Crim. Proc. Law is found
in the fifteen volumes that make up McKinney’s Book 11A. Do not confuse the N.Y. Crim.
Proc. Law with the New York Civil Practice Law and Rules (“N.Y. C.P.L.R.”), which explains
the rules of the courts in New York.
(v) Finding Statutes—The General Index
You will not always have a particular statute or statutory section to begin your research.
If you are starting from scratch and the provision under which you were charged is not
helpful, the best place to turn is the “general index” of a source. This is true whether you are
researching the U.S. Constitution, federal legislation, or state legislation. The general index
is normally found in separate volumes at the end of the source you are using. For example,
the general index for New York legislation is found in several paperback volumes shelved
after McKinney’s main volumes. The index lists topics in alphabetical order, so you can begin
17. If you need to find a law that is no longer in force (for example, if you were convicted under a
version of the Penal Law that was later changed), look first to McKinney’s for the current version of the
law. After the current statute, find the “Historical and Statutory Notes” section, which will tell you
what year of the Session Law to look at in order to find the old law. That year’s “Session Law” can be
found in McKinney’s Session Laws of New York. It is unlikely, however, that a prison library will have
the Session Laws. If your library does not have the Session Laws, the “Historical and Statutory Notes”
section often lists a short summary of changes that have been made to the original law.
by searching for a word that describes or is related to your problem. These descriptive words
can refer to an event (for example, “arrest” or “homicide”), to certain persons (for example,
“addicts” or “police”), to places (for example, “prison” or “hospital”), or to things (for example,
“motor vehicles” or “weapons”). General descriptive words are divided into subcategories. For
example, under “weapons” you will find separate entries for different types of firearms. The
general index is designed to lead you to the relevant statutes from a variety of descriptive
words. Thus, you need not find the “perfect” word. Keep track of the different possible
descriptive words as you research and use the many indices to help you find relevant
authorities.
A second method of finding legislation is to check the title or book index. The title or book
index is similar to a table of contents, and is found at the beginning of each volume. So, for
example, scanning the names of the McKinney’s volumes shows three possible criminal titles:
“Correction Law,” “Penal Law,” and “Criminal Procedure Law.” If you were researching a
procedural issue (say your home was searched pursuant to a search warrant in the middle of
the night), the volumes on Criminal Procedure Law (Book 11A) seem like the most useful
place to begin. You would then take out a volume of 11A and turn to its “book index.” Note
that this table appears after the shorter “Table of Contents” section, and is immediately
before the statutory provisions. The book index breaks down the general subject of Criminal
Procedure into smaller topics and subtopics.
Following each subtopic is a list of statutory sections that deal with that subtopic, so you
can review the subtopics to find statutory provisions that may be helpful for your research.
For example, on the issue of “nighttime searches,” the book index in any of the volumes of
11A shows a section on “procedures for securing evidence.” It also lists a subtopic of “search
warrants.” If you go to the volume of 11A that contains the legislation on search warrants
(Sections 690.05 to 690.55) and turn to the beginning of that section, you will see another
listing of even more specific subtopics that includes “search warrants; when executable”
(Section 690.30). Turning to that section of the legislation, you will find that in New York
search warrants may only be used between 6:00 a.m. and 9:00 p.m. unless the warrant
provides otherwise. Thus, you have found a law to support your complaint if the warrant
used to search your house did not explicitly allow the search to be conducted at night. After
the text of Section 690.30, you will find a “Practice Commentaries” and a “Notes of Decisions”
section that contains summaries of a number of cases applying this legal rule to various
circumstances. Updating your findings by turning to the pocket part of that volume reveals
several more recent cases on nighttime searches.
Do not be discouraged if you are having trouble finding a relevant law. Research takes
time, and you may need to try the general index, the title or book index, or even a little
browsing before you can find relevant legislation. Or, your case may be governed by court
cases rather than legislation. Finding case law is the subject of Part C(2)(d) of this Chapter.
(vi) Legislative History
When reading legislation, the “legislative intent,” or what the legislators wanted the
statute to accomplish, is often unclear. Knowing the legislative intent can often help you
understand the legislation. It may help you apply the legal rule to the facts of your case. This
factual situation may not have been considered by the legislators when they created the law.
The best way to find legislative intent is to review the “legislative history” of the legislation.
State legislative history is difficult to find and often cannot be found at all. This Subsection
will concentrate on how to find the legislative history of federal laws and therefore learn the
congressional purpose behind federal legislation.
Legislative history consists of the written record of what Congress considered before
passing a law. It includes the text of the bill18 introduced into the legislature, any later
amendments (changes) to the bill, committee and conference reports 19 , congressional
hearings, and the debates of the House of Representatives and Senate. Committee reports
are produced by the Congressional Committees that review legislation. Conference reports
are produced by “conferences” set up when the House and Senate pass different versions of
the same legislation. Because the conference report is produced jointly by the committees of
both the Senate and the House just before the final passage of the legislation, it is perhaps
the most important source of legislative intent.
Legislative history is found in many books that are not located in prison libraries.
However, one publication, the United States Code Congressional and Administrative News
(“U.S.C.C.A.N.”), publishes “compiled” legislative histories that bring several sources
together in one place. Although the U.S.C.C.A.N. does not provide all legislative history, it is
the only source of legislative history you are likely to find in a prison library. There are
several volumes of the U.S.C.C.A.N. for each year. To use these books, you must know the
year in which the statute was passed. The U.S.C.A. tells you the year the statute you are
researching was passed at the end of each section. It may also tell you where in the
U.S.C.C.A.N. to find the legislative history. Each set of annual U.S.C.C.A.N. volumes also
contains a table of “Legislative History.” This table lists all the laws passed during that year
and identifies certain parts of the legislative history. To find legislative history in
U.S.C.C.A.N., look in the index found in the last volume of that year. Search the index for the
name or the subject of the statute you are researching. The index will list the page number
where you can find legislative history for that topic. The volumes of U.S.C.C.A.N. with
“Legislative History” on their spines contain the text of the legislative report from the House
of Representatives or the Senate.
If you review the legislative history of a statute, you will often find a statement by a
member of Congress or by a committee that explains what Congress intended it to mean. If
this explanation helps your argument, you should quote it in the papers you submit to the
court.
Legislative histories of state statutes are hard to find because few states keep a record of
the process of enacting a bill. In New York, legislative history is usually found in the New
York Legislative Annual, which you are unlikely to find in a prison library. Your library may,
however, have McKinney’s Session Laws of New York (mentioned in footnote 17 of this
Chapter), which contains limited legislative history for some bills enacted that year. This
legislative history is found at the end of the final Session Law volume for that year.
(vii) Court Rules
Court rules govern the mechanics of how to get a case into court and what procedures are
used once the case is before the court. Sometimes these rules are called “rules of practice” or
“rules of procedure.” The U.S. Supreme Court has created court rules that apply to all cases
in federal courts. The rules are published as part of Title 28 of the U.S.C.A. (in the volumes
that have the word “rules” on their spines), and include “Notes of Decisions” sections
summarizing cases interpreting the rules. Formally, the rules are separated into the Federal
Rules of Civil Procedure (rules for federal civil cases), the Federal Rules of Criminal
Procedure (rules for federal criminal cases), and the Federal Rules of Appellate Procedure
(rules for appellate procedure in all federal cases). There may also be additional local rules
enacted by local federal courts. In addition, the Federal Rules of Evidence govern what can
18. A statute is called a “bill” before it is passed by legislators.

19. The House of Representatives and the Senate are subdivided into committees that work in a
particular area. For example, the House Judiciary Committee works on legislation that concerns the
federal judiciary.
be used as evidence in federal cases. The Federal Rules of Civil Procedure and the Federal
Rules of Evidence are published in separate volumes that are part of Title 28 of the U.S.C.A.
State courts have their own court rules. In New York, for example, the rules of court are
contained in McKinney’s New York Rules of Court. This paperback volume contains the rules
of court for all New York state courts. It also contains the “local federal rules” for the federal
district courts in New York and the Second Circuit Court of Appeals. These rules will tell you
in which court to file papers and how the papers should be filed (size, form, etc.). The rules
will also tell you the usual court calendar. For example, some courts hear certain kinds of
cases only on specific days of the week. The rules will also tell you what information is
required for certain kinds of lawsuits. If you are involved in a New York State or federal
case, always review the New York Rules of Court. In particular, review the section(s) that
apply to the court to which you are sending your papers. This review should be done before
filing any legal papers, since you do not want to find out afterwards that the deadline for
filing the papers has already passed. If you cannot figure out something in the New York
Rules of Court, sometimes a court clerk will tell you the answer over the telephone. The
addresses and telephone numbers of the trial courts in New York are contained in Appendix
II of the JLM. Call the courthouse and ask for the court clerk’s office. Although this does not
always work, it might save you time and effort.
(viii) Administrative Codes
Federal and state legislatures often give government agencies the power to create rules
or regulations that govern specific subjects. The rules are often referred to as
“administrative” rules or regulations. Here are two examples: the federal government gives
the Bureau of Prisons power to make specific rules about how federal prisons are run, and a
state will often allow the state’s Department of Corrections to make specific rules about how
state prisons are run.
All federal administrative rules and regulations are published in the Code of Federal
Regulations (“C.F.R.”). Similarly, rules and regulations from all departments or agencies
within a state are also collected together and published. Each state organizes the regulations
a little differently, but the publications are often referred to as the administrative “code,”
“rules,” or “regulations.” For instance, New York’s administrative codes are published in the
Official Compilation of Codes, Rules & Regulations of the State of New York (“N.Y. Comp.
Codes R. & Regs.”), and Texas’ codes are published as the Texas Administrative Code. Your
prison library may have a copy of the C.F.R. and/or a copy of your state’s administrative
code.
If you are in a federal prison, you may want to review a copy of the C.F.R. to find out if
any provisions are relevant to your case. The C.F.R. has many volumes, organized
alphabetically by subject matter, and a separate general index will likely be shelved after the
main volumes. This general index is a good place to begin your research. For instance, you
can open the general index and look under “Prisons Bureau,” and under the main heading
(which will be in bold type), there are several subtopics. You can scan those subtopics, and if
any of them appears to be related to your case, the index will refer you to the appropriate
title and section of the C.F.R. For example, if you are interested in parole issues, you can look
under “Prisons Bureau” for the subtopic on “Parole,” which will refer you to “28 C.F.R. 572.”
This means that the rules on parole in federal prisons are contained in Title 28, Part 572 of
the C.F.R. You can then pull out the appropriate volume from the shelf (the title and part
information is on the spine of the book), and read through Part 572 to see if there is a
“section” that interests you. Note that in the C.F.R., sections are simply subtopics under each
Part. For example, you would refer to “Part 572,” but to “section 572.30.” The index to the
C.F.R. is updated once every year.20
If you are in a state prison, you may want to review a copy of your state’s administrative
code. The administrative code will likely have many volumes, organized by subject. A good
place to begin your research is in the general index, which should be in one or more volumes
shelved after the code’s main volumes. For instance, if you have a question about how much
exercise time prisoners are supposed to have, you may want to begin by looking in the
general index under “prisons.” In New York, the index would then refer you to the section on
“correctional institutions.” Under “correctional institutions,” there are many subtopics. One
of these subtopics is “exercise,” which refers you to “7 § 304.3” and “7 § 1704.6.” If you then
look at Title 7, section 1704.6 of the N.Y. Comp. Codes R. & Regs., you will find that in New
York, most prisoners are allowed to exercise outside of their cells for at least one hour each
day. If you are using a state administrative rule or regulation in your legal papers, be sure to
check whether the regulation has been recently updated or changed. Updates to state
administrative code can usually be found in soft cover volumes that follow the main volumes
of the administrative code.
(d) Find Relevant Cases
The bulk of your research time will be spent trying to find cases to support your
arguments. In researching cases, you are searching for a case that is most similar to your
case. To be most useful to you, the case must have the same facts as your case, have been
decided by a court in your jurisdiction, and must not have been reversed on appeal, or
overruled by a later case or statute. It also helps if the case is recent.
Sometimes you may hear about the “holding” or the “dicta” of a case. The holding is the
major part of the decision in a case and usually applies only to cases with facts like the case
the court decided. Dicta is all of the other things that the court says in the opinion (“dicta” is
the plural; when you are talking about only one such comment, say “dictum”). For example,
the holding of a case may be that you have the right to an attorney in a criminal case, and
other comments that the court may make about the general role of an attorney would be
dicta. You will rarely find a “perfect” case. Thus, your search should be for cases that have
strong similarities to your case.
In addition to looking for similar cases that help you, you need to be aware of any similar
cases not supporting your position. You must be prepared to explain to the judge why that
contrary case should not apply to your situation or why the judge should not follow that case.
Remember, your opponent will also be researching your case. You must be ready to respond
to your opponent’s arguments and to make your own.
A law report is the written record of the decision reached by the court. The decision set
out by the court is called an “opinion.” Books that contain these reports are known as
“reporters.” This is where you will find case law to support your arguments.
(i) Federal Reporters
There are three levels of courts in the federal system, and each level has a separate
“reporter.” The Supreme Court reporter is called the United States Reports (abbreviated as
“U.S.”). The circuit court reporter is called the Federal Reporter (abbreviated as “F.,” “F.2d,”
or “F.3d”). The trial court is called a district court and its reporter series is called the Federal
Supplement (abbreviated as “F. Supp.” or “F. Supp. 2d”). Not all decisions of federal district
courts are published. Publication is called “reporting” a decision. In New York, there are four
federal district courts: the Northern, Southern, Eastern, and Western Districts. Reported
20. To get updates before the new version is printed, you first have to look at the monthly “List of
C.F.R. Sections Affected” which will refer you to the appropriate section in the Federal Register. It is
highly unlikely that you will have access to these resources in prison.
decisions of each of these courts are found in the F. Supp. Each reported case is found and
referred to by its “citation.” The citation of a case provides both the official way of referring to
an opinion and tells you where to find the text of the opinion. Citations will be explained in
Part D of this Chapter, but you may want to read that Part now.
Unfortunately, many opinions that are of interest to prisoners are “unreported” or
“unpublished”—that is, they do not appear in the Federal Supplement or Federal Reporter
volumes available in prison law libraries. Many cases that do not appear in a reporter are
available on computer services like Lexis and Westlaw. Citations like “2000 U.S. App. LEXIS
12345” or “2000 U.S. Dist. LEXIS 12345” are Lexis citations. In the JLM, unpublished cases
are generally cited to Lexis (“LEXIS”), and occasionally Westlaw (“WL”), and are always
indicated with the text “(unpublished)” after the citation. Sometimes cases have book
citations (such as “F.2d”) but the opinions are not actually printed; they are just listed in a
table. In the JLM, table citations are included, where available, along with a citation to an
electronic source.
You should note that a citation like “___ F. Supp. ___, 2001 U.S. Dist. LEXIS 12345”
means the case is not unpublished, but is merely a recently reported decision that will be
available in the Federal Supplement in the near future. You should check to see if this
decision has been published in a reporter since the JLM was printed.
The JLM cites published decisions whenever possible. Courts generally prefer that you
cite published cases, so you should research the rules of the court in which you are filing
before you cite unpublished cases. Some courts may bar citations to unpublished cases
altogether; some permit it in certain circumstances where specific requirements are met,
such as serving a copy of the case on other parties and on the court. These rules can be
obtained for a small fee from the court clerk (the pro se clerk in New York). At the very least,
an unpublished case may help you predict the outcome of similar lawsuits. Many legal
researchers find unpublished cases helpful because they can shed light on particular
applications of settled law; in areas in which the law is unsettled, unpublished cases may
provide the only insight into how a court may respond to a certain type of claim.
Recently, the Federal Rules of Appellate Procedure were changed, which affects your
ability to cite to unpublished cases in certain situations. For federal appellate courts, you can
now cite to any unpublished cases that were decided on or after January 1, 2007.21 You
should note that most unpublished cases are not precedential, which means that courts do
not have to follow their holdings. They can be cited, however, for their persuasive value. Also,
you generally do not need to attach a paper copy of the case to your petition or brief, as long
as the case is available on a publicly accessible database.22 Some jurisdictions have more
specific rules. For example, many federal courts allow you to cite to unpublished cases even if
they were decided before January 1, 2007.23
21. Fed. R. App. P. 32.1.

22. The two computer services mentioned above, Lexis and Westlaw, are examples of publicly
accessible databases.
23. The 1st, 3rd, 4th, 5th, 6th, 10th, and 11th Circuit Courts allow citation to unpublished cases
decided before and after Jan. 1, 2007. 1st Cir. R. 32.1.0(a) (“An unpublished judicial opinion, order,
judgment or other written disposition of this court may be cited regardless of the date of issuance.”);
3rd Cir. I.O.P. 5.7 (“The court by tradition does not cite to its non-precedential opinions as authority.
Such opinions are not regarded as precedents that bind the court because they do not circulate to the
full court before filing.”); 4th Cir. R. 32.1 (“If a party believes … that an unpublished disposition of this
Court issued prior to January 1, 2007, has precedential value in relation to a material issue in a case
and that there is no published opinion that would serve as well, such disposition may be cited if the
requirements of FRAP 32.1(b) are met.”); 5th Cir. R. 47.5.3 (“Unpublished opinions issued before
January 1, 1996, are precedent. Although every opinion believed to have precedential value is
published, an unpublished opinion may be cited pursuant to Fed. R. App. P. 32.1(a).”); 6th Cir. R. 28(g)
(“Citation of unpublished decisions is permitted. FRAP 32.1(b) applies to all such citations.”); 11th Cir.
R. 36.2 (“Unpublished opinions are not considered binding precedent, but they may be cited as
There are a few ways you can learn about cases that don’t appear in the federal
reporters. First of all, you can read the JLM. While ordinarily you should never cite a case
that you haven’t read, for some cases you may have to rely on the descriptions in this book
(if, having read the rules of the court in which you are filing your claim, you decide it is
acceptable to cite unpublished cases).
The West Group sells a compilation of U.S. Court of Appeals unpublished opinions called
the Federal Appendix, last updated (at the time of this printing) in 2006. You could ask your
library to subscribe to the Federal Appendix, although your library might not, as the 182-
volume set is very expensive. You can also ask a lawyer or someone else with access to Lexis
or Westlaw to print out the case and send it to you. Keep in mind that these electronic
sources are expensive and lawyers who assist pro se prisoners may not have the resources to
respond to such requests.
Finally, some federal courts will send prisoners copies of unreported cases, upon request
and for a fee; others will not. Send your request to the clerk of the court in which the case
was decided. You could also try writing a letter to the chambers of the judge who wrote the
opinion and request a copy. In both instances, be sure you include the case name, the docket
number (for example, “No. 12 345 67”), the court, and the date of the decision. All of this
information should be available in the JLM citation. If you can tell which decision you are
looking for (e.g., the summary judgment motion, the motion to dismiss, or the motion to set
aside the jury verdict, etc.), indicate that as well.24
Citations will be discussed further in Part D of this chapter. However, here is a short
example of a citation: Mukmuk v. Comm’r, 369 F. Supp. 245 (S.D.N.Y. 1974). The italicized
portions of the citation are the parties involved in the case. (Comm’r is the accepted
abbreviation for “Commissioner”.) The first number (369) is the volume number of the
reporter, which appears on the spine of the book. “F. Supp.” identifies the Federal
Supplement reporter. The second number (245) is the page in the 369th volume of the
Federal Supplement upon which the case of Mukmuk v. Comm’r begins (the 245th page). The
information in parentheses refers to the court in which the case was decided (S.D.N.Y. refers
to the Southern District Court of New York) and the year in which the case was decided
(1974). Thus, if you need to refer to this case in your legal papers, you should use the citation
listed above. In your research, you will come across many similar citations, or variations of
such citations. You can use a citation to find the text of the case by following the procedure
persuasive authority.”); 10th Cir. R. 32.1(a) (“The citation of unpublished decisions is permitted to the
full extent of the authority found in Fed. R. App. P. 32.1.”). However, the 2nd, 7th, 8th, and 9th Circuit
Courts allow citation to unpublished cases only if the cases were decided on or after Jan. 1, 2007. 2nd
Cir. R. 23(c)(2) (“Citation to summary orders filed prior to January 1, 2007, is not permitted in this or
any other court, except in a subsequent stage of a case in which the summary order has been entered,
in a related case, or in any case for purposes of estoppel or res judicata.”); 7th Cir. R. 32.1 (“No order of
this court issued before January 1, 2007, may be cited except to support a claim of preclusion (res
judicata or collateral estoppel) or to establish the law of the case from an earlier appeal in the same
proceeding.”); 8th Cir. R. 32.1a (“Unpublished opinions issued on or after January 1, 2007, may be cited
in accordance with FRAP 32.1.”); 9th Cir. R. 36.3 (“Unpublished dispositions and orders of this Court
issued on or after January 1, 2007 may be cited to the courts of this circuit in accordance with Fed. R.
App. P. 32.1.”). When filing in the D.C. Circuit Court, you can cite to its own unpublished opinions
dating back to Jan. 1, 2002, but you can only cite to unpublished opinions from another circuit court
decided prior to Jan. 1, 2007 if that particular court’s rules allow it. D.C. Cir. R. 32.1 (“All unpublished
orders or judgments of this court, including explanatory memoranda (but not including sealed
dispositions), entered on or after January 1, 2002, may be cited as precedent … [U]npublished
dispositions of other courts of appeals entered before January 1, 2007, may be cited only under the
circumstances and for the purposes permitted by the court issuing the disposition …”).
24. You can sometimes tell what motion the decision relates to by the parenthetical explanation
that follows the citation. For example, if a case citation has a parenthetical explanation that begins
with “(granting motion to dismiss where …)” the decision you are looking for decided the motion to
dismiss.
explained in this paragraph. A fuller explanation of citations is provided in Part D and
Appendix A of this Chapter.
The second level of court in the federal system is called the circuit court of appeals.25
There are twelve such circuits in the United States.26 Circuit courts are the intermediate
appellate courts in the federal system. Reports of all circuit court decisions are found in the
Federal Reporter (abbreviated as “F.”, “F.2d” or “F.3d”). The Federal Reporter has three
series of reporters (so the volume numbers do not get too high within each series) with
volumes individually numbered within each series. Each circuit court of appeals covers
appeals from several federal district courts. Cases from the four New York federal district
courts plus the district courts of Connecticut and Vermont are appealed to the Second Circuit
Court of Appeals (abbreviated “2d Cir.”). Thus the case United States v. Bush, 47 F.3d 511
(2d Cir. 1995) is a 1995 case from the Second Circuit Court of Appeals found on page 511 of
volume 47 of the Federal Reporter (Third Series).
The third and highest level of the federal court system is the United States Supreme
Court. There is only one U.S. Supreme Court. In addition to hearing cases from lower federal
courts, the Supreme Court can also hear certain cases from state high courts. All U.S.
Supreme Court decisions are reported in the “official” reporter United States Reports
(abbreviated as “U.S.”). Decisions of the Supreme Court are also reported in two “unofficial”
reporters, the Supreme Court Reporter (abbreviated as “S. Ct.”) and the United States
Supreme Court Reports, Lawyers’ Edition (abbreviated as “L. Ed.” or “L. Ed. 2d”).27 The text
of the opinions published in any of the three Supreme Court reporters is identical, although
the citations are different. However, if you are citing a case in a legal paper, use the United
States Reports (“U.S.”) citation, if available. Thus, the citation for the famous case that
requires the police to inform those in custody of their rights is Miranda v. Arizona, 384 U.S.
436 (1966). As only Supreme Court cases are reported in the reporter “U.S.”, it is not
necessary to list the court name in the citation.
Prison libraries usually have copies of only the Supreme Court Reporter. However, you
can find the “U.S.” citation at the top of each case in the Supreme Court Reporter listed
above the case name. The S. Ct. version of the case also provides cross-references throughout
the opinion to the corresponding “U.S.” pages. This is useful if you are quoting text from the
decision, since you can read the decision in the “S. Ct.” reporter but cite the correct page in
the “U.S.” reporter. We have tried to give the citations to all three of the Supreme Court
reporters in the JLM.
(ii) State Reporters
State reporters are organized in the same way as federal reporters. New York has three
levels of courts and three official state reporters. New York Miscellaneous Reports
(abbreviated as “Misc.” or “Misc. 2d”) reports the decisions of state trial courts. Appellate
Division Reports (abbreviated as “A.D.” or “A.D.2d”) reports the decisions of New York’s
intermediate appellate courts. New York Reports (abbreviated as “N.Y.” or “N.Y.2d”) and the
North Eastern Reporter (abbreviated as “N.E.” or “N.E.2d”) both report decisions rendered by
New York’s highest court, the New York Court of Appeals.
Important appellate decisions of the New York courts are also reported in an unofficial
reporter called the New York Supplement (abbreviated as “N.Y.S.” or “N.Y.S.2d”). This is the
25. When a losing party is not satisfied with the outcome of a trial court case, it can challenge
the decision by bringing the case before the circuit court for review.
26. See Part B of this Chapter for a discussion of the Circuit Courts of Appeals.
27. One advantage of the Lawyers’ Edition is that for selected cases, not only is the text of the
case provided but attorneys’ briefs submitted to the Court are also summarized. This reporter also
includes essays written by its editorial staff on significant issues raised by selected cases. These essays
provide a good review of the case law on those issues.
only New York reporter in most New York prison libraries. The text of opinions published in
the New York Supplement is identical to that published in the official reporters. However, if
possible, citations to the official reporter should be used in papers submitted to New York
state courts. The N.Y.S. or N.Y.S.2d version of the case provides the official citation at the
beginning of each opinion (for example, it will give the N.Y.2d citation). Every state has its
own official reporter. Check your prison library to find the official reporter of your state.
(iii) Reporters as Research Tools
All reporters are useful as research tools, but those published by West Publishing
Company (“West”) are the most useful. West reporters begin each case by providing
“headnotes.” Headnotes are separate paragraphs that summarize each of the major issues
decided in the case. Each headnote is numbered and labeled with a “key number” that
identifies the legal issue that was discussed. As the next Subsection of this Chapter will
explain, these key numbers allow you to find other cases that deal with the same issue.
Although useful research tools, headnotes are not part of the decision and therefore
should not be quoted or discussed in legal papers. Reading only the headnotes may give you a
mistaken understanding of the decision. If the headnote discusses a topic that might be
relevant to your case, you should find and read the section of the decision on which the
headnote is based. If this section of the decision is helpful, that part of the decision can be
used in your legal papers. To find the part of the decision that supports a particular
headnote, refer to the paragraph(s) in the decision labeled with the same number as the
headnote. Because West publishes almost all of the major reporters, headnotes will be
present in most case reports that you read. Ultimately, however, you must read the entire
case to determine if the case will be truly useful to you.
(iv) Digests and the “Key Number System”
You may have found helpful cases while doing your background reading (for example, in
treatises), or while researching relevant constitutional or statutory references (in the “Notes
of Decisions” section of the applicable source). If you have found no useful cases (and even if
you have), the next step is to look at a “digest.” Your prison library probably has three
digests. The United States Supreme Court Digest is the digest used to find relevant Supreme
Court cases. For relevant cases from other federal courts, use the Federal Practice Digest.
Your prison library should also have a state digest, which will help you find relevant cases
from your state. In New York, that digest will be the New York Digest.
Digests summarize case law using the West headnotes discussed above. Whereas cases
have individual headnotes for each issue discussed in the case, the digests take headnotes
from all the reported cases, and group them together by subject matter. You can use digests
by first finding the broad subject area relating to your issue. These subject areas, known as
the “Digest Topics,” are arranged alphabetically. Examples of Digest Topics include arrest,
bail, convicts, and criminal law. Within each Digest Topic, there will likely be many
subtopics, each of which is assigned a “key number.” You will know you are looking at the
key number because it will have a little picture of a key in front of it. Once you find the
Digest Topic and key number of a particular legal point, you can use that number to find
cases on that legal point in any jurisdiction. The key numbers are the same for all digests.
For example, Criminal Law key number 37(1), which covers entrapment, can be used to find
cases on this issue in New York state courts (by looking in the New York Digest), in federal
courts (by looking in the Federal Practice Digest), and the U.S. Supreme Court (by looking in
the U.S. Supreme Court Digest), or cases from any state court (by looking in the digest of
that state). For this reason, finding a key number for a particular issue in your case can
greatly advance your research.
Under each key number, a digest will list “headnotes,” i.e. cases and their citations that
address the topic of the key number. Depending on how often a particular issue is litigated,
there may be no headnotes or hundreds of headnotes under each key number. Headnotes are
listed first by the level of the court that decided the case, next in alphabetical order by
jurisdiction and finally in reverse chronological order (by date, beginning with the most
recent) within each jurisdiction. Each headnote also provides a cite to the relevant case.
Digests do not provide comments on cases; they simply contain organized lists of
headnotes (cases by topic). It is up to you to decide whether a particular case might be
applicable to your legal problems. Once you decide that a headnote discusses an issue that
might be helpful, you should write down the citation given in the headnote, and use that
citation to find the text of the case in a reporter. You can decide whether the headnote has
pointed you to a useful case only after you have actually read that case. Digests are only
research guides; you may find that a headnote points you to a helpful case, but you also may
find that a promising headnote leads you to an unhelpful case.
Note that digests are usually published in several series, with each series limited to a
certain time period. For example, the fourth series of the New York Digest only contains
headnotes for cases decided from 1978 to the present; for earlier cases, you would need to
consult an earlier series of this digest. You must be aware of the period covered by the digest
to maximize your research effort. Each digest will explain its coverage in its preface, found at
the beginning of each volume. As with all other sources, do not forget to update by referring
to the pocket part28 of each hardcover volume you consult.
(v) Finding Key Numbers
There are three basic ways of finding relevant key numbers. The first and easiest way is
if you have already found a useful case. Obtain the case from a reporter published by West.
Next, review the headnotes found at the beginning of the case. One or more of the headnotes
will concern the issue(s) with which you are interested. At the beginning of the headnotes
there will be a number preceded by the picture of a key. This is the “key number.” As
described earlier, this key number can be used to find other cases that address the same
issue by looking in the digests under that key number.
The two other ways of obtaining key numbers are similar to the way you would find
relevant legislation. As described earlier, one of these ways is the “book index” method. This
method requires looking in a digest’s book index, (located at the front of the volume), and
scanning the alphabetical list of subject areas (digest topics) and the breakdown of each
subject area into smaller topics and even smaller subtopics. For example, suppose that you
were looking for federal cases on whether a search pursuant to a search warrant could be
executed at night. You would start by pulling out the volume that has “Search and Seizure”
on the spine of the book (volumes 84 and 85 in the Federal Practice Digest (Fourth Series)).
At the beginning of the section on Searches and Seizures is an index that breaks down the
large topic of Searches and Seizures into smaller and more specific legal areas. Part III refers
to “Execution and Return of Warrants.” By looking at the subtopics under Part III, you will
find an entry for “Time of Execution” and an even more specific entry “nighttime execution.”
This last entry corresponds to the key number 146 in the digest topic “Searches and
Seizures.” You should then write down all possible key numbers (here, Search and Seizure
146), and look up each key number and review a few headnotes under the numbers. In this
way you will find useful key numbers and potentially helpful cases.
The final way of finding key numbers is by using the general index to the digests. This
index is called the Descriptive Word Index (“DWI”) and contains several volumes. The DWI
lists words in their common, everyday usage. It then tells you what digest topic in the main
28. For a discussion on pocket parts see Part C(2)(c)(iii) of this Chapter.
part of the digest you should look at to find cases and headnotes related to that word. Often,
the DWI will give you the key number under which to look.
For example, suppose that you wanted to know whether you were entitled to be
represented by a lawyer in prison disciplinary proceedings. A reasonable place to start
looking would be the digest topic “Prisons” since that is where the disciplinary proceeding is
to occur. In the DWI of the New York Digest (Fourth Series), there is a subheading under
“Prisons” called “Proceedings” under which you will see a section titled “Discipline and
Grievance,” which includes “counsel and counsel substitutes.” Next to “counsel and counsel
substitutes” is the key number Prisons 13(9).
You would then look at the digest volume containing the digest topic “Prisons” and turn
within that volume to key number 13. You will see that the specific issue of whether you are
entitled to be represented by counsel in prison disciplinary proceedings is discussed as the
ninth heading under key number 13, or “13(9).” As indicated earlier, you should read the
descriptions of the cases, write down the citations of possibly useful cases, and then read
these cases. To find similar cases in another jurisdiction, look up “Prisons 13(9)” in the digest
for that jurisdiction.
A more specialized digest index is the Words and Phrases Index, which is found in a
separate volume of each digest series. This index gives citations of cases that define a word
or phrase. For example, if you want to know in detail what is meant by the term “detention,”
look it up in this index. The index will give you the citations of cases that have defined that
term. Although the Words and Phrases Index will not give you a key number, you can go to
the cases it cites to obtain relevant key numbers.
D. Citation
Whenever you mention cases, statutes, regulations, etc. in your legal writing, these
materials must be referenced in a proper legal form known as a “citation.” Legal citations
allow a reader to easily find the sources that you use in your legal writings.
There are many rules about citation style, but the major ones are detailed below. Also,
Appendix A at the end of this Chapter analyzes the most common types of citations and will
help you understand basic citation style. Detailed rules for every imaginable legal citation
are contained in A Uniform System of Citation (commonly called “The Bluebook”), a
publication that your prison library may have. Proper legal citation of cases, constitutions,
and statutes should not be ignored, as it not only helps your readers find the materials that
you are discussing, but also gives the judge a good first impression of your research.
1. Citing Cases
A case citation includes information about the parties involved in the case, the reporter
in which the case can be found, the court that decided the case, and the date of decision. The
“case name” (a listing of the names of the parties on either side) comes first and is underlined
or italicized: for example, People v. Delaremore or People v. Delaremore. Next comes
information that tells you where to find the case, in this order: the volume number of the
reporter, the abbreviation of the reporter, and the page number at which the case starts (for
example, 212 A.D.2d 804). The final portion of the citation is enclosed in parentheses. It
includes the court that decided the case and the year the decision was released (for example,
(N.Y. App. Div. 1995)). Thus, the complete citation would be: People v. Delaremore, 212
A.D.2d 804 (N.Y. App. Div. 1995). The court name “N.Y. App. Div.” stands for the New York
Supreme Court, Appellate Division. Note that in New York, the intermediate level of
appellate court (the Appellate Division) is split into four separate “Departments.” If you are
citing an Appellate Division case to a New York state court, you may also want to include
which Department the decision came from. So in the example above, the court name could be
expanded to “N.Y. App. Div. 2d Dept.” in order to show that the decision came from the
Second Department. If the reporter that you are using publishes the decisions of only one
state (for example, N.Y.S.2d), it is not necessary to repeat the state in the court name. For
example, a correct citation would be: People v. Aponte, 759 N.Y.S.2d 486 (App. Div. 1995), not
“(N.Y. App. Div. 1995).” If the reporter publishes the decisions of only one court (for example,
S. Ct.), it is not necessary to list that court in the citation. Appendix A at the end of this
Chapter summarizes the major citation styles.
You will sometimes want to refer to a particular page within the written opinion. If you
are citing part of a case for the first time, put a comma after the number of the first page of
the case and then put the specific page number. For example, Allen v. Hardy, 478 U.S. 255,
259 (1986) indicates you are specifically referring to page 259. If you have already given a
citation to that particular case earlier in the paper, you can use a short form (abbreviated
citation). The basic rule for short form is to write the name of the first party in the case (for
example, Allen), then the volume number of the reporter and the reporter abbreviation, and
then the word “at,” followed by the page number of what you want to cite (478 U.S. at 259).
So, the short form citation of this case would be: Allen, 478 U.S. at 259. If the first party is a
governmental party, use the other party’s name. Thus, United States v. Rosario would be
shortened to Rosario and never to United States.
Normally, you cite to the decision of the highest court that considered a case. Thus, if the
case was ultimately decided by the New York Court of Appeals (the highest state court in
New York), it is not necessary to cite to the decisions of the lower New York courts that
heard the same case. There may be times, however, that you wish to cite to the lower court
decision. It would be appropriate to cite a lower court decision, for example, where the lower
court considered an issue that a later court upheld without comment. However, if the case
has been appealed to a higher court, this should be reflected in the citation. For example,
Schmuck v. United States, 840 F.2d 384 (7th Cir. 1988), aff’d, 489 U.S. 705 (1989). This
citation shows that the U.S. Supreme Court “affirmed,” or upheld, the decision of the
Seventh Circuit Court of Appeals in the Schmuck case. If a decision has been reversed on
appeal but the part of the decision that helps you was not reversed, the citation should
reflect this—for example, People v. Perkins, 531 N.E.2d 141 (Ill. App. Ct. 5th Dist. 1988),
rev’d on other grounds sub nom. Illinois v. Perkins, 496 U.S. 292 (1990). This citation tells
you that the Supreme Court decided the Perkins appeal two years after the Fifth District of
the Illinois Appellate Court made its decision, and reversed that decision for a reason
unrelated to the part of the case that helps you. The citation also shows that the Supreme
Court considered the case under a different name than the Fifth District of the Illinois
Appellate Court (that is what “sub nom.” means).
When you cite a federal appellate court decision, show whether the Supreme Court has
refused to review the decision. For example, United States v. Fisher, 895 F.2d 208 (5th Cir.
1990), cert. denied, 493 U.S. 834 (1989). “Cert.” stands for “writ of certiorari,” which the
Supreme Court issues when it decides to review a lower court decision. “Cert. denied” means
that a party asked the Supreme Court to review the case but the Supreme Court refused to
issue certiorari and thus refused to review the case. As a point of information, the Supreme
Court refuses to review an overwhelming majority of the cases that come before it for
certiorari.
You must check each case you cite to find out whether it was appealed and whether it
was reversed or affirmed on appeal. Read Part E(2)(a) of this Chapter for information of how
to update a case. If the entire case was reversed, you should not mention the lower court’s
decision in your legal papers because it is no longer good law.
2. Citing Statutes
Citations for statutes are similar to other legal citations. The citation shows: (1) the
“volume” number of the book the statute is in (the “title” or “book” number); (2) the statutory
source in which you found the statute (for example, the United States Code Annotated is
cited as U.S.C.A.); (3) the section of the law to which you are referring; and (4) the date of
publication of the volume in which you found the statute. An example is 42 U.S.C.A. § 1983
(1994); 42 is the title, U.S.C.A. is the abbreviation for United States Code Annotated, §
means section, 1983 means the section 1983 within title 42, and 1994 is the year the volume
you looked at was published. If the statute was changed recently, you must cite to the
changed version of the statute. You can determine if a statute has been changed by looking
at the supplement or “pocket part” at the back of the hardcover volume. For instance, if
section 1983 had been amended in 1995, you would cite the amended section like this: 42
U.S.C.A. § 1983 (Supp. 1995). If you want to refer to the entire statute and only part of it has
been amended, you would cite it like this: 42 U.S.C.A. § 1983 (1994 & Supp. 1995).
Citations for federal administrative regulations are very similar to citations for statutes.
The citation includes (1) the title number of the regulation; (2) the source in which you found
the regulation (the Code of Federal Regulations is cited as C.F.R.); (3) the specific section
cited; and (4) the date of the code edition. For example, 28 C.F.R. § 544.70 (2003) refers to
section 544.70 of Title 28 of the C.F.R., of the volume published in 2003. This section
discusses the Federal Bureau of Prisons literacy program.
The format for citations to state administrative codes is slightly different in each state,
but generally contain the same information as citations to statutes or federal regulations.
Generally, the citation includes (1) the source that contains the state’s administrative code
(for example, the Official Compilation of Codes, Rules & Regulations of the State of New
York, cited as N.Y. Comp. Codes R. & Regs.); (2) the title or book number of the regulation
(for example, in New York, Title 7 contains the rules and regulations of the Department of
Corrections); (3) the specific section of the regulation to which you are referring; and (4) the
publishing date of the volume in which you found the regulation. For example, N.Y. Comp.
Codes R. & Regs. tit. 7 § 1704.6 (2003) is the correct citation for Title 7, section 1704.6 of the
Codes, Rules, and Regulations of the State of New York. Although the format varies slightly
in each state, you may be able to find the correct citation format for your state’s
administrative code by looking in the first few pages of any volume of the code. Depending on
the publisher of your state’s code, these pages may include information that gives the correct,
official citation format.
Any citation in a footnote should be followed by a period.
E. Important Next Steps
1. Check Other Sources
A final way to research an issue is to read the JLM. If there is a chapter that discusses
the issue or topic that you are interested in, read the cases cited in that chapter. If you want
additional cases in this subject area, you can obtain the key numbers by looking at the case
headnotes in the relevant reporter. The key numbers will allow you to find additional cases
in the digests.
Another way to find out more about a relevant case and its subject matter is to look up
that case in the “Table of Cases” in a relevant treatise. If the case is listed, read what the
treatise author has to say about the case and the issues it discusses. While not binding on
courts, treatise commentary can be helpful to a researcher and can be used to support your
legal arguments.
Although legislation and case law will be the major sources of support for your legal
arguments, other sources in your library might also be useful. A second review of general
treatises may be helpful in explaining some of the cases you found. This review may also
provide leads for other potential arguments. You should also read legal magazines and
newspapers. Your prison library will likely have the local legal newspaper, such as the New
York Law Journal. Any other type of legal aid found in your library should also be consulted.
Practice commentaries, loose-leaf services, manuals, form books, textbooks, and legal
dictionaries are all useful sources that your law library may have.
2. Update Your Research
It is essential that your research be up-to-date. Any authority you use should be
examined to make sure it is current law. To ensure that statutes are current, consult the
latest code editions and supplements. As described in Part C(2)(c)(iii) of this Chapter, a
hardcover volume will likely have soft cover updates in the pocket at the back of the volume.
It may also have supplementary updates shelved after the main volumes. You must also
ensure that any case you use has not been overturned or overruled. Finally, you must
confirm that the issue you have been researching has not been reinterpreted or modified by
more recent cases or statutes. You normally check to make sure that cases and the issues
decided in them are up-to-date with a research tool called Shepard’s Citations.
(a) Shepard’s
Shepard’s Citations (“Shepard’s”) is a research tool that provides a listing of all cases
that have cited the case you are checking. Using this tool is called “Shepardizing.” Shepard’s
serves two purposes: (1) it allows you to update your research and confirm that the case you
wish to rely upon has not been affected by later legal developments (overruled, criticized,
etc.), and (2) it points you to more cases that might be helpful.
There is a separate series of Shepard’s volumes for each level of federal court. Thus,
there is a separate series for the Federal Supplement, the Federal Reporter, and the United
States Reports (U.S.C.). Shepard’s volumes are also available for state reporters. The basic
function of Shepard’s is to list every other reported case that discusses a particular case. You
use it to check for updates to cases that you want to cite. Updating means checking to see if
the case is still good law that you can rely on. Thus, if Miranda v. Arizona is discussed in ten
other cases, Shepard’s will identify these cases. Shepard’s will list a case that overrules the
case you wish to update, as well as other cases that discuss, explain, or even mention the
case you are updating. This will allow you to find out what other courts have said about the
case you are updating and will also show you how other courts have handled the issues
raised by that case.
Cases are listed in Shepard’s only by citation, not by name. To “Shepardize” a case, first
find the Shepard’s series that corresponds to the reporter in which your case is found. The
corresponding case reporter name is printed on the binding of each Shepard’s volume. For
example, if the case you are updating is reported in “F.2d,” find the Shepard’s volumes that
have “Federal Reporter (Second Series)” printed on the binding. The binding will also show
what year(s) or volume(s) of the reporter that the Shepard’s volume covers. Next, find the
volume number in the citation of the case you are updating. (The volume is the first number
in the citation.) Open the Shepard’s volume that includes the volume of the Reporter, then
search for that volume number in the upper right hand corner of the page. Once you’ve found
the page where the citations for that volume number begin, look down the columns of
citations listed until you find the starting page number of the case you are updating. This
page number will be printed in large bold type. Beneath the bold page number are citations
to cases that have mentioned the case you are updating. Citations in Shepard’s are provided
alphabetically by jurisdiction and in reverse chronological order within each jurisdiction. The
citations are not given in full. They contain only the volume number, the reporter, and the
page number that refers to the case you are updating. (Note that the page number provided
is not the first page of the cited case, but rather the page where the case being updated is
mentioned.)
A list of abbreviations appears at the front of each Shepard’s volume to help you decode
and understand the reporter abbreviations. There are often letters in front of the listed
citations. The letters are a code that tells you how the later cases treated the case you are
Shepardizing. They tell you whether a later court overruled, criticized, or followed the case.
The code letters are explained in a table on the inside of the front cover of each Shepard’s
volume. The most important symbols to look for are “o” which indicates the case you are
researching has been overruled, “r” which indicates that the case you are researching has
been reversed, and “d” which indicates that the case you are researching has been
distinguished, that is, another court has created an exception to the case you are
researching. These are “negative treatments” of the case. Negative treatment makes a case
less reliable. If the case you are researching has been overruled or reversed, then it is no
longer useful to you. If it has been distinguished, then you must find out why it was
distinguished and then make arguments why your situation should not be distinguished
from the case you are shepardizing. Sometimes a court reverses, overrules, or distinguishes
only a part of a previous case rather than the entire opinion. Therefore, it is important to
determine whether the specific issue of interest to you has been reversed, overruled, or
distinguished. Even if the court overruled or reversed the case based on a different issue, if
you use this case in your legal documents, your case citation should indicate that the case
was reversed on other grounds so the court knows you have done your research.
To find the most recent cases that have mentioned the case you are updating, check the
hardcover supplements, if any. Next, check the current paperback cumulative supplements.
The supplements are organized in the same way as the main volume. Each supplement
should be checked in the same way as the main volume. There are also volumes of Shepard’s
citations for statutes and federal rules, which list the judicial opinions that cite particular
statutory provisions or federal rules. These are used to update statutes and rules in the same
manner as the series for updating case law.
Shepardizing is used not only to update cases but also as a means to find other helpful
cases. If you already have one case that is useful, Shepardizing that case will often lead you
to other cases that will be helpful. The disadvantage of this method of finding cases is that
Shepard’s does not contain headnotes. Thus, you must read the cited case to learn whether it
is helpful. However, you can shorten your search if you know the relevant headnote number
from the case you are updating. You can use this headnote number to limit the cases you
need to review to those containing the same number. In some citations there is a small
superscript number between the reporter abbreviation and the page number; this shows that
the cited case discusses the issue described in that headnote (superscript is text written
small and high like this: wordsuperscript). If you are interested in the issue discussed in
headnote number 2 of the case you are updating, scan the list of citations for those that have
a superscripted “2” in the citation. This will limit your review of cases to those cases that
discuss the issue corresponding to headnote number 2 of the case you are updating. Not all
citations will list which headnotes are discussed. If you find a citation that does not list
which headnotes are discussed, you cannot tell whether that case will be useful until you
read it.
Regardless of whether you use Shepard’s to find cases, you must always use it to ensure
the cases you are citing were not overruled, reversed, or distinguished.
F. Summary
Research is a key step in developing and presenting a legal argument. This Chapter has
suggested an outline for the development of your legal arguments:
(1) Analyze the problem—separate your case into small, discrete issues. This will help
you get started and provide manageable issues for you to research;
(2) Get an overview of the subject area—review treatises and legal encyclopedias to
obtain an introduction to the details of particular areas of law;
(3) Find relevant legislation—consult the annotated codes to find U.S. and state
constitutional provisions, federal statutes, state statutes, and legislative history;
(4) Find relevant cases—read cases cited in annotated codes such as U.S.C.A. and
McKinney’s. Find additional cases through digests, key numbers, indices, words and
phrases tables, and Shepard’s;
(5) Check other sources—review treatises, legal periodicals, practice commentaries,
manuals, form books, texts, and legal dictionaries for additional commentary;
(6) Update your research—make certain that you rely on the latest editions and
supplements; Shepardize your case law and legislation; and
(7) Complete your citations—properly cite the authorities upon which you rely.
Two preliminary issues that you will want to confirm before beginning your research are:
(1) which court has jurisdiction to hear your case (both territorial and subject matter
jurisdiction), and (2) if you are appealing a conviction, whether the prosecutor followed
proper court rules to get your case to court. The following are the sources most often used in
prison law libraries to find the law.
For federal law:
(1) U.S.C.A. (for statutes and the annotations that follow the statutory text)
(2) Modern Federal Practice Digest (for federal cases on specific topics).
The major reporters you will be looking to for reported federal cases will be: the Federal
Supplement, cited as __ F. Supp. __, __ F. Supp. 2d __, and __ F. Supp. 3d __ (the 3d series
will contain the most recent cases) for selected cases from all federal district courts; the
Federal Reporter, cited as __ F. __, __ F.3d __, and __ F.3d __ (the 3d series will contain the
most recent cases), for cases from all federal circuit courts of appeals; and the Supreme Court
Reporter, cited as __ S. Ct. __, for cases from the U.S. Supreme Court.
For New York law:

(1) McKinney’s (for statutes and for the case annotations that follow the statutory text)
(2) New York Digest (for New York cases on specific topics)
The major reporter you will be looking to for reported New York cases will be the New
York Supplement (Second Series). It is cited as __ N.Y.S.2d __.
G. Other Ways to Learn About Legal Research
Many organizations have developed materials to help non-lawyers understand the law.
For example, West Publishing Company publishes The Guide to American Law, Everyone’s
Legal Encyclopedia, which is directed toward non-lawyers. A detailed explanation of how to
conduct legal research is found in M. Cohen’s Legal Research in a Nutshell. Finally, the law
is full of technical terms. Black’s Law Dictionary (8th ed. 2004) is particularly helpful in
explaining legal terms.
H. Conclusion
Legal research is a critical task for jailhouse lawyers because it provides the legal rules
and principles you will need to argue your case effectively. The process begins with
identifying the appropriate court (state versus federal, trial versus appellate, one with proper
jurisdiction). The next step involves breaking down the issues in your specific case—the
factual story—to see what legal sources you can use to make your argument. You should
start with finding the legislation or administrative rules that apply, which can demonstrate
where your rights have been violated or how a court got it wrong. It will then be important to
find precedents that have facts similar to your case and support your position. Finally, after
you gather different legal sources, you must make sure these sources are still valid and up-
to-date (i.e., Shephardize) and cite them properly.
APPENDIX A
CITATION EXAMPLES OF COMMON AUTHORITIES

A-1. Federal Cases
reporter abbreviation (U.S. Reports)

“v” for versus reporter volume number specific page referred to (pin cite)
Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).29
first party date of decision

second party
first page of case (no court is indicated as it
is clear from reporter name
that this is a United States
Supreme Court case)
parties reporter abbreviation

(Federal Reporter (Second Series))
United States v. Kokinda, 866 F.2d 699

(4th Cir. 1989), rev’d, 497 U.S. 720 (1990).
Citation of case in which
higher court took action
deciding court date of

decision
action taken by a higher court, in this case,
the United States Supreme Court
(“rev’d” stands for reversed)
Shortform (abbreviated) citation for the above case after it has been cited in full
earlier in your legal paper:
Volume number and reporter
Kokinda, 497 U.S. at 725.
specific page referred to (pin cite)

shortened case name
(should be italicized)
Do not use a governmental party as the named
party (e.g., State), because many other cases
will also have the name of a governmental
party in them. Use the other party’s name
instead.
29. You will notice that the JLM often cites to many different reporters for each case. Often, cases
are published in more than one reporter—these “extra” citations are “parallel citations.” If possible, you
should always cite to an official reporter (for example, “U.S.,” or “F.2d.”). If you do not have the official
reporter available at your prison library, just make sure that your citation to an unofficial reporter is
accurate.
A-2. State Cases
reporter abbreviation
(New York Reports, Second Series—the
official reporter of the New York Court of
parties
Appeals)
Hynes v. Tomei, 92 N.Y.2d 613, 706 N.E.2d 1201, 684 N.Y.S.2d 177 (1998), cert.
denied, 119 S. Ct. 2359 (1999)
Action taken by a higher court, in this case, the parallel citations

United States Supreme Court. (“cert. denied” indicates The two citations that refer to
that the U.S. Supreme Court denied the petition for “N.E.2d” and “N.Y.S.2d” are parallel
certiorari). The reporter “S. Ct.” is an unofficial reporter citations. For more information on
for the U.S. Supreme Court. This is a recent case—often parallel citations, see note 29 of this
cases are available in the Supreme Court Reports (“S. Appendix A.
Ct.”) before they are printed in the United States Reports
(“U.S.”). The next number is the citation of the case in
which the Supreme Court took action.
A-3. Constitutions
United States Constitution
abbreviation for amendment
U.S. Const. amend. I.
abbreviation of number of amendment cited

constitution cited
State Constitution
abbreviation for article
N.Y. Const. art. IV, § 7.
abbreviation of section symbol and specific section cited

constitution cited
number of article cited

A-4. Statutes
Federal Statute
title section symbol and specific section cited
28 U.S.C.A. § 1291 (1988).

date of code edition cited
code abbreviation
(United States Code Annotated)
State Statute
abbreviated title of statute

date and edition of code cited
N.Y. C.P.L.R. 7801 (McKinney 1997).
specific section cited
A-5 Definitions for Common Statutory Abbreviations

Ann. Annotated
App. Appendix
art. article
Civ. Civil
Comp. Compilation
Const. Constitution
Ct. Court
Crim. Criminal
et seq. et sequentes, latin for ‘and the following ones’
Gen. General
Jud. Judicial
P. or Proc. Procedure
Rev. Revised
R. Rules
Stat. Statutes
S. Ct. Supreme Court
tit. title
Manual
Chapter 3:
Your Right to Learn the Law
and Go to Court

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 3
YOUR RIGHT TO LEARN THE LAW AND GO TO COURT*

A. Introduction
Although many rights are suspended while you are in prison, courts have protected a
prisoner’s constitutional right to access the state and federal courts.1 This right includes a
prisoner’s ability to prepare and submit petitions and complaints, including federal habeas
corpus petitions and civil rights actions.2 The Supreme Court held in Bounds v. Smith that
“the fundamental constitutional right of access to the courts requires prison authorities to
assist inmates in the preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistance from persons trained in the
law.”3 In other words, the Supreme Court believes that prisoners need a way to learn the law
in order to take full advantage of their constitutional right to access the courts. If the state
stands in the way of your ability to do legal research or get legal assistance, you may be able
to file a suit claiming that you have been denied access to the courts. You may also be able to
file a suit claiming a denial of court access if the state prevents you from creating and
mailing your legal papers by withholding necessary resources or materials. The Supreme
Court stated in Bounds that the right of access to the courts includes the state’s obligation to
provide indigent prisoners “with paper and pen to draft legal documents, with notarial
services to authenticate them, with stamps to mail them.”4
The Supreme Court has limited the circumstances in which a prisoner can win a denial
of access suit. In 1996, the Court held in Lewis v. Casey that in order for a prisoner to have a
cause of action under Bounds, he must first show that an actual injury has occurred because
he has been denied access to the courts. This actual injury requirement means you must
show both that the State’s legal access program was inadequate, and that you suffered an
actual injury because of its inadequacies. The Supreme Court went on to hold that proving
an actual injury requires showing that a “non-frivolous legal claim” has been frustrated.5
Therefore, under Lewis, you must show (1) your right of access to the courts was denied, and
(2) because of that denial you lost a non-frivolous legal claim.6
*This Chapter was revised by Sarah Jackel based on previous versions by Laura Burdick, Shima
Kobayashi, Monica Ratliff, Jeffra Becknell, Carolyn Hotchkiss, and Marianne Yen. Special thanks to
John Boston of the Prisoners’ Rights Project at The Legal Aid Society.
1. See Procunier v. Martinez, 416 U.S. 396, 419, 94 S. Ct. 1800, 1814, 40 L. Ed. 2d 224, 243
(1974) (describing right of access to courts as part of constitutional due process of law requirements);
see also Murray v. Giarratano, 492 U.S. 1, 11 n.6, 109 S. Ct. 2765, 2771 n.6, 106 L. Ed. 2d 1, 12 n.6
(1989) (tracing right of access to courts to due process and equal protection clauses of U.S.
Constitution).
2. Bounds v. Smith, 430 U.S. 817, 828 n.17, 97 S. Ct. 1491, 1498 n.17, 52 L. Ed. 2d 72, 83 n.17
(1977). For an explanation of federal habeas corpus petitions and how to use them, see JLM, Chapter
13. Civil rights actions involve the violation of your constitutional rights. For more information about
your constitutional rights and how to sue those who violate your constitutional rights, see Chapter 16
of the JLM, which discusses Section 1983 and Bivens actions.
3. Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d 72, 83 (1977).
4. Bounds v. Smith, 430 U.S. 817, 824–25, 97 S. Ct. 1491, 1496, 52 L. Ed. 2d 72, 81 (1977).
5. Lewis v. Casey, 518 U.S. 343, 351–53, 116 S. Ct. 2174, 2180–81, 135 L. Ed. 2d 606, 617–19
(1996). Lewis was a class action claiming denial of prisoners’ right of access to courts. The Supreme
Court reversed a Ninth Circuit decision ordering Arizona to provide prisoners with extensively
equipped law libraries and experienced library staff.
6. Lewis v. Casey, 518 U.S. 343, 350–51, 116 S. Ct. 2174, 2179–89, 135 L. Ed. 2d 606, 617–18
(1996).
Congress has also limited the ability of prisoners to bring denial of access suits. In 1995,
Congress enacted the Prison Litigation Reform Act (“PLRA”) which, among other things,
requires prisoners to exhaust their prison’s administrative remedies before filing claims
alleging violation of civil rights under 42 U.S.C. Section 1983 in federal court. The
information provided in this Chapter is to be used only as a supplement to the information
provided in Chapter 14 of the JLM. If you decide to pursue any claim in federal court,
you must read Chapter 14 of the JLM on the Prison Litigation Reform Act. Failure to
follow the requirements in the PLRA can lead, among other things, to the loss of your good-
time credit and to the loss of your right to bring future claims in federal court without paying
the full filing fee at the time you file your claim.
This Chapter explains what constitutes a violation of your right of access to the courts.
Parts B and C explore the threshold requirements you must prove before the court will
examine your opportunities for access: that you suffered an actual injury and that you did so
because the state failed to fulfill its duty. Part B explains the actual injury requirement, as
stated in Lewis v. Casey. Part C outlines the reach of the state’s7 duty to provide you access
to the courts. The later Parts explain your rights once these requirements have been met.
Part D explains what adequate law libraries must contain. Part E explains what constitutes
adequate assistance from persons trained in the law (including the role of jailhouse lawyers8
in providing adequate assistance). Part F explains the state’s duty to provide you with legal
materials. Appendix A provides a list of organizations that will help you to get certain legal
materials. Be aware, however, that these organizations usually charge a fee for their
services.
Because the rights described in this Chapter relate to the conditions of your confinement,
the PLRA requires you first try to protect your rights through your institution’s
administrative grievance procedure. Read Chapter 15 of the JLM for further
information on inmate grievance procedures. If you are unsuccessful or do not receive a
favorable result through these procedures, you can then either bring a case under 42 U.S.C.
§ 1983, file a tort action in state court (or in the Court of Claims if you are in New York), or
file an Article 78 petition in state court if you are in New York. More information on all of
these types of cases can be found in Chapter 5, “Choosing a Court and a Lawsuit,” Chapter
14, “The Prison Litigation Reform Act,” Chapter 16, “42 U.S.C. § 1983,” Chapter 17, “Tort
Actions,” and Chapter 22, “Article 78,” of the JLM.
B. Fulfilling the Actual Injury Requirement
The Supreme Court in Lewis v. Casey narrowly interpreted the Bounds decision by
holding that establishing a violation of your right to access the courts requires showing
“actual injury” from the alleged violation. 9 The actual injury requirement is not a new
7. “State” in this chapter means either a state government or the federal government. In other
words, if you are a federal prisoner, when we refer to “state” in this chapter, for you it means the
federal government.
8. Black’s Law Dictionary 851 (8th ed. 2004) defines a jailhouse lawyer as “[a] prison inmate who
seeks release through legal procedures or who gives legal advice to other inmates.”
9. Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 617–18 (1996); see
also Chirceol v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999) (finding that denial of access to funds from
prison accounts to pay for filing fees did not constitute an actual injury because the complaint had been
successfully filed); Tourscher v. McCullough, 184 F.3d 236, 242 (3d Cir. 1999) (finding that defendant
failed to allege facts demonstrating that the number of hours he was required to work frustrated his
access to the courts); Klinger v. Dep’t of Corr., 107 F.3d 609, 617 (8th Cir. 1997) (showing a complete
and systematic denial of access to the law library or legal assistance was not enough to demonstrate
actual injury); Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir. 1997) (dismissing a claim because the
prisoner suffered no injury as a result of alleged interference with legal mail); Pilgrim v. Littlefield, 92
F.3d 413, 416 (6th Cir. 1996) (holding that pro se prisoners failed to demonstrate that inadequacy of the
prison law library or legal assistance caused actual injury); Sabers v. Delano, 100 F.3d 82, 84 (8th Cir.
concept, but the Lewis approach makes things harder for prisoners. Establishing that the
prison’s law library or legal assistance program is inadequate is not enough to prove actual
injury. You must also show that you were kept from pursuing a non-frivolous claim—that is,
“a claim for relief that is at least arguable in law and in fact” 10 —because of these
inadequacies.11
One way to prove an actual injury may be to show a complaint you prepared was
dismissed for failure to meet a technical requirement you could not have known about
because of the insufficient legal assistance provided at your prison facility.12 Another way
may be to show you were prevented from filing a claim in the first place because of
weaknesses in the legal facilities provided.13 If you and others bring a class action, you must
show the injury was systemic—that is, you must show a system-wide problem.14
C. How The State’s Limited Duty to Provide Access to the Courts May Apply to
You
There are a few things to keep in mind when developing your claim: (1) your state’s duty
to provide you with adequate law libraries or adequate assistance from persons trained in
law may not extend to the type of action you want to bring; (2) your correctional facility can
choose how it will meet its duty to provide legal information or expertise; (3) the state’s duty
almost always applies regardless of the kind of facility in which you are incarcerated; (4) it is
currently unclear how far the state’s duty to provide access extends; (5) the state’s duty
applies whether or not you are considered indigent.
First, courts disagree about whether your right of access to the courts is applicable in all
cases or only in those cases involving constitutional rights. In Lewis v. Casey,15 the Supreme
Court stated that your right of access does not guarantee your right to file any claim; instead,
this right is limited to non-frivolous lawsuits that attack prison sentences or challenge the
conditions of confinement. 16 Though this language is somewhat unclear, Lewis and
subsequent cases have narrowly defined the claims to which the right of access to the courts
1996) (finding prisoner had to show actual injury due to denial of access to courts, even if denial was
systematic; specifically, prisoner had the burden of showing that the “lack of a library or the attorney’s
inadequacies hindered [her] efforts to proceed with [the] legal claim in a criminal appeal, post-
conviction matter, or a civil rights action.”); Stotts v. Salas, 938 F. Supp. 663, 667–68 (D. Haw. 1996)
(holding that a state prisoner transferred to another state must show actual injury to have law books
sent from the state of his former prison).
10. Lewis v. Casey, 518 U.S. 343, 399, 116 S. Ct. 2174, 2203, 135 L. Ed. 2d 606, 662 (1996).
11. Lewis v. Casey, 518 U.S. 343, 352–53, 116 S. Ct. 2174, 2179, 135 L. Ed. 2d 606, 616 (1996).
The Court said, “the inmate … must … demonstrate … the alleged shortcomings in the library or legal
assistance program hindered his efforts to pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351, 116
S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 618 (1996).
12. Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 618 (1996).
13. Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 618 (1996)
(arguing that a prisoner could prove actual injury if the “inadequacies of the law library” prevented him
from even filing a complaint).
14. See, e.g., Lewis v. Casey, 518 U.S. 343, 349, 116 S. Ct. 2174, 2179, 135 L. Ed. 2d 606, 616
(1996) (holding that “isolated instances of actual injury” are not enough to show a systemic Bounds
violation).
15. Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996).
16. The Supreme Court in Lewis held:
“Bounds does not guarantee inmates the wherewithal to transform themselves into litigating
engines capable of filing everything from shareholder derivative actions to slip-and-fall claims.
The tools it requires to be provided are those that the inmates need in order to attack their
sentences, directly or collaterally, and in order to challenge the conditions of their confinement.
Impairment of any other litigating capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and incarceration.”
Lewis v. Casey, 518 U.S. 343, 355, 116 S. Ct. 2174, 2182, 135 L. Ed. 2d 606, 620 (1996).
extends. 17 For example, some courts have held that the state’s duty extends only to the
initiation of habeas corpus proceedings, direct appeals, and civil rights actions,18 because
these are the only actions specifically mentioned in Bounds v. Smith.19 Thus, your state’s
duty to provide access to the courts may not extend to ordinary civil proceedings. 20
Nonetheless, you should check your state’s law on this issue, which may cover civil
proceedings.
Second, the state may choose how to fulfill its duty.21 The state may provide you with an
adequate law library, adequate assistance from persons trained in the law, a combination of
the two, or something slightly different.22 For example, an inadequate or non-existent law
library may not violate a prisoner’s right of access when the state provides some other sort of
17. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (holding that “a prisoner’s
right to access the courts extends to direct appeals, habeas corpus applications, and civil rights claims
only”); Wilson v. Blankenship, 163 F.3d 1284, 1291 (11th Cir. 1998) (holding that the civil forfeiture
case that the plaintiff was attempting to litigate was “not a type of case that is included under the right
of inmates’ access to courts under Lewis”).
18. Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999).
19. Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d 72, 83 (1977) (holding
federal habeas corpus or state or federal civil rights actions are encompassed within right of access to
the courts); see also Knop v. Johnson, 977 F.2d 996, 1009 (6th Cir. 1992) (determining that requiring a
state to provide affirmative legal assistance to prisoners in actions unrelated to constitutional rights or
their incarceration would be “an unwarranted extension of the right of access”); cf. Glover v. Johnson,
75 F.3d 264, 269 (6th Cir. 1996) (finding female prisoners not entitled to legal assistance in child
custody matters); John L. v. Adams, 969 F.2d 228, 235–36 (6th Cir. 1992) (holding states do not have a
duty to provide affirmative assistance to prisoners on civil matters arising under state law, but noting
that “states are required to provide affirmative assistance in the preparation of legal papers in cases
involving constitutional rights and other civil rights actions related to their incarceration … [and also
that] in all other types of civil actions states may not erect barriers that impede the right of access of
incarcerated persons”); Walters v. Edgar, 900 F. Supp. 197, 229 (N.D. Ill. 1995) (finding prisoners have
no constitutional right to assistance from the state to pursue child custody matters).
20. See Glover v. Johnson, 75 F.3d 264, 269 (6th Cir. 1996) (holding female prisoners not entitled
to legal assistance in child custody matters); John L. v. Adams, 969 F.2d 228, 235–36 (6th Cir. 1992)
(holding that states do not have a duty to provide affirmative assistance to prisoners on civil matters
arising under state law).
21. Morello v. James, 810 F.2d 344, 346–47 (2d Cir. 1987) (“The right of access to the courts is
substantive rather than procedural. Its exercise can be shaped and guided by the state but cannot be
obstructed, regardless of the procedural means applied.” (citations omitted)); Ramos v. Lamm, 639 F.2d
559, 583 (10th Cir. 1980) (“Bounds does not hold that inmates have an absolute right to any particular
type of legal assistance. The states are still free to choose among a variety of methods or combinations
thereof in meeting their constitutional obligations [to provide access to the courts].” (citations omitted));
Glover v. Johnson, 75 F.3d 264, 266–67 (6th Cir. 1996) (holding that state could terminate funding for
prison legal services program that provided female prisoners with assistance on child care matters
because the termination did not violate the right of access to courts).
22 . The Supreme Court has pointed out that “while adequate law libraries are one
constitutionally acceptable method to assure meaningful access to the courts,” alternative programs
may be acceptable. Bounds v. Smith, 430 U.S. 817, 830, 97 S. Ct. 1491, 1499, 52 L. Ed. 2d 72, 84 (1977).
The Bounds Court suggested some alternatives to having a law library:
“Among the alternatives [to providing law libraries] are the training of inmates as paralegal
assistants to work under lawyers’ supervision, the use of paraprofessionals and law students
…, the organization of volunteer attorneys through bar associations or other groups, the hiring
of lawyers on a part time consultant basis, and the use of full-time staff attorneys, working
either in new prison legal assistance organizations or as part of public defender or legal
services offices.”
The Bounds Court did not consider this list of proposed alternatives exhaustive, stating that “a legal
access program need not include any particular element we have discussed, and we encourage local
experimentation.” Bounds v. Smith, 430 U.S. 817, 831–32, 97 S. Ct. 1491, 1499–1500, 52 L. Ed. 2d 72,
84–85 (1977).
legal assistance.23 At the same time, while the state is free to devise its own legal access
plan, there is no guarantee that courts will find it sufficient to satisfy your right of access to
the courts.24
Third, the state’s duty to provide you with access to the courts is not limited to those in
state prison, but also extends to prisoners in county and city jails,25 incarcerated juveniles,26
persons serving brief sentences in local jails, pretrial detainees, and mental patients under
commitment. Prisoners who are transferred from one state correctional facility to another or
from a state correctional facility to a federal correctional facility retain their right of access to
the courts and therefore must be provided some legal access program.27 However, as in Blake
v. Berman, the court may find that the state has fulfilled its duty by providing you with
persons trained in the law but no legal materials pertaining to the state in which you were
convicted.28 For example, a federal court in New York has suggested that a state might fulfill
its obligation to provide access to the courts by either supplying law books or providing legal
counsel to state prisoners incarcerated in federal facilities.29
Fourth, the extent of a state’s duty to assist your access to the courts is unclear. For
instance, is it enough for a state to assist only until you are finished writing your complaint?
Lewis greatly limits the Bounds decision by explaining that prison authorities have no duty
to enable the prisoner to find or recognize violations of his rights30 or to “litigate effectively
once in court.”31 This seems to imply that your right to access the courts extends only until
23. Prison authorities may “replace libraries with some minimal access to legal advice and a
system of court-provided forms … that asked the inmates to provide only the facts and not to attempt
any legal analysis.” Lewis v. Casey, 518 U.S. 343, 352, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 618–19
(1996) (citations omitted). See also Blake v. Berman, 877 F.2d 145, 146 (1st Cir. 1989) (finding law
school clinical program might be considered an adequate alternative to a law library).
24. See Novak v. Beto, 453 F.2d 661, 663–64 (5th Cir. 1971) (finding that a prison legal access
program consisting of a small “library,” permission to use the law books of fellow prisoners, the prison
employment of two full time attorneys, and three senior law students employed one summer may not be
a sufficient alternative to allowing prisoners to provide some form of legal assistance to one another).
25. See Leeds v. Watson, 630 F.2d 674, 676–77 (9th Cir. 1980) (finding that there is a question of
obstruction when prisoners in a county jail are required to get a court order to have access to a law
library close by, and must be accompanied by a guard, and are not given sufficient information
concerning these requirements); Williams v. Leeke, 584 F.2d 1336, 1340 (4th Cir. 1978) (finding that a
situation where a prisoner in a city jail was only allowed access to legal resources 45 minutes a day,
three days a week was “on its face a constitutional violation”); Cruz v. Hauck, 475 F.2d 475, 476 (5th
Cir. 1973) (holding that prison regulations must not unreasonably invade the relationship of the
prisoner to the courts in a case where the prisoner was in a county jail); Tuggle v. Barksdale, 641 F.
Supp. 34, 36–37 (W.D. Tenn. 1985) (discussing how the fundamental right of access to the court may be
applied in a county jail).
26. John L. v. Adams, 969 F.2d 228, 233 (6th Cir. 1992) (holding that incarcerated juveniles have
a constitutional right of access to the courts).
27. Messere v. Fair, 752 F. Supp. 48, 50 (D. Mass. 1990) (holding that neither a copying service
providing Massachusetts law but requiring specific citations, nor a Connecticut legal assistance
program that refused to work on Massachusetts legal materials, provided a prisoner “meaningful access
to the Massachusetts courts within the contemplation of Bounds v. Smith”).
28. Blake v. Berman, 877 F.2d 145, 146 (1st Cir. 1989) (finding prison program providing legal
assistance instead of full law library satisfied access requirements).
29. See Kivela v. U.S. Attorney Gen., 523 F. Supp. 1321, 1325 (S.D.N.Y. 1981) (holding prisoners’
right of access to courts satisfied where state has provided either law books or legal counsel), aff’d, 688
F.2d 815 (2d Cir. 1982).
30. Lewis v. Casey, 518 U.S. 343, 354, 116 S. Ct. 2174, 2181, 135 L. Ed. 2d 606, 619 (1996)
(denying that “the State must enable the prisoner to discover grievances” (emphasis omitted)).
31. The Lewis Court restricted the Bounds ruling to require states to provide the tools “that the
inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the
conditions of their confinement. Impairment of any other litigating capacity is simply one of the
incidental (and perfectly constitutional) consequences of conviction and incarceration.” Lewis v. Casey,
the time that you file your claim. Therefore, the state could technically assist you until you
submit your complaint and forgo any assistance from then on.
Finally, the right of access to the courts applies to prisoners regardless of their financial
status.
D. What is an Adequate Law Library?
The Supreme Court has never defined exactly what an “adequate” law library is.32 The
American Association of Law Libraries’ (“AALL”) Special Committee on Law Library
Services to Prisoners has a suggested list of resources that should be in a prison law library,
but states are not required to follow the AALL’s guidelines, and various circuits have come
up with their own list of what a prison law library should contain.33 Even if a prison has a
law library that meets either a circuit’s requirements or the AALL’s guidelines, a court may
still decide that access to the court has been denied if books are frequently missing34 or if
prisoners cannot use the library. 35 For example, functionally illiterate prisoners, 36 non-
English speakers,37 and the blind cannot use typical law libraries.38 When prisoners cannot
518 U.S. 343, 355, 116 S. Ct. 2174, 2182, 135 L. Ed. 2d 606, 620 (1996).
32. The Court simply stated that prisoner access to the courts should be “adequate, effective, and
meaningful” and that “‘[m]eaningful access’ to the courts is the touchstone.” Bounds v. Smith, 430 U.S.
817, 822–23, 97 S. Ct. 1491, 1495, 52 L. Ed. 2d 72, 79–80 (1977) (quoting Ross v. Moffitt, 417 U.S. 600,
611, 615, 94 S. Ct. 2437, 2444, 2446, 41 L. Ed. 2d 341, 351, 353 (1974)).
33. In Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 856 (9th Cir. 1985), the Ninth Circuit
held that the following list of books “meets minimum constitutional standards and provides inmates
with sufficient access to legal research materials to prepare pro se pleadings, appeals, and other legal
documents” for Idaho State: Idaho Code; Idaho Reports; United States Reports, from 1962 to present;
Federal Reporter Second Series, beginning with volume 273 [1960]; portions of the United States Code
Annotated, including Federal Rules of Appellate Procedure and Federal Rules of Evidence; Appellate
Rules of the Ninth Circuit Court of Appeals; Local Rules of the United States District Court for the
District of Idaho; various Nutshells on procedure, civil rights, criminal law, constitutional law, and
legal research; West Pacific Digest Second Series; various volumes of Federal Practice & Procedure;
Manual for Complex Litigation Pamphlet Subscription; Federal Practice & Procedure, Criminal
Pamphlet; West Federal Practice Digest 2d; Pacific Digest Second Series; Federal Supplement,
beginning with volume 482 [1980]. In Tuggle v. Barksdale, 641 F. Supp. 34, 39 (W.D. Tenn. 1985), the
court stated that the law library in question should include: [all] volumes and titles of U.S.C.A … which
cover the United States Constitution, and Titles 5, 15, 18 with complete rules of the various courts, 28
with complete rules, 42 and the General Index … Federal Practice and Procedure by Wright and Miller,
… Tennessee Code Annotated Volume 7 and 10 and Criminal Law Library (2-volume set, latest
edition)[,] … Black’s Law Dictionary latest edition. See also Griffin v. Coughlin, 743 F. Supp. 1006,
1020–25 (N.D.N.Y. 1990), in which the court detailed and examined the inventory of the Clinton Main
law library and stated that it was constitutionally sufficient and provided prisoners with “access to a
law book inventory which rises above the constitutional minimum.”
34 . Walters v. Edgar, 900 F. Supp. 197, 226–27 (N.D. Ill. 1995) (finding that prison’s
replacement of missing volumes only once a year appeared to be inadequate maintenance of library,
and holding that even if prisoners might be responsible for stealing the missing volumes, “each
plaintiff’s right of access to the courts is individual, and therefore a … [prisoner] cannot be prevented
access by … theft”).
35. See, e.g., Cruz v. Hauck, 627 F.2d 710, 721 (5th Cir. 1980) (“Library books, even if ‘adequate’
in number, cannot provide access to the courts for those persons who do not speak English or who are
illiterate.”); Acevedo v. Forcinito, 820 F. Supp 886, 888 (D.N.J. 1993) (“[F]or prisoners who cannot read
or understand English, the constitutional right of access to the courts cannot be determined solely by
the number of volumes in, or size of, a law library.”).
36. See, e.g., Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 855–56 (9th Cir. 1985) (stating
that “[a] book and a library are of no use, in and of themselves, to a prisoner who cannot read”); U.S. ex
rel. Para-Prof. Law Clinic v. Kane, 656 F. Supp. 1099, 1105–07 (E.D. Pa. 1987) (the elimination of a
jailhouse lawyer association, leaving only a law library for prisoners, would leave functionally illiterate
prisoners without court access), aff’d, 835 F.2d 285 (3d Cir. 1987).
37. See, e.g., U.S. ex rel. Para-Prof. Law Clinic v. Kane, 656 F. Supp. 1099, 1106 (E.D. Pa. 1987)
(stating that “Spanish-speaking inmates who cannot read or write English are unable to present, with
use the law library because of illiteracy, an inability to speak English, or a disability, the
state may need to provide a legal assistance program consisting of persons trained in the law
in addition to, or in place of, an adequate prison law library.39
Generally, the state may limit your access to law libraries and legal materials for
security reasons. 40 The Supreme Court held in Lewis v. Casey that restrictive practices
justified by security concerns will be upheld even if they obstruct court access.41 For instance,
prison officials may restrict the amount of time an individual prisoner may spend in the
library 42 and the amount of time the library is open “in light of legitimate security
considerations.”43 But, the state may not limit your access to law libraries or legal assistance
to the point that your right of access to the courts is frustrated.44
Prison regulations that affect segregated prisoners’ access to law libraries, legal
materials, and legal assistance have spawned a great deal of litigation. Courts have stopped
states from enforcing regulations restricting or withholding law books from prisoners in
solitary confinement.45 Several (but not all) courts have criticized requirements that make
prisoners request specific books to be delivered to their cells,46 or identify the exact materials
reasonable adequacy, complaints to the courts without assistance”).

38. Phillips v. United States, 836 F. Supp. 965, 967–68 (N.D.N.Y. 1993) (stating that a prisoner’s
blindness may effectively deny him access to the prison law library).
39. Phillips v. United States, 836 F. Supp. 965, 967–68 (N.D.N.Y. 1993) (stating that denial of
access to a legal assistance program may give rise to a claim of denial of access to the court).
40. Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 858 (9th Cir. 1985) (stating that “[p]rison
officials of necessity must regulate the time, manner, and place in which library facilities are used”)
(citing Twyman v. Crips, 584 F.2d 352, 358 (10th Cir. 1978)).
41. Lewis v. Casey, 518 U.S. 343, 361–62, 116 S. Ct. 2174, 2185, 135 L. Ed. 2d 606, 624 (1996)
(holding that “delays in receiving legal materials or legal assistance” are “not of constitutional
significance, even where they result in actual injury” as long as they come from “prison regulations
reasonably related to legitimate penological interests”).
42. Shango v. Jurich, 965 F.2d 289, 292–93 (7th Cir. 1992) (holding that restrictions on library
hours which included: being closed nights, weekends, and holidays; allowing general population
prisoners to use library, optimally for 10 to 11 hours, one day each week; and limiting the library
visitation hours for prisoners in segregation and protective custody to about three hours every third to
fifth weekday, did not deny prisoners the constitutional right of meaningful access as described in
Bounds); see also Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 858 (9th Cir. 1985) (stating that
library being open a minimum of eleven hours each day was “an adequate amount of total library
access time”).
43. Shango v. Jurich, 965 F.2d 289, 292 (7th Cir. 1992) (quoting Caldwell v. Miller, 790 F.2d 589,
606 (7th Cir. 1986)).
44. See Straub v. Monge, 815 F.2d 1467, 1469 (11th Cir. 1987) (stating that “[r]egulations and
practices that unjustifiably obstruct the availability of professional representation or other aspects of
the right of access to the courts are invalid” (quoting Procunier v. Martinez, 416 U.S. 396, 419, 94 S. Ct.
1800, 1814, 40 L. Ed. 2d 224 (1974)).
45. See, e.g., Knell v. Bensinger, 489 F.2d 1014, 1017 (7th Cir. 1973) (holding that, although a
prisoner in isolation does not have unlimited rights to use the library, if a prisoner in solitary
confinement is prevented from using the library or consulting an advisor to prepare a petition, the
courts may find that the prisoner’s right of access was effectively denied); U.S. ex rel. Para-Prof. Law
Clinic v. Kane, 656 F. Supp. 1099, 1104–05 (E.D. Pa. 1987) (finding prison’s program of providing a
small number of cases or books to segregated prisoners was unconstitutional, and prison had a “duty to
insure that the ‘opportunity to do legal research [given to segregated prisoners] must be at least the
equivalent of the opportunity that is available to an inmate who is permitted to go personally to the
prison library’” (quoting Wojtczak v. Cuyler, 480 F. Supp. 1288, 1301 (E.D. Pa. 1979)); Johnson v.
Anderson, 370 F. Supp. 1373, 1383–85 (D. Del. 1974) (holding prison rules allowing a prisoner in
solitary confinement access to only one law book of his choosing on two times during the week violated
the prisoner’s due process right), modified on other grounds, 420 F. Supp. 845 (D. Del. 1976).
46. The runner system or paging system, “also known as an ‘exact-cite system’ because an
inmate must request materials by exact cite,” has been deemed an inadequate legal access system for
both segregated and non-segregated prisoners by some courts. Cannell v. Bradshaw, 840 F. Supp. 1382,
they want to use before entering the library.47 However, a prison can meet its obligation to
provide a segregated prisoner with access to the courts by allowing some, but not unfettered,
access to legal materials or some access to legal assistance.48
E. The State’s Duty to Permit Access to Adequate Legal Assistance
While the Bounds v. Smith Court described various legal substitutes for law libraries,49 it
never defined the elements of an adequate legal access program or adequate assistance from
persons trained in the law. Therefore, it is not exactly clear what “adequate” means in these
contexts, but courts have occasionally described what might qualify.50 For example, if the
state only provides people to assist you who are not trained in the law, the court would most
likely find that such assistance does not satisfy your right of access to the courts.51
Occasionally, the state may decide to fulfill its obligation to provide you with access to
courts by allowing other prisoners to assist you.52 Prisoners who provide other prisoners with
legal assistance are called jailhouse lawyers or “writ writers.”53 In Johnson v. Avery, the
Supreme Court held that a state could not prevent one prisoner from assisting another
prisoner in the preparation of his writ in the absence of reasonable alternatives to such
assistance.54 Therefore, if the state does not provide you with any sort of adequate legal
access program, it cannot prohibit you from getting assistance from a jailhouse lawyer.55
Although the state may not prohibit you from getting assistance from a jailhouse lawyer, the
1389 (D. Or. 1993) (holding paging system alone does not provide adequate access to the courts); Griffin
v. Coughlin, 743 F. Supp. 1006, 1023 (N.D.N.Y. 1990) (finding book request system deprived protective
custody prisoners of meaningful access to the courts).
47. See, e.g., Cepulonis v. Fair, 732 F.2d 1, 4 (1st Cir. 1984) (finding requirement that prisoners
identify specific volumes sought prior to entering library to be suspect); Williams v. Leeke, 584 F.2d
1336, 1339 (4th Cir. 1978) (“It is unrealistic to expect a prisoner to know in advance exactly what
materials he needs to consult.”).
48. See, e.g., Lovell v. Brennan, 566 F. Supp. 672, 696–97 (D. Me. 1983) (stating that an adequate
legal access plan would provide segregated prisoners with access to law books and a prisoner advocate,
or other persons trained in the law, depending on the circumstances), aff’d, 728 F.2d 560 (1st Cir.
1984).
49. Bounds v. Smith, 430 U.S. 817, 831, 97 S. Ct. 1491, 1499–500, 52 L. Ed. 2d 72, 84–85 (1977).
50. In Gluth v. Kangas, the Ninth Circuit upheld the district court’s imposition of a training
program for prisoner legal assistants. The Gluth Court stated that “Bounds requires, in the absence of
adequate law libraries, some degree of professional or quasi-professional legal assistance to prisoners.
Although legal training need not be extensive, Bounds does require that inmates be provided the legal
assistance of persons with at least some training in the law.” Gluth v. Kangas, 951 F.2d 1504, 1511–12
(9th Cir. 1991) (citations omitted).
51. Valentine v. Beyer, 850 F.2d 951, 956 (3d Cir. 1988) (“An untrained legal research staff is
insufficient to safeguard an inmate’s right of access to the courts”) (quoting Para-Professional Law
Clinic v. Kane, 656 F. Supp. 1099 (E.D. Pa. 1987), aff’d, 835 F.2d 285 (3d Cir. 1987), cert. denied, 485
U.S. 993, 108 S.Ct. 1302, 99 L. Ed. 2d 511 (1988)).
52. This has also been called “mutual assistance among inmates.” Johnson v. Avery, 393 U.S.
483, 490, 89 S. Ct. 747, 751, 21 L. Ed. 2d 718, 724 (1969).
53. See Johnson v. Avery, 393 U.S. 483, 487–88, 89 S. Ct. 747, 749−750, 21 L. Ed. 2d 718, 722–
23 (1969) (discussing role of prisoners who provide legal assistance to other prisoners).
54. Johnson v. Avery, 393 U.S. 483, 490, 89 S. Ct. 747, 751, 21 L. Ed. 2d 718, 724 (1969) (striking
down a prison regulation that forbade prisoners from providing each other with any sort of legal help or
advice).
55. Johnson v. Avery, 393 U.S. 483, 490, 89 S. Ct. 747, 751, 21 L. Ed. 2d 718, 724 (1969)
(“[U]nless and until the State provides some reasonable alternative to assist inmates in the preparation
of petitions for post-conviction relief, it may not validly enforce a regulation … barring inmates from
furnishing such assistance to other prisoners.”). However, you have no right to demand the assistance
of a specific jailhouse lawyer. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981) (prisoner
had no right to “services of a particular writ writer”); Prisoners’ Legal Ass’n v. Robertson, 822 F. Supp.
185, 190 (D.N.J. 1993) (holding a prisoner has no “right to the assistance of a particular prisoner”).
state still has the power to reasonably regulate the activities of jailhouse lawyers. 56 For
example, the state can require that a jailhouse lawyer get approval from the state prior to
helping another prisoner.57 The state can also prohibit jailhouse lawyers from visiting the
cells of the prisoners they are assisting,58 and from receiving payment for their services.59
F. The State’s Duty to Provide Materials
The Supreme Court has held that the right of access to the courts includes providing
indigent prisoners “with paper and pen to draft legal documents, with notarial services to
authenticate them, and with stamps to mail them.” 60 In other words, even if the state
provides an adequate law library or assistance from persons trained in the law, failure to
provide you with the materials necessary for drafting, notarizing, and mailing your legal
documents may also violate your right to access the courts.
There are a few important things to remember before claiming that you have been denied
access to the courts because of the state’s refusal to provide you with materials. First, you
may not be entitled to all or any of the materials that you request. The courts have held: that
prisoners may be given pencils instead of the pens mentioned in Bounds; 61 that prisoners
have no constitutional right to use or possess computers or typewriters;62 that the state is not
56. Johnson v. Avery, 393 U.S. 483, 490, 89 S. Ct. 747, 751, 21 L. Ed. 2d 718, 724 (1969) (“[T]he
State may impose reasonable restrictions and restraints upon the acknowledged propensity of prisoners
to abuse both the giving and the seeking of assistance … for example, by limitations on the time and
location of such activities ...”); Sizemore v. Lee, 20 F. Supp. 2d 956, 958 (W.D. Va. 1998) (holding the
prisoner can be ordered not to engage in writ writing on an individual basis when the security of the
prison requires the order and that writ writers were not mandated where the prison provided prisoners
with a law library and legal assistance.
57 . Rivera v. Coughlin, 210 A.D.2d 543, 543−544, 620 N.Y.S.2d 505, 506 (3d Dept. 1994)
(upholding determination of disciplinary violation by a prisoner who sent a letter to the FBI on behalf
of another prisoner without receiving prior approval for providing such assistance pursuant to state
directives).
58. Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (holding that prisoner was not denied
effective assistance of counsel where jailhouse lawyers were prohibited from visiting his cell).
59. Johnson v. Avery, 393 U.S. 483, 490, 89 S. Ct. 747, 751, 21 L. Ed. 2d 718, 724 (1969)
(jailhouse lawyers may be punished for receiving payment for legal assistance); Henderson v. Ricketts,
499 F. Supp. 1066, 1069 (D. Colo. 1980) (“Compensation to jailhouse lawyers by other inmates may be
prohibited.”).
60. Bounds v. Smith, 430 U.S. 817, 824–25, 97 S. Ct. 1491, 1496, 52 L. Ed. 2d 72, 81 (1977).
61. Canell v. Bradshaw, 840 F. Supp. 1382, 1391 (D. Or. 1993) (“Security considerations may …
justify the issuance of two-inch ‘golf’ pencils.”) (citing Jeffries v. Reed, 631 F. Supp. 1212, 1215 (E.D.
Wash. 1986)). However, the court also stated that if the prisoner in Canell had suffered from a medical
condition preventing him from drafting legal documents longhand with a two-inch pencil, then “[u]nder
those circumstances, a full-sized writing instrument or typewriter might become an indispensable tool
for communicating with the court. If prison officials know of such a problem, then their denial of … [the
prisoner’s] request could constitute a deprivation of necessary legal supplies unless that action was
justified by a sufficient penological interest.” Canell v. Bradshaw, 840 F. Supp. 1382, 1391 (D. Or.
1993).
62. See, e.g., Taylor v. Coughlin, 29 F.3d 39, 40 (2d Cir. 1994) (finding “no constitutional right to
a typewriter as an incident to the right of access to the courts … [and no] constitutional right to
typewriters of a specific memory capacity” (citations omitted)); Sands v. Lewis, 886 F.2d 1166, 1169
(9th Cir. 1989) (holding that prisoners have no constitutional right to a typewriter); Am. Inmate
Paralegal Ass’n v. Cline, 859 F.2d 59, 61 (8th Cir. 1988) (“Prison inmates have no constitutional right of
access to a typewriter and prison officials are not required to provide one as long as the prisoner is not
denied access to the courts.”) (citation omitted); Walters v. Edgar, 900 F. Supp. 197, 229 (N.D. Ill. 1995)
(“[P]risons are not required to provide inmates with typewriters.”); Howard v. Leonardo, 845 F. Supp.
943, 946 (N.D.N.Y. 1994) (“[I]nmates have no constitutional right to the possession and use of a
typewriter … since prisoners are not prejudiced by filing hand written briefs.”) (citation omitted));
Lehn v. Hartwig, 13 Fed. Appx. 389, 392 (7th Cir. 2001) (holding that “if prisoners have no
constitutional right to a typewriter, they certainly do not have a right to a computer.”) (citations
required in all cases to provide free photocopying;63 that the state need not provide unlimited
free postage;64 and that a notary need not be available at all times.65 Second, unlike its duty
to provide adequate law libraries or assistance from persons trained in the law, the state’s
duty to provide you with materials may only apply to indigent prisoners. You may need to
research the laws and regulations in your state to determine what the accepted standard for
indigence is in your correctional facility and in your state.66 Third, your right of access to the
courts may be balanced against the state’s “legitimate interests, including budgetary
concerns.”67 In other words, a court could determine that the state’s duty to provide you with
materials is limited by state budgetary or security concerns. Fourth, the state’s duty to assist
you may only apply to habeas corpus petitions and civil rights actions involving
constitutional claims.68
Finally, when you sue on the basis of the state’s refusal to provide necessary materials,
you also need to show that you suffered an “actual injury” as a direct result of that refusal.
Because standards vary depending on where you are, you will need to research this “actual
injury” requirement in your state and circuit. Canell v. Bradshaw is an example of one
state’s particular requirements. In Canell, a prisoner claimed that he was denied access to
the courts because the state would not make photocopies for him. The court stated that he
omitted)); but see Tuggle v. Barksdale, 641 F. Supp. 34, 38 (W.D. Tenn. 1985) (holding jail must provide
a sufficient number of usable typewriters in legal room unless they can be proven to be a security
threat).
63. Gittens v. Sullivan, 670 F. Supp. 119, 122 (S.D.N.Y. 1987), aff’d 848 F.2d 389 (2d Cir. 1988)
(finding provision of carbon paper to prisoners was “sufficient to provide proper access to the courts ….
The State should not be forced to provide free access to copier machines for prisoner use when there is
an acceptable, less costly substitute.”); Dugar v. Coughlin, 613 F. Supp. 849, 854 (S.D.N.Y. 1985)
(noting prisons may make prisoners pay for photocopies, as this is a “reasonable balance of the
legitimate interests of both prisoners and the State”). But see Canell v. Bradshaw, 840 F. Supp. 1382,
1392 (D. Or. 1993) (holding prisoner has clearly established right to photocopying under certain limited
circumstances).
64. Gittens v. Sullivan, 670 F. Supp. 119, 123 (S.D.N.Y. 1987) (holding provision of $1.10 per
week for stamps and an additional advance of $36.00 for legal mailings to indigent prisoner satisfied
the constitutional minimum for access to the courts); Dugar v. Coughlin, 613 F. Supp. 849, 854
(S.D.N.Y. 1985) (upholding directive providing that prisoners could mail five one-ounce letters per week
free of charge but would have to pay for any mail weighing more than one ounce, or in excess of five
one-ounce letters in one week, because “a prisoner’s constitutional right of access to the courts … does
not require that prisoners be provided with unlimited free postage”); see also Pacheco v. Commissioner,
897 F. Supp. 671, 681 (N.D.N.Y. 1995).
65. The courts have held that correctional facilities must provide prisoners with notaries public.
Tuggle v. Barksdale, 641 F. Supp. 34, 39–40 (W.D. Tenn. 1985) (holding the prison “must continue to
afford notary publics for all inmates”). Correctional facilities, however, need not make the notary
services available five days a week. Dugar v. Coughlin, 613 F. Supp. 849, 854 (S.D.N.Y. 1985) (holding
that prisoners do not have a constitutional right to notary services five days a week).
66 . See, e.g., Gluth v. Kangas, 951 F.2d 1504, 1508–09 (9th Cir. 1991) (finding that the
Department of Correction’s indigency policy, which only allowed a prisoner to apply for indigency
classification if his prison account balance was less than $12.00 was unconstitutional because it forced
prisoners to choose between purchasing the mandatory hygienic supplies and essential legal supplies,
and that an indigency standard of $46.00 was more appropriate).
67. See Gittens v. Sullivan, 670 F. Supp. 119, 122 (S.D.N.Y. 1987) (“The State should not be
forced to provide free access to copier machines for prisoner use when there is an acceptable, less costly
substitute.”); Dugar v. Coughlin, 613 F. Supp. 849, 853–54 (S.D.N.Y. 1985) (holding that making
prisoners pay for photocopies is a “reasonable balance of the legitimate interests of both prisoners and
the State”).
68. See Lewis v. Casey, 518 U.S. 343, 354–55, 116 S. Ct. 2174, 2181–82, 135 L. Ed. 2d 606, 620
(1996) (holding that Bounds only requires states to provide tools that “inmates need in order to attack
their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.
Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.”).
could prove that the state had deprived him of meaningful access to the courts, but in order
to do so he would have to: demonstrate that he wanted to copy specific documents which
could not be duplicated longhand; that those documents were to be filed with the court as
part of a specific memorandum or other document; that he had advised [prison] officials of
this need; his request was denied either by or in accordance with a policy promulgated by the
defendants; that those documents were relevant and necessary to the particular case; and
had to be omitted from the filing as a consequence of the prison officials’ refusal to provide
photocopying services.69
Remember, if you are going to pursue this type of action, you must bring a Section 1983
or a Bivens claim. Please see Chapter 16 of the JLM for more details on these claims.
G. Conclusion
In this Chapter, you have learned that if you (1) exhaust your prison’s administrative
remedies for getting your complaint heard, (2) are not able to go to court or are hindered in
pursuit of your claim by state interference, and (3) suffer an injury as a result of the state’s
interference or denial of your right to access the courts, you may pursue a claim against the
state. You can request that the state provide you with access to an adequate law library,
adequate assistance from someone trained in the law, or some other legal access program. A
state can regulate its jails and prisons for the purpose of discipline and safety, but cannot
completely deny a prisoner’s right of access to the courts.
Pursuing a claim has several requirements. First, you must show that you suffered an
actual injury from the state’s failure to provide you with an adequate opportunity to litigate
your claim.70 Second, some state courts have held that the state only needs to provide you
with an adequate law library or legal access program if you want to pursue federal habeas
corpus petitions or state or federal civil rights actions. Third, the state, not you, decides what
type of legal access you will get, though it must provide you meaningful access to the
courts.71 Fourth, the state must adhere to the requirements laid out in this Chapter whether
or not you are considered indigent. Finally, the state can place reasonable limits on your
ability to use the library or other legal access programs.
69. Canell v. Bradshaw, 840 F. Supp. 1382, 1392 (D. Or. 1993).
70. See Lewis v. Casey, 518 U.S. 343, 350–51, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 617–18
(1996) (explaining that there is no general right to a law library or legal assistance except as they
relate to a prisoner’s actual ability to access the courts).
71. Williams v. Leeke, 584 F.2d 1336, 1339 (4th Cir. 1978) (“Under Bounds, the state is duty
bound to assure prisoners some form of meaningful access to the courts. But states remain free to
satisfy that duty in a variety of ways.”).
APPENDIX A
DIRECTORY OF SELECTED LAW LIBRARIES OFFERING SERVICES

TO PRISONERS**
If your state is not listed, you, or someone you know, should check the Southern Center
for Human Rights’s webpage (http://www.schr.org) for organizations and libraries providing
legal materials to prisoners.
CALIFORNIA
Oakland Alameda County Law Library
125 Twelfth Street
Oakland, CA 94607
(510) 208-4832
http://www.acgov.org/law/index.htm
Serves Alameda County prisoners. Photocopies are $0.52/page plus a $10 handling fee, tax,
postage and prepayment. The library requires correct citations and gives no legal advice. 30-
page limit per request.
Los Angeles Los Angeles County Law Library
301 W. First Street.
Los Angeles, CA 90012
(213) 629-3531
http://lalaw.lib.ca.us
This library serves prisoners and other institution residents in California. No material is
loaned. Correct citations are required and limited reference work is done. Prepayment is
required.
Photocopies: $12.00 transaction charge per document for the first 25 pages
(includes postage and tax) and sales tax if applicable. $0.25 per page
over first 25 pages.
Payee: Los Angeles County Law Library
San Diego San Diego County Public Law Library
1105 Front Street
San Diego, CA 92101-3904
(619) 531-3900
http://www.sdcpll.org
This library serves prisoners and other institutional residents located at institutions in
California. It lends materials to prisoners of San Diego County Jail under procedures set up
by the Sheriff under a federal court consent decree. Loan periods are 1, 3, or 7 days. Correct
citations are required.
Photocopies: $0.20 per page, $5.00 fee per citation. Shipping and handling is $0.50
per order plus postage (prepayment required).
Payee: San Diego County Public Law Library
** These are the libraries or facilities that provide materials in states where the most JLMs are sold. If
you live in a different state than those listed, you should contact law school or governmental law
libraries in your state.
Santa Clara Heafey Law Library
Attn: Prisoner requests
Santa Clara University
500 El Camino Real
Santa Clara, CA 95053
Serves prisoners in California institutions. Exact citations are required. Only primary
materials (cases, statutes, administrative regulations; not journal articles or treatises) are
eligible for photocopying. There is a 30-page limit on photocopies per year. Photocopies are
provided free of charge. No material is loaned, and no reference work is done. Library will
only respond to mail requests.
Ventura Ventura County Law Library
800 South Victoria Avenue
Ventura, CA 93009-2020
http://www.infopeople.org/ventura/vclaw
This library serves prisoners in Ventura County only. Correct citations are required and only
cases and statutes are available.
Photocopies: $0.25 per page, plus postage. Prepayment is required; limit of 20
pages per letter.
NEW JERSEY
Trenton New Jersey State Library
185 West State Street P.O. Box 520
Trenton, NJ 08625-0520
(609) 278-2640
www.njstatelib.org
Serves only prison libraries located at institutions operated by New Jersey State Department
of Corrections. Requests must be submitted by NJDOC prison librarians on behalf of
prisoners. There is no charge to prison libraries, but there is a limit of 50 pages per day per
prison. No material is loaned, and all material must be law-related. Correct citations are
required. Limited reference work is done, and no legal advice is given.
NEW YORK
Albany Prisoner Services Project—New York State Library
Cultural Education Center
Empire State Plaza
Albany, NY 12230
(518) 474-5355
http://www.nysl.nysed.gov/index.html
Serves only prisoners located at institutions operated by New York State Department of
Correctional Services. To access library services, a prisoner should send a letter to the library
and the library will respond by sending the proper forms. No material is loaned and all
material must be law related. Correct citations are required and limited reference work is
done, but no legal advice is given. No charge for photocopies. In addition, prisoners may
borrow non-law material through their prison libraries and inter-library loan.
New York Fordham Law School Library
140 West 62nd Street
New York, NY 10023
(212) 636-6900
http://lawlib1.lawnet.fordham.edu/
This library serves prisoners and other institution residents located at institutions in New
York. No materials are loaned, no reference work is done, and correct citations are desirable.
The library will only provide copies of published materials.
Photocopies: $0.10 per page, plus $5.00 postage and handling fee. Limit of 75
copies per request. Prepayment by money order payable to Fordham
Law Library required.
VIRGINIA
Charlottesville University of Virginia Law Library
580 Massie Road
Charlottesville, VA 22903
(434) 924-3384
http://www.law.virginia.edu/html/librarysite/library.htm
This library serves prisoners and other residents of Virginia institutions only. No material is
loaned and correct citations are required. No legal advice is given.
Photocopies: $0.50 per page. Prepayment required; quotations given.
Payee: University of Virginia Law Library
Williamsburg Wolf Law Library
William and Mary School of Law
PO Box 8795
Williamsburg, VA 23187-8795
(757) 221-3255
http://www.wm.edu/law/lawlibrary/
The library will provide cases if correct citations are given. No legal advice is given. In
addition, prisoners may borrow certain materials that circulate (books and treatises, not
statutes or case reporters) through inter-library loan if their prison library has an official
ILL program.
Photocopies: Prices are per item requested; quotations are given. $3.00 for less
than 10 pages. $5.00 for 11–20 pages. $7.00 for 21–40 pages. $10.00
for 41–60. No copies over 60 pages.
Payee: Photocopy Account/Marshall-Wythe Foundation
Manual
Chapter 4:
How to Find a Lawyer

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 4
HOW TO FIND A LAWYER*

A. Introduction
Finding a lawyer if you do not have the money to pay a private attorney can be difficult,
but it is not impossible. Before you try to find a lawyer, you must know the following:
(1) the type of correctional institution you are in (city, county, federal or state);
(2) the type of case for which you are seeking representation (civil, criminal, or criminal
appeal);
(3) if you are seeking a criminal appeal, the name of the county in which you allegedly
committed the crime; and
(4) your county of residence.
The more specific things you know about your case, the easier it will be to find a lawyer
and to help the lawyer prepare your case. There are generally two types of cases in which
you may be involved:
(1) Criminal: A criminal case is a case in which the state charges you with a crime. If
you have already been convicted and are in prison, you are probably not currently
involved in a criminal trial unless the state thinks that you committed a crime while
you were in prison. Therefore, this Chapter does not discuss how to find a lawyer for
a criminal trial. But, you may want to try a criminal appeal. A criminal appeal is a
case in which you appeal from the conviction or sentence that sent you to prison. If
you have a right to a criminal appeal, you also have the right to a lawyer if you
cannot afford one.1 Read Part B below if you would like to find a lawyer to help you in
your criminal appeal.
(2) Civil: A civil case is a case in which you either bring a claim against someone (an
individual or the state), or an individual brings a non-criminal claim against you.
You file a civil lawsuit whenever you bring any of the suits explained in the JLM
Chapters about federal and state habeas corpus, Section 1983, Article 78 of the New
York Civil Practice Law and Rules, and tort actions. Unlike in criminal cases and
appeals, you do not have the right to a lawyer when filing a civil case. Read Part C if
you would like to try to find a lawyer to help you in your civil case.
B. Attorneys for Criminal Appeals
When you have the right to bring a criminal appeal, you also have the right to have a
lawyer assigned to your case if you are unable to pay a private lawyer to represent you.2 If
you cannot afford an attorney for your criminal appeal, you should petition the court to
proceed as a poor person (or what in legal terms is called in forma pauperis) and ask the
court to assign an attorney to your case. Chapter 9 of the JLM, “Appealing Your Conviction
or Sentence” has sample poor person’s papers.
*This Chapter was written by Won Park based on a previous version by Angie Armer and members of
the 1991–1992 Columbia Human Rights Law Review.
1. Douglas v. California, 372 U.S. 353, 357–58, 83 S. Ct. 814, 816–17, 9 L. Ed.2d. 811, 814–15
(1963) (finding that a State must provide counsel for an indigent defendant in a first appeal as of right).
2. Douglas v. California, 372 U.S. 353, 357–58, 83 S. Ct. 814, 816–17, 9 L. Ed.2d. 811, 814–15
(1963). There are some higher-level appeals you do not have the right to bring, such as to the United
States Supreme Court. In those cases, you may not have the right to a lawyer if you cannot afford one.
See Ross v. Moffitt, 417 U.S. 600, 610, 94 S. Ct. 2437, 2443, 41 L. Ed.2d 341, 351 (1974) (holding a State
need not appoint counsel to aid a poor person pursuing a second-tier discretionary appeal).
One of the first places you should try contacting when looking for a lawyer is the Public
Defender or Indigent Defender office in any of the following places:
(1) the county where the appellate court (the higher court) is located;
(2) the county where your prison is;
(3) the county where your original trial took place; or
(4) the county where you live.
These offices can provide you with further information about having a lawyer assigned to
your criminal appeal. If you have access to the Internet, the easiest way to find a Public
Defender is by doing a simple Internet search. For example, you can try using the term
“Public Defender” and the name of one of the four counties mentioned above on a research
site like Google or Yahoo.3
If you would like to choose your lawyer instead being assigned one, you have fewer
options than if you were filing a civil suit. Most Legal Aid offices do not handle criminal
appeals. But, some organizations have specific criminal appeals divisions. The Legal Aid
Society of New York City is one such organization. See Appendix IV of the JLM for other
such groups. You might also contact local prisoners’ rights groups, which may refer you to
organizations handling criminal appeals free of charge.4 Keep in mind that lawyers cannot
arrange contingency fees with you for a criminal case. Read Part C below for more
information about contingency fees.
C. Attorneys for Civil Cases
If you are looking for a lawyer for a civil case in the federal courts, think about whether it
is worth it to bring your case because of what may happen under the Prison Litigation
Reform Act (“PLRA”). You MUST read Chapter 14 of the JLM, “The Prison Litigation
Reform Act.” Failure to follow the requirements in the PLRA can have negative
consequences. For example, you can lose the good-time credit you have earned so far. Some
attorneys do not know very much about the PLRA, so you should make sure to know about it
yourself so that you can tell your attorney about the requirements.
If you have a civil case, and if you are incarcerated in a New York state institution, you
may be able to find a lawyer through the Prisoners’ Legal Services of New York (“PLS”). PLS
is described in the very beginning of Appendix IV of the JLM (Part A(1)(a)). PLS provides
assistance to prisoners in state institutions in cases involving habeas corpus, jail time and
sentence problems, and warrants and detainers. They may also be able to forward your
letter to a private attorney who could handle your Section 1983 case, Article 78 petition, or
tort action. But unlike the Legal Aid Society of New York mentioned above, PLS does not
handle criminal cases or criminal appeals.
If you are in a city, county, or federal prison, check the other organizations listed in
Appendix IV to see if special legal assistance programs serve prisons in your area. Check if a
Legal Aid office exists in the county in which you are incarcerated. If none exists in your
county, check for offices in the surrounding counties, since these organizations might be able
3. To find a list of Federal Public Defenders, visit the Office of Defender Services website,
available at http://www.fd.org. Federal Public Defenders either work for the federal government
directly, or are paid through federal government funds. Take note that Federal Public Defenders take
on fewer cases than State or local Public Defenders.
4. The American Civil Liberties Union (“ACLU”) publishes a Prisoners’ Assistance Directory
with contact information for organizations helping prisoners around the U.S. This book costs $35. If
you would like to buy it, write to:
National Prison Project of the ACLU
Attn: Prisoners’ Assistance Directory
915 15th St. NW, 7th Floor
Washington, D.C. 20005
to help you. Note that Legal Aid organizations usually handle only civil matters unless they
have a special criminal appeals division. Also, many Legal Aid offices may not be able to help
you because their government funding does not allow them to help prisoners. However, the
Prisoners’ Rights Project of the Legal Aid Society of New York does not receive government
funding, and it sometimes takes cases that help many prisoners.
You can also ask the court to appoint a lawyer for you. You should do this at the same
time you file your poor person’s papers.5 New York law states that a New York court may
assign an attorney to you in a civil case at the same time it permits you to proceed as a poor
person, but this is rare.6 If you can establish your inability to pay a lawyer, you may be able
to get a lawyer assigned to your case if your claim is substantial. For example, you are much
more likely to get a lawyer if there is a lot of factual investigation that must be done on your
case that you cannot do because you do not have the money. You are also more likely to get a
lawyer if the facts of your case depend on the credibility (believability) of people involved.7 In
general, if your case requires you to know very complex legal issues that you yourself cannot
handle, the court may be more willing to assign you a lawyer.8 If you are not assigned a
lawyer but your case survives the defendants’ motion for summary judgment,9 you should
again request the court to assign you a lawyer as they may be more likely to do so at that
stage.10 Remember, if the court assigns you a lawyer, you will have little or no say as to who
your lawyer will be. Thus, you first should try on your own to find a lawyer whom you trust
and who is committed to helping you.
Remember that many lawyers will be taking your case to earn a fee. Whether you pay a
flat fee (fixed amount of money for the lawyer to represent you), an hourly fee, or a
contingency fee, you will still be expected to pay for the lawyer’s litigation expenses, either
before or after money is spent on your case.11 These expenses may include things like long-
5. Chapters 2–8 of the JLM discuss how to bring a lawsuit. Chapter 9 of the JLM, “Appealing
Your Conviction or Sentence,” explains how to file poor person’s (also called in forma pauperis) papers
in the context of an appeal. You should change the affidavit example shown in Appendix B-3 of JLM,
Chapter 9 to show that you are filing poor person’s papers in a civil case, not a criminal appeal. See
N.Y. C.P.L.R. § 1101 (McKinney 2007). These papers establish that you do not have the money to pay
for a lawyer.
6. N.Y. C.P.L.R. 1102(a) (McKinney 2007). The court has the discretion to appoint you a lawyer
for free if a lawyer is needed to reach a fair decision. But, you do not have a constitutional or statutory
right to a lawyer. See In re Smiley, 369 36 N.Y.2d 433, 438, 330 N.E.2d 53, 55, N.Y.S.2d 87, 91 (1975)
(noting that there is no absolute right to assigned counsel and that the determination to assign an
attorney lies within the discretion of the court).
7. For example, if you claim that your warden assaulted you, the facts of your case would depend
on the credibility of you, your warden, witnesses, and maybe other prisoners or staff members who
knew you and the warden. In such a case, a court might be more willing to assign you a lawyer.
8. See Hodge v. Police Officers, 802 F.2d 58, 61–62 (2d Cir. 1986) (reaffirming the Maclin factors
apply to judicial determinations of appointment of counsel); Maclin v. Freake, 650 F.2d 885, 887 (7th
Cir. 1981) (setting forth the factors for a district court to consider in determining whether to appoint
counsel). But see Stewart v. McMickens, 677 F.Supp. 226, 227–228 (S.D.N.Y. 1988) (interpreting Hodge
to require appointment of counsel “only where the individualized assessment suggests that an
apparently legitimate case cannot proceed without the assistance of an attorney”).
9. Summary judgment is when a court decides before a trial that no trial will be necessary
because in applying the law to important undisputed facts, one party is clearly the winner.
10. You should request assignment of counsel again at this stage because if your case survives a
summary judgment motion, the court thinks that it is worthy of a trial or hearing. See Hendricks v.
Coughlin, 114 F.3d 390, 393 (2d Cir. 1997) (invalidating lower court’s application of a bright line rule of
appointing counsel only after plaintiff’s case survived a motion for summary judgment).
11. See N.Y. State Bar Assoc., The Courts of New York: A Guide to Court Procedures with a
Glossary of Legal Terms 66–68 (2001),
http://www.nysba.org/Content/NavigationMenu/PublicResources/GuidetotheiCourtsofNewYorki/Courts
ofNY2002.pdf (discussing basis of your legal fee as well as your rights as a client).
distance telephone calls, postage, photocopying, stenographers for depositions, hiring an
investigator, medical reports, etc. Unless you get poor person’s status, you are also
responsible by law for all court costs, such as filing fees.
If you cannot pay a lawyer’s fees, a lawyer might take your case for a contingency fee.12
You will be asked to sign an agreement giving the lawyer a percentage (usually 33%) of
whatever money the other side gives you if you win (the “recovery”). If you do not win, your
lawyer gets no money. Lawyers cannot ask you for a contingency fee in criminal or domestic
relations (family law) cases.
D. Conclusion
Finding a lawyer whom you trust and can work with is an important part of your legal
process. You should feel that you can be truthful with your lawyer, and that your lawyer is
working in your best interest. Even if finding a good lawyer seems frustrating, keep trying.
When you write letters to ask for legal help, provide as much specific information about your
case as possible so a lawyer can see you have a good case.
If you cannot find a lawyer, or you choose not to hire an attorney, you have the option of
acting pro se. This means that you represent yourself without the aid of an attorney. You
should still try to proceed pro se if you cannot find a lawyer.
12. You cannot be convinced to enter into a contingency fee arrangement by fraud, nor can your
lawyer ask for so much money that the lawyer obviously took advantage of you. See Gair v. Peck, 6
N.Y.2d 97, 106, 160 N.E.2d 43, 48, 188 N.Y.S.2d 491, 497–498 (1959) (holding contingency fees may be
disallowed where “the amount of the fee, standing alone and unexplained, may be sufficient to show
that an unfair advantage was taken of the client or, in other words, that a legal fraud was perpetrated
on him”); see also King v. Fox, 7 N.Y.3d 181, 191, 851 N.E.2d 1184, 1191, 818 N.Y.S.2d 833, 840 (stating
a contingent fee may be unconscionable if not proportional to the value of the services rendered).
Manual
Chapter 5:
Choosing a Court and a Lawsuit:
An Overview of the Options

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 5
CHOOSING A COURT AND A LAWSUIT: AN OVERVIEW OF THE

OPTIONS*
A. Introduction
This Chapter will briefly explain the different lawsuits available to you, so that you can
decide which type of lawsuit is best for you to bring. Each kind of lawsuit is described in
more detail in later chapters of the JLM, so you should read those chapters for more specific
information.
The first step you should take when determining what suit to bring is to ask yourself: Do
I want to attack the cause of my imprisonment, or the circumstances I am suffering in
prison, or both? If you think unlawful circumstances led to your imprisonment, consult Part
B of this Chapter. If you think something unlawful and damaging has happened to you while
in prison—for example, the prison refuses to give you your mail—consult Part C. If you are
not sure, read both Part B and Part C for more information.
For the best chance of success, you must pay attention to things the law requires you to
do when bringing the type of suit you choose. Many lawsuits require you to do certain things
before you even begin the lawsuit itself (such as pursue an administrative grievance). Some
lawsuits also require you to do certain things once you have begun the lawsuit (such as pay
court fees, unless you can qualify for an exception).
Different types of lawsuits have different results, or remedies. For example, some
lawsuits allow you to demand that the opposing party pay you money if you win. But, other
lawsuits do not provide for such money damages. Some types of lawsuits may lead to the
reversal of your sentence or conviction, while other types do not provide for such remedies.
Once you know what remedies each type of lawsuit can provide, you can decide which type of
suit, if any, is right for you to file.
B. Lawsuits to Challenge Your Conviction or Sentence
1. Criminal Appeals
If a New York trial court convicted you of a crime, you have the right to appeal your
conviction or your sentence to a higher New York court. 1 Prisoners in other states, and
prisoners who were convicted of a federal crime, have a similar right to appeal their
convictions.2 On appeal, the higher, or appellate, court will examine the record of your trial to
determine whether the judge or prosecutor committed any legal errors3 in conducting your
trial or sentencing. The appellate court may also determine if the jury properly weighed the
evidence at trial, or if your sentence was excessively harsh or longer than the maximum time
allowed by law. JLM, Chapter 9, “Appealing Your Conviction or Sentence,” explains the
criminal appeals process in detail.
2. Post-Conviction Remedies
New York also has three other procedures your can use to challenge the legality of your
sentence or conviction. These additional procedures are frequently called “post-conviction
1. N.Y. C.P.L.R. 5601 (McKinney 2007).

2. Fed. R. App. P. 4.
3. Legal errors are explained in JLM, Chapter 9, “Appealing Your Conviction or Sentence;” JLM,
Chapter 20, “Using Article 440 of the New York Criminal Procedure Law to Attack Your Unfair
Conviction or Illegal Sentence;” JLM, Chapter 13, “Federal Habeas Corpus;” and JLM, Chapter 21,
“State Habeas Corpus.”
remedies,” because you are asking the court to help you after you have been convicted. These
procedures are different from an appeal, because during the appeal process your conviction is
not yet final. The three post-conviction remedies are: an Article 440 motion, a petition for
state habeas corpus, and a petition for federal habeas corpus. These procedures do not exist
only in New York. Chapter 20 of the JLM lists the statutes in every state that are similar to
New York’s Article 440 motion.4 JLM, Chapter 21 covers state habeas corpus procedures for
Florida, New York, and Texas. Furthermore, prisoners in every state have the right to
petition for federal habeas corpus. Federal habeas corpus is described in more detail in JLM,
Chapter 13. Keep in mind, however, that an appeal is often the most effective way of
challenging your sentencing or conviction. So, if you can, you should try to appeal your
sentence before you try these other remedies.
(a) Article 440 Motion5
In an Article 440 motion, you request the trial court to review circumstances that made
your conviction or sentence unfair. Examples of these circumstances are a change in the law,
discovery of new evidence, an unauthorized or illegal sentence, or misconduct by the
prosecutor or judge of which you did not and could not have known at the time of your trial.6
You may also make an Article 440 motion on the grounds that you were convicted and
sentenced in violation of your rights under the U.S. or New York State constitutions. 7
However, you cannot raise any claims you have already raised or could have raised in your
criminal appeal. Relief under an Article 440 motion is a new trial, a new appeal, or a new
sentence. Keep in mind that although there is no statute of limitations (time limit) for
making an Article 440 motion, a court may not grant your motion if you wait too long after
your sentencing to make your motion.8 Chapter 20 of the JLM, “Using Article 440 of the New
York Criminal Procedure Law to Attack Your Unfair Conviction or Illegal Sentence,”
discusses Article 440 in great detail, and you should read it before making this motion.
(b) State Habeas Corpus9
State habeas corpus challenges the government’s right to keep you in prison by looking
into whether your confinement is legal. In general, however, New York courts will require
you to use Article 440 instead of a petition for state habeas corpus unless you are challenging
a parole decision and bail. Relief under habeas corpus is immediate release from custody.
Chapter 21 of the JLM, “State Habeas Corpus,” explains New York habeas corpus in detail,
as well as Florida and Texas habeas corpus procedures. New York habeas corpus is available
to challenge bail determinations, revocations of your parole, extradition, arraignment and
delay, misdemeanor complaint and delay, felony complaint and delay, and speedy trial.
(c) Federal Habeas Corpus10
Federal habeas corpus is a procedure through which you can get a federal judge to review
a claim that you were convicted or sentenced in violation of your rights under the federal
Constitution. This is different from an Article 440 motion or a petition for state habeas
4. See Appendix A of JLM, Chapter 20, “Using Article 440 of the New York Criminal Procedure
Law to Attack Your Conviction or Sentence.”
5. N.Y. Crim. Proc. Law §§ 440.10–440.65 (McKinney 2005 & 2007 Supp.).
6. N.Y. Crim. Proc. § 440.10(a)–(g) (McKinney 2005 & 2007 Supp.).
7. N.Y. Crim. Proc. § 440.10(h) (McKinney 2005 & 2007 Supp.).
8. See People v. Byrdsong, 161 Misc. 2d 232, 236, 613 N.Y.S.2d 543, 545 (Sup. Ct. Queens County
1994) (declaring that a post-conviction motion filed nine years after trial and seven years after appeals
was, in the interest of finality, too long of a time period to continue further litigation).
9. N.Y. C.PL.R. 7001–12 (McKinney 2007).
10. 28 U.S.C. §§ 2241–66 (2006).
corpus, where you ask a state judge to review your state constitutional claims. Recently,
federal judges have been more reluctant to interfere in state criminal proceedings, and,
therefore, it has become more difficult for prisoners to get federal courts to review their
claims.11 Furthermore, federal legislation now requires that prisoners exhaust all forms of
state relief, such as filing an Article 440 motion or petitioning for state habeas corpus, before
seeking relief in federal court.12 You also have only one year to make a federal habeas corpus
claim from the time you were sentenced or re-sentenced to prison.13 Chapter 13 of the JLM,
“Federal Habeas Corpus,” explains federal habeas corpus in detail, and you should read it
carefully if you wish to bring a federal habeas claim.
C. Lawsuits to Challenge the Conditions of Your Imprisonment14
Before you decide to bring a claim about your prison conditions, you must read JLM
Chapter 14 on the Prison Litigation Reform Act (“PLRA”). The PLRA makes it harder for
prisoners to take their complaints about prison conditions to federal court. The PLRA also
imposes harsh consequences if you bring your claim incorrectly. Though the PLRA only
applies to federal court cases, many states have passed similar laws to reduce the amount of
prisoner litigation, especially in civil actions. JLM, Chapter 2, “Introduction to Legal
Research,” will help you learn how to research if your state has laws similar to the PLRA.
For federal court claims, the PLRA requires you pay the full court filing fee even if you
proceed in forma pauperis (as a poor person). If you file as a poor person, your fees will be
taken in installments from your prison account. This means instead of having to pay all the
fees at one time, you can pay bit by bit. Keep in mind that under the PLRA, you risk
receiving a “strike” under the “three strikes” provision. The three strikes provision of this
law states that if you have three cases dismissed as frivolous, malicious, or failing to state a
valid legal claim, you will have to pay the full filing fee up front to pursue your claim. If you
receive three strikes, you will not be able to use the in forma pauperis procedure allowing
you to pay the filing fee in installments from your prison account. Moreover, if the court finds
you have filed a lawsuit for malicious or harassing purposes, you may lose any good-time
credit you have earned.15 Another very important thing to remember is that the PLRA states
that you must exhaust all administrative remedies—such as institutional grievance
procedures and their appeals—before you bring a claim in court.16 Otherwise, your claim will
be thrown out and you will not get your filing fee back. These are only a few of the
restrictions imposed by the PLRA. Therefore, you must read Chapter 14 of the JLM before
you file any federal claim.
1. Filing an Administrative Grievance
The PLRA forces you to use all administrative grievance programs available to you
before filing a federal court case. Many states also have this requirement. In New York, you
must first file a complaint in the New York State Inmate Grievance Program before bringing
a lawsuit. See JLM Chapter 15, “Inmate Grievance Procedures,” for more details about the
11. This concern will not be relevant to you if you are a federal prisoner in a federal institution.
12. The Prison Litigation Reform Act is explained briefly in the next section, and in detail in
JLM Chapter 14.
13. 28 U.S.C. § 2244(d)(1) (2006) (“A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State Court.”).
14. You can also file a complaint with the Department of Justice (DOJ), but, this is not a lawsuit,
as they do not have to respond to your complaint. See Part 6 of this Section for more details on the DOJ
process.
15. 28 U.S.C. § 1932 (2006).
16. 42 U.S.C. § 1997e(a) (2006).
New York program as well as some basic information about similar inmate grievance
programs in other states.
The New York State Inmate Grievance Program allows prisoners in any of the facilities
of the Department of Correctional Services (“DOCS”) to file a complaint. Grievances must be
about a DOCS policy, rule, or regulation, either as it is written or as correction officials or
officers have applied it to you personally. Issues and problems that do not relate to a DOCS
policy, rule, or regulation, or that do not involve you personally cannot be resolved through
this program. For example, if your complaint involves a policy, rule, or action of an outside
agency, such as the Division of Parole, the DOCS cannot help you.17
2. 42 U.S.C. Section 1983
Because state and city prison or jail officials and guards are considered state employees,
a federal law, 42 U.S.C. Section 1983 (“Section 1983”), allows you to sue them if they deprive
you of your federal constitutional rights (like your right to adequate medical care, to be free
from assault, and to have access to the courts and to legal materials). You cannot use
Section 1983 to attack your conviction or sentence.
To file a Section 1983 complaint, you must provide a detailed description of the incident
or practice that provides the basis for your individual claim. You might also be able to bring
your lawsuit as a class action. A class action is a suit brought on behalf of you and all others
who experience the same problem or have the same complaint. 18 You can also add any
supplemental state claims to your federal cause of action if a state claim involves the same
facts as the alleged federal constitutional or statutory violation.19
Section 1983 has a statute of limitations, which is the limit on the amount of time you
have before your right to file a lawsuit expires. Section 1983 claims use the state statute of
limitations for personal injury suits in the state in which the court is located. The statute of
limitations period begins to run when you find out about (or should have found out about) the
injury that you are complaining about.
A federal judge who hears a Section 1983 claim may order or award: (1) an injunction (an
order to prison officials to stop denying you your rights or to take steps to allow you to
exercise your rights); (2) damages (money payments to make up for your injuries); or (3) a
declaratory judgment (a statement by the court about the nature and limits of your rights
made before they have been violated).
After you determine the district court in which you must file, you should write to the
clerk of that district court asking for the forms and information you need. By mailing the
appropriate documents to the clerk, you have filed your Section 1983 lawsuit. Chapter 16 of
the JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of
Federal Law,” discusses Section 1983 suits in detail.
3. Bivens Actions20 under 28 U.S.C. Section 1331
Because there is no statute similar to Section 1983 allowing you to sue federal officials
who deprive you of your federal rights, you can use what is called a “Bivens action” under 28
U.S.C. §1331(a). 21 A Bivens action is the federal equivalent of a Section 1983 action. So, a lot
17. State of New York, Department of Correctional Services, Directive No. 4040 § III (F), Inmate
Grievance Program (1998) (as revised Aug. 22, 2003).
18. But, keep in mind that you need a lawyer to file a class action. You cannot file one by
yourself.
19. See Part C(6)(b) of JLM Chapter 16, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain
Relief from Violations of Federal Law,” for more information on supplementing your federal Section
1983 case with state claims.
20. For more information on Bivens actions see Part E of Chapter 16 of the JLM, “Using 42
U.S.C. § 1983 & 28 U.S.C. §1331 to Obtain Relief from Violations of Federal Law.”
21. The name “Bivens action” is taken from the case Bivens v. Six Unknown Named Agents of
of the information applying to Section 1983 actions also applies to Bivens actions. For
example, just like a Section 1983 action, you may use a Bivens action to complain about
conditions and/or treatment violating your constitutional rights. Because of the PLRA, you
must also exhaust (use up) available administrative remedies before filing in federal court.
In bringing a Bivens action you can sue the federal official who violated your rights. But,
you can sue the official only in his individual capacity, not in his official capacity. What this
means is that you can sue the official as a person, and not as a government employee. 22 You
also cannot bring a Bivens action against a federal agency or a private corporation which
contracts with the federal government to operate prison facilities.23 If you wish to sue a
private corporation that operates prison facilities, you might have more success trying to
bring a state tort action. Federal courts also may not listen to your complaint if it sounds like
you are suing for a harm that is not very serious, such as your personal items being taken
from you.
If you bring a Bivens action, you must serve a copy of the summons and complaint on (1)
the named defendants, (2) the U.S. Attorney for the district in which you bring your suit, and
(3) the U.S. Attorney General in Washington, D.C. 24 If you seek injunctive or declaratory
relief (meaning you are asking that what is being done to you stops, but you are not looking
to get money), you may file your suit in the federal district where any defendant resides,
where the events complained of occurred or are occurring, or where you presently reside. 25 If
you are suing under Section 1331 for only money damages, you need to serve the summons
and complaint on (1) the U.S. Attorney for the district in which you bring your suit, (2) the
U.S. Attorney General in Washington, D.C., and (3) the officer or employee being sued. 26 To
sue for damages, you must file in the federal district in which all the defendants reside or the
district in which your claim arose (where the events you are complaining about occurred). 27
All service must be by registered or certified mail. 28
4. Tort Actions in State Courts
As noted above, if you were injured by a state official or employee, and as a result your
constitutional rights were violated, you may file a Section 1983 suit. This is a claim under
federal law. You may also file a tort action in state courts against anyone who deliberately or
carelessly injured you, or damaged or destroyed your property. You can file a state tort action
regardless of whether they violated any of your constitutional rights, and regardless of
whether you are also filing a Section 1983 federal suit.29 Even if you are not filing a Section
1983 suit, you can bring a tort action in state courts. 30
Fed. Bureau of Narcotics, 403 U.S. 388, 389, 91 S. Ct. 1999, 2001, 29 L. Ed. 2d 619, 622 (1971) (holding
that a lawsuit for a 4th Amendment violation is permitted against a federal agent).
22. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (stating that a
Bivens action “must be brought against the federal officers involved in their individual capacities.”).
This is because if you sue an officer in his “official capacity,” it is like suing the federal government, and
under the concept of “sovereign immunity,” the federal government cannot be sued.
23. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63, 122 S. Ct. 515, 517, 151 L. Ed. 2d 456, 461
(2001) (refusing to extend Bivens to allow recovery against a private company operating a halfway
house under contract with the Federal Bureau of Prisons).
24. Fed. R. Civ. P. 4(i).
25. 28 U.S.C. §1391(e) (2000).
26. Fed. R. Civ. P. 4(i)(2)(B).
27. Fed. R. Civ. P. 4(i).
28. Fed. R. Civ. P. 4(i)(1).
29. If someone did violate your federal constitutional rights, you may also file a tort action in a
federal court.
30. If you file a tort action in New York state court, you should file your claim in the New York
Court of Claims.
In New York, if the person who injured you was a state official, state employee, or
someone acting under the authority of the state (like a private doctor the state hired), you
may sue New York State in the Court of Claims. The Court of Claims only allows such claims
against the state and can only award money damages; it cannot issue an injunction. Also,
before filing suit in the Court of Claims, you must exhaust administrative procedures, like
the Inmate Grievance Program, and pay a filing fee. You should read JLM, Chapter 17, “The
State’s Duty to Protect You and Your Property: Tort Actions,” for information about tort
actions.
5. Tort Actions in Federal Courts
If you are a federal prisoner and want to sue for a simple tort violation, you must sue
using the Federal Tort Claims Act (“FTCA”)31 instead of a Bivens action. The FTCA is a
statute allowing people to sue the federal government for harm federal employees may have
caused you or your property while were doing their jobs. You must first send in Form 95,
“Claim for Damage, Injury, or Death,” and ask for damages from the federal agency whose
employee allegedly caused the harm.32 Many FTCA cases go through the agency and are
settled there. But, if your claim is denied, you may file suit in federal court. Remember: if
you have not gone through the administrative remedies before going to federal court, the
judge will dismiss your case.
6. Article 78 Proceedings
Article 78 of the New York Civil Practice Law allows you to go to court to challenge
decisions made by New York State administrative bodies or officers. 33 Like all the suits
mentioned above in Part C, you cannot use Article 78 to challenge your conviction or
sentence. Article 78 is useful to challenge decisions made by administrative bodies like the
Department of Correctional Services, the Board of Parole, and the Temporary Release
Committee, or by state employees such as prison guards and administrators. You may
challenge decisions made by bodies like these if you think they did something wrong when
making a decision in one of the following four ways: (1) they acted beyond their legal
authority; (2) they failed to do something required by law; (3) they made an unreasonable or
grossly unfair (arbitrary) decision; or (4) they made a decision at a hearing without enough
evidence.34 Remember that you cannot challenge your sentence or conviction under Article
78; however, you may, for example, challenge the Board of Parole’s decision to revoke your
parole, which, if successful, would lead to your release from prison. Chapter 22 of the JLM,
“How to Challenge Administrative Decisions Using Article 78 of the N.Y. C.P.L.R.” discusses
Article 78 proceedings in detail.
7. Challenging Unconstitutional Prison Conditions Through the
Department of Justice
The United States Department of Justice (“DOJ”) has authority under a law called the
Civil Rights of Institutionalized Persons Act to investigate state and local institutions for
unconstitutional conditions.35 This unit does not investigate federal institutions; you must
31. Federal Tort Claims Act, 28 U.S.C. § 1346(b) (2000).

32. You can get this form by writing to the clerk of the federal district court in which you plan to
file your action. Form 95 is also available at http://www.usdoj.gov/civil/forms/SF95.pdf (last visited
April 10, 2008).
33. N.Y. C.P.L.R. 7801 (McKinney 1994 & Supp. 2006).
34. N.Y. C.P.L.R. 7803(1)–(4) (McKinney 1994 & Supp. 2006).
35. 42 U.S.C. § 1997 (2000). Some New York federal courts have held that, under the PLRA,
prisoners must exhaust the DOJ’s disability complaint procedure in addition to their internal prison
grievance procedure before filing a disability-related complaint in federal court. Other courts have
disagreed. You should read JLM Chapter 14, “The Prison Litigation Reform Act,” specifically Part E(1),
use another agency like the Bureau of Prisons if you want to file a complaint about a federal
prison.36 The DOJ will only investigate allegations of systemic abuse—problems experienced
by many prisoners. If you think your prison suffers from widespread constitutional abuses,
you might consider writing to the DOJ. The DOJ cannot provide individual relief, nor can it
bring a claim regarding your criminal sentence. For these matters, you should contact an
attorney. 37
The Special Litigation Section of the DOJ protects the constitutional and federal
statutory rights of persons confined in certain institutions owned or operated by state and
local governments. These institutions include facilities for individuals who are mentally ill or
developmentally disabled, nursing homes, juvenile correctional facilities, and adult jails and
prisons. The department’s recent focus has included work on abuse in nursing homes,
juvenile facilities, sexual victimization of women prisoners, and the unmet medical needs of
prisoners and pre-trial detainees.
The Special Litigation Section enforces federal civil rights statutes in four major areas:
(1) conditions of institutional confinement; (2) law enforcement misconduct; (3) access to
reproductive health facilities and places of religious worship; and (4) protection of
institutionalized persons’ religious exercise rights. The DOJ receives a large number of
claims every year and cannot investigate every claim. The DOJ also takes a long time to
conduct an investigation, so it is important to be patient if you do bring a claim.
If you write to the DOJ, try to be as specific and clear as possible. Your letter should
include your name, prisoner ID number, race, the length of your sentence and how much of it
you have served, and a description of what happened or the condition you believe to be
unconstitutional. When you talk about what happened, be sure to include, where relevant,
how many times the abuse happened, the names and races of the people involved, and
whether the abuse has happened to other prisoners. If you know of others who have had
similar experiences, encourage them to write letters too. Send the letter to:
Special Litigation Unit
Civil Rights Bureau, U.S. Department of Justice
950 Pennsylvania Avenue NW
Patrick Henry Building, Room 5028
Telephone: (877) 218–5228; (202) 514–6255; Fax: (202) 514–0121; (202) 514–6273
If you are filing a complaint under the American Disabilities Act, you must write to a
different division of the DOJ. JLM, Chapter 28, “Rights of Prisoners with Disabilities,” will
help you file this complaint.
A summary of the Special Litigation Section’s work is also available on the DOJ website
at http://www.usdoj.gov/crt/activity.html (last visited March 14, 2008).
D. Conclusion
When you are thinking about beginning a lawsuit, you must first determine exactly what
your particular grievance is. Defining your problem will help you decide which laws or
procedures are the most appropriate to remedy your situation. After thinking about your
issue, decide which of the two main categories of legal action applies to you: 1) lawsuits that
for more information about whether filing a complaint with the DOJ qualifies as an “administrative
remedy” under the PLRA such that you must exhaust before bringing a complaint about prison
conditions in federal court.
36. See www.bop.gov (last visited March 14, 2008) for more information. The D.C. Prisoners’
Project of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs also offers a helpful
guide to the Bureau of Prisons complaint process: www.washlaw.org/pdf/BOP_Greivance_Guide.pdf
(last visited March 14, 2008).
37. See http://www.usdoj.gov/crt/split/complaints.htm (last visited March 14, 2008).
challenge your conviction or sentence, or 2) lawsuits that challenge the conditions of your
imprisonment. You may be interested in both of these types of lawsuits. Read additional
chapters of the JLM that relate to your issue to help you make a decision. The next step is to
learn what will be required of you for different types of legal action. Review the different
types of suits described above for each type of legal problem, and think about what is
required to be successful. In addition to comparing the legal requirements of the different
types of actions, be sure to think back to what your problem is, and decide what your goals
are for fixing that problem. Since different lawsuits provide different types of solutions, you
should evaluate your potential courses of action with your goal in mind. At that point, you
will be in the best position to decide if legal action is right for you, and if so, which type of
lawsuit you should pursue.
APPENDIX A
LAWSUITS THAT CHALLENGE YOUR CONVICTION OR SENTENCE

Type of Suit Characteristics of Where Do I Bring My Important Things to JLM Chapters you
the Suit Claim: State or Remember must consult
Federal Court?
Criminal A higher court looks It depends on where you The higher court can only Chapter 9:
Appeal at your case to see if were first convicted. If look for legal errors, not “Appealing Your
the lower court, you were convicted in a factual ones. Sentence or
judge, or prosecutor state trial court, you will Conviction”
committed any legal appeal to a higher state
errors during the court. If you were
trial or sentencing. convicted in a federal
court, you will appeal to
a higher federal court.
Article 440 A trial court You can bring this You cannot raise any Chapter 20: “Using
reviews claim only in the New claims you have already Article 440 of the
circumstances that York state courts. See raised or could have raised New York
may have made Appendix A of JLM in a criminal appeal. Criminal
your conviction or Chapter 20 for similar Procedure Law to
sentence unfair. laws in other states. Attack Your
Unfair Conviction
or Illegal
Sentence”
Federal A federal judge You may bring a federal You must have tried to Chapter 13: “Federal
Habeas reviews your claim that habeas corpus claim use all the relief that Habeas Corpus”
Corpus your rights were only in federal court. your state provides
violated under the U.S. before seeking federal
Constitution. habeas corpus.
Remember that you
have a one-year time
limit to bring a federal
habeas corpus action.
You must have
exhausted all your
remedies before this.
Judges do not like to
grant this.
State In New York, state You may bring a state In New York, try Chapter 21: “State
Habeas habeas corpus is used habeas corpus claim Article 440 before you Habeas Corpus”
Corpus mainly to challenge only in state court. bring a state habeas
bail determinations and petition. Courts will
revocations of parole. generally make you
use Article 440 unless
you are challenging
bail or a parole
decision.
APPENDIX B
LAWSUITS THAT CHALLENGE THE CONDITIONS OF YOUR IMPRISONMENT

Type of Suit Characteristics Which Court- State Important Things to JLM Chapters you
of the Suit or Federal? Know must consult
Administra- You may file a An Make sure you know Chapter 15:
tive complaint not to a administrative about the Prison “Inmate Grievance
Grievance court, but to an grievance is not Litigation Reform Act Procedures”
administrative body. filed with a court, (PLRA) and its
In prison, this means but the PLRA requirements. See JLM,
that you will first file requires you to Chapter 14, “The Prison
a complaint with your bring an Litigation Reform Act.”
prison. administrative
grievance before
challenging
prison conditions
in federal court.
42 U.S.C. You may sue state or Section 1983 claims You cannot use a Chapter 16: “Using
§ 1983 city prison officials if are usually filed in Section 1983 claim to 42 U.S.C. § 1983
they violate your federal court. challenge your and 28 U.S. § 1331
federal constitutional conviction or sentence. to Obtain Relief
rights. You must follow the from Violations of
state statute of Federal Law”
limitations (deadline)
for personal injury suits
and file your complaint
by this deadline.
Consider whether you
might also bring your
suit as a class action.
You cannot use a
Section 1983 claim if
you are complaining
about a federal official.
28 U.S.C. You use this type You may bring a You can sue a federal Chapter 16: “Using
§ 1331 of lawsuit to Bivens action only in official only in his 42 U.S.C. § 1983
(Bivens complain about federal court. individual capacity, not and 28 U.S. § 1331
Actions) federal officials in his official capacity. to Obtain Relief
who violate your You cannot sue federal from Violations of
federal agencies through a Federal Law”
constitutional Bivens action.
rights. You cannot use this suit
This is the federal to sue private
equivalent to a corporations that work
Section 1983 suit, with the federal
so much of the government to operate
information about your prison facility (use
Section 1983 suits a tort action instead).
also applies to
Bivens actions.
Type of Suit Characteristics Which Court- State Important Things to JLM Chapters you
of the Suit or Federal? Know must consult
Tort Actions In addition to a You may bring a tort In New York, you can Chapter 17: “The
Section 1983 suit action in federal or sue the state of New State’s Duty to
or a Bivens action state court. York in the Court of Protect You and Your
(above) you can file Claims if the person Property: Tort
a tort action who injured you was a Actions”
against anyone state official or
who deliberately or employee.
carelessly injured Remember, if you are a
you or your federal prisoner, you
property. must first exhaust
You can also bring administrative remedies
a tort claim by under the FTCA and
itself. PLRA before bringing a
claim in federal court.
Article 78 You may challenge You may bring an You cannot use this type Chapter 22: “How
decisions made by Article 78 suit only of lawsuit to challenge to Challenge
administrative in New York State your conviction or Administrative
bodies or officers in Court. sentence. Decisions Using
court (for example, Article 78 of the
the Board of New York Civil
Parole, or state- Practice Law and
employed prison Rules”
guards).
You may challenge
decisions that may
be unlawful or
actions that show
the administrative
bodies failed to
follow the law.
United States The DOJ will This type of claim is The DOJ cannot provide There are no JLM
Department of investigate only brought in federal individual relief—it will Chapters on this
Justice (DOJ) allegations of court. only look into problems subject. For more
systemic abuse that are experienced by information, go to:
(continued many prisoners. http://www.usdoj.g
unconstitutional The DOJ also will not ov/crt/split/complai
behavior that look into problems in nts.htm
harms everyone) in federal institutions.
state and local If you decide to write to
institutions. the DOJ Special
Litigation Unit, make
sure your letter is as
clear and specific as
possible.
Manual
Chapter 6:
An Introduction to
Legal Documents

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 6
AN INTRODUCTION TO LEGAL DOCUMENTS*

A. A. Introduction: The Right and Responsibilities of Self-Representation
You have the right to bring your own lawsuit and to represent yourself in court. This is
called bringing a lawsuit pro se.1 Although it is always helpful to have the aid of a lawyer, it
is not always possible to get legal assistance, especially in the early stages of a lawsuit. If you
plan to start a legal action, it is crucial that you familiarize yourself with the documents that
you will need to provide to the court. Courts require that certain documents are prepared
and filed at specific times in order to begin and maintain a lawsuit. The purpose of this
Chapter is to give you a general introduction to legal documents and a basic framework that
explains the order in which documents are required in most cases.
Each type of lawsuit described in the JLM has at least one plaintiff or petitioner and at
least one defendant or respondent.2 In some lawsuits, there may be more than one plaintiff.
For example, several prisoners who were all mistreated in the same way can bring a lawsuit
together. Your lawsuit will be stronger if you can show that you have been a victim of a
regular practice that is illegal, or if you can demonstrate that several people suffered the
same mistreatment. You may even be able to bring a lawsuit in the name of a group of people
without having to ask them all to join your lawsuit as plaintiffs. Such a lawsuit is called a
“class action” and may be very powerful.3 If you are suing prison officials who are mistreating
several prisoners, but you are the only plaintiff, the prison officials can have the case thrown
out by merely improving conditions for you and no one else. This is because the court only
has power over those people named in the suit—once the prison officials have improved
conditions for you, your case is “moot” and will be dismissed. If this happens, the court
cannot do anything about the conditions or mistreatment of others unless another suit is
brought. On the other hand, if you bring a class action naming all the prisoners who are
suffering as plaintiffs, prison officials may have to improve conditions for everyone before the
court can dismiss the case. You should try to find a lawyer for this type of case.
In some cases, there may also be more than one defendant. Under the rule of supervisor
liability (respondeat superior), an employer may sometimes be held liable for the illegal acts
of his or her employees. Therefore, you should always name as a defendant the individual
who injured you, as well as that individual’s superiors up to the Commissioner of
Corrections.
If you are a plaintiff, you would begin your lawsuit by notifying the court and the person
you are suing that you intend to sue. This is done by filing papers (discussed in more detail
below) with the court. In these initial papers, you explain the problem you are having and
what you would like the court to do about it. Once the court receives these papers, the person
you are suing is allowed to defend himself by filing papers with the court that respond to
* This Chapter was written by Taryn A. Merkl based in part on previous versions by Colleen Romaka
and other former members of the Columbia Human Rights Law Review.
1. New York Prisoners’ Legal Services publishes a newsletter entitled “Pro se,” which discusses
how to proceed pro se in various contexts. Many libraries have it. The newsletter is also available from
Prisoners’ Legal Services. To subscribe, send in a request with your name, DIN number, and facility to
Pro Se, 114 Prospect Street, Ithaca, NY 14850.
2. The terms “plaintiff” and “petitioner” are both used to refer to the person who brings a
lawsuit. Similarly, the terms “defendant” and “respondent” are both used to refer to the person who is
being sued. Which terms are used will vary depending on the court in which the case is brought.
3. See Fed. R. Civ. P. 23 (the Federal Rule of Civil Procedure laying out the procedures for class
actions); N.Y. C.P.L.R. 901–09 (McKinney 2006) (the rule laying out the procedures for class actions in
New York State courts).
your charges. At this point, you are generally given another opportunity to file more papers,
in which you respond to what your opponent has stated in his papers. In most cases, this
exchange of claims and responses to the charges occurs before the court makes any decisions
on the substance (also called the “merits”) of the lawsuit itself.
B. B. The Legal Documents
All lawsuits, regardless of type, require the same basic legal documents. These
documents usually fall into five categories: (1) papers needed to start the lawsuit; (2)
supporting papers; (3) miscellaneous papers; (4) the answer from the party being sued; and
(5) the reply to that answer by the party bringing the lawsuit. Although they serve the same
functions, the names of these documents may differ depending upon the particular lawsuit
you choose to file. For example, in a federal habeas corpus action, the paper needed to start a
lawsuit is called a petition, while in a criminal appeal it is called a notice of appeal.
JLM Chapters 2 through 5 describe in detail the various types of lawsuits that you may
bring and provide you with instructions on how to prepare the forms that you need for each
type of suit. A summary of different types of lawsuits, based on New York procedure, is also
given in JLM Chapter 5. This Part provides an overview of the legal documents you will need
to prepare if you decide to bring one of the actions discussed in the JLM. The chart at the
end of this Chapter matches the various names given to the five basic categories of papers to
each type of lawsuit that you may bring.
What comes to most people’s minds when they think about a lawsuit is a courtroom trial.
However, before any case actually gets into court, certain legal documents must be prepared
and filed with the court. If you are appearing (bringing a lawsuit) pro se (without a lawyer),
you are responsible for preparing the necessary documents. Therefore, it is important that
you read Chapters 2 through 5 of the JLM, and carefully follow the directions on how to
write the necessary documents. This Part discusses the functions of the five basic types of
legal documents necessary to start and maintain the various legal actions.
1. Papers Needed to Start a Lawsuit
Once you have determined what type of action you would like to bring, you must file
papers with the court explaining why you are seeking help from the court (pleadings). In
these documents, you will usually state what your opponent has done to you and what you
want the court to do about it. You will also explain the basis of the court’s jurisdiction
(power) to hear your case. Depending upon what type of lawsuit you bring, the names of the
papers may differ. The chart at Appendix A of this Chapter provides the names of these
papers for each lawsuit. You should refer to the section of the JLM describing your legal
problem in detail to determine how these documents should be prepared.
2. Supporting Papers
In the papers that you file to start a lawsuit you will make certain claims about what
your opponent did to you and why you are seeking help from the court. At this point in most
lawsuits, the court will need some sort of evidence that supports your claims. Two types of
supporting evidence, Affidavits and Memorandums, are discussed below:
(a) Affidavits
Supporting papers usually take the form of an affidavit. An affidavit is a sworn (either
notarized or signed by a friend of the court) written statement, by a party to the lawsuit, or
by a witness, supporting the claims you made in your starting papers. An affidavit’s purpose
is to provide the court with some factual evidence that supports your claims. Therefore, it
should contain specific facts. It may consist of your own testimony and/or that of someone
else who witnessed or has firsthand knowledge of the facts of your claim.
(b) Memorandum of Law
In some suits, a legal memorandum (or brief) is required. A legal memorandum is a
statement of the law (as opposed to the facts) on a particular legal issue. A memorandum
discusses the legal arguments upon which your claim is based. In your memorandum, you
present the facts of your case, and compare them to similar cases. The memorandum of law
serves a purpose similar to that of the affidavit—it demonstrates support for the claims that
you made in your starting papers. The legal memorandum, an example of which appears in
Appendix B of this Chapter, should begin with a statement of the facts in your case. The body
of the memorandum should deal with all of the legal issues that you think arise from the
facts of your case. The legal issues will be based on your legal rights or laws that provide a
privilege. You should research these questions of law and explain to the court how other
courts have dealt with the issues you are raising. Chapter 2 of the JLM, “Introduction to
Legal Research,” explains how to research an issue in the law library.
3. Miscellaneous Papers
You may also file miscellaneous papers, which usually deal with procedural questions of
law (the process by which your case is decided). These questions of law differ from
substantive questions of law (the factual and legal issues of your case), but they nevertheless
can affect your chances of success in the lawsuit. For example, they may include a request for
a lawyer, whose expertise could make the difference between whether you win or lose your
case. They may also include a request to file (or proceed) as a poor person, known as in forma
pauperis, which would free you from having to pay the normal fees and filing costs necessary
to bring a lawsuit.4 The miscellaneous papers that you will need to file will differ depending
on the type of lawsuit you are bringing. You should refer to the chart at Appendix A of this
Chapter to determine what papers are appropriate for your particular lawsuit. You should
also refer to the specific section of the JLM that discusses your legal problem in detail in
order to determine how to prepare these documents.
4. Answering Papers from the Opposing Party
The party you sue is required to answer your starting papers. There are several ways to
answer. The answering party may simply admit or deny the allegations in your papers. The
answering party may also state that he does not know if your statements are true. This is the
equivalent of a denial.5 If the party you have sued answers without replying to one of your
factual allegations, the court will conclude that he has admitted that your allegation is true.6
Another option that the defendant has is to attack the sufficiency of your starting papers
by raising certain defenses.7 The opposing party will typically raise these types of defenses in
a motion to dismiss your complaint. If the opposing party wins such a motion, the court has
the option of either dismissing your case or granting you the opportunity to amend your
complaint and correct the errors. If you are given an opportunity to amend your complaint,
4. Under the Prison Litigation Reform Act (“PLRA”), prisoners filing claims in court are required
to pay full court filing fees. The full fee will gradually be deducted from your prison account. For a
fuller discussion of the PLRA and how it affects your rights, see JLM Chapter 14.
5. See Fed. R. Civ. P. 8(b) (rule on defenses and forms of denials for actions in federal court); N.Y.
C.P.L.R. 3018(a) (McKinney 1991) (rule for denials and defenses in New York State courts).
6 . See Fed. R. Civ. P. 8(d) (federal rule regarding the effect of a party’s failure to deny
allegations); N.Y. C.P.L.R. 3018(a) (McKinney 1991) (rule regarding the effect of a party’s failure to
deny allegations in New York State courts).
7. For a list of the seven defenses that may be made by motion under the Federal Rules of Civil
Procedure, see Fed. R. Civ. P. 12(b). For a list of comparable grounds on which a motion may be made in
New York courts, see N.Y. C.P.L.R. 3211(a) (McKinney 2005). You must check the court rules for your
particular state or federal court for a complete list of defenses.
you should think of the amended complaint as new starting papers, which your opponent
needs to answer.
An example of an answer that would attack the sufficiency of your starting papers is a
motion to dismiss for failure to state a claim. By filing this motion, your opponent
argues you have no legal claim.8 For example, you might want to sue a prison official because
you feel you do not get to spend enough time outside each day. But, if there is no law
requiring prison officials to allow prisoners to be outdoors for a certain number of hours each
day, your claim could be dismissed upon the prison official’s motion because no matter what
the facts were, you could not show the official violated a law. In this example, the judge
would look at the pleadings (the papers you filed to start the case and your opponent’s
motion to dismiss), and would dismiss your case because there would be no basis for the
court to give any relief for that claim.
Another type of answer that your opponent can submit is a motion for summary
judgment. In a summary judgment motion, the opposing party states that there are no facts
in dispute (as opposed to legal issues in dispute) and argues that there is no way that you
can introduce facts to prove your claim. Therefore, he is entitled to judgment as a matter of
law.9 This means that a judge may decide the case without the case ever going before a jury.
For example, you might bring a Section 1983 action10 claiming that your constitutional right
under the Eighth Amendment to be protected against “cruel and unusual punishment” was
violated because a prison guard hit you. The opposing party might file a summary judgment
motion claiming one violent incident does not establish “cruel and unusual punishment”
within the meaning of the Eighth Amendment.11 The judge will read the legal papers and
consider the facts in the light most favorable to the non-moving party (the party that opposes
the summary judgment motion). This means that the judge will give the benefit of the doubt
to the party opposing summary judgment. If the judge believes that there is no way you can
demonstrate that the single incident violated the Eighth Amendment, the motion for
summary judgment will be granted. If the judge thinks that a reasonable jury could find in
your favor, however, then he will deny summary judgment, and your case will move forward
toward trial.
Summary judgment is different than a motion to dismiss for failure to state a claim. In a
motion to dismiss for failure to state a claim, the judge only relies on the pleadings
(allegations submitted to the court) to make a decision. However, when your opponent files a
motion for summary judgment, the judge decides the motion based on affidavits submitted by
both sides. This means that if your opponent submits an affidavit in support of a summary
judgment motion, you have the right to introduce affidavits to support your claim and oppose
the motion. 12 When you are opposing a motion for summary judgment, you should
demonstrate in an affidavit that there are disputed facts that, if considered by a reasonable
8. See Fed. R. Civ. P. 12(b)(6); N.Y. C.P.L.R. 3211(a)(7) (McKinney 2005).

9. See Fed. R. Civ. P. 56 (the federal rule for summary judgment); N.Y. C.P.L.R. 3212 (McKinney
2005) (the New York rule for summary judgment).
10. See Chapter 16 of the JLM for a discussion of 42 U.S.C. § 1983.
11. See Chapter 24 of the JLM for an explanation of Eighth Amendment protections in
assault cases.
12. If you would like to introduce any documents to support your opposition to the motion,
these must be “authenticated” by an affidavit unless they are already in the court’s record. See Fed. R.
Civ. P. 56(e)(1); Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987). This means you
should have someone who has knowledge swear that the documents are genuine and reliable. A person
has the requisite knowledge to authenticate a document in an affidavit if he could authenticate a
document during trial under the evidence rules. See, e.g., Fed. R. Evid. 901. Also note that some
documents, such as public records and newspapers, are “self-authenticating,” which means that they
are considered so trustworthy that they do not need to be sworn to in an affidavit. See Fed. R. Evid.
902.
person (like someone on a jury), would tend to support your claim. If possible, you should
seek to amend your complaint (or other introductory papers) to correct any possible defects.
In addition to attempts to have your case dismissed, your opponent may choose to file
answering papers that require you to file more papers. These types of answers may include a
motion for a more definite statement because your complaint was not specific enough.13
This type of motion may be granted in order to give the party being sued a chance to
understand and answer the charges made. It may also simply be a delaying device, used to
buy more time for your opponent. If this motion is granted, you will have to amend your
complaint to explain your claims in more detail. An answering party may also file a
counterclaim against you.14 If a counterclaim is brought against you, this means that the
opposing party is alleging that you did some harm to him. For example, if you sue a prison
guard for assaulting you, the prison guard may answer in turn with a claim that you injured
him instead. If a counterclaim is filed, you must file a reply stating your version of the
events.15
Finally, the party you sued may not be able to respond to your charges within the time
limits given to answer. If this happens, he will probably request an extension from the
court.16 Courts usually grant these requests. If, however, the opposing party does not file (1)
an answer to your charges; (2) a motion attacking the validity of your charges; or, (3) a
motion for an extension of time, you have the right to request that the judge enter a default
judgment, which is a judgment in your favor. 17 A default judgment assumes that your
charges are true because the party you sued did not respond to them. To get a default
judgment, you must file a request that a default judgment be entered with the clerk of the
court. You will later request the same court to order the relief you requested in your starting
papers.
5. Your Reply to the Opposing Party’s Answer
Once you receive the opposing party’s answer, you should read it closely. Carefully
reading your opponent’s answering papers will help you determine the arguments he will
make as the case progresses. For example, an opponent might raise an affirmative defense in
the answer, such as a claim of contributory negligence.18 Once you know what facts and
arguments your opponent will use to prove a claim, you will be able to counter them
effectively. (You should also note that an affirmative defense may not be used at trial if it
was not raised in the answer to the complaint,19 although a court will usually grant the
defendant permission to amend an answer to add an affirmative defense).
In some instances, such as when the opposing party files a counterclaim in his or her
answer, you may be required to respond to the charges. If a reply is required by the court and
you do not file, everything in the answer will be accepted as true by the judge and you will
lose your lawsuit. Even if you are not required to reply to the opposing party’s answer, but
the court allows you to do so, you should go ahead and prepare a well-reasoned reply to the
statements that your opponent makes. It is in your best interest to file and serve a written
reply whenever it is possible to do so.
Chapters 9 to 13, 15 to 17, and 20 to 22 explain in detail the types of claims you can bring
and the kinds of documents you will need to maintain such actions. In each Chapter, there
13. See Fed. R. Civ. P. 12(e); N.Y. C.P.L.R. 3024(a) (McKinney 1991).
14. See Fed. R. Civ. P. 13; N.Y. C.P.L.R. 3019(a) (McKinney 1991).
15. See Fed. R. Civ. P. 7(a); N.Y. C.P.L.R. 3011 (McKinney 1991).
16. See Fed. R. Civ. P. 6(b); N.Y. C.P.L.R. 2004 (McKinney 1997).
17. See Fed. R. Civ. P. 55; N.Y. C.P.L.R. 3215 (McKinney 2005).
18. This means that the other side will say that your carelessness somehow helped cause the
injury and therefore they are not (fully) responsible.
19. See Fed. R. Civ. P. 8(d); N.Y. C.P.L.R. 3211(e) (McKinney 2005).
are examples of the papers you need to file. The table in Appendix A will help you to
familiarize yourself with the names of the papers each suit requires.
C. C. Conclusion
If you are thinking about taking legal action, you should take the following steps:
(1) identify the law that has been broken;
(2) determine the type of lawsuit you need to file; and
(3) gather the necessary documents.
Appendix A of this Chapter lists types of lawsuits and forms the court requires for each
type of suit.
If you file a lawsuit, you will need:

(1) papers to start a lawsuit;
(2) papers supporting your lawsuit; and
(3) other important papers required by the court.
After you have filed your lawsuit, the opposing party should respond to your claim. If the
opposing party responds, you should reply. If the opposing party does not respond, you
should file papers with the court requesting a default judgment.
APPENDIX A
LEGAL DOCUMENTS TABLE
Type of Papers to Start Suit Supporting Papers Miscellaneous Answers Replies

Suit Papers
Criminal • Notice of Appeal • Papers to Perfect • Poor Person’s • Opposing • Reply Brief
Appeal Appeal Papers Brief
• Bail Request
Papers
• Papers for
Requesting
Extension of Time
Article • Notice of Motion to • Affidavits • Poor Person’s • Answer

440 Vacate Judgment Papers
• Notice of Motion to
Set Aside Sentence
Federal • Petition • Affidavits • Motion for • Answer • Traverse

Habeas Appointment of
Corpus Counsel
State • Petition • Check • Notice of Time • Return • Reply

Habeas requirements of your and Place of
Corpus state Hearing
• Poor Person’s
Papers
42 U.S.C. • Summons • Affidavit • Poor Person’s • Answer • Reply

§ 1983 Papers
• Complaint • Motion to
Dismiss
• Order to Show
Cause and Temporary
Restraining Order
Tort • Notice of Intention • Affidavits • Affidavit to • Demand for • Bill of Particulars

Action to File Claim Request Reduction Bill of
of Filing Fees Particulars
• Notice for
Permission to File • Notice of Appeal
Late Claim
• Verified Tort Claim
Article 78 • Order to Show • Affidavits • Affidavit to • Answer • Reply

Cause Request Reduction
or Waiver of Filing
• Notice of Petition Fees
• Verified Petition
• Request for Judicial
Intervention
• Application for an
Index Number
APPENDIX B
SAMPLE MEMORANDUM OF LAW20

This Appendix contains an example of a memorandum of law, or a brief. This particular
memorandum was submitted to a federal district court in opposition to defendants’ motion for summary
judgment on a Section 1983 claim for excessive force in violation of the Eighth Amendment.21 We are
including this in the JLM so you may study the form and style of a brief. The names of all parties and
witnesses and facts have been changed. The footnotes have been added to clarify and explain things to
you but should not go in your memorandum. In addition, you should not use the cases cited in this
sample without verifying they are still good law. See JLM, Chapter 2, for information on Legal
Research.
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
X
:
Robert K. Simms,
:
Petitioner, :
:
:
- against - : 97 Civ No._________
:
Corrections Officer William D. Bennett, :
New York State Penitentiary, and Sergeant :
Paul J. Wright, :
:
Respondents. :
X
PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION

TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Robert K. Simms (“Simms”) respectfully submits this Memorandum of Law in Opposition
to Defendants’ Motion for Summary Judgment.
PRELIMINARY STATEMENT
On January 17, 1990, defendant William D. Bennett (“Bennett”), a corrections officer at the New
York State Penitentiary (“Penitentiary”), physically assaulted and threatened to beat and kill Robert
Simms, an inmate awaiting processing. Defendant Paul J. Wright (“Wright”), Bennett’s supervisor,
knew of the attack and death threats, yet did nothing to intervene and protect Robert Simms. Simms
brings this lawsuit under 42 U.S.C. § 1983 against Officer Bennett for his malicious and sadistic use of
excessive force and against Sergeant Wright for his deliberate indifference to the attack and threats of
beating and death.
20. This memorandum of law is based on a submission drafted by Daniel M. Abuhoff and Nicole
A. Ortsman-Dauer at Debevoise & Plimpton LLP.
21. For more information on how to bring a claim under 42 U.S.C. § 1983, see Chapter 16 of the
JLM. Chapter 24 of the JLM discusses the law that applies to your right to be free from assault in
prison.
Defendants have moved for summary judgment arguing (i) Simms suffered de minimis physical
injuries and unactionable psychological pain; (ii) the force used by Bennett, if any, was reasonable and
necessary; and (iii) Wright did not act with deliberate indifference because he did not witness the
physical attack and threats of beating and death. Defendants are wrong on both the law and the facts.
First, the use of force here was more than de minimis. Bennett shoved Simms, pushed him into a
wall, swung him around the search room, and punched him in the arms, legs, and face, while
simultaneously screaming that he should shoot, stab, and beat him. As a result of the attack, Simms
suffered more than de minimis physical and mental pain, sustaining not only bruises to his arms, legs,
and face, but also serious and extensive mental pain lasting to the present. The Eighth Amendment’s
prohibition on the unnecessary and wanton infliction of pain encompasses both physical and mental
pain.
Second, the evidence demonstrates that there was no need for force. Simms provoked no attack. He
was not violent. He did not refuse to follow Officer Bennett’s instructions. As indicated by the content of
Bennett’s threats, the attack—fueled by Bennett’s personal feelings of hatred and disgust—was
malicious, sadistic, and for the very purpose of causing Simms harm.
Finally, the supervising officer, Sergeant Wright, was deliberately indifferent to Simms’s plight.
Wright admits to hearing noise from the search room. Indeed, Wright was told by Simms what was
going on. Yet, Wright chose to do nothing to stop the attack.
Defendants’ motion for summary judgment should be denied.
1. STATEMENT OF FACTS
(a) Robert Simms’ Child Pornography Convictions
Plaintiff Robert Simms, a black male in his late forties, is a convicted child pornographer. The last
conviction took place on January 10, 1990. As a result of that conviction, Simms was sentenced to five
years imprisonment, which he served at the New York State Penitentiary from January 17, 1990 to
January 16, 1995. (Simms Aff. ¶ 3).22
a. Officer Bennett Attacks Robert Simms and Sergeant Wright Does Nothing
Simms arrived at the Penitentiary at approximately 9:30 a.m. on January 17, 1990. He was led
into the bullpen holding cell and sat on a bench as he waited to be processed. In addition to Simms,
there was only one other person in the bullpen. (Simms Aff. ¶ 5; Simms Dep. 20:12–13).
On the morning of January 17, 1990, defendant Officer Bennett and Officer Howard Lewis
(“Lewis”) worked the 8:00 a.m. to 2:00 p.m. shift in the search area of the Penitentiary. (Bennett Dep.
35:25–27; Lewis Dep. 24:8–10). Sergeant Wright, working the same shift, was the supervisor on duty.
(Wright Dep. 22:36–24:5).
Corrections officers at the Penitentiary all have the opportunity to learn incoming inmates’
charges. Not only do corrections officers discuss, on occasion, inmates’ charges, but officers working in
the booking and search areas have access to that information. (Bennett Dep. 43:15–19, 52:9–55:12,
62:24–64:14; Lewis Dep. 27:7–15, 36:24–37:5). Simms sat on the bullpen bench for approximately one
hour when he heard Officer Bennett shouting from inside the search room, located a few yards from the
bullpen: “He’s pond scum. That low-life piece of trash kiddie porn lover deserves to be killed. Someone
should kill him.” (Simms Aff. ¶ 12; Simms Dep. 21:15–24:7; Compl. Pt. II at 1).
In order to determine the source of and reason for the threats, Simms stood up from the bullpen
bench and approached the bullpen bars. Bennett approached the bullpen, stood very close to Simms,
and screamed: “You revolting cradle robber. Get the hell out of my face, you pedophile. You nauseate
22. Citations to “Simms Aff. ¶ __” refer to the Affidavit of Robert K. Simms, dated August 15,
1998. Citations to “___ Dep.” refer to the transcript of the deposition for the individual specified.
Citations to “Compl.” refer to Simms’ Complaint. Citations to “Def. Mem.” refer to the Defendants’
Memorandum of Law. The symbol “¶” refers to a particular paragraph in that document. A citation that
reads 20:12-13 indicates that the cited information can be found on page 20, lines 12 through 13 of the
referenced document.
me! Get the hell away from the bars before I beat you senseless.” Simms was terrified and did not know
how to respond. He had done nothing to provoke the threats. (Simms Aff. ¶ 12; Compl. Pt. II at 1).
Officer Bennett, becoming even more aggressive, continued his verbal attack for the next half hour.
He screamed: “If I had a knife, I’d stab you in your chest right now. Get away from the bars you
disgusting pond scum pervert!” Simms became very anxious. He thought he was going to be killed by
Officer Bennett or by other inmates to whom Bennett would reveal his charges. (Simms Aff. ¶ 13;
Simms Dep. 24:7–13; Compl. Pt. II at 1–2).
A few minutes later, Simms was retrieved from the bullpen and escorted to the search room where
Officer Bennett stood, glaring at him. (Simms Aff. ¶ 14; Simms Dep. 26:14–25; Compl. Pt. II at 6).
Officer Lewis and approximately four to six other corrections officers—including Officer Felding, who
booked Simms that morning and prepared his booking sheet containing his child pornography
charges—also stood in the room, all staring at Simms and Bennett with expressions of expectation.
(Simms Aff. ¶ 15; Compl. Pt. II at 4).
Officer Bennett slammed shut the search room door and pushed Simms from behind with two
hands, towards the wall where the other officers stood. He pushed Simms approximately ten times and
swung him around the room. Bennett slapped Simms’ face and body and again began to scream threats
of beating and death at Simms. Bennett next shoved Simms into the wall next to the corrections
officers while screaming: “You vile scumbag. I should kill you. If I had my knife, I’d carve you up. If I
had my revolver, I’d blow you to shreds. You are a sick maggot.” Simms was terrified and kept still.
(Simms Aff. ¶ 16; Simms Dep. 28:12–30:25; Compl. Pt. II at 3–4).
Officer Bennett continued to push Simms into the wall while yelling that he could not stand the
sight of Simms. Simms finally asked Bennett what he had done to deserve this attack and reminded
Bennett he did not know the details of Simms’ case. Bennett responded by yelling that he did not give
“two hoots” about the circumstances of Simms’ case; he was going to carve him up anyway. Bennett
pushed Simms. Simms ricocheted off the wall, and Bennett continued to scream obscenities and threats
of beating and death. Officer Lewis and the others in the search room looked on with amusement.
(Simms Aff. ¶ 17; Simms Dep. 29:15–30:10; Compl. Pt. II at 6–7).
At some point, Officer Bennett demanded that Simms stand in a particular spot in the search
room. Each time Simms moved to the requested spot, Bennett taunted him and screamed, “No, this
way!,” pointing to a different spot. He then swung Simms around the room, grabbing his arm and
launching him off. Bennett repeated this several times. (Simms Aff. ¶ 18; Simms Dep. 28:7–29:6).
Eventually, Bennett screamed that Simms should strip. Simms complied and removed his shirt. He
never refused or questioned Bennett’s order. When Simms put his shirt on an empty chair in the room,
however, Bennett flew into a rage. He whipped Simms’ shirt around in the air above his head,
screaming that Simms was a repulsive child pornographer. Bennett prepared to punch Simms again.
Simms turned his body to avoid being hit and called out for the sergeant. (Simms Aff. ¶ 16; Simms
Dep. 28:9–30:12, 33:14–20, 35:8–29).
Sergeant Wright heard “loud screaming” coming from the search room and went to investigate.
(Wright Dep. 28:7–9, 30:22–25, 50:7–25). As Wright appeared at the door, Bennett acted as if nothing
were wrong. Simms told Wright that he was glad Wright had arrived and that he needed Wright’s help.
Wright cut Simms off and told him to “shut the hell up and take off your clothes,” to which Simms
replied, “You’re in this too! This is unbelievable.” Simms did not question Wright’s order to strip.
Rather, he took off his pants. Bennett strip-searched him. (Simms Aff. ¶ 20; Simms Dep. 30:21–32:12,
39:8–40:2; Compl. Pt. II at 8; Wright Dep. 32:20–23, 52:19–21; Bennett Dep. 49:4–20).
Once the strip search was completed, Simms told Wright that Bennett had physically assaulted
him and threatened to beat, stab, and kill him. Wright responded, “Well, this is jail!” and walked out of
the search room, leaving Simms alone with Bennett and the other officers. (Simms Aff. ¶ 4; Davis Dep.
28:7–29:15; Wright Dep. 15:02–16:20 (testifying that Davis had a complaint about the officers)).
Once Sergeant Wright left the search room, Simms dressed and Bennett resumed threatening him.
Bennett again shoved Simms, sending him flying across the search room. Bennett screamed, “You are a
piece of crap! You are a disgusting kiddie porn loving animal who deserves to die. I am going to make
sure someone’s going to kill you. Your days are numbered.” (Simms Aff. ¶ 18; Simms Dep. 40:15–42:30;
Compl. Pt. II at 8). Bennett then led Simms out of the search room and screamed, “Send him to
protective custody and get him out of my face. He gets off on little girls!” (Simms Aff. ¶ 20; Simms Dep.
41:18–22; Compl. Pt. II at 9). After spending approximately forty-five minutes in the search room,
Simms was taken to a cell in protective custody where inmates are kept alone in separate cells that are
kept locked for most of the day. Simms did not want to be housed in protective custody after the
assault. He feared he would be more vulnerable to attack by defendants or others because there would
be no witnesses. (Simms Aff. ¶ 22; Simms Dep. 35:3–23, 40:21–42:3, 56:15–58:4; Compl. Pt. II at 10).
(c) Robert Simms’ Physical and Mental Pain Resulting from the Attack
As a result of the attack, Simms sustained bruises on his arms, legs, and face. He requested
medical attention the day after the incident. By the time Simms saw a doctor—a week later—these
injuries were no longer visible. (Simms Aff. ¶ 24; Simms Dep. 44:12–18, 48:23–50:2; Compl. Pt. II at 5).
In addition to the physical injuries, Simms suffered extreme and extensive mental pain. Not only
was he humiliated and shocked by the search, but for the entire time he was housed at the
Penitentiary, he was anxious and terrified that Bennett, Lewis, and Wright were going to beat or kill
him—either by themselves or by encouraging other inmates—and cover it up. Simms felt hopeless. He
became depressed and contemplated suicide. To this day, Simms suffers from nightmares about the
attack. (Simms Aff. ¶ 29; Simms Dep. 49:15–51:12, 52:14–15; Compl. Pt. II at 5).
On January 18 and 19, Simms made several visits to the Mental Health Clinic. He was depressed,
aggravated, and in despair. He did not want to be housed in protective custody where no one could
witness any further attack. (Mental Health Evaluation Sheet, dated January 18, 1990). One nurse
specifically noted that the “Problem” was that Simms was harassed by corrections officers because of
his charge. (Id.)23. Simms also received help for his psychological pain from Mark Denby, a Muslim
mullah (religious leader) in Simms’ community, and Dr. Margaret Phillips, Simms’ therapist. These
individuals visited Simms on numerous occasions while he was at the Penitentiary. After Simms
finished serving his sentence in 1995, he continued to meet with Dr. Phillips, with whom he often spoke
about the assault. (Simms Aff. ¶ 26; Simms Dep. 44:16–17, 53:18–19, 57:14–28; Compl. Pt II at 5–7).
(d) Robert Simms’ Complaint and the “Investigation”
On January 19, two days after the attack, Simms wrote a letter to Warden Frank Boston detailing
the physical abuse and death threats prompted by his child pornography charges. He also noted
Sergeant Wright’s unconcerned reaction. (Simms Aff. ¶ 28). Captain Sharon Grant conducted an
investigation, then wrote a report to Warden Boston on January 26. Of course, Grant concluded that
there was no merit to Simms’ Claim. (Grant Report).
2. ARGUMENT
The standards for summary judgment24 are well settled. The moving party25 bears the burden of
establishing that there are no genuine issues of material fact in dispute26. See, e.g., Consarc Corp. v.
Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993). This standard bars the court from
resolving disputed issues of fact. If there are material factual issues, the court must deny summary
judgment. See, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932
23. “Id” means that the author is citing to the same source that the author cited to immediately
prior. In this case, “Id” refers to the Mental Health Evaluation Sheet, dated January 18, 1990.
24. “Summary judgment” is a legal term which means that a judge can decide the case in one
party’s favor without the case ever going to a jury because the facts are not in dispute and the judge
can make a ruling on the law.
25. The “moving party” is the person who made the motion to the court asking the court to do
something. In this case, the moving party is Officer Bennett, who is asking the court to decide the case
in his favor at the summary judgment stage instead of going forward to a trial.
26. When a party claims that there are “no genuine issues of material fact in dispute,” that
means that all the parties agree about the facts, or a neutral third party would have to say that the
facts seem to heavily favor one party’s story over the other’s as the real version of events.
(1987). In evaluating whether there are factual issues, the court is to view the evidence in the light
most favorable to the non-moving party 27 and draw all permissible inferences 28 in the non-moving
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). However, assessments of
credibility, conflicting versions of events, and the weight to be assigned to evidence are for the jury, not
the court. See id. at 255.
D. A. Officer Bennett’s Attack On Robert Simms Violated The Eighth Amendment
The Eighth Amendment prohibits the “unnecessary and wanton infliction of pain”29 and is the
source of claims for excessive force under Section 1983. Whitley v. Albers, 475 U.S. 312, 319 (1986).
Analysis of an excessive force claim contains both objective and subjective inquiries. 30 An official’s
conduct violates the Eighth Amendment when (i) the conduct is “objectively, sufficiently serious,” and
(ii) the prison official acts with a “sufficiently culpable [guilty] state of mind.” Farmer v. Brennan, 511
U.S. 825, 834 (1994) (internal quotation marks omitted).
(a) Officer Bennett’s Conduct Was Sufficiently Serious.
Defendants argue that summary judgment should be granted because (i) Simms’ physical injuries,
if any, were de minimis, 31 and (ii) Simms’ psychological injuries are not serious enough to justify
continuing this Section 1983 case. As demonstrated below, however, the physical injuries and
psychological pain suffered by Robert Simms were sufficiently serious to satisfy the Eight Amendment
standard.
(i) The Use of Force Was More Than De Minimis
The objective component of a claim for excessive force under the Eighth Amendment is satisfied if
the injury suffered results from something more than a de minimis use of force. See Hudson v.
McMillian, 503 U.S. 1, 9–10 (1992); Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994). Significant injury,
that is “injury that requires medical attention or leaves permanent marks,” is not required. Hudson,
503 U.S. at 7–8, 13 (“The absence of serious injury is .†.†. relevant to the Eighth Amendment inquiry
but does not end it.”).
As an initial matter, defendants contend that Officer Bennett never used force against Robert
Simms or even had any physical contact with him. (Def. Mem. 7). This argument, however, is hotly
disputed and thus summary judgment must be denied. See, e.g., Allah v. Cox, No. 96-CV-1225, 1998
WL 725939, at *2 n.2 (N.D.N.Y. Oct. 9, 1998) (summary judgment denied where corrections officer’s
version of events is expressly contradicted by inmate).
Alternatively, defendants contend that the force used by Bennett—which defendants dismiss as
mere grabbing and pulling—was de minimis. (Def. Mem. 5–7). But the evidence shows that Simms was
shoved, pushed into a wall, swung around the search room, and punched—all while being threatened
with further beatings and death for approximately forty-five minutes in the search room. (Simms Aff.
¶¶ 12–13; Simms Dep. 25:24–26:16, 32:2–3; Simms Stmt., dated January 19, 1990).
27. The “non-moving party” is the person who did not make the motion to the court. Here, the
non-moving party is Simms, who is opposing Officer Bennett’s motion for summary judgment. Simms
wants the case to go forward to a trial, instead of being decided in Officer Bennett’s favor by a judge.
28. To “draw all permissible inferences” means that the court should take the facts and make
any and all favorable assumptions that the facts can support which would favor the non-moving party,
Simms. Because a judge ruling on summary judgment is ending the case before it goes to trial, the
judge must give “the benefit of the doubt” to the party opposing summary judgment.
29. “Wanton infliction of pain” means excessive, cruel, or immoral infliction of pain.
30 . “Objective” means as viewed by an outsider, sometimes referred to as the ordinary
“reasonable person.” “Subjective” means how a specific person viewed the incident.
31. “De minimis” is a legal term that means something has occurred in such a small quantity
that it is not significant, and there is thus no legal remedy. Here, Officer Bennett is arguing that
Simms’ physical injuries were de minimis. This means Officer Bennett is trying to claim that Simms
was not hurt badly enough for the law to take notice of his injuries.
Defendants cite a number of cases to support their argument that the use of force against Simms
was de minimis as a matter of law. None of these cases is on point. They are either decided on grounds
other than the use of force or involve momentary uses of force dramatically different from the repeated
and continuous physical assault and death threats inflicted on Robert Simms. See Reyes v. Koehler, 815
F. Supp. 109, 114 (S.D.N.Y. 1993) (summary judgment granted for defendant where inmate did not
allege malice or intent to cause harm and where defendant’s pushing plaintiff against wall was “a
momentary act, of such limited duration as to belie any inference of malicious or sadistic intent to
cause harm”) (internal quotation marks omitted); Harris v. Keane, 962 F. Supp. 397, 408 n.12 (S.D.N.Y.
1997) (squeezing inmate’s finger once is de minimis) (emphasis added); Candelaria v. Coughlin, 787 F.
Supp. 368, 374–75 (S.D.N.Y. 1992) (use of force de minimis where inmate did not allege any “repeated
or continuous grabbing” or any physical injury), aff’d, 979 F.2d 845 (2d Cir. 1992).
Simms suffered bruises to his arms, legs, and face. (Simms Aff. ¶ 20; Simms Dep. 54:10–24). Such
visible injuries are more than sufficient to sustain an Eighth Amendment action. See, e.g., Griffin v.
Crippen, 193 F.3d 89, 91–92 (2d Cir. 1999) (reversing district court’s determination that inmate’s
bruised shin and swelling over left knee were de minimis as a matter of law); Smith v. Marcellus, 917
F. Supp. 168, 171–73 (W.D.N.Y. 1995) (abrasion under left eye, small laceration near right ear, four
superficial skin tears on upper calf, and slightly swollen wrist, resulting from attack by corrections
officers, constitutes sufficient injury).
Defendants make much of the fact that plaintiff was not given medical treatment for his bruises.
(Def. Mem. 7–8). However, Simms asked for treatment. (Simms Aff. ¶ 1). Defendants cannot be relieved
of responsibility for the physical abuse of Robert Simms because they refused him medical treatment
for at least a week after abusing him. The provision of medical treatment, in any event, is merely one
fact to be weighed by the jury in assessing whether the physical force was more than de minimis. See
Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) (plaintiff’s failure to seek medical treatment for
injuries not fatal to Section 1983 claim).
(ii) Simms Can Recover for His Psychological Pain
Were there any question as to Bennett’s use of more than de minimis physical force on Simms—
and there should be none—Simms’ psychological pain provides a separate basis for recovery. The
intentional infliction of psychological pain can form the basis of a Section 1983 claim where the pain
suffered is more than de minimis. The Supreme Court has stated:
[T]he Eighth Amendment prohibits the unnecessary and wanton infliction of “pain,” rather than
“injury.” “Pain” in its ordinary meaning surely includes a notion of psychological harm. I am unaware of
any precedent of this Court to the effect that psychological pain is not cognizable32 for constitutional
purposes.
Hudson, 503 U.S. at 16 (Blackmun, J., concurring) (internal citation omitted); see also St. Germain
v. Goord, No. 96-CV-1560 (RSP/DRH), 1997 WL 627552, at *3–4 (N.D.N.Y. Oct. 8, 1997) (inmate’s
misery, anguish, psychological pain, and fear found actionable).
Defendants argue that verbal threats alone are not enough to bring a claim under Section 1983.
But this is not a case about a verbal argument. Simms was threatened while he was being assaulted.
Verbal threats, accompanied by some physical force or injury, can violate the Eighth Amendment. As
the case law makes clear, when threats are accompanied by conduct that increases the credibility of the
threats, an inmate’s constitutional rights are violated. See Northington v. Jackson, 973 F.2d 1518,
1522–24 (10th Cir. 1992) (alleged psychological injury resulting from sheriff’s placement of revolver to
inmate’s head, accompanied by threats to shoot, held more than de minimis); Burton v. Livingston, 791
F.2d 97, 100–01 (8th Cir. 1986) (guard drawing weapon and threatening to shoot while using racially
offensive language held more than de minimis use of force); Douglas v. Marino, 684 F. Supp. 395, 397–
32. “Cognizable” means that a court can recognize or identify something. Here, when the Court
declares that psychological pain is cognizable for constitutional purposes, the Court means that
psychological pain is something that the Court can take into account when considering a case alleging a
constitutional violation has taken place.
98 (D.N.J. 1988) (allegation that prison employee brandished knife while threatening to stab prisoner
stated Section 1983 claim).
It is clear even from the cases on which defendants rely that threats accompanied by physical
conduct violate the Eighth Amendment. In Jermosen v. Coughlin, for example, the court held that
verbal threats do not amount to a constitutional violation “unless accompanied by physical force or the
present ability to effectuate the threat.” 878 F. Supp. 444, 449 (N.D.N.Y. 1995) (emphasis added).
Similarly, in McFadden v. Lucas, the court stated, “mere threatening language” is not a constitutional
violation where the “plaintiff has nowhere alleged that he was physically assaulted [or that] any
touching of his person occurred at all.” 713 F.2d 143, 146 (5th Cir. 1983), cert. denied, 464 U.S. 998
(1983) (emphasis added); see also Harris v. Keane, 962 F. Supp. 397, 406 (S.D.N.Y. 1997) (“Allegations
of threats, verbal harassment or profanity, without any injury or damage, do not state a claim under
Section 1983.”) (emphasis added).
Unlike the cases cited by defendants—where the threats were unaccompanied by other conduct or
the plaintiff was not physically abused—Robert Simms was threatened with beatings and death even
as he was physically attacked. (Simms Aff. ¶ 12–13). The lack of any justification for these threats
indicates that their purpose was to inflict psychological harm. See infra Part B. Simms’ placement in
protective custody, where he might be assaulted without witnesses, only bolstered the threats’
credibility. See Hudspeth v. Figins, 584 F.2d 1345, 1347–48 (4th Cir. 1978) (guard’s threat that inmate
would be shot supported by subsequent transfer to work detail supervised by armed guards).
Simms’ psychological pain was not de minimis. During the search process, he experienced
humiliation, anxiety, and the terror of death or severe injury. Afterwards, fearing that Bennett, Lewis,
and Wright were going to beat or kill him, Simms sank into a deep depression and contemplated
suicide. Defendants’ argument that Simms’ suicidal thoughts should be disregarded because he could
not actually kill himself misses the point that he suffered psychological pain. (Def. Mem. 6 n.1). He
received psychological treatment from the Mental Health Clinic, which specifically noted that Simms
had been harassed by corrections officers and that he was “depressed.” (Mental Health Evaluation
Sheets). Simms also received counseling from Mullah Mark Denby and Dr. Margaret Phillips. To date,
he suffers from nightmares of the incident. (Simms Aff. ¶ 22; Simms Dep. 43:15–44:2, 49:18–51:18;
Simms letter, dated January 24, 1990). Thus, Simms’ mental pain is actionable.
Defendants characterize Simms’ psychological pain as not “rational” because (i) the threats were
conditional; (ii) an investigation was conducted; and (iii) the threats of beatings and killing were never
effectuated. (Def. Mem. 11–13). None of these arguments withstands scrutiny [close examination].
First, defendants’ suggestion that Simms’ fear of beating and death would only be justifiable had
Bennett phrased his threats in the present tense—”I’m going to kill you now”—and that Simms should
have taken comfort from the use of the conditional perfect in Bennett’s actual statement—”I should kill
you”—assumes that Simms has a high-level understanding of grammar and an ability to identify
different verb tenses under those circumstances.
Defendants’ second point, that Simms’ fear and terror during the assault on January 17, 1990,
should have been ameliorated [made better] by defendants’ investigation taking place on January 26,
1990, is similarly far-fetched. Even after the attack, Simms could have derived little comfort from an
internal investigation, given his previous experience with Penitentiary personnel. As to the merits of
the investigation, the quality of internal reports rests on credibility—a jury issue. See Payne v.
Coughlin, No. 82 Civ. 2284 (CSH), 1987 WL 10739, at *3 (S.D.N.Y. May 6, 1987).
Finally, as discussed above, verbal threats are indeed actionable where accompanied by physical
force. It is not necessary for Simms to have actually been beaten, shot, stabbed, or killed to maintain
this lawsuit. See St. Germain, 1997 WL 627552, at *3–4 (holding actionable inmate’s mental pain and
fear resulting from corrections officers’ threats to “beat the hell out of plaintiff” which never
materialized). Defendants rely on Doe v. Welborn, 110 F.3d 520 (7th Cir. 1997), in arguing that Simms’
fear of beating and death are not compensable since the threats never materialized. That reliance is
misplaced. Doe is a conditions-of-confinement case; this is a case about excessive use of force. As Doe
itself states: “What is necessary to show sufficient harm for purposes of the Cruel and Unusual
Punishments Clause depends on the claim at issue.” 110 F.3d at 524. Thus, while the psychological
harm of the plaintiff in Doe did not rise to “the extreme deprivations” required to make out a
conditions-of-confinement claim, Simms’ psychological injury is actionable because “a plaintiff in an
excessive force case need not allege significant injury in order to survive dismissal.” Id. (internal
citations and quotation marks omitted). Under the circumstances, the fear and other mental pain,
which Simms suffered due to Bennett’s threats of beating and death, accompanied by Bennett’s
aggressive physical actions, were clearly rational.
(b) Officer Bennett Acted Maliciously and Sadistically to Cause Harm
For claims of excessive force, the state of mind requirement turns on whether the prison official
applied the force “‘maliciously and sadistically to cause harm.’” Hudson, 503 U.S. at 6 (quoting Johnson
v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973), cert. denied, 414 U.S. 1033 (1973)). In making that
determination, the trier of fact is to consider the following factors: (i) “the extent of the plaintiff’s
injuries;” (ii) “the need for the application of force;” (iii) “the correlation [relationship] between that
need and amount of force used;” (iv) “the threat reasonably perceived by the defendants;” and (v) “any
efforts made by the defendants to temper [decrease] the severity of a forceful response.” Romano v.
Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (citing Hudson, 503 U.S. at 7).
(i) Plaintiff Simms Suffered Physical and Mental Harm
As a result of Bennett’s use of excessive force and threats of beating and death, Simms suffered
physical and mental injury. See supra Sections 1(b) and (c)
(ii) There Was No Need for Force or Death Threats
Where, as here, there is evidence that an attack by a corrections officer is unprovoked or without
sufficient justification, courts generally will deny summary judgment. See, e.g., Corselli v. Coughlin,
842 F.2d 23, 27 (2d Cir. 1988) (reversing summary judgment where jury could find defendant initiated
argument and struck inmate without justification); Moore v. Agosto, No. 93 civ. 4835, 1996 WL 125660,
at *2 (S.D.N.Y. Mar. 20, 1996) (summary judgment denied where plaintiff maintained defendants
initiated the confrontation), aff’d, 164 F.3d 618 (2d Cir. 1998).
Defendants claim Bennett was justified in using force because of Simms’ “admitted” refusal to
follow defendants’ instructions to submit to a strip-search, stand away from the bullpen bars, stand
where directed in the search room, and place his clothing in the designated place. (Def. Mem. 6–8).
Defendants’ arguments are undermined by the simple fact that Bennett attacked Simms prior to
the issuance of any of these instructions. The threats of violence began as Simms sat in the bullpen,
and the physical attack began as soon as Simms entered the search room. (Simms Aff. ¶¶ 8, 11; Simms
Dep. 19:20–20:3, 24:25–25:9, 25:14–25:14). Moreover, when Simms was ordered to strip, he complied.
(Simms Aff. ¶¶ 15, 18; Simms Dep. 32:15–21; Simms letter dated January 24, 1990).
The other so-called “instructions” illustrate the malice and sadism motivating Bennett’s attack. For
example, Bennett’s alleged “instruction” to stand away from the bullpen bars was in fact stated as
follows:
You revolting cradle robber. Get the hell out of my face, you pedophile. You nauseate
me! Get the hell away from the bars before I beat you senseless.
(Simms Aff. ¶ 9; Simms Dep. 21:2–15). In addition, the purported “instruction” to stand in a
particular spot was nothing but a malicious taunt. Bennett indeed told Simms to stand in a particular
spot. However, each time Simms moved to the place indicated, Bennett screamed, pointed to a different
spot, grabbed Simms’ arm, and swung him to the new location. (Simms Aff. ¶ 14; Simms Dep. 27:22–
27:2).
The expressions of disgust and hatred, which continued throughout the beating and accompanied
the death threats, were a product of Bennett’s personal feelings, not a good faith effort to maintain
discipline. The evidence is clear that Bennett knew Simms’ charges prior to the attack:
(1) Felding, the booking officer who prepared the booking sheet stating Simms’ charges, stood in
the search room while Simms was assaulted and searched (Booking Sheet; Bennett Dep.
31:10–25, 41:20–42:3, 49:3–7, 52:8–53:8; Def. Interrog. Resp. No. 7);
(2) Bennett, Lewis, and Wright admitted to talking about inmates’ charges (Bennett Dep. 56:17–
25; Lewis Dep. 26:2–18; Wright Dep. 41:16–19);
(3) Bennett admitted that he had access to inmates’ charges (Bennett Dep. 53:2–54:8; see also
Lewis Dep. 26:2–18); and
(4) The threats are replete with references of Simms being a child pornographer (Simms Aff. ¶¶ 7,
8, 9, 11, 14, 18; Simms Dep. 19:14–25, 25:6–7).
The fact that malice motivated Bennett’s acts against Simms are explained, in part, by Bennett’s
testimony that he finds sex offenses committed against minors more disgusting than other crimes
committed by inmates. (Bennett Dep. 58:3–10). Moreover, Bennett was emboldened by his “amused”
audience of corrections officers in the search room. (Simms Aff. ¶ 12; Simms Dep. 27:23–28:2; Def.
Interrog. Resp. No. 7).
Defendants contend that the force used was necessary to avoid the “potential” security risks
associated with a backlog of detainees waiting to be processed. (Def. Mem. 8). However, the “potential”
risk could never have been a reality here. The morning of January 17, 1990, only Simms and one other
detainee were waiting to be processed. (Simms Aff. ¶ 6).
(iii) The Amount and Type of Force Used Were Disproportionate to the Need
There is no correlation here between the need for force and the amount of force used. Given that
Simms offered no physical or verbal resistance nor refused any orders, Bennett’s pushing, shoving,
swinging, punching, and simultaneous threatening with death and severe injury were clearly excessive.
Even assuming arguendo (for the sake of argument) that Simms did refuse to strip, the
circumstances would not require the amount of physical force that Bennett used. Bennett himself
admitted that Simms was not violent during the strip-search. (Bennett Dep. 48:14). See Martinez v.
Rosado, 614 F.2d 829, 831–32 (2d Cir. 1980) (violation of prison rule and refusal to obey direct order do
not alone justify physical assault without evidence of physical resistance by inmate or other indication
that amount of force was proper); see also Corselli, 842 F.2d at 27 (even where there is evidence that
inmate may have failed to follow an order, officer can still be found to have used excessive or gratuitous
force). Moreover, it is hard to see how threatening to shoot, beat, and stab Simms would get Simms to
perform the desired action of stripping. At a minimum, this is a question for the jury. See, e.g., Trice v.
Strack, No. 94 Civ. 4470 (BSJ), 1998 WL 633807, at *3 (S.D.N.Y. Sept. 14, 1998) (whether force was
applied maliciously and sadistically left for jury where defendants struck, tackled, and kicked plaintiff
who may have precipitated conduct by waving underwear in one defendant’s face).
(iv) Bennett Could Not Reasonably Have Perceived Simms as a Threat.
It is clear that Bennett could not reasonably have seen Simms as a threat. On January 17, 1990,
Simms was 5’4” and approximately 135 pounds, as compared to the taller, more muscular defendant
Bennett. (Simms Aff. ¶ 8; Simms Dep. 19:6–9; Booking Sheet). In addition, while Bennett was
accompanied by Lewis and four to six other corrections officers in the search room, Simms was the only
inmate present. (Bennett Dep. 39:9–14, 48:3–11; Def. Interrog. Resp. Nos. 2, 7).
(v) Bennett Has Demonstrated No Effort to Temper His Response.
Finally, defendants have suggested no efforts by Bennett to temper the severity of the response. As
noted above, Bennett assaulted and threatened Robert Simms prior to any peaceful request that Simms
strip, and continued to do so for another 45 minutes.
E. B. DEFENDANT WRIGHT EVINCED DELIBERATE INDIFFERENCE WHEN HE FAILED
TO PROTECT ROBERT SIMMS FROM BENNETT’S PHYSICAL ASSAULT AND
ACCOMPANYING DEATH THREATS.
Defendants argue summary judgment should be granted for Sergeant Wright because (i) Wright
did not participate in or witness the physical attack and death threats directed toward Simms, and (ii)
Wright took adequate steps to ensure that Simms’ constitutional rights were not violated. (Def. Mem.
5–6). However, summary judgment is not appropriate because Wright acted with deliberate
indifference when he failed to protect Simms from Bennett’s physical assault and death threats.
The legal standard is that a supervisor may be liable under Section 1983 for the actions of his
supervisees where, as here, the supervisor exhibits “deliberate indifference” to an inmate’s safety.
There is no requirement of direct participation in the constitutional violation. See, e.g., Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994). Deliberate indifference exists where (1) there is a substantial risk of
serious harm to an inmate, and (2) the prison official knows of the risk and disregards it by failing to
take steps to prevent harm to the inmate. See Farmer, 511 U.S. at 834; see also Hayes v. New York City
Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996).
i. Robert Simms was at a substantial risk of serious harm.
Here, the first requirement for a finding of deliberate indifference, “substantial risk of serious
harm,” is clearly met. A violent assault perpetrated without justification and solely for the purpose of
causing harm creates a substantial risk of serious harm. See supra I.B.
(b) Wright knew of and disregarded the harm to Simms by not acting to prevent it.
The second requirement of deliberate indifference, culpable intent, is also met. The evidence
establishes Wright had knowledge that Robert Simms faced a substantial risk of serious harm on the
morning of January 17, 1990, regardless of whether Wright actually witnessed the physical abuse and
death threats. Specifically:
(1) Wright admitted in deposition that he proceeded into the search room after hearing “loud
screaming” coming from that room. (Wright Dep. 26:23–28:23, 48:23–25, 54:4–6). Wright’s
Incident Report, stating that Wright “heard noise” coming from the search room, confirms this.
(Incident Report of Sgt. Wright).
(2) Once the strip-search was completed, Simms told Wright that Bennett physically assaulted
him and threatened him with his life. (Simms Aff. ¶ 16; Simms Dep. 37:13–22).
(3) Wright admitted in deposition that Simms had filed a complaint about Officer Bennett.
(Wright Dep. 13:02–16:20).
The evidence further establishes that Wright disregarded the substantial risk of serious harm that
he knew Simms faced. Even after hearing suspicious noises coming from the search room and being
told that Bennett had attacked Simms, Wright did not immediately investigate the situation,
reprimand (warn or punish) Bennett, or even stay in the search room until the booking and search
process was complete. After Simms told Wright he needed Wright’s help, Wright told Simms to “shut
the hell up and take off your clothes.” (Simms Dep. 38:18–20). Then, after specifically being informed of
the abuse, Sergeant Wright merely told Simms, “Well, this is jail!” and walked out of the search room.
(Simms Aff. ¶ 17; Simms Dep. 39:12–14; Simms letter, dated January 24, 1990). Given the evidence
indicating that Wright had knowledge of the risk Simms faced, this indifferent response cannot be held
reasonable as a matter of law.
That Wright failed to prevent any further harm to Simms is proven by the fact that Wright left
Simms in the room with Bennett to suffer further abuse. Simms was indeed subjected to more abuse
when Wright left the search room. Once Wright exited, Bennett shoved Simms, sending him reeling
across the search room. Bennett screamed, “You are a piece of crap! You are a disgusting kiddie porn
loving animal who deserves to die. I am going to make sure someone’s going to kill you. Your days are
numbered.” (Simms Aff. ¶ 19; Simms Dep. 34:9–15; Compl. Pt. III at 6).
The failure to intervene to prevent harm to an inmate constitutes deliberate indifference,
subjecting the supervisor to liability. See, e.g., Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995)
(summary judgment denied where defendants were present but failed to intervene to prevent another
prison official from firing a shotgun at inmate); Buckner v. Hollins, 983 F.2d 119, 122–23 (8th Cir.
1993) (where defendant failed to prevent prison official from beating plaintiff, jury could find deliberate
indifference for defendant’s failure to intervene); see also Hayes, 84 F.3d at 621 (reversing summary
judgment for corrections officers where plaintiff advised officer he was in danger prior to attack, and
record revealed no protective measures taken); Livingston v. Rivera, No. 94-CV-5319, 1999 WL 26902,
at *3 (E.D.N.Y. Jan. 20, 1999) (officer’s statement and other circumstances, suggesting defendant had
knowledge that inmate was exposed to imminent serious harm, precluded summary judgment). Here,
there is substantial evidence that Wright disregarded a clear and obvious risk of harm to Simms. As a
result, Simms suffered further physical assault and threats of beating and death. Wright’s failure to
take any steps—much less any reasonable ones—to prevent this abuse makes him liable, and at
minimum, precludes summary judgment in his favor.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment should be denied.
Dated: _______________________
<<date submitted>> <<City, State>>
Respectfully submitted,
<<Attorney Firm Name>>33
By:______________________
Rachel A. Felder (RF-XXXX)34
<<Attorney’s Address>>
<<City, State>>
<<Phone number>>
Attorney for Plaintiff
Robert K. Simms
33. If you are submitting your memorandum of law pro se, you should put your name here.
34. If you are submitting your memorandum of law pro se, you should put your name, address,
and contact information (including your inmate number, if applicable,) here.
Manual
Chapter 7:
Freedom of Information

8th Edition 2009
LEGAL DISCLAIMER
A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia Human Rights Law
Review. The law prohibits us from providing any legal advice to prisoners. This information is not intended
as legal advice or representation nor should you consider or rely upon it as such. Neither the JLM nor any
information contained herein is intended to or shall constitute a contract between the JLM and any reader,
and the JLM does not guarantee the accuracy of the information contained herein. Additionally, your use of
the JLM should not be construed as creating an attorney-client relationship with the JLM staff or anyone at
Columbia Law School. Finally, while we have attempted to provide information that is up-to-date and useful,
because the law changes frequently, we cannot guarantee that all information is current.
CHAPTER 7
FREEDOM OF INFORMATION*
A. Introduction
This Chapter describes laws that allow you to request copies of government documents and files. There
are several reasons why these documents might be useful to you: you may want to review copies of your files
and rap sheets to make sure they are accurate and complete; you may want to get copies of internal
memoranda and manuals that lay out procedures prison officials must follow; and, if you are preparing to
sue the government, you can use a freedom of information request to gather support for your case.
All fifty states and the District of Columbia have passed some sort of state open records laws. See
Appendix A. Many of these laws are modeled on the federal Freedom of Information Act. Only state freedom
of information laws grant access to state and local government records; the federal Freedom of Information
Act does not apply to state or municipal agencies, including state correctional systems.
There are specific procedures that you must follow depending on the type of information you are
requesting. Each agency has a different procedure for accessing information. It would be impossible in this
Chapter to outline the procedures for every agency. Instead, this Chapter will give you an overview as to the
law itself and what rights you have under the Freedom of Information Act (“FOIA”), the Privacy Act (“PA”),
and the New York Freedom of Information Law (“FOIL”). Be sure to check the specific procedures for your
particular request before filing an information request.
Part B of this Chapter outlines the laws that allow you to get documents from the federal government.
Part C discusses New York’s Freedom of Information Law. Prisoners in other states should still read Part C
to get an idea of the types of documents prisoners most often request, and look carefully at the provisions of
their state’s freedom of information statute. Part D contains an address for the Federal Citizen Information
Center—if you need help figuring out which federal agency to contact, write or call the Federal Citizen
Information Center for help. Appendix A contains a list of state freedom of information laws. Appendix B of
this Chapter contains a form to use to request information from the Department of Justice (“DOJ”) and other
federal agencies. Appendix C contains sample letters for filing a FOIA/PA request and/or appeal. Appendix D
lists addresses of organizations and federal governmental agencies that can provide more help.
B. The Federal Freedom of Information Act
1. Overview & History
Your right to access the files of the United States government is established by two federal laws: the
Freedom of Information Act, 1 enacted in 1966, and the Privacy Act of 1974. 2 These laws have been
tremendously successful in enabling public access to government files. The Freedom of Information Act
(“FOIA”) allows you to request all public documents, including records that relate to you. The Privacy Act
(“PA”) deals only with personal files. It gives you the right not only to look at your own records, but to
correct, change, or remove records that contain incorrect, irrelevant, or incomplete information about you. If
your request is incorrectly denied or ignored, you can sue under both laws in federal court.
FOIA and the PA implement one of the basic principles of democracy—the public’s right to know what
its government is doing. As written, FOIA gives access to all government records unless they fall into one of
nine narrowly defined categories of materials that agencies are allowed, but not required, to withhold.3 In
practice, however, there are often bureaucratic roadblocks to getting records, and you will probably not
always get immediate access to everything you think you are entitled to.
2. What Agencies Are Covered & What Records Are Available
FOIA applies to documents held by agencies in the executive branch of the federal government. These
agencies include military departments, cabinet departments, including the Department of Justice (which
* This Chapter was written by Benjamin Van Houten based in part on previous versions by Laura Burdick, Geraldine R.
Eure, Susan Widule, and Saleemah Ahamed.
1. 5 U.S.C. § 552 (2000).
2. 5 U.S.C. § 552a (2000).
3. 5 U.S.C. § 552(b) (2000). These exemptions are discussed later in this Part.
controls both the Federal Bureau of Investigation (“FBI”) and federal prisons), departments of the Executive
Branch (such as the Defense Department), independent federal agencies (such as the Environmental
Protection Agency (“EPA”)), and government-controlled corporations (such as the United States Postal
Service (“USPS”)). FOIA does not apply to documents held by federal courts or by Congress.4 FOIA also does
not apply to documents held by “the President’s immediate personal staff or units within the Executive
Office whose sole function is to advise and assist the President.”5 FOIA does not apply to state or local
governments, including state prison systems; these are usually covered by separate laws.6
FOIA allows you to look at almost all records under a federal agency’s control.7 But, some records may be
exempt, in which case you will not be allowed access despite FOIA. Part B(3) of this Chapter, “Exemptions to
Record Availability,” discusses the specific exemptions. The Supreme Court has defined an “agency record”
as a document that is (1) either created or obtained by the agency, and (2) under control of the agency at the
time of the FOIA request.8 Agency records may include many different types of information, such as papers,
reports, letters, films, computer tapes, photographs, and sound recordings in the possession, custody, or
control of an agency. In 1996, Congress made clear that electronically stored information should be included
within the definition of a “record” under FOIA.9 In addition, you may request records in any form or format
in which the agency keeps them, and the agency must make reasonable efforts to meet your request.10
However, FOIA does not allow you to demand answers to questions. The information must already be
contained in an existing agency record. An agency is not obliged to create a new record, collect information it
does not have, or research or analyze data to meet your request. For this reason, when requesting records,
you must “reasonably describe” the material you want.11 This does not mean you need to know a specific
document or file number, but your request should be specific enough that a government agency employee
familiar with the subject area of your request can locate the records with a reasonable amount of effort. Also,
a records request under FOIA and the PA must be in writing, and must include proper identification.
The PA grants you the power to look at any record within an agency’s files that pertains to you, unless
the agency has published formal notice that the system of records is exempted by law from public access.12
Under the PA, as long as you are either a U.S. citizen or an alien lawfully admitted for permanent residence
(“LPR”), you may apply to look at any records about yourself that are kept in the executive branch of the
federal government.13 In other words, a U.S. citizen or LPR can look at any records that are filed according
4. 5 U.S.C. §§ 551(1)(A)–(B) (2000).

5. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S. Ct. 960, 971, 63 L. Ed. 2d 267,
285 (1980) (finding that telephone notes taken by Kissinger in his capacity as Assistant to the President did not
constitute “agency records” under FOIA); see also Armstrong v. Executive Office of the President, 1 F.3d 1274, 1296 (D.C.
Cir. 1993) (holding that presidential records are not subject to FOIA, but declining to ascertain whether the guidelines
defining presidential materials were appropriate), rev’d on other grounds, 90 F.3d 553 (D.C. Cir. 1996); Meyer v. Bush,
981 F.2d 1288, 1293 (D.C. Cir. 1993) (holding that the determination of whether an entity is an “agency” depends on how
close operationally the group is to the President, the nature of its delegation from the President, and whether it has a
self-contained structure); Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995) (holding that the Executive Residence
is not an agency under FOIA as it does not exercise independent authority).
6. State government records can be obtained using state freedom of information laws. The New York Freedom of
Information Law is discussed in Part C of this Chapter. See Appendix A of this Chapter for a list of the freedom of
information laws of all 50 states and the District of Columbia.
7. 5 U.S.C. § 552(a)(3) (2000).
8. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 146, 109 S. Ct. 2841, 2849, 106 L. Ed. 2d 112, 126 (1989)
(holding that court opinions in agency files are “agency records”).
9. 5 U.S.C. § 552(f)(2) (2000) reads: “For purposes of this section, the term ... ‘record’ and any other term used in
this section in reference to information includes any information that would be an agency record subject to the
requirements of this section when maintained by an agency in any format, including an electronic format.” This
language includes computer disks, CD-ROMs, microfiche, microfilm, and all other digital or electronic media.
10. See Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985) (holding that a department must only
make reasonable, but not exhaustive, efforts to respond to a FOIA request); Maynard v. CIA, 986 F.2d 547, 559 (1st Cir.
1993) (holding that when the diligence of an agency’s attempt to respond to a FOIA request is at issue the agency should
issue an affidavit which should describe how the search was conducted and how the agency’s filing system would make
further search difficult). The new statute rejects Dismukes v. Dep’t of the Interior, where the court held that an agency
“has no obligation under the FOIA to accommodate the plaintiff’s preference.” 603 F. Supp. 760, 763 (D.D.C. 1984).
11. 5 U.S.C. § 552(a)(3) (2000).
12. For exemptions, see 5 U.S.C. §§ 552a(j)–(k) (2000).
13. 5 U.S.C. § 552a(a)(2) (2000). This is unlike FOIA, which gives access rights to “any person.” 5 U.S.C. §
552(a)(3) (2000).
to his or her name, social security number, or some other personal identifier. Detailed information about
how to access agency records can be found in Part B(4) of this Chapter, “How to Make Your Request.”
3. Exemptions to Record Availability Under FOIA and the PA
FOIA exempts nine categories of materials; in other words, the law states the government does not need
to disclose material fitting into any one of these nine categories. It also states, however, an agency may not
withhold an entire file or document just because part of it is exempt.14 The agency can only withhold those
parts of the record falling within the exemption. In addition, FOIA exemptions are not mandatory. Agency
officials can choose to waive the exemptions and release the material(s) even if they fall within one of the
nine categories, unless another statute specifically limits or prohibits disclosure of that kind of information.
The most common of the nine FOIA exemptions are:15
(1) Records that are “properly” secret in the interests of national defense or foreign policy;
(2) Documents “related solely to the internal personnel rules and practices of an agency.” In practice,
this is a very limited exemption because if a person outside the agency can show a legitimate interest
in the records, the material cannot be of “solely” agency interest;
(3) Matters “specifically exempted from disclosure” by other federal statutes. In order for this claim of
exemption to stand up in court, the agency must point to a statute that either (a) requires that the
category of information must be withheld, or (b) establishes particular criteria for withholding
information. The agency must also show that the material it is withholding falls under the statute.
This exemption is complicated by the fact that there is no complete list of statutes that meet these
criteria and some statutes have their own provisions governing disclosure and disclosure procedures
and exemptions. However, you should always make your request for records under FOIA;
(4) “Trade secrets and commercial or financial information” given to the government with the
expectation that they would be kept secret;
(5) “Inter-agency or intra-agency memoranda or letters.” This exemption protects communications that
are meant to be distributed only within the government and that contain advice, opinions, and
recommendations that officials offer to each other. Congress enacted this exemption so as not to
inhibit decision-making within agencies. This exemption may not be used to withhold facts, agency
decisions, or policies;
(6) “Personnel and medical and similar files” which could not be released to someone other than the
subject of the file without resulting in an “unwarranted invasion of personal privacy.” This
exemption balances an individual’s interests of privacy against the public’s interest in knowing.16
The files must contain sufficiently intimate details about someone to claim an invasion of privacy.
Although FOIA generally favors disclosure, courts regularly uphold the nondisclosure of information
to unconcerned parties about marital status, legitimacy of children, welfare payments, family fights
and reputation,17 medical details and conditions,18 “rap sheets,”19 and the incarceration of United
States citizens in foreign prisons;20 and
14. 5 U.S.C. § 552(b) (2000).

15. 5 U.S.C. §§ 552(b)(1)–(7) (2000).
16. See U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 603 n.5, 102 S. Ct. 1957, 1962 n.5, 72 L. Ed. 2d
358, 365 n.5 (1982) (explaining that although citizenship information is “a matter of public information” and therefore
less likely to be exempted from disclosure under Exemption 6, status as a “public record” alone does not prevent the
record’s disclosure from being an invasion of personal privacy).
17. See Rural Hous. Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 76–77 (D.C. Cir. 1974) (holding that an
investigation report containing detailed personal and medical information of persons allegedly discriminated against by
the Department of Agriculture were “within the class of similar files” and its disclosure depended on whether it would
result in a “clearly unwarranted invasion of personal privacy”).
18. See McDonnell v. United States, 4 F.3d 1227, 1254 (3d Cir. 1993) (noting that a “living individual” may have a
“strong privacy interest in withholding his medical records” that outweighs a public request.”); Rural Hous. Alliance v.
U.S. Dep’t of Agric., 498 F.2d 73, 77 (D.C. Cir. 1974) (holding that Exemption 6 of FOIA covered a USDA report that
included, among other things, individual’s medical condition and history); Brown v. FBI, 658 F.2d 71, 74–75 (2d Cir.
1981) (upholding denial of plaintiff’s request for FBI files that included an individual’s possible involvement with illegal
drugs as information that falls within Exemption 6).
19. See U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 780, 109 S. Ct. 1468,
1485, 103 L. Ed. 2d 774, 800 (1989) (holding that a third-party request for an individual’s rap sheet when the request
does not seek “official information” about a government agency is an “unwarranted” invasion of privacy).
20. See Harbolt v. Dep’t of State, 616 F.2d 772, 774 (5th Cir. 1980) (holding disclosure of names and addresses of
(7) All “records or information compiled for law enforcement purposes.”
In 1986, Exemption 7 was amended, effectively broadening the exemption to include more records or
information.21 For example, law enforcement manuals now readily satisfy the exemption requirements and
may not be subject to disclosure. The amendments also include three new categories of records or
information that may be protected from disclosure (see provisions (4), (5) and (6) below). These provisions
apply if the release could reasonably be expected to:
(1) “Interfere with [law] enforcement proceedings.” This includes federal and state court proceedings. If
release of records could, for example, enable targets of investigations to avoid detection or would
prematurely reveal evidence or strategy in the government’s case, then it can be properly excluded;22
(2) Deprive a person of a fair trial;
(3) “Constitute an unwarranted invasion of personal privacy.” The majority of courts have held the
identities of law enforcement personnel exempt unless you can show proven, significant misconduct
on the part of the investigators;23 in other words, the names of law enforcement personnel will
usually not be revealed;
(4) “Disclose the identity of a confidential source, including a state, local, or foreign agency or authority
or any private institution which furnished information on a confidential basis.” Confidentiality
includes any information supplied by a confidential source. If the information is of a confidential
nature, given to the agency by one source only, and collected in the course of a criminal investigation,
agencies are permitted to withhold all of the information provided by that source;
(5) Disclose investigative techniques, procedures or guidelines for law enforcement investigations or
prosecution. This exemption is limited to techniques, procedures or guidelines not generally known
to the public, or the usefulness of which is not generally known to the public; and
(6) “Endanger the life or physical safety of any individual.” This is the most frequently claimed
exemption. In order to properly claim the law enforcement exemption, the government must show
that the withheld material relates directly to legitimate “law enforcement purposes.”24
(7) In addition to federal law enforcement, this exemption may also apply to records compiled to enforce
state law.25
While FOIA requesters are generally sent copies of the information they have requested, there may be
instances when the agency may only allow you to see the documents, rather than have them. In Tax Analysts
v. United States Department of Justice,26 the court noted an agency need not respond to a FOIA request for
copies of documents when the agency itself has provided an alternative way of accessing the same
information.27 For example, if an agency makes the requested information available in a public reading
room, this is enough to satisfy that agency’s obligation under FOIA.28 Therefore, if an agency declines to
send you copies of the requested information, it must provide you with an alternative form of access.29
U.S. citizens imprisoned in foreign countries on narcotics offenses would be an unwarranted invasion of their privacy).
21. 5 U.S.C. § 552(b)(7) (2000); see U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 756 n.9, 109 S. Ct. 1468, 1473 n.9, 103 L. Ed. 2d 774, 785 n.9 (1989) (explaining that the shift from “the would
constitute” standard to “the could reasonably be expected to constitute” standard “represents a considered congressional
effort ‘to ease considerably a federal law enforcement agency’s burden in invoking [Exemption 7]’”).
22. See Manna v. U.S. Dep’t of Justice, 51 F.3d 1158, 1164–65 (3d Cir. 1995) (affirming a district court’s finding
that government records were properly denied under Exemptions (b)(7)(A) and (D) because disclosure of such
information would interfere with future prosecutions and deny sources confidentiality that they were assured).
23. See, e.g., Massey v. FBI, 3 F.3d 620, 624 (2d Cir. 1993) (holding that government employees have a privacy
interest in concealing their identities).
24. See, e.g., Ferreira v. Drug Enforcement Admin., 874 F. Supp. 15, 17 (D.C. Cir. 1995) (holding that the DEA
properly withheld the names and identities of agents when the disclosure could reasonably be expected to endanger their
life or physical safety).
25. The other two rarely used exceptions to FOIA concern government regulation of financial institutions and
geological/geophysical information. Please refer to the statute, 5 U.S.C. §§ 552(b)(8)–(9) (2000), for more information.
26. Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060, 1067 (D.C. Cir. 1988) (holding that an agency may not
avoid producing its records in response to a FOIA request by directing the requester to a public source outside the
agency that has the same information), aff’d, 492 U.S. 136, 109 S. Ct. 2841, 106 L. Ed. 2d 112 (1989).
agency that has the same information), aff’d, 492 U.S. 136, 109 S. Ct. 2841, 106 L. Ed. 2d 112 (1989).
28. Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060, 1067 (D.C. Cir. 1988) (holding an agency may not avoid
producing its records in response to a FOIA request by directing the requester to a public source outside the agency that
The PA also has exemptions to disclosure. These exemptions are much broader than the FOIA
exemptions. The nine PA exemptions are:30
(1) Material “maintained by the Central Intelligence Agency” (“CIA”);
(2) Material maintained by a law enforcement agency. This includes police, corrections, and
prosecutors’ offices. To be exempt, the record by an agency under this section must consist of:
(3) information compiled to identify individual criminal offenders and alleged offenders;
(4) information compiled for criminal investigation, including reports of informants and investigators; or
(5) reports identifiable to an individual that were compiled at any stage of the process of enforcement of
the criminal laws;
(6) Material that is “properly” secret in the interests of national defense or foreign policy;
(7) Material compiled for criminal investigative law enforcement purposes by agencies whose principal
function is not law enforcement;
(8) Material contained in Secret Service record systems, relating to protection of the President and
others whom the Secret Service protects;
(9) Material required by statute to be maintained and used solely as statistical records;
(10)Material that identifies individuals whose identity was promised concealment when they provided
information used in conducting background checks of job applicants to and employees of the federal
government;
(11)Material related to testing or examination used solely to determine individual qualifications for
appointment or promotion in the federal service; or
(12)Material that would identify individuals whose identity was promised concealment when they
provided information used in promotion decisions for members of the armed forces.
You should always request information under both FOIA and the PA. Agencies may not withhold
information that is exempt under one statute but not exempt under the other.31 In other words, “[I]f a FOIA
exemption covers the documents, but a Privacy Act exemption does not, the documents must be released
under the Privacy Act; if a Privacy Act exemption but not a FOIA exemption applies, the documents must be
released under FOIA.”32
Do not let the exemptions stop you from making requests, as the records may be available under an
agency or court interpretation. In addition, agencies are not required to withhold information just because a
particular exemption could be applied. Agency officials can choose to waive the exemptions and release the
material(s) you requested. If information is withheld, you can challenge that decision by writing an
administrative appeal letter or filing a lawsuit.
4. How to Make Your Request for Information from the Department of Justice
As noted above, every agency has a very specific procedure that must be followed in order for a FOIA or
PA request to be granted. This Subsection will only describe the procedure that must be followed if you are
seeking to request information from the Department of Justice (“DOJ”). For information from other agencies,
or if you do not know which agency holds the information you want, you can consult any government
directory or the “United States Government Manual.”
To order a $27 copy of the “United States Government Manual,” send requests to:
Superintendent of Documents
P.O. Box 371954
Pittsburgh, PA 15250-7954
has the same information), aff’d, 492 U.S. 136, 109 S. Ct. 2841, 106 L. Ed. 2d 112 (1989); see also Oglesby v. U.S. Dep’t of
the Army, 920 F.2d 57, 70 (D.C. Cir. 1990) (finding an agency is not required to mail information in response to a FOIA
request when that information has been made available to the public in another format); Grunfeld & Harrick v. U.S.
Customs Serv., 709 F.2d 41, 42–43 (11th Cir. 1983) (holding an agency was not required to mail documents in response
to a FOIA request when the documents were available for viewing and copying at the custom house in Puerto Rico).
agency that has the same information).
30. 5 U.S.C. §§ 552a(j)–(k) (2000).
31. 5 U.S.C. §§ 552a(t)(1)–(2) (2000).
32. Martin v. Office of Special Counsel, 819 F.2d 1181, 1184–89 (D.C. Cir. 1987) (denying disclosure of information
requested by Appellee as such disclosure was exempted by both the PA and the FOIA).
You can also call (202) 512-1800 or access http://www.gpoaccess.gov/gmanual on the Internet.
In general, if you request information from the DOJ, you should try to send your request to the specific
division that has the records you want. If you are uncertain about which division to write, you can send your
request to the DOJ’s FOIA/PA Mail Referral Unit, and someone in that division will forward your letter to
the division they think most likely to have the information you want. All requests should be in writing.
Send requests to:
FOIA/PA Mail Referral Unit, Justice Management Division
U.S. Department of Justice, Room 114 LOC
950 Pennsylvania Ave., N.W.
Washington, DC 20530-0001
Attn: FOIA Request
The rest of this Part addresses how to make a request for information from two divisions of the DOJ: the
Federal Bureau of Prisons (“BOP”) and the FBI. It discusses the fees that you will be charged for making
such requests, the types of responses you may receive from either the FBI or the BOP, and the appeals
process, which may be useful if your request is denied.
(a) Requesting Information from the Federal Bureau of Prisons
The BOP maintains records on current and former prisoners of the federal penal and correctional
institutions as well as records relating to the administration of the agency. This Subsection will describe (i)
how to request information from your institution and (ii) how to request information from the BOP under
FOIA and the PA.
(i) Requesting information from your institution33
If you would like access to your Inmate Central File, the BOP encourages you to request this information
from your institution. Many records within the Inmate Central File can be disclosed without you filing a
FOIA request. These include records relating to your sentence, detainer, participation in programs,
classification data, parole information, mail, visits, property, conduct, work, release processing, and general
correspondence. You can also request access to some medical records from your institution.
The Warden of your institution should have designated a staff member to receive requests for access to
these records. In order to request access to your Inmate Central File or medical records, you should submit a
request to this person, who must, as promptly as is practical, schedule a time for you to review your file.
Staff members must tell you if there are documents in your Inmate Central File or medical records
withheld from disclosure. If you would like access to these documents, you should make a FOIA request.
(ii) Requesting information from the BOP under the Privacy Act
To file a request for information from the BOP under FOIA, including any information withheld from
your review of your Inmate Central File or your medical records, or any other records, your request should:34
(1) Be in writing;
(2) Be clearly marked “Freedom of Information Act/Privacy Act Request” on the front of the letter and
the envelope;
(3) Clearly describe the records you seek, including the approximate dates covered by the records;
(4) Include your full name, current address, date of birth, place of birth, and social security number (if
you have one); and
(5) Include your Federal register number (optional).
You must also verify your identity in one of the following ways:
(1) Complete and sign Form DOJ-361 (See Appendix B);
33. All of the information regarding making requests from your institution can be found in Bureau of Prisons
Program Statement 1351.05, issued on September 19, 2002, available at
http://www.bop.gov/DataSource/execute/dsPolicyLoc by clicking on General Administration and Management and then
by clicking on Document Name: “Release of Information.”
34 . Bureau of Prisons Program Statement 1351.05, issued on September 19, 2002, available at
http://www.bop.gov/DataSource/execute/dsPolicyLoc (click on General Administration and Management; then click on
Document Name: “Release of Information”); U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,”
http://www.usdoj.gov/oip/04_3.html (last visited Sept. 17, 2008).
(2) Have the signature on the request witnessed by a notary; or
(3) Include the following statement before the signature on the requested letter: “I declare under
penalty of perjury that the foregoing is true and correct. Executed on [date].”
The DOJ has stated that “if you request information about yourself and do not follow one of the
procedures [described above], your request cannot be processed.”35 If you are seeking personal information,
make sure that you provide the necessary identification information.
If you are requesting information under the PA about someone other than yourself, the information will
not be disclosed unless:
(1) You provide a statement by the other person specifically authorizing the release of information; the
statement must be signed by that person and either witnessed by a notary or include a declaration
made under penalty of perjury; or
(2) You provide evidence that the subject of the request is deceased, such as a death certificate, or some
comparable proof of death such as a newspaper obituary.
Having completed these steps, you may mail your request to:36
Freedom of Information Act/Privacy Act Section
Office of the General Counsel, Room 841
Federal Bureau of Prisons
320 First St., N.W.
Washington, DC 20534
If you have access to the Internet, you may also submit a request on-line through the BOP website. The
website can be accessed at http://www.bop.gov/foia/submit.jsp.
(b) Requesting Information from the FBI
The FBI collects evidence in legal cases in which the United States is or may be an interested party and
investigates violations of certain federal statutes.37 Requests for information under FOIA and/or under the
PA from the FBI should be addressed to:
David M. Hardy, Chief
Record/Information Dissemination Section, Records Management Division
Federal Bureau of Investigation
935 Pennsylvania Avenue, N.W.
To request any information from the FBI, under either FOIA or the PA, your request must:
(1) Be in writing;
(2) Provide your full name;
(3) Provide your date and place of birth; and
(4) Either be notarized by a notary public, or include the following statement before the signature on the
letter: “I declare under penalty of perjury that the foregoing is true and correct. Executed on [date].”
If you are requesting information about someone else and that person is living, your request must
include a waiver signed by that person and verified by a notary public. You must also include the person’s
full name and date and place of birth. If you are requesting information about someone who is deceased, you
must provide the name of the deceased, and proof of death, either in the form of an obituary, death
certificate, or published record that indicates the person is, in fact, dead.38
(c) Fees
35 . U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,” updated May 2006,
http://www.usdoj.gov/04foia/referenceguidemay99.htm#how (last visited Mar. 9, 2008).
36 . U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,” updated May 2006,
http://www.usdoj.gov/04/foia/referenceguidemay99.htm#how (last visited Mar. 9, 2008).
37. See 28 U.S.C. § 531–540(C) (2000) (describing various crimes that the FBI is authorized to investigate, for
example, crimes involving government officers and employees and killing of state or local law enforcement officers).
38. Telephone Interview with staff member of the Federal Bureau of Investigations (Nov. 13, 2006).
Within a reasonable amount of time after your request, staff should provide you with copies of the
disclosable documents from your Inmate Central File and/or medical records. Copies cost ten cents per page.
In addition, you will be charged a fee for the search time required to process your request. The cost of search
time is $2.25 per fifteen minutes for clerical staff, $4.50 per fifteen minutes for professional staff, and $7.50
per fifteen minutes for managerial staff. You will not be charged for the first 100 pages of duplication or the
first two hours of search time, and you will only be charged for fees that total above $8.00.39
When you file either a FOIA or PA request with the DOJ, the Department assumes that you are willing
to pay fees up to $25. In the majority of requests made to the DOJ, no fees are ever charged.40 However, if
you are not willing or able to pay $25, you should state the limit you are able to pay in your request letter. If
the DOJ estimates that your fees will be more than $25, they will give you the opportunity to make a
cheaper request or ask you to commit to pay the estimated amount before your request is processed.
According to the DOJ website, “[y]ou ordinarily will not be required to actually pay the fees until the records
have been processed and are ready to be sent to you.”41
The DOJ charges for copies (ten cents per page), the cost of computer print-outs and tapes, and labor.
The cost of labor is $4.00 per fifteen minutes for clerical staff, $7.00 per fifteen minutes for professional staff,
and $10.25 per fifteen minutes for managerial staff. The DOJ will not charge you for the first two hours of
search time or the first 100 pages of copies. If the total fee is less than $14, the DOJ will not charge any fee.
You can also request a fee waiver. To get a fee waiver, you must show you are requesting the information
to benefit the public, not your own interests.42 Inability to pay is not a basis for a fee waiver.43 If you are
indigent, you can attempt to request a fee waiver for that reason; but, the DOJ usually denies such requests.
(d) Initial Response to Requests
Once a division of the DOJ has processed your request and any fee issues have been resolved, the
division will send you a response. This response may either be (1) the information you requested, (2) some of
the information you requested and a letter explaining why part of your request was denied, or (3) a letter
explaining why your entire request was denied. If information is being withheld, the letter will tell you
whether the information is being withheld pursuant to one of the exemptions to the PA or FOIA.
The BOP should respond to your request within twenty business days, not counting Saturdays, Sundays,
and legal holidays. The twenty-day period begins when the request is received by the BOP’s FOIA office. The
BOP may extend the initial response time an additional ten business days when one of the following applies:
(1) Records must be collected from field offices;
(2) A “voluminous” quantity of records must be located, compiled, and reviewed in response to the
request; or
(3) The request requires consultation with another agency that has a substantial interest in the
responsive material, or among two or more other DOJ Divisions.44
(4) When the BOP needs more time to process your request, they will inform you in writing and give you
the opportunity to modify your request.
5. What to Do if Your Request is Denied
If your initial request is denied, you should first file an administrative appeal with the agency from
which you are requesting information. If your administrative appeal is also denied, you can file a lawsuit.
39 . See Bureau of Prisons Program Statement 1351.05, issued on September 19, 2002, available at
http://www.bop.gov/DataSource/execute/dsPolicyLoc by clicking on General Administration and Management and then
by clicking on Document Name: “Release of Information.”
40. U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,”
http://www.usdoj.gov/04foia/referenceguidemay99.htm#fees (last visited Mar. 9, 2008).
41 . U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,”
http://www.usdoj.gov/04foia/referenceguidemay99.htm#fees (last visited Mar. 9, 2008).
42.U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,”
http://www.usdoj.gov/04foia/referenceguidemay99.htm (last visited Mar. 9, 2008).
(a) Filing an Appeal
You should file an appeal if you are not satisfied with the response you have received to your FOIA
request. Your appeal should be:
(1) In writing;
(2) Marked “Freedom of Information Act Appeal”—both on the front of the envelope and the appeal
itself;
(3) Received within sixty days of the date of the BOP’s determination letter; and
(4) Addressed to:
Office of Information and Privacy
United States Department of Justice
Suite 11050
1425 New York Avenue, N.W.
Attn: Freedom of Information Act Appeal
Your appeal should include the name of the Component that denied your request, the initial request
number the Component assigned to the request, and the date of the Bureau’s action.45 If no request number
has been assigned, you should try to enclose a copy of the BOP’s determination letter with your appeal. You
should also explain your reasons for disagreeing with the BOP’s denial of your request. Do not attach specific
documents unless they directly pertain to a point you are making in the appeal. Once your appeal has been
received, it will be reviewed by an attorney in the Office of Information and Privacy (“OIP”). At that point,
the OIP will either affirm the BOP’s decision, affirm part of the BOP’s decision and release other
information requested, or return or “remand” the request to the BOP to consider the request again.46
(b) Filing a Lawsuit
If the appeal does not get you the information you requested, you can file a lawsuit to force the agency to
release the documents. Though technically you have up to six years after the date on which your
administrative appeal was denied to file a lawsuit,47 you should try to file as soon as possible to demonstrate
to the court that you need the information.
Filing a FOIA complaint should be relatively inexpensive and simple. 48 Sometimes, as soon as the
complaint is filed, the government will release the documents without further litigation. If your case is a
more or less routine denial of documents that you think are clearly covered by FOIA, you may wish to draft
and file your own short-form complaint. In addition, you should consider filing a “Motion for a Vaughn
Index” using the sample Vaughn motion reproduced in Appendix C-5 at the end of this Chapter.49 This is a
routine motion under which the government agency will be required to give you an itemized index describing
the documents it is withholding and the justification it claims for withholding each.
After you file your complaint, the burden is on the government to come forward and justify why it is
withholding the information.
C. New York’s Freedom of Information Law
1. Right of Access to Information
(a) Generally
The New York Freedom of Information Law50 (“FOIL”) grants New York state prisoners access to some of
their prison records, and to statements and memoranda that lay out the Department of Correctional
Services’ policies. This law was patterned after the FOIA (the federal Freedom of Information Act) and was

http://www.usdoj.gov/04foia/referenceguidemay99.htm#appeals (last visited Mar. 9, 2008).
46. 28 C.F.R. § 16.9 (2005).
47. 28 U.S.C. § 2401(a) (2000).
48 . Various resources are available to help jailhouse lawyers filing FOIA lawsuits. The names of several
organizations that will advise, though usually not represent, FOIA litigants can be found in Appendix D of this Chapter.
49. This procedure was adopted in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
50. N.Y. Pub. Off. Law §§ 84–90 (McKinney 2001 & Supp. 2004).
“designed to make available to the public all documents generated by, and in the possession of, the
government unless a compelling reason requires their confidentiality.”51
FOIL provides that governmental agencies shall make rules and regulations enabling the public to
access agency records.52 The law also provides for certain exceptions to the general rule of public access,
which closely follow the exceptions to the federal FOIA.53 The FOIL exemptions are54
(1) Records that are specifically exempted from disclosure by other state or federal statutes. For
example, personnel records of corrections officers and police officers that are “used to evaluate
performance toward continued employment or promotion” are protected from disclosure under N.Y.
Civil Rights Law Section 50-a;55
(2) Records that, if disclosed, would constitute an unwarranted invasion of personal privacy under the
provisions of subsection 89(2) of FOIL. Under Section 89, employment, medical or credit history, or
information of a personal nature reported in confidence to an agency and not relevant to the ordinary
work of such agency is exempt from disclosure under FOIL;56
(3) Records that, if disclosed, would impair present or imminent contract awards or collective bargaining
negotiations;
(4) Trade secrets submitted to an agency by a commercial enterprise or derived from information
obtained from a commercial enterprise and which, if disclosed, would cause substantial injury to the
competitive position of the subject enterprise;
(5) Records made or gathered for law enforcement purposes and which, if disclosed, would interfere with
law enforcement investigations or judicial proceedings. For example, evidence seized from a crime
scene may be properly exempted from disclosure because the evidence may identify a confidential
source or reveal “non-routine” techniques or procedures relating to a criminal investigation.
Disclosure is also restricted where it would deprive a person of the right to a fair trial;57
(6) Records that, if disclosed, would endanger the life or safety of any person, including another
prisoner, prison official, or a member of the general public. For this reason, records that would
jeopardize prison security, such as a list of correctional records and the location of such records may
be excluded from disclosure;58
(7) Inter-agency or intra-agency materials that are agency proposals, recommendations, deliberations,
opinions, evaluations, or other agency materials that do not constitute factual information,
instructions to staff that affect the public, final agency policy determinations, or external audits;59
(8) Examination questions or answers that are requested prior to the final administration of such
questions;
(9) Records that, if disclosed, would jeopardize the security of an agency’s information technology assets,
including its computer systems; and
51. Ralph J. Marino, The New York Freedom of Information Law, 43 Fordham L. Rev. 83, 83 (1974). Senator
Marino was the Senate sponsor of the law; see also N.Y. Pub. Off. Law § 84 (McKinney 2001 & Supp. 2007).
52. N.Y. Pub. Off. Law § 87(1)(b) (McKinney 2001 & Supp. 2007).
53. N.Y. Pub. Off. Law § 87(2) (McKinney 2001 & Supp. 2007).
54. N.Y. Pub. Off. Law § 87(2) (McKinney 2001 & Supp. 2007).
55. N.Y. Civ. Rights Law § 50-a(1) (McKinney 1992).
56. N.Y. Pub. Off. Law § 89(2)(b)(i), (v) (McKinney 2001 & Supp. 2007).
57. N.Y. Pub. Off. Law § 96(2)(d) (McKinney 2001 & Supp. 2007).
58. See Fournier v. Fish, 83 A.D.2d 979, 979, 442 N.Y.S.2d 823, 824 (3d Dept. 1981) (holding that correctional
facility had properly excluded from its subject matter lists of records kept by the Department of Correctional Services
and records kept by the correctional facility, specifically information relating to the exact location in prison facility of
documents requested, on basis that disclosure would jeopardize prison security); Lonski v. Kelly, 149 A.D.2d 977, 977–
78, 540 N.Y.S.2d 114, 114 (4th Dept. 1989) (finding that a videotape showing a prisoner’s transfer to a special housing
unit could not be released because it revealed the geographical layout of the unit and disclosed identities of prisoners
and offices, and therefore could “endanger the life or safety” of the people involved); Buffalo Broad. Co., Inc. v. N.Y. State
Dep’t of Corr. Servs., 155 A.D.2d 106, 112–13, 552 N.Y.S.2d 712, 715 (3d Dept. 1990) (holding that state correctional
facilities could properly be required to disclose videotapes, but could, subject to judicial approval, delete parts to satisfy
concerns regarding interference with criminal prosecutions, personal privacy, and institutional safety concerns).
59. See, e.g., Russo v. Nassau County Cmty. Coll., 81 N.Y.2d 690, 699, 623 N.E.2d 15, 19, 603 N.Y.S.2d 294, 298
(2d Dept. 1993) (finding “inter-agency or intra-agency materials” to mean communications exchanged for discussion
purposes, but not communications constituting final policy decisions); see also Miracle Mile Assocs. v. Yudelson, 68
A.D.2d 176, 183, 417 N.Y.S.2d 142, 147 (4th Dept. 1979) (holding that developer seeking city documents was improperly
denied access to materials that did not contain any advice or opinion which was part of an agency’s deliberative process,
but rather were materials stating or reflecting an agency’s final determination).
(10) Records that are photographs, microphotographs, videotape or other recorded images prepared
under authority of Section 1111-a of the vehicle and traffic law.60
The law also requires that certain records be kept. For example, each agency must keep a reasonably
detailed list, by subject matter, of all records in its possession.61 This requirement ensures that you will be
able to find out what kinds of records exist so that you may decide if you need a copy of them.
(b) Freedom of Information and the Department of Correctional Services
The Department of Correctional Services (“DOCS”) has issued regulations to comply with FOIL.62 These
regulations set forth the DOCS rules about what types of records you may obtain, as well as the procedures
you can use to get those records. Where the DOCS regulations conflict with FOIL, FOIL applies. In other
words, DOCS regulations cannot keep you from obtaining information that FOIL permits you to obtain.
Procedures for obtaining each type of record available under the DOCS regulations are described in more
detail in Part C(3) of this Chapter.
2. General Procedure to Obtain Access to Records
Requests to obtain access to records must be in writing and must reasonably describe the record sought.
Whenever possible, the request should include the title, file number, and date of the record, as well as any
other details that may help to locate and identify it. In Konigsberg v. Coughlin, the New York State Supreme
Court held that a prisoner’s request for “any and all files or records kept on me” was a reasonable
description. In that case, however, the prisoner records coordinator collected around 2,300 pages of records.63
Because you may be charged for the records sought, it is in your best interest to be as specific as possible
when describing the records you want. Always include your name, address, New York identification number,
and inmate number in your request. Keep a copy of your request letter. If you are requesting records
regarding a specific incident, include the exact date and location (address if possible) of the incident.64 A
sample FOIL request letter that you can use is included in Appendix C-3.
Within five business days after receiving a request for a DOCS record, the state must determine if the
record is in state custody, unless it is a medical record, in which case the state has ten days to respond.65 The
custodian/records access officer should send you acknowledgment of receipt of your request and notification
of the approximate date when your request will be granted or denied.66 If the record is not found after a
diligent search, the custodian must indicate that the record cannot be found, is in the custody of another
specified agency, does not exist.67 If the agency you have written has the record, the custodian must either:
(1) deny your request for access under the exemption(s) specified under FOIL Section 87(2); (2) produce the
record for inspection at the agency office; (3) advise you that the record is in custody and make
arrangements for copying and payment of fees at a later date; (4) mail you copies upon payment; or (5)
provide you with the information in the record instead of making a copy if you so agree.68 As a practical
matter, it may take much longer than five business days before you receive a response to your request.
If the agency cannot locate the records you requested, then the agency must provide proof that it
conducted a “diligent search” for the records.69 You may ask the custodian for a written certification of that
60. N.Y. Veh. & Traf. Law § 1111-a (McKinney 2006 & Supp. 2007).
61. N.Y. Pub. Off. Law § 87(3)(c) (McKinney 2001 & Supp. 2004).
62. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 5 et seq. (2005). The N.Y. Comp. Codes R. & Regs. contains rules and
regulations issued pursuant to laws passed by the Legislature. Title 7 covers the regulations issued by the Department
of Correctional Services. See also N.Y. State Dep’t of Corr. Servs. Directive # 2010, Nov. 18, 2003 (issuing the regulations
found in Title 7). The New York State Division of Parole has issued similar regulations covering its parole records. These
regulations can be found at N.Y. Comp. Codes R. & Regs. tit. 9, §§ 8000.5, 8008 (2001); see also Part C(3)(d) of this
Chapter for a discussion of how to obtain parole records.
63. Konigsberg v. Coughlin, 68 N.Y.2d 245, 247, 501 N.E.2d 1, 2, 508 N.Y.S.2d 393, 394 (1986).
64. See Cromwell v. Ward, 183 A.D.2d 459, 463, 584 N.Y.S.2d 295, 297 (1st Dept. 1992) (noting the importance of
identifying the specific dates and locations of incidents).
65. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.35(a) (2007).
66. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.35(b) (2007).
67. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.35(c) (2007).
68. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.35(d) (2007).
69. See Key v. Hynes, 205 A.D.2d 779, 781, 613 N.Y.S.2d 926, 928 (2d Dept. 1994) (holding that the allegations
made on information and belief that prosecutor’s office did not have the report that prisoner had requested was
insufficient, since entirely conclusory statements do not constitute evidentiary proof), overruled by Rattley v. New York
proof. If any part of the records arrives deleted, or if your entire request is denied, the agency must provide
you with a reason in writing and tell you that you have a right to appeal.70
While there are no fees for the agency’s searching for the records or for making the records available for
inspection, DOCS does charge fees for the photocopying of records. The current fee for photocopies of DOCS
records is twenty-five cents ($.25) per page not exceeding nine inches by fourteen inches in size.71 DOCS
may, at its discretion, provide the records along with a bill for the fees due, require assurance of payment
before the copies are delivered, or require payment before delivering the copies to you. Any fees you owe for
photocopying may be waived at the discretion of the custodian of the records. You should consider asking in
your request that you be notified before your request is filled if there will be fees (or to limit the request to
within a specific dollar amount in fees). The sample FOIL request letter in Appendix C-3 contains wording
like this which you can use to prevent being billed for unexpected fees.
If you are denied access to a record, you can appeal the denial to Counsel of the Department of
Correctional Services. 72 The FOIL provides that you must appeal all denials within thirty days. 73 This
appeal must be in writing and must contain your name and address, the date of your request, the specific
record requested, the place of request if not DOCS, the date of the denial, and, if known, the person denying
your request. A sample FOIL appeal letter that you can use is included in Appendix C-4. Send the appeal to:
Counsel, New York State Department of Correctional Services
1220 Washington Avenue, Building No. 2
State Campus
Albany, NY 12226
(518) 457–4951
The Counsel for the Department of Correctional Services has ten business days to review the issue after
receiving your appeal. He must allow access to the record or explain in writing the reason for the denial.
Again, as a practical matter, it may take much longer to receive a response. If you do not receive a response
from Counsel, you may go directly to court for review of the denial.
You may bring a legal proceeding for review of such denial74 under Article 78 of the New York Civil
Practice Law and Rules.75 JLM Chapter 22 discusses how to file an Article 78 petition. You must, however,
exhaust all administrative remedies before turning to the courts for relief. If your request for agency records
is denied, follow the appeal procedure of that agency. For example, if your request for DOCS records is
denied, you must appeal to DOCS Counsel before bringing your Article 78 petition to challenge the denial.76
3. Procedures to Obtain Copies of Indices, Medical Records, Administrative
Records, Parole Records, Criminal History Records & Inmate Records
(a) The Index
The Department of Correctional Services must keep an index, which is a reasonably detailed, current
list, organized by subject matter, of all records in its possession. The master index may enable you to
determine the title or name of the record containing the information you want. Because all indices contain
subject-matter references, the index may be helpful if you want a copy of an administrative memorandum
but are unable to identify the particular record you want. To obtain a copy of the master index, write to:
Deputy Commissioner for Administration
New York Department of Correctional Services
City Police Dep’t, 96 N.Y.2d 873, 875, 756 N.E.2d 56, 58, 730 N.Y.S. 2d 768, 770 (2d Cir. 2001) (holding that Public
Officers Law § 89(3) does not specify the manner in which an agency must certify that documents cannot be located, and
therefore that the Police Department’s statement that it had conducted a diligent search for the documents it could not
locate met the certification requirement).
70. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.35(e) (2007).
71. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.36 (2007). As noted in the section on medical records, the fee for
medical records is fifty cents per page.
72. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.45 (2007).
73. N.Y. Pub. Off. Law § 89(4)(a) (McKinney 2001).
74. N.Y. Pub. Off. Law § 89(4)(b) (McKinney 2001).
75. N.Y.C.P.L.R. 7801 et seq. (McKinney 1994).
76 . See Sommer v. Jones, 96 A.D.2d 624, 624, 464 N.Y.S.2d 879, 880 (3d Dept. 1983) (holding that the
administrative remedies provided under sections 5.20, 5.50, 5.51, and 5.52 of the New York Codes, Rules and
Regulations must be exhausted before the prisoner can ask a court to review the case).
State Campus
Albany, NY 12226–2050
Each prison is required to keep a master index of its documents. To obtain a copy of your prison’s master
index, you should write to the prison Superintendent or Director, or the prison “inmate records coordinator,”
if one has been designated. Note that no prison is required to keep an index of records on individual
prisoners. If you want to obtain indices of records of an agency other than the DOCS (for instance, you may
want a city or county corrections department’s index), you should call or write that agency’s Freedom of
Information Officer (sometimes called a “Records Access Officer”) to request a copy.
The current fee for a copy of the index is twenty-five cents ($.25) per page for photocopies not larger than
nine inches by fourteen inches in size.77 If you cannot pay to copy the index, you should say in your request
that you are a prisoner and unable to pay the fee. Any custodian of records has the authority to excuse you
from paying the fee or some portion of it. It has been the practice to allow prisoners to obtain copies of the
master index free of charge. Once the fee is paid or waived, a copy of the index will be sent to you.
D. Medical/Health Records
You may wish to get a copy of your medical records (DOCS uses the term “health records”). DOCS has
established a separate policy for prisoners to access their health records. This means that FOIL is not the
way to acquire copies of these records. Instead, health records are handled by a different set of procedures
that are described within this Subsection.78 For more information about how to request your health records,
you should consult the DOCS Division of Health Services’ Health Services Policy Manual Section 4.10 or ask
your institution’s Nurse Administrator.
Health records are defined as any departmental records created or received by a health care provider,
including information on an individual’s past, present, or future physical health, mental health, or a
condition. This includes information received from another provider about a prior examination or treatment
of a patient. Health records do not include substance or alcohol abuse records, or mental health records.
Generally, a New York State prisoner can obtain a copy of his medical records by submitting a request to
the Nurse Administrator, designated as the “record access officer” for health records. If you are at a Regional
Medical Unit, make the request to the Health Information Management Technician.79 All requests must be
in writing, signed and dated. Health record copies cost fifty cents per page; in addition, you may be charged
for the labor it takes to find and copy the health record, at a cost of $3.25 for every fifteen minutes of labor.
Even if access to part of your health record is denied, the rest of the record must be provided. In
addition, you will receive a written explanation for the denial, as well as notice about how to appeal the
denial. According to the manual, where confidentiality and safety concerns prevent the release of your
health record, the decision not to release this information is not reviewable.80 However, other concerns that
lead a health care provider to deny you information are reviewable. To appeal the denial, you should notify
the Facility Health Services Director in writing. The Director will review the appeal and rule on it within
thirty days.81 Once a decision has been made, you will be notified in writing. If a decision is made to deny the
appeal, you may make a complaint to the HIPAA Privacy Officer. If you have a complaint about your
attempts to get access to, release of, or disclosure of your health records, you should contact the Nurse
Administrator or file a grievance through the Inmate Grievance Program. Chapter 15 of the JLM has
information about prisoner grievance procedures.
E. Administrative Records
Administrative records are the memoranda and directives that describe DOCS policies. They may also
include manuals and rulebooks for DOCS employees, as well as Inmate Grievance Committee decisions. To
obtain a copy of the DOCS administrative records, send a written request to:82

78. FOIL is the proper way to request health services policies and documentation, but not to get copies of your
health records. See N.Y.S. Dep’t of Corr. Serv. Div. of Health Serv., Health Service Policy Manual § 4.10 (2003).
79. N.Y.S. Dep’t of Corr. Servs. Div. of Health Serv., Health Service Policy Manual § 4.10 (2003).
Records Access Officer
Department of Correctional Services
Albany, NY 12226–2050
F. Parole Records
The New York State Division of Parole keeps records on every prisoner eligible for parole or parole
release. If you are parole-eligible, your case record, maintained by your “street” parole officer, will contain a
comprehensive set of the records the Division of Parole maintains about you.83 Parole regulations provide
that the Division of Parole will only grant you access to those records prior to (1) a scheduled appearance
before the Board; (2) a scheduled appearance before an authorized hearing officer; or (3) the filing of an
administrative appeal of a final decision of the Board.84 Also, you will only be allowed to see the portions of
the record that will be considered by the Board or hearing officer during your appearance or hearing.85
To make a request for those parts of your case record that you are allowed to see, write to the senior
parole officer at your prison, or the area parole office that serves the area where your institution is located.86
Your letter should include (1) your name and identification number; (2) whether you have a release
interview, revocation hearing, or appeal pending; (3) the prison or jail in which you are confined; (4) and
your signature.87 Explain in the letter that in order to prepare for your upcoming hearing or appeal, you
want to review all of the information in your file that will be considered by the Board of Parole. Your request
must be received at least ten days before the scheduled date of a final revocation hearing or the final date to
perfect an administrative appeal, and at most one day subsequent to receiving notice of the scheduled date of
any other hearing.88 The fee for requested copies of parole records is twenty-five cents ($.25) per page.89
For more information on parole records and procedures, refer to Chapter 36 of the JLM on Parole.
G. Criminal History Records90
A prisoner’s criminal history record is filed with the Division of Criminal Justice Services (“DCJS”). The
procedure for obtaining these records varies slightly from other records. 91 A written request for your
criminal history data should include your name, any other name you may have used or may be known by,
your birth date, your DIN (Department of Corrections “Department Identification Number”), and, if you
have it, your NYSID (“New York State Identification Number”). In addition, it is helpful to include your race,
sex, and Social Security number. You must also state in your request how long you will be incarcerated. If
you will be incarcerated for less than forty-five days, DCJS will not send you a copy of your criminal history
record. DCJS will send current prisoners a copy of their record free of charge.
There may be forms available in your prison library that you can use instead of writing your own written
request. Your request should be sent to:
Division of Criminal Justice Services
Record Review Unit
4 Tower Place
83. N.Y. Comp. Codes R. & Regs. tit. 9, §§ 8000.5(a)–(b) (2007). Your case record may contain the following
information about you: a complete statement of the crime(s), the circumstances of each crime, all pre-sentence
memoranda, the nature of the sentence, the sentencing court, the name of the judge and district attorney, reports as to
your social, physical, mental, and psychiatric condition and history, and probation reports.
84. N.Y. Comp. Codes R. & Regs. tit. 9, § 8000.5(c)(5)–(6) (2007).
85. Access is further restricted by content. N.Y. Comp. Codes R. & Regs. tit. 9, §§ 8000.5(c)(2)(i) (2007).
86. N.Y. Comp. Codes R. & Regs. tit. 9, § 8000.5(c)(3) (2007).
88. N.Y. Comp. Codes R. & Regs. tit. 9, § 8000.5(c)(3)(ii) (2007).
90. N.Y. Comp. Codes R. & Regs. tit. 9, § 6050.1 (2007) (providing prisoners the right to review their own criminal
history records and to challenge the accuracy or completeness of the record).
91. The information in this paragraph has been drawn from the Legal Action Center’s “How to Get and Clean Up
Your New York State Rap Sheet,” which can be found online at http://www.lac.org/pubs/gratis/NYS_Rap_Sheet_Final.pdf
(7th ed. 2007) (last visited Mar. 10, 2008). The Legal Action Center also publishes versions of this guide for California,
Illinois, Pennsylvania, and Virginia. These can be found at http://www.lac.org/pubs/gratis/crimjus.html (last visited Mar.
10, 2008). Contact information for the Legal Action Center can be found in Appendix D-1.
Albany, NY 12203
(518) 485–7675
If, after reviewing your criminal history data, you find it is inaccurate or incomplete, you may challenge
the errors.92 To correct your file you must submit a “Statement of Challenge” to the DCJS, in which you
must identify the specific information that you believe is incorrect and include any documentation or proof.93
Also, be sure to list any other agencies that may have the erroneous data.94 A blank Statement of Challenge
form should be included with the copy of your criminal history record that you have received.
DCJS will review your file within a reasonable time period after receiving your “Statement of Challenge”
form and any supporting documentation.95 DCJS will check the errors you pointed out in your form against
the records kept by the Director of the Bureau of Identification and Criminal History Operations (“BICHO”).
If it finds that you are right about the errors, DCJS will make the necessary corrections to your file and will
notify you in writing of those corrections.96 DCJS also will forward the corrections to agencies listed on the
“Statement of Challenge” form.97 If it does not agree with your challenge after checking the BICHO records,
DCJS will notify you in writing. You may appeal a negative finding by BICHO by notifying the
Commissioner of DCJS in writing within a reasonable time period after receiving notification from DCJS.
Within a reasonable time after receiving your request, the Commissioner will notify you of the result of your
appeal and order any appropriate corrections to be made.98
H. Inmate Records
New York State prisoners can also gain limited access to their inmate records. An inmate record includes
the documents in a prisoner’s central office folder (or institutional folder); it does not include medical
records.99 The regulations give you access to your “personal history” and “correctional supervision history
data.”100 Your personal history records contain information like your age, date of birth, birthplace, city of
prior residence, occupation, physical description, correctional facilities in which you have been incarcerated,
commitment information, and departmental actions about your sentence, and release or re-imprisonment.101
Your correctional supervision history data record contains records of disciplinary charges and
dispositions, good behavior allowance reports, warrants and cancellations of warrants, legal papers, court
orders, transportation orders, records of institutional transfers and changes in program assignments, reports
of injury to prisoners, and property records, including the personal property list and postage account card.102
If you would like access to these records, you should request them from your assigned counselor, who
serves as the “records access officer.”103 If you disagree with a decision not to release a part of your record,
you may appeal to Counsel of the Department of Correctional Services. If the appeal is denied, you may then
challenge it in court with an Article 78 petition. JLM Chapter 22 tells you how to file an Article 78 petition.
It is often easier to get records than the regulations suggest. There is now a presumption that all records
should be available for public inspection except those specifically excluded. Furthermore, the agency has the
burden of proving that a record should be excluded.104 The courts have held that public disclosure laws are to
be read broadly,105 and statutory exemptions from disclosure read narrowly, to allow maximum access.106
92. N.Y. Comp. Codes R. & Regs. tit. 9, §§ 6050.2(a)–(b) (2007).

99. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.5(g) (2007).
100. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.5(g) (2007). For medical records, see Part (C)(3)(b) of this Chapter.
101. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.5(i) (2007).
103 . N.Y.S. Dep’t of Corr. Servs., Directive No. 2010, Departmental Records 3 (rev. 2006), available at
http://www.docs.state.ny.us/Directives/2010.pdf.
104. N.Y. Pub. Off. Law § 89(4)(b) (McKinney 2001 & Supp. 2007).
105. See, e.g., Burke v. Yudelson, 81 Misc. 2d 870, 878, 368 N.Y.S.2d 779, 787 (Sup. Ct. Monroe County 1975),
aff’d, 51 A.D.2d 673, 673, 378 N.Y.S.2d 165, 166 (4th Dept. 1976) (noting disclosure laws should be liberally construed,
and so the burden of proving a release is not allowed falls on the agency seeking to deny the disclosure request).
106. N.Y. Comp. Codes R. & Regs. tit. 21, § 1401.1(d) (2007) (“[C]onflicts among laws governing public access to
records shall be construed in favor of the widest possible availability of public records.”).
I. Correcting Errors in Your Personal History or Correctional Supervision History Records
Once you have the opportunity to inspect your records, if they contain anything incomplete or
inaccurate, you should tell the custodian of the records. This is the person from whom you received the
records (if they were inmate records, then it should be your counselor).107 You may only correct incorrect
information that appears in your personal history or correctional supervision history.108
Once you have expressed an objection concerning your record, the custodian must, within a reasonable
time, investigate the accuracy and completeness of the information, unless there are reasonable grounds to
believe that your objection is frivolous. 109 If the custodian determines that the disputed information is
incorrect or incomplete, she must make the changes in the record that are necessary. The custodian must
also report the results of the investigation to you and tell you of any changes made to your record no later
than forty-five days after being notified of your objection.110
If you still dispute the accuracy or completeness of the information after investigation and a
determination by the custodian, you may appeal the custodian’s determination to the Inspector General of
the Department of Correctional Services.111 This appeal must be in writing and sent to:
Inspector General, Department of Correctional Services
State Campus, Building No. 2
Albany, NY 12226–2050
The Inspector General can affirm, modify, or reverse the custodian’s determination. He must notify you
within thirty days of the decision in your case.112 If the record is found to be incorrect and is then corrected,
the Department must notify all those who were given the erroneous information and tell them about the
corrected information. 113 You can request that you be given a list of all agencies, individuals, or
organizations that were given the erroneous or incomplete information about you.114
1. The Committee on Open Government
If you have problems obtaining information under New York’s FOIL, you may want to complain to the
Committee on Open Government established by FOIL.115 This committee is charged with monitoring the
program that gives the public access to records. The committee tries to make sure that agencies have
complied with the law, and can also furnish an advisory opinion to any person who wants one. The
committee also has a staff that is responsible for answering any questions about the FOIL. Its address is:
New York State Department of State, Committee on Open Government
41 State St.
Albany, NY 12231
(518) 474–2518
J. Federal Citizen Information Center
If you need help determining which federal agency to contact for your request, write or call the Federal
Citizen Information Center for assistance.
Federal Citizen Information Center
P.O. Box 450
Camby, IN 46113
107. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.50 (2007). On amending your record, see N.Y. Comp. Codes R. & Regs.
tit. 7, §§ 6.8-6.11 (2007).
108. See, e.g., Rowland D. v. Scully, 152 A.D.2d 570, 570, 543 N.Y.S.2d 497, 498 (2d Dept. 1989), aff’d, 76 N.Y.2d
725, 557 N.E.2d 112, 557 N.Y.S.2d 876 (holding that a prisoner was not entitled to examine forms in order to challenge
their accuracy, unless the forms contained information relating to his correctional supervision or personal history).
111. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.52 (2007). If the Inspector General decides against you, you may
challenge his decision in court.
115. N.Y. Pub. Off. Law § 87(1)(a) (McKinney 2001 & Supp. 2007).
Toll free number: 1–800–333–4636
http://fic.info.gov
K. Conclusion
If you would like access to information in government files, there are laws allowing you to ask for
documents from federal and state agencies. If you want records from the federal government, you can file a
FOIA request or a Privacy Act request. If you would like records from a New York state agency, you should
file a request under New York’s Freedom of Information Law (“FOIL”). Appendix A contains citations to
other states’ freedom of information laws. You should direct your request to the agency with the records you
want. Appendix D lists the addresses of some government agencies. Remember: each agency has specific
procedures, so it is important to check to see what information you need to provide in your request.
APPENDIX A
STATE FREEDOM OF INFORMATION LAWS

Alabama Ala. Code §§ 36-12-40 to 36-12-43 (LexisNexis 2001 & Supp. 2006).
Alaska Alaska Stat. §§ 40.25.100 to 40.25.220 (2006 & Supp. 2007).
Arizona Ariz. Rev. Stat. Ann. §§ 39-121 to 39-126 (2001 & Supp. 2006-2007).
Arkansas Ark. Code Ann. §§ 25-19-101 to 25-19-109 (2002 & Supp. 2007).
California Cal. Gov’t Code §§ 6250 to 6270 (West 1995 & Supp. 2007).
Colorado Colo. Rev. Stat. Ann. §§ 24-72-201 to 24-72-206 (West 2001 & Supp. 2007).
Connecticut Conn. Gen. Stat. Ann. §§ 1-200 to 1-242 (West 2000 & Supp. 2007).
Delaware Del. Code Ann. tit. 29, §§ 10001 to 10005 (2003 & Supp. 2006).
Dist. of Columbia D.C. Code Ann. §§ 2-531 to 2-539 (LexisNexis 2001 & Supp. 2007).
Florida Fla. Stat. Ann. §§ 119.01 to 119.15 (West 2002 & Supp. 2007).
Georgia Ga. Code Ann. §§ 50-18-70 to 50-18-77 (2006 & Supp. 2007).
Hawaii Haw. Rev. Stat. Ann. §§ 92F-1 to 92F-42 (LexisNexis 2007).
Idaho Idaho Code Ann. §§ 9-337 to 9-350 (2004 & Supp. 2007).
Illinois 5 Ill. Comp. Stat. Ann. §§ 140/1 to 140/11 (West 1993 & Supp. 2007).
Indiana Ind. Code Ann. §§ 5-14-3-1 to 5-14-3-10 (LexisNexis 2001 & Supp. 2004).
Iowa Iowa Code Ann. §§ 22.1 to 22.14 (West 2001 & Supp. 2007).
Kansas Kan. Stat. Ann. §§ 45-215 to 45-250 (2000 & Supp. 2007).
Kentucky Ky. Rev. Stat. Ann. §§ 61.870 to 61.884 (LexisNexis 2004 & Supp. 2007).
Louisiana La. Rev. Stat. Ann. §§ 44:1 to 44:41 (2007).
Maine Me. Rev. Stat. Ann. tit. 1, §§ 401 to 410 (1964 & Supp. 2006).
Maryland Md. Code Ann., State Gov’t §§ 10-611 to 10-630 (LexisNexis 2004 & Supp. 2007).
Massachusetts Mass. Ann. Laws ch. 4, § 7(26)(Lexis Nexis 1999) and ch. 66, § 10 (LexisNexis 2002 & Supp.
2007).
Michigan Mich. Comp. Laws Ann. §§ 15.231 to 15.246 (West 2004 & Supp. 2007).
Minnesota Minn. Stat. Ann. §§ 13.03 to 13.04 (West 2000) and 138.17 (West 2005 & Supp. 2007).
Mississippi Miss. Code Ann. §§ 25-61-1 to 25-61-17 (2006 & Supp. 2007).
Missouri Mo. Ann. Stat. §§ 109.180 to 109.190 (West 1997 & Supp. 2007).
Montana Mont. Code Ann. §§ 2-6-101 to 2-6-112 (2006).
Nebraska Neb. Rev. Stat. §§ 84-712 to 84-712.09 (1999 & Supp. 2006).
Nevada Nev. Rev. Stat. Ann. §§ 239.005 to 239.030 (LexisNexis 2005 & Supp. 2005).
New Hampshire N.H. Rev. Stat. Ann. §§ 91-A:1 to 91-A:9 (LexisNexis 2001 & Supp. 2007).
New Jersey N.J. Stat. Ann. §§ 47:1A-1 to 47:1A-13 (West 2003 & Supp. 2007).
New Mexico N.M. Stat. Ann. §§ 14-2-1 to 14-2-12 (LexisNexis 2003 & Supp. 2007).
New York N.Y. Pub. Off. Law §§ 84 to 90 (McKinney 2001 & Supp. 2007).
North Carolina N.C. Gen. Stat. §§ 132-1 to 132-10 (2005).
North Dakota N.D. Cent. Code §§ 44-04-18 to 44-04-19.2 (2001 & Supp. 2007).
Ohio Ohio Rev. Code Ann. §§ 149.43 to 149.44 (West 2002 & Supp. 2007).
Oklahoma Okla. Stat. Ann. tit. 51, §§ 24A.1 to 24A.29 (West 2000 & Supp. 2008).
Oregon Or. Rev. Stat. §§ 192.410 to 192.505 (2005 & Supp. 2007).
Pennsylvania 65 Pa. Cons. Stat. Ann. §§ 66.1 to 66.9 (West 2000 & Supp. 2007).
Rhode Island R.I. Gen. Laws §§ 38-2-1 to 38-2-15 (1997 & Supp. 2007).
South Carolina S.C. Code Ann §§ 30-4-10 to 30-4-165 (1976 & Supp. 2006).
South Dakota S.D. Codified Laws §§ 1-27-1 to 1-27-33 (2004 & Supp. 2007).
Tennessee Tenn. Code Ann. §§ 10-7-503 to 10-7-509 (1999 & Supp. 2006).
Texas Tex. Gov’t Code Ann. §§ 552.001 to 552.029 (Vernon 2004 & Supp. 2007).
Utah Utah Code Ann. §§ 63-2-101 to 63-2-909 (2004 & Supp. 2007).
Vermont Vt. Stat. Ann. tit. 1, §§ 315 to 320 (2003 & Supp. 2007).
Virginia Va. Code Ann. §§ 2.2-3700 to 2.2-3714 (2007).
Washington Wash. Rev. Code Ann. §§ 42.56.001 to 42.56.904 (West 2006 & Supp. 2007).
West Virginia W. Va. Code Ann. §§ 29B-1-1 to 29B-1-7 (LexisNexis 2007 & Supp. 2007).
Wisconsin Wis. Stat. Ann. §§ 19.31 to 19.39 (West 2003 & Supp. 2006).
Wyoming Wyo. Stat. Ann. §§ 16-4-201 to 16-4-205 (2007).
APPENDIX B
SAMPLE DEPARTMENT OF JUSTICE CERTIFICATION OF IDENTITY FORM116

U.S. Department of Justice Certification of Identity
PRIVACY ACT STATEMENT: In accordance with 28 C.F.R. Section 16.41(d), personal data sufficient
to identify the individuals submitting requests by mail under the Privacy Act of 1974, 5 U.S.C. Section 552a,
is required. The purpose of this solicitation is to ensure that the records of individuals who are the subjects
of U.S. Department of Justice systems of records are not wrongfully disclosed by the Department. Failure to
furnish this information will result in no action being taken on the request. False information on this form
may subject the requester to criminal penalties under 18 U.S.C. Section 1001 and/or 5 U.S.C. Section
552a(i)(3).
Public reporting burden for this collection of information is estimated to average 0.50 hours per
response, including the time for reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the collection of information. Suggestions for
reducing this burden may be submitted to Director, Facilities and Administrative Services Staff, Justice
Management Division, U.S. Department of Justice, Washington, DC 20530 and the Office of Information and
Regulatory Affairs, Office of Management and Budget, Public Use Reports Project (1103-0016), Washington,
DC 20503.
Full name of Requester1
Citizenship status2
Social Security Number3
Current Address
Date of Birth
Place of Birth
I declare under penalty of perjury under the laws of the United States of America that the foregoing is
true and correct, and that I am the person named above, and I understand that any falsification of this
statement is punishable under the provision of 18 U.S.C. Section 1001 by a fine of not more than $10,000 or
by imprisonment of not more than five years or both, and that requesting or obtaining and record(s) under
false pretenses is punishable under the provisions of 5 U.S.C. Section 552a(i)(3) by a fine of not more than
$5,000.
Signature4 _________________________________ Date __________
OPTIONAL: Authorization to Release Information to Another Person

This form is also to be completed by a requestor who is authorizing information relating to himself or herself to be released to
another person.
Further, pursuant to 5 U.S.C. § 522a(b), I authorize the U.S. Department of Justice to release any and all information relating
to me to: _________________________________________________
(Print or Type Name)
1 Name of individual who is the subject of the record sought.

2 Individual submitting a request under the Privacy Act of 1974 must be either “a citizen of the United States or an Alien
lawfully admitted for permanent residence,” pursuant to 5 U.S.C. Section 552a(a)(2). Requests will be processed as
Freedom of Information Act requests pursuant to 5 U.S.C. Section 552, rather than Privacy Act requests, for individuals
who are not United States citizens or aliens lawfully admitted for permanent residence.
3 Providing your social security number is voluntary. You are asked to provide your social security number only to
facilitate the identification of records relating to you. Without your social security number, the Department may be
unable to locate any or all records pertaining to you.
4 Signature of individual who is the subject of the record sought.
116. The most up-to-date version of this form is available at http://www.usdoj.gov/oip/forms/cert_ind.pdf.

APPENDIX C
SAMPLE LETTERS117
C-1. Sample FOIA Request Letter (Federal)
Return Address
Date
Freedom of Information Officer
Name of Agency
Address
Dear Sir or Madam:

This request is made under the Freedom of Information Act (FOIA), 5 U.S.C. Section 552 [and the
Privacy Act 5 U.S.C. Section 552a].
Please send me copies of [here clearly describe the documents you want, such as the names, places, and
period of time about which you are inquiring].
As you know, the Freedom of Information Act provides that if portions of a document are exempt from
release, the remainder must be segregated and disclosed. Therefore, I will expect you to send me all
nonexempt portions of the records which I have requested, and ask that you justify any deletions with
reference to specific exemptions of FOIA. The information requested is not to be used for commercial benefit,
so I do not expect to be charged fees for your review of the material to see if it falls within one of FOIA’s
exemptions.
[Option I]
I promise to pay reasonable search and duplication costs in connection with this request. However, please notify me ahead of
time if you estimate that total fees will exceed $ ______ so I can approve the additional amount.
[Option II]
FOIA provides for the waiver or reduction of search and duplication fees where the “disclosure of the
information is in the public interest because it is likely to contribute significantly to public understanding of
the operations or activities of the government and is not primarily in the commercial interest of the
requester.” This request should be exempt from all fees because [here explain how you intend to distribute
the information you receive, and how those to whom you distribute it will be better informed about the
operations of the government]. If you deny this request, however, please notify me if fees will exceed $______
so I can decide whether to pay the fees or appeal your denial of my request for a waiver.
Sincerely,
[Signature]
117 . Additional sample letters available at http://www.foia.cia.gov/sample_request_letter.asp;

http://www.nfoic.org/foi-center/sample-letters.html#foireq; http://rcfp.org/foiact/apple.html.
C-2. Sample FOIA Appeal Letter (Federal)118
Return Address
Date
Administrator
Name of Agency
Address
To the Administrator:
This is an appeal under the Freedom of Information Act (“FOIA”), 5 U.S.C. Section 552. On [date] I made
a FOIA request to your agency for [brief description of the materials sought]. On [date] your agency denied
my request because [state the ground for denial cited by that agency or that the agency failed to respond
within lawful time limits]. Copies of the correspondence are attached.
Please be informed that I consider the requested material clearly releasable under FOIA and consider
your agency’s policy to be arbitrary and capricious.
[Here insert any arguments in favor of disclosure, if you wish.]
I expect that upon reconsideration, you will reverse the decision to deny my request. However, if you do
deny this appeal, I intend to file a lawsuit to compel disclosure.
Sincerely,
[Signature]
C-3. Sample FOIL Request Letter (New York State)119

Return Address
Date

Name of Agency
Address of Agency
City, NY ZIP code
Re: Freedom of Information Law Request
Records Access Officer:

Under the provisions of the New York Freedom of Information Law, Article 6 of the Public Officers Law,
I hereby request records or portions thereof pertaining to __________________ [identify the records in which
you are interested as clearly as possible].
If there are any fees for copying the records requested, please inform me before filling the request
[or: .†.†. please supply the records without informing me if the fees are not in excess of $____].
As you know, the Freedom of Information Law requires that an agency respond to a request within five
business days of receipt of a request. Therefore, I would appreciate a response as soon as possible and look
forward to hearing from you shortly. If for any reason any portion of my request is denied, please inform me
of the reasons for the denial in writing and provide the name and address of the person or body to whom an
appeal should be directed.
Sincerely,
[Signature]
118 . Additional sample appeal letters available at http://www.nfoic.org/foi-center/sample-letters.html#foiapp;

http://www.fcfp.org/foiact/appb.html.
119. Additional sample FOIL request letters available at htpp://www.dos.state.ny.us/coog/freelaw.html.
C-4. Sample FOIL Appeal Letter (New York State)120
Return Address
Date

Name of Agency Official
Appeal Officer
Address of Agency
City, NY ZIP code
Re: Freedom of Information Law Appeal
Dear __________:
I hereby appeal the denial of access regarding my request, which was made on __________ [date] and
sent to __________ [records access officer, name and address of agency].
The records that were denied include:_______________ [list and describe the records that were denied].
As required by the Freedom of Information Law, the head or governing body of an agency, or whomever
is designated to determine appeals, is required to respond within ten business days of the receipt of an
appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as
required by law.
In addition, please be advised that the Freedom of Information Law directs that all appeals and the
determinations that follow be sent to the Committee on Open Government, Department of State, 41 State
Street, Albany, New York 12231.
Sincerely,
[Signature]
C-5. Sample Vaughn Motion121

[Use the proper court caption]
Motion Under Vaughn v. Rosen to Require
Detailed Indexing, Justification, and Itemization
Plaintiff [your name] moves this Court for an order requiring Defendants [name of agency and agency
head] to provide within 30 days of the filing of the Complaint in this action, a detailed justification for
allegations contained in the Defendant’s Answer and previous administrative denial that the requested
documents are exempt from disclosure under the Freedom of Information Act, 5 U.S.C. § 552, including an
itemization and index of the documents claimed to be exempt, correlating specific statements in such
justification with actual portions of the requested documents. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973), cert. den., 415 U.S. 977 (1974).
Respectfully Submitted,
[Name of plaintiff or plaintiff’s attorney]

Address
Dated: [date] [city and state]
120. Additional sample appeal letters available at http://www.dos.state.ny.us/coog/freelaw.html.

121 . Additional sample Vaughn Motion available at http://www.rcfp.org/foiact/appd.html. It is difficult to
determine the proper federal court in which to file your Vaughn motion. To find out how to proceed, write or call the
clerk of the federal district court that has jurisdiction over the agency from which you are trying to get information. Most
federal agencies are headquartered in Washington, D.C. The address for the federal district court of D.C. is: Clerk’s
Office, United States District Court for the District of Columbia, 333 Constitution Avenue, N.W., Washington, D.C.
20001. The phone number is (202) 354-3000.
APPENDIX D
ADDRESSES
D-1. Additional Information & Assistance
American Civil Liberties Union (“ACLU”) Legal Action Center
125 Broad St., 18th Floor 225 Varick Street
New York, NY 10004 New York, NY 10014
Phone: (212) 549–2500 Phone: (212) 243–1313 or
ACLU chapters can give you information about FOIA or Toll free 1–800–223–4044;
“open records” laws, like FOIL, if you are seeking state Fax: (212) 675–0286
or local government records. E-Mail: [email protected]
http://www.lac.org
Freedom of Information Clearinghouse The Legal Action Center publishes the very useful “How
1600 20th Street N.W. to Get and Clean Up Your State Rap Sheet,” with editions
Washington, D.C. 20009 covering New York, California, Illinois, Pennsylvania,
Phone: (202) 588–7790 and Virginia.
http://www.citizen.org/litigation/free_info
The Clearinghouse gives legal and technical assistance to ACLU National Prison Project
public interest groups, journalists, and individual citizens 915 15th Street N.W.
using the laws granting access to information that is held 7th Floor
by the government. Washington, D.C. 20005
Phone: (202) 393–4930
http://www.aclu.org/prison/index.html
The Prison Project will refer prisoners to local aid
groups where requests for information from state
authorities are addressed.
D-2. Federal Government Agencies

Remember, always mark the outside of the envelope, “Freedom of Information Act Request.”
Divisions of the Department of Justice Office of the General Counsel
Civil Rights Division FOIA Unit
Chief, FOIA/PA Branch Department of Justice
Civil Rights Division 5107 Leesburg Pike, Suite 2600
United States Department of Justice Falls Church, VA 22041
950 Pennsylvania Avenue N.W. Phone: (703) 305–0470
NALC Building, Room 311
Washington, D.C. 20530 Office of the Attorney General
Phone: (202) 514–4209 Requests should be addressed to:
Fax: (202) 514–6195 Deputy Director
Office of Information and Privacy
Criminal Division
Chief, FOIA/PA Unit
Criminal Division 1425 New York Avenue N.W.
Keeney Building, Suite 1127 Suite 11050, Flag Building
Department of Justice Washington, D.C. 20530-0001
Washington, D.C. 20530–0001 (202) 514–FOIA
Phone: (202) 616–0307
Justice Management Division
Drug Enforcement Administration Justice Management Division
Drug Enforcement Administration FOIA/PA Mail Referral Unit
Freedom of Information Operations Unit Department of Justice
Department of Justice Room 114, LOC
700 Army Navy Drive Washington, D.C. 20530–0001
West Building, 6th Floor (301) 583–7354
Arlington, VA 22202 The Justice Management Division can help you
Phone: (202) 307–7596 with questions regarding requests within the
Justice Department, such as which division to
Federal Bureau of Investigation write to, and how to write the request.
Federal Bureau of Investigation Chief
Record/Information Dissemination Section Bureau of Citizenship and Immigration
Records Management Division Services (formerly INS)
Federal Bureau of Investigation Bureau of Citizenship
Department of Justice and Immigration Services
935 Pennsylvania Avenue, N.W. Director
Washington, D.C. 20535–0001 FOIA/PA Program
Phone: (202) 324–5520 (ask for Freedom of 425 Eye Street, N.W., 2nd Floor
Information or FOI/PA) ULLICO Building
United States Parole Commission Phone: (202) 272–8269
FOIA Officer Fax: (202) 514–4310
United States Parole Commission
Department of Justice U.S. Commission on Civil Rights
Suite 420, 5550 Friendship Boulevard U.S. Commission on Civil Rights
Chevy Chase, MD 20815 FOIA Officer
Phone: (301) 492–5959 624 Ninth Street, N.W.
Fax: (301) 492–5563 Washington, D.C. 20425
Phone: (202) 376–7796
Immigration
Requests for the Board of Immigration Appeals Equal Employment Opportunity Commission
(“BIA”), the Office of the Chief Immigration Equal Employment Opportunity Commission
Judge, and the Office of the Chief Legal Counsel/FOIA
Administrative Hearing Officer (OCAHO) 1801 L Street, N.W., 6th Floor
should be addressed to: Washington, D.C. 20507
Executive Office for Immigration Review Phone: (202) 663–4640
Department of Health and Human Services
Department of Health and Human Services
Director, FOIA/Privacy Division
Room 645-F
Hubert H. Humphrey Building
330 C Street S.W., Room 5416
Phone: (202) 690–7453
Fax: (202) 690–8320
Internal Revenue Service

Internal Revenue Service
FOIA Disclosure Manager
Office of Disclosure
1111 Constitution Avenue, N.W.
Phone: (202) 622–6200
Manual
Chapter 8:
Obtaining Information To
Prepare Your Case:
The Process of Discovery

8th Edition 2009
LEGAL DISCLAIMER
CHAPTER 8
OBTAINING INFORMATION TO PREPARE YOUR CASE: THE PROCESS OF

DISCOVERY*
A. Introduction
This Chapter is an overview of the general rules of discovery. Discovery is the process that allows you to
ask your opponent and other parties for information they possess that you need to present your case. Your
opponent can also use the discovery process to get information from you. Discovery allows you to get
information not only from your opponent but also from other sources, like co-defendants or other potential
witnesses. Discovery usually takes place before the trial begins. In a civil action, the process starts after the
legal papers that begin a suit have been filed. In a criminal action, it generally starts after the defendant has
been arraigned (or brought before the court to plead to the charge brought against him).
Discovery is governed by a fairly complicated set of rules.1 It is important to know the rules because
they: (1) instruct you on how to get the information you need; and (2) inform you of what information you
have to give an opponent to avoid the court penalizing you. The rules tell you how to get information and
limit what information needs to be disclosed. The judge supervises the discovery process in each case.
Discovery rules differ depending on the type of case (civil or criminal) and the type of court (state or
federal) in which you are appearing. Civil discovery is very broad and has relatively few restrictions.
Criminal discovery, on the other hand, is quite different and relatively limited. Regardless of the depth of
treatment given to a particular rule in this Chapter, you must always check the appropriate rule yourself, in
addition to any cases interpreting the rule. You should also Shepardize (or update) the rules and the cases,
since the rules change quite frequently. Chapter 2 of the JLM, “Introduction to Legal Research,” explains
Shepardizing and other methods of legal research.
There are two reasons to be aware of discovery procedures. First, you should use discovery to fully
prepare your case for trial. Second, you must also know how to respond to your opponent’s requests for
information from you. Discovery is a privilege and a responsibility: when you file a suit, you have the right to
information from your opponent but you also must respond to your opponent’s requests for discovery. If you
refuse to comply with proper discovery requests from the other side, your lawsuit may be dismissed.
Discovery is intended to:
(1) narrow and clarify the issues that will be presented to the court;
(2) find out the claims of each party;
(3) find out the important facts and details of your case and your opponent’s case;
(4) obtain testimony from witnesses while their memory is fresh or before they might for some reason
become unable to testify in court; and
(5) eliminate the delay and undue surprise that would occur if each party knew nothing about the other
side’s case until the trial itself.
Once you have completed the discovery process you will know much more about what you will have to
prove and disprove to win your case. You will also know what information you still need to be successful.
* This Chapter was revised by Paula M. McManus and Roslyn R. Morrison based in part on previous versions by Colleen
Romaka, David Lamoreaux, and members of the 1977–78 Columbia Human Rights Law Review.
1. In federal court, the Federal Rules of Civil Procedure (Fed. R. Civ. P.) are used in civil cases, and the Federal
Rules of Criminal Procedure (Fed. R. Crim. P.) are used in criminal cases. New York state court uses the Civil Practice
Law and Rules (N.Y. Civ. Prac. L. & R. or N.Y. C.P.L.R.) in civil cases and the Criminal Procedure Law (N.Y. Crim. Proc.
L.) in criminal cases. N.Y. Crim. Proc. L. is also commonly referred to as C.P.L. Each set of rules contains discovery
procedures for the appropriate type of case. For other states, you can find rules of civil and criminal procedure in the
state’s Annotated Code or Annotated General Statutes. Also, for most states, West or LexisNexis publishes a yearly
volume for the state that contains current rules of civil and criminal procedure. West’s publication is Rule of Court–
State. (For example, if you are looking for information on Connecticut, look to West’s 2007 Connecticut Rules of Court–
State.) LexisNexis’ publication is called Court Rules Annotated. (For example, if you are looking for information on New
Hampshire, look to LexisNexis’ 2007 New Hampshire Court Rules Annotated.) You can often request the volume you
need through inter-library loan if your library does not carry it.
This Chapter gives you an overview of the discovery rules. Part B addresses the discovery rules for civil
lawsuits, while Part C focuses on the discovery rules for criminal cases. Each of these Parts is further
divided between discovery in federal cases and discovery in state cases.
B. Civil Discovery
C. Introduction
Specific rules of civil procedure govern the various tools of civil discovery.2 They vary depending on
whether you bring your case in federal or state court. 3 The federal rules governing civil discovery are
discussed in Part B(2) of this Chapter; the New York State rules are discussed in Part B(3). Although the
basic ideas are the same, it is important to know the specific rules of the court where you bring your claim.
Otherwise, your case may be dismissed early. Also, individual courts and judges can set their own special
procedural rules. These rules cannot conflict with the law, but you should try to find out if your judge has a
special system you should follow. You can do this by writing to the clerk of the court. The addresses of the
federal and state courts in New York are listed in Appendices I and II at the end of the JLM.
There is no required form for filing a discovery request, but you should state clearly the information you
are seeking and the rule under which you are making your request. Many legal formbooks contain examples
of the many different types of discovery requests.4 Selected federal forms are provided in the Appendix at the
end of this Chapter. Do not tear them out of the book; you must copy them on your own paper and insert the
particular information that you need.
D. Federal Discovery Procedures
(a) Introduction
In a civil action in federal court, discovery is governed by the Federal Rules of Civil Procedure, Rules 26–
37.5 The rules are fairly straightforward and should be relatively easy to follow. There is one basic rule to
keep in mind: you should show that any material you seek is reasonably relevant to your case. Courts will not
look kindly on you if you deliberately harass the person you are suing with burdensome requests not
important to the case and requiring him to spend a great deal of time or money answering. The judge may
impose penalties on anyone who abuses the discovery process in this way.6 At the same time, the discovery
rules are usually applied liberally so that all sides may get the information they need to pursue their case.
(b) Scope of Discovery
In a civil action, only information not “privileged” may be discovered. Information that is privileged may
be kept secret. In addition, information must be “relevant” to your case for it to be discoverable.
One category of privileged information is communication between certain people that the law, as a
matter of public policy, wishes to protect by keeping private. Examples of privileged relationships are those
existing between lawyer and client, doctor and patient, priest and confessor, and husband and wife. Any
information given by one person to another within any of these relationships, and meant to be kept
confidential or secret, is considered “privileged.” This means, for example, that if your opponent requested
copies of your personal correspondence, you would not have to give him letters that you wrote to your spouse,
lawyer, etc. Of course, it also means that your opponent can withhold such privileged material from you.
Another category of privileged material, which is often the largest barrier to getting information, is trial
preparation material, also called “attorney work product.”7 The work product rule is complicated and an in-
2. See Fed. R. Civ. P. 26–37 (Depositions and Discovery) (federal courts); N.Y. C.P.L.R., art. 31 (Disclosure) (New
York state courts). These rules of civil procedure also apply to attacks on a conviction after appeal, such as federal or
state habeas corpus petitions, or Article 440 motions in New York. See JLM Chapters 13, 20, and 21 for information on
habeas corpus and Article 440. Note: discovery in habeas proceedings is only available for “good cause.” See Henard v.
Newkirk, 987 F. Supp. 691, 694 (N.D. Ind. 1997) (directing prisoner to show good cause to authorize discovery).
3. Useful summaries of the law governing discovery in federal courts include Charles Alan Wright & Mary Kay
Kane, Law of Federal Courts, 580–647 (6th ed. 2002) and 6, 7 James William Moore, Moore’s Federal Practice 26–37A
(3d ed. 2007).
4. See, e.g., James William Moore, Moore’s Federal Practice 26–37A (3d ed. 2007).
5. Note that habeas corpus rules differ slightly from discovery rules. See Chapter 13 of the JLM, “Federal Habeas
Corpus,” and 28 U.S.C. §§ 2246, 2247 (2000).
6. Fed. R. Civ. P. 37(a)(4)(B). Sanctions are discussed in Part B(2)(f) of this Chapter.
7. The rule protecting attorney work product is also called the “Hickman-Taylor rule” because it is based upon the
depth analysis of it is not included in this Chapter. Briefly, the rule covers information, analysis, arguments,
and opinions prepared by attorneys for trial. Facts may be available if you can show “substantial need”8—
that is, if you cannot get the information anywhere else and it would be unfair if you did not have it—but
your opponent’s lawyer’s opinions and analysis are not available to you through discovery.9
If you feel your opponent has requested privileged material from you, it is your responsibility to show the
court the privilege applies to you. If you refuse to respond to a discovery request because you think the
information is privileged, you must give the reason for the privilege (without giving away the information),
and you must respond to any other discovery requests not calling for privileged material. The court will then
decide your claim of privilege and may order you to turn over the material if it decides it is not privileged.
A second requirement for discovery is that the material must be “relevant” to the case. Information is
relevant when it supports the truth or denial of a point which either side is trying to prove. Imagine, for
example, that you have filed a civil lawsuit for police misconduct at the time of your arrest.10 In proving
misconduct you would have to identify the officer who you feel was abusive. The arrest record directly
supports your proof on this point because it would state the officer’s name. The arrest record would then be
relevant, and you could ask for it in discovery. On the other hand, if you asked for the officer’s high school
report card, that information would probably be irrelevant. If you asked for it and the other side objected,
the judge would probably rule that the report card is not discoverable.
Information is also relevant when it may lead to other relevant information. Even though the
information may be inadmissible at trial because it is “irrelevant” under the rules of evidence, it may still be
discoverable. You may request information if there is any reasonable possibility that it will lead you to
admissible evidence that you can present at trial.11 Still using the police misconduct example above, assume
that you have found out the officer’s name. When suing the officer personally (you would probably also sue
the police department), it would be helpful to know his background. You might then request the names and
addresses of other members of the police department, for example, because these other officers might know
whether the officer has a violent disposition. Since you might find important information showing the
officer’s abusive work practices, you should be able to find out these other officers’ names and possibly
depose them (depositions are discussed in Part B(2)(d)(i) of this Chapter below). Even though you might not
find any useful information or information that is admissible in court, the discovery rules permit you to try
to build your case by following leads that may provide you with relevant information.
(c) Mandatory Discovery: Rule 26
Rule 26 of the Federal Rules of Civil Procedure attempts to ensure a smooth and quick exchange of basic
information between you and your adversary. The rule requires both an early meeting between you and your
adversary and mandatory disclosure of certain information. Below is a brief overview of the rule’s
requirements. But, since the rule is fairly detailed, you should also read over that section of the Federal
Rules if you are involved in a federal civil suit. Also, it is important to note that local courts have the option
of suspending Rule 26 requirements. You should therefore always check with the clerk of the court in order
to determine what your responsibilities are.
Under Rule 26(f), you and your adversary must meet “as soon as practicable” to discuss your case. The
goal of this meeting is to see if there is any possibility of settling and therefore no need to have a trial. In
addition, the Rule requires the parties to create a “discovery plan.” This means you and your opponent need
to make deadlines for discovery. Note that if you have a federal criminal case and are incarcerated, your
attorney will usually draft a motion in which she requests all discovery materials. She will often discuss this
discovery motion with you after your arraignment, either at the courthouse or at the prison facility.
Supreme Court case Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).
8. See, e.g., In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180 (2d Cir. 2007) (finding “substantial need”
for the documents requested because they were unique evidence and could not be obtained through other means).
9. You cannot, for example, ask your opponent to tell you in advance the argument that he will make at trial.
Work product privilege is covered in Fed. R. Civ. P. 26(b)(3), to which you should refer if work product protection
becomes an issue in your case.
10. In Mercado v. Division of New York State Police, 989 F. Supp. 521, 523 (S.D.N.Y. 1998), the court held that
N.Y. Civ. Rights L. § 50-a, which says a police officer’s personnel files may only be turned over if the officer consents or if
a judge issues an order requiring the release of these records, does not necessarily apply to discovery in federal litigation.
11. Fed. R. Civ. P. 26(b)(1).
Within fourteen days after the Rule 26(f) meeting, Rule 26(a)(1)(A) requires that you and your adversary
exchange certain basic information such as the names, addresses, and phone numbers of any persons who
may have discoverable information. Since your adversary is entitled to Rule 26(a)(1) information without
making any particular request of you, you should read this rule carefully to determine what information you
are required to send. Also, you should be familiar with the Rule’s requirements in order to determine
whether your adversary has given you all of the information to which you are entitled. If you or your
adversary plans to call expert witnesses at trial, Rule 26(a)(2) makes such information discoverable and you
should refer to this Rule for the exact information that may be discovered. In addition, Rule 26(a)(3) requires
you and your adversary to inform each other of people you plan to call as witnesses in a trial and to
exchange summaries of any evidence that you plan to introduce at a trial. The exchange of information
under Rule 26(a)(3) must take place at least thirty days before trial.
Lastly, Rule 26(e) requires both parties to voluntarily supplement or correct any information already
exchanged if they later obtain information which makes the initial information either incomplete or
inaccurate. Under Rule 26(g), you must sign and write your address on all information that you supply to
your adversary. By doing so, you indicate that to the best of your knowledge the information is complete and
correct. Also, remember that Rule 26(g) requires you to tell the truth and disclose all information.
(d) Additional Methods of Obtaining Information
(i) Depositions: Rules 27, 28, 30, 31, and 32
In a deposition, a party or any other person who may have useful information is questioned. Depositions
are usually conducted by the attorney for the party who is seeking the information.
Oral depositions take a similar form to the examination of witnesses at a trial. Basically, a meeting is set
up by you or your lawyer with the person you want to depose (the defendant or a potential witness),12 the
opposing lawyer (the other side normally will have one), and a stenographer.13 Under Rule 26(d), depositions
(as well as any other forms of discovery) may be sought only after the initial mandatory meeting between the
parties has taken place, unless the court gives permission. 14 Rule 30(a)(2)(A) limits the number of
depositions each side may take to a maximum of ten. Nevertheless, if you feel that you need to take more
depositions, you may seek the court’s permission. To determine whether to grant your request for more
depositions, the court will look at several factors, including (1) whether the information you are seeking is
unreasonably cumulative or duplicative15 or if it can be obtained more conveniently from another source; (2)
whether you have already had and passed on the opportunity to get the information you are seeking; and (3)
whether the burden or expense of the proposed discovery outweighs its likely benefit.16
At the deposition, you may ask a broad range of questions. Depositions are particularly useful because
they give you the opportunity to obtain an uncoached, spontaneous response from the deponent (the person
being questioned).17 Depositions are often considered the most beneficial form of discovery because they
provide the parties with face-to-face contact, unlike other discovery methods.
The problem with depositions, however, is that they tend to be time-consuming and expensive. If you
depose someone, you must usually hire a stenographer and pay the costs of having the stenographer’s notes
typed out in readable form. Both sides, their attorneys, and the witness must arrange a suitable time and
place for the deposition. Rule 29 of the Federal Rules of Civil Procedure can offer some relief by providing for
the use of stipulations.18 If you and your opponent agree, you can hold the deposition in a place convenient
for you (such as the jail or prison), and you can tape record the deposition instead of hiring a stenographer.
12. The “defendant” (sometimes called “respondent”) is the party being sued. The “plaintiff” (sometimes called
“petitioner”) is the party who filed the papers to bring the suit. The “deponent” is the person questioned in a deposition.
13. The “stenographer” is a professional secretary who types in shorthand everything said during the deposition.
14. Fed. R. Civ. P. 26(d).
15. “Cumulative” refers to discovery requests so broad and including so much material they are difficult or
impossible to fulfill within a reasonable time period. “Duplicative” means discovery requests repeating earlier discovery
requests needlessly. These requests are often made with the goal of making it hard for the other side to meet requests.
16. Fed. R. Civ. P. 26(b)(2)(C).
17. The deponent may not be as well prepared by his attorney as he will be at the trial, and the attorney will not
have an opportunity to review the deponent’s responses before you receive them.
18. A “stipulation” is a written agreement between the parties to a court proceeding which states that they agree
to a certain fact, rule, or way of proceeding.
If your opponent is unwilling to stipulate to alternative methods of taking a deposition, you can also
make a motion to the court to order him to cooperate.19 Be prepared to show specific reasons for your request
(for example, that you cannot afford a stenographer). Another option is to obtain written depositions. If you
choose to use written depositions, you should refer to Rule 31 for the exact procedure. However, you should
note that the use of written depositions does not allow you to get the face-to-face, un-coached answers which
you can probably get with oral depositions.
(ii) Interrogatories: Rule 33
Interrogatories are written questions that must be answered in writing under oath. Only parties to a
suit (you and your opponent) can be ordered by the court to respond to interrogatories. Unlike depositions,
outside witnesses cannot be ordered to respond to interrogatories. Apart from this important limitation,
interrogatories are a very useful device because they are inexpensive. Rule 33(a) limits the number of
questions each party may ask to twenty-five. Nonetheless, if you feel you need to ask more than twenty-five
questions, you may ask the court for special permission to do so. To determine whether your request should
be granted, the court will consider whether the information you are seeking is unreasonably repetitive,
whether you have already had the opportunity to obtain the information, and whether the burden or expense
of the additional interrogatories would outweigh their likely benefit.20 Interrogatories may be sent as soon as
you and your opponent have attended the mandatory meeting under Rule 26(f). Note that many local courts
and individual judges have their own special rules for handling interrogatories. If you are considering
serving interrogatories, you should check with the clerk of the court to find out if special rules apply to you.
After sending the interrogatories to your opponent, he must answer within thirty days unless there is a
court order stating otherwise, or you and your opponent agree that there should be more or less time
allowed.21 As with depositions, your questions must be relevant to the case, they cannot ask for privileged
material, and they cannot be unduly or unreasonably burdensome to the other side. If you are suing a prison
official for assault, for example, you might ask the following questions in your interrogatory:
(1) Were you on Block 8 at or around 8:00 P.M. on January 30, 1999?
(2) Why were you on Block 8 at 8:00 P.M. on January 30, 1999?
(3) At 8:00 P.M. on January 30, 1999, did you hear any noise coming from the east dayroom?
(4) Did you go inside the east dayroom shortly after 8:00 P.M. on January 30, 1999?
You will notice that in order to obtain specific answers, you will need to ask specific questions. You should be
careful not to phrase your questions in a manner that allows only a “yes” or “no” answer if you want more
information. Questions (1), (3) and (4) above are types of questions that would be answered with only a “yes”
or “no.” But question (2) cannot be answered by a “yes” or “no.”
If you have trouble getting answers to your interrogatories and there is no legitimate reason for your
opponent’s failure to respond (such as a claim that you are seeking privileged or irrelevant information),
then you can submit a motion for an order compelling discovery under Rule 37(a)(2)(B). However, in order
for a court to grant your motion, you must be able to show that, before asking the court for help, you made
every effort to get the answers from your opponent. If the judge does grant your motion, your opponent will
be penalized by the court if he does not respond to your interrogatories. Some judges are reluctant to issue
orders compelling discovery, so you should read the Federal Rules of Civil Procedure closely and prepare an
argument to show why you need the information requested and that you have a right to receive it.
(iii) Production of Documents: Rule 34
Rule 34 of the Federal Rules of Civil Procedure enables you to obtain documents and other physical
objects in your opponent’s possession. Once again, you may only get those materials that are relevant to your
case and are not privileged. Like other forms of discovery, permission of the court is not generally required
and it is assumed by the Rule that the parties will cooperate in disclosing the needed material.
You can request materials after you have met with your opponent under Rule 26(f), or you can ask the
court for permission to request materials sooner. As with interrogatories, there is a thirty-day period in
which to respond. If your opponent refuses to cooperate with a reasonable request, you can file an order to
19. Fed. R. Civ. P. 26(c)(2).

20. Fed. R. Civ. P. 26(b)(2)(C).
21. Fed. R. Civ. P. 33(b)(3).
compel discovery under Rule 37(a)(2)(B). If your opponent does not comply with the order, you can make a
motion asking the court to sanction your opponent under Rule 37(b).22
A request for production must describe the name and date of each document or object as specifically as
possible. You should try to find out as much as you can about the documents or objects your opponent has
that might be useful to you. Note: when prison officials provide documents in discovery, they often “redact,”
or blacken out, information they think is secret or sensitive. If you think your opponent is hiding information
you need and are entitled to see, you can move for an order compelling discovery under Rule 37(a)(2)(B).
Remember that Rule 34 does not limit you to requesting documents that might be found in an official
file; you can ask for books, accounts, memoranda, letters, photographs, charts, physical evidence, or any
other object you can describe specifically. It is possible that you might request such a large volume of
material that it is only feasible for your opponent to send you copies. In that case, you should be prepared to
pay copying costs or ask the court to pay them under a poor person’s order.23
(iv) Subpoenas: Rule 45
Rule 45 allows you to compel witnesses who are not parties to the suit to attend a deposition or trial. You
can also ask the witness to bring with them documents or other discoverable materials that fall under Rule
34. A subpoena to a third party to produce such material is often called a subpoena duces tecum. If you serve
a subpoena on a third party—either to testify or to produce documents—and the party refuses, the court may
hold that party in contempt for failure to comply. In order to file a subpoena, you must obtain a form by
writing to the clerk of the court.
(v) Admissions: Rule 36
Rule 36 is a convenient tool allowing you to serve a written “request for admission” to your opponent.
You do not need the court’s permission to serve this request but you must wait until after you attend the
Rule 26(f) meeting with your opponent. The form of a request for admission is similar to an interrogatory,
except that you must prepare a list of statements for your opponent to admit or deny. The court will consider
the statements admitted unless your opponent submits a written denial within thirty days.
Here are some statements that you might include in a request for admission, using the prison assault
example presented earlier in Section B(2) of this chapter:
(1) Admit that you were in Block 8 at 8:00 P.M. on January 30, 1999.
(2) Admit that you heard noises coming from the east dayroom at 8:00 P.M. on that evening.
(3) Admit that you went inside the east dayroom shortly after 8:00 P.M. on that evening.
(4) Admit that the attached copy of the incident report is a true and accurate copy of the original on file.
Note that in requests for admission, you cannot make open-ended information requests, like in question
(2) of the interrogatory examples in Part B(2)(d)(ii) above.24 Also, requests for admission under the Federal
Rules are intended primarily to resolve issues that are preliminary, incidental, or without substantial
disagreement. If you ask your opponent to admit a fact that presents a “genuine issue for trial,” he must
respond but may deny the matter until evidence is presented. But, Rule 37(c)(2) states if you prove a fact
your opponent has refused to admit, your opponent may be required to pay some of your attorney’s fees.
(e) Duty to Disclose
Both parties have the right to discover important information from the other side, and both parties have
the responsibility to cooperate in making discoverable material available. If you believe, however, that your
opponent has made an unreasonable discovery request of you—for example, one that asks for privileged
information or that is meant to intimidate you or needlessly consume your time and money—you can move
for a protective order under Rule 26(c) instead of preparing a response to the request.
In a motion for a protective order, you must give the judge a good reason why your opponent’s request for
information was improper or unreasonable. You must also show that you have made every effort to resolve
22. A sanction is a penalty or punitive measure that results from one’s failure to comply with a law, rule, or order.
See Black’s Law Dictionary (8th ed. 2004). Usually, sanctions are monetary fines, but they can also be imprisonment or
dismissal of a lawsuit.
23. A poor person’s order is a statement signed under oath and submitted to the court that requests a waiver of
court costs and states that the applicant is financially unable to pay.
24. “Why were you on Block 8 at 8:00 P.M. on January 30, 1999?”
this issue with your opponent before you sought help from the court (for example, you told your opponent
that you thought his request was unreasonable and he refused to make any changes). If the judge grants a
protective order, your opponent’s request will either be thrown out (in which case you will not have to
respond) or be limited (in which case you will only have to respond to part of the request).
(f) Sanctions: Rule 37
Rule 37 allows the court to issue sanctions (monetary fines) against any person who fails to comply with
the rules of discovery. This provides a way for the court to enforce discovery rules.
If your opponent has not responded to your request for discovery and you have made every effort to get
him to respond, you can move for an order compelling your opponent to comply with your request. If your
motion is granted but your opponent still does not comply, the court may hold your opponent in contempt of
court, and your opponent may face fines or even imprisonment. If the plaintiff refuses to comply with
discovery requests, the court may dismiss the lawsuit. All of these punishments are available under Rule 37.
Often, parties will be encouraged to comply with discovery requests if they find out that their opponent has
moved for sanctions.
E. New York Discovery Procedure
Introduction
For the most part, the rules governing discovery procedures in civil suits brought in New York state
courts are similar to the federal rules discussed above. The following is a brief description of the New York
statutes, noting some of the differences between the federal and New York state rules. If you have a case in a
New York state court, you will need to carefully examine both these rules and the cases that apply them.
This Section should help you get started.25
New York statutes use the term “disclosure” instead of “discovery,” but the procedures are basically the
same. The statutes governing disclosure are contained in Article 31 of the New York Civil Practice Law and
Rules (“N.Y. C.P.L.R.”).
A major difference between New York disclosure and federal discovery is that under the New York rules,
parties are not required to meet or give out information voluntarily.26 As a result, you must request any
information that you want from your opponent, and vice-versa. Also, you and your opponent do not need to
wait until after you meet to begin making requests for information. Generally, information can be requested
after a complaint is filed, but only after the defendant has responded or the time period for the defendant’s
response has expired, whichever comes sooner.
Another difference between the two systems of discovery lies in how to deal with difficulties that arise
during the discovery process. Under N.Y. C.P.L.R. 3104, you may request that the court appoint a referee to
oversee the process. This may be helpful if you have difficulty getting your opponent to cooperate. But if you
make this request, the court has the option of requiring you to pay the referee’s expenses. If you are thinking
about this option, you may wish to write to the clerk of the court to see how your particular judge generally
handles such situations. You should keep in mind the provisions for and costs of getting language
translation. According to N.Y. C.P.L.R. 3114, if a witness does not understand English, translation must be
provided to that person for all questions and answers. The cost of this translation must be paid by the party
seeking the information. If you need information from a person who needs a translator but you cannot pay
for this, you should check with the court to see if you have other options.
Methods of Obtaining Information
(i) Depositions
Depositions in New York state court require twenty days notice, unless the court orders otherwise.27 A
subpoena is required to depose someone who is not a party to the proceeding.28 The federal rules do not
25. J. Weinstein et. al., New York Civil Practice Law and Rules Manual (2d ed. 1997), provides a great deal of
information on New York civil procedure and disclosure. Its organization follows the structure of the N.Y. C.P.L.R., so
you can simply consult the section of the Weinstein/Korn/Miller Manual that corresponds to the N.Y. C.P.L.R. section
you want to research.
26. For the opposite federal rule, see Fed. R. Civ. P. 26(a).
27. N.Y. C.P.L.R. 3107 (McKinney 2005).
28. N.Y. C.P.L.R. 3106(b) (McKinney 2005).
normally require advance notice or a subpoena. As with the federal rules, any material that is requested
through disclosure in New York courts must be relevant and not privileged. If you are in a situation where
you think information that you want to request, or information requested from you, may be “privileged,” you
should refer to N.Y. C.P.L.R. 3101, which details what types of information are privileged and what
information may be requested through discovery.
Section 3106(c) of the N.Y. C.P.L.R. requires the court’s permission before a deposition can be taken from
a person in prison. This rule affects both parties: it applies if you need to depose a fellow prisoner and/or if
your opponent wishes to depose you. If your opponent does depose you, Section 3116(a) requires that you
read your statement (or have it read to you) after the deposition. At this point you are required to sign your
deposition. However, before you sign, you should feel comfortable that everything in the deposition is true to
the best of your knowledge. If you feel that a change needs to be made, you may write in the change at the
end of the deposition. You must also state the reasons for making the change. Once your deposition is
finished, Section 3101(e) states that you are allowed to keep a copy. It is always a good idea to request a copy
so that you have a record of your testimony.
(ii) Interrogatories
The practice and form for interrogatories is similar to that used in the federal courts; however, some
differences exist. Under New York law, without a court order, a plaintiff may not serve a defendant with an
interrogatory until after the time limit for the defendant to answer the plaintiff’s complaint has expired. On
the other hand, a defendant can serve interrogatories on any other party whether or not he has answered the
plaintiff’s complaint. In other words, after receiving the complaint, the defendant may immediately serve an
interrogatory.29 Also in New York, the answering party has only twenty days to answer the interrogatory or
to object to the questions. 30 Finally, unlike the Federal Rules, New York does not limit the number of
interrogatories that may be requested.31
(iii) Requests for Production
In New York, requests for production of documents and other materials are similar to requests in federal
court under Federal Rules of Civil Procedure. New York also allows the discovery of materials in the custody
and control of non-parties, if the court grants permission.32
New York courts require that requests for production are not unduly burdensome. This means you must
know what you are seeking and it must be relevant to the case. Production requests used for “fishing
expeditions” will be thrown out. For example, in Konrad v. 136 East 64th Street Corporation, a New York
court ruled that even though N.Y. C.P.L.R. 3120(2) does not require requested documents to be “specifically”
identified, an overbroad discovery request, without a clear target or focus, would be thrown out.33 The court
noted requests must be relevant and the documents sought described with “reasonable particularity,” not
impose an undue burden, and represent a “fishing expedition.”34 Returning to the prison assault example
earlier in Section B(2)(d) of this chapter, an example of a “fishing expedition” would be a discovery request
for the entire file of every police officer who worked in the precinct in which you were arrested.
(iv) Subpoenas
New York rules regarding subpoenas are very similar to the federal rules. Both allow the subpoena
duces tecum (ordering the witness to appear and to bring specified items), which must be issued by a judge
in certain proceedings.35
29. N.Y. C.P.L.R. 3132 (McKinney 2005).

30. N.Y. C.P.L.R. 3133(a) (McKinney 2005).
31. N.Y. C.P.L.R. 3130(1) (McKinney 2005).
32. N.Y. C.P.L.R. 3111, 3120(1) (McKinney 2005).
33. Konrad v. 136 East 64th Street Corp., 209 A.D.2d 228, 228, 618 N.Y.S.2d 632, 633 (1st Dept. 1994) (finding
that an overbroad discovery request constituted an undue burden).
34. Konrad v. 136 East 64th Street Corp., 209 A.D.2d 228, 228, 618 N.Y.S.2d 632, 633 (1st Dept. 1994) (requiring
that discovery requests be relevant).
35. N.Y. C.P.L.R. 2301–08 (McKinney 1991 & Supp. 2007).
(v) Admissions
With respect to admissions, the N.Y. C.P.L.R. follows the federal rules closely. 36 A request for an
admission may be served by the plaintiff after the defendant has answered the complaint, but no later than
twenty days before trial. The person receiving a request for admission has twenty days to admit or deny the
allegation or give a detailed explanation of why he cannot admit or deny the allegation.37
(vi) Motions to Compel Disclosure and Sanctions
If you are having difficulty obtaining information to which you are entitled, you may move the court to
compel disclosure under N.Y. C.P.L.R. 3124. If the court grants your motion and your opponent still does not
provide you with the information, the court may impose penalties under N.Y. C.P.L.R. 3126. You should also
keep in mind that N.Y. C.P.L.R. 3101(h) requires all persons to amend or supplement information they have
submitted if at any time they obtain or remember new information that makes their initial statements
incomplete or wrong. If this requirement is not followed, the court is authorized under N.Y. C.P.L.R. 3101(h)
to make “whatever order may be just.” In some instances, this may mean that the court will not allow into
the trial any evidence concerning the subject matter that should have been supplemented.
Section 3103 of the N.Y. C.P.L.R. allows the court to issue orders “designed to prevent unreasonable
annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” If you
feel your opponent obtained information improperly,38 you may make a motion to the court under N.Y.
C.P.L.R. 3103(c), and the court may keep that information from being used as evidence at trial.
This is only a brief overview of the New York Rules. Although they are generally similar to the Federal
Rules, if you are suing in a New York state court, be sure to study the relevant sections of the N.Y. C.P.L.R.
noted above before proceeding.
F. Criminal Discovery
The rules governing discovery in a criminal prosecution differ from those that govern a civil proceeding.
In general, discovery in criminal cases is more restrictive and limited.
The following section, Part C(1), discusses criminal discovery in federal cases. It explains that the
prosecution must turn over certain materials to the defendant in all criminal cases under the Sixth
Amendment of the United States Constitution. Part C(2) presents an outline of the discovery rules that
apply in New York criminal cases. Finally, there is a brief note about federal discovery procedures. The New
York rules were modeled on the federal rules. Remember that this part does not treat criminal discovery
rules in detail. If you are involved in a criminal case, you should refer to the applicable rule and research
any cases that apply the rule.
Federal Constitutional Requirements
According to the rule laid down by the U.S. Supreme Court in Brady v. Maryland, a prosecutor may not
refuse a request by the defendant for evidence that is favorable to him and is material either to guilt or to
punishment.39 Suppression of such “exculpatory” evidence (evidence which helps the defendant), even as a
mistake, is unacceptable under Brady.
This does not mean that a prosecutor must disclose all evidence favorable to a defendant. The Brady rule
only requires disclosure of favorable evidence that is crucial to the defendant’s case. Any evidence that is
crucial to proving your innocence must be disclosed as a matter of right. The prosecutor’s failure to reveal
36. See N.Y. C.P.L.R. 3123 (McKinney 2005); Fed. R. Civ. P. 36.
37. N.Y. C.P.L.R. 3123 (McKinney 2005). For a more detailed explanation of an admission, see Part B(2)(d)(v) of
this Chapter.
38. For an example of information obtained in an “improper manner,” see Juskowitz v. Hahn, 56 Misc. 2d 647,
648, 289 N.Y.S.2d 870, 871–72 (Sup. Ct. Nassau County 1968), where the defendant obtained evidence from the plaintiff
without notifying the plaintiff’s attorney. The court, while declining to make a judgment on whether the defendant’s
actions were unethical, decided that the circumstances were sufficient to warrant suppression of the evidence.
39. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215, 218 (1963). However, under
Arizona v. Youngblood, if the police lose evidence that is potentially exculpatory, the defendant must show bad faith on
the government’s part in order to prevail in court. Arizona v. Youngblood, 488 U.S. 51, 57–58, 109 S. Ct. 333, 337, 102 L.
Ed. 2d 281, 289 (1988).
such evidence may have a number of consequences, including a new trial or the striking of evidence offered
by the prosecution.40
Federal courts have indicated several limitations to the Brady rule. First, the prosecution is only
required to disclose evidence that helps the defendant (“exculpatory evidence”) if it is “material”—that is, if
it would affect the outcome of the trial.41 Withholding “Brady information” may not result in a new trial if
there is enough other evidence to convict the defendant. Furthermore, Brady does not require the
prosecution to turn over evidence the defense knew existed or should have been able to take advantage of
without the help of the prosecution.42 An example of this rule, as applied in federal court, is a situation in
which the prosecution does not give the defense a witness’ pretrial statement, but instead suggests that the
defense may want to interview the witness. Even though the prosecution withheld the statement, it cannot
be said to have “suppressed” the evidence.43
Second, Brady imposes a duty upon the prosecution to turn over evidence that might help to show the
defendant’s innocence, but it does not give the defense “unsupervised authority to search through the
[state’s] files” in search of exculpatory material.44 It is the state that decides which information must be
disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it
to the court’s attention, the prosecutor’s decision not to disclose is final.45
Exculpatory evidence does not have to directly show that the defendant is innocent. It may simply
weaken the prosecution’s case. One example would be material that casts doubt on a witness’ credibility.
This material is called “impeachment evidence.” The prosecution can be required to turn over a witness’
pretrial statements if they are inconsistent with the witness’ in-court testimony, because the defense can use
the pretrial statement to weaken the witness’ testimony.46
You should understand that Brady represents the minimum standard of discovery guaranteed by the
U.S. Constitution in all criminal cases in the United States. Thus, the states are obligated to provide a
criminal defendant with this material, as well. State discovery rules, such as those found in New York, may
supplement this minimum standard and entitle you to more discovery. In a federal case, however,
exculpatory material that must be disclosed under Brady is the only discovery material the government
must provide to a criminal defendant.
G. New York Procedures
(a) Introduction
New York has been at the forefront of a movement to permit criminal defendants freer access to
information. The results have been good. Though criminal defendants are still limited in obtaining
information before trial, the New York legislature has passed a set of laws governing discovery, found under
Article 240 of the New York Criminal Procedure Law (N.Y. Crim. Proc. L.).47 Article 240 is patterned on Rule
16 of the Federal Rules of Criminal Procedure. So, if you run into a discovery problem and find federal cases
40. For specific examples of various applications of the Brady rule, see Marvin Waxner, New York Criminal
Practice §17.03[8] (2d ed. 2005). See also Chapter 13 of the JLM, “Federal Habeas Corpus.”
41. Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S. Ct. 989, 1001, 94 L. Ed. 2d 40, 57 (1987) ) (noting that “the
government has an obligation to turn over evidence in its possession that is both favorable to the accused and material to
guilt or punishment,” and defining “material” to indicate that there is a “reasonable probability” that had that evidence
been disclosed, the result of the proceeding would have been different (citing States v. Bagley, 473 U.S. 667, 678, 105 S.
Ct. 3375, 3381, 87 L. Ed. 2d 481, 491 (1985)).
42. United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988) (holding that the government was not required to
provide allegedly exculpatory grand jury testimony when the defendant knew or should have known the essential facts).
43. See United States v. Salerno, 868 F.2d 524, 542 (2d Cir. 1989) (rejecting the defendant’s argument that the
government should have had to turn over grand jury testimony of a potential witness when the defendant knew that he
might be interviewed). Note that in New York, witnesses’ pretrial statements must generally be disclosed even if they
are not Brady material. People v. Rosario, 9 N.Y.2d 286, 289, 173 N.E.2d 881, 883, 213 N.Y.S.2d 448, 450 (1961) (finding
that justice entitles the defendant to see a witness’ prior statement “as long as the statement relates to the subject
matter of the witness’ testimony and contains nothing that must be kept confidential”).
44. Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S. Ct. 989, 1002, 94 L. Ed. 2d 40, 58 (1987).
45. Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S. Ct. 989, 1002, 94 L. Ed. 2d 40, 59 (1987).
46. Kyles v. Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 1565, 131 L. Ed. 2d 490, 506 (1995) (noting, in discussing
United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), that there is no difference between
exculpatory and impeachment evidence for Brady purposes).
47. N.Y. Crim. Proc. L. §§ 240.10–240.90 (McKinney 2002).
interpreting Rule 16 in your favor, the New York state courts usually will consider the case as persuasive
(that is, supportive of your case) for interpreting Article 240.48
A general overview of discovery rules found in Article 240 of the N.Y. Crim. Proc. L. follows. Specific
problems that may arise will require you to refer to the statutory provisions themselves and any
accompanying notes.49
(b) Scope of Discovery
a. Discovery Between the Accused and the Prosecutor
You may request a limited amount of information that is “material” to your case. Article 240 allows you
to inspect, photograph, copy, or test certain types of “property,” 50 like police reports or recordings of
statements.
One type of discoverable material that you may request is any written, recorded, or oral statement you
made to the police or to persons acting under police direction “other than in the course of the criminal
transaction.”51 You are also entitled to similar statements made by a co-defendant who will be tried jointly
with you. This will generally apply where you or a co-defendant have made a statement following arrest. A
statement made at the police station is an example. Notice that this does not cover statements made during
“the criminal transaction”. For example, ordinarily the prosecution is not obligated to turn over copies of
conversations between you and an undercover officer during a drug transaction. An exception exists where
the statement is recorded electronically; if a conversation is recorded on tape, you are entitled to it through
discovery.52 This can be very helpful in setting up certain defenses, such as entrapment. In an entrapment
defense, you need to show that the police induced you to commit a crime you would not have committed if
they had left you alone.
Discovery of any statement made before the criminal transaction began can also be important. Such
evidence might be important in establishing whether you had the motive or intent to commit the crime. For
instance, if you made a statement before a homicide was committed indicating that you hated the victim, it
could be used to prove motive. It is important, then, that you discover any material of this sort if it exists.
Another type of discoverable “property” is a transcript of testimony you or a co-defendant made before a
grand jury.53 A transcript of your testimony could be helpful in revealing any weaknesses in your case
because it could indicate whether you gave any damaging testimony. It might also help you to maintain a
consistent version of your story. If, for instance, you make a statement at trial inconsistent with the
testimony you gave before the grand jury, the prosecution could point this out. This inconsistency could
weaken your credibility with the judge or the jury. You will want to anticipate and, if possible, prevent this.
Article 240 also allows you to discover scientific evidence, 54 such as a written report or document
concerning a physical or mental examination; scientific test or experiment which relates to the crime for
which you are charged; psychological reports; ballistics reports (scientific gun examination that can
determine whether a bullet was fired from a particular gun); drug tests; semen tests; and blood-typing. Tape
or electronic recordings constitute yet another type of discoverable property.55 The prosecutor must disclose
any tape or electronic recording that he intends to introduce at trial if you request such material.
You are also entitled to reports that reveal the approximate date, time, and place of the crime and of the
arrest.56 This information may be useful if you have an alibi. Also you may discover “any other property”
48. People v. Copicotto, 50 N.Y.2d 222, 226, 406 N.E.2d 465, 468, 428 N.Y.S.2d 649, 652 (1980) (stating that the
criminal discovery procedure in Article 240 was adopted from Fed. R. Civ. P. 16).
49. Chapter 17 of Waxner’s New York Criminal Practice also provides helpful information about New York
criminal discovery. Marvin Waxner, New York Criminal Practice (2d. ed. 2005).
50. “Property” is defined as “any existing tangible personal or real property, including, but not limited to, books,
records, reports, memoranda, papers, photographs, tapes or other electronic recordings, articles of clothing, fingerprints,
blood samples, fingernail scrapings or handwriting specimens, but excluding attorneys’ work product.” N.Y. Crim. Proc.
L. § 240.10(3) (McKinney 2002).
51. N.Y. Crim. Proc. L. § 240.20(1)(a) (McKinney 2002).
52. N.Y. Crim. Proc. L. § 240.20(1)(g) (McKinney 2002).
53. N.Y. Crim. Proc. L. § 240.20(1)(b) (McKinney 2002).
54. N.Y. Crim. Proc. L. § 240.20(1)(c) (McKinney 2002).
55. N.Y. Crim. Proc. L. § 240.20(1)(g) (McKinney 2002).
56. N.Y. Crim. Proc. L. § 240.20(1)(i) (McKinney 2002).
obtained from you or a co-defendant.57 This might include weapons, clothing, drugs, tools, cars, or other
items. Discovery of this type of property can help you in preparing your case since it gives you insight into
what the prosecutor is going to present at trial as a means of linking you to the crime.
b. Discovery Between the Accused and Third Parties: Subpoena Duces Tecum
The subpoena duces tecum is a process whereby the court orders a witness to bring documents relevant
to the court proceedings with them when they come to testify. It is frequently used when information is in
the hands of third parties—parties other than the prosecutor (and his staff) and the defendant.58 Article 240
does not allow the prosecutor or defendant to discover third party material by the usual means of a demand
to produce or motion for discovery. Therefore, the subpoena duces tecum is the method used in seeking
disclosure of this material.
In order to obtain a subpoena duces tecum for pretrial discovery purposes under N.Y. Crim. Proc. L.
Section 610.20(3), in your motion you must show the following:59
(1) The materials are relevant and evidentiary;
(2) The request is specific;
(3) The materials are not otherwise reasonably obtainable before trial by the exercise of due diligence;
(4) You cannot properly prepare for trial without production and inspection of the material before the
trial and the failure to procure the information may tend to unreasonably delay the trial; and
(5) The application is made in good faith and is not intended to be a general “fishing expedition.”
(6) In addition, your motion for a subpoena duces tecum should indicate a specific time and place for
inspection of the desired materials.
(c) Non-discoverable Material
The two types of material that are generally not discoverable under Article 240 are (1) attorney’s work
product, and (2) records of any statement made in the course of the criminal transaction, with the exception
of any electronic recordings that the prosecutor intends to introduce at trial.60 “Attorney’s work product” is
defined in the statute as “property to the extent that it contains the opinions, theories, or conclusions of the
prosecutor, defense counsel or members of their legal staffs.”61 The prosecutor is not required to turn over
memoranda, or other documents containing his legal theories or opinions. In the same manner, you are not
required to produce yours if a prosecutor’s demand is made. If you have, for instance, several notes laying
out the defense of consent in a rape charge, you do not need to reveal the means by which you are going to
attempt to show consent. This rule is very similar to the work product rule found in civil discovery.
(d) Procedures to Obtain Information
Under N.Y. Crim. Proc. L. Section 240.10(1), you may obtain access to any discoverable material before
the trial begins by serving a “demand to produce” on the prosecutor.62 A demand to produce is a written
notice that you may serve on your adversary without first getting permission from the court. It will include
information as to what “property” you want to inspect, and it must provide a reasonable notice of the time at
which you desire to conduct the inspection. It is important to be fairly specific in making your demands. You
are not permitted to go on a “fishing expedition” by requesting in very general terms to inspect property. For
57. N.Y. Crim. Proc. L. § 240.20(1)(f) (McKinney 2002).

58. See State ex rel. Everglades Cypress Co. v. Smith, 139 So. 794, 795, 104 Fla. 91, 93 (Fla. 1932) (stating that the
process of subpoena duces tecum is applicable to witnesses other than the adverse party to the case).
59. People v. Price, 100 Misc. 2d 372, 379, 419 N.Y.S.2d 415, 420 (Sup. Ct. Bronx County 1979). The list cited
above is not a direct quote from the case, but rather reflects clarifications of the case’s meaning as subsequent case law
has interpreted it.
60. See United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988) (stating that a prosecuting party only has the
duty to disclose exculpatory evidence which is known to the prosecution but unknown to the defense).
61. N.Y. Crim. Proc. L. § 240.10 (McKinney 2002). However, if any exculpatory Brady material exists, see Part
C(1) of this Chapter, then a duty to disclose that particular evidence is imposed, despite the fact that the material might
include some work product. See People v. Finkle, 103 Misc. 2d 985, 986, 427 N.Y.S.2d 374, 375 (Sup. Ct. Sullivan County
1980). Routine police records containing information required to be filed in the normal course of business are not exempt
from discovery. People v. Simone, 92 Misc. 2d 306, 312–13, 401 N.Y.S.2d 130, 134 (Sup. Ct. Bronx County 1977).
62. See N.Y. Crim. Proc. Law §§§ 240.80, 240.90, and 255.20 (McKinney 2002) for information on filing a motion
for an order of discovery.
example, it would be improper for you to demand inspection of any and all information in the prosecutor’s
files that might be material to the case.
According to N.Y. Crim. Proc. L. Section 240.80, a demand to produce must be filed within thirty days
following your arraignment.63 However, if you are not represented by counsel, the thirty-day period does not
start until counsel initially appears on your behalf—provided you have requested an adjournment to obtain
such assistance.
Discovery mechanisms are not limited to the defendant. The prosecutor, too, may take advantage of
reciprocal discovery under N.Y. Crim. Proc. L. Section 240.30.64 In addition to discovery, you may also be
ordered to provide non-testimonial evidence, such as appearing in a line-up, providing a hand writing
sample, fingerprinting, posing for photographs so long as they are not a re-enactment of the crime, or
submitting to a reasonable physical or medical inspection. 65 As a defendant, you must respond to the
prosecutor’s demands to produce by either providing the desired information or filing a refusal of demand
under N.Y. Crim. Proc. L. Section 240.35.
The discovery process does not end once the trial begins. Under N.Y. Crim. Proc. L. Section 240.45,
certain materials can be discovered at the initial stages of the trial. These materials could prove to be very
important to your case. After the jury has been sworn and before the prosecutor’s opening address,66 the
prosecutor must turn over to you the following documents or information:
(1) Any statement (including testimony before a grand jury or a videotaped examination) made by a
person the prosecutor plans to call as a witness that relates to the subject matter of the witness’s
testimony;67
(2) Any conviction record of a witness to be called at trial if the prosecutor is aware of the record; and
(3) Information concerning any pending criminal action against any witness the prosecution intends to
call, if the prosecutor is aware of such action.
(4) You have the same duty to reveal such information before presenting your case.68
This information can be helpful because it may permit you to attack the credibility of prosecution
witnesses. For instance, if you find out that a potential witness for the prosecution has been previously
convicted of perjury, or lying under oath, you may use this information at trial to impeach the witness (that
is, to attack his credibility). Revealing this fact to a jury may cast doubt on the truth of the witness’
testimony. This could give you an advantage.
(e) Duty to Disclose
Throughout the entire discovery process, there is a duty to disclose properly requested information in the
discovery process. This means that both the prosecutor and the defendant must hand over to the other side
any important documents or information that the other side has requested. You must be careful not to ignore
the prosecutor’s demands for discoverable material. Otherwise, you could face court sanctions by the court.69
Despite the general duty to disclose, there are situations where a prosecutor or defendant may refuse to
reveal requested information. The main requirement for refusing to disclose is that you must have a
reasonable belief that the requested material is not discoverable. For example, material may not be
discoverable where it is irrelevant, privileged, or subject to a protective order.70 When refusing to comply
with a demand, you must do so in writing and explain the reasons for your refusal.71 This must be done
within fifteen days from the time you are served with the demand unless you can show good cause why you
63. For an example of a demand form, see Marvin Waxner, New York Criminal Practice, Form No. 17:1 (2d. ed.
2005).
64. However, the prosecutor may only ask for material that is similar in kind and character to the material you
are asking for from him.
65. N.Y. Crim. Proc. Law § 240.40(2)(b) (McKinney 2002).
66. In the case of a non-jury trial, the information must be turned over prior to the offering of evidence.
67. This is commonly called Rosario material. See People v. Rosario, 9 N.Y.2d 286, 289, 173 N.E.2d 881, 882–83,
213 N.Y.S.2d 448, 450 (1961). In federal practice these documents are governed by the Jencks Act, 18 U.S.C. § 3500
(2000).
68. N.Y. Crim. Proc. Law § 240.45(2) (McKinney 2002).
69. N.Y. Crim. Proc. Law § 240.70 (McKinney 2002).
need more time.72 Your refusal must be served upon the demanding party and a copy of it must be filed with
the court.73
If the prosecutor demands information from you and you refuse, but your refusal is unjustified, the court
may order you to disclose the material anyway.74 Similarly, if the prosecutor refuses to provide information
that you demand, but the court finds the prosecutor’s refusal of your demand unjustified, it will order that
the prosecutor give you the material you requested. 75 The court may also order discovery of any other
materials the prosecutor intends to use at trial if you show that such property is material to your case and
that the request is reasonable.76
If you feel there is good reason for refusing to turn over some of your material, you can apply for a
protective order, which will deny or limit discovery. Likewise, if the prosecutor thinks there is a good reason
not to turn over information to you, the prosecutor can apply for a protective order. Even other parties
affected in your case can apply for a protective order if they think there is a good reason not to turn over
information. The court can also issue a protective order on its own initiative.77
In order to be granted a protective order denying or limiting discovery by the other side, you must show
good cause. Good cause includes constitutional limitations; danger that physical evidence may be destroyed
or damaged; substantial risk of physical harm; the possibility of intimidation or bribery (usually a
prosecutor’s defense); a risk of unjustified annoyance or embarrassment to any person; any potential
negative effects on the legitimate needs of law enforcement, such as protection of informants; or any other
factor that outweighs the usefulness of discovery.78 When filed, a motion for a protective order suspends
discovery of the particular matter.79 This means that you or (the prosecutor) won’t be forced to hand over the
disputed material until the judge makes a decision on your request for the protective order.
It is extremely important that you follow these rules. If you refuse to disclose information requested by
the prosecutor, you must be sure to establish that you have a “good cause.” If you do not, the court may order
sanctions.80 The court may, for example, prohibit the use of certain evidence or prohibit you from calling of
certain witnesses at your trial. It may also take “any other appropriate action” that it thinks is reasonable to
sanction you. Therefore, it is important that you pay special attention to the procedures involved,
particularly to the time limits (deadlines for filing certain motions and requests) found throughout N.Y.
Crim Proc. L. Section 240.
It is also important to remember that there is a continuing duty to disclose any additional information
subject to discovery.81 This means that if you have made a demand for material and the prosecutor later
receives information that is covered by your original request, the prosecutor must turn it over that
information to you. Similarly, you must turn over material that you later become aware of if it is covered by
a prosecutor’s earlier demand to produce.
(f) Summary
This description of various discoverable materials and information is meant only to give you a very
general picture of the tools that are available to you in a criminal proceeding. Effective use of these tools
requires a careful reading of Article 240 of the N.Y. Criminal Procedure Law and the particular sections
relating to types of discoverable material. You must also look at the case law interpreting the various
provisions, particularly if you are looking for the answer to a very specific question. Much of the case law can
be found in the annotations to the New York statutes, which are listed directly after the statute provisions.
Supplemental treatises (other articles) may also be helpful.

74. N.Y. Crim. Proc. Law § 240.40(2)(a) (McKinney 2002).
76. N.Y. Crim. Proc. Law § 240.40(1)(c) (McKinney 2002).
79. N.Y. Crim. Proc. Law § 240.50(3) (McKinney 2002)
H. Federal Discovery
If your criminal case is in federal court, you should refer to Rule 16 of the Federal Rules of Criminal
Procedure for the discovery rules. Since Article 240 of N.Y. Criminal Procedure Law is very similar to Rule
16 of the Federal Rules of Criminal Procedure, there are really no major differences in form. Federal Rule 16
provides for basically the same types of discoverable material, 82 and has similar rules for limiting the
discovery process by protective orders.83 There are also provisions for sanctions if a party does not follow the
Rule84 or violates the continuing duty to disclose.85
It is important to note, however, that although Federal Rule 16 is very similar in form to Article 240 of
the N.Y. Crim. Proc. L., the federal rule is applied differently in practice. Discovery is harder to get in
federal courts than in New York state courts, which makes it harder for you to get information that you
want from the prosecutor. This is because federal courts allow the prosecutor to make more decisions about
what he will and will not disclose to you. The courts will usually support those decisions.
When you make a specific request or motion, be sure to cite the relevant subsections of Rule 16 as
authority for your specific requests and motions. If you need to subpoena a third party to produce documents
or evidence (subpoena duces tecum), refer to Rule 17(c) of the Federal Rules of Criminal Procedure.
I. Conclusion
Discovery is a process by which you and your opponent can find out important information from each
other about your case. The rules of discovery govern when you may request information from your opponent
and when you are required to disclose information to your opponent. These rules differ depending on
whether your case is a civil or criminal matter and whether you are in state or federal court. It is important
to find out the rules that apply to the court you are in, since failing to comply with the appropriate rules of
discovery may result in the judge imposing penalties on you or even throwing your case out of court.
82. See Fed. R. Crim. P. 16(a) and (b).

83. See Fed. R. Crim. P. 16(d)(1).
84. See Fed. R. Crim. P. 16(d)(2).
85. See Fed. R. Crim. P. 16(c).
APPENDIX A
SAMPLE DISCOVERY DOCUMENTS

A-1 Sample Request For Production of Documents
A-2 Sample Request For Admission
A-3 Sample Notice of Interrogatory
A-4 Sample Notice of Motion for Order Compelling Discovery
Selected legal forms for conducting discovery in federal court follow. Do not tear these forms out of
the book. You must copy them onto your own paper, filling in appropriate information that applies to you.
You may be able to adapt these forms to state procedure if your state’s discovery law is similar to that
contained in the Federal Rules of Civil Procedure. In that case, you should replace the federal rule cited with
the applicable state law or rule. But, you should always consult a legal form book for your state if you are not
sure that these forms conform to your state’s procedure.
A-1. SAMPLE REQUEST FOR PRODUCTION OF DOCUMENTS86
[proper case caption]87
Plaintiff [your name] requests defendant [defendant’s name] to respond within [number] days to the
following requests, namely that:
Defendant produce and permit plaintiff to inspect and to copy each of the following documents: [You
should list the documents either individually (for example, minutes of a prison disciplinary hearing) or by
category (for example, personnel files of one of the defendants) and describe each of them.]
[You should also state the time, place, and manner of making the inspection and of making the
photocopies. You may wish to request that the defendants send copies of the documents to you at your prison
facility. You should also request that the defendants send a list of all of the documents they are sending so
that you make sure that none of the documents were lost in transit.]
Defendant produce and permit plaintiff to inspect and to photograph, test, or sample each of the
following objects: [list the objects either individually (baton used by guard) or by category (blood and hair
samples of the guard or the samples obtained from you during a medical examination).]
[Again, you should ask the defendants to send the evidence to you, unless you are concerned that the
objects will be interfered with before they reach you at the prison. You may wish to request specifically that
the objects are sent in sealed containers so that you can see if they are tampered with before they reach you.
However, if they are tampered with before they reach you, you may have no remedy.]
Defendant permit plaintiff [or name someone that will get the information for you] to enter [describe
property to be entered] and to inspect, photograph, test or sample [describe the portion of property and the
objects to be inspected. Since you will not be able to leave your facility to visit a property, you should ask
someone else to visit the cell block or other area where the incident that you are complaining about
occurred.]
[You should also state the time, place, and manner of making the inspection and performance of any
related acts.]
Dated:
[date] [city, state]
Signed,
[your name & address]
Plaintiff, pro se.
86. Adapted from Roger S. Haydock & David F. Herr, Discovery Practice app. B-26 (4th ed. 2004) (Form D-1).
87. Chapter 6 of the JLM, “An Introduction to Legal Documents,” includes examples of what case captions look
like.
A-2. SAMPLE REQUEST FOR ADMISSION88
[proper case caption]
Plaintiff [your name] requests defendant [defendant’s name], within [number] days after service of this
request, to make the following admissions for the purpose of this action only and subject to all pertinent
objections to admissibility which may be interposed at the trial:
That each of the following documents, exhibited with this request, is genuine:
[Here list the documents and describe each document that you have so that the defendant will be able to
verify that it is the actual document and not something that has been changed.]
That each of the following statements is true:
[Here list the statements that you would like the defendant to admit. If you believe that the defendant
may not want to admit certain things, you may not want to include those things in a request for admission,
but in an interrogatory.]
Dated:
Signed,
Plaintiff, pro se.
A-3. SAMPLE NOTICE OF INTERROGATORY89
[proper case caption]
To: [Each party and the attorney for each party]
PLEASE TAKE NOTICE that pursuant to Rule 31, Fed. R. Civ. P., the following interrogatories are to
be propounded on behalf of [party seeking answers] to [name and address of deponent] by [name and title of
deposition officer] pursuant to notice served herewith.
[Set out interrogatories in numerical order.]
Dated:
Signed,
Plaintiff, pro se.
88. Adapted from Roger S. Haydock & David F. Herr, Discovery Practice app. B-30 (4th ed. 2004) (Form F-1).
89. Adapted from Roger S. Haydock & David F. Herr, Discovery Practice app. B-23 (4th ed. 2004) (Form B-9).
A-4. SAMPLE NOTICE OF MOTION FOR ORDER COMPELLING DISCOVERY90
Note: This motion seeks to compel production of documents. This form may also be used if your opponent
has refused to comply with a different discovery request (for example, failing to respond to interrogatories).
Simply change the language referring to a request for production of documents to indicate the type of
discovery you are seeking.
[proper caption]
[Plaintiff/defendant] moves this court for an order pursuant to Rule 37 of Fed. R. Civ. P. [describe relief
sought]. A copy of a proposed order is attached to this motion. The reasons supporting this motion include
[explain reasons such as the defendant’s failure to answer your interrogatories, to produce records, or to allow
you to perform discovery in a way that was practical for you].
[Plaintiff/defendant] further moves the court for an order seeking reasonable attorney’s fees and costs
and expenses incurred in this proceeding. There exists substantial justification for seeking fees, costs and
expenses, because [explain reasons why such as defendant’s ignoring your requests or defendant’s telling you
that your case was worthless because you are a prisoner].
This motion is based upon the notice, pleadings, records, and files in this action, and the attached
supporting affidavits [or: declarations] of [party, witness, attorney—persons who can state that they know
that the defendant did not produce the documents or that you did not receive them] and the attached
memorandum of law [if necessary or appropriate], and oral and documentary evidence to be presented at the
hearing on the motion [if you think a hearing will be necessary].
Dated:
Signed,
Plaintiff, pro se.
90. Adapted from Roger S. Haydock & David F. Herr, Discovery Practice app. B-34 (4th ed. 2004) (Form G-1).
Manual
Chapter 9:
Appealing Your Conviction
Or Sentence

8th Edition 2009
LEGAL DISCLAIMER
CHAPTER 9
APPEALING YOUR CONVICTION OR SENTENCE*

A. Introduction
This Chapter explains how you can appeal your conviction or sentence. This Chapter deals specifically
with New York law. If you have been convicted or sentenced in a federal court, your appeal will be governed
by federal law, and you should use the prison’s law library to find information about federal appeals.
Likewise, if you have been convicted or sentenced in a state court outside of New York, that state’s laws will
govern your appeal, and you should use the prison’s law library to find information about those laws. Even if
New York law does not apply to your appeal, however, you may find it useful to read this Chapter for
background information about general issues relating to appeals.
This Chapter is divided into eight main parts. Part A (the part you are reading now) is the introduction.
Part B explains what a criminal appeal is and describes where you should file an appeal. Part C discusses
how your right to appeal may be limited and what you can do to keep your right to appeal. Part D explains
what you can do before the court hears your appeal, including how you can request release on bail while your
appeal is pending. Part E describes the grounds on which an appellate court reviews your case, and what
type of relief is available to you. Part F explains what papers you need to fill out in order to appeal and
explains where, when, and how you should file these papers. Part G discusses the possibility of pursuing
your claim if you lose on appeal.1 Finally, Part H discusses your right to have a lawyer when you appeal,
which is also called your right to effective assistance of appellate counsel. For now, keep in mind that you
have a constitutional right to counsel for your appeal.2 This means that if you cannot afford to hire a lawyer
for your appeal, the state must provide you with a lawyer.3
At the end of this Chapter, you will find two appendices that contain useful information. Appendix A will
help you figure out where you should file your appeal. Appendix B provides sample papers for appeals,
including papers needed to get a lawyer without cost, to get released on bail pending appeal, and to get an
extension of time to take your appeal. You should read the entire Chapter before consulting these sample
papers: if you complete the forms incorrectly, you may lose your chance to appeal. These forms are samples
only: you must write your own versions of these papers. If you simply tear these papers out of the book and
send them to a court, the court might ignore them.
Keep in mind as you read this Chapter that timing is crucial to preserving your right to appeal.
B. What Is a Criminal Appeal?
A criminal appeal allows you to take your case to a higher court, called an “appellate court.” This higher
court has the power to review, and potentially change, certain trial court decisions. A criminal appeal allows
you to challenge your sentence and/or your conviction of a felony, misdemeanor, or violation. 4 As the
“appellant,” you will argue the trial court’s judgment5 or sentence was wrong because of harmful legal errors
that occurred at your trial or hearing.
* This Chapter was revised by Douglas Shively, based on previous versions by Sydney Bird, Miranda Berge, Peggy
Cross, Joy Fuyuno, Deidra D. Dixon, Janet Ellis, and Amy Metzler.
1. See Melvin Bressler et al., Appeals in Criminal Cases, in New York Criminal Practice Handbook 651, 651
(Lawrence N. Gray ed., 2d ed. 1998). Bressler has been an important resource in the writing of this Chapter of the JLM.
We strongly recommend it for a detailed, chronological discussion of the criminal appellate process in New York State.
2. See Douglas v. California, 372 U.S. 353, 356–58, 83 S. Ct. 814, 816–17, 9 L. Ed. 2d 811, 814–15 (1963) (holding
that during a first appeal, an indigent defendant (someone who cannot afford a lawyer) has the right to a lawyer,
including the right to a lawyer appointed at the state’s expense).
3. See Douglas v. California, 372 U.S. 353, 356–58, 83 S. Ct. 814, 816–17, 9 L. Ed. 2d 811, 814–15 (1963) (holding
an indigent defendant (someone who cannot afford a lawyer) has the right to a lawyer appointed at the state’s expense).
4. A felony is a crime that is punishable by a prison term of more than one year. N.Y. Penal Law § 10.00(5)
(McKinney 2004 & Supp. 2008). A misdemeanor is an offense, other than a “traffic infraction,” that can be punished by a
brief jail sentence of at least 15 days but no more than one year. N.Y. Penal Law § 10.00(4) (McKinney 2004 & Supp.
2008). A violation is a non-criminal offense that is punishable by no more than 15 days in jail. N.Y. Penal Law § 10.00(3)
(McKinney 2004 & Supp. 2008).
5. A judgment means your conviction (the entry of a guilty plea or a guilty verdict) and your sentence. See N.Y.
Crim. Proc. Law § 1.20(13)–(15) (McKinney 2003 & Supp. 2008).
After the appellate court reviews your appeal, it will make one of three decisions. First, it might
“reverse” the trial court’s judgment, which means it declares the entire judgment invalid. Second, it might
“affirm” the trial court’s judgment, which means it upholds the entire judgment. Finally, it might “modify”
the trial court’s judgment, which means it reverses part of the judgment and affirms another part of the
judgment.6 If the appellate court reverses or modifies the judgment, it will also take some action to correct
the judgment, such as reducing your sentence or dismissing your indictment.7
Sometimes the appellate court might determine that it does not have enough information to decide your
appeal right away. If this happens, the appellate court may suspend your appeal and send the matter to a
lower court for additional proceedings. 8 This means that the appellate court will not decide whether to
affirm, modify, or reverse the judgment until the lower court has held another hearing.
If you decide to file an appeal, you will need to figure out to which court you should submit your appeal.
There are two types of court to which appeals can be made: (1) an intermediate appellate court9 or (2) the
Court of Appeals of the State of New York, which is the highest state court.10 In most cases, you will need to
file an appeal with an intermediate appellate court before the Court of Appeals will hear your case. If you
have been sentenced to death, however, you have the right to appeal directly to the Court of Appeals without
having to go through an intermediate appellate court.11
Note that there are many intermediate appellate courts, so unless you are appealing directly to the
Court of Appeals, you need to figure out which is the right intermediate appellate court for your case. This
will depend on where you were convicted.12 For example, if you were convicted of a felony in a New York
supreme court, you must appeal to the appellate division of the department in which you were convicted.13
Appendix A at the end of this Chapter can help you figure out where to file your appeal.
You will also need to figure out if you need permission to file your appeal. In general, you do not need
permission if you are appealing: (1) the trial court’s judgment against you,14 (2) your sentence,15 or (3) an
6. See N.Y. Crim. Proc. Law §§ 470.10(1), (2), 470.15(2) (McKinney 1994 & Supp. 2008).
7. See N.Y. Crim. Proc. Law § 470.10(3) (McKinney 1994 & Supp. 2008).
8. This process is called “remitting.” For examples of when the appellate court has remitted a matter for further
hearings, see People v. Hasenflue 24 A.D.3d 1017, 1018, 806 N.Y.S.2d 766, 768 (3d Dept. 2005) (decision withheld and
matter sent back to trial court to look at the defendant’s competency to stand trial); People v. Britt, 231 A.D.2d 581, 583,
647 N.Y.S.2d 527, 529 (2d Dept. 1996) (matter sent back for more hearings on whether the trial judge followed the
proper three-step procedure to find out if peremptory strikes—which are used to keep certain people off of a jury—were
used to keep people off the jury because of their race).
9. An intermediate appellate court means any court possessing the power to hear appeals other than the Court of
Appeals. N.Y. Crim. Proc. Law § 450.60 (McKinney 2005 & Supp. 2008). In New York, there are two intermediate
appellate courts: the appellate division and the appellate term. See the inside covers of the JLM for diagrams of New
York’s federal and state court systems.
10. The Court of Appeals of the State of New York is the highest state court. For an explanation of New York’s
state court system, see JLM. For a diagram of the New York state system, see the JLM’s inside back cover.
11. N.Y. Crim. Proc. Law § 450.70 (McKinney 2005 & Supp. 2008).
13. N.Y. Crim. Proc. Law § 450.60(1) (McKinney 2005). For more information, see Appendix A of this Chapter.
14. N.Y. Crim. Proc. Law § 450.10(1) (McKinney 2005 & Supp. 2008). Though a trial court makes many orders and
rulings during your trial, you cannot appeal these rulings until there is a final judgment. See, e.g., People v. Boyd, 91
A.D.2d 1045, 1046, 458 N.Y.S.2d 643, 644 (2d Dept. 1983) (holding that any objection to an intermediate order denying a
motion to suppress evidence is reviewable only on an appeal from judgment); People v. Pollock, 67 A.D.2d 608, 608, 412
N.Y.S.2d 12, 12 (1979), aff’d, 50 N.Y.2d 547, 407 N.E.2d 472, 429 N.Y.S.2d 628 (1980) (stating no separate appeal is
available for an order denying a motion to set aside a verdict; review is only available on appeal from judgment).
15. N.Y. Crim. Proc. Law § 450.10(2) (McKinney 2005 & Supp. 2008). Note that the statute says it excludes
appeals of allegedly excessive sentences if you agreed to the sentence as part of a plea bargain. But, the Court of Appeals
decided this part of the statute is unconstitutional because the legislature (which created the statute) does not have the
power to prevent the appellate division from hearing these appeals. See People v. Pollenz, 67 N.Y.2d 264, 270, 493
N.E.2d 541, 543, 502 N.Y.S.2d 417, 419 (1986) (holding under Article 1, Section 4(k) of the New York State Constitution,
the legislature could not limit the appellate division’s jurisdiction, such that the legislature could not write a law
prohibiting defendants from appealing excessive sentences). Section 450.10(2) of the New York Criminal Procedure Law
may still be applicable in cases where the intermediate appellate court is an appellate term. See Preiser, Practice
Commentaries, N.Y. Crim. Proc. Law § 450.10 (McKinney 2005 & Supp. 2008). Note also, though the statute itself may
not prevent an appeal of an allegedly excessive sentence, you may have voluntarily waived your right to appeal your
sentence or conviction as part of a plea or negotiated sentence. For more information, see Part C(2) of this Chapter.
order granting the District Attorney’s motion under Article 440 to set aside your sentence to impose a longer
sentence.16 New York law grants you the right to appeal these decisions to an intermediate appellate court.
For other challenges, however, you may first need to get permission before you file an appeal. For
example, if you have already made a motion to vacate your judgment under Section 440.10 of the New York
Criminal Penal Law or a motion to set aside your sentence under Section 440.20, and the court has denied
your motion, you will need to ask the court for permission to appeal the court’s denial.17 Note that if you
need to ask for permission to appeal, a court does not have to accept your appeal, whereas a court must
accept your appeal if you have the right to appeal on that issue.
After an intermediate appellate court reviews your case and makes a decision, you may then appeal this
decision to the Court of Appeals of the State of New York, but only if you have permission. This means that
you do not have a right to appeal the appellate court’s decision to the Court of Appeals. Note that the Court
of Appeals will only consider one application for permission to appeal per case, including applications
addressed to a justice of the appellate division.18 If the Court of Appeals decides to hear your case, it will
issue a certificate of leave to appeal.19 Part G explains this process in detail.
Finally, keep in mind that filing an appeal is not the only way to challenge your conviction or your
sentence under New York law. In certain situations, you may be able to file a motion to vacate the judgment
against you20 or a motion to set aside your sentence.21 These motions are often called Article 440 motions,
and are usually only available where a direct appeal would not be possible. In other words, when the record
from your trial does not contain the necessary facts for a court to decide the issue that you want to raise on
appeal, you may be able to file an Article 440 motion instead of an appeal.22 For a more detailed description
of when you can file an Article 440 motion and which claims you may raise in an Article 440 motion, see
Chapter 20 of the JLM.
C. Limits on Your Right to Appeal
When deciding whether you should appeal your criminal conviction or sentence, you should first
determine whether there are any limits on your right to appeal. This is an important first step because you
may have already lost all or part of your right to appeal. A person can surrender (give up) their right to
appeal in several ways. For example, if you pleaded guilty, you might have agreed to waive (give up) your
right to appeal as part of a plea bargain. Even if you did not waive your right in a plea agreement, your right
to appeal may be limited if you missed certain deadlines or failed to raise certain objections in trial court.
This Part will help you to identify if there are any potential limits on your right to appeal, including time
limits, plea agreements, and the preservation requirement. If limits on your right to appeal exist, this Part
will also help you determine the possibility for reinstating (getting back) your right to appeal.
16. N.Y. Crim. Proc. Law § 450.10(4) (McKinney 2005 & Supp. 2008). For more information regarding Article 440
appeals, see Chapter 20 of the JLM.
17. See N.Y. Crim. Proc. Law § 450.15 (McKinney 2005). If you obtain permission, you can appeal a sentence that
you could not otherwise appeal under Section 450.10(1) and (2) of the New York Criminal Procedure Law; you can also
appeal the denial of your Article 440 motion to vacate a judgment or set aside a sentence. See Form B-2 in Appendix B at
the end of this Chapter for a sample application for permission to appeal. You may make only one such application. The
procedure for requesting leave to appeal under Section 460.15 varies depending on to which intermediate court you are
applying. N.Y. Crim. Proc. Law § 460.15(2) (McKinney 2005). See generally N.Y. Comp. Codes R. & Regs. tit. 22, §§
600.8(d), 670.12(b) (2003) (describing these procedures); N.Y. Comp. Codes R. & Regs. tit. 22, § 800.3 (1995) (same); N.Y.
Comp. Codes R. & Regs. tit. 22, § 1000.13 (1998) (same); Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 460.15
18. See People v. Liner, 70 N.Y.2d 945, 945, 519 N.E.2d 619, 524 N.Y.S.2d 673 (1988) (dismissing appeal made by
defendant’s lawyer on ground that court could not hear appeal after defendant had already made pro se application for
appeal to the appellate division); People v. Nelson, 55 N.Y.2d 743, 743, 431 N.E.2d 640, 447 N.Y.S.2d 155, 156 (1981)
(dismissing appellate division’s grant of permission to appeal while prior application was pending in Court of Appeals).
19. N.Y. Crim. Proc. Law § 460.20 (McKinney 2005 & Supp. 2008); see also N.Y. Crim. Proc. Law § 450.90
(McKinney 2005 & Supp. 2008). If you are appealing an appellate division’s order, a judge from the same department of
the appellate division may grant you a certificate of leave to appeal before the Court of Appeals. N.Y. Crim. Proc. Law §
460.20(2)(a) (McKinney 2005 & Supp.2008).
20. See N.Y. Crim. Proc. Law § 440.10 (McKinney 2005 & Supp. 2008).
21. See N.Y. Crim. Proc. Law § 440.20 (McKinney 2005 & Supp. 2008).
22. See Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 440.10 (McKinney 2005 & Supp 2008).
1. Time Limits
The general rule is that you will lose your right to appeal if you wait too long to file a notice of appeal
after you have been sentenced. To preserve your right to appeal, you must file two copies of a notice of
appeal 23 with the clerk of your trial court within thirty days of the date you were sentenced. 24 When
appealing a judgment, you must count thirty days from the original sentence, even if there was a re-
sentencing.25 Within the same thirty-day period, you must also serve a copy of the notice of appeal on the
District Attorney of the county in which your trial was held.26 See Part F, “Preparing Your Papers for
Appeal.” THESE TIME LIMITS ARE EXTREMELY IMPORTANT.
If you fail to file a notice of appeal within the thirty-day period, you lose your right to appeal entirely,
and an appellate court will refuse to review your conviction. This thirty-day period after your conviction is a
critical period, and you have a constitutional right to counsel during this time.27
If you miss the thirty-day deadline, you may be able to recover your right to appeal by filing a motion for
a time extension.28 This extension will only be granted if you meet two requirements. First, you must make
the motion for a time extension within one year of the original deadline for filing a notice of appeal.29 Second,
your failure to file on time must have resulted from one of the following factors:
(1)Improper conduct of a public servant (for example, if a prosecutor stood in the way of your good-faith
efforts to file on time);30
(2) Improper conduct, death, or disability of your lawyer (examples of improper conduct include your
lawyer’s failure to inform you in writing of your right to appeal,31 failure to inform you of your right
to apply for leave to appeal as a poor person,32 and failure to start your appeal after being informed
of your desire to appeal);33 or
(3)Your inability to communicate with your lawyer, in person or by mail, about whether to take an
appeal until after the filing deadline had passed. To win an extension based on an inability to
communicate with your lawyer, the inability to communicate must have been (a) because you were
in prison AND (b) through no fault of your own or your attorney.34 If you are not in prison, or if you
were incarcerated but could have communicated with your lawyer (and you or your lawyer simply
neglected to do so) the court will deny your motion. (Note, however, that if your lawyer acted
23. N.Y. Crim. Proc. Law § 460.10(1)(a) (McKinney 2005 & Supp. 2008); see also N.Y. Crim. Proc. Law § 450.90
24. N.Y. Crim. Proc. Law § 460.10(1)(a) (McKinney 2005 & Supp. 2008).
25. N.Y. Crim. Proc. Law § 450.30(3) (McKinney 2005 & Supp. 2008).
26. N.Y. Crim. Proc. Law § 460.10(1)(b) (McKinney 2005 & Supp. 2008).
27. See People v. Montgomery, 24 N.Y.2d 130, 132, 247 N.E.2d 130, 132, 299 N.Y.S.2d 156, 159 (1969) (holding
that every defendant has a right to appeal a conviction; this right cannot be lost because of defendant’s unawareness of
the right or because of counsel’s failure to fulfill an agreement to take action within the required time period).
28. N.Y. Crim. Proc. Law § 460.30(1) (McKinney 2005 & Supp. 2008). The extension may be for no more than 30
days, counting from the date of the decision to grant the extension.
29. N.Y. Crim. Proc. Law § 460.30(1) (McKinney 2005 & Supp. 2008). Although this one-year time limit for
making a motion for an extension of time cannot be extended, an appellate court might decide not to enforce the one-year
time limit in extremely rare circumstances. See People v. Thomas, 47 N.Y.2d 37, 389 N.E.2d 1094, 416 N.Y.S.2d 573
(1979) (holding that, in the interest of justice, the district attorney could not enforce the one-year time limit to file a
460.30 motion when the defendant had made an honest effort to appeal within the appropriate time limit and the failure
of the district attorney to cooperate had contributed to the failure of the defendant’s timely attempt to appeal).
30. See People v. Johnson, 69 N.Y.2d 339, 341, 506 N.E.2d 1177, 1178, 514 N.Y.S.2d 324, 325 (1987) (allowing an
appeal after the filing deadline had passed where defendant’s prior, timely attempts to secure an appeal had been
prevented by the actions of the state).
31. See People v. Nunez, 178 A.D.2d 1029, 1029, 578 N.Y.S.2d 780, 781 (4th Dept. 1991) (granting extension of
time to appeal where defense counsel failed to provide defendant with written notice of right to appeal); N.Y. Comp.
Codes R. & Regs. tit. 22, § 1022.11 (2001) (requiring defense attorney, upon conviction, to inform defendant in writing of
defendant’s right to appeal or seek permission to appeal, and right, if indigent, to seek leave to appeal as a poor person).
32. See People v. Nunez, 178 A.D.2d 1029, 1029, 578 N.Y.S.2d 780, 781 (4th Dept. 1991) (granting extension of
time to appeal where defense counsel failed to provide defendant with written notice of right to appeal); N.Y. Comp.
Codes R. & Regs. tit. 22, § 1022.11 (2001) (requiring defense attorney, upon conviction, to inform defendant in writing of
defendant’s right to appeal or to seek permission to appeal, and right, if indigent, to do so as a poor person).
33. See People v. Lord, 181 A.D.2d 1076, 1076, 582 N.Y.S.2d 305, 306 (4th Dept. 1992) (granting extension of time
to appeal where defense counsel had failed to carry out defendant’s request to appeal).
improperly, you may be eligible for an extension under the “improper conduct, death, or disability of
your lawyer” factor described above, even if you do not qualify for an extension under the “inability
to communicate with your lawyer” factor.)
If you do not satisfy both of these requirements—making your motion for an extension within one year
after your original thirty days to appeal has passed and showing you missed your original deadline to appeal
due to one of the three allowable factors—then you will not be granted a time extension.
If you think that you can satisfy these requirements, then you should send your motion for a time
extension to the appellate court to which you want to appeal.35 See Appendix A of this Chapter to figure out
which court this is. The motion must be in writing and must contain a sworn statement of the facts that
support your request for a time extension.36 You must notify the District Attorney of your motion. The
District Attorney may then file papers opposing your motion.37
If questions exist about the facts underlying your request for an extension—for example, whether you
were really unable to or simply failed to communicate with your lawyer—the appellate court may order the
trial court to hold a hearing on these issues. Once the facts are clarified, or if there are no factual questions
to begin with, the appellate court will grant or deny your motion for an extension.38
If the appellate court grants you a time extension, you must submit your notice of appeal within thirty
days from the day of the appellate court’s decision to grant the extension.39 If the appellate court denies your
motion for an extension, you may appeal the denial only if a judge on the Court of Appeals gives you
permission to appeal and the intermediate appellate court states that it based its decision solely on the
law.40 Additionally, you may only appeal the denial if your original appeal was an appeal by right; you may
not appeal a decision denying an extension for an appeal that requires permission.41
2. Plea Agreements
If you pleaded guilty, you may have waived many of the rights on which you can base your appeal. If you
pleaded guilty as part of a plea bargain or negotiated sentence, you automatically gave up (forfeited) your
right to appeal certain errors. This is true even if your plea agreement does not say you waived this right.
Moreover, some plea agreements contain additional waivers of your right to appeal, in which you agree to
give up the right to appeal errors in addition to those that you automatically forfeit simply by pleading
guilty. The next two parts explain these limits on your right to appeal.
i. Rights Automatically Forfeited by Your Guilty Plea
If you pleaded guilty, (regardless of whether your plea included a waiver agreement), you automatically
forfeited the right to appeal many types of errors, even if your plea agreement does not specify them.42 In
general, if you plead guilty, you give up the right to argue the factual issue of guilt.43 Additionally, you
cannot raise problems with discovery or other pretrial matters on appeal.44 The following errors are among
those you automatically forfeit the right to appeal by pleading guilty:
(1) The insufficiency of the evidence before the grand jury;45
35. N.Y. Crim. Proc. Law § 460.30(1) (McKinney 2005 & Supp. 2008). See Form B-5 in Appendix B of this Chapter
for a sample notice of a motion for extension of time.
38. N.Y. Crim. Proc. Law § 460.30(3)B(5) (McKinney 2005 & Supp. 2008).
41. See People v. Nealy, 82 N.Y.2d 773, 773, 624 N.E.2d 175, 176, 603 N.Y.S.2d 991 (1993) (holding defendant may
not appeal the appellate division’s denial of an extension of time to request permission to appeal to Court of Appeals).
42. See generally N.Y. Crim. Proc. Law § 220.10 nn.222–75 (McKinney 2002 & Supp. 2006); People v. Gerber, 182
A.D.2d 252, 259–60, 589 N.Y.S.2d 171, 174 (2d Dept. 1992) (explaining the claims that are forfeited by a guilty plea). For
a more recent list of forfeited claims, see People v. Hansen, 95 N.Y.2d 227, 231 n.3, 738 N.E.2d 773, 776 n.3, 715
N.Y.S.2d 369, 372 n.3 (2000).
43. See People v. Garcia, 216 A.D.2d 36, 36–37, 627 N.Y.S.2d 666, 667 (1st Dept. 1995) (finding that “by pleading
guilty, the defendant has waived his right to litigate the issue of his guilt … .”).
44. See People v. Berezansky, 229 A.D.2d 768, 771, 646 N.Y.S.2d 574, 577 (3d Dept. 1996) (finding that a
defendant who waives indictment and pleads guilty “waives all discovery and all other pretrial and trial matters … .”).
45. See People v. Caleca, 273 A.D.2d 476, 476, 711 N.Y.S.2d 743, 744 (2d Dept. 2000) (explaining that by “pleading
guilty, the defendant waived his claim that the evidence submitted to the Grand Jury was” insufficient).
(2) The insufficiency of instructions before the grand jury;46
(3) The refusal of the trial court to try you separately from a co-defendant;47
(4) The denial of your right to a jury trial;48
(5) The denial of your right of confrontation;49
(6) The limits on your privilege against self-incrimination;50
(7) The absence of counsel during certain proceedings; and51
(8) The statutory (as opposed to constitutional) right to a speedy trial.52
By pleading guilty, however, you do not automatically forfeit the right to appeal every issue. That is, even
if you pleaded guilty, you did NOT automatically forfeit the right to appeal these errors:53
(1) You were denied your constitutional right to a speedy trial;54
(2) You were tried in violation of your constitutional right against double jeopardy;55
(3) The trial court failed to determine your competency to stand trial;56
46. See People v. Palo, 299 A.D.2d 871, 871, 749 N.Y.S.2d 452, 452 (4th Dept. 2002) (finding that defendant’s claim
of improper grand jury instruction did not survive a guilty plea).
47. See People v. Sheppard, 177 A.D.2d 668, 668, 576 N.Y.S.2d 368, 369 (2d Dept. 1991) (finding that a guilty plea
constitutes a waiver of the right to seek appeal of the trial court’s denial of a severance motion).
48. See People v. Walls, 129 A.D.2d 751, 751, 514 N.Y.S.2d 513, 513 (2d Dept. 1987) (finding that a guilty plea
waives the right to appeal issues relating to both the right to a jury trial and the right to confront witnesses); see also
People v. Taylor, 65 N.Y.2d 1, 5, 478 N.E.2d 755, 757, 489 N.Y.S.2d 152, 154 (1985) (holding that a guilty plea signaled
“defendant’s intention not to litigate the question of his guilt and necessarily involves the surrender of certain
constitutional rights,” including the right to jury trial).
49. See People v. Taylor, 65 N.Y.2d 1, 5, 478 N.E.2d 755, 757, 489 N.Y.S.2d 152, 154 (1985) (holding that a guilty
plea necessarily involves surrender of certain constitutional rights, including the right to confrontation).
50. See People v. Taylor, 65 N.Y.2d 1, 5, 478 N.E.2d 755, 757, 489 N.Y.S.2d 152, 154 (1985) (holding that a guilty
plea necessarily involves surrender of certain constitutional rights, including the privilege against self-incrimination).
51. See People v. Reiblein, 200 A.D.2d 281, 283, 613 N.Y.S.2d 789, 790 (3d Dept. 1994), appeal denied, 84 N.Y.2d
831, 641 N.E.2d 172, 617 N.Y.S.2d 151 (3d Dept. 1994) (holding that, by pleading guilty, defendant waived right to
appeal on the grounds that defense counsel was not present at psychiatric interview).
52. After pleading guilty, you may not raise your statutory right to a speedy trial under New York Criminal
Procedure Law § 30.30 (McKinney 2003 & Supp. 2008). See People v. Smith, 272 A.D.2d 679, 681, 708 N.Y.S.2d 485, 487
(3d Dept. 2000) (“By pleading guilty, defendant waived appellate review of his statutory right to a speedy trial … .”).
53. This list is not exhaustive. For more examples of what you can appeal after pleading guilty, see N.Y. Crim.
Proc. Law § 220.10 nn.221–83 (McKinney 2002 & Supp. 2006), N.Y. Crim. Proc. Law § 470.15 n.18 (McKinney 1994 &
Supp. 2008), N.Y. Crim. Proc. Law § 710.70 n.59 (McKinney 1995 & Supp. 2008). See also People v. Hansen, 95 N.Y.2d
227, 230–31 n.2, N.E.2d 773, 776 n.2, 715 N.Y.S.2d 369, 372 n.2 (2000) (describing the issues that survive a guilty plea).
54. A plea of guilty does not automatically prevent you from appealing on the ground your constitutional right to a
speedy trial was violated. See People v. Lopez, 6 N.Y.3d 248, 255, 844 N.E.2d 1145, 1148, 811 N.Y.S.2d 623, 626 (2006)
(finding that a claim regarding constitutional right to a speedy trial cannot be waived by guilty plea and waiver of
appeal); People v. Smith, 272 A.D.2d 679, 681, 708 N.Y.S.2d 485, 487 (3d Dept. 2000) (holding defendant’s right to raise
his constitutional right to a speedy trial survives … his guilty plea”); People v. Hansen, 95 N.Y.2d 227, 230–31 n.2, 738
N.E.2d 773, 776 n.2, 715 N.Y.S.2d 369, 372 n.2 (2000) (listing constitutional claims that survive a guilty plea). But, after
pleading guilty you may not raise your statutory right to a speedy trial under Section 30.30 of the New York Criminal
Procedure Law. (McKinney 2003 & Supp. 2006). See People v. Smith, 272 A.D.2d 679, 681, 708 N.Y.S.2d 485, 487 (3d
Dept. 2000) (“By pleading guilty, defendant waived appellate review of his statutory right to a speedy trial … .”).
55. See Menna v. New York, 423 U.S. 61, 63 n.2, 96 S. Ct. 241, 242 n.2, 46 L. Ed. 195, 198 n.2 (1975) (holding that
a guilty plea does not waive a claim that the state cannot constitutionally prosecute the charge against the defendant);
People v. Prescott, 66 N.Y.2d 216, 221, 486 N.E.2d 813, 815–16, 495 N.Y.S.2d 955, 958 (1985) (holding that a defendant’s
constitutional double jeopardy claim survives a guilty plea and may be raised for the first time on appeal). But you may
not raise your statutory right against double jeopardy under Section 40.20 of the New York Criminal Procedure Law.
People v. Prescott, 66 N.Y.2d 216, 220, 486 N.E.2d 813, 815, 495 N.Y.S.2d 955, 957 (1985) (holding that a guilty plea
results in forfeiture of statutory double jeopardy claim, even if presented to the court prior to the plea); see also People v.
Gray, 300 A.D.2d 696, 697, 752 N.Y.S.2d 731, 733 (2d Dept. 2002) (same, but emphasizing that a constitutional double
jeopardy claim survives a guilty plea).
56. See People v. Lopez, 6 N.Y.3d 248, 257, 844 N.E.2d 1145, 1150, 811 N.Y.S.2d 623, 626 (2006) (holding that a
claim regarding competency to stand trial cannot be waived by guilty plea and waiver of appeal when the defendant only
gave a one-word response when asked whether she understood the conditions of a guilty plea); People v. Callahan, 80
N.Y.2d 273, 280, 590 N.Y.S. 46, 50, 604 N.E.2d 108, 112 (1992) (holding that a guilty plea accompanied by waiver of
right to appeal does not waive the right to raise questions of competency to stand trial); People v. Armlin, 37 N.Y.2d 167,
172, 332 N.E.2d 870, 874, 371 N.Y.S.2d 691, 697 (1975) (holding that a plea of guilty does not waive right to a mandated
competency hearing); People v. Bennefield, 306 A.D.2d 911, 911, 761 N.Y.S.2d 906, 907 (4th Dept. 2003) (holding that
“issues relating to defendant’s competency survive both” a guilty plea and a waiver of a right to appeal).
(4) The statute under which you were convicted is unconstitutional;57
(5) Your sentence was illegal or unduly harsh;58
(6) Your plea was not voluntary or knowing;59
(7) Jurisdiction was not proper in the trial court;60
(8) Your conviction was based entirely upon false evidence;61
(9) You were improperly denied a motion to suppress evidence;62 or
(10) The trial court improperly determined the felony on which your sentence was based.63
Even if you have not automatically forfeited the right to appeal these issues by pleading guilty, you still
may have given up the right to appeal these issues by either waiving them by agreement or by failing to
preserve them. Waiving and preserving your right to appeal is discussed in more detail below.
ii. Rights You Waive by Agreement
In addition to pleading guilty, you may also have agreed to waive your right to appeal as part of a plea
bargain or negotiated sentence.64 If your plea included an agreement to waive your right to appeal, you still
have several options. First, you may appeal, claiming your waiver was invalid. A waiver may be considered
invalid if you did not knowingly, intelligently, and voluntarily agree to waive your right to appeal.65
57. See Gesicki v. Oswald, 336 F. Supp. 371, 374 n.3 (S.D.N.Y. 1971), aff’d, 406 U.S. 913, 92 S. Ct. 1773, 32 L. Ed.
2d 113 (1972) (holding that a guilty plea does not waive “the right to contest the constitutionality of the statute” under
which the defendant was convicted); see also People v. Lee, 58 N.Y.2d 491, 493, 448 N.E.2d 1328, 1329, 462 N.Y.S.2d
417, 418 (1983) (explaining that “[a] defendant by a plea of guilty does not forfeit the right on appeal from the conviction
to challenge the constitutionality of the statute under which he was convicted.”).
58. See People v. Lopez, 6 N.Y.3d 248, 255, 844 N.E.2d 1145, 1148, 811 N.Y.S.2d 623, 626 (2006) (finding that a
claim challenging the legality of the sentence cannot be waived by a guilty plea); People v. Seaberg, 74 N.Y.2d 1, 9, 541
N.E.2d 1022, 1025, 543 N.Y.S.2d 968, 972 (1989) (same); People v. Pollenz, 67 N.Y.2d 264, 267–68, 493 N.E.2d 541, 541–
42, 502 N.Y.S.2d 417, 418–19 (1986) (finding that a defendant who pleaded guilty has the right to appeal the
“excessiveness of a negotiated sentence” to the appellate division); People v. Thompson, 60 N.Y.2d 513, 520, 458 N.E.2d
1228, 1231, 470 N.Y.S.2d 551, 554 (1983) (finding that defendant, by pleading guilty, does not waive a statutory right to
appeal for a sentence reduction). There are also numerous examples of defendants who challenged sentences that
departed from the estimated guidelines contained in plea agreements. See United States v. Wyatt, No. 06-cr-782 (DLI),
2008 U.S. Dist. LEXIS 46182, at *27–34 (E.D.N.Y. June 12, 2008) (finding that government breached plea agreement by
making comments that amount to an argument for an upward departure from the estimate guideline); see also United
States v. Allen, 550 F. Supp. 2d 494, 511 (S.D.N.Y. 2008) (finding that a sentencing range which was twice that
contained in the defendant’s Pimentel letters constituted mistreatment of defendants and warranted a downward
departure or below-guideline sentence).
59. See People v. Catu, 4. N.Y.3d 242, 245, 825 N.E.2d 1081, 1082, 792 N.Y.S.2d 887, 888 (2005) (reversing
conviction based on a guilty plea on the basis that the guilty plea was not a “voluntary and intelligent choice”); People v.
Gerber, 182 A.D.2d 252, 260–61, 589 N.Y.S.2d 171, 175–76 (2d Dept. 1992) (noting that the issue of whether a plea was
voluntary or knowing survives a guilty plea, but denying defendant’s appeal on the basis that the issues he sought to
appeal were forfeited by a valid guilty plea).
60. See People v. Taylor, 65 N.Y.2d 1, 5, 478 N.E.2d 755, 757, 489 N.Y.S.2d 152, 154 (1985) (“A guilty plea does not
forfeit the right to raise a jurisdictional defect … .”).
61. See People v. Pelchat, 62 N.Y.2d 97, 108, 464 N.E.2d 447, 453, 476 N.Y.S.2d 79, 85 (1984) (finding that a
defendant who pleaded guilty was allowed to challenge a conviction when the prosecutor knowingly based the charges on
false evidence). For examples of rights and claims forfeited by law upon a valid guilty plea, see People v. Gerber, 182
A.D.2d 252, 260–61, 589 N.Y.S.2d 171, 175–76 (2d Dept. 1992).
63. See People v. Lacend, 140 A.D.2d 243, 244, 528 N.Y.S.2d 832, 833 (1988) (modifying status of defendant, who
had pleaded guilty, from predicate violent felon to predicate felon and remanding for re-sentencing).
64. A waiver generally covers any aspect of a case that does not fall within certain exceptions. For example, a
waiver means that you give up the right to appeal your conviction on the grounds that your lawyer failed to raise certain
defenses. See People v. Parilla, 8 N.Y.3d 654, 659, 870 N.E.2d 142, 145, 838 N.Y.S.2d 824 (2007) (holding that a waiver of
the right to appeal as part of a plea agreement prevented the defendant from raising the issue of a statute of limitations
defense on appeal). For information on how other states address the issue of waivers by agreement, see Robert K.
Calhoun, Waiver of the Right to Appeal, 23 Hastings Const. L.Q. 127, 135–45 (1995).
65. See People v. Seaberg, 74 N.Y.2d 1, 11, 541 N.E.2d 1022, 1026–27, 543 N.Y.S.2d 968, 972–73 (1989) (holding
that defendants’ waivers of their right to appeal were valid because they were voluntary, knowing and intelligent). A
waiver is not voluntary, knowing, and intelligent (and therefore is not valid) if the trial record does not demonstrate that
the trial court made certain that the defendant understood the meaning of the waiver before agreeing to it. See People v.
Billingslea, 6 N.Y.3d 248, 257, 844 N.E.2d 1145, 1149, 811 N.Y.S.2d 623 (2006) (holding that a defendant’s waiver of her
right to appeal was not valid because the trial court did not adequately explain to the defendant that she was agreeing to
Second, you can appeal certain types of claims that are considered so important to society that they can
never be waived. This means even if you waived your right to appeal in a plea agreement or as part of a
negotiated sentence, you still have a right to appeal certain types of claims.66 These claims include
(1) a challenge to a death sentence;67
(2) a claim that you were denied your constitutional right to a speedy trial;68
(3) a challenge to the legality of court-imposed sentences;69
(4) a challenge to the constitutionality of the statute outlawing the conduct to which you pleaded guilty;70
(5) claims regarding your competency to stand trial;71 or
(6) claims that ineffective assistance of counsel affected the voluntariness of your guilty plea.72
Keep in mind, though, that there may be other claims that society has a strong interest in, including
double jeopardy, that can be waived in certain instances.73
waive all of her rights to appeal, rather than only the rights to appeal that she would automatically forfeit simply by
pleading guilty). However, a waiver that is adequately explained in writing and signed by the defendant may be valid
even if the trial court does not fully explain the terms of the waiver to the defendant. See People v. Ramos, 7 N.Y.3d 737,
738, 853 N.E.2d 222, 222, 819 N.Y.S.2d 853, 853 (2006) (holding that the trial record established that the “defendant
knowingly, intelligently and voluntarily waived his right to appeal” based on a written waiver agreement, even though
the trial court did not fully explain the terms to the defendant). Also, a waiver can be found to be knowing, intelligent,
and voluntary even if it does not mention that you are waiving your rights knowingly, intelligently, and voluntarily. See
People v. Kemp, 94 N.Y.2d 831, 833, 724 N.E.2d 754, 755, 703 N.Y.S.2d 59, 60(1999) (holding that defendant’s waiver of
right to appeal was valid, and noting that no particular language is required to make a bargain voluntary and knowing).
66. See People v. Callahan, 80 N.Y.2d 273, 280, 604 N.E.2d 108, 112, 590 N.Y.S.2d 46, 50 (1992) (holding that a
waiver of right to appeal does not prevent an appeal based on denial of defendant’s constitutional speedy trial right). See
generally Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 450.10 (McKinney 2005 & Supp. 2006).
68. See People v. Blakley, 34 N.Y.2d 311, 313, 313 N.E.2d 763, 764, 357 N.Y.S.2d 459, 461 (1974) (holding that a
constitutional speedy trial claim may not be waived as part of a plea bargain); People v. Callahan, 80 N.Y.2d 273, 280,
604 N.E.2d 108, 112, 590 N.Y.S.2d 46, 50 (1992) (holding that a waiver of right to appeal does not prevent an appeal
based on denial of defendant’s constitutional speedy trial right).
69. See People v. Francabandera, 33 N.Y.2d 429, 434 n.2, 310 N.E.2d 292, 294 n.2, 354 N.Y.S.2d 609, 612 n.2
(1974) (upholding defendant’s plea bargain as valid but noting that the legality of a sentence and the voluntariness of
the plea are always appealable); see also People v Callahan, 80 N.Y.2d 273, 280, 604 N.E.2d 108, 112, 590 N.Y.S.2d 46,
50 (1992) (discussing waivers of right to appeal and noting that the legality of a sentence remains appealable even where
a defendant specifically waives the right to appeal). Note that the right to appeal the legality of a sentence includes the
right to appeal on the basis that there was an unreasonable delay in sentencing. People v. Campbell, 97 N.Y.2d 532, 533,
769 N.E.2d 1288, 1288, 743 N.Y.S.2d 396, 396 (2002) (holding that a guilty plea does not waive “a claim of unreasonable
delay in sentencing” as the claim challenges the legality of the sentence).
70. See People v. Lee, 58 N.Y.2d 491, 493–94, 448 N.E.2d 1328, 1329, 462 N.Y.S.2d 417, 418 (1983) (overturning
defendant’s conviction by guilty plea on the ground that the statute under which he was convicted was unconstitutional);
People v. Beaumont, 299 A.D.2d 657, 659, 749 N.Y.S.2d 612, 614 (3d Dept. 2002) (holding that the defendant’s right to
appeal the constitutionality of the statute under which he was convicted survived his valid waiver of his right to appeal).
71. See generally People v. Armlin, 37 N.Y.2d 167, 168, 332 N.E.2d 870, 871, 371 N.Y.S.2d 691, 693 (1975)
(holding that defendant’s guilty plea could not prevent the defendant from raising the issue of competency on appeal).
72. See People v. Johnson, 288 A.D.2d 501, 502, 732 N.Y.S.2d 137, 138 (3d Dept. 2001) (explaining that “to the
extent that a claim of ineffective assistance of counsel impacts on the voluntariness of a defendant’s guilty plea, the
claim survives a waiver of the right to appeal” but noting that the “claim must ordinarily be preserved by a motion to
withdraw the plea or a motion to vacate the judgment of conviction … .”).
73. For example, in People v. Allen, the Court of Appeals held that a defendant may expressly waive the right to
appeal a constitutional double jeopardy ruling in a plea bargain. The defendant in that case pleaded guilty just before
the start of a second trial after a mistrial had been declared during the first trial. When he later attempted to appeal his
conviction, the Court of Appeals ruled that he had validly waived the right to a double jeopardy defense in his plea
bargain. The court determined that society’s interest in the right to a double jeopardy defense was not as strong as, for
example, its interest in the right to a speedy trial. Therefore, while you cannot waive the right to a speedy trial, you can
waive the right to a double jeopardy defense if you agree to do so in your plea bargain. People v. Allen, 86 N.Y.2d 599,
603, 658 N.E.2d 1012, 1015, 635 N.Y.S.2d 139, 142 (1995); see also Preiser, Practice Commentaries, N.Y. Crim. Proc.
Law § 220.10 (McKinney 2002 & Supp. 2008). The Court of Appeals later held that the right to appeal a constitutional
double jeopardy ruling may be waived as part of a general waiver of the right to appeal even if the waiver agreement
does not specifically state that the right to appeal on the basis of double jeopardy is being waived. People v. Muniz, 91
N.Y.2d 570, 575, 690 N.E.2d 182, 186, 673 N.Y.S.2d 358, 362 (1998) (finding that there is “no principled basis upon
which to conclude that a defendant cannot impliedly waive a claim of double jeopardy” when the waiver agreement
allows the defendant to appeal from all waivable aspects of the case).
Finally, note that while you cannot waive your right to challenge an illegal sentence, you can waive your
right to challenge your sentence as too harsh or excessive.74 This is true even if your plea agreement did not
contain the promise of a specific sentence as long as you were informed of the potential maximum sentence.75
3. Failure to Protest (the Preservation Requirement)
Whether you pleaded guilty or not, you may be barred from raising certain issues on appeal if you failed
to “preserve” them at trial. To preserve legal errors in the trial court for review on appeal, you (or your
lawyer, if you had one at trial) generally must have objected to these mistakes at trial when they occurred,
or at any later time when the trial court still had the chance to correct the errors.76
In other words, you usually are not allowed to raise an issue (for example, that the trial judge made a
mistake) for the first time on appeal. Instead, you must have raised the issue at the trial so that the trial
court could have addressed it before it became a problem.77 In general, you must have identified the specific
legal basis for your objection at trial in order to preserve the error for appellate review.78 However, an
appellate court will also review an error on legal grounds that you did not specify at trial if the trial court
expressly decided the particular issue in response to an objection by a party.79 In either case, the error must
have been brought to the trial court’s attention.80
You may also preserve errors for review on appeal through a request, rather than an objection. This
means that if you unsuccessfully asked the judge for a particular ruling or instruction,81 you may challenge
the trial court’s failure to give the ruling or instruction that you requested in an appeal, even if you did not
formally object to the ruling or instruction that the judge actually gave.82 If, however, you want to appeal an
error in the ruling or instruction that was actually given by the trial court, as opposed to appealing the trial
74. See People v. Espino, 279 A.D.2d 798, 799, 718 N.Y.S.2d 729, 730 (3d Dept. 2001) (explaining a defendant may
waive the right to appeal a sentence as harsh and excessive, but a defendant may never waive the right to appeal the
legality of a sentence).
75. See People v. Hidalgo, 91 N.Y.2d 733, 737, 698 N.E.2d 46, 48, 675 N.Y.S.2d 327, 329 (1998) (finding that a
defendant’s waiver of the right to appeal prevented her from appealing her sentence).
76. N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1994 & Supp. 2006). If you make no protest, the intermediate
appellate court cannot review the error as a “question of law.” N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1994 & Supp.
2008). But, an appellate court nonetheless may in its discretion decide to review the error "in the interest of justice” even
if the preservation requirement has not been met. N.Y. Crim. Proc. Law. § 470.15(6) (McKinney 1994 and Supp. 2007).
The “in the interest of justice” exception to the preservation requirement is discussed in Part (b) of this Subsection.
77. See Fed. R. Crim. P. 52(b) (providing that issues not raised in the trial court because of oversight, including
sentencing issues, are normally deemed forfeited on appeal unless they meet the standard for plain error). However, if,
for example, your lawyer challenges the jury instructions during the charge conference, and emphasizes the specific
problem with the instructions, the issue may be preserved for review. See, e.g., United States v. Joseph, No. 06-5911-CR,
2008 U.S. App. LEXIS 19169, at *11–12 n.3 (2d Cir. Sept. 9, 2008) (holding that issue was preserved when defense
counsel challenged the jury instructions at the charge conference).
78. See People v. Williams, 305 A.D.2d 703, 703, 759 N.Y.S.2d 684, 685 (2d Dept. 2003) (holding that issues were
not preserved for appeal because defendant failed to object, made only general objections, or moved too late for a
mistrial); People v. Rivera, 73 N.Y.2d 941, 942, 537 N.E.2d 618, 540 N.Y.S.2d 233 (1989) (holding that defendant’s
general objections did not preserve his argument for appellate review).
79. N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1994 & Supp. 2006); see also People v. Johnson, 144 A.D.2d 490,
491, 534 N.Y.S.2d 207, 209 (2d Dept. 1988) (finding that the ground for appeal was properly preserved even though
defendant did not specifically raise it at trial, but finding only harmless error); see generally Preiser, Practice
Commentaries, N.Y. Crim. Proc. Law § 470.05 (McKinney 1994 & Supp. 2006) (summarizing New York Criminal
Procedure Law Section 470.05, which explains when an appeal will be allowed).
80. Note that this requirement applies to the prosecution too. Also, note that if a party does not file an appeal or a
cross-appeal, a court may not remedy an error, even in a clear error on its own initiative. See, e.g., Greenlaw v. United
States, 128 S. Ct. 2559, 2562; 171 L. Ed. 2d 399, 406 (2008) (holding that, absent a motion by a party in the form of an
appeal or cross appeal, a court cannot on its own initiative change a defendant’s sentence because it was clear error). In
Greenlaw, the lower court imposed a 10 year sentence on a count carrying a 25 year minimum. The government had
failed to appeal or cross-appeal this sentence, though it did object. The appellate court used the “plain error” rule to
justify finding the sentence too low. The Supreme Court held that it could not increase the sentence in this manner.
81. “Instruction” refers to what the judge tells the jury it should or should not consider as well as what questions
the jury must answer when it is deciding the verdict in your case.
82. N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1994 & Supp. 2008); see also People v. Leisner, 73 N.Y.2d 140,
147, 535 N.E.2d 647, 650, 538 N.Y.S.2d 517, 520 (1989) (holding that a trial court’s failure to give the jury the requested
instruction was an error preserved for appellate review).
court’s decision not to grant your request, you must have objected to the error at trial.83 If you did not object
to an error at your trial and the court did not consider the specific issue, an appellate court will usually
refuse to consider the error on appeal.
If you failed to preserve an error, there are two ways you may be able to appeal it. First, if the error you
wish to appeal falls into a limited class of errors that affect “the organization of the court or the mode of
proceedings,” you can appeal even if you did not preserve the error.84 These errors, which are listed in
Section (a) below, are considered so fundamental that they are not subject to the preservation requirement.
Second, even if you were required to preserve an error, a court may consider your appeal “in the interest
of justice.” This happens when a court believes that the error violated a fundamental principle of law.85 For
example, if the court believes that you did not receive a fair trial, or were denied one of your fundamental
constitutional rights, it may decide to consider your appeal “in the interest of justice.”86 These errors are
discussed in more detail in Section (b) below.
(b) Errors Not Subject to the Preservation Requirement
If the error you wish to appeal is a “mode of proceedings” error, you can raise it for the first time on
appeal, even if you did not preserve the error. “Mode of proceedings” errors include:87
(1) You were tried twice for the same offense in violation of your rights against double jeopardy
guaranteed by the New York State and U.S. Constitutions88 (note that this does not apply to rights
against double jeopardy provided by statute rather than a constitution89);
83. See People v. Leisner, 73 N.Y.2d 140, 147, 535 N.E.2d 647, 650, 538 N.Y.S.2d 517, 520 (1989) (finding that an
objection to a jury instruction is preserved when the court fails to grant the instruction request); People v. Narayan, 54
N.Y.2d 106, 112–13, 429 N.E.2d 123, 125, 444 N.Y.S.2d 604, 606 (1981) (holding defendant must timely object to a
judge’s ruling affecting his ability to confer with his attorney in order for the issue to be considered on appeal). If the
trial court grants the instruction that you (or your lawyer) requested but makes a mistake or otherwise gives an
instruction different than the instruction that you requested, this error is not preserved for appeal unless you brought
the mistake or inconsistency to the trial court’s attention at a time when the error could have been corrected. See People
v. Whalen, 59 N.Y.2d 273, 280, 451 N.E.2d 212, 215, 464 N.Y.S.2d 454, 457 (1983) (“Inasmuch as defendant’s request
was initially granted and his comments after the charge did not alert the [t]rial [j]udge to the error so as to afford an
opportunity to correct himself, defendant must be deemed to have waived any objection to the alibi instruction.”).
84. People v. Mehmedi, 69 N.Y.2d 759, 760, 505 N.E.2d 610, 611, 513 N.Y.S.2d 100, 101 (1987) (citing People v.
Ahmed, 66 N.Y.2d 307, 310, 487 N.E.2d 894, 896–7, 496 N.Y.S.2d 984, 985 (1985)) (holding that violation of defendant’s
right to be present at all material stages of the trial was automatically preserved for appeal, even though defendant did
not make an objection at trial); People v. Patterson, 39 N.Y.2d 288, 295, 347 N.E.2d 898, 903, 383 N.Y.S.2d 573, 577
(1976), aff’d, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977) (considering defendant’s appellate claim, even though
defendant had not raised a timely objection at trial, because the issue on appeal went to the organization of the court or
mode of proceedings at trial); see also N.Y. Crim. Proc. Law § 470.15(3)(c), (6)(a) (McKinney 1994 & Supp. 2007).
85. N.Y. Crim. Proc. Law § 470.15(3)(c), (6)(a) (McKinney 1994 & Supp. 2006).
86. See Ulster County Ct. v. Allen, 442 U.S. 140, 151 n.10, 99 S. Ct. 2213, 2221, n.10, 60 L. Ed. 2d 777, 788 n.10
(1979) (noting that “the New York Court of Appeals has developed an exception to the State’s contemporaneous-objection
policy that allows review of unobjected-to errors that affect a fundamental constitutional right”); People v. Voliton, 83
N.Y.2d 192, 195–96, 630 N.E.2d 641, 643, 608 N.Y.S.2d 945, 947 (1994) (affirming the appellate division’s use of its “in
the interest of justice” discretion to vacate and dismiss a conviction on the grounds of illegal seizure by the police but
declining to review defendant’s due process claim that was raised for the first time on appeal).
87. For a list of errors not subject to the preservation requirement, see People v. Ahmed, 66 N.Y.2d 307, 311–12,
487 N.E.2d 894, 896–97, 496 N.Y.S.2d 984, 986–87 (1985) (reversing defendant’s conviction where trial judge had, with
defendant’s consent, been absent for part of the jury deliberations, leaving a law clerk to answer questions from jurors).
88. U.S. Const. amend. V; N.Y. Const. art. I, § 6; see also People v. Prescott, 66 N.Y.2d 216, 218, 486 N.E.2d 813,
814, 495 N.Y.S.2d 955, 956 (1985) (holding that a claim of double jeopardy can be raised for the first time on appeal).
However, a claim of double jeopardy cannot be raised on appeal if the circumstances surrounding the defendant’s failure
to object amounted to a waiver of the right to appeal on double jeopardy grounds, or if the defendant has waived the
right to appeal by a waiver agreement. See People v. Michallow, 201 A.D.2d 915, 916, 607 N.Y.S.2d 781, 783 (1994)
(stating that defendant’s failure to object to mistrial was implied consent, and thus acted as waiver of her constitutional
right against double jeopardy); People v. Michael, 48 N.Y.2d 1, 7, 394 N.E.2d 1134, 1137, 420 N.Y.S.2d 371, 374 (1979)
(holding that that the issue of constitutional jeopardy may be raised for the first time on appeal, but noting that if a
defendant participated in court discussions regarding the grant of a mistrial and a retrial, and did not object to the
retrial, the defendant implicitly waived the right to challenge the retrial on double jeopardy grounds); People v. Muniz,
91 N.Y.2d 570, 574, 696 N.E.2d 182, 185, 673 N.Y.S.2d 358, 361 (1998) (a claim of constitutional double jeopardy may
validly be waived). For a discussion on waiver of the right to appeal, including waiver of the right to appeal a claim of
double jeopardy, see Part (C)(2) of this Chapter.
89. See People v. Biggs, 1 N.Y.3d 225, 231, 803 N.E.2d 370, 771 N.Y.S.2d 49, 53 (2003) (noting that unlike state
(2) You were deprived of your right to a lawyer;90
(3) You were deprived of your right to be present at an important stage of the trial91 or other important
court proceedings;92
(4) Your lawyer was not told of the contents of a note the judge received from the jury before the judge
answered the jury’s questions;93
(5) You were deprived of your right to have your trial supervised by a judge;94 or
(6) Your sentence, or the way in which it was determined, was illegal.95
(c) Errors Reviewed “In the Interest of Justice”
If you failed to preserve an error that needed to be preserved for appeal, an intermediate appellate court
may decide to review the error “in the interest of justice.” In these cases, the appellate court will revisit the
issue if it believes the error was so harmful to you as to have made a fair trial impossible.96
Note that if you did not properly preserve an issue at trial, an appellate court is not required to review it
in the interest of justice. For example, if you are not a second felony offender, but the trial court treated you
as a second felony offender for sentencing purposes anyway, you should have objected at the time you were
and federal constitutional double jeopardy claims, which are reviewable even if not preserved at the trial court level, an
unpreserved statutory double jeopardy claim is not reviewable).
90. See People v. Arthur, 22 N.Y.2d 325, 329,239 N.E.2d 537, 539, 292 N.Y.S.2d 773, 666 (1968); (holding that the
issue of whether defendant was wrongly denied the right to counsel during police interrogation could be heard on appeal
for the first time, where statements made during the interrogation were used by the prosecution during trial); People v.
Kinchen, 60 N.Y.2d 772, 773, 457 N.E.2d 786, 787, 469 N.Y.S.2d 680, 681 (1983) (same).
91. See People v. Mehmedi, 69 N.Y.2d 759, 760, 505 N.E.2d 610, 611, 513 N.Y.S.2d 100, 101 (1987) (affirming
reversal of defendant’s conviction on the basis that instructions were given to the jury in defendant’s absence, even
though defendant’s trial counsel did not object to defendant being absent); see also People v. Kelly, 11 A.D.3d 133, 142–
43, 781 N.Y.S.2d 75, 84 (1st Dept. 2004), aff’d, 5 N.Y.3d 116, 832 N.E.2d 1179, 799 N.Y.S.2d 763 (2005) (acknowledging
that a violation of the right of a defendant to be present at the material stages of the trial is preserved for appellate
review even without an objection, but finding that defendant’s right to be present had not been violated).
92. See People v. Antommarchi, 80 N.Y.2d 247, 250, 604 N.E.2d 95, 97, 590 N.Y.S.2d 33, 35 (1992) (holding that
defendant has a right to be present at sidebar questioning of jurors when questioning explores prospective jurors’
backgrounds and relates to their ability to weigh the evidence objectively, but not when questioning relates to physical
impairment, family obligations, or work commitment); People v. Dokes, 79 N.Y.2d 656, 659, 595 N.E.2d 836, 838, 584
N.Y.S.2d 761, 763 (1992) (finding that a defendant’s statutory right to be present at trial includes the right to be present
during the selection of the jury, the introduction of evidence, the closing argument of counsel, and the court’s charge to
the jury); People v. McAdams, 22 A.D.3d 885, 885–86, 802 N.Y.S. 531, 532 (3d Dept. 2005) (finding that denial of
unwaived right to be present at sidebar conferences with potential jurors, including one conference about possible juror
bias, constitutes a denial of defendant’s right to be present at a material stage of the proceeding and is reversible error
on appeal even though defendant did not object at trial). You may, however, waive your right to be present if you
knowingly, voluntarily, and intelligently make the waiver. See People v. Williams, 92 N.Y.2d 993, 996, 706 N.E.2d 1187,
1189, 684 N.Y.S.2d 163, 165 (1998); People v. Kelly, 11 A.D.3d 133, 143, 781 N.Y.S.2d 75, 84 (1st Dept. 2004); People v.
Keen, 94 N.Y.2d 533, 728 N.E.2d 979, 707 N.Y.S.2d 380 (2000) (holding that the defendant effectively had waived his
right to be present for certain court proceedings).
93. See People v. O’Rama, 78 N.Y.2d 270, 276–80, 579 N.E.2d 189, 192–94, 574 N.Y.S.2d 159, 162–64 (1991);
People v. Kisoon, 23 A.D.3d 18, 22–23, 801 N.Y.S.2d 69, 72 (2d Dept. 2005) (holding court’s failure to give defendant’s
attorney a complete reading of jury’s question is preserved for appellate review even without an objection at trial). But
see People v. Williams, 38 A.D.3d 429, 430, 833 N.Y.S.2d 29, 30 (1st Dept. 2007) (holding if the trial court takes some
action in response to a juror’s note before reading the note to your attorney, but that action taken by the trial court was
not significant or would not have required input from your attorney, this error may not be appealed if not preserved).
94. See People v. Ahmed, 66 N.Y.2d 307, 311–12, 487 N.E.2d 894, 896–97, 496 N.Y.S.2d 984, 986–87 (1985)
(reversing defendant’s conviction where trial judge had, with defendant’s consent, been absent for part of the jury
deliberations, leaving a law clerk to answer two questions from jurors).
95. See People v. Callahan, 80 N.Y.2d 273, 280–81, 604 N.E.2d 108, 112, 590 N.Y.S.2d 46 (1992); People v. Samms,
95 N.Y.2d 52, 55–56, 731 N.E.2d 1118, 1120–21, 710 N.Y.S.2d 310, 312–13 (2000) (giving a more complete explanation of
which illegal sentence claims can be raised for the first time on appeal). Note, however, that this applies to sentences
that are illegal (that is, not allowed by law) and not merely harsh or excessive (but within the legal sentence that the
trial court was allowed to impose). See Part E(4) of this Chapter for a discussion of the difference between illegal and
excessive sentences.
96. N.Y. Crim. Proc. Law § 470.15(6) (McKinney 1994 & Supp. 2007). One strategy for bringing these types of non-
preserved claims is to include them in an ineffective assistance claim. For guidance on how to make this type of claim,
see JLM Chapter 12, Part B(3).
sentenced. If you failed to do so, an intermediate appellate court may still review the issue in the interest of
justice, but the decision to review the issue is completely up to the intermediate appellate court.97
Similarly, if you claim that the evidence used to convict you was legally insufficient, an appellate court
will not review this error as a “question of law,” unless you or your lawyer made a specific objection at trial,
not later than the conclusion of evidence and before summation.98 However, if legal insufficiency of the
evidence is first discovered by your lawyer on appeal, an intermediate appellate court may still decide to
hear your claim “in the interest of justice.”99 By contrast, a claim that the verdict is against the “weight of
the evidence”100 is a question of law that does not need to be preserved in order to be raised on appeal.101
D. What You Can Ask the Court to Do Before It Hears Your Appeal
Before an appellate court hears your appeal, you can ask the court system to help you with several
things, including getting a lawyer and a transcript of your trial. You can also ask the appellate court to stay
your judgment and release you on bail. This Part discusses each of these things in more detail.
1. Getting a Lawyer
You have a constitutional right to a lawyer on direct appeal.102 This means if you cannot afford a lawyer,
you can ask the appellate court to appoint a lawyer to represent you at no cost.103 Your right to a lawyer
applies when you or the government appeals a trial court’s final judgment. It also applies when you or the
government appeals other decisions the trial court made during the proceedings, including decisions about
what evidence is allowed, decisions to set aside the jury’s verdict, and denials of motions.104 To get a lawyer,
you will need to show proof that you do not have enough money to hire an attorney and to pay the cost and
expenses of your appeal.105 Appendix B provides samples of the papers you should file to make this request.
97. See People v. Benton, 196 A.D.2d 755, 756, 601 N.Y.S.2d 918, 919 (1st Dept. 1993) (court used its judgment to
review an incorrect decision which classified the defendant as a second violent felony offender). But see People v. Walton,
309 A.D.2d 956, 957, 766 N.Y.S.2d 93, 94 (2d Dept. 2003) (court declined to review defendant’s unpreserved claim that
he had been wrongly deemed a second violent felony offender).
98. See People v. Gray, 86 N.Y.2d 10, 19, 652 N.E.2d 919, 921, 629 N.Y.S.2d 173, 175 (1995) (holding that a claim
of legal insufficiency of the evidence must be preserved for review as a “question of law”, but noting that an intermediate
appellate court may decide to review such a claim “in the interest of justice” even if it was not preserved); see generally
Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 470.05 (McKinney 1994 & Supp. 2007).
99. See People v. Gray, 86 N.Y.2d 10, 22, 652 N.E.2d 919, 923, 629 N.Y.S.2d 173, 177 (1995) (holding that a claim
of legal insufficiency of the evidence must be preserved, but noting that an intermediate appellate court may decide to
review such a claim “in the interest of justice” even if it was not preserved).
100. See People v. Bleakley, 69 N.Y.2d 490, 493, 508 N.E.2d 672, 674, 515 N.Y.S.2d 761, 762 (1987) (describing
“weight of the evidence” analysis).
101. See People v. Roman, 217 A.D.2d 431, 431, 629 N.Y.S.2d 744, 745 (1st Dept. 1995) (finding that an appellate
claim that the verdict was against the weight of the evidence need not have been raised before the trial court because a
trial court has no authority to make a decision on this type of claim).
102. Anders v. California, 386 U.S. 738, 741, 87 S. Ct. 1396, 1398; 18 L. Ed. 2d 493, 496 (1967) (finding that an
indigent person has the right to appellate representation equal to that of a nonindigent person); Douglas v. California,
372 U.S. 353, 356-357, 83 S. Ct. 814, 815–16; 9 L. Ed. 2d 811, 813–14 (1963) (holding that the 14th Amendment requires
states to provide indigent persons representation on their appeals as of right); People v. Garcia, 93 N.Y.2d 42, 46, 710
N.E.2d 247, 249, 687 N.Y.S.2d 601, 603 (1999) (“[O]n a People's appeal, a defendant has the right to appellate counsel of
defendant's choice and the right to seek appointment of counsel upon proof of indigency.”)
103. If you were represented by a court-appointed lawyer at trial, your lawyer must continue to represent you
until your appeal is disposed of, unless he or she voluntarily withdraws from your case or is ineligible to continue as your
attorney. See People v. Strolla, 186 N.Y. 526, 526, 78 N.E. 1109, 1109 (1906). In order to continue as your lawyer on
appeal, your lawyer must (1) obtain your written consent and (2) be a member of the Assigned Counsel Plan appellate
panel. N.Y. Sup. Ct. Rules § 600.8 (2006). If your attorney is unable or unwilling to continue, you should request
appointment of a new attorney from the appellate court. See People v. Garcia, 93 N.Y.2d 42, 46, 710 N.E.2d 247, 249, 687
N.Y.S.2d 601, 603 (1999) (“[O]n a People's appeal, a defendant has the right to appellate counsel of defendant's choice
and the right to seek appointment of counsel upon proof of indigency.”).
104. N.Y. Unif. Trial Ct. Rules § 200.40 (2006).
105. N.Y. Sup. Ct. Rules § 671.5 (2006); see generally People v. West, 100 N.Y.2d 23, 789 N.E.2d 615, 759 N.Y.S.2d
437 (2003) (explaining the state’s obligation to provide legal counsel to poor defendants for appeals), rev’d on other
grounds, 12 A.D. 3d 152, 783 N.Y.S.2d 473 (1st Dept. 2004).
If you decide that you do not want a lawyer to represent you on appeal, you may be able to prepare your
appeal and appear in court on your own, which is called appearing “pro se.” Note, however, that you do not
have a constitutional right to represent yourself on appeal, but a state may allow you to do so if it chooses.106
2. Requesting a Transcript
You can ask the trial court to provide you with a free transcript of your trial. In addition, you may ask
for permission to appeal on “the original record.” If the trial court grants this request, it will give the
appellate court and the prosecution copies of the record.107
3. Requesting a Stay
After filing and serving notice of your appeal, you can request a judge to “stay” your judgment. A stay
delays or interrupts your sentence’s execution until after your appeal. If you are appealing a death sentence,
or a judgment including a death sentence, the execution of your sentence is automatically stayed by filing a
notice of appeal.108 Note that you may file only one stay application after filing a notice of appeal.109
If you decide to apply for a stay, you will need to figure out whom you should ask for the stay. This will
depend on which court tried and sentenced you and which court will hear your appeal. For example, if you
are appealing to an appellate division from a judgment of a supreme court, you may apply for a stay from
any appellate division or supreme court judge in the county where the judgment was entered.110
4. Requesting Release from Jail
While you are waiting for your appeal to be heard, you can request a judge to release you on bail or on
your own “recognizance.” To be released on your own recognizance means that a court will permit you to
leave jail, on the condition that you will appear at court whenever your attendance is required, and that you
will comply with the orders and processes of the court.111
You do not have an absolute right to bail or recognizance while waiting for appeal.112 But, depending on
your offense, a judge may be able to grant your request. In many cases, a judge has discretion to determine
whether to release you. This means the law does not require the judge to keep you in custody or release you.
In these cases, you may not appeal the judge’s decision.113 But, in other cases, a judge does not have this
discretion. This means the law determines whether you must be held in custody.114 For example, if you were
convicted of a Class A felony, a judge may not release you because the law requires you be held in custody.115
106. See Martinez v. Court of Appeal of California, 528 U.S. 152, 160, 120 S. Ct. 684, 690 (2000).
107. See Appendix B-3 of this Chapter for sample papers to request free trial transcripts and copies of the record.
110. See Appendix A at the end of this Chapter.
111. N.Y. Crim. Proc. Law § 460.50(1) (McKinney 2005 & Supp. 2007); N.Y. Crim. Proc. Law § 460.50(2)(a)
(McKinney 2005 & Supp. 2007). To determine which judges can grant your application for a stay, see N.Y. Crim. Proc.
Law § 460.50(2) (McKinney 2005 & Supp. 2007).
112. See, e.g., United States v. Salerno, 481 U.S. 739, 752–55, 107 S. Ct. 2095, 2104–05, 95 L. Ed. 2d 697, 712–14
(1987); Gold v. Shapiro, 62 A.D.2d 62, 65, 403 N.Y.S.2d 906, 907, (2d Dept. 1978), aff’d, 45 N.Y.2d 849, 382 N.E.2d 767,
410 N.Y.S.2d 68 (1978). You do have the constitutional right that the court’s discretion not be exercised unreasonably or
arbitrarily, and that bail not be excessive. U.S. Const. amend. VIII; N.Y. Const. art. 1, § 5; see also Finetti v. Harris, 609
F.2d 594, 599–602 (2d Cir. 1979) (holding that denial of bail could be unconstitutional if the defendant could show that
there is no rational basis in the record to support the court’s decision).
113. See Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 460.50 (McKinney 2005 & Supp. 2007); see also
United States ex rel. Siegal v. Follette, 290 F. Supp. 636, 638 (S.D.N.Y. 1968) (NY law permits a judge to grant or deny
bail at her discretion after weighing the facts she considers significant). However, although an order denying bail is not
appealable, it may be reviewed on habeas corpus grounds. See JLM Chapter 21, “State Habeas Corpus.”
114. N.Y. Crim. Proc. Law § 510.30(1)(a)(b) (McKinney 1995 & Supp. 2006). N.Y. Crim. Proc. Law § 530.10
(McKinney 2005 & Supp. 2007) explains when a court is required or authorized to order bail or recognizance. A
defendant charged with a crime is entitled to bail or recognizance while a criminal action is pending. Sometimes even
after conviction a defendant is entitled to bail while his appeal is pending. New York State’s bail procedures are
statutory, with no automatic right to bail in New York State. But, bail must not violate the 8th Amendment restrictions
on excessive bail. See People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 33, 300 N.E.2d 716, 720, 347 N.Y.S.2d 178, 184
(1973). With certain exceptions, a court is not required to order bail or recognizance since the granting of these remedies
are generally discretionary. People v. Torres, 112 Misc. 2d 145, 149, 446 N.Y.S.2d 969, 972 (Sup. Ct. N.Y. County 1981).
If your offense does not automatically require you to be held in custody, a judge will consider the
following factors to decide whether to grant your request for release:
(1) Your character, reputation, habits, and mental condition;
(2) Your employment and financial resources;
(3) Your family ties and length of residence in the community;
(4) Your criminal record, if any;
(5) Your previous record as a juvenile delinquent or youth offender, if any;
(6) Your previous record of responding to court appearances when required; and, above all,
(7) The likelihood that the judgment against you will be reversed on appeal.116
A judge may refuse to release you on bail if he or she thinks an appellate court is unlikely to reverse
your judgment.117 Therefore, when you submit a request for bail, you should include a brief statement that
explains your appellate claims and demonstrates that there is a reasonable possibility of reversal.
In general, you should petition for bail if there is any chance it will be granted. Keep in mind, though,
the amount of bail may be more than you can afford. If you are released on bail, you will avoid the difficulty
of preparing an appeal while in jail. But, you will not receive jail credit for the time that you are out on bail.
Note also if you are released on bail while your appeal is pending, the order releasing you will expire if
your appeal is not “perfected” within 120 days after the order is given.118 Generally, to perfect an appeal you
must deliver a specified number of copies of the trial record and your brief to the appellate court and the
opposing party.119 If your appeal is not perfected within 120 days, you should request a time extension to file
an appeal, explicitly asking the court to extend the 120-day period.120
E. What You Can Ask the Court to Do in an Appeal
In an appeal, you can ask the court to reverse or modify (reverse in part) the trial court’s judgment,
sentence, or order, and to direct some corrective action.121 If the appellate court determines that there was
error in your legal proceedings, it must decide what to do to correct the error. Some types of errors are
considered so serious that they automatically warrant the reversal of your judgment. Other errors have the
potential to be serious enough to warrant reversal, but they do not automatically require the court to
reverse. The court analyzes these errors under the “harmless error test.” The court decides an error is
harmless if it believes you would have received the same conviction and/or sentence even if the error had not
occurred. The court will not reverse or modify a judgment based on a harmless error.
1. Errors Requiring Automatic Reversal
Some errors are considered so harmful that their occurrence means you were denied a fair trial and are
entitled to a new one. These “fundamental errors” have such a significant effect on the verdict that they will
usually lead to an automatic reversal of your conviction.122 For example, errors in which the court misstates
the prosecution’s burden of proof on an issue will usually be considered fundamental.123 Other examples of
errors requiring automatic reversal include
(1) You were deprived of your right to counsel;124 including if you were denied your right to a lawyer of
your choosing,125 or if you were represented by a person pretending to be a lawyer;126
116. N.Y. Crim. Proc. Law § 510.30(2)(a)B(b) (McKinney 1995 & Supp. 2007).
117. See N.Y. Crim. Proc. Law § 510.30(2)(b) (McKinney 1995 & Supp. 2007).
118. N.Y. Crim. Proc. Law § 460.50(4) (McKinney 2005 & Supp. 2007). Note that under this statute, an order
granting release will expire if your appeal has “not been brought to argument in or submitted to the intermediate
appellate court” within 120 days. Courts have interpreted this statute to mean that such an order will expire if your
appeal is not perfected within 120 days. See People v. Higgins, 177 A.D.2d 1052, 578 N.Y.S.2d 70 (4th Dept. 1991).
119. N.Y. Crim. Proc. Law § 460.70 (McKinney 2005 & Supp. 2006). For more information about how to prefect
your appeal, see Part F(3) of this Chapter.
120. N.Y. Crim. Proc. Law § 460.50(4) (McKinney 2005 & Supp. 2007). The intermediate appellate court itself
must grant the extension, regardless of who issued the order. See Preiser, Practice Commentaries, N.Y. Crim. Proc. Law
§ 460.50 (McKinney 2005 & Supp. 2007).
121. You may also ask the trial court to conduct an additional fact-finding hearing, as explained in Part B of this
Chapter. See also N.Y. Crim. Proc. Law § 470.20 (McKinney 1994 & Supp. 2007).
122. See Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 470.05 (McKinney 1994 & Supp. 2007).
123. See People v. McLaughlin, 80 N.Y.2d 466, 472, 606 N.E.2d 1357, 1360, 591 N.Y.S.2d 966, 969 (1992)
(reversing convictions on counts for which the judge gave an erroneous charge to the jury).
124. See Gideon v. Wainwright, 372 U.S. 335, 339–43, 83 S. Ct. 792, 794–96, 9 L. Ed. 2d 799, 802–04, (1963)
(2) The court failed to inform you of the dangers of proceeding without a lawyer;127
(3) You were denied your right to represent yourself;128
(4) Your judge was biased;129
(5) The judge gave a defective reasonable doubt instruction to the jury, in violation of your Fifth and
Sixth Amendment rights;130
(6) The judge gave an instruction to the jury that defined two alternative reasons for conviction, one
which was legally erroneous, and the appellate court now cannot say with absolute certainty that the
jury based its verdict on legally correct reason;131
(7) You were denied your state statutory right to be present at certain stages of the trial;132
(8) The verdict may have been based on either of two theories, one of which is illegal;133
(9) The prosecutor wrongly excluded potential jurors on the basis of their race or sex;134
(holding that a defendant in a criminal case has a constitutional right to assistance of counsel); People v. Hilliard, 73
N.Y.2d 584, 586–87, 540 N.E.2d 702, 542 N.Y.S.2d 507, 507–08 (1989) (holding that the trial court’s error in not allowing
defendant to contact his attorney for thirty days prior to arraignment was reversible error whether or not it was
harmless). In contrast to denial of effective assistance of counsel at trial, harmless error analysis is applicable to denial
of effective counsel at a pre-indictment preliminary hearing. See People v. Wicks, 76 N.Y.2d 128, 133–34, 556 N.E.2d
409, 411–12, 556 N.Y.S.2d 970, 972–73 (1990) (holding that the deprivation of a defendant’s right to counsel at a hearing
to determine whether the defendant could be held over for action by the grand jury is subject to harmless error analysis);
People v. Wardlaw, 18 A.D.3d 106, 112, 794 N.Y.S.2d 524, 529 (4th Dept. 2005) (holding that the deprivation of a
defendant’s right to counsel at a pretrial suppression hearing is subject to constitutional harmless error analysis).
125. See Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58, 77 L. Ed. 158, 162; People v. Arroyave, 49 N.Y.2d
264, 270–71, 401 N.E.2d 393, 396–97, 425 N.Y.S.2d 282, 285–86 (1980).
126. See People v. Felder, 47 N.Y.2d 287, 294–96, 391 N.E.2d 1274, 1277–78, 418 N.Y.S.2d 295, 298–99 (1979)
(holding that the fact that defendant had unknowingly been represented by a non-lawyer who was pretending to be a
lawyer required automatic reversal). However, not every instance in which a person who is not licensed to practice law
participates as a lawyer for the defendant will require automatic reversal. See People v. Jacobs, 6 N.Y.3d 188, 190, 844
N.E.2d 1126, 1127, 811 N.Y.S.2d 604, 605 (2005) (holding that the minimal participation of a non-lawyer pretending to
be a lawyer in the defense did not require automatic reversal when the defendant was also at all times represented by a
licensed lawyer); People v. Kieser, 79 N.Y.2d 936, 937, 591 N.E.2d 1174, 582 N.Y.S.2d 988, 988 (1992) (holding that the
fact that a defendant is represented by a lawyer who is temporarily not entitled to practice law for some technical
reason, such as failure to pay bar dues, does not automatically require reversal).
127. See People v. Arroyo, 98 N.Y.2d 101, 103–04, 772 N.E.2d 1154, 1156, 745 N.Y.S.2d 796, 798 (2002) (reversing
a conviction because the trial court allowed defendant to represent himself without adequate inquiry into defendant’s
understanding of the choice).
128. See Faretta v. California, 422 U.S. 806, 833–34, 95 S. Ct. 2525, 2540–41, 45 L. Ed. 2d 562, 580–81 (1975)
(holding that forcing a literate, competent, and understanding defendant to be represented by counsel violated the
defendant’s 6th and 14th Amendment rights). However, a mentally ill individual does not necessarily have the right to
self-representation. The Supreme Court recently held that a court has the discretion to deny the request if the person is
found to lack the competence to represent himself at trial. In other words, in these cases, the judge may force the
defendant to accept the aid of a lawyer. Indiana v. Edwards, 128 S. Ct. 2379, 2388; 171 L. Ed. 2d 345, 357 (2008).
129. See Tumey v. Ohio, 273 U.S. 510, 523, 47 S. Ct. 437, 441, 71 L. Ed. 749, 754 (1927) (holding that trial under a
judge with a strong personal interest in the case violated defendant’s 14th Amendment rights).
130. See Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182, 188 (1993) (holding the
jury verdict required by the 6th Amendment must be one of guilt beyond a reasonable doubt under the 5th Amendment).
131. See United States v. Joseph, No. 06-5911-CR, 2008, U.S. App. LEXIS 19169, at *13 (2d Cir. Sept. 9, 2008).
132. See, e.g., People v. Antommarchi, 80 N.Y.2d 247, 250, 604 N.E.2d 95, 97, 590 N.Y.S.2d 33, 35 (1992)
(defendant was not present at bench conferences with jury candidates); People v. Dokes, 79 N.Y.2d 656, 661, 595 N.E.2d
836, 839–40, 584 N.Y.S.2d 761, 764–65 (1992) (defendant was not present at hearing about impeaching him with prior
illegal or immoral acts); see also People v. Kelly, 11 A.D.3d 133, 142–43, 781 N.Y.S.2d 75, 84 (1st Dept. 2004), aff’d, 5
N.Y.3d 116; 832 N.E.2d 1179; 799 N.Y.S.2d 763 (2005) (finding that defendant’s right to be present had not been
violated, but noting that such an error could not be considered harmless). But see State v. W.A., 184 N.J. 45, 63–64, 875
A.2d 882, 894 (2005) (holding that, unlike the New York rule, a defendant who does not affirmatively request the right to
participate in bench conferences over jury selection should be considered to have waived the right).
133. See People v. Martinez, 83 N.Y.2d 26, 32, 628 N.E.2d 1320, 1323, 607 N.Y.S.2d 610, 613 (1993) (holding that
harmless error analysis is not appropriate if the judge told the jury it could return a guilty verdict based on either of two
theories, one of which was illegal, and the jury did not say which theory it used to reach the guilty verdict).
134. The law no longer requires that you be a member of the same group as the wrongfully excluded jurors for the
error to be considered fundamental. Powers v. Ohio, 499 U.S. 400, 416, 111 S. Ct. 1364, 1374, 113 L. Ed. 2d 411, 429
(1991). The 14th Amendment prohibits discrimination in jury selection on the basis of gender as well as race. See J.E.B.
v. Alabama, 511 U.S. 127, 129, 114 S. Ct. 1419, 1421, 128 L. Ed. 2d 89, 97 (1994); see also Snyder v. Louisiana, 128 S. Ct.
1203; 170 L. Ed. 2d 175 (2008) (granting that a new trial was warranted because the prosecutor had improperly excluded
black jurors in a case where the defendant was black). In Snyder, the court found that a close examination of why the
(10)You were denied the guarantee of a public trial;135
(11)A juror was improperly removed from the jury;136
(12)Your judge was absent during part of your trial;137
(13)During the selection of jurors, your judge improperly denied your claim that a juror should not be
included in the jury, and this refusal was based on the judge’s incorrect conclusion that you or your
lawyer were discriminating on the basis of race or gender;138 or
(14)During the selection of jurors, your judge improperly denied your claim that a juror should not be
included because the juror expressed doubt about his or her ability to decide the case fairly, and you
or your lawyer eventually used up all of your challenges to the jury composition.139
Note that the question of whether the harmless error test applies (as opposed to automatic reversal), and
what standard to apply, are issues evolving on both the state and federal levels.140
2. Errors Subject to Harmless Error Test
If the error that occurred in your proceedings was not one requiring automatic reversal of your
judgment, the court will subject the error to the harmless error test. Once the court decides that the error
occurred, it must decide if the error harmed you. In general, if the court finds your conviction (or plea) and
your sentence would have been the same even if the error had not occurred, then it will find the error was
harmless. The specific test that New York appellate courts apply to determine whether an error is harmless
depends on whether the error is a constitutional or non-constitutional error.
A non-constitutional legal error does not violate rights guaranteed by the U.S. Constitution or the New
York State Constitution. Rather, these types of errors generally violate rights guaranteed by state statutes
or common law. A non-constitutional legal error is harmful if: (1) there was not overwhelming proof of your
guilt at trial (apart from any wrongly admitted evidence); or (2) despite overwhelming proof of your guilt,
there is a “significant probability” that the jury would have acquitted you had it not been for the error.141
For example, the trial judge may not improperly examine a witness (for instance, by asking a witness
questions in a way that conveys to the jury an impression that the judge does not find the witness to be
credible).142 If the appellate court holds that the trial judge did indeed improperly examine a witness, it will
use the harmless error test to determine if your judgment should be modified or reversed. In general, the
stronger the evidence against you, the more likely a court will find a non-constitutional error harmless (and
therefore affirm the judgment against you).
A constitutional error is a legal error that violates rights guaranteed by the U.S. Constitution or the New
York State Constitution. Appellate courts apply a stricter standard (one that is more favorable to the
defendant) when reviewing constitutional errors. In general, a constitutional error is harmful unless there is
no reasonable possibility that the error might have contributed to your conviction, and thus the error is
harmless beyond a reasonable doubt.143
prosecutor excluded jurors was necessary where racial motives were present but not acknowledged.
135. See Waller v. Georgia, 467 U.S. 39, 47, 104 S. Ct. 2210, 2216, 81 L. Ed. 2d 31, 39 (1984) (holding that closure
of a hearing without the required safeguards violated defendant’s 6th Amendment rights).
136. See, e.g., People v. Jones 210 A.D.2d 430, 431, 620 N.Y.S.2d 124, 125 (2d Dept. 1994) (reversing defendant’s
conviction and ordering a new trial because the trial court did not conduct a proper inquiry before discharging a juror,
and noting that such an error is not subject to harmless error analysis).
137. See People v. Ahmed, 66 N.Y.2d 307, 311, 487 N.E. 2d 894, 896, 496 N.Y.S.2d 984, 986 (1985) (absence of
judge during jury deliberations violated defendant’s right to jury trial, and conviction was reversed).
138. See, e.g., People v. Richie, 217 A.D.2d 84, 89, 635 N.Y.S.2d 263, 267 (2d Dept. 1995) (reversing conviction
where trial court had improperly applied the Batson standard in rejecting defendant’s peremptory challenges).
139. See People v. Johnson, 94 N.Y.2d 600, 614–15 730 N.E.2d 932, 940, 709 N.Y.S.2d 134, 142 (2000) (holding
that the trial court erred by failing to either excuse or demand unconditional assurances from jurors who openly
admitted that they doubted whether they could be fair in the case).
140. For example, in 1991, the United States Supreme Court ruled that the harmless error test applies to the
admission of coerced confessions, in a departure from previous law. See Arizona v. Fulminante, 499 U.S. 279, 312,111 S.
Ct. 1246, 1266, 113 L. Ed. 2d 302, 333 (1991). This was a change in the previous standard explained in Payne v.
Arkansas, 356 U.S. 560, 568, 78 S. Ct. 844, 850, 2 L. Ed. 2d 975, 981 (1958).
141. See People v. Ayala, 75 N.Y.2d 422, 431, 553 N.E.2d 960, 964, 554 N.Y.S.2d 412, 416 (1990) (holding that
violations of defendant’s statutory rights at trial were harmless).
142. See People v. Mendez, 225 A.D.2d 1051, 1051–52, 639 N.Y.S.2d 219, 219–20 (4th Dept. 1996) (granting
defendant a new trial because the trial judge improperly examined witnesses in a manner depriving him of a fair trial).
143. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710–11 (1967); see also
Possible grounds for reversal or modification and the corresponding relief that an appellate court is
likely to grant are set forth below.144
3. Appealing Your Conviction
You may appeal your conviction either “on the law” or “on the facts.” If you appeal your conviction “on
the law,” you will argue that legal errors in the trial deprived you of a fair trial or that the evidence used to
convict you was legally insufficient. If you appeal your conviction “on the facts,” you will argue that your
conviction was against the weight of the evidence.
i. “On the Law”
You can ask an appellate court to reverse the judgment “on the law” on the basis of: (1) legal errors that
deprived you of a fair trial; or (2) legally insufficient evidence to support your conviction.145
You may seek reversal “on the law” on grounds of legal errors that deprived you of a fair trial. In order to
seek a reversal “on the law” due to legal errors, you must have properly preserved these errors for review,
unless the error you are appealing is one that is not subject to the preservation requirement, as explained
above in Part C(3). Some examples of categories of legal errors that may support reversal include: (1)
erroneous evidentiary rulings; 146 (2) prosecutor’s misconduct; 147 (3) improper jury instructions; 148 or (4)
improper influence on the jury.149
If the appellate court does reverse your judgment because of legal errors, the court must order a new
trial on the counts of the original indictment.150 You cannot be retried, however, on (1) counts dismissed on
appeal or in a post-judgment order, or (2) counts or offenses of which you were effectively acquitted. For
example, if you were charged with first-degree murder, but convicted only of second-degree murder, you will
be considered acquitted of first-degree murder and can be retried only for second-degree murder.151
You may also seek reversal “on the law” on grounds of legal insufficiency.152 Legal insufficiency means
that the evidence presented by the prosecution was not sufficient to prove all the necessary elements of the
People v. Ayala, 75 N.Y.2d 422, 431, 553 N.E.2d 960, 964, 554 N.Y.S.2d 412, 416 (1990) (explaining the harmless error
test applied to the review of constitutional errors). The harmless error test for constitutional errors in habeas corpus
proceedings is a substantial error test, and not the test applied in Chapman. See Brecht v. Abrahamson, 507 U.S. 619,
637–38, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353, 373 (1993). For greater detail, see JLM Chapter 13, “Federal Habeas
Corpus,” and JLM Chapter 21 on New York State habeas corpus proceedings.
144. The same rules governing the consideration and determination of appeals by intermediate appellate courts
apply to the Court of Appeals, as long as you are appealing directly to the Court of Appeals. N.Y. Crim. Proc. Law §
470.30(1) (McKinney 1994 & Supp. 2008). But, in determining whether a death sentence is unduly harsh or severe, the
Court of Appeals must adhere to statutory guidelines. N.Y. Crim. Proc. Law § 470.30(3) (McKinney 1994 & Supp. 2006).
145. Note, however, that “on the law” reversals need not be limited to these two instances. N.Y. Crim. Proc. Law §
470.15(4)(a), (b) (McKinney 1994 & Supp. 2008) (noting “on the law” determinations need not be limited to these bases).
146. See, e.g., People v. Boughton, 70 N.Y.2d 854, 854–55, 517 N.E.2d 1340, 1341, 523 N.Y.S.2d 454, 455 (1987)
(trial judge wrongly allowed prosecutor to introduce confession without sufficient notice); People v. Reilly, 19 A.D.3d 736,
737–38, 796 N.Y.S.2d 726, 727–28 (3d Dept. 2005) (trial judge erred by allowing jury to hear evidence that was very
prejudicial but not very probative (helpful in resolving the case)).
147. See, e.g., People v. Collins, 12 A.D.3d 33, 784 N.Y.S.2d 489 (1st Dept. 2004) (effect of prosecutor’s remarks
during summation deprived defendant of a fair trial).
148. See, e.g., Griffin v. California, 380 U.S. 609, 612–13, 85 S. Ct. 1229, 1231–32 (1965) (reversible error is
committed when judge improperly comments during jury instructions on defendant’s failure to testify); People v. Colon,
143 A.D.2d 105, 105, 531 N.Y.S.2d 355, 356 (2d Dept. 1988) (defendant entitled to reversal where court’s instructions
were excessively lengthy and improperly drew attention to defendant’s failure to testify).
149. See Parker v. Gladden, 385 U.S. 363, 364–65, 87 S. Ct. 468, 470, 17 L. Ed. 2d 420, 422–23 (1966) (reversing
state court’s judgment against defendant where bailiff violated defendant’s 6th Amendment right to trial by impartial
jury by making statement to jurors that defendant was a wicked and guilty person); People v. Stanley, 87 N.Y.2d 1000,
1001–02, 665 N.E.2d 190, 191, 642 N.Y.S.2d 620, 621 (1996) (reversing judgment against defendant because, at the
crime scene, jurors conducted an unauthorized experiment to determine a witness’ credibility and so became “unsworn
witnesses” themselves); People v. Brown, 48 N.Y.2d 388, 395, 399 N.E.2d 51, 54, 423 N.Y.S.2d 461, 464 (1979) (finding
that improper but well-intentioned jury conduct that compromises the jury process mandates reversal).
151. See, e.g., People v. Graham, 36 N.Y.2d 633, 639, 331 N.E.2d 673, 677, 370 N.Y.S.2d 888, 894 (1975)
(defendant could not be retried for murder in the second degree after the appellate division reduced the conviction to
manslaughter in the first degree).
152. For more information about legal sufficiency, see Preiser, Practice Commentaries, N.Y. Crim. Proc. Law §
470.15 (McKinney 1994).
crime of which you were convicted. For example, in order to convict a defendant of driving while intoxicated,
the prosecution must prove both that the defendant was drunk and that he was driving a car. If the
prosecution did not introduce any evidence that the defendant was driving a car, then the prosecution did
not prove that the defendant was driving while intoxicated, and the judgment will be reversed. 153 In
determining whether the evidence presented is legally sufficient, the appellate court will weigh whether any
valid reasoning or inferences could lead a rational person to the conclusion that the jury reached, viewing
the evidence in the light most favorable to the prosecution.154
The court must dismiss those counts of your indictment that the court determines to be supported by
legally insufficient evidence.155 The Double Jeopardy Clause of the Fifth Amendment (“nor shall any person
be subject for the same offense to be twice put in jeopardy of life or limb”156) prohibits the prosecution from
retrying any count that has been dismissed on the grounds of legal insufficiency.157 Thus, if the appellate
court reverses every count in your indictment for legal insufficiency, you will be set free. By contrast, if the
reversal is due to an error in the trial, and not because of legal insufficiency, there is no issue of double
jeopardy, and you may be retried for the same crime.158
An appellate court may modify a judgment by dismissing one or more counts based on legal insufficiency,
but affirming other counts for which there was legally sufficient evidence. In this situation, the appellate
court has two alternatives. It can either affirm the sentence that the trial court imposed for the counts that
were not dismissed,159 or it can “remand” (send the case back to the trial court) for re-sentencing.160
An appellate court may also modify the judgment to change your conviction to a “lesser included
offense.”161 A lesser included offense is a crime of lesser degree than the crime for which you were charged. A
lesser included offense exists when you cannot commit the greater crime of which you were charged without,
at the same time and by the same conduct, committing the lesser offense.162 Petit larceny, for example, is a
lesser included offense of third-degree robbery. Petit larceny is stealing property.163 Third-degree robbery is
stealing property through the use of force164 or threat of force.165 Since both offenses require you to steal
property, you cannot commit third-degree robbery without also committing petit larceny. Thus, if an
appellate court concludes that the prosecutor failed to prove that you used force (making your robbery
conviction legally insufficient), the appellate court may change your conviction to petit larceny, provided the
prosecutor did prove that you stole property. If the appellate court determines that the evidence proved a
lesser included offense, the court will send you back to the trial court for re-sentencing,166 unless you have
already served the maximum sentence permissible for the lesser crime.167
153. See, e.g., Easterling v. State, No. 1D07-4191, 2008 Fla. App. LEXIS 14084, at *2–3 (Fla. Dist. Ct. App. Sept.
15, 2008) (pending publication, page numbers subject to change) (reversing a conviction because the defendant’s failure to
register as a sex offender was not “willful and substantial” but rather because he lacked the $10 needed to register; thus,
the conviction could not stand).
154. See People v. Taylor, 94 N.Y.2d 910, 911–12, 729 N.E.2d 337, 337–38, 707 N.Y.S.2d 618, 618–19 (2000)
(reversing the appellate division for applying an incorrect standard of legal sufficiency).
155. N.Y. Crim. Proc. Law § 470.20(2)–(3) (McKinney 1994).
156. U.S. Const. amend. V.
157. See Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 2150–51, 57 L. Ed. 2d 1, 14 (1978) (the Double
Jeopardy Clause requires a judgment of acquittal if a court finds the evidence is legally insufficient). But see Lockhart v.
Nelson, 488 U.S. 33, 40–42, 109 S. Ct. 285, 291, 10 L. Ed. 2d 265, 273–74 (1988) (the Double Jeopardy Clause does not
prohibit a case being retried as long as the sum of the evidence, including evidence that was improperly admitted, would
have been sufficient to sustain a guilty verdict).
158. See Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 470.20 (McKinney 1994).
163. N.Y. Penal Law § 155.25 (McKinney 1999).
165. See People v. Rychel, 284 A.D.2d 662, 663, 728 N.Y.S.2d 211, 213 (3d Dept. 2001) (finding legally sufficient
evidence for convictions for robbery in the third degree where force was merely threatened); People v. Smith, 278 A.D. 2d
75, 75, 718 N.Y.S.2d 305, 305 (1st Dept. 2000) (same).
167. See People v. McBride, 248 A.D.2d 641, 642, 669 N.Y.S.2d 952, 952 (2d Dept. 1998) (finding no need to
remand for re-sentencing, since defendant had already served the maximum sentence allowable for the reduced offense).
ii. “On the Facts”
You can ask an appellate court for reversal “on the facts” by arguing your guilty verdict was against the
weight of the evidence.168 In evaluating the weight of the evidence, an intermediate appellate court must
determine whether, based on the evidence, a jury could reasonably have found you not guilty. If the
appellate court concludes a jury could reasonably have found you not guilty, the court must weigh the
evidence submitted at trial to be sure the jury gave the evidence the weight it deserved. If the court decides
the jury did not give the evidence proper weight, the court may set aside the jury’s guilty verdict.169
If the appellate court sets aside your verdict as “against the weight of the trial evidence,” the appellate
court must dismiss the charge against you.170 According to New York law, you cannot be prosecuted again on
the same charge.171 Thus, if the court sets aside all of the charges against you as “against the weight of the
evidence,” the court will order your release from custody. If one or more, but not all, of the charges against
you are dismissed as against the weight of the evidence, the court may modify the judgment as described
above in Part E(3)(a).
4. Appealing Your Sentence
You can appeal your sentence on the ground that the sentence is either: (1) unlawful; or (2) unduly harsh
or excessive.172
iii. Unlawful Sentence
A sentence is invalid as a matter of law when its terms are not authorized by statute or when the
sentencing court considers inappropriate factors, like whether you decided to exercise certain rights. For
example, a sentence of thirty years for first-degree assault, a class B violent felony, is unlawful, since the
maximum penalty allowed for a class B violent felony is twenty-five years. 173 A sentence may also be
unlawful if it is based on a mistaken determination that you had a prior conviction,174 or if your sentences
were improperly ordered to run consecutively (one after the other), instead of concurrently (at the same
time).175 A sentence is also illegal if it constitutes “cruel and unusual” punishment.176

169. See People v. Bleakley, 69 N.Y.2d 490, 495, 508 N.E.2d 672, 674–75, 515 N.Y.S.2d 761, 763 (1987) (holding
that the appellate division cannot find that a jury verdict is supported by sufficient evidence without first conducting a
factual analysis of whether the jury determination was against the weight of the evidence).
171. The prosecution cannot retry any count that was reversed because it was against the weight of the evidence.
N.Y. Crim. Proc. Law. § 470.20(5) (McKinney 1994). This is based solely upon New York law, and not on constitutional
concerns of double jeopardy. See Tibbs v. Florida, 457 U.S. 31, 32, 102 S. Ct. 2211, 2213, 72 L. Ed. 2d 652, 655 (1982)
(holding that the Double Jeopardy Clause of the Constitution does not bar the retrial of an accused when an earlier
conviction was reversed based on the weight, as opposed to the sufficiency, of the evidence); People v. Romero, 7 N.Y.3d
633, 644 n.2, 859 N.E.2d 902, 909 n.2, 826 N.Y.S.2d 163, 170 (2006) (explaining that in New York, unlike many other
jurisdictions, a defendant cannot be retried on a charge that was reversed for being against the weight of the evidence).
This is different from a reversal based upon legal insufficiency, which raises constitutional double jeopardy issues, as
explained in Part E(3)(a) of this Chapter.
172. N.Y. Crim. Proc. Law § 450.30(1) (McKinney 2005). You may be able to appeal your sentence on the ground
that the sentence is unduly harsh or excessive even if you negotiated your sentence in exchange for a guilty plea. See
People v. Pollenz, 67 N.Y.2d 264, 268, 493 N.E.2d 541, 542, 502 N.Y.S.2d 417, 418 (1986) (holding that Article Six,
Section 4(k) of the New York Constitution prohibits the legislature from limiting a defendant’s right to appeal to the
appellate division, except regarding appeals of non-final orders, and concluding that that a statute that prohibited
appeals on the issue of excessive negotiated sentences was unconstitutional); see also N.Y. Crim. Proc. Law § 470.15(6)(b)
(McKinney 1994) (describing how an appellate court may use its discretion to reverse or modify a sentence as unduly
harsh or severe). See Part C(2) of this Chapter for a discussion of possible waiver of your right to appeal the issue of
whether your sentence was unduly harsh or excessive.
173. N.Y. Penal Law § 70.02(3)(a) (McKinney 2004).
174. See People ex rel. Furia v. Zelker, 70 Misc. 2d 167, 169, 332 N.Y.S.2d 310, 311 (Sup. Ct. Dutchess County
1971) (finding that where defendant’s 1959 conviction had been set aside before he was convicted on this offense in 1966,
the fact that he was convicted again in 1970 for the 1959 crime did not make him a “multiple felony offender” in 1966);
People v. Foster, 57 N.Y.S.2d 737, 738 (Sup. Ct. Cayuga County 1945) (finding a sentence unlawful because it had been
increased to reflect a prior felony, although no prior felony had been included in the indictment).
175. See, e.g., N.Y. Penal Law § 70.25(2) (McKinney 2004).
176. U.S. Const. amend. VIII; People v. Thompson, 83 N.Y.2d 477, 482, 633 N.E.2d 1074, 1077, 611 N.Y.S.2d 470,
473 (1994) (holding that a sentence of 15 years to life was not cruel and unusual punishment for a 17-year old convicted
iv. Unduly Harsh or Excessive Sentence
A sentence is excessive if the sentence is allowed by the law, but is unfair based on the facts of your
case. 177 An appellate court may take into account, for example, the circumstances of your crime, the
probability of your rehabilitation, your background, and your criminal record, if any.178 You may appeal your
sentence as unduly harsh if anything over the minimum legal sentence was imposed. A court may also
consider whether the sentences you received are to run consecutively (one after the other) or concurrently (at
the same time). Even if the appellate court rejects all of your arguments regarding errors that occurred
during your trial, it may use its “in the interest of justice” discretion to order your sentences to run
concurrently (at the same time) instead of consecutively (one after the other).179
An intermediate appellate court may substitute its own discretion for that of the trial court in reviewing
and modifying your sentence.180 While some courts have held that an appellate court may modify a sentence
only if the trial judge abused his discretion,181 this is not the correct standard. An intermediate appellate
court may use its general review powers “to do whatever the trial court could have done,” in the interest of
justice.182 If an intermediate appellate court decides to change your sentence because it is unduly harsh or
excessive, then the court itself must impose some lawful lesser sentence. 183 If this happens, the court
changes only your sentence and the judgment is otherwise affirmed.184
of selling cocaine); People v. Diaz, 179 Misc.2d 946, 956–57, 686 N.Y.S.2d 595, 601–02 (Sup. Ct. N.Y. County 1999)
(holding that defendant’s sentence of 15 years to life was “grossly disproportionate” as applied to him and therefore
constituted “cruel and unusual punishment,” and re-sentencing defendant to 10 years to life); see also United States v.
Farley, No. 1:07-CR-196-BBM, slip op. at 8 (N.D. Ga. Sept. 2, 2008) (holding that a mandatory minimum sentence of 30
years was cruel and unusual punishment for a defendant who took steps to engage in sexual contact with a ten-year old
but who never actually had any contact with the child and where no harm was suffered).
177. When an appellate court decides whether a sentence is excessive or unduly harsh, it is said to be exercising
its “in the interest of justice” jurisdiction. N.Y. Crim. Proc. Law § 470.15(6)(b) (McKinney 1994 & Supp. 2006). See Part
B(3)(b) of this Chapter for a discussion of “in the interest of justice” jurisdiction. Note that if you were convicted of a
crack offense, you may be eligible for a sentence reduction, owing to recent changes in the federal sentencing. See U.S.
Sentencing Comm’n, “Reader-Friendly” Version of Amendments on Crack Cocaine and Retroactivity Effective May 1,
2008, at 3–4, available at http://www.ussc.gov/2008guid/200805_Reader_Friendly_Amendments.pdf (last visited Oct. 5,
2008) (describing a recent amendment to the sentencing guidelines that reduces sentences for offenses involving crack
and one or more controlled substances). However, at least one court of appeals has held defendants who were sentenced
as crack “career offenders” under a state statute are not eligible for re-sentencing. United States v. Moore, No. 08-11230,
2008 U.S. App. LEXIS 18924, at *19–20 (11th Cir. Sept. 5, 2008) (pending publication, page numbers subject to change).
178. See, e.g., People v. Bankowski, 204 A.D.2d 802, 803, 611 N.Y.S.2d 712, 713B14 (3d Dept.1994) (finding that
the harshest available sentence for manslaughter and drunk driving was not excessive where the defendant had a prior
conviction for drunk driving); People v. Pugh, 194 A.D.2d 863, 865, 599 N.Y.S.2d 317, 318 (3d Dept. 1993) (finding that
the defendant’s full and intentional participation in brutally violent crimes made the sentence appropriate, even though
the defendant was young and did not have any previous criminal record).
179. See, e.g., People v. Evans, 212 A.D.2d 626, 627, 623 N.Y.S.2d 4, 6 (2d Dept. 1995) (modifying a sentence in
which the defendant would have to serve four terms of “25 years to life imprisonment” one after another to a sentence in
which the defendant could serve the four terms all at the same time); People v. Quinitchett, 210 A.D.2d 438, 439, 620
N.Y.S.2d 430, 431 (2d Dept. 1994) (modifying a sentence in which the defendant would have to serve three terms of “25
years to life imprisonment” one after another to a sentence in which the defendant could serve the three terms all at the
same time).
180. See People v. Delgado, 80 N.Y.2d 780, 783, 599 N.E.2d, 675, 676, 587 N.Y.S.2d 271, 272, (1992) (noting that
“[a]n intermediate appellate court has broad power to modify a sentence that is unduly harsh or severe under the
circumstances, even though the sentence may be within the permissible statutory range” and that the court could
exercise this power, “if the interest of justice warrants, without deference to the sentencing court.”); People v. Wiggins,
24 A.D.3d 263, 263, 806 N.Y.S.2d 496, 297 (1st Dept. 2005) (reducing sentence on appeal as a matter of discretion in the
interest of justice); see also N.Y. Crim. Proc. Law. § 470.15(6)(b) (McKinney 1994 & Supp. 2008).
181. See, e.g., People v. Hoyle, 211 A.D.2d 973, 975, 621 N.Y.S.2d 756, 759 (3d Dept. 1995) (refusing to modify the
sentence because the lower court did not abuse its discretion in sentencing defendant).
182. People v. Suitte, 90 A.D.2d 80, 85–86, 455 N.Y.S.2d 675, 679 (2d Dept. 1982) (explaining that an intermediate
appellate court is not limited to an abuse of discretion standard of review when deciding whether to modify a sentence);
see also People v. Delgado, 80 N.Y.2d 780, 783, 599 N.E.2d 675, 676, 587 N.Y.S.2d 271, 272 (1992) (“An intermediate
appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances,
even though the sentence may be within the permissible statutory range.” (citing N.Y. Crim. Proc. Law § 470.15(6)(b)).
184. N.Y. Crim. Proc. Law § 470.15(2)(c) (McKinney 1994 & Supp. 2006).
In a death sentence appeal, the Court of Appeals must focus upon the individual circumstances of your
case in determining whether your sentence is unjust. 185 Under New York law, the Court of Appeals is
required to consider the potential influence of passion or prejudice (including race-based prejudice) upon
your sentence, the penalty imposed in similar cases, and the weight of the evidence in support of your
sentence.186 An appellate court has three options when it reviews a death penalty sentence: (1) it can affirm
the death sentence, (2) it can remand the case for re-sentencing with the possibility of the death sentence, or
(3) it can remand the case for re-sentencing without the possibility of a death sentence.187
Although these appellate procedures for death penalty cases are still technically valid, there is currently
no constitutionally valid death penalty statute on the books in New York.188 This means that there will not
be any death penalty appeals in New York in the near future. However, the information regarding appellate
procedures in death penalty cases is provided because it is possible that the New York legislature could
enact a new death penalty statute some day in the future. Additionally, the information provided here may
be of some use to prisoners in states that do have active death penalty statutes.189
F. Preparing Your Papers for Your Appeal
1. What and Where to File
This Part will help you figure out which papers you need to file and where you should file them.
If you have a right to appeal and are appealing “as a matter of right,”190 you must file two copies of a
written notice of appeal with the clerk of the court in which you were sentenced.191 You must also serve a
copy of your notice of appeal upon the District Attorney of the county where your trial court is located.192 The
notice of appeal should state the following information: (1) your name; (2) your desire to appeal; (3) the court
to which you plan to appeal; (4) a description of the judgment, sentence, or order you wish to appeal; and (5)
your indictment number193 or your docket number if your proceedings occurred in the criminal court. If your
notice of appeal contains mistakes in the description of the judgment, sentence, or order to be appealed, the
appellate court may, in the interest of justice, excuse your mistakes and treat your notice as valid. 194
However, you should try to make your legal papers as correct as possible.
If you are challenging a decision for which there is no automatic right to appeal, for example a trial
court’s denial of your Article 440.10 or Article 440.20 motion, you must first seek permission to appeal. To do
185. See Gregg v. Georgia, 428 U.S. 153, 195, 96 S. Ct. 2909, 2936, 49 L. Ed. 859, 887 (1976) (observing that
concerns that a court might impose the death penalty in an “arbitrary and capricious manner” are “best met by a system
that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the
imposition of sentence and provided with standards to guide its use of the information”).
188. See People v. LaValle, 3 N.Y.3d 88, 99, 817 N.E.2d 341, 344, 783 N.Y.S.2d, 485, 488 (2004) (holding that the
current New York death penalty statute is unconstitutional); see also People v. Taylor, 9 N.Y.3d 129, 155–56, 878 N.E.2d
969, 984, 848 N.Y.S.2d 554 (2007) (vacating the sentence of the last prisoner on death row in New York).
189. Note that if you are currently seeking to appeal a death sentence on the grounds that the court failed to
consider a mitigating claim or mitigating evidence (that is, a claim or evidence that lessened the likelihood that you were
guilty), be sure to look for and read the following cases, which the Supreme Court will decide after this manual goes to
print: (1) Bell v. Kelly, Docket No. 07-1223, 128 S. Ct. 2108, 171 L. Ed. 2d 228 (2008) (agreeing to hear the case) and (2)
Cone v. Bell, Docket No. 07-1114, 128 S. Ct. 2961 (2008) (agreeing to hear the case). These cases will consider whether,
when reviewing an appeal of a death sentence, a federal court may consider mitigating evidence that the state court
either did not fully consider or a mitigating claim that a state court dismissed on procedural grounds.
190. See Part B of this Chapter, which explains when you have an automatic right to appeal.
191. N.Y. Crim. Proc. Law § 460.10(1)(a) (McKinney 2005 & Supp. 2008). This section applies to appeals as of
right to an intermediate appellate court or directly to the Court of Appeals. If there is no clerk of the trial court, you
must file one copy of your notice of appeal with the judge of the trial court and a second copy with the clerk of the
appellate court to which you plan to appeal. N.Y. Crim. Proc. Law § 460.10(2) (McKinney 2005 & Supp. 2008). If a
transcript of your trial was not made because there was no court reporter at your trial, you may file an affidavit of errors
with the trial court instead of a notice of appeal. If you file a notice of appeal, you must also file an affidavit of errors
within thirty days of filing your notice of appeal. N.Y. Crim. Proc. Law § 460.10(3) (McKinney 2005 & Supp. 2008). An
affidavit of errors is a sworn statement that explains the errors in the trial upon which your appeal is based. N.Y. Crim.
Proc. Law § 460.10(3) (McKinney 2005 & Supp. 2006). See Part F(2) of this Chapter for deadlines for filing.
192. N.Y. Crim. Proc. Law § 460.10(1)(b)–(3)(b) (McKinney 2005 & Supp. 2008).
193. See Forms B-1, B-2, and B-3 in Appendix B of this Chapter.
this, you must file an application for a certificate granting leave (permission) to appeal in the intermediate
appellate court.195 If you do not file the application and simply appeal without it, the court will not hear your
appeal, and by the time the problem comes to light it might be too late to fix it. If your application is granted,
the court will issue you a certificate granting leave (permission) to appeal. You must file both this certificate
and a notice of appeal with your trial court within fifteen days.196 If the appeal is from a local criminal court
and a court stenographer did not record your proceedings, you may submit an affidavit of errors in place of
the notice of appeal. See Part G for more information on how to appeal directly to the Court of Appeals.
In either case, once you have filed a notice of appeal, you should order copies of the trial transcript from
the court reporter. You will need copies of the transcript to “perfect your appeal.”197 If you cannot afford the
transcripts, you may request that the appellate court give you a free transcript, or request to appeal on the
original record.198 To do either, you must send the appellate court: (1) a letter stating your request; and (2)
an affidavit (a sworn statement witnessed by a notary public) setting forth your request, the amount and
sources of your income, and facts showing that you are unable to pay the relevant expenses. This affidavit to
proceed as a poor person on appeal, or for partial poor person relief, is called an in forma pauperis affidavit.
You should also send copies of the letter and affidavit to the district attorney of the county where your trial
court is located. Appendix B of this Chapter explains exactly how to fill out poor person’s papers. The same
procedure can be used to ask the court to appoint you a lawyer if you cannot afford one.
2. When to File
If your appeal is a matter of right, you must file and serve your notice of appeal within thirty days of
your sentencing date.199 You should file as soon as possible after sentencing, even if you are unsure you want
to appeal. Prompt filing does not force you to appeal, but protects your right to appeal if you decide to do so.
If your appeal is a matter of right and you are appealing directly to the Court of Appeals, the deadline
for filing your notice of appeal is the same as for an appeal as of right to an intermediate appellate court.
Also, you must file and serve your jurisdictional statement within ten days of filing your notice of appeal.
If you must seek permission to appeal, an application for a certificate granting leave to appeal to an
intermediate appellate court must be filed within thirty days after you receive a copy of the order or
judgment you wish to appeal.200 If the court gives you a certificate granting permission to appeal, you must
file the certificate and notice of appeal within fifteen days from the time the court created the certificate.201
3. How to Perfect Your Appeal
In addition to filing a notice of appeal, you must “perfect” your appeal.202 Generally, to perfect an appeal
you must deliver a specified number of copies of the trial record and your brief to the appellate court and to
the opposing party. The exact steps necessary to perfect an appeal vary in each appellate court. For details,
you should consult the rules of the appellate division or appellate term to which you are appealing.203
195. N.Y. Crim. Proc. Law § 460.10(4)(a) (McKinney 2005 & Supp. 2008) (describing procedure for seeking leave to
appeal). See also Appendix B, Form B-2, for a sample application for a certificate granting leave to appeal. Note, each
appellate division has its own rules for applying for a certificate. See JLM Chapter 20 for information on 440 motions.
197. See Part F(3) of this Chapter on how to perfect an appeal.
198. Under the rules of the four appellate divisions, the procedure for seeking relief as a poor person in criminal
appeals is the same as that in civil cases. For an explanation of this procedure, see N.Y.C.P.L.R. 1101 (McKinney 1997 &
Supp. 2006). See also Anders v California, 386 U.S. 738, 741, 87 S. Ct. 1396, 1398, 18 L. Ed. 2d 493, 496 (1967) (an
indigent person has the right to appellate representation equal to that of a nonindigent person); Douglas v California,
372 U.S. 353, 356–57, 83 S. Ct. 814. 815–16, 9 L. Ed. 2d 811, 813-814 (1963) (the 14th Amendment requires States to
provide indigent persons representation on their appeals as of right); People v. Garcia, 93 N.Y.2d 42, 46, 710 N.E.2d 247,
249, 687 N.Y.S.2d 601, 603 (1999) (“On a People's appeal, a defendant has the right to appellate counsel of defendant's
choice and the right to seek appointment of counsel upon proof of indigency … .”).
199. N.Y. Crim. Proc. Law § 460.10(1)(a) (McKinney 2005 & Supp. 2006). If you file the notice, but fail to serve it
upon the district attorney within the 30-day period, the appellate court may allow you to serve the notice after the
deadline, provided you have a good reason for not serving the notice in time. N.Y. Crim. Proc. Law § 460.10(6)
203. For a listing of the rules, see N.Y. Comp. Codes R. & Regs. tit. 22, §§ 600.8, 600.11 (1st Dept., appellate
division) (2001); N.Y. Comp. Codes R. & Regs. tit. 22, §§ 640.3, 640.5, 640.6 (1st Dept., appellate term) (2001); N.Y.
4. How to Prepare for Your Appeal
Once you have properly taken your appeal, you and your lawyer should review the record and begin to
prepare a brief. The brief is a memorandum of law, which is a paper that informs the appeals court of the
facts of your case, identifies the trial court’s errors, and explains why these errors require the appeals court
to reverse or modify your conviction or sentence.204 The brief is “served upon” or given to the court and your
opponent (the respondent). You should read a copy of the brief to make sure it contains all the arguments
that you believe the appeals court should consider in deciding your case.
If you have been assigned a lawyer, you do not have the right to insist the lawyer include arguments in
the brief your lawyer believes should not be presented to the appellate court.205 You may, however, request
permission to file a pro se supplemental brief (an additional brief of your own) to raise issues your lawyer left
out of the original brief. The appellate court will likely (but not necessarily) accept your pro se brief, provided
you request to file it in a timely fashion, usually by writing for permission to the appellate court where your
appeal will be heard, and provided you specifically identify in your request the issues that you intend to
raise in the pro se brief. You must request this permission in writing within thirty days of the date your
attorney files the brief. You should make sure your request is not too late or too general.206 The rules for
when you must file your request can be found in the rules of the court to which you are appealing.207
In response to your brief, your opponent (the respondent) will file a brief that argues that the trial
court’s judgment should stand. After the appellate court receives your opponent’s brief, it will set a calendar
date for oral argument.208 After your opponent files the brief, you also have the right to file a reply brief
within a few days. A reply brief gives you the opportunity to point out factual errors in the respondent’s
brief, or to mention relevant court decisions that have been issued since you submitted your initial brief. You
are not allowed to raise new issues in your reply.209
In an oral argument, your lawyer has about fifteen minutes to discuss the merits of your appeal directly
with the appellate court.210 The purpose of the oral argument is to focus the judges’ attention on important
points of your case and answer any questions or doubts they have about your claims. You should discuss
with your lawyer any particular points you would like emphasized in oral argument, since it is your lawyer’s
final chance to persuade the appellate court to rule in your favor. In some cases, you and your lawyer may
decide it is best not to argue your case orally. For example, your lawyer may believe an oral argument will
add little to the arguments presented in your written brief. Keep in mind there are risks involved in such a
decision. In some cases, the court may consider waiving the oral argument as an admission that your case is
weak. An oral argument also provides an important chance to clarify and expand on issues raised in your
brief. You and your lawyer should consider the matter carefully before making a decision on how to proceed.
Appellate court judges will decide your case after they read the briefs and hear the oral argument. The
court may or may not explain in writing the reasons for its decision.211 Keep in mind that the whole process,
from the time you file a notice of your appeal to the date the judges hand down their decision, is very time
Comp. Codes R. & Regs. tit. 22, §§ 670.8, 670.10, 670.12 (2d Dept., appellate division) (2001); N.Y. Comp. Codes R. &
Regs. tit. 22, §§ 731.1, 731.2, 731.4 (2d Dept., appellate term) (2001); N.Y. Comp. Codes R. & Regs. tit. 22, § 800.14 (3d
Dept., appellate division) (2001); N.Y. Comp. Codes R. & Regs. tit. 22, § 1000.4 (4th Dept., appellate division) (2001). See
Appendix A of this Chapter to determine where you should direct your appeal.
204. Part C of Chapter 6 of the JLM describes briefs and other legal papers in more detail.
205. See Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312, 77 L. Ed. 2d 987, 993 (1983) (holding that a
defendant does not have the right to insist that his lawyer make every possible non-frivolous argument); People v.
White, 73 N.Y.2d 468, 479, 539 N.E.2d 577, 583, 541 N.Y.S.2d 749, 755 (1989) (same).
206. See People v. White, 73 N.Y.2d 468, 479, 539 N.E.2d 577, 583, 541 N.Y.S.2d 749, 755 (1989) (finding that
while it would be “better practice” for appellate courts to accept timely supplemental pro se briefs, the denial of an
application to accept a pro se brief is within the court’s discretion).
207. In the second department of the appellate division, for example, if you want to file a pro se brief, you must do
so within 30 days from the date your attorney filed her brief. For more information about the rules of the court to which
you are applying, see JLM Chapter 5.
208. Some appeals may take place without oral argument. Check the rules of the appellate court to which your
appeal is directed. See N.Y. Crim. Proc. Law § 460.80 (McKinney 2005 & Supp. 2006).
209. See Jonathan M. Purver & Lawrence E. Taylor, Handling Criminal Appeals § 128.12 506 (Supp. 2004).
210. The rules of the individual appellate courts set the amount of time allowed for oral argument. N.Y. Crim.
Proc. Law § 460.80 (McKinney 2005 & Supp. 2006).
211. The practice of affirming a decision without a written explanation (known as “summary affirmance”) has
been criticized by lawyers, but appellate courts sometimes do it nonetheless.
consuming and may be subject to delays. A typical appeal takes approximately two years. Each step may
take several months—including gathering the necessary documents, preparing the brief, obtaining the
respondent’s brief, getting a calendar date, and, finally, waiting for a decision.
Throughout your appeal, you should take an active role even if you have a lawyer. This includes
communicating frequently with your lawyer, suggesting issues for your lawyer to include in your briefs, and
requesting copies of documents relating to your appeal.
G. Continuing Your Appeal
If your first appeal is not successful, you may be able to pursue your claim in a higher court or by an
alternative procedure. This Part discusses how you can take an appeal that has been denied by an
intermediate appellate court to the Court of Appeals. It also discusses alternatives that you may consider if
the Court of Appeals denies your appeal.
If the intermediate appellate court denies your appeal, you may continue pursuing your claim by
appealing the intermediate appellate court’s order to New York’s highest court: the Court of Appeals. You
can appeal an intermediate appellate court decision affirming or modifying a trial court decision against you
only if: (1) the decision is based on the law alone; or (2) the remedy ordered is illegal. 212 Unlike the
intermediate appellate courts, the Court of Appeals cannot vacate a conviction solely on the basis that the
evidence does not sufficiently support the facts. In addition, the Court of Appeals cannot review a
determination made by an intermediate appellate court based upon its “in the interest of justice” discretion.
Keep in mind that you do not have an automatic right to appeal an intermediate appellate court decision
to the Court of Appeals; you may do so only if you obtain a certificate granting leave (permission) to
appeal.213 You must apply for this certificate within thirty days after you are served with the appellate court
order that you wish to appeal.214 You may seek permission to continue your appeal if the appellate court
affirms the trial court judgment, sentence, or order against you, or if you are dissatisfied with the appellate
court’s modification of the judgment, sentence, or order.215
When you are appealing from an unrecorded proceeding, you must file either a notice of appeal or an
affidavit of errors within thirty days after the judgment, sentence, or order was entered or imposed.216 If you
first file a notice of appeal, you have thirty days from the date of such filing to file an affidavit of errors.217
You must serve a copy of the affidavit of errors to the District Attorney within three days of filing the
affidavit with the court.218
The specific procedure for obtaining permission to appeal depends upon the particular intermediate
appellate court from which you are appealing. If you are appealing from any court other than the appellate
division, you must seek permission from a judge of the Court of Appeals. However, if you are appealing from
a decision of the appellate division, you may request a certificate of leave to appeal from either a judge of the
Court of Appeals or a justice of the appellate division in the same department that handed down the decision
that you are appealing.219 Many appellate division judges are hesitant to grant leave to appeal, however,
because they know that the Court of Appeals likes to decide for itself what cases it will hear. You can file
only one application, so you may wish to seek a certificate directly from the Court of Appeals. However, if an
appellate division judge dissented from the majority in your case, you may decide to apply to that judge for a
certificate of leave to appeal instead of going directly to a judge of the Court of Appeals.
To request a certificate from a judge of the Court of Appeals, you must send an application to the clerk of
the Court of Appeals. The application should be addressed to the chief judge, who will appoint one judge of
the Court of Appeals to consider your application.220 Your application must include copies of the briefs and
213. N.Y. Crim. Proc. Law § 450.90(1) (McKinney 2005 & Supp. 2006). Form B-2 in Appendix B is a sample
application for a certificate granting leave to appeal.
216. N.Y. Crim. Proc. Law § 460.10 (3)(a) (McKinney 2005 & Supp. 2006).
219. N.Y. Crim. Proc. Law § 460.20(2)(a) (McKinney 2005 & Supp. 2006). If you are appealing from the decision of
an intermediate appellate court other than the appellate division (i.e., the appellate term), you must request the
certificate from a judge of the Court of Appeals. N.Y. Crim. Proc. Law § 460.20(2)(b) (McKinney 2005 & Supp. 2006).
the appellate division decision along with a letter explaining why your case needs further review. You must
also include relevant transcripts that demonstrate that your appeal is based on a question of law and that
you preserved the right to appeal when the error was made. 221 Further review might be considered
appropriate if your case presents a novel issue of law (that is, an issue that the court has not yet considered),
if the lower court failed to follow established precedent, or if the appellate divisions differ in their
approaches to the issue involved. Once the judge grants your application and issues a certificate, your appeal
is taken. You may proceed to prepare your brief and oral argument.222
The jurisdictional statement explains the issues to be raised and gives legal authority to assert that the
Court of Appeals has the power to hear your claim. You will need to file two copies of the jurisdictional
statement with the clerk of the Court of Appeals, and serve one copy on the District Attorney of the county
where your trial court is located.223
If the Court of Appeals denies permission to appeal, you may request reconsideration of your application
by filing an application for reconsideration with the clerk of the court within thirty days of the issuance of
the certificate denying permission.224 Your application will be reassigned to the same judge who originally
ruled on it.225 Be aware that few of the cases heard at the intermediate level reach the Court of Appeals.226
If the Court of Appeals hears your appeal, it will affirm, reverse, or modify the intermediate appellate
court order227 and take or direct some appropriate corrective action.228
If the Court of Appeals hears your appeal but rules against you, you may still have other opportunities
for relief. First, if your case involves issues of federal law,229 you can apply for a writ of certiorari. This would
allow you a final appeal on those federal issues to the United States Supreme Court, but the Supreme Court
very rarely grants such permission. Second, in certain circumstances, you may seek to challenge your
conviction or sentence through a different post-conviction proceeding, such as an Article 440 motion, a
petition for state habeas corpus, or a petition for federal habeas corpus. See JLM Chapters 20, 21, and 13,
respectively, for explanations of these remedies.
H. Three Options for Dealing with Ineffective Assistance of Appellate Counsel
When you appeal your conviction, you have the right to effective assistance from your appellate
lawyer.230 This Part addresses what to do if you believe that your appointed attorney is not raising all the
issues that should be pursued on appeal. Note: you also have the right to effective assistance from your trial
lawyer. For information about how to challenge your trial lawyer’s assistance, see JLM Chapter 12.
This Part will discuss three particular strategies that have been used by prisoners: (1) responding to an
Anders brief submitted by your attorney, (2) filing supplemental briefs along with those of your attorney,
and (3) applying for a writ of error coram nobis for relief from ineffective counsel.
221. For a list of the requirements for bringing an appeal to the Court of Appeals, see N.Y. Comp. Codes R. &
Regs. tit. 22, § 500.20 (2005).
222. See N.Y. Comp. Codes R. & Regs. tit. 22, § 500.20 (2005) (criminal cases); N.Y. Comp. Codes R. & Regs. tit.
22, § 500.22 (2005) (civil cases).
223. N.Y. Comp. Codes R. & Regs. tit. 22, § 500.21 (2005). Proof of service on the district attorney must also be
filed with the clerk of the Court of Appeals. See N.Y. Comp. Codes R. & Regs. tit. 22, §500.20 (2005) for a list of the
information you need to include in the jurisdictional statement and the documents you need to file with the statement.
226. In 2006, the Court of Appeals decided 62 criminal appeals. See Chief Administrator of the Courts, State of
N.Y., The 29th Annual Report of the Chief Administrator of the Courts 4 (2006), available at
http://www.courts.state.ny.us/reports/annual/pdfs/2006annualreport.pdf; see also Preiser, Practice Commentaries, N.Y.
Crim. Proc. Law § 450.90 (McKinney 2005 & Supp. 2006) (discussing appellant’s hurdles to reaching appeals court).
228. N.Y. Crim. Proc. Law § 470.40 (McKinney 1994 & Supp. 2008). See N.Y. Crim. Proc. Law §470.40(2)–(3)
(McKinney 1994 & Supp. 2006) for rules controlling what action the court must take.
229. Violations of the U.S. Constitution present issues of federal law. See 28 U.S.C. § 1331 (2006).
230. Evitts v. Lucey, 469 U.S. 387, 395–96, 105 S. Ct. 830, 835–36, 83 L. Ed. 2d 821, 829 (1985) (holding the
fairness of the appellate process requires that a defendant receive more than nominal representation from counsel);
Douglas v. California, 372 U.S. 353, 357, 83 S. Ct. 814, 816, 9 L. Ed. 2d 811, 815–16 (1963) (holding state requirement
that defendants make preliminary showing of merit prior to assignment of appellate counsel was unconstitutional).
1. Anders Briefs
You may encounter a situation in which the attorney appointed for your criminal appeal asks the court
for permission to withdraw from your case by filing a motion known as an “Anders brief.” An attorney files
an Anders brief if she concludes, after reviewing your case, there are no non-frivolous claims you could make
on appeal. But, in the brief, your attorney must also identify, by references to the trial record, any issues
with at least arguable merit, supported by legal authority.231 After reviewing the Anders brief, a court will
grant your attorney’s request to withdraw from handling your appeal if it determines your attorney has
fulfilled the obligation to thoroughly examine the trial record for arguably appealable issues. If the court
agrees there are no non-frivolous claims you could make on appeal, it will affirmed the judgment from which
you seek to appeal and dismiss your appeal. But, if the court concludes there are non-frivolous claims on
which you could base an appeal, the court will appoint you a new attorney to help with your appeal.232
The fact that your attorney files an Anders brief does not in itself constitute ineffective assistance of
counsel.233 However, your attorney’s duty in the matter of your appeal is to be an “active advocate,” and her
Anders brief must be more than a conclusory statement that there are no non-frivolous claims that you could
make on appeal. It must show that your attorney made an independent and conscientious examination of the
record for the purposes of your appeal.234 You may disagree with your attorney over whether certain issues
of your case should be appealed. Your attorney must raise all issues that, in his or her professional
judgment, have arguable merit, but he or she is not obliged to raise every non-frivolous issue you request.235
If you believe that there are non-frivolous issues that should be pursued on appeal, but your attorney
refuses to do so and instead files an Anders brief, you will generally have the opportunity to file a pro se
supplemental brief on any issues you believe to be meritorious (deserving consideration by the court).236 You
should refer to the rules of the court to which you are appealing to determine whether you must first apply
for permission to submit your brief and whether there are any criteria the court may have set out for the
format of your brief. Your attorney is required to inform you of the fact that he has filed an Anders brief that
will likely result in an affirmation of your conviction, and he must also inform you of your right to file a pro
se supplemental brief.237 Your attorney must also provide you with a copy of the brief.238
You should file a supplemental brief. If you don’t file your own brief in response to your attorney’s
Anders brief, you could be prevented from successfully pursuing habeas relief on certain issues that could
have been raised on appeal, including ineffective assistance of counsel. For example, to obtain federal habeas
231. Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967). But cf. Smith v.
Robbins, 528 U.S. 259, 272, 120 S. Ct 746, 756–57, 145 L. Ed. 2d 756, 771–72 (2000) (holding that states may adopt
procedures that differ from that described in Anders, so long as the underlying goal of adequate appellate review
required by the 14th Amendment is met). However, the “procedures adopted by New York courts closely parallel and are
clearly modeled upon the procedure set forth by the Supreme Court in Anders.” People v. Stokes, 95 N.Y.2d 633, 637, 744
N.E.2d 1153, 1155, 722 N.Y.2d 217, 219 (2001) (describing the procedures for Anders briefs that New York courts have
adopted and holding that the Anders brief filed by assigned counsel was insufficient because it did not adequately
advocate available non-frivolous arguments on defendant’s behalf).
232. Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967) (describing
appointed attorneys’ duties to handle appeals); see also People v. Stokes, 95 N.Y.2d 633, 637, 744 N.E.2d 1153, 1155, 722
N.Y.2d 217, 219 (2001) (describing procedures New York courts have adopted for Anders briefs and holding Anders brief
filed by assigned counsel was insufficient because it did not adequately present available non-frivolous arguments on).
233. McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 444, 108 S. Ct. 1895, 1905, 100 L. Ed. 2d 440, 456–57
(1988) (upholding constitutionality of a state requirement that when counsel filed a no-merit brief, he must include an
explanation of why an issue lacked merit); see also Jorge v. United States, 818 F. Supp. 55, 57 (S.D.N.Y. 1993) (holding
the “filing of an Anders brief does not in itself constitute ineffective assistance of counsel” and defendant must show that
“appellate counsel’s performance was unreasonably deficient” in order to prove ineffective assistance of counsel).
234. Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1386, 1400, 18 L. Ed. 2d. 493, 498 (1967).
235. Jones v. Barnes, 463 U.S. 745, 751–54, 103 S. Ct. 3308, 3312–14, 77 L. Ed. 2d 987, 993–95 (1983) (holding
appellate counsel who did not raise every non-frivolous issue fulfilled duty of representing client to best of his ability).
236. United States v. Gomez-Perez, 215 F.3d 315, 320 (2d Cir. 2000) (stating that “[i]f counsel subsequently
determines that an Anders brief is appropriate and thereafter files such a brief, this Court must … afford the defendant
an opportunity to raise pro se any issues he feels merit discussion.” (citing Anders v. California, 386 U.S. 738, 744, 87 S.
Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967))).
237. United States v. Gomez-Perez, 215 F.3d 315, 321 n.2 (2d Cir. 2000) (stating that an attorney should “adhere
to standard practice by including with his Anders brief an affidavit certifying” that he has informed his client of the
filing of the brief, which will likely result in the affirmance of the client’s conviction).
238. Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967) (“A copy of
counsel’s brief should be furnished” to the defendant.).
relief, a petitioner must exhaust state remedies and show his constitutional rights were violated.239 If you do
not raise issues in a pro se brief, a court may find you did not exhaust state remedies and bar you from
bringing a federal habeas petition.240 Further, where your attorney has submitted an Anders brief rejecting
issues in your supplemental brief as frivolous, New York courts may assign new counsel for your appeal.241
Finally, note that Anders is only binding law in federal court.242 That being said, citing Anders in state
appeals makes sense as state courts must follow an Anders-like analysis to ensure that your Fourteenth
Amendment rights are upheld.243
2. Filing Supplemental Briefs
Though you do not have an absolute right to file briefs to supplement the arguments made by your
appeals attorney in his or her brief, many appellate courts allow you to do so.244 You should first apply to the
court to which you are appealing for permission to file. Permission will usually be granted if you request
permission within thirty days of the date your appeals attorney has filed his or her brief AND you
specifically identify the issues you intend to raise in the pro se brief. You should consult the specific
Department’s rules and regulations for what your request should include.245 It is important to follow the
timeliness and specificity requirements, because if you do not, the court will likely deny permission to file.
3. Applying for Writ of Error Coram Nobis
If you want to challenge an appellate court’s affirmation of your conviction on the grounds that you
received ineffective assistance of appellate counsel, you may do so by filing a writ of error coram nobis.246 A
writ of error coram nobis is a way to challenge a conviction as infirm (faulty) and to petition the court to
correct errors of a fundamental nature. For example, you can use a writ of error coram nobis if your
appellate lawyer failed to prosecute an appeal or raise all issues effectively.247
You should direct the petition to the appellate division “where the allegedly deficient representation
occurred.”248 Note, if you wish to challenge your conviction’s affirmance because of ineffective assistance of
appellate counsel in New York state, the only way to do so is a writ of error coram nobis; you may not
challenge it with a motion to vacate judgment under New York Criminal Procedure Law Section 440.10.249 If
239. See JLM Chapter 13, “Federal Habeas Corpus,” for more information on federal habeas and exhaustion.
240. Jorge v. United States, 818 F. Supp. 55, 56 (S.D.N.Y. 1993) (stating that where “a defendant has failed to
raise a claim on direct appeal, the claim is barred … unless the petitioner can demonstrate ‘cause’ for the default of
normal appellate procedure and actual ‘prejudice’ from the alleged violation on which the claim is based.”) (citing
Campino v. United States, 968 F.2d 187 (2d Cir. 1992)); see also Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (“It is
well settled that all state remedies must be exhausted before a federal court may consider a state prisoner’s petition for a
writ of habeas corpus.”); Basnight v. Keane, No. 99-CV-4826 (FB), 2000 U.S. Dist. LEXIS 10940, at *9 (E.D.N.Y. Aug. 1,
2000) (unpublished) (stating that “a petitioner must exhaust all state remedies and show that his federal constitutional
rights have been violated” to get federal habeas relief).
241. See, e.g., People v. Pertillar, 15 A.D.3d 679, 679–80, 789 N.Y.S.2d 921, 922 (2d Dept. 2005) (relieving attorney
who had filed Anders brief and assigning new counsel to represent defendant on appeal).
242. Smith v. Robbins, 528 U.S. 259, 265, 120 S. Ct 746, 753, 145 L. Ed. 2d 756, 767 (2000) (holding that states
may adopt procedures that differ from those described in Anders, so long as the underlying goal of adequate appellate
review required by the 14th Amendment is met).
243. See People v. Stokes, 95 N.Y.2d 633, 637, 744 N.E.2d 1153, 1155, 722 N.Y.S.2d 217, 219 (2001) (noting that
the “procedures adopted by New York courts closely parallel and are clearly modeled upon the procedure set forth by the
Supreme Court in Anders”).
244. See People v. White, 73 N.Y.2d 468, 479, 539 N.E.2d 577, 583, 541 N.Y.S.2d 749, 755 (1989) (finding while it
would be “better practice” for appellate courts to accept timely supplemental pro se briefs, courts can decline to accept).
245. For more information about the rules of the court to which you are applying, see JLM Chapter 5.
246. People v. Bachert, 69 N.Y.2d 593, 594, 509 N.E.2d 318, 319, 516 N.Y.S.2d 623, 624 (1987) (holding claims of
ineffective assistance of counsel in the intermediate appellate court will be determined through the writ of coram nobis).
247. People v. Bachert, 69 N.Y.2d 593, 598, 509 N.E.2d 318, 321, 516 N.Y.S.2d 623, 626 (1987) (citing People v. De
Renezzio, 14 N.Y.2d 732, 199 N.E.2d 172, 250 N.Y.S.2d 76 (1964)); People v. Adams, 12 N.Y.2d 417, 420, 190 N.E.2d 529,
531, 240 N.Y.S.2d 155, 157–58 (1963)).
248. People v. Bachert, 69 N.Y.2d 593, 595–96, 509 N.E.2d 318, 322, 516 N.Y.S.2d 623, 627 (1987); People v. Velez,
286 A.D.2d 406, 728 N.Y.S.2d 720 (2d Dept. 2001) (both noting that an application for a writ of error coram nobis should
be addressed to the appellate court in which the claimed ineffective assistance of counsel occurred).
249. People v. Bachert, 69 N.Y.2d 593, 595–96, 509 N.E.2d 318, 319, 516 N.Y.S.2d 623, 624 (1987).
your petition is granted, the appellate court may allow you (most likely with a new lawyer) to re-argue your
original appeal.250 If your petition is denied, you may appeal that decision to the Court of Appeals.251
A form for writs of error coram nobis can be found in Appendix B-7. In the coram nobis brief, you must
explain the particular actions your appellate counsel took and the actions you believe your attorney should
have taken. Your statements—both of the facts and arguments—should be as clear and specific as possible.
Also, be sure to consult the rules of the particular jurisdiction for additional deadlines and requirements
that you must follow. Note that you also have the right to effective assistance from your trial lawyer. For
information about how to challenge your trial lawyer’s assistance, see JLM Chapter 12.
I. Conclusion
If you believe a harmful legal error occurred at your hearing or trial, you may be able to appeal your
conviction. The first step in this process is determining whether your right to appeal is limited by time, plea
agreements, failure to protest or various other reasons. If you right of appeal is not limited and you are
eligible to appeal, you should decide the specific legal basis for your appeal. Next, you will need to file the
correct appeals papers at the proper times to the right court. The appeals process can feel overwhelming and
complicated, but, by following the steps in this Chapter, you should be able to appeal your conviction. The
appendices provide detailed instructions for completing the paperwork and effectively crafting an appeal.
250. People v. Walton, 40 A.D.3d 1258, 1259, 836 N.Y.S.2d 442, 443 (3d Dept. 2007) (granting coram nobis relief in
part and reinstating defendant’s appeal as to certain issues).
251. People v. Stultz, 2 N.Y.3d 277, 281, 810 N.E.2d 883, 885, 778 N.Y.S.2d 431, 433 (2004) (explaining that an
intermediate appellate court’s decision regarding a petition for a writ of coram nobis may be appealed to the Court of
Appeals and defining the court of appeal’s standard of review for such an appeal).
APPENDIX A
THE COURT TO WHICH YOU SHOULD APPEAL

Please also refer to the inside back cover of the JLM, which shows the structure of the New
York court system.
Court Where You Court Where Appeal

Crime Were Convicted252 May be Heard
Misdemeanor Local criminal court outside County court of the county where
New York City you were convicted; or the
Appellate Term of the New York
State Supreme Court in the Second,
Third, or Fourth Departments, if
the appellate division of that
department so directs.253
Misdemeanor New York City Criminal Court Appellate Term for the New York
in New York or Bronx State Supreme Court of the First
Counties Department.
Misdemeanor New York City Criminal Court Appellate Term for the New York
in Kings, Queens, or State Supreme Court of the Second
Richmond Counties Judicial Department.
Misdemeanor County court Appellate division of the

department where you were
convicted; or the Appellate Term
of the New York State Supreme
Court in the Second, Third, or
Fourth Departments, if the
appellate division of the
department so directs.
Felony County court Appellate division of the

department where you were
convicted.
Any Offense New York State Appellate division of the
Supreme Court department where you were
convicted.
252. Court where you file your notice of appeal.

253. The appellate division of the second judicial department does direct certain classes of cases to the appellate
term. Rules of the second department that discuss this matter may be found in McKinney’s New York Rules of Court.
N.Y. Comp. Codes R. & Regs. tit. 22, § 730.1 (2006).
APPENDIX B
SAMPLE PAPERS FOR A CRIMINAL APPEAL254

This Appendix contains the following materials:
B-1. Notice of Appeal as of Right to an Intermediate Appellate Court255 from a Superior

Court256 Judgment, Sentence, Judgment and Sentence, or Order.
B-2. Notice of Application for a Certificate Granting Leave to Appeal to an Intermediate
Appellate Court or to the Court of Appeals
B-3. Papers Needed to Obtain the Services of a Lawyer Without Cost on Appeal, or Other
Poor Person Relief
a. Notice of Motion to Proceed as a Poor Person
b. Affidavit in Support of Motion to Proceed as a Poor Person on Appeal
B-4. Papers Needed to Get Release on Bail Pending Appeal
a. Notice of Motion for Recognizance or Bail Pending Appeal
b. Affidavit in Support of Motion for Recognizance or Bail Pending Appeal
B-5. Notice of Motion for Extension of Time in Which to Take an Appeal Pursuant to New
York Criminal Procedure Law Section 460.30
B-6. Affidavit in Support of Motion for Extension of Time to Take Appeal
B-7 Petition for Writ of Error Coram Nobis
DO NOT TEAR THESE FORMS OUT OF THE JLM. If you simply tear these papers out of the JLM
and send them to the court, the court will ignore the papers. Write your own versions of these forms, and fill
them out according to the facts of your particular case. The endnotes following the sample documents tell
you how to fill in the necessary information. Consult Parts A through F of this Chapter and Chapter 6 of the
JLM, “An Introduction to Legal Documents,” for assistance in preparing your case. The name and address of
the court to which you should send these papers are contained in Appendices I and II of the JLM.
254. These forms are based in part upon McKinney’s Forms, a useful resource providing sample forms for almost
any action you may wish to bring. The samples we have provided are broad and general, while the McKinney’s Forms
are specific and correspond to the statute underlying your action. See generally 18 West’s McKinney’s Forms A–C (2006).
255. New York law uses the term “intermediate appellate court” to refer to the appellate courts in each county that
decide the defendant’s first appeal. These courts are the appellate division and the appellate term.
256. New York law uses the general term “superior court” to include both the supreme court and certain county
courts in different counties that have jurisdiction over both felonies and misdemeanors.
B-1. NOTICE OF APPEAL AS OF RIGHT TO AN INTERMEDIATE APPELLATE
COURT FROM A SUPERIOR COURT JUDGMENT, SENTENCE, JUDGMENT
AND SENTENCE, OR ORDER1
Supreme Court of the State of New York2

County of ___________________________3
----------------------------------------------------------x
The People of the State of New York, :
Plaintiffs, : Notice of Appeal
:
- against - : Indictment No. __________4
:
____________________________,5 :
Defendant. :
----------------------------------------------------------x
PLEASE TAKE NOTICE, that defendant, __________________, hereby appeals pursuant to section
450.10, subdivision (1), of the Criminal Procedure Law of the State of New York6 to the Appellate Division of
the Supreme Court, _______________7 Judicial Department, from the _________, _____8 judgment made and
entered by Hon. __________,9 convicting [him/her] of the class ____10 felony of ___________11 and that this
appeal is taken from said judgment and from each and every part thereof and every intermediate order
made therein.
Dated:____________,12 New York

____________13
___________________________
Attorney for Defendant14
____________________________________ Street
_________________________________ New York
Telephone Number: _______________________
To: Hon. ________________________15

District Attorney|
________________________County
_________________________Street
____________________ , New York
Clerk
Supreme Court of the State of New York
____________________________ County
_____________________________ Street
_________________________, New York
B-2. NOTICE OF APPLICATION FOR A CERTIFICATE GRANTING
LEAVE TO APPEAL TO AN INTERMEDIATE APPELLATE COURT OR
TO THE COURT OF APPEALS16
Court of Appeals of the State of New York

----------------------------------------------------------x
Plaintiffs-Respondents, : : Notice of Application
:
- against - : Indictment No. _________17
:
________________________________________ ,18:
Defendant-Appellant. _____________________ :
----------------------------------------------------------x
PLEASE TAKE NOTICE, that upon the annexed affidavit, the above named defendant-appellant makes
application to _______19 to determine the application hereby made for a certificate,20 pursuant to section
460.20 of the Criminal Procedure Law of the State of New York, certifying that this case involves a question
of law that ought to be reviewed by the Court of Appeals and granting leave to appeal to the Court of
Appeals from __[date]_____, _[year]_ order of the Appellate Division ______21 Judicial Department which
affirmed the ___[date]__, _[year]_, Supreme Court, ______________ County, judgment convicting defendant of
the class ______ felony of ______________ and sentencing defendant to an indeterminate term of
imprisonment at ________________________.22
Dated:______________________
___________________23
__________________________________________
Attorney for Defendant-Appellant
[Address and phone number]24
To: Clerk
Court of Appeals of the State of New York
Court of Appeals Hall
20 Eagle Street
Albany, New York25
B-3. PAPERS NEEDED TO OBTAIN THE SERVICES OF A LAWYER
WITHOUT COST ON APPEAL, OR OTHER POOR PERSON RELIEF
These papers will allow you to obtain a free copy of the trial transcript, as well as a lawyer. These are
NOT the correct papers to file if you are filing a poor person’s action in FEDERAL court.
a. Notice of Motion to Proceed as a Poor Person
Supreme Court of the State of New York,

Appellate Division,26
___________________27 Judicial Department

-----------------------------------------------------------x
Plaintiffs-Respondents, : Notice of Motion to Proceed
: As a Poor Person Upon Appeal
- against - :
: Indictment No. _________28
_____________________________,29 :
Defendant-Appellant. :
-----------------------------------------------------------x
PLEASE TAKE NOTICE, that upon the affidavit of _______________, sworn to on the ________ day of
__________, _____, 30 a motion will be made at a term of this court, for an order permitting defendant-
appellant to prosecute this appeal from the judgment entered in this action on the _________ day of _______,
_____31 as a poor person, directing that [he/she] be furnished a copy of the stenographic transcript of the trial
of this action without fee, and granting permission to appeal on the original record, upon the ground that
said defendant-appellant has insufficient income and property to enable [him/her] to pay the costs, fees, and
expenses to prosecute said appeal, and for such other and further relief as this Court may deem just and
proper.
Dated:______ ________________
_________________32 _________
__________________33
Defendant-Appellant
To: ___________________________
District Attorney
Address34
- or -
Clerk
Appellate Division, ____ Judicial Department
Address35
b. Affidavit in Support of Motion to Proceed as a Poor Person on Appeal

Appellate Division,
____________ Judicial Department36
-----------------------------------------------------------x
___________________________37 :
Defendant-Appellant, : Affidavit in Support of
: Motion to Proceed as a
- against - : Poor Person Upon Appeal
:
The People of the State of New York : Indictment No. _______38
Plaintiffs-Respondent. :
-----------------------------------------------------------x
State of New York

County of _____________39
_______________________________,40 being duly sworn, deposes and says:
1. I am the petitioner in the above-captioned case, and I make this affidavit in support of the attached
motion to proceed in forma pauperis.
2. I am presently in the custody of the Superintendent of _________ at ______________ pursuant to a

judgment of the Supreme Court of the State of New York, ___________ County, rendered on ________, _____,
convicting me of _________, in the _______ degree, and sentencing me to ______ years imprisonment.41
3. I am unable because of my indigence to pay the costs, fees, and expenses necessary to prosecute this
appeal. I am currently incarcerated and am earning $_____ per week in income and I own $_____ worth of
property. No other person has a beneficial interest in the outcome of this appeal.
4. During the trial I was represented by ________________.42
5. I believe in good faith that I am entitled to the relief that I am seeking in this case.
WHEREFORE, I respectfully ask for an order permitting me to prosecute this appeal as a poor person
and that I be furnished with the stenographic transcript of this action without fee and that I be assigned an
attorney to represent me on appeal and for such other and further relief as may be proper and equitable.
_________________________________________43
Defendant-Appellant
Sworn to before me
this _______ day of __________, _____
____________________________________
Notary Public44
B-4. PAPERS NEEDED TO GET RELEASE ON BAIL PENDING APPEAL45
a. Notice of Motion for Recognizance or Bail Pending Appeal
____________ Judicial Department46
----------------------------------------------------------x
The People of the State of New York :
Plaintiffs-Respondents, : Motion for
: Recognizance or Bail
- against - :
: Indictment No. ________47
________________________48 :
-----------------------------------------------------------x
PLEASE TAKE NOTICE, that upon the annexed affidavit of ___________ sworn to on the _________ day
of _______, ____49 and upon all proceedings in this case, a motion pursuant to section 510.20 of the Criminal
Procedure Law of the State of New York is made to this Court for an order revoking the order committing
______________50 to the custody of the [sheriff or Commissioner of the Department of Correctional Services]51
and releasing me in my own recognizance or on bail, on the grounds set forth in the affidavit, and for such
other and further relief as to the court may seem just and proper.
Dated:___________________
_____________________________ 52
_____________________________ 53
Defendant-Appellant
To: ________________________
District Attorney
Address54
- or -
Clerk
Appellate Division, ____ Judicial Department
Address55
b. Affidavit in Support of Motion for Recognizance or Bail Pending Appeal

________ Judicial Department56
-----------------------------------------------------------x
Plaintiffs-Respondents, : Affidavit in Support of
: Motion for Recognizance
- against - : or Bail Pending Appeal
:
___________________________57 : Indictment No. _________58
-----------------------------------------------------------x
State of New York

County of ___________59
_______________________60 being duly sworn, deposes and says:

1. I am the defendant-appellant above named and I make this affidavit in support of the annexed notice
of motion.
2. On the _______ day of ______, _____, I was convicted of _________ in the _________ degree (Judge
__________) and I am presently in the custody of the Superintendent of ____________ at ______________
pursuant to the judgment and sentence in the case.61
3. I am now appealing my conviction of ____________, and I filed a Notice of Appeal on ______________,

_____.62
4. I believe that the facts of my case warrant the issuance of an order securing my release on bail in my
own recognizance:
____________________________________________________________________________________________________
________________________________________.63
5. Deponent believes that the appeal herein has great merit and that there is a reasonable possibility of
ultimate reversal of the judgment of conviction appealed from. The reasons why said judgment of conviction
should be reversed are:
____________________________________________________________________________________________________
________________________________________.64
6. No previous application has been made for the relief sought herein.
WHEREFORE, I respectfully pray that an order be entered revoking the order committing me to the
custody of ___________________65 and releasing me in my own recognizance or on bail, together with such
other and further relief as this court may deem proper and just.
_________________________________________66
Sworn to before me
this _________ day of __________, _____
____________________________________
Notary Public67
B-5. NOTICE OF MOTION FOR EXTENSION OF TIME IN WHICH TO TAKE AN
APPEAL PURSUANT TO NEW YORK CRIMINAL PROCEDURE LAW § 460.3068
Appellate Division ____________ Department69
-----------------------------------------------------------x
Plaintiffs-Respondents, : Notice of Motion For
: Extension of Time to
: Appeal Pursuant to
- against - : CPL ' 460.30
:
__________________________70 : Indictment No. _________71
-----------------------------------------------------------x
PLEASE TAKE NOTICE, that upon the annexed affidavit of __________72 sworn to on the _____ day of
_______, _____, 73 and upon all the proceedings in this case, a motion pursuant to section 460.30 of the
Criminal Procedure Law of the State of New York is made to this Court for an order reinstating the time for
taking an appeal from the [judgment/sentence/order] imposed by the Supreme Court of the County of
__________74 rendered on the _______ day of ______, _____75 upon conviction of the above named defendant of
the crime of _________, in the _______ degree76 upon the ground that said defendant’s failure to file a notice
of appeal in timely fashion resulted from the conduct of [defendant’s counsel]77 in failing to file a notice of
appeal as defendant had requested, and for such other and further relief as the Court may deem just and
proper.
Dated:__________________
__________________________ 78
_________________________________________79
Defendant-Appellant
To: Hon. ____________

District Attorney
Address80
Clerk
___________ Appellate Division
___________ Judicial Department
Address81
B-6. AFFIDAVIT IN SUPPORT OF MOTION FOR EXTENSION OF
TIME TO TAKE APPEAL
Appellate Division ___________ Department82
------------------------------------------------------------x
Plaintiffs-Respondents, : Affidavit in Support of
: Motion for Extension of
- against - : Time to Appeal Pursuant
: to CPL § 460.30
:
_________________________83 : Indictment No. _________84
------------------------------------------------------------x
__________________________,85 being duly sworn, deposes and says:
That I am the defendant herein and submit this affidavit in support of my application for leave to serve a
notice of appeal within thirty days after the granting of an order permitting me to file pursuant to section
460.30 of the Criminal Procedure Law of the State of New York.
On ___________, _____, I was convicted of ___________ in the _______ degree. (Trial Judge ____________.)
I received a sentence of _____________ years on _____________, _____. (Judge ____________.)86
I failed to file my Notice of Appeal within thirty days because:
____________________________________________________________________________________________________
__________________________________________________________________.87
WHEREFORE, I respectfully urge this Court to extend the time within which a notice of appeal may be
served and filed pursuant to section 460.30 of the Criminal Procedure Law of the State of New York and
issue an order granting this application permitting me to serve and file a notice of appeal within thirty days
from the date of said order and for such other relief as this Court may deem just and proper.
__________________________________________
Defendant-Appellant
Sworn to before me
this ________ day of ___________, _____.
____________________________________88
Notary Public
B-7. PETITION FOR WRIT OF ERROR CORAM NOBIS
Appellate Division ____________ Department89
----------------------------------------------------------x
Plaintiffs-Respondents, : Petition for Writ of Error
Coram Nobis
:
- against - : Indictment No. _________90
:
________________________________________ ,91:
Defendant-Petitioner:
----------------------------------------------------------x
PLEASE TAKE NOTICE that above-named defendant-petitioner hereby moves the court for an issuance of a writ of
error coram nobis on the ground that defendant-petitioner was convicted of _________92 in _________93 on ______94, and
appealed to this court which affirmed _______95 conviction and that the representation of ______96, defendant-petitioner’s
attorney on appeal, was ineffective according to the standards of representation set out in the Sixth Amendment of the United
States Constitution.
The representation afforded to defendant-petitioner was defective in the following ways: ____________________.97
This motion is made and based on this petition and the affidavit of defendant-petitioner, and on the appellate briefs and
the Appellate Division decision,98 copies of which are attached and served, and on the pleadings, papers, records, and files of
this action.
Defendant-petitioner requests assignment of new appellate counsel for assistance in presentation of the writ moved for
herein.99
Dated:____________________ 100
__________________________________________
Defendant-Appellant
[Address and phone number]101
To:
Clerk
Appellate Division, ___ Department102
Fill in the forms shown in Appendix B as follows:

1 .See generally N.Y. Crim. Proc. Law § 450.10, McKinney’s Forms (2005).
2. Your Notice of Appeal is addressed to the court you were tried in, not the appeals court. This sample presumes
you were tried in a supreme court. If you were tried in a county court, be sure to substitute this court for the supreme
court at the top of the form.
3. Fill in the name of the county in which the trial court is located.
4. Your indictment number if you know it. Also, fill in the year in which you were indicted or arraigned.
5. Write your name in all the blanks referring to defendant.
6. You should cite “section 450.10, subdivision (1), of the Criminal Procedure Law of the State of New York” if you
are either appealing only the judgment or if you are appealing both the judgment and sentence. If you wish to appeal only
the sentence, you should replace the above citation with “section 450.10, subdivision (2), of the Criminal Procedure Law
of the State of New York.”
7. Insert the number of the department (First, Second, Third, or Fourth) in which you were tried. This is also the
department in which your appeal will take place.
8. Fill in the date of the judgment against you.
9. Fill in the name of the trial judge.
10. Fill in the letter of the class of the felony you were convicted of (for example, class B felony).
11. Fill in the name of the felony (for example, robbery in the first degree).
12. Fill in the town from which you are sending the Notice.
13. Fill in the date on which you are signing the Notice.
14. If you are representing yourself, or if you have an attorney but wrote this Notice of Appeal yourself, sign your
name, print or type your name below your signature, and fill in your address. If your attorney wrote the Notice, then he
or she will sign his or her name and provide an address and phone number.
15. Fill in the name and address of the District Attorney of the county in which you were tried. Include this
information on both the copy you are sending to the District Attorney and on the two copies you are sending to the trial
court, so that the clerk of the trial court will know that you have notified the District Attorney See Appendix III of the
JLM for a list of addresses of New York district attorneys.
16. See generally N.Y. Crim. Proc. Law § 460.20, Form 4, McKinney’s Forms (2005). This form can be used in any
one of three situations: (i) if you need to obtain permission to appeal to the appellate division or appellate term; (ii) if
your appeal to the appellate division or appellate term was unsuccessful, and you wish to apply to the court of appeals
for permission to appeal it; or (iii) if your appeal to the appellate division was unsuccessful and you wish to apply to the
appellate division for permission to appeal to the court of appeals. The first situation is explained in Part F of this
Chapter; the last two situations are explained in Part G. If you are applying to the appellate division for permission to
appeal to the court of appeals, you should replace the reference to the court of appeals at the top and bottom of the form
with the full name of the appellate division from which you are seeking permission to appeal (for example, the Supreme
Court of New York, Appellate Division, Third Department).
17. Your indictment number and the year in which you were indicted.
18. Your name.
19. If you are sending this Notice to a judge in the appellate division, fill in his or her name. If you are sending it to
the court of appeals, write “the Chief Judge of the Court of Appeals to designate an Associate Judge of the Court.” If your
first appeal was denied by a court other than the appellate division, such as a county court or an appellate term, then
you may send this application only to the court of appeals. See Part G of this Chapter.
20. If you want to apply for permission to appeal a denial of your Article 440 motion by the trial court, send your application to the
proper appellate court and replace the material in the form after “for a certificate ...” with:
pursuant to section 460.15 of the Criminal Procedure Law of the State of New York, certifying that this case
involves a question of law or fact which ought to be reviewed by the Appellate Division [or Appellate Term or
County Court] from the ___________, ____order by the Supreme Court [or County court or Criminal Court] of
___________ County which denied defendant’s motion to vacate judgment pursuant to section 440.10 [or motion
to set aside sentence pursuant to section 440.20] and affirmed the judgment convicting defendant of the class
_______ felony of __________ and sentencing [him/her] to an indeterminate term of imprisonment at
_____________.
To determine to which appellate court you should apply, see Appendix A of this Chapter. Remember, you must
submit an application along with this notice of application. In the application, you must explain why your Article 440
motion should be granted. Your application has a better chance of success if it is notarized as an affidavit. Most jails and
prisons have several staff members who will notarize your documents.
21. Fill in the date of the appellate court’s denial of your appeal, and the number of the judicial department.
22. Fill in the date of your conviction in the trial court, the county, the offense, as well as the prison to which you
were sent.
23. Your address and the date.
24. If you are representing yourself, fill in your own name and address. If your lawyer is writing this notice, he or
she will sign his or her own name and address.

25. If you are sending this to the court of appeals, address this Notice to the Clerk of the Court, and the clerk will
give notice to the District Attorney in the county in which your first appeal was denied. If you are sending this to the
appellate division, send two copies to the clerk of the appellate division and fill in the address. Also send a copy to the
District Attorney of the county in which you were first convicted and fill in his or her name and address on the copy you
send to the District Attorney. See Appendix III of the JLM for a list of addresses for New York district attorneys.
26. The different judicial departments have different rules as to whether to send this Notice to the clerk of the trial
court or to the clerk of the appellate court. Check with a lawyer or an advisor in prison for information on these rules.
27. Fill in the county and the number of the judicial department of the appellate division. Appendix II of the JLM
provides this information.

28. Your indictment or docket number and the year in which the proceedings against you began.
29. Your name.
30. Your name again, and the date of the affidavit.
31. The date of the conviction.
32. The date and your present location.
33. Your name.
information on both the copy that you are sending to the District Attorney and on the two copies that you are sending to
the trial court, so that the clerk of the trial court will know that you have notified the District Attorney. See Appendix III
of the JLM for a list of addresses for New York district attorneys.
35. If this is the copy to the Appellate Division, fill in the address of the court.
36. Fill in the number of the judicial department. See Appendix II of the JLM.
37. Your name.
38. Your indictment or docket number and the year it was handed down.
39. The county in which you are presently living.
40. Your name.
41. The name of the prison you are currently in, where it is located, the county you were convicted in, the date you
were convicted, the crime and degree you were convicted of, and the number of years to which you were sentenced.
42. Your lawyer’s name, address, and telephone number. If your lawyer was assigned, indicate this fact here.
43. Your signature. If your attorney is making the application on these papers, then an affirmation (a statement
that the papers are true) by him or her may be substituted for the signature and seal of the notary. If you are signing the
affidavit, you should only do so in the presence of a notary public.
44. If your attorney does not make an affirmation, the notary public’s date and seal are placed here.
45. See generally N.Y. Crim. Proc. Law § 510.20, Form 2, McKinney’s Forms (2005).
46. Fill in the county and the number of the judicial department of the trial court. See Appendix II of the JLM.
47. Your indictment or docket number and the year proceedings against you began.
48. Your name.
49. Your name and the date of the affidavit (Form B-4(b)).
50. Your name.
51. If you are in a county jail, you are in the custody of a sheriff. If you are in a state prison, you are in the custody
of the Department of Correctional Services. Therefore, write either “sheriff” or “Commissioner of the Department of
Correctional Services,” depending on your particular situation.
52. Your address and the date.
53. Your name.
information on both the copy that you are sending to the District Attorney and on the two copies that you are sending to
the trial court, so that the clerk of the trial court will know that you have notified the District Attorney. See Appendix III
of the JLM for a list of addresses for New York district attorneys.
55. If this is the copy to the appellate division, fill in the address of the court.
56. Number of the judicial department of the trial court.
57. Your name.
58. Indictment/docket number; year in which proceedings began.
59. City and county where affidavit was taken.
60. Your name.
61. The date of your conviction, the crime and degree, the trial judge, the name of your prison and its location.
62. State exactly what you are appealing. If you are appealing your sentence, add “and sentence.” If you are
appealing an order, add “and order.” Also fill in the date on which you filed the Notice of Appeal.
63. Set forth the facts and reasons why you should be released on bail pending your appeal (for instance, the lack of
seriousness of your crime, that you are not a threat to the community if you are out on bail, your previous good record in
making court appearances, and the likelihood of your success in overturning your conviction or sentence on appeal).
64. Explain why the judgment should be reversed, supporting your argument with facts from the record.
65. Fill in the name of the prison in which you are incarcerated.
66. Your signature and typed or printed name below. Do not sign until the notary is present.
67. Notary’s signature, the date and seal. If your attorney is making an application on papers submitted by him or
her personally, then an affirmation as to the truth of the papers may be substituted for the notary’s signature and seal.
68. See generally N.Y. Crim. Proc. Law § 460.30, Form 1, McKinney’s Forms (2005). If you did not file a Notice of
Appeal within the thirty-day deadline, and you believe that you missed the deadline for a valid reason, such as the
inaction of your lawyer or a prison official, then you should file a motion for an extension pursuant to New York Criminal
Procedure Law Section 460.30. If granted, the motion will extend the time in which you must file a Notice of Appeal.
69. The county and the number of the department of the appellate division.
70. Your name.
71. Indictment or docket number and the year in which the indictment was handed down against you.
72. Your name.
73. The date of the affidavit.
74. The county in which the trial court was located.
75. The date of the judgment and/or sentence or order that you are appealing.
76. The crime and the degree of the felony or misdemeanor.
77. Explain here why you missed the deadline for filing a Notice of Appeal. Do not claim that you missed the filing
deadline due to your attorney’s misconduct, unless this is actually the case.
78. Fill in your location and the date.
79. Your name.
80. District Attorney’s name and address in the county in which you were tried. Include this on all copies. See
Appendix III of the JLM for a list of addresses for New York district attorneys.
81. If this is the copy you are sending to the appellate court, fill in the address.
82. Number of the judicial department of the appellate division.
83. Your name.
84. Indictment number and year of the indictment.
85. Your name.
86. Fill in the date of conviction, the crime, the degree of the crime, the name of the trial judge, the length of the
sentence, the date of the sentence, and the name of the sentencing judge.
87. In the remaining part of the affidavit, state the reasons why you failed to file the notice of appeal within the 30-
day period—for example, because your attorney forgot that you wanted to appeal or did not know of your wish to appeal.
88. This is the place for the notary public’s signature and the date. Be sure that you do not sign the papers until the
notary is present. If your attorney is making the application with these papers in person, then an affirmation as to the
truth of the papers may be substituted for the signature and seal of the notary.
89. Fill in the information for the intermediate appellate court to which you are addressing this petition. You should
address the petition to the court in which the ineffective assistance of appellate counsel that you are alleging took place.
90. Your indictment number and the year in which you were indicted.
91. Your name.
92. Charge for which you were convicted.
93. Trial court in which you were convicted.
94. Date on which you were convicted.
95. His or her.
96. Name of your attorney on appeal. This is the attorney that you are alleging provided ineffective assistance.
97. In this section you need to list the particular actions your appellate counsel took and the actions you believe your
attorney should have taken. Your statements—both of the facts and arguments—should be as clear and specific as
possible. You must state the specific appellate issues that you believe your lawyer failed to raise. Also, be sure to consult
the rules of the particular jurisdiction for additional deadlines and requirements that you must follow.
98. Include copies of the appellate briefs and the appellate division decision when you mail your petition.
99. You may request that a new lawyer be assigned to you if you do not currently have a lawyer to assist you.
100. Date.
101. If you are representing yourself, fill in your own name and address. If your lawyer is writing this petition, he or
she will sign his or her own name and address.

102. Fill in the information for the intermediate appellate court to which you are addressing this petition. You should
address the petition to the court in which you believe you had ineffective assistance of counsel. Make sure to include the
court’s street address.
Manual
Chapter 10:
Applying for Re-Sentencing
for Drug Offenses

8th Edition 2009
LEGAL DISCLAIMER
CHAPTER 10
APPLYING FOR RE-SENTENCING FOR DRUG OFFENSES*

A. Introduction
In 2004, New York reformed the state’s old Rockefeller drug laws by adopting the Drug Law Reform Act
(“DLRA”).1 The DLRA took effect on January 13, 2005,2 and changed sentencing ranges for drug offenses,
generally making sentences shorter. The new shorter sentence ranges automatically apply to anyone
sentenced for a drug offense committed after January 13, 2005.3 However, the DLRA also allows people
currently serving sentences for A-I felony drug offenses under the old law to apply for re-sentencing under
the new law.4 A second law, which took effect on October 29, 2005, allows some people serving sentences for
A-II felony drug convictions to apply for re-sentencing under the new law.5 This means that if you are
serving a sentence for an A-I or A-II felony drug offense, and you were sentenced under the old laws, you
may be able to have your sentence reduced under the new laws. This Chapter describes who is allowed to
apply for re-sentencing, which new sentences you could receive if you apply, and how to apply for re-
sentencing. Part B of this Chapter describes who is eligible to apply for re-sentencing. Part C describes what
happens if you decide to apply. Part D explains how to apply. The appendices at the end of the Chapter
provide forms you will need to apply for re-sentencing.
B. Eligibility: Who Is Allowed to Apply?
If you are serving time for a felony drug offense, you must first determine whether you are eligible for re-
sentencing. Re-sentencing is only available to people who were convicted of A-I and A-II felony drug offenses
and are currently serving time for those offenses in the custody of the New York State Department of
Correctional Services (DOCS). The A-I felony drug offenses are criminal possession of a controlled substance
in the first degree6 and criminal sale of a controlled substance in the first degree.7 The A-II felony drug
offenses are criminal possession of a controlled substance in the second degree8 and criminal sale of a
controlled substance in the second degree.9 These offenses are all described in Section 220 of the New York
Penal Law.10 There are different re-sentencing eligibility requirements for people who are serving sentences
for A-I and A-II felony drug offenses.
1. If You Are Serving a Sentence for an A-I Felony Drug Conviction
Generally, if you are serving a sentence for an A-I felony drug offense and you were sentenced under the
old law, you may apply for re-sentencing without any further requirements.11 But the law has been specified
in the case of People v. Bagby to mean that you must be “in the custody of the department of correctional
services” to qualify for re-sentencing.12 A defendant who is incarcerated for a parole violation after being
* This Chapter was revised by Nathan Piper, based on a previous version written by Sydney Bird. Special thanks to
William Gibney of the New York Legal Aid Society for his valuable comments.
1. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802).
2. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802).
3. People v. Nelson, 21 A.D.3d 861, 862, 804 N.Y.S.2d 1, 1 (1st Dept. 2005) (holding new sentencing ranges under
the DLRA do not apply to persons sentenced for offenses committed before January 13, 2005, even where sentencing
takes place after January 13, 2005). New York’s highest court, the New York Court of Appeals, upheld this decision in
three prisoners’ consolidated appeals in People v. Utsey, 7 N.Y.3d 398, 855 N.E.2d 791, 822 N.Y.S.2d 475 (2006).
4. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802).
5. 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
10. N.Y. Penal Law § 220 (McKinney 2005).
11. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802).
12. People v. Bagby, 11 Misc. 3d 882, 886, 816 N.Y.S.2d 302, 304 (Sup. Ct. Westchester County 2006) (holding that
defendant whose A-I felony sentence was commuted to 8 1/3 years to life was not eligible for re-sentencing for an A-I
offense, and that a defendant who has been placed on parole for an A-I or A-II offense, violates that parole, and is then
incarcerated is not eligible for re-sentencing).
released from prison for their original A-I sentence is not considered to be “in the custody of the department
of correctional services” and cannot apply for re-sentencing under the Drug Reform Laws.13
You also must have been subjected to an indeterminate length of imprisonment of 15 or more years to be
eligible for A-I re-sentencing.14 If you were sentenced to an A-1 felony of 15 or more years, but then had your
sentence commuted to less than 15 years, you are not eligible for re-sentencing under an A-1 felony drug
offense.15 However, you should look to the Section 2 below to see whether you are eligible for re-sentencing
under an A-II Felony Drug Conviction.16
2. If You Are Serving a Sentence for an A-II Felony Drug Conviction
If you are serving a sentence for an A-II felony drug offense and you were sentenced under the old law,
you may apply for re-sentencing if you also meet two requirements.17 The first requirement has to do with
how long it will be, under your current sentence, before you are eligible for parole. This requirement is called
The Time to Parole Eligibility Requirement. The second requirement has to do with whether you are
currently eligible for a merit time reduction. This is called the Merit Time Eligibility Requirement. Both
requirements are explained below. If you meet both, and you are serving a sentence for an A-II felony drug
offense under the old law, then you may apply for re-sentencing.
(a) The Time to Parole Eligibility Requirement
The first requirement is you must be a certain period of time away from parole eligibility under your
current sentence. Courts have determined this period is three years in New York, though the law does not
state how many years away from parole you must be to be eligible.18 The law only says you must be “more
than twelve months from being an eligible inmate as that term is defined in Subdivision 2 of Section 851 of
the correction law.”19 An “eligible” person, according to § 851(2), is a prisoner “who is eligible for release on
parole or who will become eligible for release on parole or conditional release within two years.”20 In practice,
courts have stated this means you must be three years away from parole eligibility. 21 But, since this
meaning of “eligible” has two parts—“eligible for release on parole” and “who will become eligible for release
on parole or conditional release within two years”—there are two possible meanings of the time to parole
eligibility requirement in re-sentencing law. But, the three-year requirement has been followed in New York.
(b) The Established Meaning of New York’s Time to Parole Eligibility Requirement
The most obvious way to state this requirement for re-sentencing is that you must be more than three
years away from becoming eligible for release on parole or conditional release.22 In People v. Bautista,23 the
13. People v. Bagby, 11 Misc. 3d 882, 886, 816 N.Y.S.2d 302, 304 (Sup. Ct. Westchester County 2006).
17. 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
18. See People v. Bautista, 26 A.D.3d 230, 230–31, 809 N.Y.S.2d 62, 63 (1st Dept. 2006) (holding that in order to
be eligible for re-sentencing under the 2005 law, a prisoner serving time for an A-II drug felony must be at least three
years away from his first possible parole date), appeal granted, 6 N.Y.3d 831, 847 N.E.2d 376, 814 N.Y.S.2d 79 (2006),
appeal dismissed, People v. Bautista, 7 N.Y.3d 838, 857 N.E.2d 49, 823 N.Y.S.2d 754 (2006).
19. 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
20. N.Y. Correct. Law § 851(2) (McKinney 2005).
21. See People v. Thomas, 35 A.D.3d 895, 826 N.Y.S.2d 456 (3d Dept. 2006) (holding that defendant convicted of an
A-II felony drug offense was not eligible for re-sentencing under the Drug Law Reform Act because the defendant was
eligible for parole within three years); People v. Parris, 35 A.D.3d 891, 828 N.Y.S.2d 429 (2d Dept. 2006) (holding that,
since defendant was less than three years away from eligibility for parole, he could not seek re-sentencing under Chapter
643); People v. Nolasco, 37 A.D.3d 622, 831 N.Y.S.2d 197 (2d Dept. 2007) (holding that because defendant was less than
three years from parole, he was an “eligible inmate” in the meaning of Chapter 643 and could not proceed with a motion
for re-sentencing); People v. Perez, 44 A.D.3d 418, 843 N.Y.S.2d 68 (1st Dept. 2007) (holding the supreme court did not
have to assign counsel or conduct a hearing for a defendant who was less than three years from parole eligibility when
he filed a motion for re-sentencing because he was ineligible for re-sentencing); People v. Corley, 45 A.D.3d 857, 847
N.Y.S.2d 148 (2d Dept. 2007) (holding that a defendant who had already been denied parole and whose motion for re-
sentencing would always be less than three years away from the next parole hearing was not eligible for re-sentencing).
22. This determination is reached by adding the “more than twelve months” requirement to the “release within
two years” requirement from the definition of “eligible” in § 851(2). N.Y. Correct. Law § 851(2) (McKinney 2005).
23. People v. Bautista, 26 A.D.3d 230, 809 N.Y.S.2d 62 (1st Dept. 2006).
First Department Appellate Division found this was the correct meaning of the law. The New York Court of
Appeals (the state’s highest court) agreed, denying appeal. The Appellate Divisions in the Second, Third, and
Fourth Departments later followed the three-year eligibility requirement.24
Additionally, before People v. Bautista was decided, New York DOCS issued a memo stating that to be
eligible for re-sentencing, a prisoner serving time for an A-II offense must be at least three years away from
his first possible parole date.25 For example, if you will become eligible for release on parole or conditional
release on December 1, 2008, you may apply for re-sentencing on or before November 30, 2005, but not on or
after December 1, 2005. If you file your application with the court more than three years before
your earliest possible release date under your current sentence, you definitely meet this
requirement.
(c) A Different Reading of the Time to Parole Eligibility Requirement
There is, however, a different way to read the re-sentencing law. Under this alternate reading of the law,
you would meet this requirement if you are more than one year away from your earliest possible parole date.
There are two separate definitions of an eligible person under Subdivision 2 of Section 851 of the New York
Corrections Law: (1) a prisoner “who is eligible for release on parole[;] or” (2) a prisoner “who will become
eligible for release on parole or conditional release within two years.”26 The most common way to read the re-
sentencing law, discussed above, is to use the second definition from Subdivision 2 of Section 851, so that
only a prisoner who is more than twelve months plus two years away from his earliest possible release date
is allowed to apply for re-sentencing.27 The alternate reading uses the first definition from Subdivision 2 of
Section 851, so that a prisoner who is more than twelve months from being eligible for parole meets the time
to parole eligibility requirement for re-sentencing.28 Therefore, under this alternate reading, if you are more
than one year away from your earliest possible parole date, you might be eligible to apply for re-sentencing.29
This alternate reading was explicitly rejected by the Appellate Division, First Department, in Bautista.30
Bautista held that the prisoner will only qualify for re-sentencing under the 2005 Drug Law Reform Act if he
is not eligible for parole within three years at the time of application.31 Other courts in New York have
followed this decision.32 In light of these cases, it appears that, at least in New York, the courts will follow
24. See People v. Thomas, 35 A.D.3d 895, 896, 826 N.Y.S.2d 456, 457 (3d Dept. 2006) (holding that the two
provisions of § 851(2) when read together require that in order to qualify for re-sentencing under the 2005 DLRA, a class
A-II felony drug offender must not be eligible for parole within three years); People v. Parris, 35 A.D.3d 891, 892, 828
N.Y.S.2d 429, 430 (2d Dept. 2006) (holding that Chapter 643 does not apply to inmates who are three or fewer years
from eligibility for parole); People v. Nolasco, 37 A.D.3d 622, 623, 831 N.Y.S.2d 197, 198 (2d Dept. 2007) (denying
defendant’s motion for re-sentencing because he was fewer than three years from parole eligibility); People v. Corley, 45
A.D.3d 857, 858, 847 N.Y.S.2d 148, 149,(2d Dept. 2007) (holding that because “defendant's next parole hearing will
always be less than three years away from any date he moves for resentencing in the future … chapter 643 does not and
will not afford him the right to move for resentencing”); People v. Smith, 45 A.D.3d 1478, 1479, 846 N.Y.S.2d 520, 521
(4th Dept. 2007) (holding that the defendant could not be resentenced because she was eligible for parole within seven
months); People v. Dunham, 46 A.D.3d 1416, 1417, 847 N.Y.S.2d 506, 506 (4th Dept. 2007) (denying application for re-
sentencing because defendant was eligible for parole within two years); People v. Mills, 48 A.D.3d 1108, 1108, 849
N.Y.S.2d 855, 855 (4th Dept. 2008) (finding applicant ineligible for re-sentencing because he was scheduled to appear
before the parole board within two years after his initial parole denial).
25. Memorandum from Anthony J. Annucci, Deputy Commissioner and Counsel for New York DOCS, to Criminal
Justice Practitioners (Sept. 20, 2005) (on file with the JLM).
27. See People v. Bautista, 26 A.D.3d 230, 230–31, 809 N.Y.S.2d 62, 63 (1st Dept. 2006) (holding that to be eligible
for re-sentencing under the 2005 law, a prisoner serving time for an A-II drug felony must be at least three years away
from his first possible parole date), appeal granted, 6 N.Y.3d 831, 847 N.E.2d 376, 814 N.Y.S.2d 79 (Mar. 2, 2006), appeal
dismissed, People v. Bautista, 7 N.Y.3d 838, 838, 857 N.E.2d 49, 50, 823 N.Y.S.2d 754, (Sept. 21, 2006); Memorandum
from Al O’Connor, New York State Defenders Association to Chief Defenders at 2 (Oct. 24, 2005) (on file with the JLM).
28. See Memorandum from Al O’Connor, New York State Defenders Association, to Chief Defenders at 2 (Oct. 24,
2005) (on file with the JLM).
30. See People v. Bautista, 26 A.D.3d 230, 230–31, 809 N.Y.S.2d 62, 63 (1st Dept. 2006).
31. See People v. Bautista, 26 A.D.3d 230, 230–31, 809 N.Y.S.2d 62, 63 (1st Dept. 2006).
32. See People v. Nolasco, 37 A.D.3d 622, 623, 831 N.Y.S.2d 197, 198 (2d Dept. 2007) (holding that defendant was
less than three years from parole and therefore an “eligible inmate” in the meaning of Chapter 643, and was properly not
allowed to proceed with a motion for re-sentencing); People v. Perez, 44 A.D.3d 418, 418, 843 N.Y.S.2d 68, 68 (1st Dept.
the first reading of the time to parole eligibility requirement. However, if you live outside of New York, and
you are more than one year but less than three years away from your earliest possible release date, it may
be worthwhile for you to file for re-sentencing anyway. You could argue that the alternate reading of the
time to parole eligibility requirement is the correct reading.33
If you are more than one year and less than three years away from your earliest possible parole date, you
could file an application for re-sentencing, but the judge will probably decide you do not meet the time to
parole eligibility requirement. In your application, you should argue the re-sentencing law should be read to
refer to either definition of “eligible” from Subdivision 2 of Section 851, not necessarily the second definition.
(d) Measuring Time to Parole Eligibility
Time to parole eligibility is probably measured from the date that the court receives your application for
re-sentencing.34 In other words, the day that you file the application with the court must be more than three
years from your parole date. (Under the alternate reading discussed above, the day you file the application
must be more than one year before your earliest possible release date under your current sentence.) The law
itself does not say that the three years (or one year) should be counted from the day you file the application,
but memos from both New York DOCS and the senators that introduced the re-sentencing law as a bill in
the New York Senate seem to say that the time is measured from the date your application is filed.35 This is
also consistent with the wording of the decision by the First Department Appellate Division in People v.
Perez—since the defendant “was less than three years from his parole eligibility date when he filed the
motion,” he was ineligible for re-sentencing. 36 The court here looked at the date of the motion for re-
sentencing to measure the time to parole, and since the application was filed within three years of parole
eligibility it was denied. Therefore, if possible, you should make sure you file your re-sentencing
application with the court more than three years before your earliest possible release date.
A further issue is how to measure the three years from parole under the 2005 DLRA for a defendant
serving cumulative sentences for an A-II felony along with other crimes. The government has argued that
eligibility for re-sentencing should be based only on the time left in serving just the A-II felony sentence.
This would mean a defendant who has served two years of a four-year A-II sentence, but also has more than
three years to serve for another sentence would not be eligible for re-sentencing. This view, however, has not
been followed. In People v. Paniagua, the First Department Appellate Division said that defendant’s parole
eligibility date was the date he would be eligible for parole on his cumulative sentence for both A-I and A-II
2007) (holding that the Supreme Court was not required to assign counsel or conduct a hearing for a defendant who was
less than three years from parole eligibility when he filed a motion for re-sentencing since defendant was ineligible for
re-sentencing); People v. Corley, 45 A.D.3d 857, 858, 847 N.Y.S.2d 148, 149 (2d Dept. 2007) (holding that a defendant
who had already been denied parole and whose motion for re-sentencing would always be less than three years away
from the next parole hearing was not eligible for re-sentencing); People v. Santos, 13 Misc. 3d 1230A (Sup. Ct. Kings
County 2006) (unpublished) (holding that a defendant was ineligible to be resentenced because he was eligible for parole
in less than three years); People v. Reyes-Acevedo, 12 Misc. 3d 1195A (Sup. Ct. N.Y. County 2006) (unpublished) (finding
that because defendant received a sentence of less than three years, he failed to meet the requirement to be
resentenced); People v. Parris, 35 A.D.3d 891, 892, 828 N.Y.S.2d 429, 430 (2d Dept. 2006) (holding that a defendant
eligible for parole in less than three years cannot apply for re-sentencing); People v. Thomas, 35 A.D.3d 895, 895, 826
N.Y.S.2d 456, 457 (3d Dept. 2006) (holding that defendant was “well within the three-year period” at the time of his
application for re-sentencing and therefore ineligible); People v. Mills, 14 Misc. 3d 1220(A), 836 N.Y.S.2d 488 (County Ct.
Onondaga County Jan. 16, 2007) (unpublished) (vacating grant of re-sentencing by extending the holdings of Bautista,
Thomas, and Parris and the three-year "cut out" period to prisoners who have served the court-ordered minimum, have
been denied parole, and will be eligible for parole within the subsequent three years). Compare People v. Covel, 12 Misc.
3d 1185A, 824 N.Y.S.2d 764 (Sup. Ct. N.Y. County July 20, 2006) (unpublished) (reaching the question of whether
“‘eligible for parole’ means that the applicant has reached a court-set minimum or a merit time release date” and finding
defendant, who was within one year of his temporary release date, ineligible for re-sentencing).
33. E-mail from William Gibney, New York Legal Aid Society, to Sydney Bird, contributing author of this Chapter
(Mar. 9, 2006) (on file with the JLM).
(Nov. 17, 2005) (on file with the JLM); see New York State Senate Introducer’s Memorandum in Support of Bill No. S.
5800 (June 20, 2005) (on file with the JLM).
35. Memorandum from Anthony J. Annucci, Deputy Commissioner and Counsel for New York DOCS, to Criminal
Justice Practitioners at 2 (Sept. 20, 2005) (on file with the JLM); New York State Senate Introducer’s Memorandum in
Support of Bill No. S. 5880 (June 20, 2005) (on file with the JLM).
36. People v. Perez, 44 A.D.3d 418, 419, 843 N.Y.S.2d 68, 68 (1st Dept. 2007).
felonies—not the date he would be eligible for parole if he was just serving his A-II felony.37 The court stated,
“The pivotal measuring rod is not the time remaining on an A-II felony sentence, but the time before an
inmate becomes an ‘eligible inmate’”—in other words, when the inmate will actually be up for parole.38
If you have less than three years (or one year) until your earliest possible release date, but your release
date is after October 30, 2008 (or 2006), you could still apply for re-sentencing. But the judge might decide
that your application is too late for you to fulfill the time to parole eligibility requirement. If that happens,
you will need to argue that the three years (or one year) should be measured from the day the law came into
effect, which is October 29, 2005,39 instead of from the day your application gets to the court. To support this
argument, you could cite to New York’s Statutes Law, which says that a “statute speaks, not from the time
when it was enacted, or when the courts are called on to interpret it, but as of the time it took effect.”40
However, a judge may not accept this argument,41 and may deny your application because you do not meet
the time to parole eligibility requirement. So, it is best to file your application with the court more than
three years before your earliest possible release date.
3. The Merit Time Eligibility Requirement
The second requirement is that you are eligible to receive a merit time reduction of your current
sentence. As with the first requirement, the re-sentencing law states this requirement indirectly.
Specifically, the re-sentencing law says that you must meet “the eligibility requirements of paragraph (d) of
Subdivision 1 of Section 803 of the correction law.”42 In order to meet the merit time requirements, for the
purposes of the DLRA, the defendant “must be serving a sentence of one year or more, be in the Correction
Department’s custody as of certain periods of time, not have been convicted of certain crimes, not have
committed a ‘serious disciplinary infraction’ or commenced a frivolous civil lawsuit or other civil proceeding
against a state agency, officer or employee, and have participated in certain programs.” 43 These
requirements will be discussed in greater detail below.
The requirement that prisoners serving sentences for certain types of crimes are ineligible for merit
time, is found in Section 803(d)(1) of the New York Correction Law.44 These crimes are listed below, in
Subsection (a) of this Section. If you are serving time for one of the disqualifying offenses listed
below, you do not meet the merit time eligibility requirement for re-sentencing, and you may not
apply.
(a) Eligibility for Merit Time Under New York Correction Law Section 803(1)(d):
Disqualifying Offenses
If you are serving time for certain types of offenses in addition to the A-II felony drug offense, you are
ineligible for merit time under Section 803(1)(d) of the New York Correction Law, and therefore you are not
eligible to apply for re-sentencing. The disqualifying offenses are: any non-drug class A-I felony, any violent
felony offense as defined in Section 70.02 of the New York Penal Law,45 manslaughter in the second degree,
vehicular manslaughter in the first or second degree, criminally negligent homicide, any sex offense defined
in Article 130 of the New York Penal Law,46 incest, any sexual performance by a child offense defined in
Article 263 of the New York Penal Law,47 or aggravated harassment of an employee by a prisoner.48
One question is whether you are eligible for re-sentencing if you were sentenced for both a disqualifying
offense and a drug offense, and you have arguably finished serving the sentence for the disqualifying
37. People v. Paniagua, 45 A.D.3d 98, 105, 841 N.Y.S.2d 506, 512 (1st Dept. 2007).
39. 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
40. N.Y. Stat. Law § 93 (McKinney 2005).
(Nov. 17, 2005) (on file with the JLM).
42. 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
44. N.Y. Correct. Law § 803(1)(d)(ii) (McKinney 2005).
46. N.Y. Penal Law §§ 130.00–130.90 (McKinney 2005).
47. N.Y. Penal Law §§ 263.00–263.25 (McKinney 2005).
48. N.Y. Correct. Law § 803(1)(d)(ii) (McKinney 2005).
offense.49 For example, if you were sentenced to two years’ imprisonment for a disqualifying offense, to be
served concurrently or consecutively with a longer prison term for an A-II felony drug offense, and you have
already served four years, it appears that you are no longer serving time for the disqualifying offense. It is
possible that you could apply for re-sentencing, but you would need to argue in your application that you are
no longer serving the sentence for the disqualifying offense. This argument will likely be unsuccessful,
because two recent cases indicate that a defendant whose sentence originally included a disqualifying
offense will not be re-sentenced. The first case is People v. Merejildo,50 in which the defendant was serving a
consecutive sentence of two to four years for a violent felony, and eight years to life for an A-II felony. After
serving more than four years, the defendant sought re-sentencing under DLRA, and argued that he was no
longer serving the disqualifying offense. The court said, though, that “[p]ursuant to Penal Law §70.30(1)(b),
defendant’s consecutive sentences are merged into a single aggregate sentence, with a term of ten years to
life.”51 This meant that the defendant was still considered to be serving the disqualifying violent felony.
A similar argument was unsuccessful for a defendant serving a concurrent sentence in People v.
Quiñones, a 2008 decision by the First Department Appellate Division.52 There, a defendant was sentenced
to a maximum seven-year violent felony offense (which is a disqualifying offense) along with a concurrent
life sentence for class A-II felony violations. After serving more than seven years, Quiñones applied for re-
sentencing, arguing that he had finished serving the disqualifying offense. The court disagreed and said that
since his sentence was concurrent, Quiñones remained imprisoned for a sentence that included a
disqualifying offense. The defendant was therefore ineligible for re-sentencing.
The decisions in Merejildo and Quiñones mean that if you were simultaneously sentenced for a
disqualifying offense and an A-II offense, you will be unlikely to successfully argue that you have finished
serving the disqualifying offense, and you will therefore not be re-sentenced under the DLRA. You probably
cannot apply for re-sentencing if you were on parole for any one of the disqualifying offenses at the time that
you were charged with the A-II felony drug offense. If this is your situation, the time owed to parole on the
first sentence was probably added to the A-II felony drug sentence. This would make you ineligible for merit
time and therefore ineligible for re-sentencing under the new law.53
You probably meet the merit time eligibility requirement if you are not serving time for any of the
disqualifying offenses listed above (or listed in Section 803(1)(d)(ii) of the New York Correction Law), and if
you were not on parole for any of those offenses at the time that you were charged with the A-II felony drug
offense.54 However, the judge will probably also look at the other restrictions on granting merit time that are
included in Correction Law Section 803(1)(d). These restrictions are discussed below, in Subsection (b).
(b) Other Restrictions on Merit Time Under New York Correction Law § 803(1)(d)
Courts have noted other restrictions that might apply to merit time allowances in re-sentencing under
the DLRA, according to Section 803(1)(d). “[T]o obtain a merit time allowance a defendant must ... not have
been convicted of certain crimes, not have committed a ‘serious disciplinary infraction’ or commenced a
frivolous civil lawsuit or other civil proceeding against a state agency, officer or employee, and have
participated in certain programs.”55 This means that there is a possibility that a judge may decide that you
are ineligible for merit time—and therefore ineligible for re-sentencing—if you have a serious disciplinary
infraction on your prison record or if, while you were in prison, you filed or proceeded with a lawsuit that
was dismissed as frivolous.56 This is the view expressed by the court in People v. Hill when describing the
requirements: “To be eligible for re-sentencing under this legislation, a defendant must ... meet the eligibility
requirement of Correction Law § 803(1) (which requires a defendant be eligible to earn ‘merit time,’ which
(Dec. 7, 2005) (on file with the JLM).
50. People v. Merejildo, 45 A.D.3d 429, 430, 846 N.Y.S.2d 52, 53 (1st Dept. 2007).
51. People v. Merejildo, 45 A.D.3d 429, 430, 846 N.Y.S.2d 52, 53 (1st Dept. 2007) (citing People v. Curley, 285
A.D.2d 274, 730 N.Y.S.2d 625 (4th Dept. 2001), lv. denied, 97 N.Y.2d 607, 738 N.Y.S.2d 290, 764 N.E.2d 394 (2001)).
52. People v. Quiñones, 49 A.D.3d 323, 854 N.Y.S.2d 5 (1st Dept. 2008).
53. Memorandum from Al O’Connor, New York State Defenders Association to Chief Defenders at 4 (Oct. 24,
54. See Memorandum from Al O’Connor, New York State Defenders Association to Chief Defenders at 4–5 (Oct.
24, 2005) (on file with the JLM).
56. See Memorandum from Al O’Connor, New York State Defenders Association, to Chief Defenders at 4–5 (Oct. 5,
2005, revised Oct. 24, 2005) (on file with the JLM).
means the defendant cannot also be serving another sentence for which merit time is not available, such as
certain sex offenses, all violent felony offenses, any homicide, or if the defendant has a poor disciplinary
record, or has been found to have filed a frivolous lawsuit).”57 In other words, even if you are not serving
time for any of the disqualifying offenses, a judge might decide that you do not meet the merit time
eligibility requirement for re-sentencing because, under Correction Law Section 803(1)(d)(iv), you could not
be granted merit time. This Section states that “allowance shall be withheld for any serious disciplinary
infraction or upon a judicial determination that the person, while an inmate, commenced or continued a civil
action, proceeding or claim that was found to be frivolous.”58
But, in the way most courts apply the law, the re-sentencing law only requires you be eligible for merit
time under Correction Law Section 803(1)(d), rather than requiring you actually earned merit time under
Correction Law Section 803(1)(d). So, a serious disciplinary infraction or a frivolous lawsuit or legal claim on
your record does not necessarily prevent you from fulfilling the merit time eligibility requirement. 59 In
December 2005, the Supreme Court of New York County held, in People v. Quiñones, a serious disciplinary
infraction does not hurt eligibility for re-sentencing under the new law.60 The Second Department Appellate
Division endorsed that decision in People v. Sanders.61 The court stated, “the reference in the 2005 DLRA to
the ‘eligibility requirements’ of Correction Law Section 803(1)(d), does not preclude a defendant from whom
a merit time allowance has been withheld pursuant to Correction Law Section 803(1)(d)(iv), from seeking
resentencing under the 2005 DLRA.”62 This means that eligibility for re-sentencing under the Drug Reforms
laws is different than under Section 803(1)(d) as a whole, and under the DLRA the only requirement that
matters for merit time eligibility is that you are not serving time for a disqualifying offense.
However, the First Department Appellate Division disagrees. In People v. Paniagua, the court held that
the defendant was ineligible for merit time because he committed two serious disciplinary infractions. The
court noted that a “‘serious disciplinary infraction’ is defined in the regulations of the Department of
Correctional Services to include [actions resulting in the] ‘receipt of disciplinary sanctions’ that entail ‘60 or
more days of SHU [Special Housing Unit] and/or keeplock time’ [or] the ‘receipt of any recommended loss of
good time as a disciplinary sanction.’”63 The defendant in People v. Paniagua argued that since he had not
committed a disqualifying offense, such as a violent felony, he had met the eligibility requirements of
“earning” a merit time allowance. He argued that this was all that was necessary to meet the merit time
requirement for re-sentencing. The court here took a stricter view, holding that the defendant must have
both earned and been granted merit time allowance in order to meet the requirement. The court stated:
Thus, the requirements set forth in § 803(1)(d)(iv), no less than those in § 803(1)(d)(i)
and (ii), constitute the “eligibility” requirements for the grant of merit time. Nothing
in the 2005 DLRA or § 803(1)(d) supports defendant’s argument that the phrase
“eligibility requirements” refers only to the requirements for earning a merit time
allowance, and not also to those for being granted one.64
In the First Department, then, the court may find you are ineligible for re-sentencing if you have
committed a “serious disciplinary infraction,” including actions resulting in spending sixty days or more in a
57. People v. Hill, 11 Misc. 3d 1053(A), 814 N.Y.S.2d 892 (Sup. Ct. Kings County 2006).
58. N.Y. Correct. Law § 803(1)(d)(iv) (McKinney 2005).
59. See People v. Quiñones, 812 N.Y.S.2d 259, 270 (N.Y. Sup. Ct. 2005) (holding that the merit time eligibility
requirement of the A-II re-sentencing law only requires that a prisoner not be serving time for any of the disqualifying
offenses listed in N.Y. Correct. Law § 803(1)(d)(ii), and not that the prisoner meet any of the other requirements for
actual granting of merit time). See also Memorandum from Al O’Connor, New York State Defenders Association, to Chief
Defenders at 4 (Oct. 5, 2005, revised Oct. 24, 2005) (on file with the JLM) (pointing out that a prisoner’s disciplinary
record may still be considered by the judge as a discretionary factor weighing against re-sentencing). But, note that New
York DOCS, prior to the decision in Quiñones, has taken the position that prisoners with serious disciplinary infractions
or found to have filed frivolous lawsuits while in prison do not meet the merit time eligibility requirement. Memorandum
from Anthony J. Annucci, Deputy Commissioner and Counsel for New York DOCS, to Criminal Justice Practitioners, at
2 (Sept. 20, 2005) (on file with the JLM).
60. People v. Quiñones, 11 Misc. 3d 582, 598, 812 N.Y.S.2d 259, 271 (Sup. Ct. 2005).
61. People v. Sanders, 36 A.D.3d 944, 829 N.Y.S.2d 187 (2d Dept. 2007).
62. People v. Sanders, 36 A.D.3d 944, 946, 829 N.Y.S.2d 187 (2d Dept. 2007).
63. People v. Paniagua, 45 A.D.3d 98, 107, 841 N.Y.S.2d 506, 513–14 (1st Dept. 2007) (citations omitted); N.Y.
Comp. Codes R. & Regs. tit 7, § 280.2(b)(3)–(4) (2006).
Special Housing Unit and/or keeplock, or if DOCS recommends that you lose your merit time.65 You will
have to make arguments based on the Second Department’s reasoning in People .v Sanders.
Additionally, you almost certainly do not have to meet New York Correction Law Section 803(1)(d)(iv)’s
work or program assignment requirement.66 This statute, effective until September 2009, states that you
may be granted merit time when you participate in a work and treatment program and successfully obtain
one of the following: your general equivalency diploma (GED), an alcohol and substance abuse treatment
certificate, a vocational trade certificate after six months of vocational programming, or 400 hours of
community service.67 In the event that you only need to be eligible for merit time, not to have earned merit
time, you do not need to participate in any of these programs to be allowed to apply for re-sentencing. The
opinion in Paniagua suggested that participation in certain programs, as stated in Section 803(1)(d), was
included under the eligibility requirements of the Drug Law Reform Act.68 In practice, though, you will likely
meet the second set of requirements for re-sentencing as long as you are not serving any time for any of the
disqualifying offenses listed in Correction Law Section 803(1)(d)(iv) (and listed above), since most courts
adhere to the position taken by the most prominent cases on the subject, Quiñones, and Sanders. However, if
you have a serious disciplinary infraction on your prison record or were found to have filed a frivolous legal
suit or claim, a judge may choose to find that you do not meet the merit time eligibility requirement.69
In sum, you may apply for re-sentencing if, (1) you are serving a sentence for an A-I felony drug offense
and were sentenced under the old law, or (2) you are serving a sentence for an A-II felony drug offense, were
sentenced under the old law, and meet the time to parole eligibility and merit time eligibility requirements
described above. Parts C and D describe what happens if you apply for re-sentencing, and how to apply.
C. Re-Sentencing: What Happens If You Apply?
1. The Re-Sentencing Process
The re-sentencing process is the same for A-I and A-II felony drug offenses. When you apply, you should
send your application to the court in which you were convicted, but you must also send a copy of your
application to the District Attorney’s office that prosecuted your conviction.70 The application will be decided
by the judge that gave you your original sentence if that judge still works in the same court.71 Otherwise, the
application will be decided by a randomly chosen judge in that court.72 Or, if the original judge has moved to
another court that has jurisdiction over your case, and if you and the District Attorney both agree, your
application may be sent to the original judge at the new court.73
2. How the Judge Will Make a Decision
If the judge finds that you meet the requirements for applying for re-sentencing, described in Part B
above, the judge may consider any “facts or circumstances” relating to whether you should be re-sentenced,
as well as your prison record.74 It is up to you to give the facts and circumstances that you want the judge to
consider.75 Similarly, the District Attorney may submit the facts and circumstances the prosecutor wants the

66. See People v. Quiñones, 812 N.Y.S.2d 259, 266–71 (N.Y. Sup. Ct. 2005); see also New York State Senate
Introducer’s Memorandum in Support of Bill No. S. 5880 (June 20, 2005) (on file with the JLM); Memorandum from
Anthony J. Annucci, Deputy Commissioner and Counsel for New York DOCS, to Criminal Justice Practitioners, at 2
(Sept. 20, 2005) (on file with the JLM).
67. N.Y. Correct. Law § 803(1)(d)(iv) (McKinney 2005).
69. According to New York DOCS, this interpretation of the current state of the law is correct. See Memorandum
from Anthony J. Annucci, Deputy Commissioner and Counsel for New York DOCS, to Criminal Justice Practitioners at 2
(Sept. 20, 2005) (on file with the JLM). See also N.Y. Correct. Law § 803(1)(a) (McKinney 2005) (“Such allowances may
be granted for good behavior and efficient and willing performance of duties assigned or progress and achievement in an
assigned treatment program, and may be withheld, forfeited or canceled in whole or in part for bad behavior, violation of
institutional rules or failure to perform properly in the duties or program assigned.”).
70. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
75. In other words, it is up to you to convince the judge that you do deserve to be re-sentenced. 2004 N.Y. Sess.
Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws Ch. 643 (S. 5880).
judge to consider.76 The judge may also consider your record of confinement.77 The judge may only consider
information that relates to whether you should be re-sentenced, and may not consider information about
whether you were correctly charged and convicted in the first place.78
If you are eligible to apply for re-sentencing, you have a right to have an attorney represent you on your
application.79 If you cannot pay an attorney, you have a right to have the court appoint one.80 Part D of this
Chapter explains how to get an attorney appointed. You also have a right to a hearing on your re-sentencing
application and to be present at that hearing.81 The court may also order a hearing to determine whether
you are actually eligible to apply for re-sentencing, or to decide any relevant factual issues in dispute.82
After reviewing the information you and the District Attorney submit, and after necessary hearings, the
judge will decide. “[U]nless substantial justice dictates that [your] application should be denied,” the judge
must choose an appropriate new sentence from the current sentencing ranges, and tell you that sentence.83
You will then choose to accept the suggested new sentence, withdraw your application, or appeal the
suggested new sentence.84 If you withdraw, you will keep serving your original sentence. If you do not take
any action, the judge will vacate your original sentence and impose the new sentence.85 The time you have
served toward your old sentence will be counted towards your new sentence.86 Whether the judge grants or
denies your application, he or she must write an opinion explaining the findings of fact and legal reasoning.87
The success or failure of achieving re-sentencing has turned on whether “substantial justice dictates the
application should be denied.”88 While the judge is not supposed to have discretion beyond applying the law
in determining whether a defendant is eligible for re-sentencing—i.e. meeting the time to parole
requirements and the merit time eligibility requirements—the judge does have some discretion in
determining what substantial justice dictates. For example, courts have previously denied re-sentencing of
cases because of substantial justice. Situations that may lead to a denial of re-sentencing due to substantial
justice have included where the defendant is a high-level drug offender,89 the drug trafficking operation
defendant participated in was very extensive,90 the amount of drugs the defendant was convicted for was
high,91 the defendant had disciplinary infractions while in prison and a long prior criminal history,92 and the
defendant showed no remorse for his crime and continued to deny guilt after pleading guilty.93
76. In other words, the District Attorney will probably try to convince the judge that you do not deserve to be re-
sentenced. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
89. People v. Morales, 46 A.D.3d 1395, 1396, 848 N.Y.S.2d 486, 48 (4th Dept. 2007) (denying application for re-
sentencing under the 2004 Drug Law Reform Act because defendant’s conviction involved a large amount of cocaine, so
defendant was not a “low level offender”); People v. Montoya, 45 A.D.3d 496, 496, 847 N.Y.S.2d 41, 41 (1st Dept. 2007)
(holding that “substantial justice” required denial of re-sentencing to defendant who personally dealt with large amounts
of drugs and money in an international narcotics distribution ring).
90. People v. Arana, 45 A.D.3d 311, 311, 844 N.Y.S.2d 696, 696–97 (1st Dept. 2007) (denying defendant’s
application for re-sentencing because of “substantial justice,” since defendant had been a participant in “a very extensive
drug trafficking enterprise”).
91. People v. Montoya, 45 A.D.3d 496, 496, 847 N.Y.S.2d 41, 41, (1st Dept. 2007) (denying re-sentencing for
defendant who was “a high-level participant in an international narcotics distribution ring” and was arrested in
possession of 50 kilograms of cocaine).
92 . People v. Rivers, 43 A.D.3d 1247, 1248, 842 N.Y.S.2d 611, 612 (3d Dept. 2007) (denying defendant’s
application for re-sentencing based on defendant’s number of disciplinary violations while incarcerated and lengthy
criminal record predating the conviction, even though defendant had achieved significant educational and vocational
gains while incarcerated); People v. Vega 40 A.D.3d 1020, 1020, 836 N.Y.S.2d 685, 686 (2d Dept. 2007) (denying
defendant’s application for re-sentencing after considering that defendant had a criminal history including convictions
for other controlled substances offenses and second-degree murder and that defendant’s prison disciplinary record was
not good); People v. Sanders, 36 A.D.3d 944, 946–47, 829 N.Y.S.2d 187, 189 (2d Dept. 2007) (denying defendant’s
3. Appealing a Decision on Your Application
You have a right to appeal the rejection of your application.94 You may also appeal an imposed new
sentence on two grounds: (1) that “the new sentence is harsh or excessive;” or (2) that it is “unauthorized”
under the law.95 Finally, you may also appeal a proposed, but not yet imposed, new sentence on the ground
that it is harsh or excessive.96 If you do so, you can still decide to withdraw your application after the appeal
is decided, and keep serving your original sentence.97
4. Sentences: What Sentence Could You Receive?
While felony drug sentences under the old law are indeterminate, the new sentencing laws require
determinate sentences for drug felonies.98 If you are re-sentenced, you will get a determinate sentence.
A determinate sentence is a sentence for a fixed amount of time (for example, “eight years”). Under
current law, effective until September 2009, you can receive good time or merit time reductions of a
determinate sentence imposed for a drug offense.99 DOCS calculates and grants these reductions. However,
there is no parole from a determinate sentence, so the Parole Board has no say in when you are released.
An indeterminate sentence consists of two terms: a minimum term and a maximum term (for example,
“five to ten years”). The minimum term must be at least one year, and it is the amount of time you must
serve before you can become eligible for parole. The maximum term must be at least three years, although it
can be as much as life imprisonment. The maximum term is the amount of time you will have to spend in
prison if there are no reductions made to your sentence and you are not paroled. Many prisoners serving
indeterminate sentences for non-violent offenses can receive reductions for good time or merit time as well
as parole.100 This means that both DOCS and the Parole Board may have a say in when you will be released.
New determinate sentencing ranges for A-I and A-II felony drug offenses, effective January 13, 2005, are
If Your Class A-II Drug Offense Is Your: Determinate Sentence Range101

First Felony Offense Between 3 and 10 years
Second Felony Offense
(Prior Felony = Non-Violent) Between 6 and 14 years
(Prior Felony = Violent) Between 8 and 17 years
If Your Class A-I Drug Offense Is Your: Determinate Sentence Range102

First Felony Offense Between 8 and 20 years
(Prior Felony = Non-Violent) Between 12 and 24 years
(Prior Felony = Violent) Between 15 and 30 years
Each of these determinate sentences includes a five-year period of post-release supervision.103
application for re-sentencing after considering that defendant received disciplinary violation for which he was confined
to a special housing unit for at least 60 days after only 11 months in prison); People v. Paniagua, 45 A.D.3d 98, 108–09,
841 N.Y.S.2d 506, 515 (1st Dept. 2007) (“[a]n inmate’s … repeated commission of serious acts of insubordination while
incarcerated[] can only be viewed adversely in considering his likelihood of re-adjusting to life outside of prison”).
93. People v. Sanders, 36 A.D.3d 944, 946–47, 829 N.Y.S.2d 187, 189 (2d Dept. 2007) (noting that defendant
showed no remorse and continued to deny his guilt of the crime of which he was convicted, even though he had plead
guilty, at hearing on defendant’s application for re-sentencing); People v. Rivers, 43 A.D.3d 1247, 1248, 842 N.Y.S.2d
611, 612 (3d Dept. 2007) (denying defendant’s application for re-sentencing and noting that defendant did not freely
admit guilt for either his criminal acts or his disciplinary violations).
94. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
100. See N.Y. Correct. Law § 803(5) (McKinney 2008).
If you are re-sentenced, you will get a specific term of imprisonment, not a range. The term will fall
within the appropriate determinate sentence range, depending on your felony record, shown in the tables
above. Any time you have already served from your original sentence will be subtracted from the time you
will have to serve under your new sentence. After release, you will be subject to five years of supervision.
When deciding whether to apply for re-sentencing, and whether to accept a suggested new sentence, you
will want to compare your earliest likely release date under your old sentence with your earliest likely
release date under your new sentence. Keep in mind that, depending on your prison record, you may or may
not receive reduction for good time and/or merit time. Also, consider whether the Parole Board is likely to
grant you parole under your indeterminate sentence. It is possible that your earliest re-sentenced
determinate date could be longer than your earliest possible release date under your current sentence. For
example, in People v. Newton, the defendant was originally sentenced six years to life, and the proposed re-
sentencing was 11 years, which on appeal was found to be neither harsh nor excessive. 104 Remember,
though, that even if the minimum term of your indeterminate sentence is shorter than the determinate
sentence you receive at re-sentencing, you may be better off with the determinate sentence if you think the
Parole Board is unlikely to grant you parole at an early date.105
D. How to Apply for Re-Sentencing
You have the right to an attorney when applying for re-sentencing. If you can’t afford one, you can have
one appointed.106 You can file an application to have an attorney appointed together with a notice of motion
and basic application for re-sentencing. Once you are appointed an attorney, your attorney can prepare a
more detailed and complete application for you. You can find a sample application for an appointed attorney,
with a sample notice of motion and basic application for re-sentencing in Appendix A of this Chapter.107
If you are applying for re-sentencing for an A-II felony drug offense and your earliest possible release
date is not much more than three years away, it is important that your application for an appointed attorney
include an application for re-sentencing. This is because you need to make sure your application is filed in
time to meet the time to parole eligibility requirement, explained above in Part B(2)(a) of this Chapter. You
should try to exercise your right to have an attorney represent you in your re-sentencing application, and
should only file a detailed application pro se if you have trouble getting an attorney.
1. Filing a Pro Se Application
If you are applying for re-sentencing for an A-II felony drug offense under the alternate, one year to
parole eligibility reading described above in Part B(2)(c) of this Chapter, you may have to prepare your own
application, because you may have trouble getting an attorney appointed.108 You may also have trouble
getting an attorney if you were also sentenced for a disqualifying offense at the time you were sentenced for
the felony drug offense, even if you have clearly finished serving the sentence for the disqualifying offense,
as described above in Part B(3)(a) of this Chapter.109
If you file your application pro se, you should prepare an application that explains to the judge why you
deserve a new sentence. You might want to include information about: your role in the offense, the nature of
the offense, the judge’s position at the original sentencing, your (lack of) prior criminal history, your health,
your prison disciplinary record, favorable evaluations by correctional personnel, participation in educational,
drug-treatment, or work programs while in prison, other attempts to rehabilitate yourself, and your plans
for re-entry into your community, such as where you plan to live and how you plan to look for work when you
104. People v. Newton, 48 A.D.3d 115, 120, 847 N.Y.S.2d 645, 649 (2d Dept. 2007).
2005, revised Oct. 24, 2005) (on file with the JLM).
107. The sample document in Appendix A is for a prisoner serving time for an A-II felony drug offense.
108. E-mail from William Gibney, New York Legal Aid Society, to Sydney Bird, contributing author of this
Chapter (Nov. 17, 2005) (on file with the JLM).
109. See e-mail from William Gibney, New York Legal Aid Society, to Sydney Bird, contributing author of this
are released.110 You should provide as much documentation as possible—for example, you should include any
certificates you received for program participation while in prison.111
You can try to request certain documents, including your medical file, your disciplinary file, your visit
log, your education file, your guidance file, and your legal file from the prison records office. A sample
document request letter is attached to this Chapter as Appendix B. But, some prisons refuse to cooperate
with document requests from prisoners.112 A lawyer might find it easier than you would to request your
records—this is one reason you should try to get a lawyer instead of filing your application pro se.
If you file your application pro se, you should submit a notice of motion and basic petition for re-
sentencing (a sample is attached to this Chapter as Appendix C) along with a signed, written statement, or
affirmation, in support of your application and any supporting documents you have collected. Your
affirmation in support of your application should include: (1) a description of your original sentence,
including the offense of which you were convicted, the term of the original sentence, the date it was imposed,
how much of it you have served, and the judge who imposed it; (2) an explanation of why you are eligible for
re-sentencing under the requirements of Chapter 738, Section 23 of the Laws of 2004 (for an A-I felony) or
Chapter 643 of the Laws of 2005 (for an A-II felony), including, if relevant, an explanation of the alternate,
one-year-to-parole reading of the law; (3) what new sentence you think the judge should give you, according
to the new sentencing law (for example, the minimum sentence allowed under the new law); (4) the reasons
you deserve the suggested new sentence, including, for example, an explanation of your prison disciplinary
record, your participation in any work or drug-rehabilitation programs while in prison, any serious health
problems you may have, and your plans to find housing and employment once you leave prison.113
Remember: when you file your application for re-sentencing, you must send it to the District Attorney’s
office that prosecuted your conviction as well as to the court.114 You must do this regardless of whether you
are filing only a basic application or one combined with an application for an appointed attorney.
E. Conclusion
In conclusion, changes to New York State drug laws, which went into effect in 2005, allow some
prisoners serving time for drug offenses to apply for re-sentencing under the new, better sentencing rules.
Prisoners serving time for A-I felony drug offenses are automatically eligible for re-sentencing, 115 while
prisoners serving time for A-II felony drug offenses must meet additional requirements.116 If you are serving
time for an A-I or an A-II felony drug offense that occurred prior to January 13, 2005, you should consider
whether you are eligible for re-sentencing, and whether re-sentencing is likely to give you an earlier release
date. If you are eligible and think you might benefit from re-sentencing, you should try to get an attorney
appointed to prepare your application, or, if you have trouble getting an attorney, file an application pro se.
110. Center for Community Alternatives, Rockefeller Drug Law Reform: Mitigation and Re-entry Planning Tips
(2005) (on file with the JLM).
111. Center for Community Alternatives, Rockefeller Drug Law Reform: Mitigation and Re-entry Planning Tips
(2005) (on file with the JLM).
112. E-mail from William Gibney, New York Legal Aid Society, to Sydney Bird, contributing author of this
113. Sample Affirmation provided by William Gibney, New York Legal Aid Society (2005) (on file with the JLM).
115. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802).
116. 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
APPENDIX A: SAMPLE APPLICATION FOR RE-SENTENCING117
A-1. SAMPLE PETITION FOR RE-SENTENCE

SUPREME COURT OF THE STATE OF NEW YORK118
__________ COUNTY CRIMINAL TERM
—————————————————————————x
THE PEOPLE OF THE STATE OF NEW YORK, :
Plaintiffs, :
: PETITION FOR
- against - : RE-SENTENCE
:
____________________________, : __________ County
Defendant. :
—————————————————————————x Ind. No. __________
PLEASE TAKE NOTICE that, upon the annexed affirmation of ______________________, and all the
prior proceedings, the undersigned will move this Court, at 100 Centre Street, New York, New York, 10013,
on ___________, at the opening of Court on that day or as soon thereafter as counsel can be heard, for an
order vacating the sentence imposed by the Court on ____________(_______________, J.); re-sentencing
defendant pursuant to the Rockefeller Drug Law Reform Act of 2005 (“DLRA”) [see 2005 Sess. Law of N.Y.,
Ch. 643 (S. 5880)]; and granting such other relief as the Court may deem proper.
Please also accept this as an application for appointment of counsel. I am indigent, currently
incarcerated, and I cannot afford counsel to represent me in this application for re-sentence.
Dated: ___________, New York

___________ , 200__
Yours,
____________________________________________
TO: Clerk of the Court

New York County Supreme Court
100 Centre Street
New York, New York 10013
Hon. Robert M. Morgenthau

New York County District Attorney
1 Hogan Place
or
Hon. Bridget Brennan
Special Narcotics Prosecutor
80 Centre Street
117. Adapted from New York Legal Aid Society sample document. This sample is tailored to a prisoner serving
time for an A-II felony drug offense.
118. Your Notice of Appeal is addressed to the court you were tried in, not the Appeals Court. This sample
presumes you were tried in a Supreme Court. If you were tried in a County Court, be sure to replace this court for the
Supreme Court at the top of the form. Make sure to address the form to the correct individuals in the “To:” section.
A-2. SAMPLE AFFIRMATION
SUPREME COURT OF THE STATE OF NEW YORK
—————————————————————————x
Plaintiffs, :
: AFFIRMATION
- against - :
: __________ County
:
Defendant. : Ind. No. __________
—————————————————————————x
STATE OF NEW YORK )

) ss:
COUNTY OF NEW YORK )
Defendant ____________________, hereby affirms, under penalty of perjury, that the following statements
are true.
1. I [pleaded guilty to] [was convicted after a trial of] second-degree criminal [possession] [sale] of a
controlled substance (P.L. ‘ [possession: 220.18] [sale: 220.41]) and [list other counts, if any]. On _________,
the court sentenced defendant to imprisonment for an indeterminate term of _______ years toon the
second-degree [sale] [possession] count to run [concurrently with] [consecutively to] [note other sentences, if
any].
2. I am presently incarcerated on an A-II drug conviction.
3. Defendant is more than 12 months from being an “eligible inmate” as that term is defined in
Subdivision 2 of Section 851 of the Correction Law.
4. Defendant meets the statutory eligibility requirements for merit time under Correction Law Section
803(1)(d).
5. For the above-stated reasons, defendant believes that [he] [she] is eligible to be re-sentenced under
the Drug Law Reform Act of 2005 (“DLRA”) [see 2005 Sess. Law of N.Y., Ch. 643 (S. 5880)] and defendant,
thus, moves for such relief.
6. Defendant has yet to receive [his] [her] program and disciplinary records from the Department of
Corrections. Defendant is filing this motion now to protect [his] [her] rights under the DLRA. Nevertheless,
defendant requests the opportunity to supplement this motion and to provide the Court with additional
pertinent information when that information becomes available.
WHEREFORE, Defendant respectfully requests that the Court grant [his] [her] petition for re-sentence.
Defendant further requests that the Court grant [him] [her] permission to supplement this application after
additional information is obtained.
Dated: _________________, New York

_________________, 2005
_______________________________________
[Name of Defendant]
A-3. SAMPLE AFFIDAVIT OF SERVICE
COUNTY OF _____________________________________
—————————————————————————x
Plaintiffs, :
: AFFIDAVIT
- against - : OF SERVICE
:
: __________ County
Defendant. :
—————————————————————————x Ind. No. __________
STATE OF NEW YORK )

) ss:
__________________ being duly sworn, deposes and says that he is over the age of eighteen years and is
not a party in this proceeding; that on the _____________ day of ________ 20___, deponent served the within
Petition for Re-sentence upon ___________ in this action, at _______________, the address designated by
______________ for that purpose by depositing a true copy of the same by mail, enclosed in a post-paid
properly addressed wrapper, in __________ a post office ___________official depository under the exclusive
care and custody of the United States Post Office Department within the State of New York.
____________________________________
Signature
Subscribed and sworn to before

me this __________ day of ____ 20___
______________________________
Notary Public
APPENDIX B: SAMPLE DOCUMENT REQUEST LETTER119
_____________ Correctional Facility

Attn: Inmate Records
Box ___
______________, NY _____
[Date]
Dear Sir/Madam,
I am writing to request a copy of my entire inmate record. My name is ________________, my date of

birth is __/__/__, and my NYSID No. is _________. Please include the following records:
(1) Complete copy of my legal file.
(2) Complete copy of my guidance file.
(3) Complete copy of my education file.
(4) Complete copy of my package room file.
(5) Complete copy of my medical file.
(6) Complete copy of my disciplinary and disposition file.
(7) Explanation of codes used in the inmate progress note sheets.
(8) Visit log.
Thank you for your attention to this matter.
Sincerely,
_______________________________
[Your Name]
119. Adapted from New York Legal Aid Society sample document.
APPENDIX C: SAMPLE PRO SE APPLICATION120
C-1. SAMPLE PETITION FOR RE-SENTENCE

—————————————————————————x
Plaintiffs, :
: PETITION FOR
- against - : RE-SENTENCE
:
: __________ County
:
———————————————————————x
PLEASE TAKE NOTICE that, upon the annexed affirmation of ______________________, and all the
prior proceedings, the undersigned will move this Court, at 100 Centre Street, New York, New York, 10013,
on ___________, at the opening of Court on that day or as soon thereafter as counsel can be heard, for an
order vacating the sentence imposed by the Court on ( , J.); re-sentencing defendant pursuant to the
Rockefeller Drug Law Reform Act of 2005 (“DLRA”) [see 2005 Sess. Law of N.Y., Ch. 643 (S. 5880)]; and
granting such other relief as the Court may deem proper.
Dated: ___________, New York

_______________, 2005
Yours,
___________________________________
TO: Clerk of the Court

New York County Supreme Court
100 Centre Street
Hon. Robert M. Morgenthau

New York County District Attorney
1 Hogan Place
or
Hon. Bridget Brennan
Special Narcotics Prosecutor
80 Centre Street
120. Adapted from New York Legal Aid Society sample document. This sample is tailored to a prisoner serving
time for an A-II felony drug offense.
C-2. SAMPLE AFFIRMATION
—————————————————————————x
Plaintiffs, :
: AFFIRMATION
- against - :
: __________ County
:
—————————————————————————x
STATE OF NEW YORK )

) ss:
Defendant ____________________, hereby affirms, under penalty of perjury, that the following statements
are true.
1. I [pleaded guilty to] [was convicted after a trial of] second-degree criminal [possession] [sale] of a
controlled substance (P.L. [possession: 220.18] [sale: 220.41]) and [list other counts, if any]. On __________,
the court sentenced defendant to imprisonment for an indeterminate term of years on the second-degree
[sale] [possession] count to run [concurrently with] [consecutively to] [note other sentences, if any].
2. I am presently incarcerated on an A-II drug conviction.
3. Defendant is more than 12 months from being an “eligible inmate” as that term is defined in
Subdivision 2 of Section 851 of the Correction Law.
5. Defendant meets the statutory eligibility requirements for merit time under Correction Law Section
803(1)(d).
6. For the above-stated reasons, defendant believes that [he] [she] is eligible to be re-sentenced under
the Drug Law Reform Act of 2005 (“DLRA”) [see 2005 Sess. Law of N.Y., Ch. 643 (S. 5880)] and defendant,
thus, moves for such relief.
7. Defendant has yet to receive [his] [her] program and disciplinary records from the Department of
Corrections. Defendant is filing this motion now to protect [his] [her] rights under the DLRA. Nevertheless,
defendant requests the opportunity to supplement this motion and to provide the Court with additional
pertinent information when that information becomes available.
WHEREFORE, Defendant respectfully requests that the Court grant [his] [her] petition for re-sentence.
Defendant further requests that the Court grant [him] [her] permission to supplement this application after
additional information is obtained.
Dated: _________________, New York

_________________, 2005
___________________________________
[Name of Defendant]
C-3. SAMPLE AFFIDAVIT OF SERVICE
COUNTY OF _____________________________________
—————————————————————————x
Plaintiffs, :
: AFFIDAVIT
- against - : OF SERVICE
:
: __________ County
Defendant. :
—————————————————————————x Ind. No. __________
STATE OF NEW YORK )

) ss:
_______________ being duly sworn, deposes and says that he is over the age of eighteen years and is not a
party in this proceeding; that on the _____________ day of ________ 20___, deponent served the within
Petition for Re-sentence upon ___________ in this action, at _______________, the address designated by
______________ for that purpose by depositing a true copy of the same by mail, enclosed in a post-paid
properly addressed wrapper, in __________ a post office ___________official depository under the exclusive
care and custody of the United States Post Office Department within the State of New York.
__________________________________________
Signature
Subscribed and sworn to before

me this __________ day of ____ 20__
______________________________
Notary Public
Manual
Chapter 11:
Using Post-Conviction DNA
Testing to Attack Your
Conviction or Sentence

8th Edition 2009
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 171
LEGAL DISCLAIMER
CHAPTER 11
USING POST-CONVICTION DNA TESTING TO

ATTACK YOUR CONVICTION OR SENTENCE*
A. Introduction
As of March 1, 2008, 213 individuals have been exonerated in the United States through post-conviction
DNA testing.1 This is because DNA is uniquely capable of proving innocence in crimes where biological
material was left by the perpetrator.2 Many people in prison were convicted before DNA testing was possible,
or before it was considered reliable, and so they were not able to present evidence at their trial that might
have helped prove their innocence. There are many organizations throughout the country that help prisoners
recover DNA evidence and secure DNA testing. Because of the complexity of applying for testing, we
strongly recommend that you contact one of these organizations rather than proceeding pro se (on your own).
If you do decide to litigate on your own, this Chapter can help you understand some legal issues involved
in the process. This Chapter explains how you may be able to use DNA testing of physical evidence to
challenge your conviction or sentence and how DNA testing is currently being used within the criminal
justice system. Part B of this Chapter discusses some ways you can petition to reopen your case based on
DNA testing. Part C explains how to seek assistance from a legal organization and Appendix A lists some
legal organizations that might be able to help you obtain DNA testing.
B. Common Procedures Used to Obtain DNA Testing
In the past, methods of testing evidence found at crime scenes were crude, and identifications or
exonerations based on crime scene evidence were often inaccurate. DNA testing is much more accurate than
older methods. If you believe there might have been biological evidence (like blood, semen, hair, or sweat)
collected at the scene of your crime of conviction, and if you think DNA tests of the evidence would exonerate
you, you can make several motions to try to get this evidence tested and the results admitted in court.
Finding evidence is one of the biggest obstacles to getting DNA testing. A big part of finding evidence is
understanding the difference between biological evidence that was introduced at your trial (for instance, a
bloody shirt) and evidence that was collected during the investigation, but not introduced at your trial (for
instance, a rape kit—the evidence collected from a rape victim when she was examined by a doctor). You do
not need to actually locate the evidence you want tested. You only need to prove that it was either collected
during the course of the investigation or introduced into evidence at your trial (or both). When filing a
motion, you must be specific about what evidence you want to test, why that evidence is important, and the
last known location of the evidence. It is very important to identify the last known location of the evidence.
C. Motion to Secure DNA Testing
Before filing a motion for a new trial based on newly discovered evidence (see Part B(2) for more
information), you need to file a motion to secure DNA testing. How you will file your motion will depend on
whether your state has a post-conviction DNA testing statute. States that have a post-conviction DNA
testing statute are Arizona, Arkansas, California, Colorado, Connecticut, Delaware, the District of Columbia,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico,
New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee,
Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin.3 If you are a state prisoner in
one of these states, read Subsection (a) below on how to make your motion.
* This Chapter was revised by Susan Maples, based on previous versions by Kristin Jamberdino, Oluwashola Ajewole,
and Sara Manaugh.
1. The Innocence Project, available at http://www.innocenceproject.orgContent/351.php# (last visited Mar. 1,
2008).
2. DNA (which stands for “deoxyribonucleic acid”) is a substance contained in every human cell. Each strand of
DNA is encoded with information about the specific physical characteristics of the individual whom it comes from.
3. The Innocence Project, http://www.innocenceproject.org/news/LawView2.php (last visited March 9, 2008).
As of March 2008, states that do NOT have a post-conviction DNA statute are Alabama, Alaska,
Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota and Wyoming.4 If you are a prisoner
in a state without a post-conviction statute, then you will need to file a Section 1983 action. See Subsection
(b) below and Chapter 16 of the JLM to learn about this. If you are a federal prisoner, you should file your
motion under the recently passed Justice for All Act. Subsection (c) below explains how this statute works.
(a) State Prisoners in States with a Post-Conviction DNA Testing Statute
As of March 2008, about eighty percent of U.S. states had enacted laws allowing post-conviction DNA
testing. The U.S. Congress has also enacted legislation, and laws are pending in several additional states.
State statutes vary greatly as to the conditions under which you may request testing. For example, some
only allow those convicted of certain felonies to petition.5 Some impose strict due diligence requirements6 or
only grant requests if identity was an issue at trial. 7 Others provide strict time limits within which a
petition may be filed.8 You should carefully read the requirements and conditions for petitioning for post-
conviction DNA testing in your state. Footnote sixteen lists the state statutes to help you do this research.
New York was the first state to allow for post-conviction DNA testing, and its provisions are some of the
most flexible.9 According to the provisions of that law, which are incorporated into Article 440 of the New
York Criminal Procedure Law,10 there is no due diligence requirement,11 identity does not need to have been
an issue at your trial, and there is no time limit for filing a petition. In New York, the court will order that a
test be done if it determines that you have met the following requirements:
(1) Your Article 440 motion requests that a forensic test be performed on specific evidence, which you
have clearly identified;
(2) The evidence you are requesting a DNA test on was obtained in connection with your trial (the trial
which resulted in your conviction); and
(3) There is a “reasonable probability” that if the results of a DNA test had been admitted at the trial,
the verdict would have been more favorable to you.12
4. The Innocence Project, http://www.innocenceproject.org/Content/304.php (last visited March 9, 2008).

5. See, e.g., Ind. Code Ann. §§ 35-38-7-1, 35-38-7-3, 35-38-7-5 (1998 & Supp. 2003) (indicating that only those
convicted of murder or a class A, B, or C felony may petition).
6. “Due diligence” means you should believe that the evidence you want tested will show that you are innocent
and that you are pursuing the testing within the proper amount of time, usually the time determined by the statute.
7. “Identity at issue at trial” means that you or your attorney claimed that you did not commit the crime you were
on trial for. See, e.g., Ark. Code Ann. § 16-112-201 (Michie 1987 & Supp. 2007) (strict due diligence requirement); Fla.
Stat. Ann. § 925.11 (West 2001 & Supp. 2007) (due diligence requirement); 725 Ill. Comp. Stat. Ann. 5/116-3 (West 2002
& Supp. 2007) (identity must have been an issue at trial); Mich. Comp. Laws Ann. § 770.16(3)(a)(iii) (West 2006)
(identity must have been an issue at trial); Mo. Ann. Stat. § 547.035 (West 2002 & Supp. 2007) (due diligence
requirement, identity must have been an issue at trial); Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon 2006 &
Supp. 2007) (identity must have been an issue at trial).
8. See, e.g., Idaho Code Ann. §§ 19-2719, 19-4902 (2004) (statute of limitations of 42 days from date of judgment
for capital cases, one year from date of judgment for other cases); Md. Code Ann., Crim. Proc. § 8-201 (2007) (only those
incarcerated on or after October 1, 2001 may petition).
9. The text of that provision reads as follows:
Where the defendant’s motion requests the performance of a forensic DNA test on specified evidence, and upon
the court’s determination that any evidence containing deoxyribonucleic acid (“DNA”) was secured in connection
with the trial resulting in the judgment, the court shall grant the application for forensic DNA testing of such
evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had
been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would
have been more favorable to the defendant.
N.Y. Crim. Proc. Law § 440.30(1-a(a)) (McKinney 2005).
10. For more information on Article 440, see JLM Chapter 20, “Using Article 440 of the New York Criminal
Procedure Law to Attack Your Unfair Conviction or Illegal Sentence.”
11. But see People v. Kellar, 218 A.D.2d 406, 410, 640 N.Y.S.2d 908, 910 (3d Dept. 1996) (finding that the
legislature did not mean to eliminate the due diligence requirement for DNA testing: “We do not read CPL 440.30 (1-a)
as granting a second opportunity to those who have failed to take advantage of available DNA testing prior to trial”);
People v. Sterling, 6 Misc. 3d 712, 719, 787 N.Y.S.2d 846, 851 (Sup. Ct. Monroe County 2004) (noting “CPL 440.10 (1) (g),
in fact, does contain the additional requirement that a motion based upon the ground of newly discovered evidence must
be made with due diligence after its discovery.”).
12. N.Y. Crim. Proc. Law § 440.30 (1-a(a)) (McKinney 2005).
The “reasonable probability” requirement is probably the most important. The court will not order a
DNA test if it believes there is no “reasonable probability” that the verdict would have been different, even if
you are right about whatever you are trying to prove with the DNA test.13 This requirement does not mean
that the court must believe that the evidence will prove that you are completely innocent, but it does impose
a significant burden on you. A court can legally deny your request for testing if it believes that your
conviction was justifiable, regardless of what a DNA test might show.14
The New York law is unusual in that it allows you to request DNA testing as part of your Article 440
motion to vacate judgment (request a new trial).15 Not all states allow you to combine the request for testing
and motion for a new trial in the same motion, and you may find that the law in your state is more difficult
to use. For instance, some states have different deadlines, called “statutes of limitations,” for filing a motion
for a new trial and for requesting post-conviction DNA testing. Your opportunity to request a new trial may
have passed the deadline even though your opportunity to request DNA testing is still technically available.
Furthermore, some states may have stricter requirements for granting a request for testing than for
granting a motion for a new trial (or vice versa).
Because there is such variation among state statutes, you must look carefully at your state’s post-
conviction DNA testing statute. When deciding whether to request post-conviction testing, consult both the
statute governing motions for new trial and the case law, if any, governing post-conviction DNA testing.16
When filing your motion, it is important that you know which pieces of evidence you want tested, show
you understand your state’s post-conviction DNA testing statute, and explain why you believe you meet
13. N.Y. Crim. Proc. Law § 440.30 (1-a(a)) (McKinney 2005); see also People v. Tookes, 167 Misc. 2d 601, 604–06,
639 N.Y.S.2d 913, 915–16 (Sup. Ct. N.Y. County 1996) (finding no reasonable probability where (1) there was no case for
mistaken identity; (2) there was clear evidence of rape; and (3) available biological specimens were unlikely to have
contributed to defendant’s case, given the equivocal results of blood and saliva tests, the defendant’s earlier failure to
pursue an enzyme analysis, and the indeterminate age of the recovered sperm).
14. See, e.g., People v. Smith, 245 A.D.2d 79, 79, 665 N.Y.S.2d 648, 649 (1st Dept. 1997) (finding that, in
prosecution for first degree rape and related crimes, post-conviction DNA tests probably would not have resulted in more
favorable verdict for defendant where (1) fact that defendant was not source of semen was consistent with victim’s
testimony that she had intercourse with her boyfriend shortly before rape and that she did not know whether defendant
ejaculated; (2) evidence of guilt was overwhelming; and (3) there was no claim of mistaken identity); People v. De
Oliveira, 223 A.D.2d 766, 767–68, 636 N.Y.S.2d 441, 443 (3d Dept. 1996) (finding defendant not entitled to DNA testing
because it was improbable that results of DNA testing would have effect on his second degree murder conviction where it
was undisputed that victim was sexually active about the time of her murder, there was no evidence that the killing was
part of a sexual encounter, and there was no critical testimony that could be seriously impeached by test results).
15. For more information on Article 440, see JLM Chapter 20, “Using Article 440 of the New York Criminal
Procedure Law to Attack Your Unfair Conviction or Illegal Sentence.”
16. The following lists all the state laws governing post-conviction DNA testing, in alphabetical order of the states:
Arizona: Ariz. Rev. Stat. Ann. § 13-4240 (2001); Arkansas: Ark. Code Ann. § 16-112-201 to -208 (2006); California: Cal.
Penal Code § 1405 (West Supp. 2006); Colorado: Colo. Rev. Stat. Ann. §§ 18-1-411 to -416 (West 2004); Connecticut:
Conn. Gen. Stat. Ann. § 54-102kk (West Supp. 2007); Delaware: Del. Code Ann. tit. 11, § 4504 (2001); District of
Columbia: D.C. Code Ann. § 22-4133 (LexisNexis Supp. 2007); Florida: Fla. Stat. Ann. § 925.11 (West Supp. 2007); Fla.
R. Crim. P. 3.853; Georgia: Ga. Code Ann. § 5-5-41 (Supp. 2007); Hawaii: Haw. Rev. Stat. Ann. § 844D-121 to -133
(LexisNexis Supp. 2007); Idaho: Idaho Code Ann. § 19-4902 (2004); Illinois: 725 Ill. Comp. Stat. Ann. 5/116-3 (West 2002
& Supp. 2007); Indiana: Ind. Code Ann. §§ 35-38-7-1 to -19 (LexisNexis Supp. 2006); Iowa: Iowa Code Ann. § 81.10
(Supp. 2007); Kansas: Kan. Stat. Ann. § 21-2512 (Supp. 2006); Kentucky: Ky. Rev. Stat. Ann. §§ 422.285, 422.287
(LexisNexis Supp. 2007); Louisiana: La. Code Crim. Proc. Ann. art. 926.1 (Supp. 2007); Maine: Me. Rev. Stat. Ann. tit.
15, §§ 2136–2138 (West Supp. 2006); Maryland: Md. Code Ann., Crim. Proc. § 8-201 (LexisNexis 2001 & Supp. 2007);
Michigan: Mich. Comp. Laws Ann. § 770.16 (West 2006); Minnesota: Minn. Stat. Ann. §§ 590.01–.06 (West 2000 & Supp.
2007); Missouri: Mo. Ann. Stat. § 547.035 (West 2002); Montana: Mont. Code Ann. § 46-21-110 (2007); Nebraska: Neb.
Rev. Stat. §§ 29-2101, 29-4126 (1995 & Supp. 2005); Nevada: Nev. Rev. Stat. Ann. §§ 176.0917–.0919 (LexisNexis Supp.
2006); New Hampshire: N.H. Rev. Stat. Ann. §§ 651-D:1 to -D:4 (LexisNexis Supp. 2005); New Jersey: N.J. Stat. Ann. §
2A:84A-32a (West Supp. 2007); New Mexico: N.M. Stat. § 31-1A-2 (Supp. 2007); New York: N.Y. Crim. Proc. Law §
440.30 (McKinney 2005); North Carolina: N.C. Gen. Stat. § 15A-269 (2005); North Dakota: N.D. Cent. Code § 29-32.1-15
(2006); Ohio: Ohio Rev. Code Ann. § 2901.07 (2006); Oklahoma: Okla. Stat. Ann. tit. 22, §§ 1360, 1371.1, 1371.2 (West
2003, Supp. 2006 & Supp. 2008); Oregon: Or. Rev. Stat. Tit. 14, Ch. 138, Prec. 138.690 (Supp. 2007). Pennsylvania: 42
Pa. Cons. Stat. Ann. § 9543.1 (West Supp. 2007); Rhode Island: R.I. Gen. Laws §§ 10-9.1-10 to 10-9.1-12 (Supp. 2006);
Tennessee: Tenn. Code Ann. §§ 40-30-110, -301 to -313 (2003 & Supp. 2005); Texas: Tex. Code Crim. Proc. arts. 64.01–.05
(2006); Utah: Utah Code Ann. §§ 78-35a-301 to -304 (2002 & Supp. 2007); Vermont: 13 V.S.A. §§ 5561-70 (Supp. 2007);
Virginia: Va. Code Ann. § 19.2-327.1 (Supp. 2003); Washington: Wash. Rev. Code Ann. § 10.73.170 (West Supp. 2007);
West Virginia: W. Va. Code Ann. § 15-2B-14 (LexisNexis 2004 & Supp. 2007); Wisconsin: Wis. Stat. Ann. §§ 974.02, .06,
.07 (West 1998 & Supp. 2006). For information about statutes versus cases, see Chapter 2 of the JLM.
every qualification set out by that statute. You should write out your state’s entire post-conviction DNA
testing statute in your motion, then go through each requirement of the statute separately and show how the
facts of your case meet each qualification. By being as clear as possible about the pieces of evidence you want
tested, why you are seeking post-conviction DNA testing, and how you meet all the requirements of your
state’s statute, your motion will have a better chance of succeeding.
(b) State Prisoners in a State without a Post-Conviction DNA Testing Statute: Filing
a Section 1983 Action
You should file a 42 U.S.C. § 1983 action to secure DNA testing only if you are a state prisoner in a state
without a post-conviction DNA testing statute. If you are a state prisoner in a state with no post-conviction
DNA statute, then you can ask the federal government to intervene on your behalf because you believe you
have a constitutional right to have access to evidence for post-conviction DNA testing.
The law on whether a prisoner has a federal constitutional right to this DNA testing is not settled, but
recent court decisions show that some courts may support a constitutional right to testing. In the 2002 case
of Harvey v. Horan,17 Judge Luttig wrote an influential concurring opinion in which he argued that prisoners
should have a right to this testing because such a right would not necessarily allow a prisoner to attack his
sentence (for example, if the DNA testing was not conclusive, the prisoner wouldn’t be able to attack his
sentence), and because in order to attack his sentence, a prisoner would have to file a separate petition
based on a different violation of his constitutional rights. Several courts have followed Judge Luttig’s
reasoning, and have determined that prisoners do have a constitutional right to testing.18 So while some
courts have stated that Section 1983 actions should not be used to request access to post-conviction DNA
testing, other courts support the use of Section 1983 motions.19
The five main arguments are often used to support the right to post-conviction DNA testing are (1) the
procedural due process right to exculpatory evidence under the doctrine of Brady v. Maryland;20 (2) the
substantive due process right to be free from arbitrary government restrictions on his life, liberty, or
property; (3) the right to access the courts and to petition the government; (4) the unconstitutionality of
continued confinement of an actually innocent person; and (5) the right a person has to seek executive
clemency (for example, to ask the governor of a state to release a prisoner even without a new trial).
17. Harvey v. Horan, 285 F.3d 298, 307–08 (4th Cir. 2002) (Luttig, J., concurring in denial of rehearing en banc).
18. See Wade v. Brady, 460 F.Supp. 2d 226, 249 (Mass. Dist. Ct. 2006) (finding, under Due Process Clause, a
“substantive right to post-conviction DNA testing in cases where testing could raise serious doubts about the original
verdict”); Osborne v. Dist. Attorney’s Office, 445 F. Supp. 2d 1079, 1081 & n.12 (D. Alaska 2006) (finding constitutional
right to testing based on circumstances of the case, including that testing was not available at time of original trial, the
low cost of the testing to the Government, and the test’s ability to either confirm guilt or provide evidence plaintiff might
use to bring a motion for a new trial) (citing Harvey, 285 F.3d 298,325 (4th Cir. 2002) (Luttig, J., concurring)).
19. A due process right of access under § 1983 has been explicitly recognized by several federal courts. See Savory
v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006) (finding suit to gain access to physical evidence for DNA testing cognizable
under § 1983); Grayson v. King, 460 F.3d 1328, 1342–43 (11th Cir. 2006) (explaining that while Eleventh Circuit
recognizes § 1983 claims for DNA testing, the right to such testing is not universal and does not exist when prisoner fails
to assert his actual innocence and when such testing, even if exculpatory, would not prove his innocence of capital
murder committed during a burglary); Osborne v. Dist. Attorney’s Office, 423 F.3d 1050, 1056 (9th Cir. 2005) (concluding
that § 1983 claim for DNA testing should be allowed to proceed); Bradley v. Pryor, 305 F.3d 1287, 1290 (11th Cir. 2002)
(supporting access to DNA testing for petitioners who use § 1983 actions); Godschalk v. Montgomery County Dist.
Attorney’s Office, 177 F. Supp. 2d 366, 369–70 (E.D. Pa. 2001) (finding that plaintiff was entitled to DNA testing despite
his detailed confession for two rapes because exculpatory DNA evidence “could well raise reasonable doubts in the minds
of jurors as to plaintiff’s guilt”). But see Harvey v. Horan, 278 F.3d 370, 374–77 (4th Cir. 2002) (Harvey I) (refusing
access to DNA evidence by claiming the evidence would be used to attack the petitioner’s sentence, which could only be
done through a habeas corpus petition); Kutzner v. Montgomery County, 303 F.3d 339, 340 (5th Cir. 2002) (using the
Harvey I decision’s reasons in order to deny a petitioner’s § 1983 request to access to DNA evidence). In the Second
Circuit, the Court of Appeals endorsed the Harvey decision in Pitera v. Mintz. 65 F. App’x 733, 735 (2d Cir. 2003)
(affirming district court’s rejection of constitutional right based on district court’s adherence to Harvey I reasoning). A
federal right of post-conviction access to evidence for the purpose of DNA testing has been explicitly recognized in the
Ninth Circuit. See Thomas v. Goldsmith, 979 F.2d 746, 749–50 (9th Cir. 1992). For a scholarly discussion of post-
conviction DNA testing and its ramifications, see generally Seth F. Kreimer & David Rudovsky, Double Helix, Double
Blind: Factual Innocence and Postconviction DNA Testing, 151 U. Pa. L. Rev. 547 (2002). For information about state
law, statutes, and case law, see Chapter 2 of the JLM, “Introduction to Legal Research.”
20. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1961) (holding that the prosecution’s
suppression of evidence was a due process violation).
(c) State Prisoners in a State without a Post-Conviction DNA Testing Statute: Filing
a Section 1983 Action
Note that your state constitution may be interpreted to afford you a right to demand post-conviction
DNA testing. For example, in Osborne v. State, although the Alaska Court of Appeals stated it has not been
decided whether there is a right to post-conviction testing under the Alaska state constitution, it articulated
three things that must be established before an individual could claim a right to post-conviction DNA
testing.21 Accordingly, you should research case law in your state to see if your state courts have interpreted
your state constitution to allow you to request post-conviction DNA testing in certain circumstances.
(d) Federal Prisoners: Filing Under the Federal Post-Conviction DNA Testing
Statute: the Justice for All Act of 2004
On October 30, 2004, the Justice for All Act was signed into federal law. Because it is a new law, there
might not be much case law about it yet in your jurisdiction. This law gives prisoners the right to request
post-conviction DNA testing, but it applies only to federal prisoners.22 If you are a state prisoner, you must
use your state’s post-conviction DNA testing statute listed in footnote sixteen (see part B(1)(a)). If your state
does not have a statute, then file a Section 1983 action (see part B(1)(b)).
The Justice for All Act works exactly like a state post-conviction DNA statute if you are serving time for
a federal crime. It lays out the standards states should have for post-conviction DNA testing, and it provides
the rules and procedures for federal prisoners (serving a prison or death sentence) applying for DNA
testing.23 The Act requires that:
(1) The applicant must assert under penalty of perjury that he is “actually innocent” of the federal
offense he is imprisoned or on death row for; or
(2) In death penalty cases, that he is “actually innocent” of another federal or state offense, if being
exonerated of this offense would give him the right to a reduced sentence or a new sentencing
hearing; and
(3) The specific evidence to be tested must not have been previously tested, except that testing using a
newer and more reliable method of testing may be requested; and
(4) The proposed DNA testing may produce new evidence raising a reasonable probability that the
applicant did not commit the offense; and
(5) The applicant must provide a current DNA sample for comparison with existing evidence.24
You should file for DNA testing within five years after the Act was passed (so by October 30, 2009) or
three years after your conviction—whichever comes first. If you do not, your motion will be considered late,
and you will have to show “good cause,” in other words, a very good reason you did not file in time.25
The government is not allowed to destroy DNA evidence from a federal criminal case while the
defendant remains incarcerated, with certain exceptions. The government may destroy DNA evidence: (1) if
the defendant waived the right to DNA testing; (2) if the defendant was notified after his conviction became
final that the evidence may be destroyed and did not file a motion for testing; (3) if a court has denied a
21. See, e.g., Osborn v. State, 163. P.3d 973 (Alaska Ct. App. 2007) (holding that to claim entitlement to post-
conviction DNA testing, a defendant at minimum would have to show (1) his conviction rested primarily on eyewitness
identification, (2) that there was demonstrable doubt concerning this identification, and (3) that scientific testing of
physical evidence would likely be conclusive on the issue of whether the defendant was the perpetrator of the crime).
22. Lebron v. Sanders, No. 02 Civ. 6327 (RPP), 2005 U.S. Dist. LEXIS 35588, at *1 (S.D.N.Y. Dec. 23, 2005)
(unpublished) (advising petitioner that the Justice for All Act “applies only to persons ‘who are under sentence of
imprisonment or death pursuant to a conviction for a Federal offense’” and that “his demand for DNA testing can be
sought in state proceedings”).
23. 18 U.S.C. § 3600 (2000 & Supp. V 2005). The Southern District of New York held a state prisoner could not
seek relief under the Justice for All Act of 2004. A state prisoner in New York must seek relief under New York’s statute.
24 . 18 U.S.C. § 3600 (2000 & Supp. V 2005); see also the Death Penalty Information Center,
http://www.deathpenaltyinfo.org/article.php?scid=40&did=1234#subA (last visited March 4, 2008).
25. 18 U.S.C. § 3600(a)(10)(B) (2000 & Supp. V 2005). In addition to showing good cause, you must also show (1)
that you were incompetent and that the incompetence was the reason that you did not file in a timely manner; (2) that
the evidence to be tested is newly discovered DNA evidence; and (3) that you are not appealing to assert your innocence
but that to deny the appeal would lead to a manifest injustice. See also the Death Penalty Information Center,
http://www.deathpenaltyinfo.org/article.php?scid=40&did=1234#subA (last visited March 4, 2008).
motion for testing; or (4) if the evidence has already been tested and the results included the defendant as
the source. If the evidence is large or bulky, the government may preserve a representative sample.26
If you assert your innocence and the DNA evidence does not show you to be innocent, the court can hold
you in contempt and if you are convicted of making false assertions, your term of imprisonment will be
extended by at least three years.27 However, if the evidence excludes you as the source of the DNA evidence,
then you can petition for a new trial, which shall be granted when the test results, considered with all other
evidence in the case, establish by compelling evidence that a new trial would result in an acquittal.28 Also, as
a defendant, you may file a motion for a new sentencing hearing if evidence of an offense was admitted
during a federal death sentencing hearing and exoneration of that offense would entitle you to a reduced
sentence or to a new sentencing proceeding.29
D. Motion for a New Trial Based on Newly Discovered Evidence
Once you have succeeded in your motion to secure DNA evidence, gotten the DNA testing you asked for,
and have results that point to your innocence, it is time to file a motion for a new trial. Every state, and the
federal government, allows you to file a motion for a new trial based on newly discovered evidence. Because
DNA technology is so new, the results of DNA analysis may be considered “newly discovered evidence,” even
if the substance being analyzed is not itself newly discovered.
Every jurisdiction has a test that courts apply in deciding whether to grant a motion for a new trial
based on newly discovered evidence. In the federal system, 30 courts traditionally ask five questions to
determine whether to grant a motion for a new trial:
(1) Was the evidence available before the trial?
(2) Could it have been discovered before the trial through the exercise of due diligence?31
(3) Is the evidence “material” (relevant) to the issue you raise in your motion?
(4) Is the evidence merely “cumulative” (does it only support the other similar evidence already
admitted at trial) or “impeaching” (does it only contradict other evidence admitted at trial)?; and
(5) Would the evidence probably change the result if a new trial were granted?32
State courts use similar tests to determine whether to grant a motion for a new trial. New York courts
have historically used a formula like the federal test.33 While the trial court is bound by these questions, it
has some discretion to decide whether to grant a new trial. These motions are extraordinary, so courts do not
grant them freely, and appellate courts rarely reverse a trial judge’s decision to deny a new trial motion.
Note also that most states, as well as the federal government, limit the period of time after your
conviction during which you may file such a motion.34 These time limits, called the “statute of limitations,”
26. 18 U.S.C. § 3600A (2000).

27. 18 U.S.C. §§ 3600 (2000)(f)(2),(3).
28. 18 U.S.C. § 3600 (2000)(g)(2).
29. 18 U.S.C. § 3600 (2000)(g)(2)(B).
30. In federal courts, Rule 33 of the Federal Rules of Criminal Procedure authorizes a request for a new trial. Rule
33 allows the court to grant a new trial on defendant’s motion if “the interest of justice so requires.” Fed. R. Crim. P. 33.
31. Due diligence in this context means that you and/or your attorney should have been able to find the evidence
had you looked for it. There should be a reason why you were not able to find the evidence before trial, and you should
make this known to the court.
32. See John A. Glenn, Annotation, What Constitutes “Newly Discovered Evidence” Within Meaning of Rule 33 of
Federal Rules of Criminal Procedure Relating to Motions for New Trial, 44 A.L.R. Fed. 13 (2002); see also United States
v. Carlone, 603 F.2d 63, 66–67 (8th Cir. 1979) (using this standard to deny a new trial when a newly discovered defense
witness claimed F.B.I. agents asked him to plant weapons and drugs in the defendant’s home); Pitts v. United States,
263 F.2d 808, 810–11 (9th Cir. 1959) (going through all five questions to show that evidence submitted by defense would
not meet any of the standards, even if it had been newly discovered); United States v. Bertone, 249 F.2d 156, 160 (3rd
Cir. 1957) (rejecting motion for a new trial based on testimony from newly available witnesses because the witnesses
were available and known by defendant during trial); United States v. Marachowsky, 213 F.2d 235, 238–39 (7th Cir.
1954) (applying this test to reject three witnesses newly brought by the defense to secure a new trial).
33. See People v. Priori, 164 N.Y. 459, 472, 58 N.E. 668, 672 (1900) (using a six-step test to deny the defendant’s
motion for a new trial, and splitting question four of the federal test into two separate questions about cumulative and
impeaching evidence).
34. Herrera v. Collins, 506 U.S. 390, 410–11, 113 S. Ct. 853, 865–66, 122 L. Ed. 2d 203, 223 (1993), surveys state
laws governing motions for new trials for newly discovered evidence; while some states required filing a motion within
weeks of conviction, some provide a time limit of one, two, or three years, and a few states have no time limit. Since
Herrera, the federal statute of limitations for filing a motion based on new evidence was extended from two to three
are based on the idea that evidence becomes less reliable over time. If the time has expired to file for this
motion, you must try other, less direct, post-conviction remedies (such as a writ of habeas corpus, discussed
in Section 3 below), which may offer a longer statute of limitations period.
To file your motion on time, you need the “newly discovered evidence.” For you, this is the DNA analysis
of the biological evidence at issue. Because the value of DNA evidence in the criminal justice system has
become increasingly recognized, it is becoming easier for prisoners to obtain testing. In the last few years,
many states have enacted laws that create a limited right for people convicted of crimes to have DNA testing
performed on evidence and to have the results of that test admitted in court.
Depending on your jurisdiction’s statute, you may be able to file a motion for a new trial based on newly
discovered evidence if biological evidence from the crime for which you were convicted still exists, but:
(1) DNA testing was never performed on it;
(2) DNA analysis was performed, but the results were not admitted in court (because, for example, DNA
testing was not regarded as reliable evidence at the time of your trial); or
(3) DNA analysis was performed, but the methods then used to analyze the evidence are now known to
be unreliable (for example, microscopic hair comparison).
If you pleaded guilty at trial, you may be denied your motion for a new trial based on newly discovered
evidence and/or your request for DNA testing. This may be so even if the statute does not specifically say so.
The New York law, for example, does not explicitly bar people who pleaded guilty from requesting DNA
testing, but courts have held those who pleaded guilty have admitted their factual guilt and have waived the
right to a new trial based on newly discovered evidence.35 You should consult both your state’s statutes and
case law to determine whether a guilty plea prevents you from seeking a new trial based on DNA evidence.
One further point to keep in mind is that even if your state has not passed a statute providing for post-
conviction DNA testing, this does not mean that you cannot request a test. Courts will probably treat such a
request as a matter of discretion and will probably determine whether to grant it based on a combination of
factors similar to the ones listed in the various state statutes that have been passed.
E. Habeas Corpus Relief
You might get post-conviction relief through petitioning for a writ of habeas corpus, though it is
unlikely.36 A habeas corpus writ is a court’s written order demanding a prisoner be brought before the court
to see whether his imprisonment or detention is illegal. Unlike most post-conviction DNA cases, in which
motions are made to find evidence, in habeas cases it is assumed you already have the evidence to exonerate
you.37 So, this remedy is not available unless the biological evidence from the crime scene has already been
subjected to DNA testing. Another problem federal habeas corpus petitioners encounter is it is traditionally
assumed relief cannot be granted unless a constitutional error occurred at trial.
You may request access to crime scene evidence through the right to demonstrate actual innocence in
habeas corpus review. This idea is based on Herrera v. Collins, in which the Supreme Court left open the
possibility that “a truly persuasive post-trial demonstration of ‘actual innocence’” could lead to prisoner relief
in the event there was not a state-sanctioned review of the evidence.38 In a Supreme Court case called House
v. Bell, the Court decided that in some cases where new evidence would have been likely to cast a reasonable
years. Fed. R. Crim. P. 33.

35. See People v. Jackson, 163 Misc. 2d 224, 226, 620 N.Y.S.2d 240, 241 (Sup. Ct. N.Y. County 1994) (“By pleading
guilty, the defendant admitted his factual guilt and waived his right to confront his accusers. He may not now seek to
defend himself against those accusers by a motion based upon newly discovered evidence.”).
36. See Chapter 13 of the JLM, “Federal Habeas Corpus,” for more information on habeas corpus petitions.
37. If you are already bringing a petition for habeas corpus on other grounds, then you can also request DNA
testing; however, because a petition for habeas corpus is a difficult route to take to seek testing, it is only recommended
if you are already filing a habeas petition. See Cherrix v. Braxton, 131 F. Supp. 2d 756, 761–62 (E.D. Va. 2001)
(defending decision to order DNA testing on previously tested material due to technological advances and principle that
newly-discovered DNA evidence would “illuminate” federal habeas claim); Thomas v. Goldsmith, 979 F.2d. 746, 749–50
(9th. Cir. 1992) (requiring state to turn over allegedly exculpatory DNA evidence in order to allow the prisoner to make a
colorable showing of innocence and overcome procedural default on habeas claim).
38. See Herrera v. Collins, 506 U.S. 390, 417, 113 S. Ct. 853, 869, 122 L. Ed. 2d 203, 227 (1993) (noting that in
order to support “finality in capital cases” and lessen the burden of States having to retry a large number of cases “based
on often stale evidence,” the threshold for such a right would be “extraordinarily high”).
doubt on a state prisoner’s conviction, that state prisoner may file for a federal habeas corpus writ, even if
the laws of the state where he was convicted would have normally barred a federal habeas filing.39
In connection with habeas review, you may find success through the Brady obligation (also known as the
Brady material doctrine).40 Under this duty, the prosecution in a criminal case must reveal any evidence
that may prove your innocence. Note, however, the evidence referred to is the results from DNA testing, not
the material being tested. If (1) evidence was subjected to DNA testing; (2) the prosecution withheld the
results of that test from you; and (3) the results may have helped to prove your innocence, you may have a
claim for habeas corpus relief. But, if no DNA analysis was performed on the material, you cannot allege a
Brady violation based on the prosecution’s withholding of that evidence (since the “evidence” did not exist).41
The Supreme Court has interpreted Brady not to impose a constitutional duty on the state to perform
DNA tests on evidence, or to preserve evidence so it can be tested.42 But, this rule changed when Congress
passed the Justice for All Act of 2004.43 The Justice for All Act imposes uniform rules for the preservation of
evidence for DNA testing in federal crimes but in its current form states violation of its evidence
preservation procedures does not give rise to damage actions.44 But, whether a violation of those procedures
would be the basis for other claims for relief, like under Section 1983, is unclear.
F. Legal Assistance for Those Seeking Post-Conviction DNA Testing
If you do not have a lawyer and want to seek post-conviction DNA testing, there are many not-for-profit
organizations—called “innocence projects”— that might help. Note that because these organizations receive
huge numbers of requests, they are often forced to choose a few cases over others that may be just as worthy.
Appendix A below lists organizations that may help you use DNA evidence to prove your innocence. To
have one of these offices consider your case, you should mail a brief factual summary of the case and a list of
the evidence used against you. The case must involve biological evidence (semen, blood, saliva, skin, sweat,
or hair). If possible, you should indicate what evidence you want to test, why it would be important to your
case, and the last known location of that evidence (if you include this information, it may help the attorneys
get back to you quickly). Also, include your full name, mailing address, and prison identification number.
G. Conclusion
If you believe DNA can prove your innocence, there are legal options you may be able to use. The legal
options differ depending on whether you are in state versus federal prison, or whether you are in a state
with or without a post-conviction DNA testing statute. Appendix A provides a list of organizations with
expertise in helping prisoners seek post-conviction testing. These organizations may be able to help you.
39. House v. Bell, 547 U.S. 518, 126 S. Ct. 2064, 2076–77, 165 L. Ed. 2d 1, 21 (2006).
40. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215, 218 (1963) (holding “the
suppression by the prosecution of evidence favorable to an accused … violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”); United States v. Agurs,
427 U.S. 97, 110, 96 S. Ct. 2392, 2401, 49 L. Ed. 2d 342, 353–54 (1976) (“[T]here are situations in which evidence is
obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a
specific request.”). The Agurs standards explaining when evidence must be disclosed are no longer good law, but the idea
behind them is. See United States v. Bagley, 473 U.S. 667, 675, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 489–90 (1985)
(holding the prosecutor is required to “disclose evidence favorable to the accused that, if suppressed, would deprive the
defendant of a fair trial”). See Chapter 13 of the JLM, “Federal Habeas Corpus,” for information on the Brady duty.
41. But see Godschalk v. Montgomery County Dist. Attorney’s Office, 177 F. Supp. 2d 366, 369–70 (E.D. Pa. 2001)
(“since DNA testing of the genetic material could indeed provide material exculpatory [Brady] evidence for a jury to
consider along with the inculpatory evidence of plaintiff’s detailed confession … plaintiff has a due process right of access
to the genetic material for the limited purpose of DNA testing”).
42. See Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988) (holding that
“failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected
to tests, the results of which might have exonerated the defendant” does not violate the Due Process Clause).
43. 18 U.S.C. § 3600A (2000).
44. 18 U.S.C. § 3600A (2000).
APPENDIX A
PROJECTS THAT MAY OFFER ASSISTANCE IN OBTAINING DNA TESTING—BY

STATE
Alaska Colorado
Innocence Project Northwest Colorado Innocence Project
University of Washington School of Law James E. Scarboro
William H. Gates Hall, P.O. Box 85110 P.O. Box 2909
Seattle, WA 98105 Denver, CO 80201-2909
E-mail: [email protected] Phone: 303-863-2311
Phone: 206-616-5780 Fax: 303-832-0428
Fax: 206-685-2388
Connecticut
Arizona Connecticut Innocence Project
Arizona Justice Project c/o McCarter & English
Larry Hammond, Chair City Place 1, 36th Floor
2929 N. Central Ave., Suite 2100 185 Asylum Street
Phoenix, AZ 85012 Hartford, Connecticut 06103
Phone: 602-640-9361 Phone: 860-275-6140
Fax: 602-640-6076 Fax: 860-275-6141
Northern Arizona Justice Project New England Innocence Project

Robert Schehr, Chair Project Coordinator
Department of Criminal Justice Goodwin Procter LLP
Northern Arizona University Exchange Place
P.O. Box 15005 53 State Street
Flagstaff, AZ 86011-5005 Boston, MA 02109
Phone: 928-523-7082 Phone: 617-305-6505
Arkansas Delaware
Arkansas Innocence Project Office of the Public Defender
James Hensley, Jr. Lisa M. Schwind, Director
P.O. Box 639 Carvel State Building
Cabot, Arkansas 72023 820 French Street, 3rd floor
Phone: 501-843-2770 Wilmington, DE 19801
Phone: 302-577-5125
California (Northern)
Northern California Innocence Project District of Columbia
Santa Clara University Mid-Atlantic Innocence Project
425 El Camino Real 4801 Massachusetts Avenue, NW
Santa Clara, CA 95053-0422 Washington, DC 20016-8184
Phone: 408-554-1945 Phone: 202-274-4199
Fax: 408-554-5440 Fax: 202-730-4733.
California (Southern) Florida

California Innocence Project Innocence Project of Florida, Inc.
California Western School of Law 1100 East Park Avenue
225 Cedar Street Tallahassee, FL 32301
San Diego, CA 92101 Phone: 850-561-6767
Phone: 619-525-1485 Fax: 850-561-5077
Fax: 619-615-1443
Georgia Iowa
Georgia Innocence Project Nebraska Innocence Project
752 1/2 North Highland Avenue P.O. Box 24183
Atlanta, Georgia 30306 Omaha, NE 68124-0183
Phone: 404-872-8236 Phone: 402-341-7954
Fax: 404-872-8240
Wisconsin Innocence Project
Hawaii Frank J. Remington Center
Hawai’i Innocence Project University of Wisconsin Law School
California Western School of Law 975 Bascom Mall
225 Cedar Street Madison, WI 53706-1399
San Diego, CA 92101 Phone: 608-263-7461
Phone: 619-525-1485
Kansas
Idaho Midwestern Innocence Project
Idaho Innocence Project Ken Miller, Executive Director
Boise State University 6320 Brookside Plaza
1910 University Drive P.O. Box 1500
Boise, ID 83725-1515 Kansas City, MO 64113
Phone: 816-221-2166 OK.
Innocence Project Northwest
University of Washington School of Law Kentucky
William H. Gates Hall, Suite 265 University of Kentucky Innocence Project
P.O. Box 85110 Roberta M. Harding, Professor of Law
Seattle, WA 98105 University of Kentucky College of Law
E-mail:[email protected] 209 Law Building
Phone: 206-616-5780 Lexington, KY 40506-0048
Fax: 206-685-2388
Kentucky Innocence Project
Illinois Gordon Rahn, Project Coordinator
Center on Wrongful Convictions 100 Fair Oaks Lane, Suite 301
Northwestern University School of Law Frankfort, KY 40601 Phone: 502-564-3948
357 East Chicago Avenue Fax: 502-564-3949
Chicago, IL 60611
Phone: 312-503-3100 Louisiana
Fax: 312-908-0529 Innocence Project New Orleans
636 Baronne Street, 2nd Floor
Indiana New Orleans, LA 70113
Innocence Project of Indiana Phone: 504-522-4766 or 504-522-4767
Indiana University School of Law Fax: 504-558-0378
Fran Hardy, Professor of Law
735 West New York Street Innocence Project of Northwest Louisiana
Indianapolis, IN 46202 400 Travis Street, Suite 1222
Phone: 317-274-5551 Shreveport, LA 71101
Wisconsin Innocence Project Maine

Frank J. Remington Center New England Innocence Project
University of Wisconsin Law School Project Coordinator
975 Bascom Mall Goodwin Procter LLP
Madison, WI 53706-1399 Exchange Place
Phone: 608-263-7461 53 State Street
Boston, MA 02109
Phone: 617-305-6505
Maryland Missouri
Mid-Atlantic Innocence Project Midwestern Innocence Project
4801 Massachusetts Avenue, NW 6320 Brookside Plaza #1500
Washington, DC 20016-8184 Kansas City, MO 64113
Phone: (202) 274-4199 Phone: 816-221-2166
Fax: (202) 730-4733
Montana
Massachusetts Innocence Project Northwest
New England Innocence Project University of Washington School of Law
Project Coordinator William H. Gates Hall, Suite 265
Goodwin Procter LLP P.O. Box 85110
Exchange Place Seattle, WA 98105
53 State Street Phone: 206-616-5780
Boston, MA 02109 Fax: 206-685-2388
Phone: 617-305-6505
Nebraska
Michigan Nebraska Innocence Project
Thomas M. Cooley Innocence Project P.O. Box 24183
300 S. Capitol Ave. Omaha, NE 68124-0183
P.O. Box 13038 Phone: 402-341-7954
Lansing, MI 48901
Phone: 517-371-5140, ext. 5764 Nevada
Rocky Mountain Innocence Center
Wisconsin Innocence Project 358 South 700 East, Box B235
Frank J. Remington Center Salt Lake City, UT 84103
University of Wisconsin Law School Phone: 801-355-1888
975 Bascom Mall
Madison, WI 53706-1399 New Hampshire
Phone: 608-263-7461 New England Innocence Project
Goodwin Procter LLP
Minnesota Exchange Place, 53 State Street
Innocence Project of Minnesota Boston, MA 02109
Erika Applebaum, Executive Director Phone: 617-305-6505
Hamline University School of Law
1536 Hewitt Avenue New Jersey
St. Paul, MN 55104 Centurion Ministries
Phone: 651-523-3152 Jim McCloskey
Fax: 651-523-2967 221 Witherspoon Street
Princeton, NJ 08542
Wisconsin Innocence Project
Frank J. Remington Center New Mexico
University of Wisconsin Law School New Mexico Innocence and Justice Project
975 Bascom Mall Contact: Professors April Land,
Madison, WI 53706-1399 Barbara Bergman, and Rob Schwartz
Phone: 608-263-7461 University of New Mexico School of Law
1117 Stanford NE
Mississippi Albuquerque, NM 87131
Innocence Project New Orleans Phone: 505-277-5265
Case Review Manager
636 Baronne Street, 2nd Floor
New Orleans, LA 70113
Phone: 504-522-4766 or 4767
Fax: 504-558-0378
New York Oklahoma

Innocence Project Oklahoma Indigent Defense System
Benjamin N. Cardozo School of Law DNA Forensic Testing Program
100 Fifth Avenue, 3rd Floor P.O. Box 926
New York, NY 10011 Norman, OK 73070
Phone: 212-364-5340 Phone: 405-801-2666
Serves New York City, Westchester County Fax: 405-801-2690
Pace Post-Conviction Project Oregon

78 North Broadway, Room G210 Innocence Project Northwest
White Plains, NY 10603 University of Washington School of Law
William H. Gates Hall, Suite 265
New York State Defenders Association P.O. Box 85110
194 Washington Street, Suite 500 Seattle, WA 98105
Albany, NY 12210 Phone: 206-616-5780
Phone: 518-465-3524 Fax: 206-685-2388
Second Look Program Pennsylvania

Professor Will Hellerstein Innocence Institute
Brooklyn Law School Point Park College, Dept. of Journalism and
250 Joralemon Street Mass Communications
Brooklyn, NY 11201 201 Wood Street
Pittsburgh, PA 15222
North Carolina Phone: 412-765-3164
North Carolina Center on Actual Innocence Fax: 412-392-3176
Prof. Richard Rosen
Duke University School of Law Duquesne Law Innocence Project
Durham, NC 27708-0360 Professor John T. Rago, Director
Phone: 919-962-8505 600 Forbes Avenue, 632 Fisher Hall
North Dakota Phone: 412-396-4704
Innocence Project of Minnesota Fax: 412-396-5287
Erika Applebaum, Executive Director
Hamline University School of Law Rhode Island
1536 Hewitt Avenue New England Innocence Project
St. Paul, MN 55104 Goodwin Procter LLP
Phone: 651-523-3152 Exchange Place, 53 State Street
Fax: 651-523-2967 Boston, MA 02109
Attn: Intake Coordinator
Ohio Phone: 617-305-6505
Lois and Richard Rosenthal Institute for
Justice/Ohio Innocence Project South Carolina
University of Cincinnati College of Law Palmetto Innocence Project
P.O. Box 210040 P.O. Box 11623
Cincinnati, OH 45221-0040 Columbia, SC 29211
Phone: 513-556-0752 Phone: 803-779-0005
Innocence Institute South Dakota

Point Park College, Dept. of Journalism and Innocence Project of South Dakota
Mass Communications University of South Dakota School of Law
201 Wood Street 414 E. Clark Street
Pittsburgh, PA 15222 Vermillion, SD 57069
Phone: 412-765-3164
Fax: 412-392-3917
Innocence Project of Minnesota Washington, DC 20016-8184

Erika Applebaum, Executive Director Phone: 202-274-4199
Hamline University School of Law Fax: 202-730-4733
1536 Hewitt Avenue
St. Paul, MN 55104 Washington
Phone: 651-523-3152 Innocence Project Northwest
Fax: 651-523-2967 University of Washington School of Law
William H. Gates Hall, Suite 265
Tennessee P.O. Box 85110
Tennessee Innocence Project Seattle, WA 98105
c/o UT - Pro Bono Phone: 206-616-5780
University of Tennessee Legal Clinic Fax: 206-685-2388
1505 West Cumberland Avenue
Knoxville, TN 37996 Idaho Innocence Project
Phone: 865-974-9791 Boise State University
1910 University Drive
Texas Boise, ID 83725-1515
University of Houston Innocence Network
David Dow, Professor West Virginia
University of Houston Law Center Innocence Project at West Virginia University
100 Law Center P.O. Box 6130
Houston, TX 77204-6060 Morgantown, WV 26506
Phone: 713-743-7552 Phone: 304-293-7249
Texas Center for Actual Innocence Wisconsin

University of Texas School of Law Wisconsin Innocence Project
727 East Dean Keeton Street Frank J. Remington Center
Austin, TX 78705 University of Wisconsin Law School
Phone: 512-232-1463 975 Bascom Mall
Madison, WI 53706-1399
Innocence Project of Texas Phone: 608-263-7461
1304 Texas Ave
Lubbock, Texas 79401 Wyoming
Phone: 806-744-6525 Rocky Mountain Innocence Center
Fax: 806-744-6480 358 South 700 East, Box B235
Salt Lake City, UT 84103
Utah Phone: 801-355-1888
Rocky Mountain Innocence Center
358 South 700 East, Box B235
Salt Lake City, UT 84103
Phone:801-355-1888
Vermont
New England Innocence Project
Project Coordinator
Goodwin Procter LLP
Exchange Place
53 State Street
Boston, MA 02109
Phone: 617-305-6505
Virginia
Mid-Atlantic Innocence Project
4801 Massachusetts Avenue, NW
Manual
Chapter 12:
Appealing Your Conviction
Based on Ineffective Assistance of
Counsel

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 12
APPEALING YOUR CONVICTION BASED ON INEFFECTIVE

ASSISTANCE OF COUNSEL
A. Introduction
Many prisoners appeal their conviction for ineffective assistance of counsel. Ineffective
assistance requires two things. First, your lawyer did not act in a way following professional
standards for lawyers. Second, there must be a “reasonable probability” the lawyer’s poor
representation negatively affected the outcome of your case.1 The right to effective counsel
comes from the Sixth and Fourteenth Amendments of the U.S. Constitution. If you are in
New York State, Article I, Section 6 of the New York State Constitution also protects that
right.2 There are different reasons why counsel can be considered ineffective and different
ways to appeal your conviction based on this claim. This Chapter summarizes how to bring
these claims, but other JLM Chapters, listed in footnote 3, can give you more detailed
procedural information.
B. Ways to Claim Ineffective Counsel
There are three general ways to attack your conviction: direct post-conviction appeal,
state post-conviction appeal, and federal and/or state habeas corpus. Other JLM Chapters
cover these topics.3 In New York, if you are appealing your conviction based on ineffective
counsel at the trial level, you should raise your claim (1) in your direct appeal4 and then (2)
in your federal habeas petition in federal court.5 If you are filing a claim in New York state
court and there are not enough facts in the record to let the court review an ineffectiveness
claim on appeal, you should file an Article 440 motion in New York state court. 6 It is
1. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). It is
important to note the “outcome” that might be negatively affected by attorney ineffectiveness is not
limited to the trial outcome. For example, you might claim your lawyer’s ineffectiveness caused you to
proceed to trial when you should have accepted a plea, or to accept a plea when you should have gone to
trial. Or, you might claim your lawyer’s ineffectiveness caused you to forego filing an appeal when you
should have filed an appeal, or caused you to lose your appeal when you might have won.
2. Even if you do not live in New York, your state constitution may also provide the right to
effective counsel. Regardless of whether your state constitution has a provision regarding the right to
counsel, the Sixth and Fourteenth Amendments of the U.S. Constitution give you a federal right to
effective counsel.
3. See the following JLM Chapters for more information: Chapter 9, “Appealing Your Conviction
or Sentence” (direct appeals); Chapter 20, “Using Article 440 of the New York Criminal Procedure Law
to Attack Your Unfair Conviction or Illegal Sentence” (state post-conviction); Chapter 13, “Federal
Habeas Corpus;” and Chapter 21, “State Habeas Corpus.”
4. In New York, an ineffective assistance claim that is based only on the trial record must be
made in the direct appeal. See People v. Love, 57 N.Y.2d 998, 1000, 443 N.E.2d 486, 487, 457 N.Y.S.2d
238, 239 (1982) (“Here ... we cannot conclude that defendant's counsel was ineffective simply by
reviewing the trial record without the benefit of additional background facts that might have been
developed had an appropriate after-judgment motion been made pursuant to CPL 440.10.”); People v.
Brown, 45 N.Y.2d 852, 853–54, 382 N.E.2d 1149, 1149–59, 410 N.Y.S.2d 287, 287 (1978) (“Generally,
the ineffectiveness of counsel is not demonstrable on the main record, but in this case it is.”); People v.
Terry, 44 A.D.3d 1157, 1159, 845 N.Y.S.2d 145, 147 (3d Dept. 2007) (holding defendant must raise his
ineffective assistance claim on direct appeal rather than in an Article 440 motion).
5. If you are not in New York, you may not be able to file both a direct appeal and a federal
habeas claim. See Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005) (holding that “a defendant
who chooses to make an ineffective-assistance argument on direct appeal cannot present it again on
collateral review”).
6. Note that for claims of ineffective assistance of trial counsel, an Article 440 motion, and not a
important to note that there is no Sixth Amendment right to counsel before you are actually
charged with a crime, so you can only claim ineffective counsel under the Sixth Amendment
starting from the time at which charges were brought against you.7
You are also entitled to have effective counsel during a first appeal as of right.8 A finding
of ineffective counsel at this level can lead to a de novo (new) appeal and, sometimes, a
reversal of your conviction.9 If you are appealing your conviction based on ineffective counsel
at the appellate level, you should file the appropriate state post-conviction motion in your
state court or a federal habeas petition. In New York, the appropriate procedure for filing an
ineffective appellate counsel claim is to file a coram nobis motion in the court where the
appeal was filed, 10 but each state has its own state post-conviction appeals procedure. 11
There is, however, no federal constitutional right to counsel in state post-conviction
proceedings, so a claim of ineffective counsel at the post-conviction level based on the U.S.
Constitution is not likely to succeed.12 But, some states do have a right to counsel in state
post-conviction proceedings based on state statutory or constitutional law, and some states
state habeas petition, is the appropriate procedural method in New York. See Chapter 20 of the JLM
for further discussion of Article 440. A state habeas petition may be the appropriate procedure in other
states. See, e.g., State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.
Ct. 2922, 91 L .Ed. 2d 550 (1986) (proper procedural vehicle for raising claim of ineffective counsel in
Connecticut is generally a state habeas petition).
7. Moran v. Burbine, 475 U.S. 412, 430–31, 106 S. Ct. 1135, 1145–46, 89 L. Ed. 2d 410, 427
(1986) (holding “the Sixth Amendment right to counsel does not attach until after the initiation of
formal charges”); People v. Claudio, 83 N.Y.2d 76, 80–81, 629 N.E.2d 384, 386, 607 N.Y.S.2d 912, 914
(1993) (holding the right under both the U.S. Constitution and the New York state constitution to
effective counsel does not attach until the start of adversarial judicial proceedings). But, note some
state constitutions grant broader rights to counsel than does the U.S. Constitution. See People v.
McCauley, 163 Ill. 2d 414, 423–24, 206 Ill. Dec. 671, 645 N.E.2d 923, 929 (1994) (giving a broader
reading to article 1, section 10 of the Illinois constitution than the 5th Amendment right against self-
incrimination as discussed in Moran v. Burbine). Also, there is a right to counsel under the 5th
Amendment for those subject to a custodial interrogation, even before formal charges are brought. See
Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 1626, 16 L. Ed. 2d 694, 721 (1966). One can
argue this right to counsel also encompasses the right to effective counsel. But see Sweeney v. Carter,
361 F.3d 327, 333 (7th Cir.), cert. denied, 543 U.S. 1020, 125 S. Ct. 657, 160 L. Ed. 2d 496 (2004) (“[A]s
far as we can tell, the Supreme Court has not mentioned effective assistance of counsel (in the
Strickland sense) and the Fifth Amendment in the same breath, let alone set forth a clearly established
right to that effect.”).
8. Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 836, 83 L. Ed. 2d 821, 830 (1985)
(establishing that the defendant’s 14th Amendment right to effective counsel at the trial level extends
to a first appeal as of right); Douglas v. California, 372 U.S. 353, 357–58, 83 S. Ct. 814, 816–17, 9 L. Ed.
2d 811, 814–15 (1963) (requiring appointment of counsel for an indigent defendant regardless of the
merits of the appeal).
9. See, e.g., McHale v. United States, 175 F.3d 115 (2d Cir. 1999) (reinstating appeal upon
finding that appellate counsel’s ineffectiveness caused dismissal of original appeal).
10. See People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987).
11 . In most states, ineffective appellate counsel can be raised as part of your state post-
conviction motion, but you should check your state’s laws. See, e.g., State v. Davis, 2008 Ohio 4608
(2008) (holding Ohio statute requires ineffective appellate counsel claims be made only to the state
appellate court, rather than to the trial court in a post-conviction petition). For information on coram
nobis motions, see Chapter 9 of the JLM, “Appealing Your Conviction or Sentence.”
12. Coleman v. Thompson, 501 U.S. 722, 752–54, 111 S. Ct. 2546, 2566–67, 115 L. Ed. 2d 640,
670–72 (1991) (citing Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987);
Murray v. Giarratano, 492 U.S. 1, 109 S. Ct. 2765, 106 L. Ed. 2d 1 (1989)). If the Supreme Court
eventually recognizes a right to post-conviction counsel, one might expect that right to reside in the
Due Process and/or Equal Protection Clauses of the Fourteenth Amendment. See Evitts v. Lucey, 469
U.S. 387, 404–05, 105 S. Ct. 830, 839–41, 83 L. Ed. 2d 821, 834–35 (1985) (discussing contribution of
each clause to the constitutional right to counsel on direct appeal). Thus, a claim that post-conviction
counsel was ineffective ought to be based on these constitutional provisions.
allow courts to require effective counsel in state post-conviction proceedings when it is in the
interest of justice.13 If you are in a state that does have a right to counsel in state post-
conviction hearings, you may also have a right to effective representation in those hearings.14
As discussed below, you can sometimes use an ineffective counsel claim to raise other
procedurally defaulted claims.15 You must raise your ineffective counsel claims within the
proper time and with the proper procedure. If not raised during the proper time and using
the proper procedure, your claim could be barred.16 In federal court and in many states,
ineffective assistance claims should not be raised on direct appeal because the trial record
usually does not contain enough information to evaluate the claim; instead, they should be
made in a collateral proceeding, allowing the trial court to hear testimony specifically about
the adequacy of your representation. If this happens, you can try to argue your appellate
counsel was ineffective for not raising an ineffective trial counsel claim. If you had the same
lawyer at trial and on direct appeal, failure to raise ineffectiveness on direct appeal does not
procedurally bar you from raising the claim in a post-conviction proceeding.17 But, in some
13. For example, the Alaska post-conviction statute provides for counsel in one post-conviction
appeal. Alaska Stat. § 18.85.100(c) (2004). Florida does not provide a statutory right, but the court may,
in the interest of justice, determine whether, under the factual situation then under review, the
prisoner should have the assistance of counsel. State v. Weeks, 166 So. 2d 892, 897 (Fla. 1964). You
should research your state’s post-conviction act and relevant case law to see if such a right exists in
your state.
14. See, e.g., Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992) (finding statutory right to
counsel on habeas petition encompassed right to effective counsel, which could be vindicated by means
of a second habeas petition); compare Moore v. Commonwealth, 199 S.W.3d 132, 139 (Ky. 2006)
(reinstating appeal from denial of post-conviction relief, on grounds that statutory right to post-
conviction counsel included right to competent counsel, but cautioning that “[o]ur holding ... should not
be construed as sanctioning” the filing of a subsequent post-conviction motion based on previous post-
conviction counsel’s ineffectiveness).
15. Procedural default occurs when your lawyer did not properly raise a claim or objection in
earlier proceedings and, as a result, you are not able to raise this claim on appeal. See Chapter 13 of
the JLM, “Federal Habeas Corpus,” for a further explanation of procedural default.
16. In a New York claim, courts have said that an Article 440 motion is usually the correct way
to raise an ineffective assistance of counsel claim. People v. Brown, 45 N.Y.2d 852, 853–54, 382 N.E.2d
1149, 1149–59, 410 N.Y.S.2d 287, 287 (1978) (“Generally, the ineffectiveness of counsel is not
demonstrable on the main record. ... Consequently, in the typical case it would be better, and in some
cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary
exploration by collateral or post-conviction proceeding brought under CPL 440.10.”). If matters outside
of the trial record must be examined, such as reasons for counsel’s actions, New York courts require you
to raise an ineffective counsel claim in an Article 440 motion, rather than in a motion to set aside the
verdict or in a direct appeal. See People v. Love, 57 N.Y.2d 998, 1000, 443 N.E.2d 486, 487, 457
N.Y.S.2d 238, 239 (1982); People v. Monroe, 2008 NY Slip Op 5531, 1, 52 A.D.3d 623, 623; 860 N.Y.S.2d
564, 565 (2d Dept. 2008); People v. Bagarozy, 182 A.D.2d 565, 566, 582 N.Y.S.2d 424 (1st Dept. 1992)
(motion to set aside); People v Garcia, 187 A.D.2d 868, 590 N.Y.S.2d 565 (3d Dept. 1992); People v
Jiggetts, 178 A.D.2d 332, 577 N.Y.S.2d 396 (1st Dept. 1991); People v. Williams, 178 A.D.2d 163, 165,
576 N.Y.S.2d 870 (1st Dept. 1991). You can use an Article 440 motion to raise claims that are based on
information in the record, but in such a case you must have first made the claim in your direct appeal.
N.Y. Crim. Proc. Law § 440.10(b)–(c) (McKinney 2008). See Chapter 13 of the JLM for an additional
explanation of barred claims, and Chapter 20 of the JLM for more on how to file an Article 440 motion.
17. Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1694, 155 L. Ed. 2d 714, 720
(2003) (holding an ineffective “assistance of counsel claim may be brought in a collateral proceeding ...
whether or not the petitioner could have raised the claim on direct appeal”); see also United States v.
Martinez, 136 F.3d 972, 979 (4th Cir. 1998) (“A defendant can raise the claim of ineffective assistance
of counsel ... by a collateral challenge pursuant to [federal habeas corpus].”); United States v. Alcantar,
83 F.3d 185, 191 (7th Cir. 1996) (noting ineffective assistance claims should be raised on habeas when
not apparent from the trial record); People v. Dor, 132 Misc. 2d 568, 569–70, 505 N.Y.S.2d 317, 319
(Sup. Ct. Kings County 1986) (holding that, in an Article 440 motion, a defendant cannot make further
attacks on "any issues that were raised or could have been raised in the appeal," but could claim
ineffective assistance, which is "an issue that could not possibly be raised in an appeal by the same
states like New York, an ineffective assistance claim that can be decided based on the trial
record alone must be made in the direct appeal, otherwise you are barred from raising it in a
post-conviction motion.18 Be sure to check the laws in your state for the proper procedure.
C. How to Prove Ineffective Counsel
As discussed above, there is a federal right to effective counsel and, in many states, a
separate state right as well. The federal and New York standards for ineffective counsel are
discussed below. If you were convicted in a state other than New York, you should research
your state constitution and case law to find out whether there is a different state standard
for ineffective assistance of counsel that you can argue was not met at trial.19 You should
always raise ineffective assistance of counsel as a federal constitutional claim, even if you
also claim violation of state effective counsel guarantees. If you do not present the claim as a
federal constitutional violation at this point, you may not be able to do so in a later federal
habeas petition.20
1. The Federal Standard
The standard for ineffective assistance of counsel under the U.S. Constitution is the same
no matter where you are. There are three ways in which you can make an ineffective counsel
claim under federal laws: you can claim that your lawyer was actually or constructively
ineffective, or that he had a conflict of interest that caused him to be actually ineffective.
Each of these claims requires you to prove different things.
(a) Actual Ineffectiveness: The Strickland Test
In general, to show ineffective assistance of counsel under the United States
Constitution, you must pass the two-part Strickland test.21 The first part of this test, the
“deficient performance prong,” requires you to prove your lawyer’s performance was
“deficient.”22 The court decides whether your lawyer’s representation fell below an “objective
counsel").
18. See, e.g., Guinan v. United States, 6 F.3d 468, 471 (7th Cir. 1993), overruled in part by
Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003) (stating that
ineffectiveness of counsel claims cannot be waived in cases where the lawyer bringing the appeal also
represented the defendant at trial, and also holding that an ineffectiveness claim may be brought in a
collateral proceeding when evidence of ineffectiveness lies outside the record and an evidentiary
hearing would be necessary or useful in determining whether counsel was ineffective); Alston v.
Donnelly, 461 F. Supp. 2d 112, 123 (W.D.N.Y. 2006) (“where the record is sufficient to allow appellate
review of [an ineffective assistance] claim, the failure to raise that claim on appeal precludes
subsequent collateral review”); People v. Jossiah, 2 A.D.3d 877, 877, 769 N.Y.S.2d 743, 743 (2d Dept.
2003) (“[Since the] record ... clearly presented sufficient facts from which the defendant could have
raised his [ineffective assistance claim] ... on direct appeal, it could not be raised on the CPL 440.10
motion.”); Hartman v. Bagley, 492 F.3d 347, 357–58 (6th Cir. 2007) (holding that although Ohio’s
statute provided “adequate and independent” grounds to bar ineffective assistance claims in collateral
proceedings, it did not apply to defendant’s claim that relied on information outside of the trial record);
Nixon v. Epps, 405 F.3d 318, 323 (5th Cir. 2005) (holding that a Mississippi statute, requiring
defendant to raise ineffective assistance claim on direct review when he uses a different counsel,
created an “adequate and independent” procedural default when defendant failed to comply on direct
appeal).
19. For more information on legal research, see Chapter 2 of the JLM, “An Introduction to Legal
Research.”
20. For more information on filing a federal habeas corpus claim, see JLM Chapter 13, “Federal
Habeas Corpus.”
21 . Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
(establishing federal standard for ineffective assistance of counsel).
22. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,
693(1984).
standard of reasonableness.”23 This means the court asks if your lawyer acted in a way that
most other lawyers would think is acceptable. Since this standard can apply differently in
different situations, you must identify the specific things your lawyer did that were so bad
that you were deprived of your right to counsel. You cannot just say that you had a bad
lawyer or that your lawyer did not do enough to help you. You must point to the specific
things your lawyer did badly or did not do at all and show that these failures made your
representation fall below the professional standards for lawyers.24
If the court finds your lawyer’s representation did fall below this standard, it will apply
the second part of the Strickland test. The second part, the “prejudice prong,” requires you to
prove there is a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”25 This means you not only have to point
out what your lawyer did wrong, but you also have to show how your lawyer’s actions hurt
you and made the outcome of your case unfair. You can only win on an ineffective counsel
claim if both parts of the test are met.26 You should remind the court that the Supreme Court
has specifically said the “prejudice prong” requires you to show only a “reasonable
probability” of a different result, and you do not have to prove your lawyer’s errors “more
likely than not altered the outcome.”27
Ineffective counsel claims are some of the most difficult claims to plead successfully
because of this second part of the Strickland ineffective counsel test. Often, courts do not like
to find that an attorney’s behavior affected a trial so strongly that the outcome is unreliable.
When you are presenting an ineffective counsel claim, you should ask the court to consider
the cumulative (total) effect of all of your lawyer’s errors.28 Try to find cases that successfully
presented a similar claim and structure your claim in a similar way. Unfortunately, for every
successful ineffective counsel claim, there are many other similar claims that are not
granted, so be aware of cases that work against you as well.
23. These basic professional standards could include, but are not limited to, a duty of loyalty, a
duty to avoid conflicts of interest, a duty to advocate the defendant’s cause, the duty to consult with
defendant on important decisions and to keep defendant informed of important developments during
the prosecution, and a duty to use the level of skill and knowledge that make the trial truly adversarial.
Strickland v. Washington, 466 U.S. 668, 688–89, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984)
(outlining these duties but noting that they “neither exhaustively define the obligations of counsel nor
form a checklist for judicial evaluation of attorney performance”).
24. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695
(1984) (deciding ineffectiveness claim will judge reasonableness of counsel’s conduct based on facts of
particular case, viewed at the time of the counsel’s conduct).
25. Strickland v. Washington, 466 U.S. 668, 691–92, 694, 104 S. Ct. 2052, 2067, 2068, 80 L. Ed.
2d 674, 696, 698 (1984) (“An error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”);
Williams v. Taylor, 529 U.S. 362, 390–91, 120 S. Ct. 1495, 1511–12, 146 L. Ed. 2d 389, 416 (2000)
(holding that analysis of the prejudice prong should focus solely on whether there was reasonable
probability that but for counsel’s errors, the result of the proceeding would have been different);
Wiggins v. Smith, 539 US 510, 534–35, 123 S. Ct. 2527, 2542–43, 156 L. Ed. 2d 471, 493–94 (2003) (“In
assessing prejudice [in a capital case], we reweigh the evidence in aggravation against the totality of
available mitigating evidence.”).
(1984) (“Failure to make the required showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim.”).
(1984).
28. See, e.g., Mackey v. Russell, No. 02-4237, 148 Fed. App’x. 355, 368–69 (6th Cir. August 9,
2005) (unpublished) (holding state court unreasonably applied Strickland when it failed to consider the
cumulative effect of counsel’s errors).
(b) Constructive Ineffectiveness: The Cronic Standard
The second type of ineffective assistance of counsel claim available under the United
States Constitution is a “constructive denial” of the assistance of counsel as described in
United States v. Cronic. 29 You can claim constructive ineffective assistance if the
circumstances of your trial were so unfair that prejudice and ineffective assistance can be
presumed.30 This means that under Cronic, unlike the Strickland test, you do not have to
prove that there was actual prejudice.
The Cronic standard applies in three situations.31 First, prejudice may be presumed if
you were completely denied counsel during a “critical stage” of your trial.32 Second, you can
claim ineffective assistance under Cronic if your lawyer “entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” Your lawyer’s failure to test the State’s
case must have been “complete,” meaning he or she put up no opposition whatsoever.33 Third,
you can also make a Cronic claim if the circumstances of your trial made it highly unlikely
any lawyer could have provided effective assistance. 34 If your case falls within such
circumstances, you do not have to prove your lawyer’s trial performance was deficient.
(c) Conflict of Interest
The third type of federal claim argues that counsel provided ineffective assistance due to
a conflict of interest. To show that counsel had a conflict of interest, you must demonstrate
that there was an actual conflict of interest that “adversely affected” your lawyer’s
performance.35 A conflict of interest can arise when one lawyer represents more than one co-
29. U.S. v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d. 657, 667 (1984).
30. U.S. v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d. 657, 667 (1984).
31. U.S. v. Cronic, 466 U.S. 648, 659–62, 104 S. Ct. 2039, 2047–48, 80 L. Ed. 2d. 657, 668–70
(1984); Bell v. Cone, 535 U.S. 685, 695–98, 122 S. Ct. 1843, 1850–52, 152 L. Ed. 2d 914, 927–29 (2002)
(limiting Cronic’s holding that prejudice may be presumed to the three situations identified).
32. See, e.g., Wright v. Van Patten, 128 S. Ct. 743, 746, 169 L. Ed. 2d 583, 588 (2008) (holding
counsel’s participation in plea hearing by speaker phone should not be treated as complete denial of
counsel); Rickman v. Bell, 131 F.3d 1150, 1156–60 (6th Cir. 1997) (affirming judgment of ineffective
assistance where counsel had abandoned defendant’s interests by repeatedly expressing contempt for
client at trial and portraying client as crazy and dangerous, effectively acting as a second prosecutor);
Javor v. United States, 724 F.2d 831, 833–34 (9th Cir. 1984) (finding prejudice inherent when counsel
slept through much of the trial). But see Tippins v. Walker, 77 F.3d 682, 683–85 (2d Cir. 1996) (holding
ineffective assistance claim should be judged under Strickland when counsel slept through the trial).
33. Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 1851, 152 L. Ed. 2d 914, 928 (2002) (holding
counsel’s failure to produce mitigating evidence and waiver of closing argument did not constitute a
complete failure to test the prosecutor’s case and that Strickland applied rather than Cronic). This is a
difficult standard to meet. For example, counsel’s decision to concede guilt in a capital trial and focus
instead on the sentencing phase, even though his client entered a “not guilty” plea, is not automatically
a complete failure to subject the prosecution’s case to adversarial testing. Compare Florida v. Nixon,
543 U.S. 175, 188–89, 125 S. Ct. 551, 561–62, 160 L. Ed. 2d 565, 579–80 (2004) (“The Florida Supreme
Court's erroneous equation of [counsel’s] concession strategy to a guilty plea led it to [wrongly apply the
Cronic standard] in determining whether counsel's performance ranked as ineffective assistance.”),
with State v. Carter, 270 Kan. 426, 440–41, 14 P.3d 1138, 1148 (2000) (finding that a breakdown in the
adversarial system of justice when counsel premised defense on defendant’s guilt against his client’s
wishes).
34. Compare Powell v. Alabama, 287 U.S. 45, 56–58, 53 S. Ct. 55, 59–60, 77 L. Ed. 158, 164–65
(1932) (holding denial of effective counsel when defendants, who were “young, ignorant, illiterate, [and]
surrounded by hostile sentiment," were tried for a capital offense, and when defense counsel was
designated only minutes earlier and thus had no opportunity to investigate the facts or to prepare),
with U.S. v. Cronic, 466 U.S. 648, 658–67, 104 S. Ct. 2039, 2046–51, 80 L. Ed. 2d. 657, 667–73 (1984)
(rejecting defendant's constructive ineffective assistance argument based on counsel's lack of experience
in criminal law or jury trials, and 25-day preparation time).
35. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333, 348 (1980); see
also United States v. Iorizzo, 786 F.2d 52, 57–58 (2d Cir. 1986) (applying Cuyler).
defendant for the same crime.36 The conflict must be actual, not just potential, which means
that your lawyer must have taken some action, or refrained from acting in some way, which
harmed you and benefited the other person.37 You are not required to show prejudice if your
lawyer had an actual conflict of interest that adversely affected you, because prejudice is
presumed.
2. New York State Standard
In addition to your federal right to effective counsel, New York state courts have said you
are entitled to “meaningful representation” under Article I, Section 6 of the New York State
Constitution. 38 This means in New York courts, you must show your lawyer’s failures
harmed you so much you did not have meaningful representation at trial. 39 Meaningful
representation does not mean your attorney made no mistakes, but that your lawyer
provided good enough representation to satisfy the court that you were properly
represented.40
36 . A conflict of interest may also arise in other situations, for example, if your lawyer
represented a government or defense witness in a related trial, if the victim was a client of your lawyer,
or if your lawyer collaborated or had a connection with the prosecution. See, e.g., Mickens v. Taylor, 535
U.S. 162, 174–76, 122 S. Ct. 1237, 1245–46, 152 L. Ed. 2d 291, 306–07 (2002) (holding that Cuyler v.
Sullivan applied to petitioner’s claim that counsel was conflicted because he represented the victim in
an unrelated case); Perillo v. Johnson, 205 F.3d 775, 808 (5th Cir. 2000) (holding actual conflict existed
when counsel represented a co-defendant cooperating with the state as witness against accused);
United States ex rel. Duncan v. O'Leary, 806 F.2d 1307, 1315 (7th Cir. 1986) (holding actual conflict
existed when counsel was prosecutor’s campaign manager for State’s Attorney election, and counsel
colluded with prosecutor and a police officer to get defendant to retain him because it would be good for
the campaign).
37. See, e.g., Burger v. Kemp, 483 U.S. 776, 783–85, 107 S. Ct. 3114, 3120–21, 97 L. Ed. 2d 638,
650–51 (1987) (holding petitioner failed to show actual conflict when lawyer’s partner was appointed to
represent co-defendant, because “defendants may actually benefit from the joint efforts of two partners
who supplement one another in their preparation”); Edens v. Hannigan, 87 F.3d 1109, 1116 (10th Cir.
1996) (holding actual conflict of interest existed when counsel made no effort to present a defense for
client because it would have harmed co-defendant); Burden v. Zant, 24 F.3d 1298, 1305–07 (11th Cir.
1994) (finding ineffective assistance where counsel, representing two codefendants, made an agreement
with the prosecutor that one co-defendant would testify against another in exchange for not prosecuting
the co-defendant); Dawan v. Lockhart, 31 F.3d 718, 721–22 (8th Cir. 1994) (finding ineffective counsel
where public defender also represented codefendant who had pleaded guilty and made statements
implicating the client in the crime).
38. People v. Baldi, 54 N.Y.2d 137, 147, 429 N.E.2d 400, 405, 444 N.Y.S.2d 893, 898 (1981) (“So
long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of
the time of the representation, reveal that the attorney provided meaningful representation, the
constitutional requirement will have been met.”).
39. As mentioned above, if you are in a state other than New York, your state may have an
independent source for the right to effective counsel and, thus, a different standard for proving
ineffective counsel. You should research successful ineffective counsel claims in your state and look at
what standard the courts use.
40. See People v. Benevento, 91 N.Y.2d 708, 712, 697 N.E.2d 584, 587, 674 N.Y.S.2d 629, 632
(1998) (holding that the New York State Constitution guarantees meaningful but not perfect
representation, and that representation does not have to be “errorless”) (quoting People v. Aiken, 45
N.Y.2d 394, 398, 380 N.E.2d 272, 274, 408 N.Y.S.2d 444, 447 (1978)); see also People v. Droz, 39 N.Y.2d
457, 462, 348 N.E.2d 880, 882–83, 384 N.Y.S.2d 404, 407 (1976) (finding improper representation
where a lawyer failed to adequately prepare for trial, did not communicate with his client in a timely
manner, made no attempt to contact potential witnesses, and neglected to study the record); but see
People v. Young, 116 A.D.2d 922, 923, 498 N.Y.S.2d 667, 669 (3d Dept. 1986) (noting that the standards
from People v. Baldi and People v. Droz only apply to ineffective assistance during trial; evaluation of
attorney performance when the defendant has accepted a guilty plea rests on different grounds).
It is important to note that once you claim ineffective assistance of counsel, you give up
attorney-client confidentiality with that attorney.41 This means once you file an ineffective
counsel claim against your lawyer, your lawyer can then reveal information that otherwise
would be kept secret. For example, your lawyer could cooperate with the prosecution by
turning over case files, or even testify for the prosecution against you.
3. Using a Claim of Ineffectiveness to Save a Procedurally Defaulted
Claim
Ineffective assistance of counsel claims can be very useful because they can be a way to
present claims that would otherwise be barred. As the various Chapters on attacking your
conviction explain, many issues must be “preserved” in order to be appealed.42 This means if
you or your lawyer did not object to certain issues during the trial, you cannot raise them on
appeal. However, if a claim is not preserved, often it can still be raised as part of an
ineffective counsel claim.43
Ineffective assistance claims are also useful in “procedural default” situations.
Procedural default happens when your claim is kept out of federal court because you have
not followed all the procedures in your state. In procedural default situations federal courts
will not hear your claim because you did not follow state procedures. If your claim has been
procedurally defaulted, you can often raise it as an ineffective counsel claim instead.44 In
addition, if any court has held that you have a procedurally defaulted claim, you can argue
that your lawyer’s ineffectiveness was “cause” for the default.45 As a general matter, if you
are raising a claim for the first time that should have been raised earlier, you should allege
that you did not raise the claim earlier because your attorney was ineffective.
To include a barred claim (a claim that is not preserved or is procedurally defaulted) in
an ineffective assistance of counsel claim, you must restate the issue by saying your lawyer
was ineffective for not properly arguing your claim. For example, if the wrong jury
instructions were given at trial, but that claim is barred because it was not raised at trial or
“preserved,” you can claim that your attorney was ineffective for not objecting to the jury
instructions. Remember, you still must prove that your attorney’s mistake deprived you of
your right to counsel because it negatively affected your trial. This means you must show
both that (1) by not objecting to the instructions, your attorney performed below the standard
attorneys are judged by; and (2) by not objecting, your attorney lost a chance to argue a claim
that would have succeeded. Here is an example of how to include a barred claim in an
ineffective counsel claim:
41. Model Rules of Prof’l Conduct R. 1.6(b)(5) (2004) (allowing that “[a] lawyer may reveal
information relating to the representation of a client to the extent the lawyer reasonably believes
necessary ... to respond to allegations in any proceeding concerning the lawyer’s representation of the
client”); Standards for Crim. Just. § 4-8.6(d) (1993) (“Defense counsel whose conduct of a criminal case
is drawn into question is entitled to testify concerning the matters charged and is not precluded from
disclosing the truth concerning the accusation to the extent defense counsel reasonably believes
necessary, even though this involves revealing matters which were given in confidence.”). Note that
this is not a complete waiver of confidentiality and does not allow for complete disclosure.
42. See JLM, Chapter 9, “Appealing Your Conviction or Sentence,” regarding preservation of
claims; JLM, Chapter 20, “Using Article 440 of the New York Criminal Procedure Law to Attack Your
Unfair Conviction or Illegal Sentence,” regarding errors of record in the trial; and JLM, Chapter 13,
“Federal Habeas Corpus,” regarding procedural default.
43. In Kimmelman v. Morrison, 477 U.S. 365, 384–85, 106 S. Ct. 2574, 2587–88, 91 L. Ed. 2d
305, 325–26, for example, the trial court refused to rule on the defendant’s motion to suppress evidence
because counsel’s motion was untimely. The defendant nonetheless ultimately obtained a hearing on
the merits of the suppression motion by raising a claim that his trial counsel was ineffective for failing
to make a timely suppression motion.
44. See Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986).
45. See JLM, Chapter 13 for an additional explanation of barred claims.
(1) You believe your jury was selected in a racially discriminatory manner, but this issue
was not raised at trial or on direct appeal and now is procedurally barred;
(2) Argue that the discriminatory jury selection is the result of your lawyer failing to
object to the way in which the jury was selected and failing to select a racially
unbiased jury. Argue that your lawyer’s failure to correct or object to the
discriminatory jury selection fell below the reasonable standard of performance for
attorneys;
(3) Argue that this failure of your attorney meant you had a racially biased jury and,
because of the circumstances of your case, you were denied a fair trial as a result of
this jury selection error. Therefore, your lawyer’s failure to object to or raise this
claim resulted in prejudice, since there is a chance the outcome of your case would
have been different; and
(4) To summarize, your overall claim is that by not objecting to the racially
discriminatory way in which the jury was selected, your lawyer was ineffective
because his performance fell below the standard of objective reasonableness for
attorneys, and this resulted in a biased jury, which affected the outcome of your case.
A checklist for incorporating a barred claim into an ineffective counsel claim is:
(1) Identify the barred claim. Make sure the claim cannot be raised directly for
procedural reasons;
(2) Determine whether the claim is barred because of your lawyer’s ineffectiveness. Did
your lawyer not raise the issue at trial? Did your lawyer say or do something at trial
that lessened your chances of winning on the issue? Did your lawyer fail to raise the
issue on direct appeal?;46 and
(3) Argue that the reason the claim is barred is because of your lawyer’s ineffectiveness.
Then show that if your lawyer had not been ineffective in this way, this claim would
have succeeded. Remember you must plead both the “deficient performance prong”
and the “prejudice prong” of the Strickland test. Thus, you must both (a) point out
the specific failures of your counsel and (b) show that counsel’s failures to correct or
address the issue hurt your case.
Note that in addition to re-framing the barred claim as an ineffective counsel claim, you
should still raise the claim separately, alleging that counsel’s ineffectiveness constitutes
“cause and prejudice” for any procedural default.47
D. Common Ineffective Counsel Claims
Below are some of the most common ineffective counsel claims that have been pleaded
successfully. This does not mean that these claims are always successful or that this list
includes every possible ineffective counsel claim, so when you plead these claims, be sure to
check the case law in your state.
(1) Counsel is not qualified to practice law;48
46. Jackson v. Leonardo, 162 F.3d 81, 84–87 (2d Cir. 1998) is an excellent example of how to turn
a procedurally barred claim into a successful claim of ineffectiveness. In Jackson, the Court of Appeals
held that the defendant’s double jeopardy claim was procedurally barred, but granted relief on the
defendant’s claim that his appellate counsel was ineffective for failing to raise the double jeopardy
claim.
47. See, e.g., Williams v. Anderson, 460 F.3d 789, 799–801 (6th Cir. 2006) (finding that appellate
counsel’s ineffectiveness in raising trial-counsel ineffectiveness claim on direct appeal constituted
“cause and prejudice” for the procedural default that was caused thereby).
48. See United States v. Novak, 903 F.2d 883, 890 (2d Cir. 1990) (holding that “counsel” does not
include an individual who holds himself out as a lawyer but obtains admission to the bar under false
pretenses). See also Solina v. United States, 709 F.2d 160, 167–68 (2d Cir. 1983) (requiring per se
reversal where defendant was unaware that counsel was unlicensed to practice law in any state, and
(2) Counsel had a conflict of interest;49
(3) Counsel failed to investigate50 or perform certain pretrial functions;51
(4) Counsel failed to properly select a jury;52
(5) Counsel failed to pursue defenses available to defendant;53
(6) Counsel did not properly advise defendant as to a plea;54
“the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to
legal ability, such as failure to pass a bar examination, or want of moral character”); but see
Waterhouse v. Rodriguez, 848 F.2d 375, 382 (2d Cir. 1988) (framing per se rule to exclude situation
where licensed attorney is unknowingly disbarred during trial).
49. See the discussion in Part C(1)(c) of this Chapter.
50. See Wiggins v. Smith, 539 U.S. 510, 535–38, 123 S. Ct. 2527, 2542–44, 156 L. Ed. 2d 471,
493–95 (2003) (holding decision of counsel not to expand investigation of petitioner’s life history for
mitigating evidence beyond pre-sentence investigation report and department of social services records
fell short of prevailing professional standards and amounted to ineffective assistance); Appel v. Horn,
250 F.3d 203, 215–18 (3d Cir. 2001) (finding counsel’s failure to investigate or prepare for the
petitioner's competency determination violated his right to effective assistance and merited granting
habeas corpus relief); Moore v. Johnson, 194 F.3d 586, 615–19 (5th Cir. 1999) (finding counsel’s error in
ignoring and failing to investigate certain evidence led to an unfair trial for defendant); Holsomback v.
White, 133 F.3d 1382, 1386–89 (11th Cir. 1998) (finding trial attorney's failure to investigate the
absence of medical evidence was unreasonable and constituted ineffective assistance of counsel); People
v. LaBree, 34 N.Y.2d 257, 259–61, 313 N.E.2d 730, 731–32, 357 N.Y.S.2d 412, 413–15 (1974) (finding
ineffective assistance based on counsel’s inadequate investigation and preparation); see also Henry v.
Poole, 409 F.3d 48, 67–72 (2d Cir. 2005) (finding counsel’s failure to investigate led counsel to present
alibi defense for the wrong date and bolstered an otherwise weak prosecution case).
51. See Kimmelman v. Morrison, 477 U.S. 365, 385–91, 106 S. Ct. 2574, 2588–91, 91 L. Ed. 2d
305, 326–29 (1986) (finding ineffective assistance of counsel where counsel failed to conduct any
pretrial discovery and failed to file timely motion to suppress illegally seized evidence); Gersten v.
Senkowski, 426 F.3d 588, 609–14 (2d Cir. 2005) (holding that attorney’s failure to seek medical expert
consultation for the defense or to investigate critical government evidence constituted ineffective
assistance of counsel); People v. Donovan, 184 A.D.2d 654, 654–56, 585 N.Y.S.2d 70, 71–72 (2d Dept.
1992) (ordering a new trial after attorney provided ineffective assistance of counsel by not moving to
suppress certain evidence and by failing to conduct an adequate investigation before the trial).
52 . See Johnson v. Armontrout, 961 F.2d 748, 755–56 (8th Cir. 1992) (finding ineffective
assistance where evidence showed that at least two jurors were biased since counsel failed to request
removal for cause of biased jurors); Hollis v. Davis, 912 F.2d 1343, 1350–52 (11th Cir. 1990) (finding
ineffective assistance where trial counsel failed to challenge the racial composition of a jury chosen in
1959 when African-Americans were systematically excluded from the list of potential jurors).
53. See Wilcox v. McGee, 241 F.3d 1242, 1246 (9th Cir. 2001) (finding ineffective assistance
where counsel failed to move at a second trial to dismiss an indictment barred by double jeopardy);
Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) (holding that appellate counsel’s failure to raise the
obvious double jeopardy claim constituted ineffective performance); DeLuca v. Lord, 77 F.3d 578, 590
(2d Cir. 1996) (determining that counsel’s failure to pursue extreme emotional disturbance defense
constituted ineffective assistance when a reasonable probability existed that a jury would have found
this defense persuasive and would have reduced defendant’s liability from second degree murder to
first degree manslaughter).
54. The Court in Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 209
(1985), held that the two-prong Strickland standard is “applicable to ineffective-assistance claims
arising out of the plea process.” Hill claimed his guilty plea was induced by false information as to his
parole eligibility. The Court held that in the case of a defendant claiming his guilty plea was the result
of ineffective assistance, the second prong of the Strickland test would be satisfied by showing “a
reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210
(1985); see also Meyers v. Gillis, 142 F.3d 664, 666–70 (3d Cir. 1998) (using the second prong of the
Strickland test, the Court found the defendant would be eligible for parole after seven years when law
required mandatory life sentence without possibility of parole); United States v. Hansel, 70 F.3d 6, 8
(2d Cir. 1995) (finding counsel provided ineffective assistance in plea bargaining when counsel failed to
inform defendant that charges against him were time-barred and defendant would not have pleaded
guilty but for counsel’s error). Courts have extended this reasoning to the “reverse-Hill” claim where a
(7) Counsel failed to use important evidence or testimony at trial;55
(8) Counsel failed to object to improper use of evidence at trial;56
(9) Counsel failed to request proper jury instructions; 57
(10) Counsel failed to object to improper jury instructions;58
(11) Counsel failed to present or argue an appeal,59 or to present a meritorious issue on
appeal; and60
defendant claims that counsel’s ineffectiveness caused the defendant to proceed to trial when there is a
reasonable probability that if correctly advised the defendant would have accepted a plea offer. See
Mask v. McGinnis, 233 F.3d 132, 139–42 (2d Cir. 2000) (finding that reasonable probability that the
defendant would have accepted a plea if counsel effectively advised him constitutes ineffective
assistance of counsel); United States v. Gordon, 156 F.3d 376, 381–82 (2d Cir. 1998) (finding that the
large disparity between “the actual maximum sentencing exposure under the Sentencing Guidelines
and the sentence exposure represented by defendant's attorney” indicates that a reasonable probability
exists that had the defendant’s counsel properly advised him, the proceedings would have gone
differently); Boria v. Keane, 99 F.3d 492, 496–99 (2d Cir. 1996) (finding defendant prejudiced when
counsel failed to advise defendant of improbability of acquittal or benefits of accepting guilty plea with
reduced sentence because defendant’s trial sentence was at least twice as long as sentence offered in
plea); but see Purdy v. United States, 208 F.3d 41, 46 (2d Cir. 2000) (finding that although attorney
should inform each client of the probable costs and benefits of accepting a plea bargain, he need not
advise client explicitly to either plead guilty or not).
55. See Lindstadt v. Keane, 239 F.3d 191, 201–02 (2d Cir. 2001) (finding ineffective assistance in
part because trial counsel made no effective challenge to the only physical evidence of sexual abuse,
which consisted of expert testimony based on unnamed studies which were essentially unchallenged at
trial and controverted by other easily available, published studies); Pavel v. Hollins, 261 F.3d 210, 216–
26, 223, 228 (2d Cir. 2001) (finding ineffective assistance where trial counsel did not prepare a defense,
failed to call two important fact witnesses, and did not call a medical expert); Brown v. Myers, 137 F.3d
1154, 1156–58 (9th Cir. 1998) (finding ineffective assistance when counsel failed to investigate and
present testimony supporting petitioner’s alibi); Tosh v. Lockhart, 879 F.2d 412, 414 (8th Cir. 1989)
(finding defense counsel's failure to procure alibi witnesses was ineffective assistance of counsel);
People v. Jenkins, 68 N.Y.2d 896, 897, 501 N.E.2d 586, 586–87, 508 N.Y.S.2d 937, 937–38 (1986)
(finding that failure to use crucial evidence, if due solely to attorney’s erroneous assumption of its
inadmissibility, may be so prejudicial as to be ineffective assistance of counsel); People v. Riley 101
A.D.2d 710, 711, 475 N.Y.S.2d 691, 692–93 (4th Dept. 1984) (finding failure to impeach prosecution
witnesses with available records of prior testimony contributed to ineffective assistance of counsel).
305, 326–27 (1986) (finding ineffective assistance when counsel failed to move to suppress evidence
because of counsel’s failure to investigate); Tomlin v. Myers, 30 F.3d 1235, 1237–39 (9th Cir. 1994)
(finding counsel ineffective for failure to move to suppress lineup identification evidence); People v.
Wallace 187 A.D.2d 998, 998–99, 591 N.Y.S.2d 129, 130 (4th Dept. 1992) (finding attorney’s failure to
object to admission of evidence was ineffective assistance); People v. Riley 101 A.D.2d 710, 711, 475
N.Y.S.2d 691, 692–93 (4th Dept. 1984) (finding failure to object to inadmissible hearsay evidence, and
lack of preparation and the pursuit of a highly prejudicial cross-examination constituted ineffective
assistance).
57. See People v. Norfleet, 267 A.D.2d 881, 883–84, 704 N.Y.S.2d 146, 148 (3d Dept. 1999)
(finding ineffective assistance where counsel failed to seek jury instructions for lesser offense); People v.
Wiley, 120 A.D.2d 66, 67–68, 507 N.Y.S.2d 928, 929 (4th Dept. 1986) (finding an attorney who fails to
request an alibi charge may be found ineffective).
58. See Cox v. Donnelly, 432 F.3d 388, 390 (2d Cir. 2005) (finding that counsel’s repeated failure
to object to erroneous jury instruction constituted ineffective counsel); Everett v. Beard, 290 F.3d 500,
513, 515–16 (3d Cir. 2002) (holding that counsel performed deficiently by failing to object on due
process grounds to jury instruction which explicitly permitted jury to convict defendant of first degree
murder if his accomplice intended to cause the death of the victim); Gray v. Lynn, 6 F.3d 265, 269, 271–
72 (5th Cir. 1993) (finding counsel fell below objective standard of reasonable assistance, thereby
providing ineffective assistance, where counsel failed to object to erroneous jury instructions regarding
elements of first degree murder).
59. See Roe v. Flores-Ortega, 528 U.S. 470, 484, 120 S. Ct. 1029, 1038, 145 L. Ed. 2d 985, 999–
1000 (2000) (finding that defendant was entitled to effective assistance of counsel when deciding
whether to file a notice of appeal, but that he must show a reasonable probability that but for counsel’s
(12) Counsel’s conduct at trial was simply so bad as to be ineffective;61
E. Conclusion
Ineffective assistance of counsel can be a very useful claim for prisoners who had
inadequate legal representation at trial or on direct appeal. It can also be useful for prisoners
who face procedural problems with some of their appellate claims. When you bring your
ineffective counsel claim, it is important to check the relevant Chapters of the JLM and other
sources to make sure you are using the right procedure. Your ineffective counsel claim will
have a better chance of success if you make sure to show the court all the specific reasons
why your lawyer performed poorly, and all of the ways in which this inadequate
representation prejudiced the outcome of your case.
errors, he would have filed the appeal); Garcia v. United States, 278 F.3d 134, 137–38 (2d Cir. 2002)
(finding ineffective assistance of counsel where counsel incorrectly advised defendant on the record that
he could not appeal and district court confirmed that advice); United States v. Phillips, 210 F.3d 345,
350–52 (5th Cir. 2000) (finding that counsel’s failure to appeal an obstruction of justice sentencing
enhancement constituted ineffective assistance); Castellanos v. United States, 26 F.3d 717, 719–20 (7th
Cir. 1994) (finding attorney provides ineffective assistance of counsel in failing to appeal conviction
following a guilty plea if the prisoner told his lawyer to appeal in a timely manner); United States v.
Peak, 992 F.2d 39, 41–42 (4th Cir. 1993) (finding that counsel’s failure to file for appellate review when
requested by defendant deprives defendant of 6th Amendment right to assistance of counsel even if he
would have not been likely to win on appeal); United States v. Horodner, 993 F.2d 191, 195–96 (9th Cir.
1993) (finding ineffective assistance of counsel which prejudiced the defendant if the defendant did not
agree to waive the appeal); Bonneau v. United States, 961 F.2d 17, 18–19, 22–23 (1st Cir. 1992)
(finding that direct appeal was dismissed due to ineffective counsel, as the attorney never filed an
appeal and the defendant therefore never had his constitutionally granted opportunity to appeal);
People v. Stokes, 95 N.Y.2d 633, 638–39, 744 N.E.2d 1153, 1156, 722 N.Y.S.2d 217, 220 (2001) (finding
defendant’s right to appellate counsel was not adequately safeguarded because the brief submitted by
appellate counsel contained no reference to the evidence or to defense counsel's objections at trial and
made clear that counsel did not act like an advocate on behalf of the client); People v. Vasquez, 70
N.Y.2d 1, 3–4, 509 N.E.2d 934, 935, 516 N.Y.S.2d 921, 922 (1987) (finding that defense counsel’s
identification of points as being “without merit” in appellate brief, though defendant wished to raise
them on appeal, denied defendant effective assistance of counsel).
60. E.g., Ballard v. United States, 400 F.3d 404, 407–10 (6th Cir. 2005) (holding appellate
counsel ineffective for failing to raise meritorious argument that sentence enhancement by judge
violated right to jury trial).
61. This kind of general argument is very hard to make successfully. Your claim must include
specific information about why your counsel’s conduct was not acceptable. See Tippins v. Walker, 77
F.3d 682, 687–90 (2d Cir. 1996) (finding ineffective assistance where attorney slept through substantial
portions of the trial such that judge interrupted proceedings to reprimand attorney); Burdine v.
Johnson, 262 F.3d 336, 341 (5th Cir. 2001) (finding ineffective assistance because counsel was
unconscious during substantial portions of trial, leaving the petitioner without representation during
critical stages of the trial); People v. Huggins, 164 A.D.2d 784, 786–87, 559 N.Y.S.2d 720, 721–22 (1st
Dept. 1990) (finding ineffective assistance where attorney was an alcoholic who had once been
disbarred for twenty years and was confused and inattentive at trial).
Manual
Chapter 13:
Federal Habeas Corpus

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 13
Federal Habeas Corpus*

A. Introduction
This Chapter explains an important right—the writ of habeas corpus (“habeas corpus”)—
that is guaranteed by the Constitution for prisoners who believe they have been wrongfully
convicted. As a prisoner, you can challenge your conviction or sentence by petitioning for a
writ of habeas corpus in federal court. By petitioning for a writ, you are asking the court to
determine whether your conviction or sentence is illegal. A writ of habeas corpus can be very
powerful because if the court accepts your argument, it can order your immediate release, a
new trial, or a new sentencing hearing. This Chapter will teach you more about federal
habeas corpus and how to petition for it. Part A will introduce and explain a few basic
concepts about federal habeas. The rest of the chapter will go into more detail.
1. What Is Habeas Corpus?
Habeas corpus is a kind of petition that you can file in federal court to claim that your
imprisonment violates federal law.1 Whether you are a state or federal prisoner, a federal
habeas petition claims that your imprisonment is illegal because your arrest, trial, or
sentence violated federal law. This would be true if any aspect of your arrest, trial, or actual
sentence violated a federal statute, treaty, or the U.S. Constitution. If you believe that your
imprisonment violates federal law, you can file a habeas petition regardless of whether your
trial was in state court or federal court, and regardless of whether you are in a state prison
or a federal prison. However, as you will learn in this Chapter, state prisoners and federal
prisoners will have to go through different processes for filing habeas petitions. State
prisoners may also find it more difficult than federal prisoners to win a habeas claim. In both
cases, a federal habeas petition claims that your imprisonment is illegal because your arrest,
trial, or sentence violated federal law.
Understanding what a habeas petition is not is important. A habeas petition is not a
“direct appeal” of your conviction. A direct appeal usually is when you ask the state or
federal appeals court (the court above the trial court in which you were convicted) to review
the objections you or your lawyer made during the trial. To learn more about direct appeals,
read JLM Chapter 9, “Appealing Your Conviction or Sentence.” Federal habeas is a different
kind of appeal. It is called a “collateral appeal” because you are claiming a mistake during
your trial or sentencing violated federal law and you are basing this claim on evidence that
you probably did not present at your trial. You can only make a habeas claim after making
other appeals.
If you are a state prisoner and lose your direct appeal, your state will have another
appellate procedure you can follow to challenge your conviction. This procedure is usually
called either “state post-conviction proceedings” or “state habeas corpus.” State habeas
* This Chapter was revised by Bridget Kennedy based on earlier versions by Archana Prakash, Edward
Smock, Jennifer H. Lin, Reena Sandoval, Allison Rutledge-Parisi, Miriam Lefkowitz, William Duffy,
and Mark Sanders. Special thanks to Carrie Ellis, Ryan Marks, and Ronald Tabak.
1. A habeas challenge is a civil action, not a criminal action. It is an action that you bring against
the government. Therefore, in habeas petitions, the prisoner is often referred to as the “plaintiff,”
“petitioner,” or “complainant.” For clarity, this Chapter often refers to the prisoner bringing the habeas
petition as the “defendant.”
corpus is the same thing as a state post-conviction appeal; it is a remedy the state you were
convicted in provides, and is based on that state’s statutes.2
If you are a state prisoner, you will need to “exhaust” your state remedies before being
able to file a federal habeas petition. This means that you will only file a federal habeas
petition if you have already lost your state direct appeal and your state post-conviction
proceedings. In your federal habeas petition, you can ask the federal court to review the
claims that you brought in your direct appeal and your post-conviction proceedings in state
court. However, in your federal habeas petition, you can only include claims that are based
on federal law (federal statutes, treaties, or the Constitution).
If you are a federal prisoner, you will not file a state post-conviction proceeding. If you
lose your direct appeals in federal court, you will be able to file a federal habeas petition
right away. This Chapter will often discuss state proceedings. If you are a federal prisoner,
you should keep in mind while reading this Chapter that discussions of state proceedings do
not apply to you unless the Chapter specifically says that they do.
2. What Will This Chapter Teach You?
Part B (“The Fundamental Elements of a Federal Habeas Corpus Argument”) will teach
you about the basic elements of claims you can bring in a habeas petition and how the courts
will treat your claim. Since most habeas petitions include claims of constitutional violations,
Section One explains the portions of the U.S. Constitution you are most likely to rely on in
your habeas petition. Section One also lists examples of successful habeas claims and tells
you how to discover a habeas claim in your arrest, trial, or sentence. Section Two explains
how the court evaluates your claim. This Section will teach you how to know which standard
the courts use and how to show the court that your rights were violated. Section Three
teaches you how to show the court that the violation of your rights affected your conviction or
sentence and discusses the harmless error rule. Section Four explains the special standard of
review that federal courts must use when they review habeas claims brought by state
prisoners.
Part C (“What You Cannot Complain About”) tells you what violations or issues you
cannot complain about in your habeas petition because the writ of habeas corpus is designed
to only allow you to obtain relief in specific situations. Section One explains that you
generally cannot bring habeas petitions that claim Fourth Amendment violations. Sections
Two and Three discuss the relevance of laws that are passed after your trial, called new
laws. Section Two explains what a new law is and that you normally cannot bring habeas
claims based on new laws. Section Three explains the exceptions to this rule—the situations
when you can include claims based on a new law in your habeas petition.
Part D (“Procedures for Filing a Petition for Habeas Corpus”) explains the basic requirements of your
habeas petition, including that you are in custody, have exhausted state remedies, are not in procedural
default, have filed within the proper time limit, and that your petition is not successive.
Part E (“The Mechanics of Petitioning for Federal Habeas Corpus”) discusses the basic
mechanical process surrounding habeas law: (1) when to file, (2) where to file, (3) whom to
file against, (4) how to file, (5) what to expect after you file, and (6) how to appeal.
Part F (“How to Get Help from a Lawyer”) discusses, as the title suggests, how to get
help from a lawyer for your habeas petition. Even though you are entitled to a lawyer during
your trial and direct appeals, you are not entitled to have a lawyer to help with your habeas
petition. However, you should still try to get help from a lawyer if you can.
2. For more information about state post-conviction proceedings, you can look at other chapters of
the JLM. State post-conviction proceedings for Florida, New York, and Texas are described in the JLM
Chapter 21, “State Habeas Corpus: Florida, New York, Texas.” Remember, state habeas proceedings
are the same as state post-conviction proceedings. In this Chapter the term state post-conviction
proceedings will be used to refer to both. The term habeas will only be used to refer to federal habeas
corpus.
Appendix A is a chart of the appeals process, from your trial through your federal habeas petition.
Appendix B provides a checklist you can refer to when putting together your federal habeas corpus petition.
3. When Do People File Habeas Petitions?
Direct Appeal Æ Post-Conviction Appeal Æ Federal Habeas Claim
Usually prisoners file their federal habeas petitions after they have finished their direct
appeals and state post-conviction proceedings. Because you are entitled to a lawyer during
your direct appeal, you should always file a direct appeal before anything else. If you lose
your direct appeal, you have to decide whether to file a state post-conviction appeal. It is not
necessary to follow this sequence, but most people do. The reason that most people file a
state post-conviction appeal is that before you can file any claim in your federal habeas
petition, you must have filed that same claim with the state court. If you are filing any
claims in your federal habeas petition that were not raised in your direct appeal, you must
give the state court a chance to review those claims before filing your federal habeas petition.
Giving the state court the chance to hear all of the claims you will raise in your habeas
petition is called “exhaustion.” It is an important requirement, and is discussed in more
detail in Part D(2) (“Exhaustion of State Remedies and Direct Appeal”) below. Because you
will often want to raise issues in habeas that you were unable to raise on direct appeal, you
have to raise them first in your state post-conviction proceeding.
After your direct appeal, you might find more errors that occurred during your trial.
These errors may be based on outside information not in your transcript. If you want to bring
these claims in your federal habeas petition and you are a state prisoner, you must first go to
state court and file a state post-conviction appeal. Then, if you are denied relief, you can
bring a federal habeas petition. Your federal habeas petition will be filed after you finish all
your state appeals (direct and collateral). There are strict timelines that apply to habeas
petitions after you finish your state appeals, as discussed in Part D(4) (“Time Limit”) below.
4. Which Laws Apply to Federal Habeas Corpus?
You can find all of the laws covering federal habeas corpus in 28 U.S.C. §§ 2241–66
(2006). Section 2241 is the habeas corpus statute, which gives courts the authority to release
prisoners who are being held in violation of the Constitution. Sections 2242 and 2253 deal
with issues relating to a habeas petition, such as evidence and appeals issues. There are
additional statutes that apply separately to state and federal prisoners, in Sections 2254 and
2255 respectively.3 When a state prisoner brings a habeas petition, he brings it under 28
U.S.C. § 2254.4 When a federal prisoner brings a habeas petition, he brings it under 28
3. The differences between federal and state prisoners’ petitions are mostly procedural, not
substantive. This means that regardless of whether you are a state or federal prisoner, you may use
cases brought under either 28 U.S.C. § 2255 or under 28 U.S.C. § 2254 as authority in your petition if
you are discussing substantive issues. In this Chapter, the procedural differences are discussed as they
arise, and you should pay careful attention to them. See United States v. Bendolph, 409 F.3d 155, 163
(3d Cir. 2005) (“[T]o provide guidance to the district courts, as well as to avoid confusion, we … should
treat § 2255 motions and § 2254 petitions the same absent sound reason to do otherwise.”); Miller v.
N.J. Dep’t of Corr., 145 F.3d 616, 619 n.1 (3d Cir. 1998) (“[W]e have followed the practice, whenever we
decide an AEDPA issue that arises under § 2254 and the same holding would analytically be required
in a case arising under § 2255, or vice versa, of so informing the district courts.”).
4. You are a state prisoner if you are imprisoned for committing a state crime. You are a federal
prisoner if you are imprisoned for violating a federal law. Most crimes, including murder and theft, are
state crimes. Some crimes, including kidnapping and drug-related offenses, may be federal crimes. In
addition, you may bring a habeas claim if you are detained by a tribal court, in which case you are
neither a state nor a federal prisoner. Prisoners of a tribal court should use 25 U.S.C. § 1303 (2006).
This Chapter does not address habeas petitions by prisoners of a tribal court. Because tribes are not
subject to the same provisions of the Constitution that states and the federal government are, if you are
U.S.C. § 2255.5 In some circumstances, a federal prisoner may bring a habeas action directly
under 28 U.S.C. § 2241, without using Section 2255. Additionally, in cases where the
defendant faces the death penalty, special procedures in 28 U.S.C. §§ 2261–66 may be used if
the state meets certain standards. See Part F (“How to Get Help from a Lawyer”) of this
Chapter for more information. There are also special rules governing procedures for filing
and litigating habeas corpus cases. These can be found in the “Rules Governing Section 2254
Cases in the United States District Courts,” and the “Rules Governing Section 2255
Proceedings in the United States District Courts.”6 The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) also affects federal habeas corpus law.7 These laws change
often, and courts often decide cases changing these laws’ interpretations. So, you should
Shepardize the cases included in this Chapter before relying on them.8
5. Three Rules to Know Before Filing
Habeas corpus law is very complex. Different courts follow different rules. You will need
to research cases in your district to understand how your district follows each rule. You
should use this Chapter as a general guide to direct more intensive research. You should try
to get a lawyer if you can,9 but if you cannot, you should not give up on your habeas claim.
Although it may seem confusing at first, after reading this Chapter the complexities of
federal habeas corpus will be easier to understand. Read this Chapter very carefully, and try
to understand what the rules are. Before you read the rest of this Chapter, however, there
are three important rules of which you must be aware.
(a) File Your Petition Within One Year of the End of Your Direct
Appeal
If you file a state post-conviction appeal, the one-year deadline will be extended while
your case goes through the state post-conviction process. This deadline and extension will be
discussed at greater length in Part D(4) (“Time Limit”) of this Chapter. It is important for
you to remember that time matters, and you must pay attention to the different time
requirements.
(b) Present Any and All Claims You Bring in a Federal Court to the
State Court First
This is called “exhaustion” and is discussed more fully in Part D(2) (“Exhaustion of State
Remedies and Direct Appeal”) of this Chapter. The point of this requirement is to give state
a tribal prisoner, you should do outside research to find out how habeas law applies to you. A few cases
dealing with habeas claims by petitioners in tribal custody are United States v. Lara, 541 U.S. 193, 124
S. Ct. 1628, 158 L. Ed. 2d 420 (2004); Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d
Cir. 1996); Wetsit v. Stafne, 44 F.3d 823 (9th Cir. 1995).
5. Technically, 28 U.S.C. § 2255 (2006) is not an application for habeas corpus, but it has the
same effect. Therefore, it is still referred to as a habeas petition.
6. In the United States Code (“U.S.C.”) the rules immediately follow the individual statute.
7. Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(codified as amended in scattered sections of 28 U.S.C. and 21 U.S.C.). The changes this law made to
the habeas statutes are all incorporated into later versions of the applicable statutes in title 28 of the
United States Code. If you have a recent copy of the United States Code or recent supplements to the
Code, the habeas statutes will contain the AEDPA changes. Such statutes include 28 U.S.C. §§ 2244,
2253, 2254, 2255, 2261–66 (2006) and 21 U.S.C. § 848 (2006).
8. By using LexisNexis and Shepardizing, you can make sure that the law has not changed. See
Chapter 2 of the JLM for an explanation of how to Shepardize a case.
9. Part F of this Chapter (“How to Get Help from a Lawyer”) gives more information on how to
get a lawyer for your habeas petition. You are not entitled to a lawyer and have to convince the court to
give you one. If the court denies your request, you can write your own habeas petition and ask for a
lawyer again after the court has seen your petition.
courts a chance to correct any violations of federal law that occurred during your trial before
you complain to a federal court in your habeas petition. So, if you do not ask the state court
for relief first, the federal court will not address your claims.
(c) Be Aware that It Is Almost Impossible to File More than One
Habeas Petition
Courts are very strict about this rule, and therefore you only have one chance to get your
habeas petition right. This means that you have to meet all the deadlines, follow all the court
procedures correctly, and include all the necessary information in your first habeas petition.
If you make a mistake or do not take this seriously, you probably will not be able to ask for
habeas relief again. For more information about this, see Part D(5) (“Successive Petitions”) of
this Chapter.
6. Plea Agreements May Affect Habeas Corpus Relief
Unfortunately, plea agreements can sometimes affect habeas corpus relief. If your
conviction was based on a plea, habeas relief may not be available to you. Some federal
courts, including the Tenth Circuit and the Middle District of Pennsylvania, have found a
successful post-conviction challenge like habeas is a breach of a plea agreement, under which
the defendant agreed to serve the imposed sentence without protest. These courts have
dissolved protesting defendants’ plea arrangements and later convicted them under the
charges previously dropped by the agreements.10 In other words, if your conviction was a part
of a plea agreement, your habeas relief may violate that previous arrangement. If the court
voids that plea agreement as part of your habeas relief, the prosecutor can try to convict and
imprison you under another charge that had been previously dropped under the plea
arrangement. In short, you may still end up in jail on another charge.11
But, at least one federal district court in New York has held that habeas relief does not
violate prior plea agreements. The Southern District of New York has granted habeas relief
and still held valid the previous plea arrangements. The court held that after the federal
court releases you based on a successful habeas petition, no prosecutor can try to convict you
for charges that were dropped by the prior plea agreements.12 The Ninth Circuit has also
held that a grant of habeas relief does not entitle the court to set aside the entire plea
10. See United States v. Bunner, 134 F.3d 1000, 1002–05 (10th Cir. 1998) (concluding that the
defendant’s challenge of the plea agreement breaks the contract, so the charges that were dismissed by
the plea agreement can be reinstated); United States v. Viera, 931 F. Supp. 1224, 1228–29 (M.D. Pa.
1996) (same). But see United States v. Sandoval-Lopez, 122 F.3d 797, 802 (9th Cir. 1997) (determining
that defendant did not break plea bargain contract by vacating conviction because plea agreement
prohibited attacks on the sentence, not the conviction); United States v. Gaither, 926 F. Supp. 50, 51–
52 (M.D. Pa. 1996) (holding that defendant did not breach plea agreement by moving to vacate his
conviction); DiCesare v. United States, 646 F. Supp. 544, 548 (C.D. Cal. 1986) (holding that government
is still bound by obligations in plea agreement when defendant’s conviction was vacated because of
intervening change in law).
11. However, the State may be prevented from reinstating charges against you if the statute of
limitations has run on the dismissed charges and you already served a substantial part of the sentence
you received as part of the plea agreement, unless you already agreed to waive the statute of
limitations defense in your plea agreement. See Rodriguez v. United States, 933 F. Supp. 279, 281–83
(S.D.N.Y. 1996) (ruling that the conviction should be dropped based on a new court ruling and that the
other charges dropped by the plea agreement cannot be reinstated as defendant could not be returned
to her position prior to the plea agreement, having already served more than half her sentence;
distinguishing this case from other cases where the dropped charges could be reinstated).
12. Rodriguez v. United States, 933 F. Supp. 279, 281–83 (S.D.N.Y. 1996) (ruling that the conviction
should be dropped based on a new court ruling and that the other charges dropped by the plea
agreement cannot be reinstated as defendant could not be returned to her position prior to the plea
agreement, having already served more than half her sentence; distinguishing this case from other
cases where the dropped charges could be reinstated).
agreement and let the State re-prosecute charges that had been dropped as part of the
agreement.13 If you are challenging the validity of your conviction on only one of multiple
counts, you should probably assume that the court would set aside the invalid conviction and
re-sentence you on the remaining crimes for which you pleaded guilty.
7. Can You Petition for Someone Else in Governmental Custody?
Filing a habeas petition for someone else is often allowed. The petitioner (the person who
files the habeas petition) is called a “next friend” and may be a relative, friend, or lawyer. To
be allowed to file a petition as a “next friend” in court, you must establish that (1) the
prisoner cannot bring the petition himself and (2) you are truly dedicated to the best
interests of the prisoner. Sometimes the courts may require that you have some significant
relationship with the prisoner.14 In addition, courts seek proof that the next friend is in a
better position to file the petition than the prisoner.15 In general, filing a habeas petition for
someone else is not allowed if it goes against the competent adult prisoner’s wishes. 16
However, courts usually permit parents to petition on behalf of their under-aged children
who are in governmental custody.17
B. The Fundamental Elements of a Federal Habeas Corpus Argument
Prisoners in both state and federal custody can complain about the same types of
problems under federal habeas corpus law. This part of the Chapter will give you an idea of
what types of claims you can make in a habeas petition and how to prove you are entitled to
relief. It is important to remember that if you are a state prisoner, you must present any
claim in your habeas petition to the state court first. This requirement, called exhaustion,
will be discussed in Part D(2) (“Exhaustion of State Remedies and Direct Appeal”).
To argue for federal habeas relief, you will try to show that you are being held in prison
illegally because you have been wrongfully convicted in violation of your rights. Because the
Constitution is the only federal law that governs state criminal procedures, habeas claims by
state prisoners must claim a violation of the Constitution. Federal prisoners may claim
violations of other federal laws. The Constitution does not describe in detail what is included
in the set of constitutional rights that you have. The U.S. Supreme Court interprets the
Constitution, so the cases it decides describe specifically what makes up a constitutional
13. United States v. Barron, 172 F.3d 1153, 1158–60 (9th Cir. 1999) (holding that a defendant
seeking to set aside a conviction for conduct that was innocent under a statute neither breached the
plea agreement nor repudiated the agreement and that, as a result, the district court could only vacate
the judgment and resentence the defendant on the counts of conviction that still stood, not those counts
that had been dropped).
14. See Whitmore v. Arkansas, 495 U.S. 149, 163–64, 110 S. Ct. 1717, 1727, 109 L. Ed. 2d 135, 150 (1990)
(noting that the two prerequisites for next friend standing are (1) providing an adequate explanation, such as mental
incompetence or disability as to why the real party in interest cannot appear on his own behalf and (2) showing that the
“next friend” is truly dedicated to the best interests of the person on whose behalf he or she seeks to litigate and has
some significant relationship with the real party in interest).
15. See Demosthenes v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223, 2225, 109 L. Ed. 2d 762, 766
(1990) (per curiam) (holding though the prisoner’s parents filed a petition for him, he was competent to
represent his own interests); Lonchar v. Thomas, 58 F.3d 588, 588 (11th Cir. 1995) (per curiam)
(denying next friend petition because prisoner was competent and did not want a habeas petition filed,
but confirming allowing a next friend petition where prisoner is incompetent).
16. See In re Zettlemoyer, 53 F.3d 24, 28 (3d Cir. 1995) (per curiam) (denying next friend petition
brought by both prisoner’s former counsel and his mother because prisoner competently chose to waive
right to file habeas petition, but not questioning lawyer’s ability to proceed on an incompetent
prisoner’s behalf).
17. See Amerson v. Iowa, 59 F.3d 92, 93 n.3 (8th Cir. 1995) (concluding that although a child was
placed with the state department of human services, the child’s mother “was, and still is a proper next
friend to bring this petition on behalf of [the child], notwithstanding termination of her parental
rights…”).
right or violation. To argue that you deserve federal habeas relief, you will first need to show
which of your federal rights were violated. Section One of this Part explains how to find
constitutional violations and gives many examples and cases to reference. Once you have
identified at least one possible violation, you will need to identify the standard the court uses
to determine whether the action violated your rights. Section Two explains both how to find
the standard the court uses for your violation and how to show the court that the standard
was met. However, just showing that your rights were violated is not enough to get federal
habeas relief. You must also show that the violation of your rights harmed you by having a
substantial effect on the outcome of your trial. Section Three therefore explains how to show
the court that the violation of your rights was not a harmless error, in other words that the
error had a “substantial effect” on your trial. If you are a federal prisoner, once you have
shown that your rights were violated and that the violation substantially harmed your trial,
you will have shown that you deserve habeas relief. However, there are many specific
procedures that you must follow to successfully file for habeas corpus. These procedures are
discussed in Part D (“Procedures for Filing a Petition for Habeas Corpus”).
If you are a state prisoner, showing that your federal rights were violated and that the
violation substantially harmed your trial is not enough to be granted habeas relief in federal
court. As a state prisoner, you have another very important element of your habeas petition
to prove: that the state court was so incorrect that it was unreasonable in finding either your
rights were not violated or the outcome of trial was not affected by the violation. This
“unreasonableness” requirement is called the standard of relief, and it is a very hard
standard to meet. It is discussed in detail in Section Four of this Part. To sum up, as a state
prisoner, you must show that your rights were violated, the violation was not harmless, and
the state court was incorrect according to the high standard of relief in order for you to
obtain federal habeas relief.
1. Examples of Constitutional Violations
To obtain a writ of habeas corpus, you must show the court that your custody violates the
Constitution or laws of the United States.18 You cannot claim that your custody violates the
state constitution or state laws because federal habeas corpus relief is only granted if your
federal rights have been violated. You can satisfy this requirement by showing that the
police, prosecutor, defense counsel, or judge acted (or failed to act)—during your arrest, trial,
or sentencing—in a way that violated your constitutional rights. Your constitutional rights
can be found in the amendments to the Constitution. Habeas claims often state violations of
the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.
Below are two lists. The first is designed to give you a very general idea of what rights
these amendments guarantee. The second list gives some examples of habeas claims in
violation of these amendments. It is hard to understand what these rights mean in real
situations without looking at cases. You should look over this list, and then if you think one
of these rights may have been violated in your case, read the cases in the footnotes following
the list relating to that amendment to get a better understanding of exactly how the court
has interpreted the right in real situations. Also, read the list of examples below to see if you
experienced anything similar to the violations listed. Remember, these are just general lists,
and the examples provide only a selection of some of the things found to violate the
Constitution. You may have experienced a violation that is not mentioned here and still may
be able to get habeas corpus relief.
(a) The Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments:
18. 28 U.S.C. § 2254(a) (2006). Because there are no federal laws that regulate state criminal
proceedings, as a state prisoner you must prove that your custody violates the U.S. Constitution.
Remember, you can raise state constitutional violations in your petition only if they amount to a denial
of your rights under the federal Constitution.
Fourth Amendment: This is the right to be free from unlawful search or seizure. This
amendment is why the police need to have warrants or probable cause to search you or take
your property.
Fifth Amendment: This Amendment has a few rights in it. First is the right to be tried
before a jury for certain crimes. Second is the right to be tried only once for any specific
crime. Being tried more than once for the same crime is called “double jeopardy” and is not
legally allowed. Third is the right to be free from self-incrimination. This means that you do
not have to disclose evidence that would help the people prosecuting you. It is why you don’t
have to speak to the police or be a witness in your own trial. Fourth is the right to due
process. Due process basically means a fair procedure, but the courts have identified many
elements under the right to due process.
Sixth Amendment: This Amendment also has several rights in it. First is the right to a
speedy and public trial. Second is the right to an impartial jury. Third is the right to have
your trial in the state and district where the crime occurred. Fourth is the right to be
informed of the crime you are charged with. Fifth is the right to confront witnesses against
you and to be able to obtain witnesses for your side. Sixth is the right to have the assistance
of a lawyer.
Eighth Amendment: This is the right to be free from excessive bail, fines, or cruel and
unusual punishment.
Fourteenth Amendment: This Amendment again guarantees the right to due process (see
the explanation for the Fifth Amendment above), but this time applies specifically to states.
This amendment is what makes the above rights apply to both federal trials and state trials.
If you are a state prisoner, remember that you may only raise violations of the
Constitution in your habeas petition. If you are a federal prisoner, you may raise violations of
the Constitution or violations of federal criminal law.19
(b) Examples of Habeas Claims Based on the Constitution
(1) Investigation and Policing: A witness identified you through a police line-up or
photograph in which the police were (impermissibly) suggestive,20 violating your
Fourteenth Amendment right to due process.
(2) Your Confession: Your confession was obtained involuntarily in violation of your
Fourteenth Amendment due process rights.21 In order to prove that your confession
19. See Title 18 of the United States Code for information on federal criminal law.
20. Suggestiveness is generally determined by five factors: (1) the opportunity of the witness to
view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the
witness’s prior description of the criminal; (4) the level of certainty demonstrated at the confrontation;
and (5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114–15,
97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977); see also Neil v. Biggers, 409 U.S. 188, 199–200, 93 S.
Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972) (discussing suggestiveness and the possible danger from
police suggestiveness, but ultimately finding that the totality of circumstances showed that the
suggestiveness was overcome); Dickerson v. Fogg, 692 F.2d 238, 244 (2d Cir. 1982) (granting habeas
relief because the identification was impermissibly suggestive based on the five-factor assessment).
Dickerson involved both a pretrial and in-court identification. The court thus held that the
suggestiveness of the pretrial identification must be weighed against the independent reliability of the
in-court identification.
21. See Miller v. Fenton, 474 U.S. 104, 110–12, 106 S. Ct. 445, 449–51, 88 L. Ed. 2d 405, 411–12
(1985) (holding that the voluntariness of a confession is not a factual question but a legal question that
requires independent consideration in a habeas proceeding, and therefore finding it not subject to the §
2254(d) presumption of correctness for state court findings of fact). In Miller, the police got a confession
by questioning a suspect with a mental problem and telling him that he would receive medical help
rather than punishment if he confessed.
was involuntary, you must prove that your will was overborne (overtaken).22 Some
facts that may support a claim that your will was overborne include threats of
physical violence,23 threats against loved ones,24 repeated coercive questioning after
you indicated that you wanted to stop answering questions,25 fraudulent promises by
police,26 and other forms of ill-treatment.27
(3) Right to Counsel Violations:
(a) You were denied your Fifth and Sixth Amendment rights to counsel. You would
claim this if you were denied counsel that the State should have provided
because you were indigent (poor);28 you were denied the opportunity for new
counsel when an irreconcilable difference arose between you and your appointed
counsel;29 you were denied counsel at arraignment;30 you did not voluntarily,
knowingly, and intelligently waive your right to counsel during interrogation or
22. See Dickerson v. United States, 530 U.S. 428, 434, 120 S. Ct. 2326, 2331, 147 L. Ed. 2d 405,
413 (2000) (affirming that when a defendant claims his confession was involuntary, the question is
whether his will was overborne by the circumstances surrounding the giving of the confession).
23. See Brown v. Mississippi, 297 U.S. 278, 286, 56 S. Ct. 461, 465, 80 L. Ed. 682 (1936) (stating
that due process is violated when violence is used to coerce confession).
24. See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S. Ct. 917, 920, 9 L. Ed. 2d 922, 926 (1963)
(finding that defendant’s confession was involuntary because her will was overborne when the police
threatened to take her young children from her if she did not confess).
25. See Kordenbrock v. Scroggy, 919 F.2d 1091, 1100 (6th Cir. 1990) (holding portions of confession
invalid when obtained after police ignored defendant’s statements that he did not want to talk and
threatened to arrest his girlfriend).
26. See United States v. Rutledge, 900 F.2d 1127, 1130–31 (7th Cir. 1990) (holding that police are
allowed to pressure, cajole, conceal facts, actively mislead, and commit minor acts of fraud, but are not
allowed to magnify a suspect’s fears, ignorance, anxieties, or uncertainties to the point where rational
decision becomes impossible); see also Moore v. Czerniak, 534 F.3d 1128, 1138 n.10 (9th Cir. 2008)
(noting that petitioner’s taped confession given to police was involuntarily given in response to a police
officer’s false promises of leniency and that petitioner’s attorney’s failure to seek suppression of this
evidence was objectively unreasonable given the possibility of attaining a superior plea bargain).
27. See Davis v. North Carolina, 384 U.S. 737, 752, 86 S. Ct. 1761, 1770, 16 L. Ed. 2d 895, 905
(1966) (finding that where police held a prisoner in a cell and questioned him off and on for 16 days
with a meager diet, the prisoner’s confession was an involuntary end product of coercive influences and
therefore constitutionally inadmissible).
28. See Gideon v. Wainwright, 372 U.S. 335, 343–45, 83 S. Ct. 792, 796–97, 9 L. Ed. 2d 799, 804–
06 (1963) (holding that, in a criminal trial, if defendant cannot afford counsel, counsel must be
provided); see also Swenson v. Bosler, 386 U.S. 258, 259, 87 S. Ct. 996, 997, 18 L. Ed. 2d 33, 35 (1967)
(holding that the right to counsel on direct appeal in state courts cannot be denied to a defendant solely
because he is unable to afford a lawyer).
29. See Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (holding that a trial court may not
ignore the timely motion for new counsel by an indigent defendant with appointed counsel). But see
United States v. Calabro, 467 F.2d 973 (2d Cir. 1972) (holding that defendant must show good cause for
rejecting assigned counsel, like a complete breakdown in communication, a conflict of interest, or
irreconcilable conflict with the attorney); United States v. Garey, 540 F.3d 1253, 1270 (11th Cir. 2008)
(finding defendant waived the right to counsel when he rejected his appointed counsel three days before
trial and his request for substitute counsel was denied); Jones v. Walker, 540 F.3d 1277, 1295 (11th
Cir. 2008) (finding there is no violation of the right to counsel if a defendant proceeds pro se because he
refuses to work with an assigned public defender and is denied his request to have another public
defender assigned to him).
30. See Rothgery v. Gillespie County, 128 S. Ct. 2578, 2581, 171 L. Ed. 2d 366, 372 (2008) (holding
that the 6th Amendment’s guarantee of the right to counsel applies at a defendant’s first appearance
before a judicial officer where the defendant should be told of the formal accusations against him and
the restrictions imposed on his liberty).
discussions with police officers while in custody;31 or your lawyer provided such
poor representation as to amount to ineffective assistance of counsel.32
(b) The trial court unreasonably denied your request to proceed pro se (as your own
attorney).33
(c) You were convicted based on information provided by an informant who was
“bugged” or reported jail cell conversations between you and him in violation of
the Fifth or Sixth Amendments.34
(d) You were temporarily banned from consulting with your attorney.35
31. See Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977) (placing the
burden on the prosecutor to show that the defendant has voluntarily, knowingly, and intelligently
waived his right to counsel); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)
(finding that defendant must be informed of his rights before he may be considered to have knowingly
and intelligently waived his right to counsel); see also Stansbury v. California, 511 U.S. 318, 114 S. Ct.
1526, 128 L. Ed. 2d 293 (1994) (finding that defendant must be given Miranda warnings if he is in
custody and being questioned). But see Texas v. Cobb, 532 U.S. 162, 121 S. Ct. 1335, 149 L. Ed. 2d 321
(2001) (holding that the 6th Amendment right is “offense specific” and that a defendant charged with
burglary did not have a right to counsel when being interrogated about a murder from the same
incident); Young v. Walls, 311 F.3d 846, 850 (7th Cir. 2002) (finding the purpose of Miranda warnings
is to protect a suspect from coerced self-incrimination, so police failure to give Miranda warnings to a
suspect who confessed because he wanted to talk is not unconstitutional).
32. See Wiggins v. Smith, 539 U.S. 510, 524, 123 S. Ct. 2527, 2536, 156 L. Ed. 2d 471, 486 (2003)
(granting defendant’s habeas claim for ineffective assistance of counsel when counsel failed to
investigate defendant’s life history, which included sexual and physical abuse, diminished mental
capacities, and severe family problems). See also Part B(2) of this Chapter (“Standards and Tests for
Claims of Violations”) for more information on ineffective assistance of counsel.
33. Faretta v. California, 422 U.S. 806, 818–19, 95 S. Ct. 2525, 2532–33, 45 L. Ed. 2d 562, 572–73
(1975) (finding that the 6th and 14th Amendments provide the right of self-representation); United
States v. Hernandez, 203 F.3d 614, 621 (9th Cir. 2000) (finding that a denial of a pro se request may be
unconstitutional if it was made before jury selection and if the request was not a delay tactic); see also
Moore v. Haviland, 531 F.3d 393, 404 (6th Cir. 2008) (holding that petitioner’s habeas relief was
warranted because he was denied the right to proceed pro se where petitioner had requested during
trial to proceed pro se and did not waive this right merely by responding to questions posed by his
attorney). But see Indiana v. Edwards, 128 S. Ct. 2379, 2386, 171 L. Ed. 2d 345, 355 (2008) (holding
that defendant could be denied right to self-representation if he is deemed not competent to defend
himself at trial, even if he is competent enough to stand trial). Note that this does not mean that you
have a constitutional right to any counsel. The court may reject your request to have a non-lawyer,
other than yourself, represent you. United States v. Gigax, 605 F.2d 507, 517 (10th Cir. 1979) (finding
that the 6th Amendment does not protect the right to be represented by a lay person).
34. See Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 1203, 12 L. Ed. 2d 246, 250
(1964) (finding that evidence from a conversation between defendant on bail and a co-defendant that
was radio transmitted without defendant’s knowledge violated his 6th Amendment right to assistance
of counsel); see also Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985) (finding
that the state violated the 6th Amendment right of the defendant when they recorded conversations
between him and a co-defendant who was operating as an undercover agent for the state); United
States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980) (omitting from trial the
defendant’s incriminating statements made to a paid informant who was confined in the same cell
block as defendant because the government was found to have violated the defendant’s 6th Amendment
right to counsel by intentionally creating a situation that was likely to induce the defendant to make
incriminating statements). But see Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 91 L. Ed. 2d 364
(1986) (holding that it is not a constitutional violation if the informant merely listens to the defendant
without questioning or inciting him to speak); United States v. Rommy, 506 F.3d 108, 136 (2d Cir.
2007) (holding that it is not a constitutional violation if the informant’s questions to the defendant do
not stimulate discussion but only seek to clarify information already volunteered).
35. See Jones v. Vacco, 126 F.3d 408, 415–17 (2d Cir. 1997) (finding that an overnight ban on
petitioner’s consultation with his attorney, imposed when the trial judge declared an overnight recess
during petitioner’s cross-examination, violated petitioner’s 6th Amendment right to counsel).
(4) Your Competency: You were denied your Fourteenth Amendment right to an
examination to determine whether you were competent to stand trial, whether you
were competent to waive counsel, or whether you were competent to plead guilty.36
(5) Your Guilty Plea: Your guilty plea was unconstitutional because you pled guilty
involuntarily.37
(a) You pleaded guilty as part of a plea bargain agreement that was broken.38
(b) You pleaded guilty without understanding the charges against you,39 or language
difficulties prevented you from understanding the charges against you.40
36. The Supreme Court has held that the standard of competency is the same for these three
matters. That is, if a defendant is found competent to stand trial, he is necessarily competent to waive
counsel and to plead guilty. Godinez v. Moran, 509 U.S. 389, 391, 113 S. Ct. 2680, 2682, 125 L. Ed. 2d
321, 327 (1993). The court identified the test for legal competency as “whether [the defendant] has
sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding
and whether he has a rational as well as factual understanding of the proceedings against him.” Drope
v. Missouri, 420 U.S. 162, 171–72, 95 S. Ct. 896, 903–04, 43 L. Ed. 2d 103, 112–13 (1975) (finding a
psychiatric evaluation was also required when, among other indications, defendant had attempted
suicide during trial); see also Cooper v. Oklahoma, 517 U.S. 348, 369, 116 S. Ct. 1373, 1384, 134 L. Ed.
2d 498, 515 (1996) (finding that a state law presuming defendant is competent unless he proves his
incompetence by clear and convincing evidence violates due process); Pate v. Robinson, 383 U.S. 375,
385, 86 S. Ct. 836, 842, 15 L. Ed. 2d 815, 822 (1966) (holding defendant is entitled to a competency
hearing when there has been evidence presented in trial showing his insanity, since convicting an
incompetent defendant violates the 14th Amendment); Johnson v. Norton, 249 F.3d 20, 22 (1st Cir.
2001) (finding a violation of due process when trial court did not hold a competency hearing when
defendant stated that he did not know “what’s going on” because he had been hit on the head and lost
consciousness just before the start of trial); Bouchillon v. Collins, 907 F.2d 589, 592–94 (5th Cir. 1990)
(finding that there was sufficient evidence at trial to establish a reasonable probability that defendant
was incompetent at the time of a guilty plea due to post-traumatic stress disorder).
37. See Fontaine v. United States, 411 U.S. 213–15, 93 S. Ct. 1461–63, 36 L. Ed. 2d 169 (1973)
(holding defendant entitled to a hearing to determine whether or not his guilty plea was voluntary even
though he had declared in open court that his plea was given voluntarily and knowingly); Machibroda
v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962) (holding that petitioner was
entitled to a hearing on the issue of whether his guilty plea, which was based on the prosecutor’s
threats and unkept promises, was made involuntarily); Fair v. Zant, 715 F.2d 1519, 1520–22 (11th Cir.
1983) (holding that defendant’s guilty plea was not voluntary where trial judge told defendant he could
plead guilty but later withdraw his plea if he did not want to accept the sentence, but then refused to
allow withdrawal of plea after sentencing); United States ex rel. Hill v. Ternullo, 510 F.2d 844 (2d Cir.
1975) (holding that defendant was entitled to a hearing to determine whether his guilty plea was
voluntary when his guilty plea was made based on his attorney’s assurances that he would receive a
lesser sentence than what was allowed under state law).
38. See Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427, 433 (1971)
(holding that when pleas rest on an implied promise or on an agreement by a prosecutor that he will
make no sentencing recommendations, such promises must be fulfilled); Brown v. Poole, 337 F.3d 1155,
1160–61 (9th Cir. 2003) (granting habeas relief and release of prisoner when state breached oral plea
agreement that prisoner would only have to serve half of her 15-year sentence if she maintained a good
prison record, even though prosecutor never had authority to make such a promise); Johnson v. Beto,
466 F.2d 478, 479–80 (5th Cir. 1972) (holding that if a prosecutor says he will make a sentencing
recommendation in exchange for a guilty plea, but then actually recommends a harsher sentence in
court, the plea bargain has been broken and defendant is entitled to resentencing or withdrawal of his
guilty plea).
39. See Marshall v. Lonberger, 459 U.S. 422, 436, 103 S. Ct. 843, 852, 74 L. Ed. 2d 646, 660 (1983)
(ruling that a guilty plea cannot be voluntary unless the accused has “received real notice of the true
nature of the charge against him”); Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253, 49 L. Ed. 2d
103 (1976) (ruling that where neither defense counsel nor the trial court had explained the elements of
the offense of second degree murder, the guilty plea was involuntary); United States v. Andrades, 169
F.3d 131 (2d Cir. 1999) (holding that defendant’s guilty plea was invalid because he did not understand
the nature of the charges against him due to his poor education and drug addiction).
(c) You pleaded guilty without understanding the consequences of pleading guilty.41
(6) Timing of Conviction and Trial:
(a) The statute of limitations had already run out when you were charged with the
offense,42 or you were charged with a federal, non-capital crime more than five
years after the crime occurred.43
(b) You were denied your Sixth Amendment right to a speedy trial.44
(7) Right to Be Free from Self-Incrimination:
(a) You were made to testify before a grand jury in violation of your Fifth
Amendment right against self-incrimination.45
40. The Court Interpreters Act, 28 U.S.C. §§ 1827–1828 (2006), requires the court to supply you
with an interpreter if you do not understand English. See also United States v. Mosquera, 816 F. Supp.
168, 177 (E.D.N.Y. 1993) (setting requirements for translation in cases in which the defendant does not
speak English), aff’d 48 F.3d 1214 (2d Cir. 1994).
41. See Marvel v. United States, 380 U.S. 262, 85 S. Ct. 953, 13 L. Ed. 2d 960 (1965) (ordering a
rehearing to determine whether the trial judge misled the defendant about maximum possible
sentence); United States ex rel. Leeson v. Damon, 496 F.2d 718 (2d Cir. 1974) (reversing a conviction
because the appellant did not understand that his plea could result in confinement in a reformatory for
five years rather than a shorter state prison term); Jones v. United States, 440 F.2d 466 (2d Cir. 1971)
(ruling a defendant was entitled to a hearing on whether he was aware of the maximum possible
sentence at the time of his guilty plea and, if not, whether he would have pled guilty had he known).
42. A statute of limitations is a period of years, set by state law, after which the government
cannot prosecute a suspect. Statutes of limitations vary depending on the crime with which you are
charged. The clock starts running on a statute of limitations once the crime is committed. The statute of
limitations cannot be waived. This time limit is different than the 6th Amendment right to a speedy
trial. The right to a speedy trial does not start running until you are indicted; you can waive this right,
and the court balances this right against other considerations.
43. See 18 U.S.C. § 3282 (2006), which requires the federal government to issue an indictment
within five years of the commission of a non-capital offense. There is an important new exception to
this rule: the government can issue a “DNA profile indictment” that contains a set of DNA
identification characteristics but not the identity of the accused. An indictment issued under this rule is
not subject to the five-year limitation. See 18 U.S.C. § 3282(b) (Supp. 2007). There are many other
federal laws that govern the procedure to be followed in federal criminal trials and sentencing.
44. Courts follow the guidelines set out in Barker v. Wingo, 407 U.S. 514 (1972) to determine
whether a defendant was denied his right to a speedy trial. Courts balance the conduct of the
prosecution and defendant and look at these factors: (1) the length of the delay; (2) the reason for the
delay; (3) whether the defendant asked for a speedy trial; and (4) whether the delay prejudiced the
defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972)
(ruling that where defendant did not want a speedy trial, and was not seriously prejudiced by the delay,
a five-year delay between arrest and trial did not violate defendant’s 6th Amendment rights); see also
Klopfer v. North Carolina, 386 U.S. 213, 221–22, 87 S. Ct. 988, 992–93, 18 L. Ed. 2d 1, 7 (1967) (ruling
that a state may not postpone prosecution of any case for an unlimited period even though the accused
remains free to go wherever he desires). But see Reed v. Farley, 512 U.S. 339, 114 S. Ct. 2291, 129 L.
Ed. 2d 277 (1994) (ruling that violation of a federal statute that limits trial length is not necessarily a
violation of the constitutional right to a speedy trial when defendant did not object to delay and showed
no prejudice from the delay); United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468
(1971) (ruling that the right to a speedy trial guaranteed by the 6th Amendment does not apply until
you have been accused of a crime, which may not occur until indictment).
45. See United States v. Mandujano, 425 U.S. 564, 575, 96 S. Ct. 1768, 1776, 48 L. Ed. 2d 212, 221
(1976) (ruling that a witness cannot be compelled to answer questions that are self-incriminating, a
determination that the judge may make if necessary). But see Kastigar v. United States, 406 U.S. 441,
459–62, 92 S. Ct. 1653, 1664–66, 32 L. Ed. 2d 212, 225–27 (1972) (finding that a defendant may be
forced to testify over a claim of privilege from self-incrimination when defendant has been granted
immunity from use of the compelled testimony, or evidence derived from the testimony, in future
criminal proceedings).
(b) After you were promised immunity in exchange for testimony before a grand jury,
the grand jury used your testimony against you in violation of your Fifth
Amendment right against self-incrimination.46
(c) During trial the prosecutor commented on your post-arrest silence in violation of
your Fifth Amendment right against self-incrimination;47 or the prosecutor made
an improper summation. (A summation, or closing argument, is the argument
made to the jury at the end of a trial.)48
(d) Statements that you made at a court-ordered competency hearing before a state-
appointed psychologist or psychiatrist were used against you in violation of your
Fifth and Fourteenth Amendment rights against self-incrimination.49
46. Two types of immunity may be granted to witnesses who testify before grand juries.
“Transactional immunity” gives a potential defendant full immunity from prosecution for any offense
related to the incident in question. “Use immunity,” on the other hand, only guarantees that the
government will not use any of the information revealed in your testimony in future proceedings
against you. See Kastigar v. United States, 406 U.S. 441, 458, 92 S. Ct. 1653, 1664, 32 L. Ed. 2d 212,
225 (1972) (ruling that a court can compel witnesses to testify simply by giving them use immunity and
that the court does not also need to give transactional immunity); see also United States ex rel.
Gasparino v. Butler, 398 F. Supp. 127, 129–30 (S.D.N.Y. 1974) (ruling that, in New York, use immunity
is the usual kind of immunity intended and that transactional immunity must be expressly authorized
by a grand jury vote). Note, however, that habeas petitions are rarely granted on these grounds.
47. See Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976) (holding that due
process rights are violated when the prosecutor questions defendant about why he didn’t tell his story
to police after Miranda warnings at time of his arrest); Griffin v. California, 380 U.S. 609, 85 S. Ct.
1229, 14 L. Ed. 2d 106 (1965) (ruling that a defendant’s 5th Amendment rights were violated where
judge instructed jury that they may take into account failure of defendant to testify about evidence to
indicate the truthfulness of that evidence); Gravley v. Mills, 87 F.3d 779 (6th Cir. 1996) (holding that a
prosecutor violated due process by repeatedly making references to petitioner’s post-arrest silence; also
finding that defendant had ineffective assistance of counsel because counsel had not objected to
prosecutor’s comments at trial); Hill v. Turpin, 135 F.3d 1411, 1416 (11th Cir. 1998) (granting habeas
corpus where prosecutor’s references to petitioner’s post-Miranda assertions of right to remain silent
were “repeated and deliberate”). But see Fletcher v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 1371, 71
L. Ed. 2d 490, 494 (1982) (finding that it is not a constitutional violation for prosecutors to use post-
arrest silence to impeach a defendant where the defendant had not been told that he had a right to
remain silent); Roberts v. United States, 445 U.S. 552, 561, 100 S. Ct. 1358, 1364–65, 63 L. Ed. 2d 622,
631 (1980) (refusing to consider petitioner’s 5th Amendment claim when he was given a harsher
sentence due to his refusal to answer questions about drug suppliers because his purpose in keeping
silent was not to prevent self-incrimination); Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L.
Ed. 86 (1980) (finding that it is not a constitutional violation for prosecutors to use a defendant’s pre-
arrest two-week silence to impeach his testimony that he had acted in self-defense); Splunge v. Parke,
160 F.3d 369 (7th Cir. 1998) (holding that prosecutor’s comment on petitioner’s post-arrest silence was
not a 5th Amendment violation when not used for the purpose of impeaching petitioner at trial).
Therefore, the mere fact that the prosecution or judge improperly commented on your silence will not
necessarily afford you relief.
48. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144, 157
(1986) (announcing that where prosecutor called defendant an animal and made offensive emotional
remarks, the comments were improper, but not granting relief because the comments did not “so infect
the trial with unfairness as to make the resulting conviction a denial of due process”); United States v.
Elias, 285 F.3d 183, 190 (2d Cir. 2002) (noting that remarks of a prosecutor during summation do not
amount to a due process violation unless they constitute egregious misconduct); Moore v. Morton, 255
F.3d 95, 119–20 (3d Cir. 2001) (ruling that habeas relief was appropriate when prosecutor made
improper race-based comments and trial judge’s curative instructions to the jury were not adequate to
ensure a fair trial, and listing in footnotes 15 and 16 cases where habeas relief was granted or denied
for improper racial comments).
49. See Satterwhite v. Texas, 486 U.S. 249, 260, 108 S. Ct. 1792, 1799, 100 L. Ed. 2d 284, 296
(1988) (ruling that where defendant was not afforded right to consult with counsel before submitting to
psychiatric examination, admission of testimony based on examination was a constitutional violation
(8) Access-to-Evidence Violations:
(a) The prosecution withheld requested50 evidence that could have helped your case,
in violation of the Fourteenth Amendment.51
(b) The state failed to preserve important evidence in your investigation.52
and not harmless error); Estelle v. Smith, 451 U.S. 454, 467–69, 101 S. Ct. 1866, 1875–76, 68 L. Ed. 2d
359, 372 (1981) (finding that defendant’s statements in a court-ordered psychiatric examination could
not be admitted at a capital trial when the defendant had not been warned of his 5th Amendment
privilege against compelled self-incrimination); Buchanan v. Kentucky, 483 U.S. 402, 421–24, 107 S.
Ct. 2906, 2916–18, 97 L. Ed. 2d 336, 354–56 (1987) (ruling that the prosecution may use psychologist’s
report solely to rebut petitioner’s psychological evidence).
50. A defendant's failure to request evidence that could have helped his case does not leave the
Government free of all obligations. See United States v. Agurs, 427 U.S. 97, 103–08, 96 S. Ct. 2392,
2397–99, 49 L. Ed. 2d 342, 349–52 (1976) (finding that there are three situations in which a Brady
claim might arise: (1) where new evidence revealed that the prosecution introduced trial testimony that
it knew or should have known was false; (2) where the prosecution failed to obey a defense request for
specific exculpatory evidence (evidence that helps to prove defendant's innocence); and (3) where the
prosecution failed to volunteer exculpatory evidence that was never requested, or requested only in a
general way; and noting the existence of a duty on the part of the Government in this last situation
when suppression of the evidence would be “of sufficient significance to result in the denial of the
defendant's right to a fair trial”); see also United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375,
3381–82, 87 L. Ed. 2d 481, 491–92 (1985) (finding that regardless of whether the request for the
evidence was specific or general, favorable evidence is material, and the government violates the
Constitution by suppressing such evidence "if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different”); Kyles v. Whitley,
514 U.S. 419, 435, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490, 507 (1995) (finding that once a court
applying Bagley has found constitutional error, there is no need for further harmless-error review).
51. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215, 218 (1963)
(holding that the prosecution must turn over evidence to the defense if evidence is exculpatory,
impeaching, or material). The Brady standard says that the prosecution must disclose evidence that is
exculpatory (helps to prove the defendant’s innocence) or impeaching (shows one of the prosecution’s
witnesses might not be believable). Exculpatory or impeaching evidence must also be material, which
means that there must be a “reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667,
682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985); see also Kyles v. Whitley, 514 U.S. 419, 421–
22, 115 S. Ct. 1555, 1560, 131 L. Ed. 2d 490, 498 (1995) (“[B]ecause the net effect of the evidence
withheld by the State in this case raises a reasonable probability that its disclosure would have
produced a different result, [defendant] is entitled to a new trial.” (internal citation omitted));
Pennsylvania v. Ritchie, 480 U.S. 39, 59–60, 107 S. Ct. 989, 1002–03, 94 L. Ed. 2d 40, 58–59 (1987)
(finding that a defendant has the right to ask the court to review confidential files to see if evidence is
material, but the defendant does not have the right to examine the confidential files himself); United
States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985) (holding that
evidence impeaching a witness’ credibility falls within the Brady rule); United States v. Agurs, 427 U.S.
97, 112–14, 96 S. Ct. 2392, 2401–02 49 L. Ed. 2d 342, 354–56 (1976) (holding that evidence of a murder
victim’s prior criminal record was not “material” and did not have to be turned over to the defense
because it did not change the probability that the result of the trial would have been different); Boyette
v. Lefevre, 246 F.3d 76, 93 (2d Cir. 2001) (holding that a state’s non-disclosure of information relating
to the witness’s ability to identify the defendant was a Brady violation because the non-disclosure
seriously undermined “confidence in the outcome of the trial”); Carriger v. Stewart, 132 F.3d 463, 478–
79 (9th Cir. 1997) (en banc) (finding a violation of due process when the prosecutor failed to disclose
that the man the defendant claimed had committed the murder and was also the prosecutor’s main
witness had a long history of prior crimes, of lying to police, and of shifting blame to others, and there
was evidence that he had boasted about committing the murder).
52. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215, 218 (1963)
(holding that “the suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or punishment, irrespective of the
good faith or bad faith of the prosecution”); Killian v. Poole, 282 F.3d 1204, 1209–10 (9th Cir. 2002)
(holding that the prosecution’s failure to turn over letters in which the prosecution’s witness admitted
(c) You were denied needed expert assistance at trial in violation of the Fourteenth
Amendment.53
(d) The prosecution admitted hearsay, or out-of-court statements against you in
violation of the confrontation clause of the Sixth Amendment,54 and the admitted
hearsay did not qualify as one of the many exceptions to the hearsay rule.55
(9) Witness Violations:
(a) You were denied the right to cross-examine a witness who testified against you.56
to perjury in order to gain sentencing concessions amounted to a constitutional violation and, with
other violations at trial, amounted to reversible error). But see Arizona v. Youngblood, 488 U.S. 51, 57–
58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988) (holding that to show a denial of due process,
defendant must show that the prosecution acted in bad faith in failing to preserve evidence if the
evidence is only potentially exculpatory); California v. Trombetta, 467 U.S. 479, 490–91, 104 S. Ct.
2528, 2534–35, 81 L. Ed. 2d 413, 423 (1984) (finding that the state’s failure to retain breath samples for
defendants was not a violation of procedural due process when defendants had alternative means of
demonstrating their innocence); United States v. Garza, 435 F.3d 73, 75–76 (1st Cir. 2006) (ruling that
the destruction of evidence is a violation of due process if the exculpatory value of the evidence was
apparent before its destruction and if the evidence is of such a nature that the defendant cannot obtain
comparable evidence, but finding in this situation that the violation was harmless). The case law
establishing that destruction of evidence can be a constitutional violation is based on the case law that
withholding evidence is a constitutional violation.
53. See Ake v. Oklahoma, 470 U.S. 68, 82–83, 105 S. Ct. 1087, 1096, 84 L. Ed. 2d 53, 66 (1985)
(noting that when an indigent defendant shows that his sanity will be a significant factor in his
defense, due process entitles the defendant to the services of a court-appointed expert to “conduct an
appropriate examination and assist in evaluation, preparation, and presentation of the defense”);
Schultz v. Page, 313 F.3d 1010, 1017–18 (7th Cir. 2002) (finding that the competency evaluation
ordered by the court and conducted at the time of trial was insufficient to establish defendant’s sanity
at the time of the crime and that denial of defendant’s request for an evaluation of his sanity at the
time of the crime violated due process where defendant had shown sanity was a significant factor at
trial); Starr v. Lockhart, 23 F.3d 1280, 1287 (8th Cir. 1994) (holding that the denial of petitioner’s
request for appointment of a mental health expert to develop evidence of diminished capacity and
mitigating circumstances violated his due process rights).
54. The “Confrontation Clause” of the 6th Amendment, which protects your right to confront
witnesses who testify against you, generally prohibits the prosecution from using hearsay as evidence
against you at trial. Hearsay is testimony, or comments, presented at trial by someone other than the
person who originally spoke. The rules on hearsay are found in the Federal Rules of Evidence, at Fed.
R. Evid. 801–07, in Title 28 of the United States Code. For more information on the hearsay rules and
their exceptions, see an evidence textbook or evidence treatise. See, e.g., Charles T. McCormick,
McCormick on Evidence (John W. Strong et al. eds., 6th ed. 2006); Christopher B. Mueller & Laird C.
Kirkpatrick, Evidence (3d ed. 2003). See also Murillo v. Frank, 402 F.3d 786, 791 (4th Cir. 2005)
(admitting that hearsay statements made by another suspect during interrogation violated the 6th
Amendment); Brown v. Keane, 355 F.3d 82, 87–88 (2d Cir. 2004) (admitting that an anonymous 911
call was unconstitutional, despite prosecution’s argument that the call fell within the “present sense
impression” exception to the 6th Amendment’s hearsay prohibition).
55. The Federal Rules of Evidence list exceptions to the hearsay rule. Fed R. Evid. 803, 804, 807.
When out-of-court statements fall within a category listed in the Federal Rules of Evidence, it is
admissible as evidence despite the Confrontation Clause of the 6th Amendment. Some of the exceptions
include “excited utterances” and statements for medical diagnosis. Fed. R. Evid. 803. Some out-of-court
statements are not defined as hearsay and are not protected by the hearsay rule. For example, courts
do not consider as hearsay any statements that are made by a co-conspirator in furtherance of a
conspiracy; since such statements are not considered hearsay, they may generally be admitted as
evidence. Fed. R. Evid. 801. The Supreme Court may make exceptions to the hearsay rule in addition to
those listed in the Federal Rules. Fed. R. Evid. 802. See also United States v. Inadi, 475 U.S. 387, 399–
400, 106 S. Ct. 1121, 1128–29, 89 L. Ed. 2d 390, 401–02 (1986) (finding that the prosecution does not
need to show that a person is unavailable to appear in court for his or her out-of-court statements to be
used in a trial if the person was a co-conspirator).
56. See Crawford v. Washington, 541 U.S. 36, 68–69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203
(2004) (ruling that a defendant must have the opportunity to confront a person giving testimonial
(b) A witness lied on the stand about having been granted leniency from the police in
exchange for testifying against you.57
(10) The Jury:
(a) You were denied your Sixth Amendment right to a trial by a fair and impartial
jury because you were denied a trial by jury.58
(b) You were tried by a jury of fewer than six members,59 or you were convicted by a
non-unanimous jury vote.60
evidence against the defendant either before or during trial, unless that person is unavailable; and
noting that the reliability of the person testifying is irrelevant); see also Giles v. California, 128 S. Ct.
2678, 171 L. Ed. 2d 288 (2008) (holding that the unconfronted testimony of a murder victim cannot be
admitted under a theory that defendant forfeited his 6th Amendment right to confront the
victim/witness because he murdered her and thereby made her unavailable to testify); Lilly v. Virginia,
527 U.S. 116, 139, 119 S. Ct. 1887, 1901, 144 L. Ed. 2d. 117, 136 (1999) (finding that a defendant has a
6th Amendment right to confront an accomplice whose confession is offered as evidence against that
defendant); Davis v. Alaska, 415 U.S. 308, 320, 94 S. Ct. 1105, 1112, 39 L. Ed. 2d 347, 356 (1974)
(ruling that a defendant was denied his 6th Amendment right to confront and to cross-examine a
witness when the state prevented the defendant from questioning a juvenile witness about the
juvenile’s probationary status); Howard v. Walker, 406 F.3d 114, 132–33 (2d Cir. 2005) (finding that
limiting a defendant’s cross-examination of the state’s expert witness and impeding the defendant’s
presentation of a counter expert witness violated the Confrontation Clause); Hill v. Hofbauer, 337 F.3d
706, 717 (6th Cir. 2003) (ruling that it is a violation of the Confrontation Clause to admit a non-
testifying co-defendant’s confession that implicates the defendant); Lewis v. Wilkinson, 307 F.3d 413,
420–21 (6th Cir. 2002) (finding a violation of the Confrontation Clause in a rape case when defendant
was barred from cross-examining complainant about diary passages that supported a consent defense);
United States ex rel. Negron v. New York, 434 F.2d 386, 389–90 (2d Cir. 1970) (holding that an
inadequate translation during trial violated non-English-speaking petitioner’s right to confront
witnesses). But see United States v. Hendricks, 395 F.3d 173, 179 (3d Cir. 2005) (finding that defendant
does not always have the right to cross-examine hearsay evidence that is not “testimonial”).
57. Giglio v. United States, 405 U.S. 150, 154–55, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) (holding
that the government has a due process duty to disclose impeachment evidence, including promises that
the prosecution makes to key witnesses in exchange for their testimony); see Brown v. Wainwright, 785
F.2d 1457, 1164–65 (11th Cir. 1986) (finding prosecutors had deliberately withheld fact that the main
witness against defendant lied on the stand by saying he had not received leniency from prosecution in
exchange for his testimony against defendant); see also DuBose v. Lefevre, 619 F.2d 973, 979 (2d Cir.
1980) (finding that the prosecution cannot make agreements in general terms to a witness and
therefore escape the fact that it gave the witness reason to believe that his testimony would lead to
favorable treatment by the State). But see Shabazz v. Artuz, 336 F.3d 154, 162–66 (2d Cir. 2003)
(finding that evidence that prosecution witnesses ultimately received favorable sentencing treatment in
their own cases did not alone show that prosecutor failed to disclose promises of leniency because there
was no evidence that anything was promised before the witnesses' testimony).
58. See Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (holding defendants charged
with non-petty criminal offenses have a right to trial by jury); see also Apprendi v. New Jersey, 530 U.S.
466, 477, 120 S. Ct. 2348, 2356, 147 L. Ed. 2d 435, 447 (2000) (granting that the Due
Process Clause and the 6th Amendment “entitle a criminal defendant to a jury
determination that he is guilty of every element of the crime with which he is charged,
beyond a reasonable doubt”). But see Neder v. United States, 527 U.S. 1, 15, 119 S. Ct.
1827, 1837, 144 L. Ed. 2d 35, 51 (1999) (finding the failure to submit an element of a
crime to a jury is an error that is subject to harmless error analysis).
59. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978) (holding that juries must consist of
at least six people or else there is a 6th Amendment violation); see Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26
L. Ed. 2d 446 (1970) (holding that refusal to impanel more than six members for the jury does not violate the
defendant’s 6th Amendment rights). But see People v. Dean, 80 A.D.2d 695, 436 N.Y.S.2d 455 (2d Dept.
1981) (granting that a defendant is denied due process of law when he is tried before a
(c) The community where members of the jury work or live was exposed to
inflammatory media accounts about your case.61
(d) Members of certain racial, religious, gender, or age-based (the elderly) groups
were excluded from the jury pool,62 or the prosecutor intentionally used his or her
peremptory challenges (peremptory challenges are when the prosecutor or
defendant eliminates potential jurors without a reason) to remove members of a
particular racial group or gender from the jury.63
jury of six rather than 12 people if the state constitution says that “crimes prosecuted by
indictment shall be tried by a jury composed of twelve persons”).
60. See United States v. Gipson, 553 F.2d 453, 456 (5th Cir. 1977) (holding that a federal criminal defendant has
a constitutional right to a unanimous jury verdict); see also Richardson v. United States, 526 U.S. 813,
119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999) (finding that the jury in a federal criminal case
cannot convict unless it unanimously finds that the Government has proven each element
of the crime). Fed. R. Crim. P. 31(a) requires a unanimous verdict in all federal jury cases. But see McKoy v.
North Carolina, 494 U.S. 433, 450, 110 S. Ct. 1227, 1237, 108 L. Ed. 2d 369, 385 (1990)
(finding that the constitutional requirement for a unanimous verdict requires only a
“substantial agreement as to the principal factual elements underlying a specified
offense”). See also Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972); Johnson v.
Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972). Note that both Apodaca and Johnson, which allow
convictions in state court with jury majorities of 10–2 and 9–3 respectively, apply only to certain non-capital cases.
61. See Irvin v. Dowd, 366 U.S. 717, 724–25, 81 S. Ct. 1639, 1643–44, 6 L. Ed. 2d 751, 757–58
(1961) (holding that failure to grant change of venue, despite build-up of prejudice and a jury that was
not impartial, is unconstitutional); Woods v. Dugger, 923 F.2d 1454, 1460 (11th Cir. 1991) (finding
deprivation of a fair trial after extensive pretrial publicity and presence of uniformed prison guards in
audience at trial when victim was a prison guard).
62. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69, 82–83 (1986)
(holding that use of peremptory challenges to exclude African-Americans from a jury when the
defendant was African-American violates the 14th Amendment’s equal protection guarantee); Taylor v.
Louisiana, 419 U.S. 522, 531, 95 S. Ct. 692, 698, 42 L. Ed. 2d 690, 698 (1975) (holding that sex
discrimination in selection of jury violates the 6th Amendment); Smith v. Texas, 311 U.S. 128, 130, 61
S. Ct. 164, 165, 85 L. Ed. 84, 86 (1940) (holding that the 14th Amendment prohibits racial
discrimination in selection of grand jury); see also Snyder v. Louisiana, 128 S. Ct. 1203, 170 L. Ed. 2d
175 (2008) (holding that the Supreme Court of Louisiana’s rejection of a Batson claim was erroneous
and that the prosecutor at trial improperly excluded blacks from a jury that convicted defendant of
capital murder); United States v. Barnes, 520 F. Supp. 2d 510 (2d Cir. 2007) (finding that in order to
establish a prima facie case of a violation of the fair cross-section requirement of the 6th Amendment, a
defendant must show: (1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from which juries are selected is not fair
and reasonable in relation to the number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in the jury selection process); People v.
Snow, 44 Cal.3d 216, 225–26 (Cal. 1987) (generally upholding principle against excluding members of a
certain race from a jury; State v. Gilmore, 103 N.J. 508, 543 (N.J. 1986) (finding a violation where
prosecutor excluded members of a cognizable group—in this case, black jurors—from a jury because of
prosecutor’s presumption that those jurors had a group bias). Although the Supreme Court has never
expressly held that religious discrimination in jury selection is unconstitutional, many lower courts
have. See, e.g., United States v. Somerstein, 959 F. Supp. 592, 595 (E.D.N.Y. 1997) (stating that Batson
applies to religious discrimination and “only if the religion of the jurors is directly relevant to the
crimes at issue” can the strike based on religion of a juror be proper); Connecticut v. Hodge, 248 Conn.
207, 240 (Conn. 1999) (stating peremptory challenges based on religious affiliation are
unconstitutional).
63. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S. Ct. 1419, 1430, 128 L. Ed. 2d 89, 107 (1994)
(holding that the use of peremptory challenges to exclude members of a particular gender violates the Equal Protection
Clause); Amadeo v. Zant, 486 U.S. 214, 228–29, 108 S. Ct. 1771, 1781, 100 L. Ed. 2d 249, 264 (1988) (finding
prosecutor’s jury selection scheme to limit number of African-Americans and women on the jury constituted serious
error); Batson v. Kentucky, 476 U.S. 79, 84, 106 S. Ct. 1712, 1716, 90 L. Ed. 2d 69, 79 (1986) (holding that the use of
(e) Members of a distinct class or group, such as blacks or women, were
systematically excluded from the grand jury in violation of the Fourteenth
Amendment.64
(f) The jury instructions65 were unconstitutional because they did not tell the jury the
prosecution must prove all crucial elements of guilt beyond a reasonable doubt,66
or the instructions did not tell the jury the prosecution must overcome a
presumption of innocence to convict you.67
(g) Evidence was insufficient to sustain the jury’s verdict of guilty beyond a
reasonable doubt.68
peremptory challenge to exclude members of a racial group violates the Equal Protection Clause); Galarza v. Keane,
252 F.3d 630, 640 (2d Cir. 2001) (vacating denial of habeas petition since the state trial court failed to resolve the
factual issue of whether it credited the prosecution’s race-neutral explanations for striking potential jurors); Jordan v.
Lefevre, 206 F.3d 196, 202 (2d Cir. 2000) (reversing denial of habeas petition because of lack of meaningful inquiry
into the question of discrimination); Turner v. Marshall, 121 F.3d 1248, 1250 (9th Cir. 1997) (holding prosecutor’s use
of peremptory challenges to strike African-Americans from jury venire not justified by stated reasons). But see
Smulls v. Roper, 535 F.3d 853, 859 (8th Cir. 2008) (finding that since prosecution's reasons for the
strike were credible, which was the standard—as opposed to giving persuasive reasons or
plausible reasons—he was not motivated by race discrimination).
64. See Campbell v. Louisiana, 523 U.S. 392, 118 S. Ct. 1419, 140 L. Ed. 2d 551 (1998) (holding
that a white defendant, convicted by an all-white jury and alleging discriminatory selection of jurors
has standing to challenge whether he was convicted by means that violate due process, even though the
claim is based upon exclusion of blacks from the grand jury); Vasquez v. Hillery, 474 U.S. 254, 106 S.
Ct. 617, 88 L. Ed. 2d 598 (1986) (holding that habeas relief is appropriate where blacks were
systemically excluded from the grand jury that indicted petitioner); Johnson v. Puckett, 929 F.2d 1067,
1068–69 (5th Cir. 1991) (granting black prisoner’s habeas corpus petition where his grand jury foreman
was white because petitioner had shown a prima facie claim of racial discrimination by showing that
for 20 years every grand jury foreman in the county had been white, despite a 43% black population in
the county). But see Hobby v. United States, 468 U.S. 339, 345–46, 104 S. Ct. 3093, 3096–97, 82 L. Ed.
2d 260, 266–67 (1984) (holding that discrimination in grand jury foreman selection, as distinguished
from discrimination in the selection of the grand jury itself, does not threaten defendant’s due process
rights); United States v. Taylor, 154 F.3d 675, 680 (7th Cir. 1988) (holding that Vasquez is a limited
ruling).
65. Jury instructions are read by the judge to the jury to inform the jury of the elements of your
crime and to explain the legal standards by which the jury must weigh the evidence against you. An
example of a jury instruction is to find guilt “beyond a reasonable doubt.”
66. See Sandstrom v. Montana, 442 U.S. 510, 524, 99 S. Ct. 2450, 2459, 61 L. Ed. 2d 39, 51 (1979)
(holding that the prosecution must prove every element of a crime beyond a reasonable doubt;
therefore, trial court may not shift the burden of proof to defendant by instructing jury to presume
intent in jury instructions); Patterson v. New York, 432 U.S. 197, 215, 97 S. Ct. 2319, 2329, 53 L. Ed.
2d 281, 295 (1977) (holding that the state must prove every element of an offense beyond a reasonable
doubt); see also Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316, 329
(1990) (holding that in an ambiguous case the proper inquiry is “whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the consideration
of constitutionally relevant evidence”); Patterson v. Gomez, 223 F.3d 959, 961 (9th Cir. 2000) (holding
that jury instructions that assumed the defendant was sane at the time of offense constituted an
unconstitutional shifting of the prosecution’s burden of proof).
67. See Kentucky v. Whorton, 441 U.S. 786, 789, 99 S. Ct. 2088, 2090, 60 L. Ed. 2d 640, 643 (1979)
(holding that a judge’s refusal to instruct the jury that a defendant is innocent until proven guilty may
violate the Constitution if the “totality of the circumstances” indicates that the trial was
constitutionally unfair); Taylor v. Kentucky, 436 U.S. 478, 490, 98 S. Ct. 1930, 1937, 56 L. Ed. 2d 468,
478 (1978) (finding that judge’s refusal to give jury instructions that defendant is presumed to be
innocent was a violation of due process).
68. See Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573
(1979) (ruling that a reviewing court will determine whether any rational jury, viewing the evidence in
the light most favorable to the prosecution, could have found the defendant guilty beyond a reasonable
doubt). However, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies a stronger
(11) The Judge: The judge was biased against you because he was corrupt and you did
not bribe him.69
(12) Your Lawyer:
(a) Your lawyer did not represent you effectively at trial.70
(b) Your lawyer did not file an appeal although you would have wished to file one.71
(c) Your lawyer did not represent you effectively in your direct appeal (“first appeal
as of right”).72
standard to this determination, so a federal reviewing court must give strong deference to the state
court’s findings. 28 U.S.C. § 2254(d) (2006). See Part B(4) of this Chapter (“Standard for Getting
Relief”) for more information on how the AEDPA standard is applied. See also Juan H. v. Allen, 408
F.3d 1262 (9th Cir. 2005) (finding that evidence was insufficient to establish defendant’s guilt beyond a
reasonable doubt); United States v. Desena, 260 F.3d 150, 154–56 (2d Cir. 2001) (reversing a conviction
where no evidence linked the defendant to the general conspiracy charge).
69. Usually, a judge’s qualifications are not considered to be a constitutional issue. However, the
Due Process Clause requires “a fair trial in a fair tribunal” before a judge with no actual bias against
the defendant. See Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 1797, 138 L. Ed. 2d 97, 104
(1997) (finding a due process violation where the judge imposed excessively harsh treatment on
petitioner in order to hide or to compensate for the fact that he was taking bribes to give light sentences
in other cases). Note that this is a serious charge. You must have proof that the judge was corrupt and
that your sentence was unusually harsh. The Supreme Court has made it clear that there is a
presumption of legitimacy to public officers’ actions, and clear evidence to the contrary must be
presented in order to contradict that presumption. See Nat’l Archives & Records Admin. v. Favish, 541
U.S. 157, 173–175, 124 S. Ct. 1570, 1581–82, 158 L. Ed. 3d 319, 336 (2004).
(1984) (confirming that the proper standard for judging attorney performance is “reasonably effective
assistance,” considering all the circumstances). Ineffective assistance of counsel is among the most
promising habeas claims. The standard for determination of ineffective assistance of counsel is
discussed in Part B(2) of this Chapter (“Standards and Tests for Claims of Violations”). Your trial
counsel may have been ineffective for any number of reasons. See, e.g., Kimmelman v. Morrison, 477
U.S. 365, 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986) (finding ineffective assistance of counsel where
counsel conducted no pretrial discovery and failed to file a timely suppression motion against
prosecution’s evidence); Cossel v. Miller, 229 F.3d 649, 654 (7th Cir. 2000) (holding that the victim’s in-
court identification of petitioner lacked sufficient independent reliability to be admissible, that
petitioner’s counsel was ineffective for failing to object to its admission, and that the state court’s
rejection of petitioner’s ineffective assistance claim was an unreasonable application of clearly
established federal law); Brown v. Myers, 137 F.3d 1154, 1156–57 (9th Cir. 1998) (ruling counsel was
ineffective in failing to investigate and present available testimony supporting petitioner’s alibi); Alston
v. Garrison, 720 F.2d 812, 815–16 (4th Cir. 1983) (holding defendant was denied effective assistance of
counsel where counsel failed to object to evidence that defendant exercised right to remain silent);
Wilson v. Vaughn, 533 F.3d 208 (3d Cir. 2008) (holding defendant was prejudiced by his attorney’s
failure to object to evidence relating to a racketeering charge).
71. This claim is a subset of an ineffective assistance of counsel claim that was decided by the
Supreme Court in Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000). The
Supreme Court held that there is a constitutionally imposed duty on an attorney to consult with a
defendant about an appeal if there is reason to think a rational defendant would want an appeal or that
the particular defendant has reasonably demonstrated that he was interested in appealing.
Additionally, the defendant must show that had he been consulted about an appeal he would have
timely appealed. See Nnebe v. United States, 534 F.3d 87 (2d Cir. 2008) (finding a violation of the right
to effective assistance of counsel where lawyer who is appointed under statute that requires pursuing
appeals to the Supreme Court fails to file petition despite requests by defendant); Restrepo v. Kelly,
178 F.3d 634, 640–41 (2d Cir. 1999) (finding that failure of petitioner’s counsel to file timely notice of
appeal despite repeated requests by petitioner and reassurances by counsel constituted a denial of
constitutional right to effective assistance); Alston v. Garrison, 720 F.2d 812, 816 (4th Cir. 1983)
(holding that “the content of an appeal is heavily controlled by counsel, and where … the defendant’s
trial lawyer also prosecuted the appeal, it is obvious that ineffective assistance of counsel is not likely
to be raised at trial or to appear among the assignments of constitutional error” on appeal).
(13) The Law and Statutes:
(a) You were convicted under a statute that is unconstitutional.73
(b) You received a certain type of punishment, and the law now forbids this
punishment.74
(c) You were convicted for an act that is no longer a crime under the new law.75
(d) A state statute retroactively cancels your provisional early release credits.76
(14) Double Jeopardy:
(a) You were convicted for an act that is no longer a crime under the new law.77
(b) A state statute retroactively cancels your provisional early release credits.78
(c) You were convicted in violation of your Fifth Amendment right against “double
jeopardy” because you were convicted of a crime for which you had already been
tried in the same state.79
(d) You were convicted in a second trial after your first trial was declared a mistrial
in violation of the Fifth Amendment.80
72. See Cannon v. Berry, 727 F.2d 1020, 1022 (11th Cir. 1984) (affirming writ of habeas corpus
where counsel failed to file a brief on direct appeal of defendant’s murder conviction, as this constituted
ineffective assistance of counsel). Defective counsel is a ground for habeas relief only if counsel was
constitutionally required. Therefore, the defective representation must have been at the trial or on
direct appeal because there is no constitutional right to counsel in post-conviction proceedings. See
Coleman v. Thompson, 501 U.S. 722, 755–57, 111 S. Ct. 2546, 2567–68, 115 L. Ed. 2d 640, 672–74
(1991) (refusing to grant federal habeas relief for counsel errors in state habeas proceedings because
there was no constitutional right to counsel). Still, an indigent criminal defendant is constitutionally
entitled to an effective attorney in his “one and only appeal as of right,” which usually occurs in a state
court of appeals. Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 836, 83 L. Ed. 2d 821, 830 (1985);
Douglas v. California, 372 U.S. 353, 357–58, 83 S. Ct. 814, 816–17, 9 L. Ed. 2d 811, 814–15 (1963);
Mason v. Hanks, 97 F.3d 887, 902 (7th Cir. 1996) (“[W]hen we are convinced that a petitioner might
well have won his appeal on a significant and obvious question of state law that his counsel omitted to
pursue, we are compelled to conclude ... that the appeal was not fundamentally fair and that the
resulting affirmation of his conviction is not reliable.”). For more information on ineffective assistance
of counsel claims, see JLM Chapter 12, “Appealing Your Conviction Based on Ineffective Assistance of
Counsel,” and Part H in JLM Chapter 9, “Appealing Your Conviction or Sentence.”
73. Yick Wo v. Hopkins, 118 U.S. 356, 373–74, 6 S. Ct. 1064, 1073, 30 L. Ed. 220, 227–28 (1886)
(finding imprisonment illegal because the ordinance upon which conviction was based violated the 14th
Amendment as applied); Ex parte Siebold, 100 U.S. 371, 376–77, 25 L. Ed. 717, 719 (1879) (finding that
the question of the constitutionality of the laws involved was a proper ground for considering a writ of
habeas corpus); Vuitch v. Hardy, 473 F.2d 1370, 1370 (4th Cir. 1973) (finding defendant doctor entitled
to habeas corpus because the state abortion statute was unconstitutional).
74. See Part C(3)(a)(i) (“Prohibited Punishments”) of this Chapter.
75. See Part C(3)(a)(ii) (“Decriminalized Behavior”) of this Chapter for further explanation.
76. See Lynce v. Mathis, 519 U.S. 433, 447, 117 S. Ct. 891, 898, 137 L. Ed. 2d 63, 75–76 (1997)
(holding retroactive cancellation, which actually increased the prisoner’s punishment through re-arrest,
violated the Ex Post Facto Clause).
77. See Part C(3)(a)(ii) (“Decriminalized Behavior”) of this Chapter for further explanation.
78. See Lynce v. Mathis, 519 U.S. 433, 447, 117 S. Ct. 891, 898, 137 L. Ed. 2d 63, 75–76 (1997)
(holding retroactive cancellation, which actually increased the prisoner’s punishment through re-arrest,
violated the Ex Post Facto Clause).
79. See Green v. United States, 355 U.S. 184, 190, 78 S. Ct. 221, 225, 2 L. Ed. 2d 199, 205 (1957)
(determining that where jury had been instructed on first and second degree murder and convicted
defendant of second degree murder with no comment on first degree charge, defendant may not be tried
again for first degree murder); Dye v. Frank, 355 F.3d 1102, 1104 (7th Cir. 2004) (barring a criminal
drug charge because defendant had previously been sanctioned under a state civil penalty “so punitive
in purpose and effect that it constituted a criminal punishment”); Terry v. Potter, 111 F.3d 454, 459–60
(6th Cir. 1997) (holding that where petitioner’s wanton murder conviction was reversed, and where the
first jury was discharged without convicting him of intentional murder, petitioner could not be retried
for intentional murder). Footnote 80 below describes when jeopardy attaches in a criminal trial.
(e) You were tried a second time for the same offense after a reviewing court had
reversed your earlier conviction on the grounds that the evidence at your first
trial was insufficient to support a conviction.81
(15) Other Procedural Problems at Trial:
(a) You were denied the right to be present at your trial.82
(b) You were prohibited from testifying on your own behalf.83
(c) The court in which you were convicted did not have the power to convict you
because it did not have jurisdiction.84
80. Generally, once jeopardy “attaches” to a charge in a trial the state may not try you for that
charge in another trial without violating the 5th Amendment. If there is a mistrial declared after
jeopardy has attached, you may not be tried again for that charge unless you consented to the mistrial
declaration or there was a “manifest necessity” for declaring the mistrial. Arizona v. Washington, 434
U.S. 497, 505, 98 S. Ct. 824, 830, 54 L. Ed. 2d 717, 728 (1978) (explaining that the prosecutor has the
burden of showing this “manifest necessity”); see also United States v. Razmilovic, 507 F.3d 130 (2d Cir.
2007) (determining double jeopardy bars a second trial where defendant initially joined in a co-
defendant’s motion for mistrial but almost immediately changed his position after mistrial was
declared but before the jury was discharged, at which point the mistrial decision would have been
finalized); Love v. Morton, 112 F.3d 131, 137 (3d Cir. 1997) (affirming grant of habeas relief from
conviction on retrial after first trial court judge declared a mistrial soon after jury was sworn due to the
judge’s inability to complete the trial and without consent from counsel). Jeopardy “attaches” to your
jury trial when the jury is sworn and empanelled. See Crist v. Bretz, 437 U.S. 28, 38, 98 S. Ct. 2156,
2162, 57 L. Ed. 2d 24, 33 (1978) (holding federal double jeopardy rule, which states that jeopardy
attaches after jury is sworn and empaneled, overrides a Montana state rule that jeopardy attaches
after the first witness is sworn).
81. See Burks v. United States, 437 U.S. 1, 18, 91 S. Ct. 2141, 2151, 57 L. Ed. 2d 1, 14 (1978)
(holding that double jeopardy prohibits a second trial after a reviewing court has found the evidence
legally insufficient to justify conviction); Hudson v. Louisiana, 450 U.S. 40, 44–45, 101 S. Ct. 970, 973,
67 L. Ed. 2d 30, 34–35 (1981) (holding double jeopardy protection was violated when petitioner was
prosecuted after trial judge had already granted petitioner’s motion for new trial based on insufficiency
of evidence supporting guilty verdict).
82. See McKaskle v. Wiggins, 465 U.S. 168, 178, 104 S. Ct. 944, 951, 79 L. Ed. 2d 122, 133 (1984)
(stating that a defendant has a right to be present at all important stages of trial); Drope v. Missouri,
420 U.S. 162, 182–83, 95 S. Ct. 896, 909, 43 L. Ed. 2d 103, 119–20 (1975) (finding that trial court erred
in going forward with a trial when defendant was absent due to his attempted suicide); Larson v.
Tansy, 911 F.2d 392, 396 (10th Cir. 1990) (“Based on defendant’s possible assistance to counsel and his
missed opportunity to exert psychological influence on the jury, we hold that defendant’s absence from
the courtroom at critical junctures in his trial violated his due process rights.”). However, you will
likely only be granted habeas relief for denial of this right if it resulted in “substantial and injurious
effect.” Rice v. Wood, 77 F.3d 1138, 1144 (9th Cir. 1996) (holding that a writ should not be granted for
petitioner’s absence during the jury’s announcement of death sentence if his absence did not have a
“substantial and injurious effect” on him because his absence was not a structural error); see also
Sturgis v. Goldsmith, 796 F. 2d 1103, 1108–09 (9th Cir. 1986) (holding that petitioner’s absence from
his competency hearing warrants habeas relief if the absence was not harmless error).
83. See Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704, 2708, 97 L. Ed. 2d 37, 44–45 (1987)
(holding that defendants have a fundamental constitutional right to testify on their own behalf); People
v. Allen, 187 P.3d 1018, 44 Cal. 4th 843, 80 Cal. Rptr. 3d 183 (Cal. 2008) (finding that a defendant who
was found to be a sexually violent predator had a right to testify under the California and federal
constitutions even though his lawyer told him not to testify). But see Taylor v. United States, 287 F.3d
658, 661–62 (7th Cir. 2002) (holding defense counsel does not have a duty to tell defendant about his
constitutional right to testify).
84. See Sunal v. Large, 332 U.S. 174, 178–79, 67 S. Ct. 1588, 1591, 91 L. Ed. 1982, 1987 (1947)
(finding habeas relief appropriate where conviction was under federal statute alleged to be
unconstitutional, federal court’s jurisdiction was challenged, or specific constitutional guarantees were
violated); Butler v. King, 781 F.2d 486, 490 (5th Cir. 1986) (finding that defendant was entitled to
federal writ of habeas corpus as state district court lacked jurisdiction over him at time of trial);
Lowery v. Estelle, 696 F.2d 333 (5th Cir. 1983). Jurisdiction means that the court has the power to
hear your case. If a court holds a trial without jurisdiction, it violates the Due Process Clause of the 5th
(d) You were convicted without using a certain procedure that the law now says is
necessary to ensure the fundamental fairness of a trial.85
(e) An error occurred during trial that made the trial fundamentally unfair in
violation of the Fourteenth Amendment.86
Remember that the above list does not include every possible example. If you think you
experienced a violation of your rights not listed above, try to identify what kind of right may
have been violated. Look carefully through a criminal procedure handbook in your prison
library. Read the amendments to the Constitution carefully. Read a lot of cases, especially
cases dealing with a situation like yours. For example, if you were convicted of drug
trafficking, read other cases about drug trafficking. Start by looking at Supreme Court cases
because the Supreme Court is the authority on the rights in the Constitution and how those
rights should apply to actual cases, and its decisions are what all the other courts look to in
making their own decisions. If you find a case that deals with something similar to the
situation you experienced, then read the cases the court relies on to determine whether
something was a violation or not. Shepardize87 the case to find lower court decisions in your
district that may give you more information on how violations are interpreted in your
district. You should keep your eye out for a rule or standard regarding your violation. Then,
you will develop your case around how the standard or rule was violated in your arrest, trial,
or sentence. (This process is explained further in Section 2 below.)
Another approach is to start by getting an idea of what a constitutional violation looks
like, and then examining what happened at your arrest, trial, and sentence to determine if
there was a similar error. If you can, look at a transcript of your trial and pay close attention
to where your lawyer raised an objection. You should look at any records relating to your
case, including pretrial proceedings. Also, speak to family members, your trial attorney, and
investigators to look for violations. If you are unable to identify a violation, federal habeas
will not be able to help you.
If you can identify violations, you should list every possible violation and every instance
of each violation.
2. Standards and Tests for Claims of Violations
Once you have identified at least one possible violation that you think occurred, you will
need to identify the standard the court uses to determine whether or not that violation
happened. A standard is a rule or a test that sets out the requirements a defendant must
prove in order to convince the court that a violation occurred. Most courts use a standard
that is “well-established”, and some may have multiple standards.
or 14th Amendments. In Lowery, a Texas trial court dismissed an indictment for firearm use, then
convicted the defendant on other charges. The court violated a Texas state law that states a court loses
jurisdiction over a case if it dismisses an indictment. The prisoner filed a habeas petition claiming that
the trial court lacked jurisdiction to hold his trial. The federal court would not consider this claim for
habeas corpus, however, because the petitioner had not “exhausted state procedures,” which means he
had not raised the claim in the state courts before petitioning federal court.
85. See Part C(3)(b) (”Fundamental Fairness at Trial”) of this Chapter.
86. See Riggins v. Nevada, 504 U.S. 127, 137–38, 112 S. Ct. 1810, 1816–17, 118 L. Ed. 2d 479,
490–91 (1992) (finding that the forced administration of an antipsychotic drug to defendant may have
impermissibly violated his constitutional rights to receive a fair trial by compromising the substance of
his testimony, interaction with counsel, and comprehension); Young v. Callahan, 700 F.2d 32, 37 (1st
Cir. 1983) (finding that a constitutional error was committed when the trial court, without finding
restraint necessary and over petitioner’s objection, required petitioner to sit in prisoner’s block, rather
than at counsel’s table). But see Moore v. Ponte, 186 F.3d 26, 36 (1st Cir. 1999) (finding no
constitutional error when it appeared the court had considered security concerns in deciding to make
defendant sit in prisoner’s block).
87. By Shepardizing, you can make sure that the law has not changed. See Chapter 2 of the JLM
for an explanation of how to Shepardize a case.

After you have identified the applicable standard, you will need to show the court that
this standard was met in your case in order to convince the court that a violation of your
rights has occurred. You do this by demonstrating to the court that the facts of your case
match the requirements set out in the standard. This Section will explain how you find the
standard and how to show the court that the standard was satisfied.
After you have proven that the standard was met (that you have suffered a violation),
you will still need to show that the violation harmed you. To show harm, you will need to
convince the court that the violation may have negatively affected the outcome of your trial
(discussed in Section 3 of this Part). Also, if you are a state prisoner, you will need to show
that the state court was incorrect in failing to find that the violation occurred. If the state
court ruled there was a violation but it did not harm you, you will need to show that its
finding of “no harm” was unreasonable or contrary to federal law (discussed in Section 4 of
this Part).
(a) Finding the Standard the Court Uses for Your Violation
To find out the standard the court will use to judge your claim, you have to look at cases
raising the same claim. If you are complaining about a violation from the list above, you
should check the cases referred to in the relevant footnotes. When you read these cases, you
will be able to get an idea of which test the court will use to judge whether a violation has
occurred. The court will usually say something like: “To prove a violation, the court should
look to the following,” “To prove a violation has occurred, the petitioner needs to satisfy the
following requirements,” or “In order to show the right was violated, petitioner has to meet
the following test.” This is not the exact language in every case, but it gives you an idea of
what to look for to find the standard. Once you find the test courts use for the claim you are
pursuing, the next step is to figure out if there is any way to present your claim to meet the
test.
Here is an example of a violation and the standard for that particular violation: At your
trial, you have a constitutional right to an attorney. If your trial lawyer was bad, you might
have a claim that she did not represent you effectively at trial (called ineffective assistance of
counsel), in violation of the Sixth Amendment. The case that sets out the standard for this
type of violation is Strickland v. Washington.88 In Strickland, the court established a two-
part test (now referred to as the Strickland test) to determine whether your right to effective
counsel was violated. Under the first part, a court evaluates whether your lawyer’s
representation fell below an objective standard of reasonableness considering all the
circumstances under prevailing (current) professional norms. This means that the court will
determine the reasonableness of what you are claiming that your attorney did, or failed to
do, while representing you.89
Under the second part of the Strickland test, the court will determine whether you were
prejudiced as a result of your lawyer’s unreasonable representation. Prejudice is an
88. Strickland v. Washington, 466 U.S. 668, 700, 104 S. Ct. 2052, 2071, 80 L. Ed. 2d 674, 701–02
(1984) (affirming a death sentence where a defendant had claimed that his lawyer’s advice at, and
before, his sentencing hearing constituted ineffective assistance of counsel).
89. Note that it is possible that even if your lawyer made mistakes or failed to provide you the best
representation, the court may still find you have received reasonable representation because the
representation was still above the standard the court uses to determine what is reasonable. In other
words, you need to show your attorney’s actions were not reasonable in order to be successful in your
habeas petition. See, e.g., Bell v. Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 1854, 152 L. Ed. 2d 914, 931
(2002) (holding that when counsel is faced with a tough choice, even if his or her decision was arguably
mistaken, the court would start with “a ‘strong presumption’ that counsel's conduct falls within the
wide range of reasonable professional assistance” (quoting Strickland v. Washington, 466 U.S. 668, 689,
104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984))). Please NOTE: Bell v. Cone is currently on appeal
to be heard in Supreme Court. See footnote 118 for more information.
important concept in habeas. It means that there is a “reasonable probability”90 that the
result of your trial would have been different and more favorable to you if not for the
violation (in this example, your lawyer’s ineffective representation).91
A court will find in your favor only if both parts of the Strickland test are met.92 To
summarize, the standard for ineffective assistance of counsel is: (1) that your lawyer acted
unreasonably and (2) that these actions prejudiced you.
Other constitutional violations will have different standards that must be met to
persuade the court that a violation occurred. There are so many different tests that the JLM
cannot explain all of the standards; however, you can begin to learn about the standards that
matter to you by reading and Shepardizing93 the cases cited in the footnotes.
(b) Showing the Court Your Rights Have Been Violated
Once you have identified the standard that must be satisfied for your violation, you will
need to show the court your situation meets the standard. You must clearly explain how your
federal rights were violated in the court proceedings being challenged. To get federal habeas
relief, the facts must support each violation you claim. For example, if you claim that your
right to counsel was violated, you should use the Strickland94 standard, and show: (1) that
you had a right to counsel at the time95 and (2) that adequate counsel was not provided. If
(1984) (holding that the appropriate test for prejudice is that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been different,” and
defining “reasonable probability” as “a probability sufficient to undermine confidence in the outcome”).
91. United States v. Lilly, 536 F.3d 190, 197 (3d Cir. 2008) (affirming the denial of a prisoner’s
habeas petition based upon ineffective assistance of counsel where the prisoner was not prejudiced by
heeding his attorney’s advice to waive a jury trial because the court found that there was sufficient
evidence offered, including evidence of drug sales and the prisoner’s own incriminating statements, for
a jury to convict the prisoner even if he had a jury trial).
(1984). Though many prisoners may claim ineffective assistance of counsel, proving it is difficult. In
Lockhart v. Fretwell, 506 U.S. 364, 369–70, 113 S. Ct. 838, 842, 122 L. Ed. 2d 180, 189 (1993), the
Supreme Court clarified the Strickland “prejudice” test in a case where trial counsel failed to raise an
objection at sentencing. The Court held that the ineffective assistance of counsel test focuses on
whether the defendant was deprived of a fair trial with a “reliable result.” However, in Terry Williams
v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000), the Supreme Court limited the effect
of Lockhart on the Strickland test. In this case, the Supreme Court held that failure to develop
mitigating evidence during a capital sentencing hearing, which included severe childhood neglect and
abuse, borderline mental retardation, and a favorable prison record, violated the standard of Strickland
v. Washington. Additionally, the court held that by applying the standard in Lockhart to this claim, the
Virginia Supreme Court had erred by expanding the scope of when Lockhart applies. The Court stated
there were few situations in which Lockhart applies, and those include situations where the
ineffectiveness of counsel does not deprive the defendant of a substantive or procedural right to which
the law entitles the defendant. Terry Williams v. Taylor, 529 U.S. 362, 391–93, 120 S. Ct. 1495, 1512–
13, 146 L. Ed. 2d 389, 417 (2000); see also Stallings v. United States, 536 F.3d 624, 628 (7th Cir. 2008)
(vacating and remanding claim of ineffective assistance because appellate counsel was found to be
deficient in failing to raise certain claims regarding sentencing and the remand was necessary in order
to establish whether the petitioner was in fact prejudiced by this failure).
93. By Shepardizing, you can make sure that the law has not changed. See Chapter 2 of the JLM
for an explanation of how to Shepardize a case.

94. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). For a
discussion of habeas petitions based on a violation of your right to counsel, see Section 2(a) of this Part.
95. If, for example, a statement you gave to an agent of the prosecution (police, marshals, jailers,
bailiffs, etc.) was used against you at trial and you are claiming that the statement was illegal because
you did not have counsel present, you must first show that you had a right to counsel at the time the
information was given to that agent. See United States v. Henry, 447 U.S. 264, 274–75, 100 S. Ct. 2183,
2189, 65 L. Ed. 2d 115, 124–25 (1980) (holding that the prosecution’s use of a statement made by
you do not properly tell the court about the facts96 of the violation and how they relate to the
relevant standard, your allegations will not entitle you to relief and your claim may be
dismissed.97 Remember to give as many details about the violation as you can, but make sure
that the facts that you choose to include are relevant to the violation. If a statement relevant
to the violation you have claimed was made during your trial, find those exact words in the
transcript and include them as supporting evidence in your habeas petition. Note in your
petition the line and page in the transcript where the words can be found.
You may need to obtain additional information through public records and other means
in order to support the facts of your case. This process is called discovery and is generally
described in Chapter Eight of the JLM, “Obtaining Information to Prepare Your Case: The
Process of Discovery.” While a non-capital habeas petitioner is usually not entitled to
discovery, you may obtain discovery under the Federal Rules of Civil Procedure98 by showing
good reason that it is needed. You can show good reason when the facts you are alleging, if
correct, would entitle you to habeas relief. 99
3. The Harmless Error Rule
Once you have established that a violation occurred, the next requirement is to show that
you were harmed by the violation.100 This is necessary because of the “harmless error rule,”
which says that even if your rights were violated, a court cannot grant you habeas unless you
defendant to an undercover informant after the defendant was indicted violated his 6th Amendment
right to counsel); Massiah v. United States, 377 U.S. 201, 205–06, 84 S. Ct. 1199, 1202–03, 12 L. Ed. 2d
246, 250 (1964) (ruling that a prisoner’s statements to a government informant, where situation was
intentionally created to induce incriminating statements, should not be admitted at trial). But see
Illinois v. Perkins, 496 U.S. 292, 298–99, 110 S. Ct. 2394, 2399, 110 L. Ed. 2d 243, 253 (1990) (ruling
that a defendant’s 6th Amendment rights are not violated by admission of confession he made to
undercover agent while in jail because no charges had been filed on the subject of the confession and
there was no right to counsel).
96. Courts refer to these facts as “elements” of the violation.
97. See McFarland v. Scott, 512 U.S. 849, 860, 114 S. Ct. 2568, 2574, 129 L. Ed. 2d 666, 676 (1994)
(O’Connor, J., concurring in part and dissenting in part) (stating that “the habeas petition, unlike a
complaint, must allege the factual underpinning of the petitioner’s claim”). Note that a dissenting
opinion is an opinion disagreeing with the majority opinion. To the extent it disagrees with the opinion
of the court, it does not have the force of law. It can be influential, however, and provide you some ideas
on how to distinguish your case from the law and facts in the majority opinion. A concurring opinion
agrees with the basic holding of the majority opinion, but may decide the case on different grounds, or
provide alternative explanations for the basis of the holding. Again, concurring opinions can sometimes
be very influential and provide different arguments that might help your case, but they do not have as
much weight or persuasive force as majority opinions.
98. Rule 6 of the Rules Governing § 2254 Cases in the United States District Courts, and Rule 6 in
the Rules Governing § 2255 Proceedings in the United States District Courts discuss discovery.
99. See Bracy v. Gramley, 520 U.S. 899, 908–09, 117 S. Ct. 1793, 1799, 138 L. Ed. 2d 97, 106
(1997) (finding that it is the duty of the courts to provide the necessary facilities and procedures for an
adequate inquiry if petitioner’s allegations when fully developed may demonstrate that the petitioner is
entitled to relief); United States v. Armstrong, 517 U.S. 456, 468–70, 116 S. Ct. 1480, 1488–89, 134 L.
Ed. 2d 687, 701–02 (1996) (explaining what a defendant who is alleging racially discriminatory
prosecutorial practices must do to establish entitlement to discovery); United States v. Bass, 536 U.S.
862, 863–64, 122 S. Ct. 2389, 2391–92, 153 L. Ed. 2d 769, 772 (2002) (reaffirming Armstrong and
adding that raw statistics about overall arrest and charge patterns say nothing about charges brought
against similarly situated defendants).
100. There are some constitutional violations that automatically survive the harmless error
threshold. For these violations, you only need to show that the constitutional violation occurred, and
the court will accept that you were harmed by the violation. You must do further research on the
violation you are alleging in order to find out if you must show harmless error or only that the violation
occurred. However, for any other constitutional violation, you need to show both that the constitutional
violation occurred and also that it harmed you.
show that you were actually harmed by that violation (that is, the violation substantially
affected the outcome of trial).
The standard for determining what counts as a “harmless error” in federal habeas
petitions was established in Brecht v. Abrahamson.101 In Brecht, the Supreme Court held
that errors are not harmless when they have a “substantial and injurious effect or influence
in determining the jury’s verdict.”102 You will therefore have to show “what effect the error
had or reasonably may … have had upon the jury’s decision.”103 To put it another way, the
success of your argument will depend on your being able to demonstrate that the error
played a serious role in (or had a “substantial and injurious effect” on) the jury’s decision-
making process. Judges will likely consider the context when making a harmless error
determination. Among the factors that might be considered are
(a) The nature of the right at issue;
(b) How severely violations of that right are likely to affect the jury’s deliberations;
(c) The character of the proceedings;
(d) What is at stake;
(e) The seriousness of the violation; and
(f) The frequency of the violation during trial.104
Judges in different districts or circuits may come to different conclusions about whether certain errors
meet the “substantial and injurious effect” standard. But at least one standard applies to all judges: if the
federal judge reviewing your case is in “grave doubt” about whether an error had a “substantial and
injurious effect,” he or she must find that the error was not harmless.105 In other words, you get the benefit
of the doubt, as long as the judge has a strong doubt about the effect of the error. Therefore if the judge is
unsure about the effect of the error, your habeas petition has satisfied the requirement of showing that you
were harmed and that the harm might have affected the outcome of the case.
The Brecht “harmless error” standard does not always apply in federal courts when the
court is reviewing a state court’s determination that an error was harmless. One of the most
important changes AEDPA106 made to habeas corpus law is that it created a more deferential
standard of review for federal courts hearing challenges to state court decisions. 107
101. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 1714, 123 L. Ed. 2d 353, 363
(1993). This test is sometimes referred to as the Kotteakos test. Before Brecht, the Kotteakos test had
been the test used in federal habeas proceedings of federal prisoners to determine whether a non-
constitutional error was harmless. In Brecht, the court applied the Kotteakos test to all violations
including constitutional violations. See Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L.
Ed. 1557 (1946).
(1993) (internal citations omitted).
(1993) (Stevens, J., concurring) (internal citation omitted).
104. Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). Brecht also
included an exception, stating that a deliberate and especially serious error, or one combined with a
pattern of prosecutorial misconduct, might warrant habeas relief even if it did not “substantially
influence” the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 638 n.9, 113 S. Ct. 1710, 1718 n.9,
123 L. Ed. 2d 353, 369 n.9 (1993); see also Duckett v. Mullin, 306 F. 3d 982, 993 (10th Cir. 2002)
(finding that misconduct of the prosecutor does not put error into Brecht’s “footnote nine exemption”);
Hardnett v. Marshall, 25 F.3d 875, 879–80 (9th Cir. 1994) (holding that the key consideration to
whether the Brecht “footnote nine exemption” will be applicable is whether the integrity of the
proceeding was so infected that the entire trial was unfair). As of 2004, however, no court has found for
a defendant based on these details.
105. O’Neal v. McAninch, 513 U.S. 432, 435, 115 S. Ct. 992, 994, 130 L. Ed. 2d 947, 951 (1995).
However, the federal judge does not need to be convinced beyond a reasonable doubt that the error was
harmless. See Fry v. Piller, 551 U.S. 112, 127 S. Ct. 2321, 2328, 168 L. Ed. 2d 16, 24 (2007).
106. See footnote 7.
107. The state court’s decision must have “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal Law.” 28 U.S.C. § 2254(d)(1) (2006); see
Specifically, AEDPA provides that when a federal court is determining how the state court
applied the law in your state collateral attack, it must only hold the state court’s decision to a
standard of unreasonableness. 108 This means that if the state court held that the
constitutional error in your case was harmless, your habeas petition will have to convince the
federal court that the state court’s decision that the violation was harmless was
unreasonable.109 This is more difficult than just convincing a court that the error caused
harm. To learn more about the standard that AEDPA imposes for federal habeas review of
state court decisions, see Part B(4) of this Chapter.
The harmless error rule is a defense that the prosecutor can raise to defeat your petition
for habeas relief. This means that once you have shown that a violation occurred, it is the
prosecution’s responsibility to raise the issue of a harmless error (or, in other words, claim
that you were not actually harmed).110 If the prosecution fails to raise the harmless error
issue, it is waived, and the court will assume that the violation caused harm. The prosecution
will probably raise this defense; therefore, you should explain in your petition how the error
harmed you and carefully show how it most likely affected the jury’s decision-making. If you
do so successfully, your habeas petition will survive the harmless error test.
To have a better idea when you should argue that the error wasn’t harmless (and that
you were harmed from it accordingly), it might help to see a list of examples that courts have
found to be harmless errors:
(1) Where the defendant’s right to cross-examine the victim was limited, but not completely denied,
the error was harmless.111
(2) The trial court’s failure to issue a jury instruction on the lesser included offense of kidnapping in a
felony murder case did not have a “substantial and injurious” effect on the jury’s verdict.112
(3) Where the federal trial court failed to inform the defendant of his right to appeal his conviction, but
the defendant was already aware of this right, the error was harmless.113
Gutierrez v. McGinnis, 389 F.3d 300, 306–09 (2d Cir. 2004) (holding that “federal courts sitting in
habeas review of state conditions must grant a measure of deference to claims ‘adjudicated on the
merits’ by state courts”).
108. An unreasonableness standard means that the court will only look at whether the lower
court’s decision was unreasonable. This means that if the lower court did not find a constitutional error,
but the reviewing court does find a constitutional error, the reviewing court cannot reverse the lower
court’s decision unless the lower court was unreasonable in not finding a violation.
109. See Mitchell v. Esparza, 540 U.S. 12, 18, 124 S. Ct. 7, 12, 157 L. Ed. 2d 263, 271 (2003) (“[The
federal court] may not grant [a] habeas petition … if the state court simply erred in concluding that the
State’s errors were harmless; rather, habeas relief is appropriate only if the [state court] applied
harmless-error review in an ‘objectively unreasonable’ manner.” (quoting Lockyer v. Andrade, 538 U.S.
63, 75, 123 S. Ct. 1166, 1176, 155 L. Ed. 2d 144, 158 (2003))).
110. See United States v. Dominquez Benitez, 542 U.S. 74, 82 n.7, 124 S. Ct. 2333, 2339 n.7, 159
L. Ed. 2d 157, 167 n.7 (2004) (holding that using the Brecht standard means that the government has
“the burden of showing that constitutional trial error is harmless”); Sanders v. Cotton, 398 F.3d 572,
582 (7th Cir. 2005) (holding that the harmless error rule was waived because the state did not raise it
in district court); Holland v. McGinnis, 963 F.2d 1044, 1057–58 (7th Cir. 1992) (holding that the state
waived the harmless error defense by waiting until oral argument before the court of appeals to present
the defense).
111. Pettiway v. Vose, 100 F.3d 198, 202–03 (1st Cir. 1996) (finding that a trial judge’s limitation
of the defendant’s right to cross-examine the victim in a child molestation sexual assault case did not
have a “substantial and injurious effect” because other evidence in the case was so overpowering).
112. Villafuerte v. Stewart, 111 F.3d 616, 624–25 (9th Cir. 1997) (stating that the lower court’s
error did not have a substantial or injurious effect on the verdict, and adding that the error “was at
most harmless and more likely irrelevant”).
113. Peguero v. United States, 526 U.S. 23, 24, 119 S. Ct. 961, 963, 143 L. Ed. 2d 18, 22 (1999)
(holding that no harm is caused when a district court fails to advise a defendant of his right to appeal if
the defendant knew of his right, and ruling that the court’s error did not entitle defendant to habeas
relief).
(4) It was harmless error when the trial court admitted evidence that was obtained in violation of the
defendant’s Fifth Amendment rights because the evidence was unrelated to the charges he was
appealing.114
The following are some situations where courts have found errors to be not harmless
(harmful):
(1) The defense attorney represented two defendants charged with possession of drugs.
Both defendants wanted to assert that someone else owned the drugs. The two
defendants had conflicting interests because they each may have implicated the
other defendant as part of their defense strategy. The error was not harmless
because the attorney represented the habeas petitioner with a conflict of interest.115
(2) It was not harmless error when a juror lied about his background to get on the jury
and made numerous comments that called into doubt his impartiality.116
(3) The trial court allowed testimony from a co-defendant regarding his interpretation of
the defendant’s knowledge of fraudulent behavior. The appellate court reversed,
finding the admission of testimony was not harmless error because the testimony
related to the case’s “central disputed issue” and because of the government’s
relatively weak case. As a result of a primarily circumstantial case and the professed
reliance on the co-defendant in the government’s opening and closing statements,
the testimony of the co-defendant was found to be “vitally important.”117
In a few situations, the court has made an exception to the harmless error rule and will
assume that you were harmed because of the nature of the violation. These violations are
called “per se prejudicial.”118 Per se prejudicial violations (sometimes called structural errors)
are errors that the court will always consider to have violated your right to a fair trial.
Therefore, they are not subject to the harmless error rule, and you do not have to prove to the
court that you were harmed.119 Per se prejudicial violations include120 “the total deprivation
114. United States v. Suarez, 263 F.3d 468, 484 (6th Cir. 2001). See also United States v. Kaplan,
490 F.3d 110, 119 (2d Cir. 2007) (holding that: (1) the district court erred in admitting lay opinion
testimony regarding defendant’s and other’s knowledge of the fraud and (2) these errors were not
harmless).
115. McFarland v. Yukins, 356 F.3d 688, 705–14 (6th Cir. 2004) (holding that the court’s error
was prejudicial where the defendant “was forced, over her objection, to go to trial with counsel who was
actively representing a co-defendant”).
116. Green v. White, 232 F.3d 671, 677–78 (9th Cir. 2000).
117. United States v. Kaplan, 490 F.3d 110, 123–24 (2d Cir. 2007).
118. A court rarely finds a violation per se prejudicial. If you find a case where a court described
the violation you are claiming as a per se prejudicial violation, a structural violation, or an automatic
reversal violation, you should cite the case and show the court how your violation is similar and why it
deserves the same treatment as the violation described in that case. Here are some examples of when
courts have found violations per se prejudicial: Roe v. Flores-Ortega, 528 U.S. 470, 484, 120 S. Ct. 1029,
1038, 145 L. Ed. 2d 985, 999 (2000) (when the petitioner is effectively denied the right to an appeal);
Edwards v. Balisok, 520 U.S. 641, 647, 117 S. Ct. 1584, 1588, 137 L. Ed. 2d 906, 914 (1997) (when the
trial judge is not impartial); Bell v. Cone, 535 U.S. 685, 695–96, 122 S. Ct. 1843, 1851, 152 L. Ed. 2d
914, 927 (2002) (when petitioner is denied counsel at a “critical stage” of the proceedings). *Please
NOTE: This case was on appeal to be heard in the Supreme Court in December 2008 to determine two
questions: (1) whether a federal habeas claim is "procedurally defaulted" because it has been presented
twice to the state courts; and (2) whether a federal habeas court is powerless to recognize that a state
court made a mistake in holding that state law precludes reviewing a claim. Because the law is
changing, you should make sure to research what the most up-to-date law is and not rely exclusively on
the JLM.
119. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302, 332
(1991) (stating “structural defect[s] affect[] the framework within which the trial proceeds, rather than
[are] simply … error[s] in the trial process”).
of the right to counsel, the denial of the right to an impartial judge, 121 unlawful
discrimination in the grand-jury selection process, the denial of the right to self-
representation at trial, … the denial of the right to a public trial, [and] … the giving of
defective jury instructions on reasonable doubt.”122 However, you should always show the
court how you were harmed by a violation, even if it was a per se prejudicial violation, to help
you in your petition. You should only use the argument that a violation was per se prejudicial
to strengthen your argument that you were harmed by the violation.123
In the vast majority of cases, the court will not assume that you were harmed by the
violation (will not find that it was a per se prejudicial violation), and you will be responsible
for showing the harm that you suffered. This element of your habeas petition is just as
important as showing that a violation occurred because if the court finds that the violation
was harmless, the court will not grant habeas relief. Thus, it is very important that you
establish in your pleading how the error in your case negatively affected the outcome of your
trial and caused you harm.
4. AEDPA Standard of Relief: Showing the Federal Court that the
State Court Was Incorrect in Refusing to Grant You Relief124
Once you have shown the court that your rights were violated and the violation was
harmful, state prisoners will also need to convince the federal court that the state court was
incorrect in failing to find that your rights were violated and that you were harmed by the
violation. In some cases where the state court ruled on both of these elements, you will have
to show the federal court that the state court was incorrect on both counts. (Remember, you
will have had to present your claims to a state court first, so you will only be filing a federal
habeas petition if the state court has denied you relief.)
In 1996, AEDPA altered 28 U.S.C. § 2254 and set a new “standard of review” for habeas
relief for state court prisoners. A standard of review is the test that the federal court will use
to decide whether to overrule the state court’s decision denying you relief. Under AEDPA,
you must prove that the state court decision rejecting your claim was either “contrary to, or
was an unreasonable application of, clearly established federal law, as determined by the
120. This list is not complete. There are other instances where the court will find the error per se
prejudicial (a structural error), and your federal appeals court may include more instances than the
Supreme Court.
121. Richardson v. Quarterman, 537 F.3d 466, 470−79 (5th Cir. 2008) (denying a habeas petition
alleging that a judge had to remove himself from a murder prosecution because the appearance of bias
arising from the his wife’s acquaintance with the victim was only a harmless error and not a structural
error requiring automatic reversal).
122. United States v. Allen, 406 F.3d 940, 944 (8th Cir. 2005) (citing Arizona v. Fulminante, 499
U.S. 279, 309, 111 S. Ct. 1246, 1264, 113 L. Ed. 2d 302, 331 (1991)); see also Neder v. United States,
527 U.S. 1, 8, 119 S. Ct. 1827, 1834, 144 L. Ed. 2d. 35, 45 (1999) (noting structural errors subject to
automatic reversal are (1) a complete denial of counsel, (2) biased trial judge, (3) racial discrimination
in selection of grand jury, (4) denial of self-representation at trial, (5) denial of public trial, and (6)
defective reasonable-doubt instruction).
123. For example, after you show the court that the error was harmful, you might say “even if
this error were harmless, I would still be entitled to relief because the error was a per se prejudicial
violation that affected my substantial rights.” See, e.g., Neder v. United States, 527 U.S. 1, 7, 119 S. Ct.
1827, 1833, 144 L. Ed. 2d 35, 46 (1999) (stating that there is a “limited class of fundamental
constitutional errors that ... are so intrinsically harmful as to require automatic reversal (i.e., ‘affect
substantial rights’) without regard to their effect on the outcome”).
124. The standard of review discussed in this Section only applies to state prisoners. For federal
prisoners, appellate courts review questions of law de novo, and questions of fact for clear error. This
means that reviewing courts will apply their own judgments to question of law, but “the factual
findings of the courts are presumed to be correct.” Smith v. Mann, 173 F.3d 73, 76 (2d Cir. 1999); see,
e.g., Dorsey v. Chapman, 262 F.3d 1181, 1185 (11th Cir. 2001) (ineffective assistance of counsel claim).
Supreme Court of the United States” 125 or that it was based on an “unreasonable
determination of facts in light of the evidence presented in the State court proceeding.”126
This is a very high standard and one that is not easily met. The federal courts are hesitant to
overturn state court decisions. This means that to get federal habeas relief you cannot just
show the federal court that the state court was wrong—you must show that the state court
was “unreasonable” or “contrary” to the Supreme Court’s interpretation of federal law.
How the federal court will apply the AEDPA standard of review will depend on how the
state court handled your state collateral127 attack. If the state court made a determination
about certain issues, then the federal court will apply the AEDPA standard of review to the
state court’s decision-making process. The federal court will look to see if the state court’s
decision was “unreasonable” or “contrary” to the Supreme Court’s interpretation of the law.
You still need to also show, in addition to demonstrating that the state court’s decision-
making process was incorrect, that the state court’s ultimate determination was incorrect
using facts.
For example, if the state court rejected your collateral attack because it found that a
constitutional violation did not occur, and it did not discuss the issue of harmless error, then
the AEDPA standard of review will only apply to establishing the constitutional violation.
Showing that the state court was incorrect will be subject to the AEDPA standard of review,
so you will have to prove that the state court was “unreasonable” or “contrary” to the
Supreme Court’s interpretation of federal law. This means that you will have to show the
federal court that the state court was incorrect in failing to find that the violation occurred,
in addition to showing that the constitutional violation occurred (by showing that the action
met the appropriate standard, as discussed in Part B(2)). If the state court did not rule on
the next element of the habeas petition, harmless error, then you will not need to apply the
AEDPA standard of review to the harmless error issue. In this example, because the state
court never ruled on the harmless error issue, the federal court will look at the harmless
error issue de novo, which means that the federal court will look at the issue as if for the first
time. If the state court found that a violation occurred, but that it was harmless, the federal
court will apply AEDPA’s unreasonableness standard of review to the harmless error issue.
Also, the state court may have found that there was no constitutional violation but may have
ruled on the harmless error issue anyway. Because in such a situation the state court ruled
on both elements of the habeas petition, the federal court has to apply the AEDPA standard
of review to both elements.
Occasionally state prisoners present habeas claims to federal courts that have not been
previously presented to state courts. This happens when the claim falls under one of the
exceptions to the exhaustion rule. You should see Part D(2) of this Chapter below for a
detailed discussion of the state exhaustion rule. In these very rare circumstances, the
AEDPA standard of review will not be used at all. If your claim falls under one of the
exceptions to the exhaustion rule, you only need to show the federal court that your rights
were violated and that the violation affected the outcome of the trial. Once you have shown
this, you will have completed the substantive part of your habeas claim. However, there are
still many procedural issues you will have to address to be granted habeas relief. These
procedural issues are discussed below in Part D (“Procedures for Filing a Petition for Habeas
Corpus”) of this Chapter.
Assuming the state court has ruled on your claim, it will be subject, at least in part, to
the AEDPA standard of review. This Section discusses this standard in more detail.
Subsection (a) of this Section will discuss how to use the first test—“contrary to, [or an]
unreasonable application of, clearly established Federal law as determined by the Supreme
125. 28 U.S.C. § 2254(d)(1) (2006).

126. 28 U.S.C. § 2254(d)(2) (2006).
127. See Part A(1) for an explanation of “collateral attack.”
Court.” Subsection (b) of this Section will discuss the second test—“unreasonable
determination of facts in light of the evidence presented.”
(a) “Contrary to, or invol[ving] an unreasonable application of clearly
established federal law, as determined by the Supreme Court”128
The Supreme Court explained this test in Terry Williams v. Taylor.129 In Terry Williams,
the petitioner claimed his attorney had provided ineffective assistance of counsel. The court
held that Mr. Williams had shown his counsel’s performance was ineffective and went on to
consider whether habeas relief should be granted under this standard.130 The Court first held
that in order to be successful, a petitioner must show that the claimed violation was based on
federal law that was clearly established by the Supreme Court at the time the state court
decided these claims. This means that before the court will consider your claim, you must
show that the law you are relying on is not new and that the Supreme Court itself has
interpreted the law.131 For an explanation of what is considered new law, and if a law is not
new whether it is “clearly established” or not, read Part C(2) of this Chapter. Most of the
examples of constitutional violations listed above are not new laws and would qualify for
relief. There are some very limited exceptions that allow new law to be used. To learn more
about these exceptions read Part C(3) (“Exceptions to the New Laws Rule”) of this Chapter.
If you can show that you are relying on clearly established federal law, the next step is to
show either that the state or trial court’s decision was contrary to that federal law, or that
the state or trial court applied the law in an unreasonable manner. Remember, the point of
the federal habeas petition is to give the federal court a chance to correct a wrong decision by
the state or trial court.
(i) “Contrary” Standard
The first way to show that the decision was wrong is to show that the court’s decision
was contrary to clearly established federal law.132 This is a very difficult standard to meet. In
Terry Williams, the Court held that this clause meant that habeas relief is warranted if the
court “applies a rule that contradicts the governing law set forth in our cases.”133 This means
that the court must have applied the wrong standard in a case or interpreted that standard
incorrectly. For example, in an ineffective assistance of counsel case, the governing standard
is the Strickland standard.134 If the court applied a standard that was different than the
128. Terry Williams v. Taylor, 529 U.S. 362, 402–03, 120 S. Ct. 1495, 1518, 146 L. Ed. 2d 389, 424
(2000).
129. Terry Williams v. Taylor, 529 U.S. 362, 384–88, 120 S. Ct. 1495, 1508–11, 146 L. Ed. 2d 389,
412–15 (2000).
130. In determining that Mr. Williams’ counsel was ineffective, the Court found that Mr.
Williams had met the Strickland standard. Mr. Williams showed a violation of clearly established
federal law and/or the Constitution, found the right standard. and showed the Court that he had
suffered harm from this violation. To learn more about the Strickland standard, see Part B(2) of this
Chapter. For a discussion of the “clearly established” standard, see Part B(1) of this Chapter. To learn
how to find the correct standard, see Part B(2) of this Chapter, and for an explanation of how to
establish that a violation caused harm, see Part B(3) of this Chapter.
131. For an explanation of how to establish that the law you are relying on is not new, see Part
C(2) (“New Laws: The Teague Rule”) of this Chapter.
132. It is important to note that “dicta” or “dictum” is not considered clearly established federal
law. Only Supreme Court holdings are considered law clearly established by the Supreme Court. Terry
Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389, 429 (2000).
133. Terry Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519, 146 L. Ed. 2d 389, 425
(2000) (O’Connor, J., concurring).
134. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d
674, 693, 698 (1984) (declaring that the standard for establishing ineffective assistance of counsel is
whether the attorney’s performance was objectively reasonable and whether deficient performance
prejudiced the defense).
Strickland standard, then it has applied a standard “contrary” to clearly established law, and
relief may be warranted. Also, if the court interpreted Strickland incorrectly, then the
decision would be contrary to federal law, and relief could be granted.135 That said, it is
difficult to persuade an appeals court that a state court applied the law in a contrary way.136
The other way to show a decision was contrary to federal law is to show that, even
though the facts of your case are hard to distinguish from the facts of a case on which the
Supreme Court has ruled, the state court reached a different conclusion than the Supreme
Court did.137 This means that if you can find a Supreme Court case with very similar facts to
your case, and the state court did not rule in the same way as the Supreme Court, you might
be entitled to relief.138 In Terry Williams, however, the Court stressed that if the correct legal
standard is applied to a claim, and there is no Supreme Court case with similar facts, then
the state court decision rejecting the claim is not “contrary” to federal law.139
So, under this part of the test, in order to show that the decision rejecting your claim was
contrary to federal law, you must do one of three things: (1) show that the court relied on the
wrong standard in determining whether a violation had occurred;140 (2) show that the court
135. In Terry Williams, the Court found that the state court decision was contrary to federal law
because the court used the test for ineffective assistance of counsel found in Lockhart v. Fretwell, 506
U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993), instead of the Strickland standard, which should
have been used. Terry Williams v. Taylor, 529 U.S. 362, 413–14, 120 S. Ct. 1495, 1523–24, 146 L. Ed.2d
389, 430 (2000) (O’Connor, J., concurring).
136. See, e.g., Bell v. Cone, 535 U.S. 685, 693, 122 S. Ct. 1843, 1849, 152 L. Ed.2d 914, 926 (2002)
(observing that AEDPA “modified a federal habeas court’s role in reviewing state prisoner applications
in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to
the extent possible under the law”). Please NOTE: This case is on appeal to be heard in Supreme Court.
See footnote 118.
137. Terry Williams v. Taylor, 529 U.S. 362, 406, 120 S. Ct. 1495, 1519–20, 146 L. Ed. 2d 389, 426
(2000) (“A state court decision will also be contrary to this Court’s clearly established precedent if the
state court confronts a set of facts that are materially indistinguishable from a decision of this Court
and nevertheless arrives at a result different from our precedent.”); see also Ramdass v. Angelone, 530
U.S. 156, 165–66, 120 S. Ct. 2113, 2119–20, L. Ed. 2d 125, 135–36 (2000) (reiterating that “a state court
acts contrary to clearly established federal law if it applies a legal rule that contradicts our prior
holdings or if it reaches a different result from one of our cases despite confronting indistinguishable
facts”).
138. See Lockyer v. Andrade, 538 U.S. 63, 73, 123 S. Ct. 1166, 1173, 155 L. Ed. 2d 144, 156 (2003)
(explaining that if the state court confronts a set of facts that are materially indistinguishable from a
decision of the Supreme Court and nevertheless arrives at a different result than the Supreme Court,
the state court’s decision is “contrary” to federal law); see also Cockerham v. Cain, 283 F.3d 657, 663
(5th Cir. 2002) (finding jury instructions were contrary to federal law because the same instructions
had been found to be unconstitutional by the Supreme Court in Cage v. Louisiana, 498 U.S. 39, 111 S.
Ct. 328, 112 L. Ed. 2d 339 (1990)).
412–13 (2000); see also Lockyer v. Andrade, 538 U.S. 63, 73, 123 S. Ct. 1166, 1173, 155 L. Ed. 2d 144,
156 (2003) (explaining that if the state court confronts a set of facts that are materially
indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result
than the Supreme Court, the state court’s decision is “contrary” to federal law); Ellis v. Norris, 232 F.3d
619, 623 (8th Cir. 2000) (concluding that the state court’s decision was not contrary to clearly
established federal law because the facts involved “materially distinguish[ed] it from any relevant
Supreme Court precedent”); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (holding that a state
court decision was not contrary to Supreme Court precedent because it did not apply a rule of law
contradicting precedents and did not contain “materially indistinguishable” facts from a Supreme Court
case that reached a contrary result); Sanders v. Easley, 230 F.3d 679, 686 (4th Cir. 2000) (holding that
a state court decision was not “contrary to” established Supreme Court precedent when the state court
correctly identified the governing standard and “articulated specific considerations similar to those
recognized by the Supreme Court”).
140. To find out what standard the court should have applied, see Part (B)2 (“Standards and
Tests for Claims of Violations”) of this Chapter.
chose the right standard, but then applied it incorrectly to your case; or (3) point to a
Supreme Court case with similar facts and claims to your case, in which the Supreme Court
ruled differently than the state court in your case. Put simply, to prove that you deserve
relief, you must point to a violation of a federal right,141 identify the standard that applies to
that violation,142 show the court that the violation in your case meets that standard,143 and
then argue that the state court used the wrong standard or applied the standard incorrectly
to the facts in your case.
(ii) Unreasonable Application Standard
If the state court used the correct standard and the decision rejecting your claim of a
violation of a federal right is not contrary to federal law, you may still be able to get relief
under the second part of the test. This part of the test applies if the state court has
determined the right standard for the violation you are claiming but applied the standard to
the facts of your case in an unreasonable way, or if the state court did not extend the
standard to cover the violation you have suffered.144 There are times when this standard will
overlap with the “contrary to” standard,145 and you should always argue that both standards
are met by your case. To show that the state court decision was an unreasonable application
of federal law, you have to show that the state court was “objectively unreasonable” in the
way it applied the standard.146
You should show that there is specific Supreme Court precedent that required the state
court to reach a result that it did not. The more specific the Supreme Court precedent, the
more recent it is, and the more similar it is to your case, the stricter the requirement is for
the state court.147 Therefore, you will strengthen your argument that the state court was
unreasonable by showing the federal court that the Supreme Court precedent was specific
and that the precedent required a specific outcome to your case. The Court has said that an
unreasonable application of federal law is more than just an incorrect application of federal
141. See Part B(1) (“Examples of Constitutional Violations”) of this Chapter.

142. See Part B(2) (“Standards and Tests for Claims of Violations”) of this Chapter.
143. See Part B(4) (“Standards for Getting Relief”) of this Chapter.
(2000) (O’Connor, J., concurring) (explaining that the “unreasonable application” clause is met when “a
state-court decision unreasonably applies the law of this Court to the facts of a prisoner’s case”); see
Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 2534–35, 156 L. Ed. 2d 471, 484 (2003) (stating
that unreasonable application of federal law is when a state court “has misapplied a ‘governing legal
principle’ to ‘a set of facts different from those of the case in which the principle was announced’”
(quoting Lockyer v. Andrade, 538 U.S. 63, 76, 123 S. Ct. 1166, 1175, 155 L. Ed. 2d 144, 159 (2003));
Ramdass v. Angelone, 530 U.S. 156, 166, 120 S. Ct. 2113, 2120, 147 L. Ed. 2d 125, 136 (2000) (“The
statute also authorizes federal habeas corpus relief if, under clearly established federal law, a state
court has been unreasonable in applying the governing legal principle to the facts of the case. A state
determination may be set aside under this standard if, under clearly established federal law, the state
court was unreasonable in refusing to extend the governing legal principle to a context in which the
principle should have controlled.”).
412–13 (2000) (explaining that the two standards are not mutually exclusive and anticipating that
claims will be brought under both).
428 (2000) (O’Connor, J., concurring) (explaining that a showing of “objective unreasonableness” is not
defeated by the fact that one jurist applied the law in such a way); see also Woodford v. Visciotti, 537
U.S. 19, 24–25, 123 S. Ct. 357, 360, 154 L. Ed. 2d 279, 286 (2002) (holding that it is not enough for a
federal court to find a state court applied federal law incorrectly; rather, the prisoner must show that
the state court applied federal law in an objectively unreasonable manner).
147. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149, 158 L. Ed. 2d 938, 951
(2004) (concluding the more general the rule being applied, the more leeway the state courts have in
making their decisions).
law. 148 State courts can go so far as to be “imprecise” and yet still apply the law
reasonably.149 Therefore, you cannot just show the federal court that the state court was
wrong—you must show them something more.150
It is hard to define what more you would need to show. You should try to show that,
besides the conclusion being incorrect, the state court’s analysis and reasoning was also
flawed. One way to think of it is that you should show that the court’s point of view is
different than how most people would see the situation and that it would be hard for a
reasonable person to understand how the state court came to its ultimate decision. If you can
show a significant error in that reasoning, you may be able to show that its actions were
unreasonable.151
Circuits have different interpretations as to what this unreasonable standard means.
You should check how your circuit defines “unreasonable” in this context by Shepardizing the
main Supreme Court case on this point, Terry Williams v. Taylor,152 and finding a case in
your circuit interpreting Terry Williams.
(2000).
149. See Woodford v. Visciotti, 537 U.S. 19, 23–24, 123 S. Ct. 357, 359, 154 L. Ed. 2d 279, 285–86
(2002) (holding that while the California Supreme Court was imprecise in how it applied the Strickland
test, it was not unreasonable).
150. See Hameen v. Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (stating that a federal court may
not grant habeas relief simply because the state court applied federal law erroneously or incorrectly);
Phoenix v. Matesanz, 233 F.3d 77, 83 (1st Cir. 2000) (“We cannot say that [the state court’s] finding
was objectively unreasonable, even if we might have found differently.”); Francis S. v. Stone, 221 F.3d
100, 111 (2d Cir. 2000) (stating that “some increment of incorrectness beyond error is required” but
“that increment need not be great”); see also Middleton v. McNeil, 541 U.S. 433, 437–38, 124 S. Ct.
1830, 1832–33, 158 L. Ed. 2d 701, 707 (2004) (holding that the state court was not unreasonable when
it upheld jury instructions, even though an incorrect instruction was given, because the jury was given
the correct instructions at least three other times).
151. See Wiggins v. Smith, 539 U.S. 510, 528, 123 S. Ct. 2527, 2538, 156 L. Ed. 2d 471, 489 (2003)
(finding that a state court analysis based on a “clear factual error” led to an unreasonable decision); see
also Rompilla v. Beard, 545 U.S. 374, 389, 125 S. Ct. 2456, 2467, 162 L. Ed. 2d 360, 376 (2005) (finding
that the state court’s “fail[ure] to answer the considerations [the Supreme Court] ha[s] set out”
amounted to an unreasonable decision on a claim of ineffective assistance of counsel); Mask v.
McGinnis, 233 F.3d 132, 140 (2d Cir. 2000) (concluding that the state court’s decision was a
“unreasonable application” of Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 30 L.
Ed. 2d 674, 698 (1984), because it required petitioner to meet a higher standard—certainty that the
results of the proceeding would have been different—to establish an ineffective assistance of counsel
claim, rather than the preponderance of the evidence standard required under Strickland); Washington
v. Hofbauer, 228 F.3d 689, 707 (6th Cir. 2000) (concluding that the state court’s application of
Strickland was objectively unreasonable where, among other things, the state court incorrectly cited
Darden v. Wainwright, 477 U.S. 168, 182, 106 S. Ct. 2464, 2472, 91 L. Ed. 2d 144, 158 (1986), to
support its incorrect conclusion that counsel was not ineffective in failing to object to prosecutorial
misconduct in the closing argument).
152. Terry Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). The
following is a list of sample cases, by circuit, interpreting the unreasonable application standard. See
Kibbe v. Dubois, 269 F.3d 26, 39 (1st Cir. 2001) (finding that the state court’s decision was objectively
reasonable even if it was not correct or accurate because it fell within “the universe of plausible,
credible outcomes,” and stating that multiple contradictory, reasonable interpretations are likely when
there are unresolved legal issues); Davis v. Strack, 270 F.3d 111, 133 (2d Cir. 2001) (finding that the
Appellate Division’s decision was “egregiously at odds with the standards of due process propounded by
the Supreme Court” and fit within the “unreasonable application” clause); Hameen v. Delaware, 212
F.3d 226, 235 (3d Cir. 2000) (following Terry Williams by requiring more than error to find
unreasonableness); Jermyn v. Horn, 266 F.3d 257, 312 (3d Cir. 2001) (finding that defendant’s counsel
had been ineffective for failing to conduct adequate investigation and that the state court’s decision to
the contrary was objectively unreasonable); Bell v. Jarvis, 236 F.3d 149, 162 n.9 (4th Cir. 2000)
(holding that the state court’s rejection of the plaintiff’s ineffective counsel claim was not objectively
(b) “Unreasonable determination of facts in light of the evidence
presented in the State court proceeding”
This Subsection discusses a different standard for getting habeas relief. As you will
recall, Part B(4)(a) of this Chapter reviews how to get habeas relief if the state court
determination of your claim rested on incorrect law or law that was unreasonably applied.
This Subsection is not for when the state court gets the law wrong, but rather when the state
court gets the facts of your case wrong. This means that the state court determined the right
standard for your case but then: (1) did not believe some of the evidence that was presented;
(2) interpreted some of that evidence incorrectly and based a ruling on this misinterpreted
evidence; or (3) ignored legally relevant facts that it needed to consider in order to reach the
correct result.
If the federal court determines that the state court unreasonably interpreted the facts of
your case and based its decision on unreasonably interpreted facts, then it can grant habeas
relief. 153 On the other hand, if it determines that the state court was reasonable in its
determination of the facts, it cannot grant relief. A reviewing court will give deference to the
trial court and start with the assumption that the state court based its decision on a correct
reading of the facts.154 It is up to you to prove that the court did not read the facts correctly
because it either ignored some evidence or interpreted some evidence incorrectly. You must
then prove that the state court decision would have been different if it had properly
considered and applied all the relevant facts.
unreasonable, and explicitly stating that the “unreasonable” standard should not be equated with the
“clearly erroneous” standard); Martinez v. Johnson, 255 F.3d 229, 243–44 (5th Cir. 2001)
(distinguishing the objective standard of unreasonableness from the “debatable among reasonable
jurists” standard, and holding that the court’s decision was not objectively unreasonable because a
rational trier of fact could find the same way); McFarland v. Yukins, 356 F.3d 688, 714 (6th Cir. 2004)
(finding that requiring defendant to go to trial with an attorney with a conflict of interest to defendant
was contrary to clearly established federal law); Boss v. Pierce, 263 F.3d 734, 742 (7th Cir. 2001)
(holding that the appellate court’s decision was unreasonable and noting that to determine
unreasonableness, the court asks “whether the decision is at least minimally consistent with the facts
and circumstances of the case or if it is one of several equally plausible outcomes … [and only granting
habeas] if the determination is at such tension with governing U.S. Supreme Court precedents, or so
inadequately supported by the record, or so arbitrary as to be unreasonable” (internal quotations
omitted)); Miller v. Dormire, 310 F.3d 600, 604 (8th Cir. 2002) (finding that state court’s application of
harmless error rule to defense attorney’s waiver of jury trial without defendant’s consent was contrary
to clearly established federal law because federal law holds that denial of a jury trial is a “structural
error” and always harmful); Gibson v. Ortiz, 387 F.3d 812, 825 (9th Cir. 2004) (finding state court’s
decision contrary to established federal law when jury instructions permitted facts to be found by a
preponderance of the evidence, instead of beyond a reasonable doubt); Thomas v. Gibson, 218 F.3d
1213, 1220 (10th Cir. 2000) (applying the Supreme Court’s distinction between erroneous and
unreasonable); Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (holding that the lower court
decision was not objectively unreasonable and noting that it is the “objective reasonableness, not the
correctness per se, of the state court decision that we are to decide”).
153. See Torres v. Prunty, 223 F.3d 1103, 1110 n.6 (9th Cir. 2000) (finding that “the state courts'
factual determinations were unreasonable” and that the defendant “rebutted the presumption of
correctness of [the state courts’] findings by clear and convincing evidence”).
154. 28 U.S.C. § 2254(e)(1) (2006) (“[A] determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.”); see also Weeks v. Snyder, 219 F.3d 245, 258–59 (3d Cir.
2000) (holding that the presumption of correctness applies to the state court’s implicit factual findings
as well as express findings); Bottoson v. Moore, 234 F.3d 526, 534 (11th Cir. 2000) (finding that “[w]hen
there is conflicting testimony by expert witnesses, as here, discounting the testimony of one expert
constitutes a credibility determination, a finding of fact” to which the presumption of correctness is
applied).
The first step in determining whether the ruling was based on an unreasonable
determination of the facts of your case is to show the court that there was a determination of
facts, for example at an evidentiary hearing or at credibility determinations where the court
chose to believe one witness over another. You cannot rely on this standard for relief if no
facts were determined by the state court. However, if the state court did not determine any
facts, but should have, you might be entitled to relief by arguing that a failure to find facts at
all is actually an unreasonable determination of facts.155
The second step is to prove that the state court determinations of fact were unreasonable.
One way to do this is to show that the fact-finding procedure the court used was
inadequate.156 This means that the court made conclusions without looking at the evidence
you presented, or did not take into consideration some of the important evidence you
presented. This part of the inquiry deals with how the state court went about making factual
determinations, not what those determinations were.
The third step in proving that the state court determinations of fact were unreasonable is
to show that the determinations the state court made were substantively unreasonable. This
means you have to show that the state court’s determination of facts was unreasonable and
not at all supported by the evidentiary record.157 The standard for doing this is “clear and
convincing” evidence.158 This means you cannot just make conclusions and assertions that
the state court determined the facts unreasonably—you actually have to demonstrate to the
court, with specific examples, why the state’s determination of facts was unreasonable.159
155. See Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004) (finding that a state court’s
determination of facts is unreasonable if no finding was made and the court “should have made a
finding of fact but neglected to do so”); Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003) (finding
that the state court’s “factual” findings were unreasonable when the court made the findings without
holding an evidentiary hearing); Mask v. McGinnis, 233 F.3d 132, 140 (2d Cir. 2000) (refusing to give
the state court’s “factual findings” a presumption of correctness because they were not factual findings
but only conclusions).
156. See Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691, 698 (9th Cir. 2004) (deciding
that there is no deference given to a state court’s fact findings when those findings were “arrived at
through the use of erroneous legal standards”); Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)
(finding lack of an evidentiary hearing inadequate to find “facts”); Bottoson v. Moore, 234 F.3d 526,
535–36 (11th Cir. 2000) (determining that 10 days of evidentiary hearings and contradicting expert
witnesses are adequate to support findings of fact); Francis S. v. Stone, 221 F.3d 100, 116 (2d Cir. 2000)
(finding an “extensive” record adequate to credit one expert witness over another).
157. See Miller-El v. Dretke, 545 U.S. 231, 240–65, 125 S. Ct. 2317, 2325–40, 162 L. Ed. 2d 196,
214–30 (2005) (finding that the state court’s finding on racial discrimination in jury selection was an
unreasonable determination of facts “in light of the evidence presented”); Miller v. Dormire, 310 F.3d
600, 603–04 (8th Cir. 2002) (determining that the state court’s finding that defendant had waived his
right to a jury was unreasonable when the record was “devoid of any direct testimony from [defendant]
regarding his consent to waive trial by jury”); Torres v. Prunty, 223 F.3d 1103, 1109 (9th Cir. 2000)
(concluding that state court’s factual determination of competency was unreasonable because it was
“conclusionary and not fairly supported by evidence on the record”); Thomas v. Gibson, 218 F.3d 1213,
1228–29 (10th Cir. 2000) (determining that the court’s assumption that “a murderer would not continue
to inflict blows after a victim fell unconscious” to support a finding that defendant had inflicted the
blows while the victim was conscious was an unreasonable factual finding because other
uncontradicted evidence in the record indicated that the victim had been stabbed after death).
158. 28 U.S.C. § 2254(e)(1) (2006) (“[A] determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.”).
159. See Fisher v. Lee, 215 F.3d 438, 446 (4th Cir. 2000) (holding that petitioner failed to
demonstrate to the court that the state’s factual findings were unreasonable); Torres v. Prunty, 223
F.3d 1103, 1110 n.6 (9th Cir. 2000) (finding that the state courts’ factual determinations were
unreasonable and defendant rebutted the “presumption of correctness” of the state courts’ findings “by
clear and convincing evidence”); Hooks v. Ward, 184 F.3d 1206, 1231 (10th Cir. 1999) (holding that
petitioner rebutted the presumption of correctness by demonstrating through clear and convincing
C. What You Cannot Complain About
Federal law is very particular about what you can complain about in your federal habeas
petition. As stated in Parts A and B of this Chapter, you must show that your imprisonment
violates the Constitution, the laws, or the treaties of the United States. Remember, this
means that you cannot discuss violations of state constitutions, state laws, or prison
conditions, unless your prison condition or sentence amounts to cruel and unusual
punishment.160 You generally may not raise habeas complaints based on illegal search and
seizure or based on new law. This section discusses these two situations, as well as the
exceptions to these restrictions.
1. Illegal Search and Seizure
The Fourth Amendment addresses searches and seizures. Evidence that is obtained in
violation of the Fourth Amendment is not allowed to be introduced at trial.161 Even though
introducing illegally obtained evidence into trial violates federal law, the habeas court will
rarely listen to complaints about this problem. The Supreme Court has created a different
standard of review for this particular kind of federal violation. In Stone v. Powell, the
Supreme Court held that you cannot complain about the introduction of illegally obtained
evidence in a habeas petition if the state provided you with a “full and fair” opportunity to
raise this error at trial and on appeal.162 All courts have procedures for determining whether
there has been a “full and fair opportunity” to litigate a claim. Because different states may
have different standards, you should check the law of the state where you stood trial.
In some lower courts, “full and fair opportunity” does not exist when: (1) the state’s
procedures do not allow any petitioner in your situation to raise a claim; or (2) the procedures
were used incorrectly in your case. 163 You should focus your claims on the ways the
procedures failed to let you contest the use of illegally obtained evidence in your trial.164 If
the state court never considered this claim “on the merits” (i.e., your claim was dismissed for
evidence that the state court’s conclusion that the evidence admitted at trial was insufficient to raise a
reasonable doubt as to defendant's intent to kill was incorrect).
160. The 8th Amendment of the Constitution prohibits cruel and unusual punishment. The
Supreme Court defines “cruel and unusual punishment” as the “unnecessary and wanton infliction of
pain” that is “grossly out of proportion to the severity of the crime.” Gregg v. Georgia, 428 U.S. 153,
173, 96 S. Ct. 2909, 2925, 49 L. Ed. 2d 859, 875 (1976).
161. The 4th Amendment of the Constitution bars illegal searches and seizure. The “exclusionary
rule” says that evidence seized by the police illegally may not be introduced in the criminal trial of the
victim of the unreasonable search and seizure. Weeks v. United States, 232 U.S. 383, 394–95, 34 S. Ct.
341, 345, 58 L. Ed. 652, 656 (1914); see also Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L.
Ed. 2d 1081, 1090 (1961) (applying the exclusionary rule to states through the 14th Amendment).
162. Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052, 49 L. Ed. 2d 1067, 1088 (1976).
163. See Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (“Review of fourth amendment claims in
habeas petitions [is] undertaken ... : (a) if the state has provided no corrective procedures at all to
redress the alleged fourth amendment violations; or (b) if the state has provided a corrective
mechanism, but the defendant was precluded from using that mechanism because of an unconscionable
breakdown in the underlying process.”). This standard has been adopted in other circuits. See Palmer v.
Clarke, 408 F. 3d 423, 437 (8th Cir. 2005) (applying the Capellan standard); Willett v. Lockhart, 37
F.3d 1265, 1271–72 (8th Cir. 1994) (adopting the standard in Capellan); see also Machacek v. Hofbauer,
213 F.3d 947, 952 (6th Cir. 2000) (finding that if a state has adequate procedural mechanisms for
reviewing illegally seized evidence, but if those mechanisms failed and the prisoner was prevented from
litigating his claim, the federal court may review an illegal search and seizure claim); United States ex.
rel. Bostick v. Peters, 3 F.3d 1023, 1027–29 (7th Cir. 1993) (finding that state review of 4th Amendment
claims was deficient where defendant was denied the opportunity to testify at a suppression hearing
about his version of an encounter with drug enforcement officers).
164. See Capellan v. Riley, 975 F.2d 67, 71 (2d Cir. 1992) (explaining that the focus as to whether
a federal court may review a 4th Amendment claim in a habeas petition is the “existence and
application of the [state’s] corrective procedures,” not the outcome of those procedures).
procedural reasons before the court heard or considered your evidence), most courts will find
you were denied your “full and fair opportunity.” In other words, you can complain about an
illegal search and seizure problem in your habeas petition if the court: (1) never considered
whether your factual arguments were right or wrong; or (2) never considered why your
factual arguments were right or wrong.165
New York prisoners generally have a “full and fair opportunity” to raise claims
concerning illegally obtained evidence because they can raise the claim directly at various
judicial stages. The defendant may notify the judge of this problem during pretrial hearings
and during the trial.166 The defendant may also raise this type of claim on appeal as long as
the claim was properly preserved 167 during the trial. 168 Therefore, in New York, unless
something very unusual occurred at your trial, you probably cannot complain about illegal
search and seizure in your habeas petition.
Stone’s full and fair opportunity test applies only to Fourth Amendment exclusionary
rule claims. So far, this standard has not been applied to other constitutional claims.169 The
165. Here are three examples of cases where the federal habeas court decided that the state court
failed to provide a full and fair opportunity to litigate an illegally seized evidence claim:
(1) In United States ex rel. Bostick v. Peters, the petitioner sought habeas relief from a conviction of drug
possession. The police had searched his bags without a warrant or probable cause. The petitioner raised this
issue in a pretrial hearing, but the judge told him he did not have to testify in order to make his claim. The
court then admitted the evidence, and the petitioner was convicted. The petitioner raised the illegal evidence
claim again on appeal, but the appellate court affirmed the conviction without considering the petitioner’s
claim. The petitioner then filed a federal habeas petition raising the same claim. The appeals court held that
the petitioner was not at fault because he reasonably relied on the trial court’s ruling that his testimony was
not necessary. United States ex rel. Bostick v. Peters, 3 F.3d 1023 (7th Cir. 1993).
(2) In Agee v. White, the petitioner sought habeas relief from a murder conviction. The police had brought him to
the station twice, first under illegal arrest and then voluntarily a week later. During the second visit, the
petitioner made incriminating statements that were later admitted as evidence. At his trial and on state appeal,
the petitioner argued that the information given in the second interrogation was “tainted.” Both courts,
however, ignored the claims. Petitioner argued in his habeas petition that he had not had a “full and fair
opportunity” to present the illegal evidence claim because the appellate court ignored his argument. The
habeas court agreed that the petitioner did not have a full and fair opportunity to bring this claim earlier, and
therefore agreed that the claim was properly before the court in the habeas petition. But after considering the
petitioner’s argument, the habeas court decided that the second interrogation was not illegal because it
occurred a week after the first illegal arrest and was itself voluntary. Agee v. White, 809 F.2d 1487 (11th Cir.
1987).
(3) In Riley v. Gray, the petitioner raised his claim of illegally seized evidence on appeal. The evidence had been
taken under a warrant that was based on other evidence obtained in a warrantless search. The appellate court
affirmed the conviction on the basis of a procedural rule without considering the facts of the illegal evidence
claim. The appeals court granted habeas relief based on the same claim because an “unforeseeable application
of a procedural rule” had prevented the petitioner from fully presenting his claim earlier. Riley v. Gray, 674
F.2d. 522 (6th Cir. 1982).
166. N.Y. Crim. Proc. Law § 710.40 (McKinney 1995) allows a defendant to raise this claim in a
pretrial motion or at trial if the defendant was unaware of the illegal seizure.
167. To preserve your claim, you must make a motion to suppress the evidence and object to its
inclusion if your motion does not succeed. See Chapter 9 of the JLM for more information on properly
preserved claims.
168. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732, 144 L. Ed. 2d 1, 9 (1999)
(holding that “state prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State's established appellate review
process”); see also Fay v. Noia, 372 U.S. 391, 439, 83 S. Ct. 822, 849, 9 L. Ed. 2d 837, 869 (1963) (stating
that a habeas applicant who understandingly had an opportunity to appeal but knowingly waived his
right to appeal his federal claims in the state court may fairly be denied relief by the federal court
considering his habeas petition, and acknowledging that there are exceptions to this rule).
305, 318–19 (1986) (refusing to extend the Stone rule to claims of ineffective assistance of counsel based
on counsel’s failure to file a timely suppression motion); Rose v. Mitchell, 443 U.S. 545, 560–61, 99 S.
Ct. 2993, 3002–03, 61 L. Ed. 2d 739, 752–53 (1979) (refusing to extend the Stone rule to an equal
Stone rule is a defense that the state can raise to your petition for habeas relief. This means
that it is the state’s responsibility to raise it in your habeas proceedings. If the state does not
raise the issue, the rule will not apply. Once Stone has been raised, it is your burden to prove
that you did not have a “full and fair opportunity” to litigate your Fourth Amendment claim.
In addition, it is highly unlikely that the state will fail to raise the Stone rule, so you should
always be sure to show that you did not have a full and fair opportunity to raise the claim in
state court. Remember that your lawyer’s failure to raise a Fourth Amendment issue might
also be grounds for an ineffective assistance of counsel claim.170
2. New Laws: The Teague Rule171
You also cannot raise a federal habeas claim based on new law.172 This means that if the
Supreme Court decides a rule, test, or standard in a case that is decided after your direct
review was complete, you generally may not rely on this new law as a basis for habeas relief.
This rule comes from the case Teague v. Lane 173 and is therefore called the Teague Rule. It is
applicable to federal and state prisoners. However, state prisoners have an additional
requirement that they must meet. State prisoners are subject to AEDPA, which says that
state decisions can only be reversed if they were “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States.”174 This section discusses the requirement for state prisoners that the law be
“clearly established,”175 in addition to the requirement from Teague that habeas petitioners
cannot rely on new law.176
These two standards (that the law is clearly established and that the law may not be
new) mean almost the same thing. The one difference is that federal prisoners can use cases
from the federal district in which they were convicted to show that the law they are relying
on is “not new” (even if the Supreme Court has not dealt with the law) while state prisoners
can only uses cases from the U.S. Supreme Court since they need to show that the law is “not
protection claim of racial discrimination in the selection of a state grand jury foreman); Jackson v.
Virginia, 443 U.S. 307, 320–24, 99 S. Ct. 2781, 2790–92, 61 L. Ed. 2d 560, 574–77 (1979) (refusing to
extend the Stone rule to claims of due process violations alleging insufficiency of evidence supporting
conviction); Withrow v. Williams, 507 U.S. 680, 682–83, 113 S. Ct. 1745, 1748, 123 L. Ed. 2d 407, 413
(1993) (refusing to extend the Stone rule to a claim of Miranda violations). Miranda requires police to
take certain precautions when interrogating suspects in their custody, such as informing the suspect
that he has a right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
170. Failure to raise 4th Amendment claims of illegally obtained evidence may amount to
ineffective assistance of counsel if the claim of illegal evidence is meritorious and there is a reasonable
probability that the defendant would not have been convicted if his 4th Amendment rights had been
respected. Kimmelman v. Morrison 477 U.S. 365, 375, 106 S. Ct. 2574, 2582–83, 91 L. Ed. 2d 305, 319
(1986). See Part B(2) (“Standards and Tests for Claims of Violations”) of this Chapter for more
information on ineffective assistance of counsel claims.
171. Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989); 28 U.S.C. §
2254(d)(1) (2006).
172. Although a habeas petitioner cannot use a new rule as grounds for his petition, the courts
can use a new rule to deny a habeas petition. Courts support this because it helps them in having the
final word on how laws work. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 844, 122 L. Ed. 2d
180, 191 (1993) (holding that the retroactivity rule in Teague does not apply to the federal government).
173. Teague v. Lane, 489 U.S. 288, 308–10, 109 S. Ct. 1060, 1074–75, 103 L. Ed. 2d 334, 354–56
(1989).
174. 28 U.S.C. § 2254(d)(1) (2006).
175. For more information on the “contrary to or involving an unreasonable application”
requirement of 28 U.S.C. § 2254(d)(1) (2006), see Part B(4)(a) of this Chapter.
(1989).
new” by showing that it is “clearly established” by the Supreme Court.177 This Section will
address both standards at the same time.
(a) What Is New Law?
New law is a rule of law that was not in force at the time of your trial and direct appeals,
according to Teague.178 New law is law that was not “clearly established,” according to the
requirement of AEDPA. 179 State prisoners are subject to the requirement in Section
2254(d)(1) of AEDPA that any law used in a habeas petition must be “clearly established.”
This requirement was established by AEDPA and changed the way that federal habeas law
is applied to state prisoners. AEDPA took the Teague rule from Teague v. Lane and turned it
into a law passed by Congress.
The triggering date for what counts as “new law” differs under the Teague standard and
the “clearly established” requirement of AEDPA. For the Teague standard, the law you rely
on must have been established by the time your conviction becomes final. The date of finality
is usually the date when the Supreme Court refuses to hear your appeal (the date the
Supreme Court denies your writ of certiorari). 180 However, for the “clearly established”
requirement in Section 2254, the courts use a different standard: the law must have been
clearly established by the date of the state court’s adjudication of your case.181
There is no specific formula that the courts use to determine what is new law; instead,
the courts look at many factors. The courts use similar factors to determine whether law is
clearly established. If the law you are relying on had not been clearly stated in another court
case when your conviction became final, the courts may still find that the law was clearly
established if it was dictated by previously decided cases, known as “precedent.” That means
if previously decided cases require a certain outcome in your case, even if a case exactly like
yours has not yet been decided, the courts will not consider the rule you are relying on to be
new law. For a rule of law to be dictated by precedent, and therefore not new law, the
precedent does not have to explicitly state the rule of law. If precedent implies the rule of
law, and a case decided after your conviction became final simply articulates the previously
implied rule, that rule is already clearly established.182 Although dictum (the part of a judge’s
opinion that does not count as a decision about the particular case that the judge is deciding)
177. See Terry Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389,
430 (2000) (stating that “[w]ith one caveat, whatever would qualify as an old rule under our Teague
jurisprudence will constitute ‘clearly established Federal law’”). The one “caveat,” or exception, is §
2254(d)(1), which restricts the source of clearly established law to the Supreme Court’s jurisprudence.
You may be able to use non-Supreme Court federal court precedent to support your claim that the
Supreme Court law was clearly established when your case was adjudicated or to show whether the
state court applied the law reasonably. See Musladin v. LaMarque, 403 F.3d 1072, 1074 (9th Cir. 2005).
(1989).
179. 28 U.S.C. § 2254(d)(1) (2006).
180. See Stringer v. Black, 503 U.S. 222, 227, 112 S. Ct. 1130, 1135, 117 L. Ed. 2d 367, 376–77
(1992) (“Subject to two exceptions, a case decided after a petitioner's conviction and sentence became
final may not be the predicate for federal habeas corpus relief unless the decision was dictated by
precedent existing when the judgment in question became final.”). If you do not file for certiorari from
the Supreme Court, your conviction becomes final when your time for filing a petition for certiorari has
elapsed. Lambrix v. Singletary, 520 U.S. 518, 117 S. Ct. 1517, 137 L. Ed. 2d 771 (1997).
(2000) (defendant’s constitutionally guaranteed right to effective assistance of counsel was “clearly
established” by the time the state court heard his case).
182. See Roe v. Flores-Ortega, 528 U.S. 470, 483–85 (2000) (finding that a newly articulated rule
“breaks no new ground” because the court’s earlier decisions implicitly established the rule); Ryan v.
Miller, 303 F.3d 231, 248 (2d Cir. 2002) (explaining that for a right to be clearly established, the
Supreme Court must have acknowledged it, but “it need not have considered the exact incarnation of
that right or approved the specific theory”).
is not considered law, it may be used as support that an implied rule of law had been clearly
established before it was articulated.183
For example, in Teague, the prosecutor had used peremptory challenges to keep all
African-Americans off the jury (peremptory challenges are used by lawyers to disqualify
potential jurors without giving any reason), and subsequently, the all-white jury convicted
the black defendant of murder. Two and a half years after this defendant’s conviction, the
Supreme Court, in Batson v. Kentucky, ruled that a defendant can establish a prima facie
case of racial discrimination just by showing that he is a member of a racial group and that
the prosecutor used peremptory challenges to remove jury members of that racial group at
the trial in question.184 The Teague defendant asked the habeas court to apply Batson to his
trial. The Supreme Court ruled that the petitioner could not apply Batson because it was a
“new rule of law.” That is, the decision in Batson was not required by any prior cases.
A rule of law is considered “new” even if it was based in part on earlier cases. The
Supreme Court has found that a rule was “new” when there had been disagreement between
lower courts about the question before the Supreme Court ruling.185 Unfortunately for the
habeas petitioner in this situation, the benefit of the doubt tends to go toward calling law
“new.” If there could have been “debate among reasonable minds”186 as to whether the law
was clearly established, it is considered new law.
It will help you understand this concept to consider the following four cases, which are
examples of the Supreme Court rejecting habeas relief because the petitioner’s habeas claim
was based on new law:
(1) In Saffle v. Parks,187 the petitioner sought habeas relief because, at his trial, the
judge had instructed the jury to “avoid any influence of sympathy.”188 The petitioner
argued that this instruction was unconstitutional because it made the jury ignore
evidence that mitigated the petitioner’s guilt (to mitigate means to make the
petitioner less culpable or less guilty). The district and appellate courts disagreed
over whether this instruction violated a previously established rule or a new rule of
law. The Supreme Court settled the dispute by calling it a new rule of law. The
Court reasoned that even though it was based on earlier cases, the earlier cases did
not say how the court should ask the jury to listen to mitigating evidence. Thus, the
Court denied habeas relief.
(2) In Butler v. McKellar,189 four years after petitioner’s murder conviction was
finalized, he asked the habeas court for relief. Relying on Arizona v. Roberson,190 he
claimed a violation of his Fifth Amendment rights because the police had
interrogated him about a murder after he had requested a lawyer on a separate
assault charge. The Supreme Court rejected his habeas petition on the ground that
the Roberson case announced a “new” rule of law a couple of years after his
conviction. His lawyer argued that the Roberson rule was not a new rule because it
183. See Gibbs v. Frank, 387 F.3d 268, 277 n.6 (3d Cir. 2004) (noting that because Supreme Court
dictum “offers guidance about how the Supreme Court reasonably interprets its ... decision[s],” it is
“relevant to determining whether a state court decision reasonably applies Supreme Court precedent”).
184. Batson v. Kentucky, 476 U.S. 69, 106 S. Ct. 1712, 90 L. Ed. 2d 60 (1986).
185. See Butler v. McKellar, 494 U.S. 407, 415, 110 S. Ct. 1212, 1217, 108 L. Ed. 2d 347, 356
(1990) (explaining that a rule is new if there is a “significant difference of opinion on the part of several
lower courts that had considered the question previously”).
186. Butler v. McKellar, 494 U.S. 407, 415, 110 S. Ct. 1212, 1217, 108 L. Ed. 2d 347, 356 (1990).
187. Saffle v. Parks, 494 U.S. 484, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990).
188. Saffle v. Parks, 494 U.S. 484, 484, 110 S. Ct. 1257, 1257, 108 L. Ed. 2d 415, 415 (1990).
189. Butler v. McKellar, 494 U.S. 407, 110 S. Ct. 1212, 108 L. Ed. 2d 347 (1990)
190. Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988).
was dictated by an earlier case, Edwards v. Arizona,191 which existed before his
conviction became final. The Supreme Court did not agree that Roberson was
dictated by Edwards because the Edwards rule covered interrogations on the same
charge while the Roberson rule covered interrogations on separate charges. The
Court concluded no one could have predicted the Edwards rule would extend to the
situation in Roberson. Thus, Roberson announced a new rule of law that could not be
relied upon in the habeas petition.
(3) In Sawyer v. Smith, the petitioner had been convicted of murder and sentenced to
death. At his trial, the prosecutor had told the jury that if they sentenced him to
death “you yourself will not be sentencing [the petitioner] to the electric chair.”192 A
year after the petitioner’s conviction was final, the Supreme Court ruled in Caldwell
v. Mississippi193 that a prosecutor may not make remarks that diminish the jury’s
sense of responsibility for the capital sentencing decision. The Sawyer petitioner
asked the habeas court to apply the Caldwell rule to his conviction. He argued that
earlier cases made the Caldwell case so predictable that it was not a “new rule” of
law. The Supreme Court disagreed and ruled that the Caldwell rule was a “new rule
of law” because it was not foreseeable based on earlier cases.194
(4) In Caspari v. Bohlen,195 the Supreme Court explained the three steps the habeas
court must take to see if the Teague rule applies. First, the court must find out the
date on which the petitioner’s conviction became final. Second, it must decide
whether the trial court would have discovered the rule from earlier cases. Third, if
the rule is “new,” meaning the trial court would not have taken it from earlier cases,
then the habeas court must decide if the defendant falls into one of the exceptions to
the Teague rule. (For a discussion of those exceptions, see below Part C(3)
(“Exceptions to the New Law Rules”) of this Chapter).
It is the rule of law—not the way it is being applied—that needs to be “clearly
established.” Some rules will apply to many different fact situations. It is not necessary that
the court has looked at your exact fact situation and applied a rule of law to it; it is only
necessary that the legal principle has been established for dealing with your fact situation.196
Although you should show the court the law you are relying on is not new law, you should
not actually mention the Teague standard in your habeas petition, even if you are making a
claim based on an exception to the Teague standard. The Teague standard is an affirmative
defense, which means it is the government’s responsibility to raise it in response to your
habeas claim to try to prevent your petition from going forward by arguing that your claim is
based on “new law.” However, because the government is highly likely to raise the Teague
191. Edwards v. Arizona, 451 U.S. 477, 484, 101 S. Ct. 1880, 1884–85, 68 L. Ed. 2d 378, 386
(1981) (holding that a defendant who had requested counsel during an interrogation but subsequently
confessed during another interrogation the following day had not waived his right to counsel).
192. Sawyer v. Smith, 497 U.S. 227, 230, 110 S. Ct. 2822, 2825, 111 L. Ed. 2d 193, 203 (1990)
(holding that the Caldwell rule that prosecutors may not make remarks that diminish the jury’s sense
of responsibility in capital cases did not apply retroactively).
193. Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S. Ct. 2633, 2639, 86 L. Ed. 2d 231, 239
(1985) (finding that where, in a capital case, a prosecutor makes statements to the sentencing jury
diminishing its sense of responsibility, the heightened requirements of the 8th Amendment are not met
and the sentence of death cannot stand).
194. Sawyer v. Smith, 497 U.S. 227, 234, 110 S. Ct. 2822, 2827, 111 L. Ed. 2d 193, 206 (1990).
195. Caspari v. Bohlen, 510 U.S. 383, 390, 114 S. Ct. 948, 953, 127 L. Ed. 2d 236, 246 (1994)
(holding that, at the time of petitioner’s conviction, a rule barring evidence of prior convictions for
sentencing purposes did not yet exist).
196. See Hart v. Att’y General, 323 F.3d 884, 892 n.16 (11th Cir. 2003) (holding that, when
confronting issues such as the voluntariness of a confession, where the rule of law will have to be
applied on a case-by-case approach, it is “acceptable to derive clearly established federal law from ...
general principles”).
rule, you should be well prepared to show the court the rule of law in question was “clearly
established” in precedent at the time your conviction became final.
3. Exceptions to the New Law Rule
Although you should avoid basing your habeas petition on new law, there are some
exceptions that allow you to use new law. (Remember, though, that you only need to defend
your petition as based on “not new” law or show that your claims fit into an exception if the
government raises the issue that your claims are based on new law.)
The first exception to the new law rule is as follows. If the Supreme Court makes a new
law and explicitly states that the law applies retroactively, which means it applies to cases
that have already been decided, the law will apply to your case regardless of whether the law
was established after your conviction and regardless of whether you are a federal or state
prisoner. However, it is rare for the Supreme Court to declare a new law retroactive.
The court in Teague v. Lane also mentions some specific exceptions to the Teague rule
that allow you to bring a habeas petition based on new law.197 It is not yet clear if these
exceptions necessarily apply to state prisoners. Although AEDPA does not explicitly mention
the exceptions to the “clearly established” requirement that Teague sets out, the Supreme
Court has suggested that Section 2254 of AEDPA implicitly contains the Teague
exceptions.198 If you are a state prisoner, you should research whether your district has ruled
that Section 2254 of AEDPA contains exceptions and whether they are the same exceptions
as in Teague. If you are a prisoner in a state that has not recognized the Teague exceptions,
you most likely will not be eligible to use the exceptions below.
There are two exceptions to the Teague rule. The first exception includes two kinds of
new law: (1) new laws prohibiting certain types of punishment, and (2) new laws
decriminalizing certain behavior. The second exception is for new laws that ensure
fundamental fairness at trial. If the law you are relying on is new law, and the new law fits
within one of these exceptions, then you may base your habeas claim on the new law.
(a) Exceptions: Prohibited Punishments and Decriminalized Behavior
(i) Prohibited Punishments
You may raise a new rule of law if it bars a certain type of punishment for a certain
crime or for certain defendants.199 For example, in Ford v. Wainwright, the Supreme Court
prohibited states from imposing the death penalty on defendants who are insane.200 In Roper
v. Simmons, the Supreme Court held that prisoners who were under eighteen years old when
their crimes were committed must not receive the death penalty. 201 If a court decision
declares that the punishment you received is unconstitutional, you should raise this decision
in your petition for federal habeas corpus. Because this is one of the exceptions to the “new
law” rule, you can use the decision even if it is a new rule of law (in other words, if the
decision that changed the law is handed down after your conviction).
(ii) Decriminalized Behavior
(1989).
198. See Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 1181–82, 167 L. Ed. 2d 1 (2007)
(explicitly considering whether the facts of the case fell under either of the Teague exceptions in a claim
under § 2254).
199. Penry v. Lynaugh, 492 U.S. 302, 329, 109 S. Ct. 2934, 2952, 106 L. Ed. 2d 256, 284 (1989);
see also Sawyer v. Smith, 497 U.S. 227, 241, 110 S. Ct. 2822, 2831, 111 L. Ed. 2d 193, 211 (1990) (the
first Teague exception applies to new laws that make an entire category of conduct beyond the reach of
criminal law and to new laws that prohibit a certain kind of punishment for a class of defendants
because of their status or offense).
200. Ford v. Wainwright, 477 U.S. 399, 417, 106 S. Ct. 2595, 2606, 91 L. Ed. 2d 335, 351 (1986).
201. Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 1200, 161 L. Ed. 2d 1, 28 (2005).
Another exception allows you to use a new rule of law if it “place[s] certain kinds of
primary, private individual conduct beyond the power of the criminal law-making authority
to proscribe.”202 What this quotation means is that if your conviction was based on behavior
that is no longer considered criminal under the new rule of law, you can use this new law to
petition for habeas relief. For example, in Griswold v. Connecticut, the Supreme Court ruled
that the Connecticut law against giving advice on contraception violates the constitutional
right to marital privacy.203 Therefore, the Court reversed the conviction of a Connecticut
doctor who was convicted of the crime of giving advice about birth control to a married
couple. 204 However, like the other exceptions, this exception only applies in rare
circumstances. For this reason, you should avoid using new rules whenever possible.
(b) Exception: Fundamental Fairness at Trial
You can also raise a new rule of law that requires the police, prosecutor, or judge to
follow a procedure in order to ensure the “fundamental fairness” of your trial,205 and “without
which the likelihood of an accurate conviction is seriously diminished.”206 To fit into this new
exception, the new rule has to involve a “bedrock procedural element.”207 For example, in
Gideon v. Wainwright, the Court ruled, on due process grounds, that the state needed to
appoint counsel for poor defendants facing criminal charges.208 This rule might fall under the
fundamental fairness exception. By contrast, even though the Supreme Court changed the
standard for when out-of-court testimony may be admitted in trial in Crawford v.
Washington, 209 it also recently decided that the Crawford rule would not be applied
retroactively.210
Keep in mind that it is very rare that a new rule of law comes within this exception. The
Supreme Court has indicated that it believes that courts have already discovered most of the
procedures essential to a fair trial and conviction.211 For instance, in 1981, in Edwards v.
Arizona, the Supreme Court held that police interrogation after a prisoner had requested a
lawyer on a separate charge violated the Constitution.212 In 1990, however, the Supreme
Court decided that forbidding such interrogations was not essential to the fairness of the
trial or to obtaining an accurate conviction. 213 Since this “new rule” did not involve any
“bedrock” procedural element, the Court concluded it could not be a basis for habeas relief for
202. Teague v. Lane, 489 U.S. 288, 307, 109 S. Ct. 1060, 1073, 103 L. Ed. 2d 334, 353 (1989)
(quoting Mackey v. United States, 401 U.S. 667, 692, 92 S. Ct. 1160, 1165, 28 L. Ed. 2d 404, 421
(1971)).
203. Griswold v. Connecticut, 381 U.S. 479, 485, 85 S. Ct. 1678, 1682, 14 L. Ed. 2d 510, 515
(1965).
204. Griswold v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 1682, 14 L. Ed. 2d 510, 516
(1965); see also Richardson v. United States, 526 U.S. 813, 815, 119 S. Ct. 1707, 1709, 143 L. Ed. 2d
985, 991 (1999) (requiring the jury to unanimously agree not only that the accused committed a
continuing series of violations but also which specific violations made up the continuing series for
conviction under 18 U.S.C. § 848 (2006)).
205. Teague v. Lane, 489 U.S. 288, 312, 109 S. Ct. 1060, 1076, 103 L. Ed. 2d 334, 357 (1989).
208. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).
209. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
210. Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 167 L. Ed. 2d 1 (2007).
211. See, e.g., Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 1264, 108 L. Ed. 2d 415, 429
(1990) (deciding that habeas petitioner's contention, that the 8th Amendment required that the
jury be allowed to base sentencing decision in a capital case upon the sympathy it feels for
defendant after hearing his mitigating evidence, did not constitute a watershed right or rule).
212. Edwards v. Arizona, 451 U.S. 477, 480, 101 S. Ct. 1880, 1882, 68 L. Ed. 2d 378, 380 (1981).
213. See Butler v. McKellar, 494 U.S. 407, 416, 110 S. Ct. 1212, 1218, 108 L. Ed. 2d 347, 357
(1990) (noting that violating the rule—for instance, interrogating a prisoner despite his request for
counsel on a separate charge—might increase the likelihood of an accurate conviction).
any prisoner whose conviction became final before Edwards was decided. As another
example, in 2005 the Supreme Court held that the federal mandatory sentencing guidelines
were unconstitutional in United States v. Booker.214 However, several circuit courts have held
that this new rule does not fit under this exception and may not be applied retroactively.215
As you have seen, the above exceptions are very hard to meet. You should always try to
base your habeas claim on old and clearly established law. If you make your claim on new
law with a Teague exception, remember that even when you are basing your claim on an
exception to the Teague rule, the Teague rule itself is an affirmative defense that the
government must assert. You should not raise the Teague rule in your petition. Instead, you
should wait to defend the government’s claim that your habeas petition is based on new law.
Once the government has argued your petition is based on new law, you should defend your
claim by showing the law is either not new law or qualifies for one of the Teague exceptions
just described.
D. Procedures for Filing a Petition for Habeas Corpus
If you experienced a violation of the Constitution, federal statute, or treaty in your
arrest, trial, or sentence, you may file a federal habeas corpus claim. A successful claim will
allow the court to vacate, set aside, or correct your present sentence. But, there are very
strict procedural requirements you must meet in order to be successful in a habeas petition.
This Part explains these procedural requirements.
Though this Part explains the federal habeas corpus procedures for both state and
federal prisoners, it concentrates on the process for New York State prisoners. When the
procedure differs for federal prisoners, this Section will explain the different procedure. State
prisoners in other states will need to research further their state’s procedures. However, you
should still read and understand this Section, as many of the procedures will be the same in
every state. State prisoners will use 28 U.S.C. § 2254 (2006) to file a habeas claim.216 Federal
prisoners will use 28 U.S.C. § 2255 (2006)217 to file a habeas claim.
You must prove some important conditions in your petition. These conditions are
complicated and require a great deal of attention. The conditions are (1) you must be in
custody; (2) you must have exhausted all state procedures before petitioning to a federal
court if you are a state prisoner, or you must have given the direct appeals court a chance to
hear your petition if you are a federal prisoner; (3) you must follow all state rules and
procedures correctly before petitioning to a federal court if you are a state prisoner; and (4)
the petition must be filed in federal court within a specific time frame. These conditions are
explained in detail in this Part. Section 5 of this Part will also discuss when you can file a
second (successive) petition.
1. In Custody
214. United States v. Booker, 543 U.S. 220, 231, 125 S. Ct. 738, 729, 160 L. Ed. 2d 621, 642
(2005) (holding that federal sentencing guidelines are recommendations and that the sentencing court
can take into account a variety of factors when deciding whether to depart from the guidelines).
215. See Lloyd v. United States, 407 F.3d 608, 611–16 (3d Cir. 2005) (determining that the rule
announced in United States v. Booker was a new law and not subject to either Teague exception); see
also, Never Misses A Shot v. United States, 413 F.3d 781 783–84 (8th Cir. 2005); United States v.
Bellamy, 411 F.3d 1182, 1186–88 (10th Cir. 2005); Guzman v. United States, 404 F.3d 139, 144 (2d Cir.
2005); Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005); Humphress v. United States, 398
F.3d 855, 860–63 (6th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005).
216. Footnotes 3 and 4 of this Chapter describe the difference between state and federal habeas
petitions.
217. Occasionally, a federal prisoner will file under 28 U.S.C. § 2241, instead of § 2255. See Part
A(4) (“Which Laws Apply to Federal Habeas Corpus?”) for information on when a federal prisoner
would file under § 2241.
When you file your petition for a writ of habeas corpus, you must be “in custody” for the
conviction or sentence that you are attacking.218 The purpose of this requirement is to ensure
that you have sufficient interest in the habeas relief.219 This is not a difficult condition to
fulfill. Courts have interpreted “in custody” liberally. Actual physical custody is not
necessary. You are “in custody” as long as you are presently restrained in ways that are not
shared by the general public.220
You are “in custody” if you are in prison, on parole, or on probation.221 If you are claiming
that your sentence is illegal, you do not have to be currently serving that sentence in order to
fulfill the “in custody” requirement. You also have fulfilled the “in custody” requirement
under any one of the following circumstances: (1) you are contesting a consecutive sentence
that you have not yet begun to serve,222 or a sentence that has been temporarily postponed
because you have been released on your own recognizance; 223 or (2) you are out on bail
pending trial or appeal.224 In fact, you may have already served the sentence imposed for the
conviction being challenged. You are still “in custody” as long as you are serving a sentence
218. 28 U.S.C. §§ 2241(c)(1)–(3), 2254(a)–(b) (2006). See Carafas v. LaVallee, 391 U.S. 234, 238,
88 S. Ct. 1556, 1560, 20 L. Ed. 2d 554, 559 (1968) (noting that the federal habeas corpus statute
requires that the applicant must be “ in custody” when the application for habeas corpus is filed);
Finkelstein v. Spitzer, 455 F. 3d 131, 133–34 (2d Cir. 2006) (finding that federal courts may entertain a
habeas corpus petition for relief from a state court judgment only when the petitioner is in custody in
violation of the Constitution or laws or treaties of the United Status at the time his petition is filed).
219. Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S. Ct. 1571, 1574, 36 L. Ed. 2d 294, 300
(1973) (“The custody requirement of the habeas corpus statute makes the writ of habeas corpus a
remedy only for severe restraints on individual liberty.”).
220. Jones v. Cunningham, 371 U.S. 236, 242–43, 83 S. Ct. 373, 377, 9 L. Ed. 2d 285, 290–91
(1963) (holding that petitioner, as a parolee with greater restrictions on his liberty, was in custody
within the meaning of the habeas corpus statute); Harvey v. People, 435 F. Supp. 2d 175, 178 (2d Cir.
2006) (finding that a petitioner who is on parole or serving a term of supervised release is “in custody”
for purposes of federal habeas corpus statutes).
221. See Rumsfeld v. Padilla, 542 U.S. 426, 437, 124 S. Ct. 2711, 2719, 159 L. Ed. 2d 513, 529
(2004) (“[W]e no longer require physical detention as a prerequisite to habeas relief.”); Garlotte v.
Fordice, 515 U.S. 39, 45, 115 S. Ct. 1948, 1952, 132 L. Ed. 2d 36, 43 (1995) (“[A] prisoner serving
consecutive sentences is 'in custody' under any one of them for purposes of the habeas statute.”
(internal citations omitted)); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 498–99, 93 S. Ct.
1123, 1131–32, 35 L. Ed. 2d 443, 454–55 (1973) (discussing “custody” in one state when prisoner is held
in another); Jones v. Cunningham, 371 U.S. 236, 239–40, 83 S. Ct. 373, 375, 9 L. Ed. 2d 285, 289 (1963)
(finding that aliens seeking entry, persons subject to enlistment in the military, and paroled prisoners
are all in a form of custody); Jackson v. Coalter, 337 F.3d 74, 78–79 (1st Cir. 2003) (holding that
custody includes supervised probation).
222. Peyton v. Rowe, 391 U.S. 54, 67, 88 S. Ct. 1549, 1556, 20 L. Ed. 2d 426, 435 (1968) (holding
that a prisoner serving consecutive sentences is “in custody” under any one of them for purposes of the
federal habeas corpus statute, even where he is scheduled to serve one of them); Frazier v. Wilkinson,
842 F. 2d 42 (2d Cir. 1988) (finding that habeas corpus may be used to challenge a sentence that is
consecutive to a sentence currently being served where there is reason to believe that the jurisdiction
that obtained the consecutive sentence will seek its enforcement).
223. See Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S. Ct. 1571, 1575, 36 L. Ed. 2d 294,
300 (1973) (holding that a person is “in custody” for habeas purposes when subject to restraints and
rules not shared by the general public); Eltayeb v. Ingham, 950 F. Supp. 95 (2d Cir. 1997) (finding that
the “in custody” requirement for habeas review includes actual, physical custody and release on bail or
personal recognizance following actual, physical custody).
224. Lefkowitz v. Newsome, 420 U.S. 283, 286 n.2, 95 S. Ct. 886, 888 n.2, 43 L. Ed. 2d 196, 200
n.2 (1975) (finding that the federal habeas corpus statute provides relief only if the petitioner can
establish that he is in custody in violation of the Constitution or laws or treaties of the United States);
United States v. Arthur, 367 F.3d 119 (2d Cir. 2004) (finding that defendant who was free on bail
awaiting surrender date on sentence for federal convictions for mail fraud was in custody and therefore
able to seek habeas relief).
that is ordered to run consecutively to your challenged sentence. 225 In addition, you are
restrained, and thus “in custody,” if you are required to appear in court for trial and cannot
leave without permission.226 At least one court has been willing to extend the definition of “in
custody” to minors who may suffer some future collateral consequences.227
2. Exhaustion of State Remedies and Direct Appeal
Before filing a habeas petition, if you are a state prisoner, you must “exhaust” all
available state procedures that can correct your unconstitutional conviction or sentence.228
To “exhaust state remedies” means you must do all you can to get the state courts to change
your conviction or sentence before you can petition a federal court. The purpose of this
exhaustion requirement is to give the state courts a chance to correct any mistakes of federal
law and to respect the state court’s ability to conduct judicial proceedings.229 Federal habeas
petitions are based on federal law. This exhaustion requirement allows the state court to
correctly apply federal law before the federal court steps in.
To meet the exhaustion requirement, you must do two things: (1) give the highest court
of the state an opportunity to hear your federal claims; and (2) present these claims to the
highest court of the state fairly (called fair presentation). The following two sections discuss
these two exhaustion requirements. Remember, there are very few exceptions to exhaustion,
and these will be discussed below only as a brief outline. It is not safe to rely on these
exceptions to exhaustion; you must exhaust state remedies for all your federal claims or you
risk forfeiting them!
While exhausting your claims in state court, it is important to keep in mind the one-year
time limit for bringing federal habeas claims.230 Your state may allow you more than one
year to file the state procedures necessary to exhaust a claim, but a longer state time limit
does not affect the federal time limit. You will still only have one year to file your federal
petition.231 You must exhaust all of the claims in your habeas petition in state court first. If
225. Garlotte v. Fordice, 515 U.S. 39, 45–46, 115 S. Ct. 1948, 1952, 132 L. Ed. 2d 36, 43 (1995)
(deciding that petitioner who is serving consecutive state sentences is “in custody” and may attack the
sentence scheduled to run first, even after it has expired, until all sentences have been served); see also
United States v. Arthur, 367 F.3d 119 (2d Cir. 2004) (finding that defendant who was free on bail
awaiting surrender date on sentence for federal convictions for mail fraud was in custody and therefore
able to seek habeas relief).
226. Hensley v. Municipal Court, 411 U.S. 345, 348–49, 93 S. Ct. 1571, 1573–74, 36 L. Ed. 2d 294,
298–99 (1973); see also United States v. Arthur, 367 F.3d 119 (2d Cir. 2004) (finding that defendant
who was free on bail awaiting surrender date on sentence for federal convictions for mail fraud was in
custody and therefore able to seek habeas relief).
227. See A.M. v. Butler 360 F.3d 787, 790 (7th Cir. 2004) (finding that a declaration of juvenile
delinquency without any further restrictions does not bar a habeas petition when the juvenile will
continue to face adverse consequences stemming from the declaration); D.S.A. v. Circuit Court, 942
F.2d 1143, 1150 (7th Cir. 1991) (holding that minor’s release from custody did not bar consideration of
habeas petition even though the sentence had already been served where underlying conviction had
sufficient collateral consequences such as consideration of the conviction in future juvenile
proceedings). But see Spencer v. Kemna, 523 U.S. 1, 14, 118 S. Ct. 978, 986, 140 L. Ed. 2d 43, 54 (1998)
(determining that a revocation of parole, where defendant has since been released, does not have
sufficient collateral consequences to warrant consideration of habeas petition).
228. 28 U.S.C. § 2254 (b)–(c) (2006).
229. Rose v. Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198, 1202, 71 L. Ed. 2d 379, 287 (1982)
(granting that a petitioner seeking release from state custody on account of a wrongful conviction must
first exhaust state judicial remedies before filing a habeas petition).
230. For more information about time limits for bringing federal habeas claims, see Part D(4)
(“Time Limit”) of this Chapter.
231 . The Supreme Court has been strict in enforcing time limits on federal habeas petitions.
Bowles v. Russell, 551 U.S. 205, 127 S. Ct. 2360, 2366, 168 L. Ed. 2d 96, 104 (2007) (declining a
prisoner’s habeas claim because it was filed too late, even though it was filed within the time limit
specified by the district court).
you fail to exhaust the process for just one of the claims in state court, and then proceed to
federal court, the law requires the federal court to dismiss your entire habeas petition.232 But
if your petition is dismissed, it will be dismissed without prejudice. This means that you can
leave the federal court to exhaust your claims in state court. Then, once your claims are
exhausted, you may resubmit your petition in federal court, and you will not be prejudiced
for filing a second or successive petition.233 But most often, such a dismissal still affects your
one-year time limit.
Most courts have found that a state court challenge on a specific claim will toll234 the
time limit for your entire habeas petition.235 This means that, in most cases, the time limit
will temporarily be stopped on your entire habeas petition, not just for the claims you are
making in your present case. In addition, in rare circumstances, the court may issue a “stay
and abeyance” order for your dismissed petition, 236 which means you will have a short
amount of time to present your unexhausted claims to the state court while your time limit is
tolled for your entire petition. 237 If the district court says that your petition contains
exhausted and unexhausted claims, you should request a stay and abeyance and explain to
the district court that you are concerned that your one-year time limit will expire before you
are able to resubmit your fully exhausted petition. In some circumstances you may also be
able to delete the unexhausted claims from your petition and proceed only with the
exhausted claims in your petition. 238 You will need to determine whether proceeding in
federal court immediately without the unexhausted claims is a better option than leaving to
232. A petition that contains both exhausted and unexhausted claims is dismissed without
prejudice. This means that the court will allow you to resubmit your petition when every claim has
been exhausted. See Rhines v. Weber, 544 U.S. 269, 273–74, 125 S. Ct. 1528, 1532–33, 161 L. Ed. 2d
440, 449 (2005) (holding that petitioners who present habeas petitions with exhausted and
unexhausted claims should be allowed to submit the unexhausted claims to state court and then return
to federal court without prejudice to present “perfected petitions”); Rose v. Lundy, 455 U.S. 509, 518–
19, 102 S. Ct. 1198, 1203, 71 L. Ed. 2d 379, 387 (1982) (requiring “total exhaustion” of claims in state
courts).
233. See Part D(5) (“Successive Petitions”) of this Chapter for more information on successive
petitions.
234. “Tolling” means that the running of the time period is paused. Time that is tolled does not
count toward the one-year time limit. See Part D(4) (“Time Limits”) for more information on time limits
and tolling.
235. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002) (holding that “a properly filed state
post-conviction proceeding challenging the judgment tolls the AEDPA statute of limitations during the
pendency of the state proceeding”); Carter v. Litscher, 275 F.3d 663, 665 (7th Cir. 2001) (“Any properly
filed collateral challenge to the judgment tolls the time to seek federal collateral review.”); Tillema v.
Long, No. 00-15974, 2001 U.S. App. LEXIS 17254, at *19 (9th Cir. June 19, 2001) (unpublished)
(finding that the statute of limitations “is tolled during the pendency of a state application challenging
the pertinent judgment, even if the particular application does not include a claim later asserted in the
federal habeas petition”).
236. See Rhines v. Weber, 544 U.S. 269, 278, 125 S. Ct. 1528, 1535, 161 L. Ed. 2d 440, 452 (2005)
(holding that federal courts should issue a stay and abeyance for a mixed petition if petitioner had
“good cause” for failing to exhaust the unexhausted claims, the unexhausted claims are “potentially
meritorious,” and there is no indication that the petitioner has engaged in tactics with the purpose of
delaying the proceedings).
(determining that if a stay and abeyance is issued, district courts should “place reasonable time limits
on a petitioner’s trip to state court and back”). See Part D(4) for more information on tolling and time
limits.
(“[I]f a petitioner presents a district court with a mixed petition and the court determines that stay and
abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and
to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the
petitioner's right to obtain federal relief.”).
exhaust the claims in state court and risking the time limit expiring for all your claims in
federal court.
(a) Opportunity for Highest State Court to Hear Your Federal
Claims239
Before you can petition for federal habeas corpus in federal court, you must have
presented each claim you want to present in your petition to the highest court in your state,
either through the state appellate process (often called “direct appeal”) or through a state
post-conviction procedure (often called “collateral attack”).240 The difference between a direct
appeal and a collateral attack is explained more fully in Part A(1) (“What Is Habeas
Corpus?”) of this Chapter. The idea is that you have to provide the state court with the
opportunity to rule on each of your claims before you submit them to federal court. It is not
enough that you presented each claim to just the intermediate appellate court in your state.
This process, in which you pursue all state remedies available before you can have access to
federal court, is called “exhaustion.” You only have to present your federal claims to the
highest state court once—you do not have to do it both on direct appeal and in state post-
conviction procedures. Most states call their highest court the “State Supreme Court.”
However, in New York, the “New York Supreme Court” is actually a lower court, and the
“New York Court of Appeals” is the highest state court.241
You can present your claim to the highest state court in one of two ways. First, if you
have not appealed your conviction yet and still have time to do so, you can contest your
conviction through the state appellate process. 242 You have a right to appeal to an
intermediate appellate court.243 If the appellate court rejects your claim, you should then
“request leave” 244 to appeal to the state’s highest court. Whether the highest state court
grants your leave to appeal and then rejects your claim, or simply denies your leave to
appeal, you have satisfied the exhaustion requirement by allowing the state court a chance to
rule on your claim. You do not need to petition the Supreme Court for certiorari. In other
words, your petition can be reviewed by a lower federal court without having to petition the
239. The Supreme Court held that, even when a state’s appellate rules do not automatically give
you the right to a hearing in your state’s highest court, you must still present all of your claims to that
court in order to exhaust your state remedies. In Illinois, for example, a party must petition the Illinois
Supreme Court for leave to appeal a decision of the intermediate appellate court. Even though the
granting of such a petition for review is not guaranteed, the Supreme Court held that petitioner had
not exhausted his claims because the Illinois Supreme Court had not been able to review them. See
O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S. Ct. 1728, 1734, 144 L. Ed. 2d 1, 11 (1999) (holding that
claims not submitted to the state’s court of last resort in a petition for discretionary review are deemed
to be procedurally defaulted).
240. See O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S. Ct. 1728, 1734, 144 L. Ed. 2d 1, 11
(1999) (holding that claims not submitted to the state’s court of last resort in a petition for
discretionary review are deemed to be procedurally defaulted); Roberts v. LaVallee, 389 U.S. 40, 88 S.
Ct. 194, 19 L. Ed. 2d 41 (1967) (determining that repetitious appeals applications to state courts are not
required when defendant has already exhausted his remedies to the state courts); see also Grey v.
Hoke, 933 F.2d 117, 119–20 (2d Cir. 1991) (holding that petitioner’s failure to specifically raise his
sentencing and prosecutorial misconduct claims in state court appeals barred him from making these
claims in federal habeas proceedings).
241. See Chapter 2 of the JLM, “Introduction to Legal Research,” for more information on the
court system.
242. See Part C of Chapter 9 of the JLM, “Appealing Your Conviction or Sentence,” for an
explanation of the time limits for appealing your conviction.
243. See Chapter 9 of the JLM, “Appealing Your Conviction or Sentence,” for a discussion of state
appeals.
244. To “request leave” means to ask for permission.
Supreme Court on direct review first,245 and you do not need to pursue your claim through a
state post-conviction remedy as long as that claim was raised on direct appeal.246
If you missed the deadline for a direct appeal, or if you simply neglected to raise a claim
in your direct appeal, you must pursue your claim through a state post-conviction procedure
to satisfy the exhaustion requirement.247 In New York, you can choose between two post-
conviction remedies: an Article 440 motion248 or a petition for state habeas corpus.249 You
should generally use an Article 440 motion because it is the most modern and has the best-
developed state post-conviction procedure.250 If a New York Supreme Court (the state trial
court) denies the claim presented in your Article 440 motion, you should ask for leave to
appeal to an intermediate appellate division. Then, if the appellate division does not allow
you to appeal, or grants leave to appeal but then rejects your claim, you still have given the
highest state court an opportunity to decide your claim. You have fulfilled this part of the
exhaustion requirement.
(b) Fair Presentation251
In order to exhaust your state remedies, you must “reasonably inform” the state court
about your federal claim and thus provide the court with “fair presentation” of the federal
claim. This means you must present your claim as a federal one to the highest state court
before you can raise it in federal habeas proceedings. You must explicitly say that you are
raising a federal claim or alleged violation of the Constitution.252 When you file a direct
appeal or collateral attack in state court, your appeal/attack must mention the same relevant
facts and legal theory that you will later include in your petition for federal habeas corpus.253
While it is important to provide both the factual basis and legal principles on which your
245. See, e.g., Ulster County Court v. Allen, 442 U.S. 140, 149 n.7, 99 S. Ct. 2213, 2220 n.7, 60 L.
Ed. 2d 777, 787 n.7 (1979) (determining that petitioner did not lose federal power of review by failing to
seek certiorari from the Supreme Court); Smaldone v. Senkowski, 273 F. 3d 133, 138 (2d Cir. 2001)
(granting that the exhaustion requirement does not require petitioner to seek certiorari from the
United States Supreme Court before pursuing a habeas remedy).
246. Castille v. People, 489 U.S. 346, 350, 109 S. Ct. 1056, 1059, 103 L. Ed. 2d 380, 385 (1989); see
also Daye v. Attorney General, 696 F.2d 186, 191 n.3 (2d Cir. 1982) (“A petitioner need not give the
state court system more than one full opportunity to rule on his claims; if he has presented his claims
to the highest state court on direct appeal he need not also seek state collateral relief.”).
247. See, e.g., Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056, 1060, 103 L. Ed. 2d 380, 386
(1989) (stating that a claim must be “fairly presented” to the state courts to meet the exhaustion
requirement, and finding that petitioner’s claim was not exhausted because he had raised it for the first
time in the state’s highest court on a discretionary review).
248. Article 440 motions are discussed in Chapter 20 of the JLM.
249. New York State habeas corpus procedure is explained in Chapter 21 of the JLM.
250. The New York legislature designed the Article 440 motion to simplify and to combine all of
the previously existing post-conviction remedies, including state habeas corpus. See Chapter 20, Part
B, of the JLM, “When to Use Article 440,” for a discussion of why New York courts prefer Article 440
motions over petitions for state habeas corpus. See also Chapter 14, “The Prison Litigation Reform
Act,” for a discussion of exhausting your administrative remedies.
251. “Fair presentation” occurs when you have reasonably informed the highest state court that
your claim is a federal one.
252. See Duncan v. Henry, 513 U.S. 364, 365–66, 115 S. Ct. 887, 888, 130 L. Ed. 2d 865, 868
(1995) (“If state courts are to be given the opportunity to correct alleged violations of prisoners' federal
rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United
States Constitution.”); see also Schneider v. Delo, 85 F.3d 335, 339 (8th Cir. 1996) (determining that a
federal claim must be stated in state court).
253. See Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982) (holding that petitioner had
not exhausted his state remedies because the claim presented to the federal court was not substantially
similar to claim presented in state court due to a new key factual allegation that was not part of the
record before the state court or raised before it).
claim relies, some courts have been flexible in the factual requirement.254 It is not enough to
discuss a state claim that is similar to a federal claim. The Court has held that you must
make specific references to the federal law that forms the basis of each of your claims.255
Thus, the Court has held that a petitioner does not fairly present a claim if the petition or
brief does not alert the state court that the claim is federal in nature.256
These facts and legal principles must show the court that your claim rests, either entirely
or partially, on the Constitution.257 This puts the state court on notice that you are raising a
federal claim. You may satisfy this requirement by:
(1) Citing a specific provision of the Constitution;258
(2) Relying on federal constitutional precedents;259
(3) Alerting the state court of the claim’s federal nature through your claim’s
substance;260 or
(4) Claiming a particular right guaranteed by the Constitution.261
To provide a fair presentation to the state, you must clearly indicate you are claiming the
Constitution has been violated.262 For example, one petitioner claimed in state court that the
admission of certain evidence “infringed on his right to present a defense and receive a fair
trial” but made reference to a state evidentiary law without mentioning any federal
constitutional rights. 263 While the petitioner’s federal due process rights may have been
254. See Davis v. Silva, 511 F.3d 1005, 1010–11 (9th Cir. 2008) (holding that a claim was fairly
presented when the factual basis of the petitioner’s claim could be determined from the legal materials
provided, including citations to relevant cases, statutes, and regulations and a basic factual
description).
255. Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct. 1347, 1351, 158 L. Ed. 2d 64, 71 (2004)
(rejecting the idea that judges, on appeal, can find for themselves the claims based on federal law, and
stating that ordinarily a state prisoner does not "fairly present" a claim to a state court if that court
must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a
federal claim”)
256. Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct. 1347, 1351, 158 L. Ed. 2d 64, 71 (2004).
257. See Picard v. Connor, 404 U.S. 270, 277–78, 92 S. Ct. 509, 513, 30 L. Ed. 2d 438, 444–45
(1971) (dismissing habeas claim because petitioner failed to name a constitutional claim, even though
he raised all the facts of the claim in state court). You must clearly tell the state court of the federal
nature of the claim and permit the state court to decide the federal issue squarely. See Verdin v.
O’Leary, 972 F.2d 1467, 1474 (7th Cir. 1992); see also Aparicio v. Artuz, 269 F.3d 78 (2d Cir. 2001)
(finding that petitioner must present the same federal constitutional claims that he will urge upon the
federal courts in his habeas petition to the highest court in that state in order to exhaust the claims).
258. See Scarpa v. DuBois, 38 F.3d 1, 6–7 (1st Cir. 1994) (finding that state court was sufficiently
alerted because the defendant cited the 6th Amendment by name); see also Daye v. Attorney Gen., 696
F.2d 186, 192 (2d Cir. 1982) (“Obviously if petitioner has cited the state courts to the specific provision
of the Constitution relied on in his habeas petition, he will have fairly presented his legal basis.”).
259. See Scarpa v. DuBois, 38 F.3d 1, 6 (1st Cir. 1994); see also Abdurrahman v. Henderson, 897
F.2d 71, 73 (2d Cir. 1990) (finding that defendant’s citation to Strickland v. Washington in a brief to the
Appellate Division was sufficient to alert the court that defendant was raising a federal claim regarding
ineffective assistance of counsel, since Strickland is the leading Supreme Court case on that issue).
260. See Scarpa v. DuBois, 38 F.3d 1, 6 (1st Cir. 1994); see also Jackson v. Edwards, 404 F.3d 612,
619 (2d Cir. 2005) (finding petitioner had fairly presented his claim to the state court because “the
substance of the federal habeas corpus claim [was] clearly raised and ruled on in state court” even
though petitioner had failed to explicitly name it as a federal claim). But see Baldwin v. Reese, 541 U.S.
27, 32–34, 124 S. Ct. 1347, 1351–52, 158 L. Ed. 2d 64, 71–72 (2004) (holding that the federal nature of
the claim must be apparent in the brief or petition, not in the opinion of a lower court).
261. Scarpa v. DuBois, 38 F.3d 1, 6 (1st Cir. 1994).
262. Duncan v. Henry, 513 U.S. 364, 365–66, 115 S. Ct. 887, 888, 130 L. Ed. 2d 865, 868 (1995)
(noting that “[i]f state courts are to be given the opportunity to correct alleged violations of prisoners’
federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the
United States Constitution”).
263. Johnson v. Zenon, 88 F.3d 828, 830–31 (9th Cir. 1996).
implicated, the court held that the federal law part of his claim was not “fairly presented” to
the state court. 264 While you do not need to cite “book and verse on the federal
[C]onstitution,”265 some degree of specificity in describing the federal relevance is required.266
You should be specific in explaining the violation of a federal law to the state court.
Federal courts generally consider remedies to be exhausted when you have “fairly
presented” a claim one time to the highest state court. 267 For example, if you raised a
particular claim on direct appeal to the highest state court, you do not have to raise it again
in state post-conviction proceedings.268 The state court does not need to fully consider your
claim in order to be reasonably informed that the claim relies on federal law. In short, just be
sure that you present the same factual arguments and legal theories regarding a federal
claim in both your state claims and federal habeas claims.
So, what do you do if you discover new evidence about your claim or become better
acquainted with the law concerning your claim after presenting your claim to state court?
You can, and should, strengthen your claim by adding this new factual and legal material in
your federal petition. Explain to the court that you are simply supplementing your pending
claim, not adding a new claim. This may also give you an additional benefit by giving you
more time to file your habeas petition.269 However, be aware that supplementing a federal
petition with new information may lead to the dismissal of your original habeas claim. If the
new information that you wish to include in your habeas petition was not presented to the
state courts, and state relief is now available to you, then the federal courts will probably
dismiss your federal claim.270
It is important to remember to go to state court first in order to exhaust all claims before
filing in federal court. Any petitioner who files first in federal court, goes back to exhaust,
and then tries to amend the federal petition runs a great risk of having the petition
dismissed as untimely. Remember you have a one-year time limit to file your federal habeas
petition. Furthermore, your state petition could be your only opportunity to have a judge
thoroughly review your claims on the merits. AEDPA gives federal courts very little room to
disagree with state court rulings on your claims. AEDPA forbids federal courts from granting
a writ of habeas corpus unless the state court’s consideration of your claims was “contrary to,
264. Johnson v. Zenon, 88 F.3d 828, 831 (9th Cir. 1996).

265. Picard v. Connor, 404 U.S. 270, 278, 92 S. Ct. 509, 513, 30 L. Ed. 2d 438, 445 (1971) (quoting
Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)).
266. See Beauchamp v. Murphy, 37 F.3d 700, 704 (1st Cir. 1994) (finding that petitioner did raise
a federal claim even though the claim was not contained in the paragraph heading and that the court
should look to “substance rather than form”).
267. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438, 443 (1971)
(determining that “once the federal claim has been fairly presented to the state courts, the exhaustion
requirement is satisfied”).
268. Wilwording v. Swenson, 404 U.S. 249, 250, 92 S. Ct. 407, 408–09, 30 L. Ed. 2d 418, 420–21
(1971) (per curiam). However, if you raise a claim for the first and only time in a petition for
discretionary review to a state appellate court, you will not meet the exhaustion requirement. See
Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056, 1060, 103 L. Ed. 2d 380, 386 (1989) (stating that
presentation of a new claim to a state’s highest court on discretionary review does not constitute “fair
representation” for purposes of determining that claim’s exhaustion).
269. 28 U.S.C. § 2244(d)(1)(D) (2006). See Part (D)(4) (“Time Limit”) of this Chapter for more
information on the one-year time limit in which you must file your federal habeas corpus petition. The
time limit may also run from the time that new facts could have been discovered through due diligence.
270. See, e.g., Graham v. Johnson, 94 F.3d 958, 970–71 (5th Cir. 1996) (determining that, even
though the state waived the exhaustion requirement, the petitioner’s extensive new evidence needed to
be presented to state courts).
or involved an unreasonable application of, clearly established Federal law” or if the decision
was based on an “unreasonable determination of the facts.”271
(c) Exceptions to Exhaustion
There are a few narrow exceptions to the exhaustion requirement. First, you do not need
to seek relief in state court if state remedies are “unavailable” or “ineffective.” 272 For
example, in North Carolina, a state statute did not allow a defendant already convicted to
raise an issue in a post-conviction proceeding that he could have raised earlier, so there was
no more state remedy available to him. The Fourth Circuit Court of Appeals thus held that
the defendant was not barred from seeking habeas corpus relief.273 In another case, state
remedies were seen to be ineffective to protect the rights of a prisoner because he would be
raising the same exact constitutional issue to the state supreme court that a fellow prisoner
had already litigated and lost. In this situation, bringing the same issue before the court
would most likely be unsuccessful and would have wasted the resources of the state system,
so the court ruled that he did not need to raise the issue again in a post-conviction
proceeding and exhaust his state court remedies.274
Another exception to the exhaustion requirement may occur after an unusually long
delay in receiving a ruling on an appeal.275 Some federal courts do not require exhaustion
when the state courts have unconstitutionally delayed hearing the prisoner’s appeal for a few
years or more.276 In at least one case, exhaustion of state remedies was not required because
the prisoner’s jury misconduct claim hinged on the testimony of a juror who was elderly,
marginally incompetent, and in poor health.277
In spite of these exceptions, federal courts do not readily excuse the exhaustion
requirement; they trust the state courts to be able to address all of your claims sufficiently.
And even if a court excuses your failure to exhaust state remedies, you will likely end up
with another problem, known as “procedural default.”278 A New York prisoner was found to
have exhausted state remedies even though he did not explicitly raise the issue on direct
appeal.279 The court went on to say that state remedies would also have been unavailable to
271. The standard that federal courts use to review habeas petitions is contained in 28 U.S.C. §
2254(d) & (e) (2006). For more information about this standard, see Part B(4) (“Standard for Getting
Relief”) of this Chapter.
272. 28 U.S.C. § 2254(b)(1)(B) (2006).
273. Stem v. Turner, 370 F.2d 895, 897 (4th Cir. 1966)
274. Evans v. Cunningham, 335 F.2d 491, 494 (4th Cir. 1964)
275. See Montgomery v. Meloy, 90 F.3d 1200, 1205–06 (7th Cir. 1996) (citing Lane v. Richards,
957 F.2d 363, 365 (7th Cir. 1992), for the idea that an excessive delay in receiving a ruling on a state
post-conviction application satisfies the exhaustion requirement, but finding that this was not the case
here).
276. Federal courts have not required exhaustion in cases where the prisoner argues that the
state courts have unconstitutionally delayed hearing the prisoner’s appeal. The delay must be
unusually long in order to fit within this exception. It is unlikely that a one-year delay would be enough
to waive the exhaustion requirement, but a two-year delay may be. See Harris v. Champion, 15 F.3d
1538, 1556 (10th Cir. 1994) (determining that “a delay in adjudicating a direct criminal appeal beyond
two years from the filing of the notice of appeal gives rise to a presumption that the state appellate
process is ineffective”); Calhoun v. Farley, 913 F. Supp. 1218, 1221 (N.D. Ind. 1995) (holding that
sufficient time has passed to excuse the need for exhausting state remedies where no action had been
taken by the state or by the prisoner for almost two years on prisoner’s petition for post-conviction
relief); Geames v. Henderson, 725 F. Supp. 681, 685 (E.D.N.Y. 1989) (finding that, for a case where the
“Court views issues on appeal as no more complex than in most criminal appeals,” a delay of three and
a half years is excessive).
277. Simmons v. Blodgett, 910 F. Supp. 1519, 1524 (W.D. Wash. 1996).
278. Procedural default is explained in Part D(3) (“Procedural Default”) of this Chapter.
279. A prisoner filed a petition for federal habeas corpus on the ground that his confession was
involuntary and did not explicitly raise the issue on direct appeal. However, he was found to have
him under the New York State law, which did not allow the prisoner to raise a claim in a
collateral attack (Article 440 motion) when he failed to raise the claim on direct appeal in
state court.280 Since it would be useless for the prisoner to return to the state court because
he could not raise the claim in a collateral attack that he did not raise on direct appeal, the
federal court could excuse his failure to exhaust the claim. However, the federal court will
probably still bar his habeas petition because, although he has no effective remedy to return
to state court to exhaust this claim, he committed procedural default by failing to raise the
claim on appeal as state law required him to do.281 So even though this failure helped the
prisoner avoid the exhaustion requirement, the same failure could still prevent him from
getting his writ of habeas corpus. 282 In short, you should not rely on exceptions to the
exhaustion requirement because they are rarely granted.
(d) What Happens If You Do Not Exhaust State Remedies
If you present your claim to a federal court before you have exhausted all your state
remedies, the court may look at the merits of your claim anyway. You are taking a risk here
because if the court believes that your claim is without merit, it may deny you relief once and
for all, even though you have not finished presenting your claim to the lower courts. 283
Otherwise, the court will reject your petition for not exhausting state remedies, either with
or without looking at the merits, and you will need to finish presenting it to the state courts
in order to fulfill the exhaustion requirement. This Subsection describes what you should do
if a federal court will not consider your petition because you have not exhausted your state
remedies and then dismisses your petition without prejudice to allow you to exhaust your
facts and claims in the state court.
Upon dismissal, first you should check to see if the state has waived the exhaustion
requirement in your case.284 A federal court will never assume that the state waived the
exhaustion requirement in your case just because the state did not insist on exhaustion.285
There must be an express statement by an authorized state attorney saying that the
exhaustion requirement in your case has been waived, otherwise there is no waiver.
If the state has not given you a waiver, you must return to state court and seek relief
there. Remember the one-year time limit! To ensure your claims will not later be barred from
federal review because of the limitations period, you can ask the federal district court to hold
your habeas petition in abeyance (delay the federal proceeding) while you return to state
adequately exhausted his state remedies because the judge had indirectly ruled on that issue through
an evidentiary determination. Quartararo v. Mantello, 715 F. Supp. 449, 464 (E.D.N.Y. 1989), aff’d, 888
F.2d 126 (2d Cir. 1989).
280. See Quartararo v. Mantello, 715 F. Supp. 449, 464 (E.D.N.Y. 1989), aff’d, 888 F.2d 126 (2d Cir.
1989). See Chapter 20 of the JLM for a discussion of N.Y. Crim. Proc. Law § 440.10(2)(c).
281. See Daye v. Attorney Gen., 696 F.2d 186, 190 n.3 (2d Cir. 1982) (en banc) (explaining that
failure to comply with a state rule, resulting in a procedural default that bars, under state law, the
subsequent assertion of a challenge to the conviction, may also preclude federal habeas through the
doctrine of procedural forfeiture unless the petitioner can demonstrate that there was “cause” for his
failure to comply with the state procedure and that “prejudice” resulted).
282. See, e.g., Castille v. Peoples, 489 U.S. 346, 351–52, 109 S. Ct. 1056, 1060, 103 L. Ed. 2d 380,
386–387 (1989) (stating that a claim must be fairly presented to the state courts to meet the exhaustion
requirement); Teague v. Lane, 489 U.S. 288, 298–99, 109 S. Ct. 1060, 1069, 103 L. Ed. 2d 334, 348
(1989) (finding that a procedural default does not prevent consideration of a habeas petition unless the
state court “clearly and expressly” stated that its judgment rests on a state procedural bar).
283. 28 U.S.C. § 2254(b)(2) (2006). But see Glenn v. Bartlett, 98 F.3d 721, 725 (2d Cir. 1996)
(explaining that the court’s consideration of the merits of a claim does not mean that it excuses any
procedural bar that should have prevented bringing the case before a federal court).
284. “Waived” means “decided not to apply.” A state waiver of a requirement means that you do
not have to fulfill the requirement.
285. 28 U.S.C. § 2254(b)(3) (2006); see Lurie v. Wittner, 228 F.3d 113, 123 (2d Cir. 2000) (noting
that state waivers of exhaustion are disfavored and that such a waiver must be made expressly).
court to exhaust your state remedies. You should explain to the federal court that you are
concerned that you will pass the statute of limitations, so you want a “stay and abeyance”
order to ensure that you will be able to return to federal court after exhausting your state
remedies. You also have to offer to dismiss your unexhausted claims in federal court.286 Often
courts issue a stay and abeyance order that will allow you to return to state court to exhaust
remedies without fear of the one-year limitations period expiring. 287 Absent cause for
equitable tolling (see the explanation of tolling in Part D(4)), the court is not required to
warn a pro se litigant that his federal claims would be time-barred upon his return to federal
court if he opted to dismiss the petitions without prejudice and return to state court to
exhaust all of his claims.288
If the time limit to raise the unexhausted claim in state court has run out, look for an
exception to the exhaustion requirement.289 Because such exceptions are rarely successful,
you should use this argument only as a last resort. If the time limit has not run out, file as
quickly as possible in state court so that tolling will apply.290 Once you re-file in state court
and satisfy the exhaustion requirement, if your claims are dismissed, you can still re-file a
federal habeas petition in federal court if your time to do so has not run out (requesting a
stay and abeyance order beforehand will ensure that your time has not run in federal court).
This petition—which follows your earlier petition that was dismissed by the district court
without prejudice—will not count as a successive habeas petition and will not be subject to
dismissal for that reason.291
Dismissal of a federal habeas petition for failing to exhaust and running over the one-
year time limit can be very harmful because of the strict timelines that AEDPA imposes on
habeas petitions. Therefore, make sure you understand this, and that you have complied
with the two requirements of exhaustion: (1) you have given the highest state court an
opportunity to hear your claim; and (2) you have fairly presented each claim by identifying
the facts and the law supporting it to the highest state court.
3. Procedural Default
If you present a habeas claim to the federal court that has not been presented to the state
court or federal appeals court, your claim may be in “procedural default,”292 and the federal
court will be barred from hearing your claim.293 If you are a federal prisoner, you can avoid
286. Pliler v. Ford, 542 U.S. 225, 230–31, 124 S. Ct. 2441, 2445, 159 L. Ed. 2d 338, 347 (2004)
(describing the Ninth Circuit’s procedure for granting a stay and abeyance, under which the
unexhausted claims are dismissed, resolved in state court, and then re-added to the federal court
claims while the federal court claims that were already exhausted in state court remain pending).
287. Rhines v. Weber, 544 U.S. 269, 278, 125 S. Ct. 1528, 1535, 161 L. Ed. 2d 440, 452 (2005)
(directing that federal courts should issue a stay and abeyance for a mixed petition if petitioner had
“good cause” for failing to exhaust the unexhausted claims, the unexhausted claims are “potentially
meritorious,” and there is no indication that the petitioner has engaged in tactics with the purpose of
delaying the proceedings); see, e.g., Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000) (agreeing to
consider petitioner’s proper federal habeas claim as if it had been filed on the date that he originally
filed an improper claim because the district court had incorrectly dismissed the original claim for
having both unexhausted and exhausted claims, instead of allowing petitioner to resubmit his claim
with only the exhausted claims, as was customary in that circuit).
288. Pliler v. Ford, 542 U.S. 225, 231, 124, S. Ct. 2441, 2446, 159 L. Ed. 2d 338, 348 (2004).
289. See Part D(2)(c) of this Chapter (“Exceptions to Exhaustion”).
290. Tolling is discussed in Part D(4) (“Time Limit”) of this Chapter.
291. See Slack v. McDaniel, 529 U.S. 473, 478, 120 S. Ct. 1595, 1601, 146 L. Ed. 2d 542, 551
(2000). This issue is further discussed in this Chapter at Part D(5) (“Successive Petitions”).
292. 28 U.S.C. § 2254 (b)(1), (c) (2006).
293. See United States ex rel. Redding v. Godinez, 900 F. Supp. 945, 948–50 (N.D. Ill. 1995) (finding
procedural default where petitioner did not raise claims during direct appeal, during state petition for
post-conviction relief, or during state petition to appeal from denial of post-conviction relief); see also
House v. Bell 547 U.S. 518, 522, 126 S. Ct. 2064, 2068, 165 L. Ed. 2d 1, 12 (2006) (“Out of respect for
procedural default by raising every habeas claim in your direct appeal. In some
circumstances, you may be required to have raised the claims at your trial (for example, by
making appropriate objections) to be able to raise the claims in your direct appeal.294 State
prisoners can avoid procedural default by raising every claim in state court. In many cases,
state prisoners will be required to have raised claims at trial, through motions or objections,
to raise the claims on direct review.295 State prisoners must be certain to raise all claims in
all state collateral proceedings, too.296
(a) State Procedural Rules and Procedural Default
Your claim can also be in procedural default if you raised your claim to the state court
but the state court refused to review the merits of the claim because of a state procedural
rule. This often occurs when prisoners fail to pursue their claim in a timely manner.297 State
prisoners are not allowed to bring habeas claims in federal court that were not reviewed on
the finality of state-court judgments federal habeas courts, as a general rule, are closed to claims that
state courts would consider defaulted.”)
294. Some kinds of claims do not have to be raised at trial to be validly raised on direct appeal.
For example, a federal prisoner may bring an ineffective assistance of counsel claim in a § 2255 motion
even if you did not raise the issue on direct appeal. See Massaro v. United States, 538 U.S. 500, 504,
123 S. Ct. 1690, 1694, 155 L. Ed. 2d 714, 720 (2003) (holding that “an ineffective-assistance-of-counsel
claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have
raised the claim on direct appeal”); see also 28 U.S.C. § 2255 (2006).
295. Before your trial ends, you must object to any errors that occurred at trial in order to
preserve these issues for review on appeal. See Wainwright v. Sykes, 433 U.S. 72, 90–91, 97 S. Ct. 2497,
2508, 53 L. Ed. 2d 594, 610 (1977) (describing how the “contemporaneous-objection rule” encourages the
proceedings to be “as free of error as possible,” so criminal defendants should make their objections
known if they think the trial court has deprived them of any federal constitutional rights). Otherwise,
states like New York will consider only those appellate issues involving a violation of fundamental
principles of law. For example, if the prosecutor at your trial in New York made inflammatory closing
remarks that prejudiced the jury, but your lawyer did not object to this error at trial, you cannot raise
this error on direct appeal. New York courts probably will not see prejudicial remarks by a prosecutor
as a violation of fundamental principles of law. Thus, if you did not object to the prosecutor’s comments
during trial, you probably cannot raise this issue on direct appeal or through an Article 440 motion
(New York law gives courts discretion in refusing to accept 440 motions). See N.Y. Crim. Proc. Law §
440.10(3)(a)–(c) (McKinney 2005). See Chapter 20 of the JLM for more information about Article 440.
Therefore, you will also be unable to raise the issue in your federal habeas petition. However, always
remember that if your attorney was responsible for failing to object, you may have an ineffective
assistance of counsel claim. See JLM Chapter 9 and Chapter 12 for more information on ineffective
assistance of counsel claims.
296. In New York, you cannot raise claims in a post-conviction proceeding that you neglected to
raise on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(c) (McKinney 2005). See also Anderson v.
Harless, 459 U.S. 4, 7–8, 103 S. Ct. 276, 278, 74 L. Ed. 2d 3, 7–8 (1982) (rejecting habeas relief because
prisoner’s constitutional argument had never been presented to, or considered by, the state court);
Smith v. Duncan, 411 F.3d 340, 350 (2d Cir. 2005) (finding that the habeas claim was procedurally
defaulted because the claim had not been fairly presented to the state court). If your lawyer failed to
object to a prosecutor’s prejudicial remarks, and you were therefore barred from raising this issue on
appeal, you are also barred from raising the issue in a habeas corpus petition. Remember, though, that
ineffective assistance of counsel claims can be raised for the first time in a post-conviction proceeding,
and your lawyer’s failure to raise objections in court may be grounds for an ineffective assistance of
counsel claim. See JLM Chapter 9 and Chapter 12 for more information on ineffective assistance of
counsel claims.
297. See Coleman v. Thompson, 501 U.S. 722, 749, 111 S. Ct. 2546, 2564, 115 L. Ed. 2d 640, 669
(1991) (holding that petitioner's failure to file a timely notice of appeal under state law barred further
federal habeas review).
the merits in state court because the petitioner did not follow a state procedural rule.298 But
if a state procedural rule prevents you from bringing a claim in state court, and the state
court ignores the rule and reviews the merits of your claim anyway, a federal court cannot
later refuse to review your claim based on the state procedural rule.299
If you are in procedural default, you can try to use the “independent and adequate state
grounds” doctrine to get out of procedural default.300 You can get out of procedural default if
the procedural rule the state court used to deny you a hearing on the merits was (1) not
independent of federal law or (2) not adequate to bar federal review of the claim. This is a
hard standard to meet but is described in detail below.
(i) Showing the State Procedural Rule Is Not “Independent” of
Federal Law
To show that the procedural rule the state court used was not independent of federal law,
you must show that the state law is intertwined or connected with federal law, and not
entirely separate from federal law.301 State law is intertwined or connected with federal law
if judges have to necessarily answer questions about federal law in order to decide the
question of state law. For example, if the state procedural rule about timeliness says that
when fundamental or constitutional errors are made the claim is not considered untimely
and can be reviewed, then the state court judges have to decide questions of federal law—the
constitutional issue—before deciding if the state procedural rule applied to your case.302 You
298. Harris v. Reed, 489 U.S. 255, 260, 109 S. Ct. 1038, 1042, 103 L. Ed. 2d 308, 315 (1989)
(reaffirming that the federal court will not review a federal issue if the state court’s judgment is based
on an independent and adequate state-law ground).
299. See, e.g., Freeman v. Attorney Gen., 536 F.3d 1225, 1231 (11th Cir. 2008) (discussing how, as an
exception to the general rule of procedural default, when a state ignores the procedural bar, a federal
court cannot apply the bar on the state’s behalf and thus must hear the claim (citing People v.
Campbell, 377 F.3d 1208, 1235 (11th Cir. 2004) & Davis v. Singletary, 119 F.3d 1471, 1479 (11th
Cir.1997))).
300. See Coleman v. Thompson, 501 U.S. 722, 729–30, 111 S. Ct. 2546, 2553–54, 115 L. Ed. 2d 640,
655–56 (1991) (stating that the Supreme Court will not review a question of federal law decided by a
state court if the decision of that court rests on a state law ground that is independent of the federal
question and adequate to support the judgment); Dretke v. Haley 541 U.S. 386, 392, 124 S. Ct. 1847,
1851–1852, 158 L. Ed. 2d 659, 668 (2004) (discussing the general principle that federal courts will not
disturb state court judgments based on adequate and independent state law procedural grounds);
Hoffman v. Arave, 236 F.3d 523, 530 (9th Cir. 2001) (stating that “so long as the dismissal relies on a
state law ground that is independent of the federal question and adequate to support the judgment, it
will be insulated from federal review”). See, e. g., Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S. Ct.
183, 184, 80 L. Ed. 158, 159 (1935) (the court affirmed the non-reviewability of the state law’s decision
in a breach of contract action for leasing motion-picture films).
301. Ake v. Oklahoma, 470 U.S. 68, 74–75, 105 S. Ct. 1087, 1092, 84 L. Ed. 2d 53, 60–61 (1985);
see also Boyd v. Scott, 45 F.3d 876, 880 (5th Cir. 1994) (finding that state court decision was
“interwoven with federal law, and did not express clearly that its decision was based on state
procedural grounds”).
302. See La Crosse v. Kernan, 244 F.3d 702, 706–07 (9th Cir. 2001) (holding that the state’s
“untimeliness” rule did not constitute “independent” state grounds because at the time the petitioner
defaulted his claim, the rule had a “fundamental constitutional error exception” that involved a ruling
on federal law); Johnson v. Gibson, 169 F.3d 1239, 1249 (10th Cir. 1999) (holding that petitioner’s claim
was not procedurally defaulted because “Oklahoma courts do review such claims for fundamental
error—a review that necessarily includes review for federal constitutional error”—so procedural bar
was not independent of federal law); Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994) (holding that
although petitioner failed to bring an objection at trial, the state courts may review for plain error);
Bradley v. Meachum, 918 F.2d 338, 343 (2d Cir. 1990) (holding that a state waiver rule that resulted in
procedural default of petitioner’s claim is not “independent of federal law” because, under Connecticut
law, “procedural waiver cannot bar a defendant’s challenge ‘involv[ing] his constitutional right to a fair
can try to argue that the procedural rule is not “independent” of federal law and should not
stop the habeas court from reviewing your claim.
(ii) Showing the State Procedural Rule Was Not “Adequate” to
Bar Federal Review
When you argue that your default of a state procedural rule is not an adequate reason to
deny review of your federal habeas petition, you are basically arguing that the state rule is
unfair, interferes with enforcement of your federal rights, or is not applied consistently; and
therefore it is not an adequate (good enough) reason to bar review of your claim.303 Some
common ways to argue that a state procedural rule is not adequate to bar review of your
federal claims are
(1) The state’s rule is not “firmly established,” “consistently applied,” or “strictly or
regularly followed;”304
trial’,” and the state court had to first decide whether the petitioner received the constitutionally-
required fair trial).
303. For a Supreme Court case that held that the state’s procedural rule was not adequate to bar
federal habeas review, see Lee v. Kemna, 534 U.S. 362, 122 S. Ct. 877, 151 L. Ed. 2d 820 (2002). See
also Monroe v. Kuhlman, 433 F.3d 236, 245 (2d Cir. 2006) (finding state court’s application of the
contemporaneous objection rule to a situation where jurors viewed evidence during the trial without
the judge present inadequate to bar federal review of the claim); Cotto v. Herbert, 331 F.3d 217, 247 (2d
Cir. 2003) (finding New York Court of Appeals' application of the contemporaneous objection rule to
situation where there was no cross-examination of a witness who testified at petitioner's trial and
whose out-of-court identification of petitioner was admitted at trial through testimony of police officers
was inadequate to bar federal habeas review of this claim).
304. Ford v. Georgia, 498 U.S. 411, 423–24, 111 S. Ct. 850, 857, 112 L. Ed. 2d 935, 949 (1991); see
also Johnson v. Mississippi, 486 U.S. 578, 587, 108 S. Ct. 1981, 1987, 100 L. Ed. 2d 575, 583 (1988)
(finding that the “procedural bar to defendant’s subsequent attempt to raise claim … did not provide
‘adequate and independent state ground’ for affirming defendant’s conviction, where procedural bar
had not been consistently or regularly applied in the past”); James v. Kentucky, 466 U.S. 341, 348–49,
104 S. Ct. 1830, 1835, 80 L. Ed. 2d 346, 353 (1984) (holding that only state procedures that are “firmly
established and regularly followed ... can prevent implementation of federal constitutional rights”);
Barr v. City of Columbia, 378 U.S. 146, 149, 84 S. Ct. 1734, 1736, 12 L. Ed. 2d 766, 769 (1964) (“[S]tate
procedural requirements which are not strictly or regularly followed cannot deprive us of the right to
review.”); Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001) (asserting that a state ruling that
petitioner had procedurally defaulted claims would not bar federal review when the rule was not
usually applied to defendants in petitioner’s position); Romano v. Gibson, 239 F.3d 1156, 1170 (10th
Cir. 2001) (asserting that state procedural rule was not adequate because state court applied the rule
inconsistently in the cases of two co-defendants charged and tried together); Moore v. Ponte, 186 F.3d
26, 32–33 (1st Cir. 1999) (stating that procedural default resulting from defendant’s violation of the
contemporaneous objection rule does not bar federal review because state courts have overlooked the
requirement in cases like petitioner’s); Gosier v. Welborn, 175 F.3d 504, 507 (7th Cir. 1999) (asserting
that state procedural rule was an inadequate bar to federal habeas corpus review because state courts
applied the rule inconsistently and incompatibly); Clayton v. Gibson, 199 F.3d 1162, 1171 (10th Cir.
1999) (stating that default did not bar federal review because the state procedural rule was adopted
after the default supposedly occurred and could not have been firmly established); Forgy v. Norris, 64
F.3d 399, 401–02 (8th Cir. 1995) (pointing out a previous holding that “unexpectable state procedural
bars are not adequate to foreclose federal review of constitutional claims”); Morales v. Calderon, 85
F.3d 1387, 1393 (9th Cir. 1996) (stating that California’s state habeas time limits were not an adequate
and independent state ground to support procedural default where the time limits were not clear, well-
established, and consistently applied prior to petitioner’s filing of his first state habeas petition);
Cochran v. Herring, 43 F.3d 1404, 1409 (11th Cir. 1995) (finding no bar to federal habeas review even
though petitioner did not raise Batson claim on direct appeal because Alabama courts have not
consistently applied a procedural bar to these types of cases), modified, 61 F.3d 20 (11th Cir. 1995);
Grubbs v. Delo, 948 F.2d 1459, 1463 (8th Cir. 1991) (“[I]f a state applies its rule inconsistently, we are
not barred from reaching the federal law claim.”).
(2) The state procedural rule did not provide you with a reasonable opportunity to have
your federal claim heard in state court because the rule frustrates (interferes with)
the enforcement of federal rights or is unreasonably hard to meet and has the effect
of frustrating federal rights;305
(3) The procedural rule required you to object to the error before the error was apparent,
or the rule was applied in your case in a way that you could not have anticipated;306
or
(4) You tried to raise a claim, and even though you did not follow the rule exactly, the
way you tried to bring up the claim served the same interest as the state rule.307
If you have procedurally defaulted a claim, you can try to use the “independent or
adequate state grounds” doctrine to get around the procedural default. Remember, you have
to show either that the state procedural rule is not independent of federal law or that the
rule is not adequate to bar federal review.
(b) Exceptions to Procedural Default
If your claim is in procedural default, there are some limited circumstances in which the
federal court may still review your claim. These circumstances apply to both state and
federal prisoners. The court will review your claim if you satisfy either the (1) “cause and
prejudice” test or the (2) “fundamental miscarriage of justice” test.308 The courts rarely find
305. See Hoffman v. Arave, 236 F.3d 523, 531 (9th Cir. 2001) (“[I]f a state procedural rule
frustrates the exercise of a federal right, that rule is ‘inadequate’ to preclude federal courts from
reviewing the merits of the federal claim.”); Mapes v. Coyle, 171 F.3d 408, 429 (6th Cir. 1999) (asserting
that state procedural ground for denial of petition was not “adequate” because rulings resulted in
“erroneous ... refus[al] to consider” petitioner’s ineffective assistance of appellate counsel claims);
Jackson v. Shanks, 143 F.3d 1313, 1318–19 (10th Cir. 1998) (determining that state procedural rule
that claims not raised on direct appeal are procedurally barred cannot be applied to ineffective
assistance of counsel claims because doing so would “deprive [petitioner] of any meaningful review of
the ineffective assistance of counsel claim”); Morales v. Calderon, 85 F.3d 1387, 1390 (9th Cir. 1996)
(determining that federal habeas review was not barred due to procedural default because California
timeliness rule was so unclear that it did “not ‘provide ... the habeas petitioner with a fair opportunity
to seek relief in state court’” (quoting Harmon v. Ryan, 959 F.2d 1457, 1462 (9th Cir. 1992))); Wheat v.
Thigpen, 793 F.2d 621, 624–25 (5th Cir. 1986) (stating that state rules not regularly followed prevented
the “implementation of federal constitutional rights”); Williams v. Lockhart, 873 F.2d 1129, 1131–32
(8th Cir. 1989) (stating that violation of a “new [state] rule designed to thwart assertion of federal
rights” is not an adequate bar to federal habeas review); Walker v. Engle, 703 F.2d 959, 967 (6th Cir.
1983) (holding that notions of comity do not require deference to state court decisions where procedural
bars that had no foundation in state law were applied).
306. See Gonzales v. Elo, 233 F.3d 348, 353–54 (6th Cir. 2000) (determining that the state rule
that barred post-conviction review of claims not raised on direct appeal was inadequate to bar federal
review of the claim because the rule was adopted after the petitioner’s direct appeal was complete);
Barnett v. Hadgett, 174 F.3d 1128, 1135 (10th Cir. 1999) (determining that state procedural rules
deeming claims raised under Cooper v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d 498
(1996) as barred if not raised on direct appeal cannot be applied to cases in which the direct appeal
occurred before the Cooper decision); United States ex rel. Duncan v. O’Leary, 806 F.2d 1307, 1314 (7th
Cir. 1986) (determining that petitioner did not default by not raising his ineffective assistance of
counsel claim under state law because disagreement between the federal and state courts over the
proper standard was such that petitioner could not have known about the claim and could not have
been said to waive it).
307. See Albuquerque v. Bara, 628 F.2d 767, 772–73 (2d Cir. 1980) (holding that “substantial
compliance” with the state procedural rule is enough to overcome procedural default).
308. Two of the main cases on this issue are Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53
L. Ed. 2d 594 (1977) and Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2564, 115 L. Ed. 2d
640, 669 (1991). These exceptions were reaffirmed after the passage of AEDPA in Edwards v.
Carpenter, 529 U.S. 446, 451, 120 S. Ct. 1587, 1591, 146 L. Ed. 2d 518, 523 (2000) (“We ... require a
prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom,
either of these, so you should not depend on either of these exceptions to the procedural
default rule.309 You should work hard to avoid procedural default by first raising all of your
claims in state court or on direct federal appeal.
(i) Cause and Prejudice Test
The “cause and prejudice” test is a defense to procedurally defaulted claims. That means
that if your claim is procedurally defaulted, the federal habeas court may still review your
claim if you can prove that you had “cause” for not following procedure and experienced
“prejudice”. To pass this test you must: (1) show cause (give a good reason for why you failed
to follow the state procedural rule, or failed to present the claim in your direct appeal if you
are a federal prisoner); and (2) show prejudice (show that your case would have come out
differently if you had been able to present your claim of constitutional violation).310
The cause and prejudice standard is the most significant obstacle you must overcome to
obtain federal habeas review. Since the Supreme Court announced the standard in 1977,311
federal courts have thrown out thousands of habeas petitions for failing to meet the
standard. Therefore, you must think carefully and creatively about how to satisfy or get
around the “cause and prejudice” standard.
1. Showing Cause
Showing “cause” is not easy. Generally, cause must be based on an external (outside)
factor that prevented you from avoiding a procedural mistake.312 Some reasons that courts
will consider to have shown “cause” include
(1) State officials prevented you from following the state procedural rule.313 For example,
at your trial, a state officer led you to believe that a constitutional violation had not
occurred, when in fact it had. In this case, the officer’s actions would be “cause” for
before the federal habeas court will consider the merits of that claim. ... The one exception to that rule
... is the circumstance in which the habeas petitioner can demonstrate a sufficient probability that our
failure to review his federal claim will result in a fundamental miscarriage of justice.” (internal
citations omitted)).
309. United States v. Mabry, 536 F.3d 231, 243 (3d Cir. 2008) (holding there was no miscarriage of
justice from petitioner’s claim that he did not fully understand what the phrase “miscarriage of justice”
meant in his waiver of collateral and direct appeals in his guilty plea because he had not satisfactorily
identified any nonfrivolous ground, had not produced any substantial appealable issues, and had failed
to allege appealable issues that fell outside the terms of his waiver).
(1991) (holding that where petitioner had no independent constitutional right to counsel on appeal in
state proceedings, his claim of ineffective counsel in state habeas petition did not constitute “cause”
under the “cause and prejudice” standard); Engle v. Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 1572–73,
71 L. Ed. 2d 783, 801 (1982) (reaffirming that any prisoner bringing a constitutional claim to the
federal court after a state procedural default must demonstrate cause and actual prejudice). See also
Reed v. Ross, 468 U.S. 1, 11–13, 104 S. Ct. 2901, 2908–10, 82 L. Ed. 2d 1, 11–14 (1984) (affirming
habeas relief because at the time of trial, state law did not allow for constitutional review of the jury’s
instructions on burden of proof, and the prisoner was prejudiced because he may not have been
convicted had the jury been instructed correctly). It is important to note that the new laws issues
discussed in Part C(2), “New Laws: The Teague Rule,” would still apply and may bar relief, even if
procedural default were overcome in this situation.
311. Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).
312. See Banks v. Dretke, 540 U.S. 668, 696, 124 S. Ct. 1256, 1275, 157 L. Ed. 2d 1166, 1192–93
(2004) (“The ‘cause’ inquiry, we have also observed, turns on events or circumstances ‘external to the
defense.’”).
313. Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645, 91 L. Ed. 2d 397 (1986)
(determining that “some interference by officials” would constitute “cause” (citing Brown v. Allen, 344
U.S. 443, 486, 73 S. Ct. 397, 422, 97 L. Ed. 469, 504 (1953))).
why you did not object to the violation at trial. The court will allow you to argue this
claim.314
(2) State officials deliberately lied about material information.315 For example, when a
state tells you that all Brady material (exculpatory material) has been turned over to
you, when in reality it has not been, you cannot be expected to be able to present this
evidence—since you did not know about it.316 The fact that the state initially lied to
you establishes a cause for failure to investigate that the court may consider.
(3) The legal basis of your constitutional claim was not reasonably available to you (or
your lawyer) at the time of your trial.317 In other words, a federal court will excuse
your failure to object to an incident that occurred at your trial, if you can show that
you could not have known from the case law existing at the time of your trial that the
incident was a constitutional violation. Unfortunately, most attempts to show cause
in this way are unsuccessful.318 You will not show “cause” by just claiming any of the
following things: that your attorney was unaware of the claim; 319 that your attorney
believed it would be useless to raise the claim because the state court had rejected
the claim before; 320 or that your attorney simply overlooked the claim.321
(4) By failing to follow the state procedural rule (for example, failing to object at trial,
failing to bring an appeal in time, etc.) your attorney provided you with
314. See Strickler v. Greene 527 U.S. 263, 283, 119 S. Ct. 1936, 1949, 144 L. Ed. 2d 286, 303
(1999) (holding that petitioner had shown cause for not raising Brady claim in state court since the
prosecutor had withheld evidence and the petitioner had relied on the prosecution’s open file policy as
fulfilling the prosecutor’s duty to disclose, but also finding that petitioner did not show prejudice); see
also Forman v. Smith, 633 F.2d 634, 641 (2d Cir. 1980) (reversing grant of habeas petition, but
affirming the principle that if a police officer made a misleading statement that obscures an
opportunity to develop a federal constitutional violation claim, such statement would be “cause” for not
raising the claim on direct appeal).
315. Banks v. Dretke, 540 U.S. 668, 695–96, 124 S. Ct. 1256, 1274–75, 157 L. Ed. 2d 1166, 1192–
93 (2004) (holding that, where prosecutors had lied and concealed information regarding a paid
informant, the petitioner had made a showing of cause for not raising Brady claim in prior
proceedings).
316. See, e.g., Banks v. Dretke, 540 U.S. 668, 693, 124 S. Ct. 1256, 1274, 157 L. Ed. 2d 1166, 1191
(2004) (determining that because the prosecution persisted in hiding evidence and falsely representing
that it had complied fully with its Brady disclosure obligations, the petitioner “had cause for failing to
investigate, in state post-conviction proceedings”).
317. See Reed v. Ross, 468 U.S. 1, 16, 104 S. Ct. 2901, 2910, 82 L. Ed. 2d 1, 12 (1984) (holding
that, where well-settled law in the state placing burden of proof on defendant for self-defense and lack
of malice could be challenged as unconstitutional under a new Supreme Court decision, the “novelty” of
such a claim was proper cause for failing to raise the claim on direct appeal).
318. See, e.g., Fernandez v. Leonardo, 931 F.2d 214, 216–17 (2d Cir. 1991) (finding no cause
where the law was unsettled on the claim raised in the habeas petition but where the defense should
have known to raise the objection nonetheless). In addition, even if you succeed in arguing that you had
“cause” for not raising the constitutional error in your appeal, because you could not have known at the
time of your trial that a constitutional error had occurred, the court could decide that this error still
cannot be considered because of the Teague case, which says you cannot make an argument that raises
a “new” rule of law. See Part C(2), “New Laws: The Teague Rule,” of this Chapter for more information.
319. See Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 1575, 71 L. Ed. 2d 783, 804 (1982)
(“Where the basis of a constitutional claim is available, and other defense counsel have perceived and
litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness
of the objection as cause for a procedural default.”).
320. See Engle v. Isaac, 456 U.S. 107, 130, 102 S. Ct. 1558, 1573, 71 L. Ed. 2d 783, 802 (1982) (“If
a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may
not bypass the state courts simply because he thinks they will be unsympathetic to the claim.”).
321. See Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645, 91 L. Ed. 2d 397, 408 (1986)
(“We think, then, that the question of cause for a procedural default does not turn on whether counsel
erred or on the kind of error counsel may have made.”).
“constitutionally ineffective assistance of counsel.”322 Remember that you must
exhaust your claim of ineffective assistance of counsel in the state courts before
presenting the claim to the federal court as cause for why you failed to follow a state
procedural requirement.323
It is important to understand that the above list is not exhaustive; there may be other
reasons in your specific case that would persuade a court to find that you have “cause.” By
Shepardizing bothWainwright 324 and Coleman 325 and researching this issue, you will
discover other reasons that courts have found “cause.”326
You should also be aware of various claims that the courts have determined do not
constitute “cause.” The following list includes only a few possibilities:
(1) Claims of ineffective assistance of counsel, if you did not have a constitutional right to
counsel at that proceeding.327
(2) Claims that there are important facts that were not fully developed in the trial court,
if you failed to develop the facts due to your own or your attorney’s neglect.328
(3) Claims that rely on evidence that could have been reasonably available to you at the
trial or on direct appeal.329 It is not enough to argue that you failed to make the claim
earlier because you had not yet discovered the evidence. You have to show that you
could not have discovered the evidence, even if you had tried. For example, if the
prosecutor deliberately withheld evidence from the defense counsel at trial, that
might show cause.330
2. Showing Prejudice
The Supreme Court has not explained “prejudice” as thoroughly as “cause.” In United
States v. Frady, the Court directly addressed the meaning of “prejudice” by stating that
“prejudice” requires that you show errors at your trial “worked to [your] actual and
substantial disadvantage, infecting [your] entire trial with error of constitutional
dimensions.”331 You should Shepardize the Frady case to see if courts in your jurisdiction
have explained what types of error show prejudice. For example, the Second Circuit has
322. Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645, 91 L. Ed. 2d 397, 408 (1986).
But see Tsirizotakis v. LeFevre, 736 F.2d 57, 62–63 (2d Cir. 1984) (listing cases rejecting a defendant’s
attempt to show cause by alleging ineffective assistance of counsel).
323. See Murray v. Carrier, 477 U.S. 478, 488–89, 106 S. Ct. 2639, 2645–46, 91 L. Ed. 2d 397, 409
(1986) (expressing that the exhaustion doctrine “generally requires” the claim for ineffective assistance
of counsel to be presented independently in state court). In New York, exhaustion of the ineffective
assistance of counsel claim is done through an Article 440 motion.
324. Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).
325. Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991).
326. By Shepardizing, you can also make sure that the law has not changed. See Chapter 2 of the
JLM for an explanation of how to Shepardize a case.
(1991) (“[I]t is not the gravity of the attorney’s error that matters, but that it constitutes a violation of
petitioner’s right to counsel.”).
328. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 6 n.2, 112 S. Ct. 1715, 1718 n.2, 118 L. Ed. 2d 318,
327 n.2 (1992) (rejecting a rule that would require an evidentiary hearing for habeas corpus cases
where the state court hearing did not adequately develop the material facts “due to petitioner’s own
neglect”).
329. McCleskey v. Zant, 499 U.S. 467, 487–89, 111 S. Ct. 1454, 1467, 113 L. Ed. 2d 517, 540–41
(1991).
330. Fairchild v. Lockhart, 979 F.2d 636, 640 (8th Cir. 1992).
331. United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 1596, 71 L. Ed. 2d 816, 832
(1982) (emphasis omitted); see McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (relying on the
Wainwright standard to determine that the errors at trial actually and substantially disadvantaged the
defense so that the defendant was denied fundamental fairness).
stated in dicta332 that it would find prejudice if a New York trial court accepted a defendant’s
guilty pleas without holding a hearing on the defendant’s competency when required to do so
by state law. Such an error, the Second Circuit stated, would “infect” the conviction and
violate due process.333
The “cause and prejudice” test is virtually impossible to meet.334 Do not rely on this
excuse if another one is available to you.
(ii) Fundamental Miscarriage of Justice
Another exception to procedural default is the “miscarriage of justice” exception. This
exception is also extremely difficult to meet, and you should not rely on this exception to get
out of procedurally defaulted claims. This exception usually only works if you can show that
“failure to consider the claims [that are procedurally defaulted] will result in a fundamental
miscarriage of justice.” 335 The Supreme Court has not clearly said what a fundamental
miscarriage of justice is, but, in Schlup v. Delo, the Court hinted strongly that this exception
requires a persuasive showing of actual innocence.336 It is important to note that if you use
this exception, you are not claiming that you are innocent and should be let free; rather, you
are claiming that you are innocent and that is why the court should consider your
procedurally defaulted and barred constitutional claim.337
332. For a definition of dictum, see Appendix V of the JLM, “Definitions of Words Used in the
JLM.”
333. See Silverstein v. Henderson, 706 F.2d 361, 368 n.13 (2d Cir. 1983). In Silverstein, the
petitioner sought habeas relief from a sentence for armed burglary on the grounds that he was
mentally retarded and had not understood his guilty plea. The Second Circuit granted habeas relief
despite the fact that the petitioner had not raised this claim on direct appeal. The court found that
applying the procedural default rule to an incompetent defendant was unconstitutional, and, therefore,
it was unnecessary to apply the cause and prejudice test. In a footnote, the court remarked that even if
procedural default applied, the defendant would be entitled to a hearing concerning the cause for his
failure to raise the issue of competence on direct appeal. See also Pearson v. Secretary, No. 07-12828,
2008 U.S. App. LEXIS 8559, at *7 (11th Cir. 2008) (unpublished) (holding that a prisoner raising a
claim of cause and prejudice or miscarriage of justice based on the fact that he was proceeding pro se
does not establish either of the exceptions to the procedural bar).
334. Some prisoners have tried to avoid the cause and prejudice standard by arguing that the
standard should not apply in death penalty cases. See, e.g., Smith v. Murray, 477 U.S. 527, 538, 106 S.
Ct. 2661, 2668, 91 L. Ed. 2d 434, 447 (1986). Some prisoners have argued that the standard should not
apply to constitutional errors, such as faulty jury instructions, which directly affect a jury’s finding of
guilt at trial. See, e.g., Engle v. Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 1572–73, 71 L. Ed. 2d 783, 801
(1982). Other prisoners have argued that the standard should not apply to procedural defaults that
occurred on appeal (such as failure to raise a particular claim on appeal), and not at trial. See, e.g.,
Murray v. Carrier, 477 U.S. 478, 491, 106 S. Ct. 2639, 2647, 91 L. Ed. 2d 397, 410 (1986). The Supreme
Court, however, has rejected all of these arguments. In addition, the Court has ruled that the “cause
and prejudice” standard applies even in cases where you have defaulted on not merely one but all of
your federal constitutional claims, since you failed to file a notice of appeal within the required time.
Coleman v. Thompson, 501 U.S. 722, 749–50, 111 S. Ct. 2546, 2564–65, 115 L. Ed. 2d 640, 668–69
(1991).
335. Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565, 115 L. Ed. 2d 640, 669
(1991) (reaffirming that the “fundamental miscarriage of justice” exception applies to procedurally
defaulted claims); see also Murray v. Carrier, 477 U.S. 478, 495–96, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d
397, 413 (1986) (holding that “where a constitutional violation has probably resulted in the conviction
of one who is actually innocent, procedural default will not bar review of claims”); Engle v. Isaac, 456
U.S. 107, 135, 102 S. Ct. 1558, 1575–76, 71 L. Ed. 2d 783, 805 (1982) (stating that in some cases “cause”
and “prejudice” will include the correction of a fundamentally unfair incarceration).
336. Schlup v. Delo, 513 U.S. 298, 321–22, 115 S. Ct. 851, 864, 130 L. Ed. 2d 808, 832 (1995).
337. If you are claiming that you are innocent and should be let free, meaning there was not
enough evidence to convict you, the standard is much higher, and you should refer to Jackson v.
Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Remember that AEDPA created a
To meet the fundamental miscarriage of justice exception requirement, you must present
new evidence showing you are innocent. This evidence must not have been presented at
trial.338 Then you must show that with this new evidence, no reasonable juror would have
convicted you.339 It is also important to note that this new evidence is not prohibited by the
Federal Rules of Evidence. Persuasive evidence of actual innocence that may not have been
admissible in trial can be considered by the court in considering this claim.340 If you can meet
these standards, the court will consider your barred claims. The idea is that if you can
convince the court that you are innocent, it will then look at the errors in your trial, even
though they are normally barred from doing so, in order to make sure that a fundamental
miscarriage of justice did not occur.
Finally, the fundamental miscarriage of justice exception can be used to challenge a
procedurally defaulted claim if the result of the error is that the death penalty was imposed
on someone who is “actually innocent” of a death sentence. 341 This means that you are
innocent of the elements of the crime that pushed your sentence from a murder sentence to a
capital murder sentence. To prove this claim, you must show by clear and convincing
evidence that, if the constitutional violation had not occurred, you would not have been
eligible for the death penalty. 342 This standard is virtually impossible to meet, and you
should not rely on it to get around a procedurally defaulted claim.
4. Time Limit
Time is an issue that may complicate the preparation of your habeas petition. Both state
and federal prisoners have a one-year time limit for filing federal habeas petitions.343 This
time limit applies even if the state post-conviction timeline is more than a year. Therefore,
you must file both your state post-conviction petition and your federal habeas petition (if you
are unsuccessful in your state petition) within the one-year time limit. Otherwise, the time
runs out on your federal habeas petition, and you will be barred from seeking federal habeas
review. Once you file the state post-conviction motion, however, your timeline for filing the
stricter standard of review, so the Jackson standard will likely be applied in an even stricter fashion
than described in the court’s decision.
338. See Schlup v. Delo, 513 U.S. 298, 324, 327, 115 S. Ct. 851, 865, 867, 130 L. Ed. 2d 808, 832,
836 (1995) (stating that the new evidence does not have to be evidence that would be admissible at
trial).
339. Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867, 130 L. Ed. 2d 808, 836 (1995); Murray
v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649–50, 91 L. Ed. 2d 397, 414 (1986). In Carrier, the
Court first stated this standard and said a prisoner must show “a constitutional violation has probably
resulted in the conviction of one who is actually innocent” in order to meet the fundamental miscarriage
of justice exception. In Schlup, the Court explained that this standard requires the defendant to “show
that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt” if the constitutional error had not occurred. In House v. Bell, 547 U.S. 518, 126 S. Ct.
2064, 2078, 165 L. Ed. 2d 1, 22 (2006), the Supreme Court determined that AEDPA’s higher standard
of review does not apply in cases where there is a claim of actual innocence.
340 Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867, 130 L. Ed. 2d 808, 836 (1995).
341. Dugger v. Adams, 489 U.S. 400, 411 n.6, 109 S. Ct. 1211, 1217 n.6, 103 L. Ed. 2d 435, 445
n.6 (1989) (stating that a court may grant a writ even in the absence of a showing of cause for
procedural default, but only in an “extraordinary” case); see also Sawyer v. Whitley, 505 U.S. 333, 345–
46, 112 S. Ct. 2514, 2522, 120 L. Ed. 2d 269, 283 (1992) (indicating that factors disproving eligibility for
the death penalty may overcome a procedural default).
342. Sawyer v. Whitley, 505 U.S. 333, 347–50, 112 S. Ct. 2514, 2523–25, 120 L. Ed. 2d 269, 285–
87 (1992) (holding that the court must find that but for the alleged constitutional error, the sentencing
body could not have found any aggravating factors, and thus the petitioner was ineligible for the death
penalty).
343. However, if you are a state prisoner convicted of the death penalty and your state qualifies
as an opt-in state (meaning that, in exchange for providing competent counsel, the state can take
advantage of faster resolution of federal habeas claims), your time limit is much shorter than one year.
federal habeas petition will be tolled, which means that the clock does not keep running
while the state considers your motion.
Generally, the one-year timeline will start on the day your case becomes “final” 344
following direct review.345 Remember, the end of your direct review—not the end of your post-
conviction appeals or any other proceeding—triggers the date your case becomes final. Your
case will generally become final when the United States Supreme Court proceedings on
direct review are completed, 346 or, if you do not file for certiorari,347 the date when the time
expires for filing a petition for certiorari.348
However, there are three special circumstances that can extend the time you have to file
your federal habeas petition:349
(1) If the state or federal government creates an impediment (obstruction or blockage) in
violation of the Constitution or laws of the United States that prevents you from
filing the application or motion, you have one year after the unconstitutional or
illegal impediment is removed to file your federal habeas petition;350
(2) If the Supreme Court announces a new retroactive legal right on which your habeas
petition can be based, the petition is due one year from the announcement;351 or
344. See 28 U.S.C. § 2244(d)(1) (2006) (state prisoners); 28 U.S.C. § 2255(1) (2006) (federal
prisoners).
345. See 28 U.S.C. § 2244(d)(1) (2006) (state prisoners); 28 U.S.C. § 2255 (2006) (federal
prisoners).
346. See 28 U.S.C. § 2244(d)(1)(A) (2006) (state prisoners); 28 U.S.C. § 2255 (2006) (federal
prisoners).
347. “Certiorari,” or a “writ of certiorari” is an appeal to the United States Supreme Court.
348. See 28 U.S.C. § 2244(d)(1)(A) (2006) (state prisoners); Clay v. United States, 537 U.S. 522,
532, 123 S. Ct. 1072, 1079, 155 L. Ed 2d 88, 97 (2003) (“[F]or federal criminal defendants who do not
file a petition for certiorari with [the Supreme Court] on direct review, § 2255’s one-year limitation
period starts to run when the time for seeking such review expires.”).
349. If your case became final before April 24, 1996, when the Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”) was passed, you have one year from April 24, 1996, to file your petition.
350. See 28 U.S.C. § 2244(d)(1)(B) (2006) (state prisoners); 28 U.S.C. § 2255(f)(2) (2006) (federal
prisoners). The unconstitutional or illegal impediment must be created by the state. An example of an
unconstitutional impediment is the withholding of exculpatory evidence (evidence favorable to the
defendant) in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d
215, 218 (1963). See, e.g., Edmond v. U.S. Attorney, 959 F. Supp. 1, 4 (D.D.C. 1997) (determining that,
for petitioner claiming that the government is holding exculpatory evidence, the one-year limitation
does not begin until the receipt of the evidence). Another example of a state-created impediment is
inadequate prison libraries. See, e.g., Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000)
(remanding case for evidentiary hearing on whether petitioner’s claim, that an unconstitutional
impediment existed because of lack of information in the prison law library, may be upheld). The State
can also create an impediment by interfering with your filing, for example, if prison officials place you
in segregation and take away your legal materials. United States v. Gabaldon, 522 F.3d 1121 (10th Cir.
2008) (finding pro se federal prisoner’s habeas petition should not have been dismissed by district court
because state interfered with his filing by placing him in segregation and confiscating his legal
materials). But see Monroe v. Beard, 536 F.3d 198 (11th Cir. 2008) (finding confiscation of prisoners’
legal materials by prison officials did not violate constitutional rights because the prisoner did not
allege actual injury nor did prisoner provide evidence that confiscation was constitutionally
unreasonable where there was a legitimate interest in stopping the prisoner from filing fraudulent
claims and the decision to confiscate materials was rationally related to this interest; noting due
process only requires post-deprivation process for return of confiscated materials).
351. See 28 U.S.C. § 2244(d)(1)(C) (2006) (state prisoners); 28 U.S.C. § 2255(f)(3) (2006) (federal
prisoners). See, e.g., United States v. Adams, No. 90–00431–08, 1996 U.S. Dist. Lexis 8875, at *5 n.2
(E.D. Pa. June 24, 1996) (unpublished) (noting that petitioner has one year from the date the right was
initially recognized by the Supreme Court). Exactly when the one year ends depends on the circuit in
which you are filing. See Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000) (noting that the
circuits disagree as to whether the one-year period starts when the new right is announced, or when
(3) If new facts become discoverable that were not discoverable before the one-year time
limit, even with due diligence, your habeas petition is due one year from when the
facts became discoverable through due diligence.352
The date on which your one-year timeline starts is called the triggering date. If more
than one triggering date affects your case, you will have to apply within one year of the latest
date of the above three options.353 But, you should try to file within a year of the earliest
triggering date, because it will often be very difficult to show that a later triggering date
applies to your case. Also, if you have multiple claims with multiple triggering dates in your
petition, your safest option is to file within one year of the earliest triggering date.
If you have multiple claims in your petition, and the claims do not all have the same
triggering date, you should try to file within one year of the earliest triggering date. If the
time limit runs out on one of your claims, the court will probably not hear the claim even if
your habeas petition also includes other claims with later triggering dates.354 For example,
imagine that your conviction became final on January 1st, and then on March 1st the
Supreme Court announced a new retroactive legal right that applies to you. The triggering
date for any claims that you have that are related to your trial is January 1st, and the
triggering date for the claim that you have that is based on the new Supreme Court case is
March 1st. You should file a habeas petition that contains all of your claims by January 1st
of the following year. If you file in February, the court will hear your claim based on the new
Supreme Court case, but will probably not hear any of the claims related to your trial.
The time limit for habeas petitions is very strict, but most federal courts have allowed the
statute of limitations to be tolled (meaning that the time limit is put on hold) under certain
circumstances. Tolling occurs while your state post-conviction appeal is pending, provided
that you filed the petition correctly. 355 This means that if you have filed the state post-
the court holds it to be retroactive on collateral claims). However, note that the Supreme Court
construed AEDPA to mean that the one year runs from the date a new right was recognized, not the
date the right was made retroactive. Dodd v. United States, 545 U.S. 353, 357, 125 S. Ct. 2478, 2482,
162 L. Ed. 2d 343, 349 (2005).
352. See 28 U.S.C. § 2244(d)(1)(D) (2006) (state prisoners); 28 U.S.C. § 2255(f)(4) (2006) (federal
prisoners). See, e.g., Dobbs v. Zant, 506 U.S. 357, 358–59, 113 S. Ct. 835, 836, 122 L. Ed. 2d 103, 107
(1993) (holding that when petitioner’s habeas claim, which had been rejected by lower courts, was being
reviewed by the federal circuit court, petitioner was allowed to supplement his record with a trial
transcript because the delay in locating the transcript had been substantially caused by the state’s
mistake). For a more recent case discussing the concept of “due diligence” in prison settings, see Wims
v. United States, 225 F.3d 186, 190–91 (2d Cir. 2000) (finding that the district court erred in dismissing
habeas petition filed 17 months after conviction became final because the time delay was reasonable).
353. See 28 U.S.C. § 2244(d)(1) (2006) (state prisoners); 28 U.S.C. § 2255(f)(3) (2006) (federal
prisoners).
354. The Third and Sixth Circuits have held that each claim in a habeas petition must satisfy the
one-year time limit, and claims not satisfying that time limit will be dismissed. Bachman v. Bagley, 487
F.3d 979, 984 (6th Cir. 2007); Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004). The Eleventh Circuit has
held that, as long as at least one claim in a habeas petition satisfies the one-year time limit, the court
can hear all claims in the petition, even if some of those claims would otherwise be untimely. Walker v.
Crosby, 341 F.3d 1240 (11th Cir. 2003). The majority of district courts confronting the issue has
rejected Walker and concluded that any individual claim in a habeas petition should be dismissed if it
does not satisfy the time limit. See Khan v. United States, 414 F. Supp. 2d 210, 215 (E.D.N.Y. 2006)
(declining to address the untimely claims in a habeas petition that also contained a timely claim based
on a newly recognized right); Murphy v. Espinoza, 401 F. Supp. 2d 1048, 1052 (C.D. Cal. 2005) (stating
that “this Court must assess the timeliness of an inmate’s [habeas] claims on a claim-by-claim basis”).
But see Ferreira v. Dep’t of Corr., 494 F.3d 1286 (11th Cir. 2007) (discussing and upholding Walker as
valid precedent); Shuckra v. Armstrong, 2003 U.S. Dist. LEXIS 4408, at *12–13 (D. Conn.)
(unpublished) (holding that where a habeas petition contains at least one timely claim, other claims
cannot be dismissed for untimeliness).
355. 28 U.S.C. § 2244(d)(2) (2006) (explaining that the limitations period is tolled during “the
time ... which a properly filed application for State post-conviction or other collateral review with
conviction petition in the proper court, with all the paperwork submitted properly, and
within the time allowed by state law,356 then the time that the state court spends considering
your petition will not count against your one-year time limit. However, your time does not
toll while a federal court is considering your petition.357 In some extreme situations, you may
qualify for “equitable tolling.” Time that is equitably tolled does not count against your one-
year time limit. However, equitable tolling is only available when “‘extraordinary
circumstances’ beyond the petitioner’s control make it impossible to file a petition on time.”358
Think of the time limit as a stopwatch with one year on its face. Once the direct review of
your case becomes final, the clock starts ticking. When an Article 440 motion or state habeas
petition is filed in state court, the clock is stopped. Once the state court decides the case and
all other appeals are completed,359 the clock starts ticking again, and a habeas petition must
be filed in federal court before the one year is up. Note that the clock does not reset to one
year. Rather, the only time remaining is what was left when the Article 440 motion or state
habeas petition was filed in state court.
5. Successive Petitions360
It is difficult to file more than one federal habeas corpus petition. It is very important to
file your habeas petition properly and completely the first time. You may not raise a habeas
respect to the pertinent judgment or claim is pending”); see Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct.
361, 364–65, 148 L. Ed. 2d 213, 218 (2000) (holding that a state post-conviction motion is “properly
filed” even if the motion is procedurally barred, as long as the “delivery and acceptance [of the papers]
are in compliance with the applicable laws and rules governing filings”). The Artuz Court also noted
that these rules usually include the form of the document, the time limits on its delivery, the place it
must be filed, and the filing fee. In a recent case, Duncan v. Walker, 533 U.S. 167, 121 S. Ct. 2120, 150
L. Ed. 2d. 251 (2001), the Supreme Court held that properly filed federal habeas petitions do not toll
the one-year deadline. In this case, Walker’s state conviction became final in April 1996, and he filed a
habeas petition that was dismissed in July 1996. In May 1997 he tried to file another federal habeas
petition, and the Court held that this petition was time-barred because the time he was waiting for the
decision on his first federal habeas petition did not stop the clock on the one-year timeline.
356. See Allen v. Siebert, 128 S. Ct. 2, 4, 169 L. Ed. 2d 329, 334 (2007) (holding that a petition
rejected by the court as untimely is not “properly filed” under 28 U.S.C. § 2244(d)(2), even though an
affirmative defense of the state’s statute of limitations may still be available).
357. Rhines v. Weber, 544 U.S. 269, 277–278, 125 S. Ct. 1528, 1535, 161 L. Ed. 2d 440, 452 (2005)
(noting that in extraordinary circumstances the court may issue a stay so that the petitioner may have
the opportunity to present his claim without the time limit running out).
358. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814, 161 L. Ed. 2d 669, 679 (2005)
(holding that habeas petitioner has the burden of establishing that he pursued his rights diligently and
that some extraordinary circumstance stood in his way of filing within the time limit for equitable
tolling to be proper). This is often a very high burden. For example, in the Third Circuit, the court
rejected an equitable tolling argument when the petitioner was never informed that the state supreme
court had denied his petition, since his lawyer had been informed, even though the lawyer never
informed the petitioner. The court held attorney error was not sufficient to establish an extraordinary
circumstance. LaCava v. Kyler, 398 F.3d 271, 275–76 (3d Cir. 2005). Courts also may allow equitable
tolling of the statute of limitations to allow you to file a state exhaustion petition and an amended
federal post-exhaustion petition.
359. Most courts have held that any time used to file a petition for certiorari to the Supreme
Court after state post-conviction proceedings does not continue to toll the clock. See Stokes v. Dist.
Attorney, 247 F.3d 539, 542 (3d Cir. 2001) (holding that the 90-day period during which a certiorari
petition may be filed does not toll the statute of limitations); Snow v. Ault, 238 F.3d 1033, 1035 (8th
Cir. 2001) (affirming that the limitations period is not tolled for those 90 days); Rhine v. Boone, 182
F.3d 1153, 1155 (10th Cir. 2001) (finding that the limitations period for filing a habeas petition was not
tolled while defendant was seeking an appeal to the Supreme Court).
360. “Successive” means the one after. In other words, petitions after your first one are
considered “successive.”
claim a second time after it has been adjudicated on the merits.361 There are a few instances
when you may bring new claims in a successive habeas petition, but these instances are very
limited. It is very difficult to show the court that your claim falls into one of the exceptions
where petitioners are allowed to file a successive petition.
If your first petition was insufficient for one of a few reasons, the courts will allow you to
file a new petition without considering the new petition successive. The following are the
situations for which the courts will not consider your second petition successive:
(1) If you failed to exhaust your state remedies, and your first petition is dismissed to
allow you to exhaust your state remedies, your second petition, once all the claims are
exhausted, is not considered successive.362
(2) If your first petition is rejected for failure to pay the filing fee or for mistakes in form,
the second, corrected petition is not considered successive.363
(3) When the first petition was labeled a Section 2255 petition, but actually was a
Section 2241 petition that challenged the execution rather than the validity of the
sentence.364
(4) When the second petition challenges parts of the judgment that arose as the result of
an earlier, successful petition.365
There are also a few times when the court will deem a second petition successive but is
nonetheless allowed to proceed. These are the exceptions to the prohibition on successive
petitions, and they are very difficult to meet. These are extraordinary situations where you
are raising a new claim in a second petition for federal habeas relief. The exceptions are
different for state and federal prisoners.
The following are the exceptions for state prisoners:
361. 28 U.S.C. § 2244(b)(1) (2006). Section 2244 applies to all petitioners filing under §§ 2241,
2254, and 2255, which includes all state and federal habeas petitioners. You may consider reading the
text of 28 U.S.C. § 2244 (2006) in full to better understand the restrictions on successive petitions. See
Burton v. Stewart, 549 U.S. 147, 153–54, 127 S. Ct. 793, 796–97, 166 L. Ed. 2d 628, 633–34 (2007)
(instructing the district court to dismiss prisoner’s petition and finding that since the prisoner had not
made a motion in the court of appeals for an order authorizing the district court to consider the
application, the application was thus a “second or successive” habeas application that he did not have
authorization to file).
362. See Slack v. McDaniel, 529 U.S. 473, 478, 120 S. Ct. 1595, 1601, 146 L. Ed. 2d 542, 551
(2000) (deciding that “a habeas petition which is filed after an initial petition was dismissed without
adjudication on the merits for failure to exhaust state remedies is not a ‘second or successive’ petition
as that term is understood in the habeas context”); Carlson v. Pitcher, 137 F.3d 416, 420 (6th Cir. 1998)
(affirming that “a habeas petition filed after a previous petition has been dismissed on exhaustion
grounds is not a ‘second or successive petition”); Camarano v. Irvin, 98 F.3d 44, 46 (2d Cir. 1996) (per
curiam) (“Application of the gatekeeping provisions to deny a resubmitted petition in cases such as this
would effectively preclude any federal habeas review and thus, would conflict with the doctrine of writ
abuse, as understood both before and after Felker ... To foreclose further habeas review in such cases
would not curb abuses of the writ, but rather would bar federal habeas review altogether.”). See also
Part D(2), “Exhaustion of State Remedies and Direct Appeal,” of this Chapter for more information on
exhaustion.
363. See O’Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998) (asserting that a
petitioner’s “returned” petition will not be considered an “initial petition”); Benton v. Washington, 106
F.3d 162, 164 (7th Cir. 1996) (finding that petitioner’s failure to pay a filing fee is not to be considered
an “unsuccessful petition” and therefore the subsequent petition is not considered “successive”).
364. See Chambers v. United States, 106 F.3d 472, 474–75 (2d Cir. 1997). See also Part A(4),
“Which Laws Apply to Federal Habeas Corpus,” for more information on when federal prisoners would
use § 2241 instead of § 2255.
365. See, e.g., In re Taylor, 171 F.3d 185, 187–88 (4th Cir. 1999) (holding that petitioner’s motion
is not “second or successive” where petitioner seeks to raise only those issues that originated at the
time of re-sentencing, after his first petition had been granted).
(1) Your new claim rests on a “new” and previously unavailable rule of constitutional law
that the Supreme Court has made “retroactive to cases on collateral appeal.”366 See
Part C(2), “New Laws: The Teague Rules.”
(2) Your new claim relies on facts that you could not have discovered earlier, even with
“due diligence.”367 Additionally, these facts combined with the other facts of the record
must establish by “clear and convincing”368 evidence that “but for”369 the
constitutional error that you are challenging, no reasonable juror would have found
you guilty of the offense with which you were charged.370 See Part D(3)(B)(ii),
“Fundamental Miscarriage of Justice.”
The following are the exceptions for federal prisoners:
(1) The Supreme Court announces a previously unavailable retroactive legal right.371 In
such a case, you do not need to show “the likelihood of innocence.” If, after the
rejection of your first petition, the Supreme Court announces that a particular new
law will be applied to all future and prior cases, you can submit a second petition on
the same claims. In this case, you do not need to show that ignoring the new law will
harm you in some way.372
(2) The combination of the “newly discovered evidence” with other facts on the record will
provide “clear and convincing evidence” that, in the absence of a trial court’s error, the
jury would have found you not guilty.373 The error caused by the court’s violation of
the Constitution, federal laws, or treaties must not be “harmless.”
Please note that even if you can prove any of the above exceptions for state or federal
prisoners, other procedural difficulties may still prevent you from filing a second request for
habeas relief. You must get permission from a panel of three federal circuit court judges
before you can file a successive petition in federal district court. Upon your request, the panel
will review your papers and make a decision within thirty days.374 If the court decides not to
review your papers, then you cannot appeal their decision and, thus, you cannot file a second
petition.
366. 28 U.S.C. § 2244(b)(2)(A) (2006). This means that the Supreme Court has announced a new
right and has explicitly said that this new right would apply to cases that have already been decided.
The Court clarified the language of § 2244(b)(2)(A) and held that for a law to be made retroactive, the
Supreme Court must have held that the law was retroactive in a case. Additionally, the Court stated
that when a petitioner files a second habeas petition, it must be clear at the time of filing that the
Court has held the law to be retroactive. Tyler v. Cain, 533 U.S. 656, 662, 121 S. Ct. 2478, 2482, 150 L.
Ed. 2d 632, 642 (2001) (allowing successive habeas petition if the claim relies “on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable”).
367. “Due diligence” means “good effort.” See also 28 U.S.C. § 2254(e)(2)(A)(ii) (2006).
368. “Clear and convincing evidence” is a standard between “preponderance of evidence” and
“beyond a reasonable doubt.” According to the “clear and convincing evidence” standard, you must show
that it is highly likely that the new facts would have changed the outcome of your trial. However, you
do not have to show that the new facts definitely would have changed the outcome of your trial.
369. “But for,” in this context, means “without.”
370. 28 U.S.C. § 2254(e)(2)(B) (2006).
371. 28 U.S.C. § 2255 (2006).
372. Federal prisoners may be able to bring habeas claims by filing a § 2241 habeas motion even
when the new law is not constitutional. To do this, the new law must meet a few conditions: (1) the new
law must be substantive, and it must now deem the “criminal” conduct for which the petitioner was
convicted no longer “criminal”; and (2) the new law must have been passed after the petitioner’s direct
appeal, and before the first habeas motion. See In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000). See
also Part A(4), “Which Laws Apply to Federal Habeas Corpus,” of this Chapter for more information on
when federal prisoners should bring § 2241 petitions.
373. 28 U.S.C. § 2255 (2006).
374. 28 U.S.C. § 2244(b)(3)(D) (2006).
Because the rules are so strict, you must be careful to file your petition correctly and
include all your facts the first time. Do not assume that you will have a second chance if you
get something wrong or if you do not follow a procedural rule correctly. The new law in
AEDPA was meant to be harsh, and it is.375
E. The Mechanics of Petitioning for Federal Habeas Corpus
This Section explains the basic process surrounding habeas law: (1) when to file, (2)
where to file, (3) whom to file against, (4) how to file, (5) what to expect after you file, and (6)
how to appeal.
1. When to File
You must file your writ for habeas corpus in federal district court within one year after
your case becomes “final.”376 This is very important; if you miss this time limit, you will most
likely be barred from bringing a federal habeas claim. The time limit is discussed in detail in
Part D(4), “Time Limit”.
If you are filing pro se,377 you should file the following three documents quickly, and you
must file them within the one-year time limit: (1) a habeas petition,378 (2) an application for
appointment of counsel, and (3) an application for a stay (in death penalty cases only).379
2. Where to File
If you are a state prisoner, you may have a choice of federal courts in which to file your
petition. You may file your petition in either the district court of the district where you are
imprisoned or the district court of the district in which you were convicted. 380 For some
people, this may be the same district. For others, this may be two different districts.
There are several advantages to filing in the district court where you were convicted.
First, the records of your trial and sentencing are located there. Second, it is likely that
additional evidence or witnesses that you may wish to produce for the court can be found
there. Third, if you were convicted in a large city or urban area and are now imprisoned in a
small town or rural area, more qualified attorneys may be available to you in the district
where you were convicted. On the other hand, if you have an attorney, it may be easier for a
local attorney to travel to your prison to discuss the case with you. In any case, regardless of
where you file, the court in which you file will likely transfer your case to the district where
you were convicted if the court thinks a transfer is desirable.381
If you are a federal prisoner, you do not have a choice of where to file your habeas
petition. You must file your petition in the district in which you were convicted and
sentenced.
3. Whom to File Against
375. See Felker v. Turpin, 518 U.S. 651, 654, 116 S. Ct. 2333, 2335, 135 L. Ed. 2d 827, 834 (1996)
(finding AEDPA’s new restrictions on successive habeas corpus petitions constitutional).
376. See 28 U.S.C. § 2244(d)(1) (2006) (state prisoners); 28 U.S.C. § 2255 (2006) (federal
prisoners).
377. Pro se means that you are appearing in court for yourself and are not represented by a
lawyer.
378. Remember to raise all possible claims, as long as you can support them with factual details
and explanations about the harms.
379. A “stay” means a temporary court-ordered stop of the judicial proceeding.
380. 28 U.S.C. § 2241(d) (2006).
381. 28 U.S.C. § 2241(d) (2006).
If you are a state prisoner filing a Section 2254 petition, or a federal prisoner filing under
Section 2241,382 you need to name a respondent on your petition. If you are a federal prisoner
filing under Section 2255, you do not need to name a respondent on your petition.383
(a) State Prisoners and Section 2254
As a state prisoner, your habeas petition is a civil, not a criminal, action. You can think
of a habeas petition as a lawsuit—you are not suing for money or damages, but for a new
trial, or for release from imprisonment. Therefore, you cannot simply file a petition; you must
file a petition against someone. The person you file the petition against is called the
“respondent.” The respondent will be the person who has control over your custody.384 So, the
person you name as the respondent will depend on your type of custody.385
Generally, the person who has control over your custody and whom you should name as
the respondent is the warden of your prison or the chief officer in charge of state penal
institutions.386 However, there are a few situations in which you should name a different
party as respondent. If you are not currently in custody, but are challenging a future
custodial sentence, you should name the attorney general of the state that will have custody
over you.387 If your custody falls under one of the few situations where you are not under
physical custody of the state,388 you should name as respondent the person who has legal
control over your custody.389 For example, if you are on parole, you should name the parole
officer and the supervising agency, such as the parole board, as the respondents.390
4. How to File
To begin a habeas proceeding, you need to obtain a petition form for a writ of habeas
corpus. You should write to the clerk of the federal district court in which you plan to file and
request this form.391 If you are a state prisoner, you should request the “Model Form for Use
in Applications for Habeas Corpus” under 28 U.S.C. § 2254.392 If you are a federal prisoner,
request a standard form for a 28 U.S.C. § 2255 motion.393 The Clerk should send the form
382. If you are filing under 28 U.S.C. § 2241, the guidelines for your respondent will be similar to
those for state prisoners filing under § 2254. See Part A(4), “Which Laws Apply to Federal Habeas
Corpus,” of this Chapter for information on when federal prisoners should use § 2241.
383. This is because a § 2255 motion, unlike a § 2241 or § 2254 petition, is technically a criminal
procedural motion. So, the respondent remains the party that prosecuted you—the United States.
384. This is called the “immediate custodian rule.” Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.
Ct. 2711, 2718, 159 L. Ed. 2d 513, 527 (2004).
385. See Part D(1), “In Custody,” of this Chapter for more information on custody.
386. “[T]he state officer having custody of the applicant shall be named as respondent.” Rules
Governing § 2254 Cases, Rule 2(a), 28 U.S.C. fol. § 2254 (2006). You should name either the warden or
officer based on who has “custody” over you. If you are unsure, you should name both the warden and
the officer as respondents.
387. Rules Governing § 2254 Cases, Rule 2(a), 28 U.S.C. fol. § 2254 (2006).
388. See Part D(1), “In Custody,” of this Chapter for more information on custody.
389. See Rumsfeld v. Padilla, 542 U.S. 426, 439, 124 S. Ct. 2711, 2720, 159 L. Ed. 2d 513, 530
(2004) (“[I]dentification of the party exercising legal control only comes into play when there is no
immediate physical custodian with respect to the challenged ‘custody.’”).
390. See Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996) (“If the petitioner is on parole, the
parole board or equivalent should be named [as respondent].”).
391. See Appendix I at the end of the JLM for a list of federal district court addresses.
392. Rules Governing § 2254 Cases, Rule 2(c), 28 U.S.C. fol. § 2254 (2006) (requiring federal
district courts to supply prisoners with forms for habeas corpus petitions).
393. Rules Governing § 2255 Cases, Rule 2(b), 28 U.S.C. fol. § 2255 (2006) (requiring federal
district courts to supply prisoners with forms for § 2255 motions).
free of charge.394 Sample blank forms for 28 U.S.C. § 2254 petitions and 28 U.S.C. § 2255
motions are in the United States Code (“U.S.C.”) following each statute’s rules.395
The form will ask for a lot of information. The requested information includes the facts
on which you base your claims, your custody status, the state court proceedings in which you
exhausted your claims, the citations and results of any other federal habeas petitions, and
the relief you seek. In providing this information, keep the following nine steps in mind.
(a) Write Plainly
Do not worry about using legal terminology with which you are uncomfortable. The court
will not penalize you for not using formal legal terms. And, if you misuse legal phrases, you
may confuse the court and prevent the judge from understanding your claim. Just be sure to
write as clearly as possible by checking your reasoning, grammar, and spelling.
(b) Tell the Facts
The most important thing you can do in your petition is to tell the court the relevant
facts. Judges usually know the law but rarely know the facts of your case. If you have facts
that relate to your legal claims—for example, that the government withheld a ballistics
report from your trial lawyer—you should tell the court. Factual details you think are
unimportant may be very important to the court.
(c) Proofread
Ask someone you trust to read over your papers. Sometimes it is difficult to evaluate
your own arguments. A fresh set of eyes can catch gaps in your reasoning or grammatical
mistakes you might have overlooked.
(d) Argue Truthfully and Rely on the Law
Remember who your audience is. You are writing to a federal judge and his or her legal
assistants. Federal judges and their assistants often have a great deal of experience handling
habeas petitions; so, you should not try to trick them or lie to them. Also, do not make a plea
for mercy. Instead, you should appeal to a judge’s sense of fairness by providing a strong
argument that the government has convicted or sentenced you unfairly, using the legal
standards and information provided above in this Chapter.
(e) Provide Copies of Parts of the Record
Throughout the criminal justice process, you have probably received lots of papers like
subpoenas, briefs, judgments, and transcripts. These papers make up the record of your case
and are often very helpful to a reviewing court. Include copies of as much of the record as you
can, and point out the relevant parts of the record in your legal argument. If you are missing
some of the record or do not have access to a copy machine, ask the court to get the relevant
parts of the record from the trial court or the prosecution. If possible, identify the important
parts of the record as specifically as you can. For example, do not simply say that the judge
asked impermissible questions at your trial; instead identify (if possible) what those
questions were and the transcript page numbers where the questions appear.
(f) Provide Citations
394. Rules Governing § 2254 Cases, Rule 2(d), 28 U.S.C. fol. § 2254 (2006); Rules Governing §
2255 Cases, Rule 2(c), 28 U.S.C. fol. § 2255 (2006) (both requiring that courts provide the forms free of
charge).
395. Note that the Rules Governing § 2255 Cases, Rule 2(c), 28 U.S.C. fol. § 2255 (2006) and the
Rules Governing § 2254 Cases, Rule 2(c), 28 U.S.C. fol. § 2254 (2006) state that individual districts may
alter the exact format of the form, but both the forms the court uses and the sample forms should have
the same substance.
Statutes, administrative rules, and judicial opinions often have citations explaining
where they can be found. Whenever possible, provide the citations to the laws and cases that
apply to your factual situation. See Chapter 2 of the JLM, “An Introduction to Legal
Research,” to learn how to find these laws and cases and how to provide citations. You are
not required to give citations, 396 but they may help the judge make his or her decision
efficiently. If you know only a part of the citation, like the name of a case, you can simply
include that part. If you do not know the citation, do not include it and do not worry about it.
Try not to include long lists of cases in your petition (“string cites”). Instead, rely on the best
ones for your case. If a lot of cases say the same thing, pick the most recent decision from the
highest court and cite it.
(g) Present All Possible Claims
As discussed elsewhere in Part D(5), “Successive Petitions,” of this Chapter, you probably
have only one chance to submit a federal habeas petition. Thus, you should submit all the
claims that are supported by the facts in your case and the law.
(h) Sign, Date, and Copy
After you complete the form, you must sign it.397 In addition, date the petition and/or
swear to the date that it was given to a prison official to be mailed.398 Then, make three
copies of the completed petition to have four in total. You must send the original and two
copies to the clerk of the court.399 Keep the remaining copy for your own records.
(i) Pay Your Filing Fee
The filing fee for a habeas petition is five dollars.400 If you cannot afford the fee, you
should ask the clerk of the court for an in forma pauperis application. This application seeks
the court’s permission to proceed “in the manner of a poor person” by not paying court fees
and costs. In addition to completing the in forma pauperis form, you must write and sign an
application of indigence. 401 Also, you must provide a certificate from your prison warden
indicating how much money is in your prison account. 402 When you have the in forma
pauperis form, the application of indigence, and the prison account certificate ready, you
should make a copy for your own records and send the originals to the clerk of the court. If
the clerk accepts your application, you will not have to pay the filing fee or any other
expenses arising in your habeas proceeding.
Federal prisoners filing a motion under 28 U.S.C. § 2255 do not have to pay a filing fee.403
However, federal prisoners should still complete the in forma pauperis form, discussed above,
because it will be helpful to have the form on file in the event that the judge chooses to
396. See Jones v. Jerrison, 20 F.3d 849, 853 (8th Cir. 1994) (“No statute or rule requires that a petition identify
a legal theory or include citations to legal authority.”).
397. The Rules Governing § 2254 Cases, Rule 2(c), 28 U.S.C. fol. § 2254 (2006) and the Rules Governing §
2255 Cases, Rule 2(b), 28 U.S.C. fol. § 2255 (2006) require you to sign the petition.
398. It is important to note the date in case the petition does not arrive at the court for an extended period of
time after you have given it to prison officials to be mailed.
399. Rules Governing § 2254 Cases, Rule 3(a), 28 U.S.C. fol. § 2254 (2006); Rules Governing § 2255 Cases,
Rule 3(a), 28 U.S.C. fol. § 2255 (2006).
400. 28 U.S.C. § 1914(a) (2006).
401. Rules Governing § 2254 Cases, Rule 3(a), 28 U.S.C. fol. § 2254 (2006). See also 28 U.S.C.
§ 1915 (2006).
402. Rules Governing § 2254 Cases, Rule 3(a), 28 U.S.C. fol. § 2254 (2006).
403. See the Advisory Committee Notes following Rule 3 in the Rules Governing § 2255 Cases,
Rule 3, 28 U.S.C. fol. § 2254 (2006), which can be found in the United States Code (U.S.C.).
appoint you counsel. 404 Federal prisoners filing 28 U.S.C. § 2241 petitions, 405 and state
prisoners filing 28 U.S.C. § 2254 petitions will have to pay the filing fee discussed above.
Passage of the Prison Litigation Reform Act (“PLRA”), which requires prisoners to make
full or partial payment of the application fee for civil suits, raised a question about whether
habeas petitioners would be required to pay filing fees regardless of their in forma pauperis
status.406 However, federal courts of appeal have uniformly held that requirements set out in
the PLRA do not apply to habeas corpus petitions.407
5. What to Expect After Filing
After you have filed your petition, you can expect the court to issue one or more of the
following: (a) a dismissal, (b) an order to show cause, and/or (c) an evidentiary hearing.
Generally, the court must conduct an evidentiary hearing if you “alleged facts, which, if
found to be true, would have entitled [you] to habeas relief.”408 In other words, the court is
supposed to give you the benefit of the doubt and assume the truth of your alleged facts when
deciding whether to look at the evidence. However, the court may make its decision without
you present.409
(a) Dismissal
After you file your habeas request, the judge may dismiss your entire petition. The judge
will do so if it appears on the face of your petition that you are not entitled to relief, that is, if
habeas law does not provide you with any relief even assuming your claims are true.410 For
instance, the court will dismiss your claim if you complain about a harmless error in your
federal habeas petition. The court may also reject your claim if the facts of your case on the
record are not fully developed (in other words, if you have not fully stated that you have a
federal claim), or if it is clear that your petition was not filed within the one-year time limit.
(b) Order to Show Cause
If the judge decides that, assuming the truth of your claim, you may have a case, he or
she will issue an “order to show cause” to the person who has you in custody. If you are a
state prisoner, this person is probably the superintendent of your prison. If you are a federal
404. See the Advisory Committee Notes following Rule 3 in the Rules Governing § 2255 Cases,
Rule 3, 28 U.S.C. fol. § 2254 (2006), which can be found in United States Code (U.S.C.).
405. For more information on when a federal prisoner should use 28 U.S.C. § 2241 instead of §
2255, see Part A(4), “Which Laws Apply to Federal Habeas Corpus?” of this Chapter.
406. Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996). Please see Chapter
14 of the JLM for a full discussion of the PLRA.
407. See United States v. Levi, 111 F.3d 955 (D.C. Cir. 1997) (per curiam) (holding that the PLRA
does not apply to habeas petitions); Smith v. Angelone, 111 F.3d 1126, 1131 (4th Cir. 1997) (same);
Reyes v. Keane, 90 F.3d 676, 678 (2d Cir. 1996) (same).
408. See Ciak v. United States, 59 F.3d 296, 307 (2d Cir. 1995) (requiring an evidentiary hearing
where petitioner alleged trial counsel abandoned defense strategy because of conflict-of-interest); see
also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (dismissing petition as premature when
discovery had not been completed on whether trial counsel failed to use exceptions to rape-shield law);
United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (requiring evidentiary hearing where
defendant claimed counsel’s failure to inform defendant of government’s plea offer constituted
ineffective counsel); Gov’t of Virgin Is. v. Weatherwax, 20 F.3d 572, 573, 580 (3d Cir. 1994) (requiring
evidentiary hearing where defendant claims counsel’s failure to seek voir dire constituted ineffective
counsel because, if true, claim would be grounds for habeas corpus relief); Frazer v. United States, 18
F.3d 778, 781, 784–85 (9th Cir. 1994) (entitling prisoner to evidentiary hearing unless files and record
of the case conclusively show that the prisoner is not entitled to relief).
409. See 28 U.S.C. § 2243 (2006) (state prisoners); 28 U.S.C. § 2255 (2006) (federal prisoners).
410. Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. fol. § 2254 (2006); Rules Governing § 2255
Cases, Rule 4(b), 28 U.S.C. fol. § 2255 (2006).
prisoner, the United States Attorney (the prosecutor) is this person.411 The “order to show
cause” directs the warden or attorney to state why the judge should not issue a writ of
habeas corpus.412 The warden or attorney must then reply by filing an “answer” within a
time limit fixed by the court,413 and must supply you with a copy of his answer. If you object
to any statement of fact in the answer, you need to contest the statements in a document
known as a “traverse.”414
(c) Evidentiary Hearing
Under AEDPA, the habeas court is required to assume the facts as determined by the
state court. However, after receiving the petition, answer, and traverse, the habeas court
may choose to hold an evidentiary hearing on the facts that were not fully developed in state
trial court.415 The habeas court’s decision to hold a hearing may depend on why the facts
were not developed in the trial court. In other words, whether a hearing will be held may be
affected by (1) whether some error you are responsible for prevented the development of the
facts, or (2) whether the state’s error prevented the factual development.
6. Petitioner’s Error
If you or your lawyer failed to fully develop the facts in state court, this is referred to as a
“petitioner’s error.” AEDPA has severely limited the opportunities for evidentiary hearings in
this situation. The rule states that you must show two things: “cause” and “innocence.”416
You can show “cause” in one of two ways:
(1) By showing you are now relying on a retroactive right newly created by the Supreme
Court; or
(2) By showing you are now relying on newly discovered facts that could not be uncovered
earlier during the state proceedings through “due diligence” (reasonable effort).417
411. Rules Governing § 2255 Cases, Rule 4(b), 28 U.S.C. fol. § 2255 (2006).
412. Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. fol. § 2254 (2006). The state attorney or a
district attorney will usually represent the warden. Rules Governing § 2255 Cases, Rule 4(b), 28 U.S.C.
fol. § 2254 (2006).
413. Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. fol. § 2254 (2006); Rules Governing § 2255
Cases, Rule 4(b), 28 U.S.C. fol. § 2255 (2006).
414. A “traverse” is your way of denying any important facts claimed by the warden.
415. The federal district court may designate a magistrate to conduct hearings on your petition.
Rules Governing § 2254 Cases, Rule 8(b), 28 U.S.C. fol. § 2254 (2006); Rules Governing § 2255 Cases,
Rule 8(b), 28 U.S.C. fol. § 2255 (2006). After the hearing, the magistrate will file findings of facts and
recommendations with the court. The magistrate must mail you a copy of these findings and
recommendations. Rules Governing § 2254 Cases, Rule 8(b), 28 U.S.C. fol. § 2254 (2006); Rules
Governing § 2255 Cases, Rule 8(b), 28 U.S.C. fol. § 2255 (2006). You must serve and file written
objections to the magistrate’s findings and recommendations within 10 days of receiving the
magistrate’s proposals. Rules Governing § 2254 Cases, Rule 8(b), 28 U.S.C. fol. § 2254 (2006); Rules
Governing § 2255 Cases, Rule 8(b), 28 U.S.C. fol. § 2255 (2006). While Rule 8(b) states only that you
“may” file written objections, you should always file written objections if you disagree with any of the
magistrate’s findings or recommendations.
416. 28 U.S.C. § 2254(e)(2) (2000).
417. For a case providing an example of evidence not previously discoverable through “due
diligence,” see Michael Wayne Williams v. Taylor, 529 U.S. 420, 120 S. Ct. 1479, 146 L. Ed. 2d 435
(2000). In this Supreme Court case, the Court held that in order to get an evidentiary hearing in
federal court the petitioner must show he exercised due diligence in trying to develop the facts in state
court. If the petitioner can show he “made adequate efforts during state-court proceedings to discover
and present the underlying facts,” but facts remained inadequately developed, the petitioner may be
entitled to a federal evidentiary hearing. Michael Wayne Williams v. Taylor, 529 U.S. 420, 435, 120 S.
Ct. 1479, 1487, 146 L. Ed. 2d 435, 448 (2000). Additionally, the requirement of due diligence does not
depend on whether the efforts were successful, but on whether “the prisoner made a reasonable
attempt, in light of the information available at the time, to investigate and pursue claims in state
In addition to showing “cause,” you must show “innocence.” You can show innocence if
the “facts underlying your claim would be sufficient to establish by clear and convincing
evidence that but for the constitutional error, no reasonable fact-finder would have found you
guilty of the underlying offense.”418 This means that you must prove that a “reasonable” juror
would not have found you guilty of the crime of which you were convicted if the constitutional
error you are alleging had never happened.
Only by showing both “cause” and “innocence” will you be granted an evidentiary hearing
to further develop your facts. If you cannot show these two things, the court will proceed with
the facts as they appear in the state court record. It is difficult to overcome your error using
the “cause” and “innocence” standard. So, if your error caused the lack of factual
development, the court probably will not grant you an evidentiary hearing. This is why it is
so important to investigate and raise all the facts supporting all your constitutional claims in
state court. It is also why you must ask the state court to appoint an investigator and all the
experts you need to help you discover and identify facts supporting your constitutional
claims. Be sure to request discovery of documents, and always request an evidentiary
hearing at which you can present your witnesses and evidence and can prove your claims.
7. State’s Error
If the state or the state court prevented the development of facts in your case, you will
receive a mandatory hearing. In Townsend v. Sain, the Supreme Court listed six situations
in which state errors require the federal court to hold an evidentiary hearing:419
(1) The merits of the factual dispute were not resolved in the state hearing;
(2) The state’s factual determination is not fairly supported by the record as a whole;
(3) The state court’s fact-finding procedure did not adequately provide a full and fair
hearing;
(4) There is a substantial allegation of newly discovered evidence;
(5) The material facts were not adequately developed at the state court hearing;420 or
(6) The state judge did not afford the applicant a full and fair hearing.
court.” Michael Wayne Williams v. Taylor, 529 U.S. 420, 435, 120 S. Ct. 1479, 1490, 146 L. Ed. 2d 435,
451 (2000). The Court also held that “in the usual case that the prisoner, [must] at a minimum, seek[]
an evidentiary hearing in the state court in the manner prescribed by state law.” Michael Wayne
Williams v. Taylor, 529 U.S. 420, 436, 120 S. Ct. 1479, 1490, 146 L. Ed. 2d 435, 452 (2000); see also
Dobbs v. Zant, 506 U.S. 357, 359, 113 S. Ct. 835, 836, 122 L. Ed. 2d 103, 107 (1993) (finding that a trial
transcript may not be excluded for delay where the delay was a result of the state’s error).
418. 28 U.S.C. § 2254(e)(2)(B) (2006); see Sawyer v. Whitley, 505 U.S. 333, 335–36, 112 S. Ct.
2514, 2517, 120 L. Ed. 2d 269, 277–78 (1992) (citing the “actual innocence” exception, but not allowing
an exception based solely upon a showing of the existence of additional mitigating evidence that bore
only on the discretionary decision between the death penalty and life imprisonment), modified by
Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867, 130 L. Ed. 2d 808, 836 (1995) (determining that a
petitioner appealing a death penalty sentence must show that the constitutional violation probably
resulted in the conviction of a person who is actually innocent and must show that “it is more likely
than not that no reasonable juror would have convicted [the petitioner] in the light of the new
evidence”).
419. Townsend v. Sain, 372 U.S. 293, 313, 83 S. Ct. 745, 757, 9 L. Ed. 2d 770, 786 (1963),
overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318
(1992).
420. Under Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992),
absent a showing of cause for failure to develop the facts in state court proceedings and actual prejudice
resulting from the failure, a federal court will not provide a habeas petitioner with an evidentiary
hearing where the petitioner had an adequate opportunity to develop the relevant facts in state court
proceedings. But see Rhoden v. Rowland, 10 F.3d 1457, 1460 (9th Cir. 1993) (remanding for an
evidentiary hearing because, unlike petitioner in Tamayo-Reyes, petitioner took all steps possible to
make a timely record).
Remember that these situations afford you a hearing only if the state or the court was at
fault for not developing the facts during the state proceedings.
8. How to Appeal
If you filed a petition for habeas corpus in federal district court and your petition was
denied, you may appeal to the appropriate United States Court of Appeals (also called the
circuit court).421 Because AEDPA has severely restricted the opportunity to file a second or
successive petition for habeas relief, the opportunity to appeal your first petition is even
more important. Be sure to follow the procedures correctly. You must file a notice of appeal
in the district court within thirty days of the district court judgment.422 You must be sure to
file on time because it is unlikely the circuit court will grant an extension.423
An appeal is not mandatory, and you do not have an automatic right to appeal a denial of
your habeas petition. You must get permission to appeal by obtaining a “certificate of
appealability” from a federal district or circuit court judge. 424 You do this by filing an
application for a certificate of appealability with your notice of appeal in district court. If the
district court denies your request for a certificate of appealability entirely, you may request
one from the appeals court by filing an application for a certificate of appealability with that
court’s clerk.425 If the district court grants a certificate for only some of your claims, you may
ask the court of appeals to to include additional claims the district court did not specify. 426
The circuit judge will permit an appeal only upon a “substantial showing of the denial of
a constitutional right.”427 To satisfy this “substantial showing” standard, you must specify
the issue(s) involved in the violation of your federal constitutional rights.428 Be sure to ask for
a certificate of appealability on every issue you want to appeal. Your appeal will be limited to
those issues on which the certificate is granted.
Some of the “appealable issues” that have been accepted in the past are listed below:
(1) Even if the parties consent, does a magistrate judge have the authority under 28
U.S.C. § 636 and Article III of the Constitution to make a final judgment in a habeas
corpus case?429
(2) Did the trial court deny you the right to confront witnesses?430
421. 28 U.S.C. § 2253 (2006).

422. 28 U.S.C. § 2107 (2006).
423. While obtaining an extension is hard, a federal court may grant an extension under Federal
Rule of Appellate Procedure 4(a)(5)(A), which will allow the court to extend the time for filing if you can
show excusable neglect or good cause. In Mendez v. Knowles, 535 F.3d 973 (9th Cir. 2008), the court
granted an extension based on excusable neglect, when the defendant’s mailed habeas petition arrived
to the court a day late. The court believed it was permissible to grant an extension because it would not
prejudice the other party, the defendant acted in good faith when he filed the petition for an extension,
and the delay was only for one day and had no impact on the judicial proceedings. Note these are still
very narrow circumstances, and different courts may be more or less open to granting extensions.
424. 28 U.S.C. § 2253(c)(1) (2006); see, e.g., Hogan v. Zavaras, 93 F.3d 711, 712 (10th Cir. 1996)
(denying certificate of appealability for failure to show a substantial denial of a constitutional right
after writ of habeas corpus was denied by federal district court).
425. If the court of appeals denies your request for a certificate of appealability, you may try to
appeal this denial to the Supreme Court. The Court held that it has jurisdiction to hear such appeals.
Hohn v. United States, 524 U.S. 236, 247, 118 S. Ct. 1969, 1975, 141 L. Ed. 2d 242, 256 (1998).
426. See, for example, Rule 22-1(e) of the Ninth Circuit Rules, which allows a defendant to present
issues that did not appear in the application for the certificate of appealability and which submits this
motion to expand the certificate of appealability to be decided by the merits panel.
427. 28 U.S.C. § 2253(c)(2) (2006).
428. 28 U.S.C. § 2253(c)(3) (2006); see Herrera v. United States, 96 F.3d 1010, 1012 (7th Cir.
1996) (requiring that the defendant specify the issues involved in order to obtain a certificate of
appealability).
429. See Orsini v. Wallace, 913 F.2d 474, 476 (8th Cir. 1990) (finding that magistrate judges have
the authority to order entry of judgment in a habeas case upon consent of the parties).
(3) Did the prosecutor commit a Brady violation concerning blood-testing evidence?431
(4) Did the prosecutor commit a Brady violation by withholding witness statements at
trial that were favorable to your case?432
(5) Was your confession coerced by police beatings?433
(6) Was your trial counsel constitutionally ineffective?434
If your petition was dismissed for procedural reasons, like failure to exhaust, a certificate
of appealability will issue only if reasonable jurors could debate whether (1) a constitutional
violation occurred, and (2) the district court correctly dismissed your petition.435 Issuing a
certificate of appealability does not require showing the appeal will succeed but that
reasonable jurors could debate whether the petition should have been resolved differently.436
The inquiry does not require full consideration of the factual or legal bases presented in
support of the claim,437 which makes getting a certificate of appealability a bit easier.
F. How to Get Help from a Lawyer
You do not have a constitutional right to a court-appointed lawyer in a federal habeas
corpus proceeding. In non-capital cases, a court may provide you with a lawyer when the
“interests of justice” require the court to do so.438 If you are not appointed a lawyer, your
right to access the courts includes at least some access to either a law library or “jailhouse”
lawyers.439 See JLM Chapter 3, “Your Right to Learn the Law and Go to Court,” for more
430. See Norris v. Schotten, 146 F.3d 314, 329–31 (6th Cir. 1998) (stating that an error in
limiting cross-examination will allow for a grant of habeas relief only if the error rises to the level of a
denial of fundamental fairness).
431. Norris v. Schotten, 146 F.3d 314, 334 (6th Cir. 1998) (stating Brady principles apply only
when exculpatory information is not disclosed or when a tardy disclosure prejudices the defendant). But
see United States v. Brown, 498 F.3d 523, 531 (6th Cir. 2007) (criticizing Norris as inconsistent with
the Supreme Court’s approach on this issue).
432. Mahler v. Kaylo, 537 F.3d 494, 504 (5th Cir. 2008) (reversing district court’s denial of
defendant’s petition for habeas relief upon finding that state court unreasonably applied clearly
established federal law under Brady when it found that evidence which was favorable to the defendant
and withheld by the prosecutor was not material).
433. See Nelson v. Walker, 121 F.3d 828, 832 (2d Cir. 1997) (finding that defendant satisfied the
requirement of substantial showing of a denial of a constitutional right, as the record indicated that
further inquiry was necessary into his claim that his confession was involuntary).
434. See Part B(2), “Standards and Tests for Claims of Violations,” of this Chapter for more
information on ineffective assistance of counsel.
435. Slack v. McDaniel, 529 U.S. 473, 477, 120 S. Ct. 1595, 1601, 146 L. Ed. 2d 542, 551 (2000)
(reversing after determining defendant had shown reasonable jurists could conclude district court’s
procedural rulings were wrong).
436. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 1034, 154 L. Ed. 931, 944 (2003) (“A
petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could conclude the issues are
adequate to deserve encouragement to proceed further.”).
437. Miller-El v. Cockrell, 537 U.S. 322, 336–37, 123 S. Ct. 1029, 1039, 154 L. Ed. 931, 949–50
(2003) (“This threshold inquiry does not require full consideration of the factual or legal bases adduced
in support of the claims. In fact, the statute forbids it.”).
438. 18 U.S.C. § 3006A(a)(2)(B) (2006); 28 U.S.C. § 2255 (2006); Rules Governing § 2254 Cases,
Rules 6(a), 8(c), 28 U.S.C. fol. § 2254 (2006); Rules Governing § 2255 Cases, Rule 6(a), 8(c), 28 U.S.C.
fol. § 2255 (2006); see also Reese v. Fulcomer, 946 F.2d 247, 263–64 (3d Cir. 1991) (describing the
factors the court should consider before appointing counsel to an indigent habeas petitioner as: (1)
whether the habeas claim is frivolous; (2) whether appointment of counsel will benefit the petitioner
and the court; (3) the complexity of the legal or factual issues in the case; and (4) the ability of the
petitioner to investigate facts and present claims). You should research when you are entitled to a
lawyer.
439. See Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d 72, 83 (1977)
(holding that the right of access to the courts includes a right to either adequate law libraries or
information. It is important to note that even if you are appointed counsel for your habeas
petition, you do not have a right to effective assistance of counsel.440
Generally, federal courts will appoint a lawyer to represent you if one of the following is
true:
(1) Your case involves complex legal issues;441
(2) You are mentally or physically disabled;442
(3) You cannot investigate key facts, or the issues in your case require expert testimony
to be resolved;443
(4) The court decides to hold a hearing to investigate the facts of your case;444
(5) The court allows you to conduct discovery;445 or
(6) Your habeas petition is denied in district court but a certificate of appealability is
granted to appeal in the court of appeals.
The federal district judge usually has full discretion in this matter, meaning that the
appellate court normally will not overturn the district judge’s decision about the appointment
assistance from persons trained in the law). See also Lewis v. Casey, 518 U.S. 343, 351–53, 116 S. Ct.
2174, 2180–81, 135 L. Ed. 2d 606, 617–19 (1996). (affirming prisoners’ rights to access law libraries and
librarian staff but limiting the Bounds decision by holding that prisoners need to show an actual injury
suffered to prove a violation of the right to access to the courts).
440. 28 U.S.C. § 2254(i) (2006).
441. See, e.g., Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990) (requiring appointment of
counsel because the factual and legal issues were sufficiently complex and numerous; also finding that
petitioner’s ability to investigate the issues was significantly impaired by his imprisonment); United
States ex rel. Jones v. Franzen, 676 F.2d 261, 267 (7th Cir. 1982) (appointing counsel for complex legal
issues when allegations included withholding evidence, admission of co-defendant’s statements, and
improper jury sequestration). But see Williams v. Groose, 979 F.2d 1335, 1337 (8th Cir. 1992) (refusing
to appoint counsel when petitioner had assistance in his earlier judicial proceedings that raised
substantially similar claims as the habeas claim).
442. Merritt v. Faulkner, 697 F.2d 761, 764–66 (7th Cir. 1983) (appointing counsel to a recently
blinded petitioner in a non-habeas petition that had the same requirements for appointment of counsel
as habeas petitions). But see Phelps v. United States, 15 F.3d 735, 738 (8th Cir. 1994) (refusing to
appoint counsel to petitioner committed to a mental health institution when the court found that he
was “fully capable of arguing the issues” and there was “no inference that [petitioner] was unable to
understand the legal proceedings in which he was participating”).
443. See, e.g., Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990) (requiring appointment of
counsel because the factual and legal issues were sufficiently complex and numerous and because
petitioner’s imprisonment significantly impaired his ability to investigate the issues); United States ex
rel. Wissenfeld v. Wilkins, 281 F.2d 707, 715 (2d Cir. 1960) (ruling that when complex factual data
must be developed and prisoner does not have sufficient ability or training to recognize, organize, or
elicit testimony to develop such data, appointment of counsel may be necessary); Al Odah v. United
States, 346 F. Supp. 2d 1, 8 (D.D.C. 2004) (determining that prisoners who did not have access to a law
library, had an “obvious language barrier,” and were “almost certainly lack[ing] a working knowledge of
the American legal system” were entitled to appointed counsel because it was “impossible” for them to
investigate their claim); Lemeshko v. Wrona, 325 F. Supp. 2d 778, 788 (E.D. Mich. 2004) (finding
counsel should be appointed in a habeas action where prisoner “has made a colorable claim, but lacks
the means to adequately investigate, prepare, or present the claim”).
444. The Rules Governing § 2254 Cases, Rule 8(c), 28 U.S.C. fol. § 2254 (2006) and the Rules
Governing § 2255 Cases, Rule 8(c), 28 U.S.C. fol. § 2255 (2006) require a court to appoint a lawyer if the
court decides to hold a hearing to investigate the facts of your case. See also United States v. Duarte-
Higareda, 68 F.3d 369, 370 (9th Cir. 1995) (finding court appointment of counsel mandatory when
evidentiary hearings are required for habeas petitions under 28 U.S.C. § 2255 or 28 U.S.C. § 2254).
445. The Rules Governing § 2254 Cases, Rule 6(a), 28 U.S.C. fol. § 2254 (2006) and the Rules
Governing § 2255 Cases, Rule 6(a), 28 U.S.C. fol. § 2255 (2006) suggest that a court should provide you
with a lawyer if the court allows you to use discovery and believes a lawyer is necessary for effective
use of discovery proceedings. See Chapter 8 of the JLM, “Obtaining Information to Prepare Your Case:
The Process of Discovery,” for a discussion of discovery.
of counsel. However, at least one jurisdiction has made a general rule that counsel should be
appointed whenever an indigent prisoner has a strong legal claim in a habeas petition.446
To request a court-appointed lawyer, you must prepare a motion for appointment of
counsel, a brief memorandum stating the legal and factual reasons why the court should
appoint a lawyer, and an in forma pauperis application, including the supporting documents
discussed in Part E(4) of this Chapter.
You may file these papers at several different times during your habeas proceeding. For
example, you may request a lawyer even before you file your petition, so that the lawyer can
help you prepare the petition. Courts, however, are unlikely to appoint an attorney at this
early stage because they do not know the nature or complexity of your claims. So, you may
want to wait until you submit your petition or until a later stage in the proceeding, such as
during discovery or a hearing, when the rules favor appointment of a lawyer.
G. Conclusion
This Chapter explains the writ of habeas corpus and lays out the procedures you will need to follow to
petition for the writ. Remember, your imprisonment violates federal law if your arrest, trial, or sentence
violated a federal statute, treaty, or the U.S. Constitution. But, the process and standards for your habeas
claim will differ according to whether you are a federal or state prisoner. In either case, a federal habeas
petition claims your imprisonment is illegal because your arrest, trial, or sentence violated federal law.
446. The court’s rule extends to civil actions in general, not just habeas petitions. Hahn v. McLey,
737 F.2d 771, 774 (8th Cir. 1984) (holding that “when an indigent [person] presents a colorable civil
claim to a court, the court, upon request, should order the appointment of counsel” if satisfied that the
prisoner has alleged a prima facie case).
APPENDIX A:
The Nine Step Appeals Process
This chart represents the steps a state prisoner must take when appealing a decision,
starting from the initial trial, all the way through to the habeas petition.
The first column, on the left, shows how you would make direct appeals. Box 1 is your
initial trial. After this trial you make your direct appeals to the higher state courts, which is
box 2, located underneath box 1. After your direct appeals to the higher state courts (box 2),
you appeal to the United States Supreme Court, in box 3, as the last step in your direct
appeals process.
The second column, in the middle of the chart, represents your state post-conviction
proceedings, which you begin after your direct appeals are complete. Box 4 shows the first of
the collateral attacks, and you begin this process in the same court where your trial was. In
box 5, you appeal to the higher state courts. Finally, in box 6, you appeal to the United States
Supreme Court, the last step in your state post-conviction proceedings.
The final step is to begin your federal habeas corpus petition, which you start in the
appropriate federal district court, in box 7. You begin the federal habeas process after
completing your direct appeals process, and after you have completed your state post-
conviction proceedings. In box 8, you appeal to the appropriate circuit court, and finally, you
appeal to the United States Supreme Court in the last box 9.
You can always ask the Supreme Court to hear your case, but it does not have to grant
your request. If you do ask the Supreme Court to hear your case, it is called petitioning for a
writ of certiorari. The Supreme Court will either grant your petition (hear your case) or deny
your petition (refuse to hear your case). It is worth noting that the Supreme Court rarely
grants these petitions. That said, there are important reasons to file, even if you might not be
successful.
STATE POST-
DIRECT APPEAL FEDERAL HABEAS
CONVICTION
(4)
(1) (7)
Post-Conviction in Court
Trial in the Court Federal District Court
Where Convicted
↓ ↓ ↓
(2) (5)
(8)
Direct Appeal to State Appeal to State Intermediate
Court of Appeal
Intermediate Court and State Court and State Supreme
(Circuit Court)
Supreme Court Court
↓ ↓ ↓
(3) (6) (9)

U.S. Supreme Court U.S. Supreme Court U.S. Supreme Court
APPENDIX B:
Checklist for First-Time Federal Habeas Corpus
Petitioners
Before submitting your habeas petition, make sure that you can answer “yes” to each of the
following questions:
For state and federal prisoners:
(1) Have you tried to get help from an attorney?

(2) Does your conviction or sentence violate the Constitution, federal law, or treaties?
(3) Have you described how your conviction or sentence violates the Constitution, federal
law, or treaties?
(4) Have you discussed every possible violation and included a detailed explanation of the
facts for each violation?
(5) If the violation concerns the illegal search and seizure clause of the Fourth
Amendment, have you shown that you were denied the opportunity to discuss this
claim in the trial or appeals process?
(6) If possible, does your petition avoid relying on “new” law?
(7) Does the violation have a substantial effect on the verdict or sentence? Was the
violation not “harmless?”
(8) Have you explained why the violation was not harmless?
(9) Can you file your habeas petition within one year from when your case became final?
(10) Have you written to the clerk to ask for a model form?
(11) Have you checked your petition to see if your arguments are logical and organized
and have the correct spelling and grammar?
(12) If possible, have you asked someone to read and check your papers?
(13) Have you made four copies of the petition and kept one for yourself?
For state prisoners:
(1) Are you in state custody?

(2) Have you followed state procedures in exhausting the state remedies or have you
challenged your procedural default?
(3) Have you chosen where you will file your petition?
For federal prisoners:
(1) Are you in federal custody?

(2) Have you finished your initial appeal motion to your sentencing court?
For state prisoners convicted of capital punishment:
(1) Have you sought the advice of an attorney?

(2) Have you applied for a stay of execution?
(3) If your state meets the guidelines in Section 2261 (if your state is an “opt-in” state),
can you file your habeas petition within six months of the date your conviction
becomes final?
Manual
Chapter 14:
The Prison Litigation Reform Act

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 14
The Prison Litigation Reform Act*
A. Introduction
The Prison Litigation Reform Act (“PLRA”) changes various provisions of the United
States Code that address civil rights litigation and in forma pauperis proceedings
(proceedings where you file a lawsuit as a poor person and avoid paying many of the normal
fees and costs). Overall, the PLRA is designed to make it harder for prisoners to take their
complaints to federal court. So far, the courts have not found it unconstitutional.
The purpose of this Chapter is to inform you of the provisions of the PLRA and court
decisions applying it, to offer some practical advice, and to suggest ways to defend yourself in
pro se litigation when the PLRA is raised by prison officials. Some of this advice is tentative
and may be changed, because there are important questions about the PLRA that the courts
have not yet settled. While this Chapter emphasizes decisions of New York federal courts, it
also discusses the legal effects of the PLRA across the country.
The PLRA makes it extremely important to be sure your legal claim is well founded
before you file it. Under the PLRA, even if you proceed in forma pauperis, you have to pay
the full $350 filing fee (and another $450 if you wish to appeal the court’s decision). You also
run the risk of incurring a “strike” under the PLRA’s “three strikes” provision, which says
that if you have three cases dismissed as frivolous, malicious, or failing to state a valid legal
claim, you can no longer use the in forma pauperis procedure, and will have to pay the entire
filing fee in advance without the option of paying in installments. The PLRA also imposes a
mandatory provision for exhaustion of administrative remedies. This provision says you must
file a grievance (or other appropriate administrative remedy, such as a disciplinary appeal)
and pursue all available appeals within the prison system before you can file a suit in federal
court. You have to do this even if you are suing for money damages and the grievance system
does not provide damages. These are only a few of the obstacles and restrictions the PLRA
imposes.
Part B of this Chapter discusses the PLRA’s effect on your responsibility for paying filing
fees. Part C provides an overview of the PLRA’s “three strikes” provision. Part D explains the
new requirement that forces a court to dismiss at the start of litigation any prisoner cases
that it believes are frivolous or malicious, that fail to state a claim, or that seek damages
from a defendant who is immune from damage claims. Part E discusses at length one of the
most important aspects of the PLRA: its requirement that you exhaust all administrative
remedies (such as prison grievance procedures) before you will be allowed into court. Part F
describes the physical injury requirement of the PLRA, which restricts you from bringing a
federal civil action for mental or emotional injury without a prior showing of physical injury.
Parts G through L briefly discuss the PLRA provisions that (1) limit the attorneys’ fees
prisoners can recover in a successful suit; (2) allow defendants in a prisoner suit not to
respond to the prisoner’s complaint unless the court tells them to do so; (3) allow for pretrial
proceedings to be conducted by telephone or video; (4) allow the court to order the loss of
earned good-time credit if it finds that your claim was filed for a malicious or harassing
purpose; (5) require that any compensatory damages awarded to a prisoner be paid directly
to satisfy any outstanding restitution orders pending against the prisoner; and (6) revise the
manner in which injunctions can be issued and maintained.1
* This Chapter was written by John Boston of The Legal Aid Society. If you would like to learn more or
have questions about the PLRA, you are encouraged to write to The Legal Aid Society, Prisoners’
Rights Project, 199 Water Street, New York, NY, 10038.
1. Unfortunately, many significant decisions interpreting the PLRA are unreported—that is,
they do not appear in the Federal Reporter and Federal Supplement volumes available in prison law
B. Filing Fees
The PLRA requires indigent prisoners (unlike other litigants) who are granted in forma
pauperis (“IFP”) status in federal court to pay the filing fee in full or in installments, as they
have money in their prison accounts. You may wonder why you should bother seeking IFP
status if you are going to have to pay the filing fees anyway. The reason is that if you do not
proceed with IFP, you will have to pay the entire fee up front (before you can file the case).
Also, IFP litigants are eligible to have their summons and complaints served by the U.S.
Marshals Service 2 and to be excused from payment of some costs (though not fees) on
appeal. 3 Without IFP status, you will have to take care of service and pay appeal costs
yourself.4
Prisoners seeking IFP status must submit certified statements5 of their prison accounts
for the preceding six months.6 This requires prison officials’ cooperation. However, failure to
submit the information on time is not cause for dismissal if it results from prison authorities’
inaction.7 If prison officials fail or refuse to provide a certified statement, the court can order
them to do so.8 District courts in various states have different procedures for acquiring the
certified statements.9 You should obtain the necessary forms and instructions from the clerk
of the court in which you intend to bring suit.10
libraries. They are available on the Lexis and Westlaw computer services. Citations like “1999 WL
12345” are Westlaw citations. Citations like “1999 U.S. App. LEXIS 19764” are Lexis citations. Some
jurisdictions do not allow you to cite to these decisions (use them to support your legal argument). For
additional important information about unpublished cases, see Chapter 2 of the JLM, “Introduction to
Legal Research.”
2. 28 U.S.C. § 1915(d) (2006).
3. 28 U.S.C. § 1915(c) (2006).
4. See JLM, Chapter 6, “An Introduction to Legal Documents” for information on necessary
documents.
5. 28 U.S.C. § 1915(a)(2) (2006).
6. See Spaight v. Makowski, 252 F.3d 78, 79 (2d Cir. 2001) (holding that the relevant time period
on appeal is six months before filing the notice of appeal, not six months before moving for in forma
pauperis status). As a practical matter, courts have accepted information supplied by prison officials
that was a little out of date. See Jackson v. Wright, No. 99 C 1294, U.S. Dist. LEXIS 3487, at *1 n.2
(N.D. Ill. Mar. 10, 1999) (unpublished) (accepting statement ending the month before the complaint
was filed in light of the small amounts involved); Lam v. Clark, No 99 C 558, U.S. Dist. LEXIS 1573, at
*2–3 (N.D. Ill. Feb. 10, 1999) (unpublished) (accepting account information ending three and a half
weeks before the filing of the complaint, since there is a consistent pattern for the six months covered).
7. See Lawton v. Ortiz, No. 06-1167 (FSH), 2006 U.S. Dist. LEXIS 66905, at *2 (D.N.J. Sept. 19,
2006) (unpublished) (granting IFP status where prisoner said officials did not respond to his requests
for an account statement and other evidence showed he was indigent). In addition, delay in submitting
the financial information will not cause prisoners to miss the statute of limitations as long as the
complaint itself is submitted in time. See Garrett v. Clarke, 147 F.3d 745, 746 (8th Cir. 1998) (“For
purposes of the statute of limitations, the filing of a complaint commences a federal cause of action ... .
[T]he prisoner should be allowed to file the complaint, and then supply a prison account statement
within a reasonable time.”) (citations omitted).
8. See Stinnett v. Cook County Med. Staff, No. 99 C 1696, U.S. Dist. LEXIS 4605, at *2 (N.D. Ill.
Mar. 19, 1999) (unpublished) (requiring prison officials to send a certified copy of prisoner’s financial
statement to the court).
9. In the New York federal courts, for example, three of the four district courts (the Southern,
Eastern, and Northern Districts) obtain the certified statement directly from prison officials; prisoner
plaintiffs must submit a form to the court authorizing the disclosure of this information and the
payment of the fee from their prison accounts. In the Western District of New York, prisoners must
sign such an authorization and must also obtain, as part of their IFP application, certification from the
prison of their funds. The prison should include in the certification the average balances for the
preceding six months.
10. The addresses of the federal district courts (organized by Circuit) are provided in Appendix I
of the JLM.
Prisoners who are granted IFP status now must pay the entire fee for filing either a
complaint or an appeal11 in installments according to the following formula:
(b)(1) ... The court shall assess and, when funds exist, collect, as a
partial payment of any court fees required by law, an initial partial
filing fee of 20 percent of the greater of—
(A) the average monthly deposits to the prisoner’s account; or
(B) the average monthly balance in the prisoner’s account for the
6-month period immediately preceding the filing of the complaint or
notice of appeal.
(2) After payment of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the preceding
month’s income credited to the prisoner’s account. The agency having
custody of the prisoner shall forward payments from the prisoner’s
account to the clerk of the court each time the amount in the account
exceeds $10 until the filing fees are paid.12
Your case should not be dismissed if you cannot pay the initial fee. The statute says that
the initial fee is to be collected “when funds exist,” and it adds that prisoners shall not be
prohibited from bringing suit or appealing a judgment because they cannot pay.13 A case
should not be dismissed for nonpayment without first determining if the prisoner has had
the opportunity to pay and has taken the steps within his own control to make the
payment.14 However, if you intentionally do not pay, or if you fail to take the necessary steps
to pay, your case is likely to be dismissed.15 Prisoners generally may not be prohibited from
bringing an action because they owe fees from a prior action.16 However, one federal circuit
has held that prisoners who seek to evade payment of filing fees dishonestly or who fail to
11. The fee for filing a federal court civil complaint is $350.00. 28 U.S.C. § 1914(a) (2006). For
appeals, there is a $450.00 filing fee (effective November 1, 2003). See U.S. Courts, Federal Court Fees,
available at http://www.uscourts.gov/fedcourtfees/courtappealsfee_January2007.pdf (last visited Nov. 8,
2008).
12. 28 U.S.C. §§ 1915(b)(1)–(2) (2006).
13. 28 U.S.C. § 1915(b)(4) (2006); see Taylor v. Delatoor, 281 F.3d 844, 850–51 (9th Cir. 2002) (a
prisoner who cannot pay the initial fee must be allowed to proceed with his case and not merely be
granted more time to pay).
14. Redmond v. Gill, 352 F.3d 801, 804 (3d Cir. 2003) (holding that district court abused its
discretion in dismissing a case when plaintiff failed to return an authorization form for payment of fees
within 20 days, and requiring plaintiff be given more time); Hatchett v. Unknown Nettles, 201 F.3d
651, 652 (5th Cir. 2000) (“[I]t is an abuse of discretion for a district court to dismiss an action for failure
to comply with an initial partial filing fee order without making some inquiry regarding whether the
prisoner has complied with the order by submitting any required consent forms within the time allowed
for compliance.”); McGore v. Wrigglesworth, 114 F.3d 601, 607–08 (6th Cir. 1997) (“[A] case may not be
dismissed when the payment of an assessment has been delayed by prison officials. A prisoner cannot
be penalized when prison officials fail to promptly pay an assessment.”); Beyer v. Cormier, 235 F.3d
1039, 1041 (7th Cir. 2000) (holding that the court should have communicated with prison officials or
granted an extension of payment deadline). But see Cosby v. Meadors, 351 F.3d. 1324, 1332–33 (10th
Cir. 2003) (holding that a court that issued repeated orders to show cause with opportunities for
plaintiff to document that he had tried to pay had done enough and no hearing was necessary before
dismissal).
15. See Cosby v. Meadors, 351 F.3d. 1324, 1332–33 (10th Cir. 2003) (affirming dismissal of case
where plaintiff said he could not pay the fees but had spent his money on other items); Jackson v. N.P.
Dodge Realty Co., 173 F. Supp. 2d 951, 952 (D. Neb. 2001) (rejecting prisoner’s claim where he was
clearly able to pay).
16. Walp v. Scott, 115 F.3d 308 (5th Cir. 1997).
pay fees incurred because they are subject to the “three strikes” provision17 can be denied in
forma pauperis status or barred outright from filing.18
If you lose a case, a federal court may decide to charge you with the costs of the lawsuit.19
Courts are not required to make awards of costs against indigent prisoners; instead, they
have discretion to assess or not assess costs against them.20 But, if a court decides to assess
costs, you cannot appeal that decision.21
No exceptions to the fee requirement exist, and the court has no authority to defer
payment until after your release. 22 You must pay these filing fees even if your case is
dismissed immediately, if you fail to submit the necessary financial information, 23 or if
mistakes by the lower court make an appeal necessary.24 You cannot get the fee back by
voluntarily withdrawing the complaint or appeal.25 Once the case is filed, you owe the fee
(though in some courts the case may not actually be filed until and unless financial
information is submitted). Prison officials must keep collecting fees if you remain within
their legal custody, even if you are transferred to another jurisdiction.26 They are required to
prioritize these fees over other deductions.27
Filing fee payments are to be calculated based on all money the prisoner receives (not
just prison wages), and deductions may not be made for money spent on legal copies and
17. 28 U.S.C. § 1915(g) (2006). See next section for further discussion.
18. Campbell v. Clarke, 481 F.3d 967, 969–70 (7th Cir. 2007); Sloan v. Lesza, 181 F.3d 857, 859
(7th Cir. 1999). However, a recent decision held that a prisoner who is subject to the “three strikes”
provision of the PLRA and who has not paid filing fees owed from prior suits cannot be barred from
filing under the “imminent danger of serious physical injury” exception to that provision. Miller v.
Donald, 541 F.3d 1091, 1096–97 (11th Cir. 2008). For more information on the “three strikes” provision,
see Part C of this Chapter.
19. 28 U.S.C. § 1915(f)(2) (2006). In one recent case, a prisoner was assessed $7989.90 in costs
and $15,750 in attorneys’ fees. See Sanders v. Seabold, No. 98-5470, 188 F.3d 509, 509, 1999 U.S. App.
LEXIS 19764, at *3 (6th Cir. Aug. 13, 1999) (unpublished).
20. Feliciano v. Selsky, 205 F.3d 568, 572 (2d Cir. 2000) (noting “the ability of a court to require,
as a matter of discretion, that the indigent prisoner pay the costs, or some part of them”).
21. Whitfield v. Scully, 241 F.3d 264, 272–73 (2d Cir. 2001) (“[T]he 1996 amendments to § 1915
have undercut the ability of prisoners to appeal an award of costs on the ground of indigency”).
22. Ippolito v. Buss, 293 F. Supp. 2d 881, 883 (N.D. Ind. 2003).
23. See McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997) (warning that failure to pay
fees or to provide necessary affidavit of indigency or trust account statement may eventually result in
dismissal of case); Robbins v. Switzer, 104 F.3d 895, 897 (7th Cir. 1997) (“[W]hen a prisoner does not
adhere to the statutory system, a court may dismiss the appeal without regard to his ability (or
inability) to pay.”); Leonard v. Lacy, 88 F.3d 181, 186 (2d Cir. 1996) (“[W]e will apply the PLRA to
impose any required obligation for filing fees (subject to installment payments) upon all prisoners who
seek to appeal civil judgments without prepayment of fees. That obligation will be imposed prior to any
assessment of the frivolousness of the appeal.”).
24. Lebron v. Russo, 263 F.3d 38, 42 (2d Cir. 2001) (refusing to grant an exception to filing fee
requirement even where plaintiff had to re-file due to a judicial error in the first filing).
25. Goins v. Decaro, 241 F.3d 260, 261 (2d Cir. 2001) (“The PLRA makes no provision for return
of fees partially paid or for cancellation of the remaining indebtedness in the event that an appeal is
withdrawn.”).
26. Beese v. Liebe, 153 F. Supp. 2d 967, 970 (E.D. Wis. 2001) (holding state officials obligated “to
put into place procedures for continuing the collection of the filing fees ... . The payments do not stop,
nor are they even temporarily placed on hold, just because the Secretary has chosen to send [the
prisoners] out-of-state.”) (citation omitted). See generally Hall v. Stone, 170 F.3d 706, 708 (7th Cir.
1999) (“Custodians must remit as ordered under § 1915 without regard to the prisoner’s wishes.”).
27. Smith v. Huibregtse, 151 F. Supp. 2d 1040, 1043 (E.D. Wis. 2001) (finding “funds exist within
the meaning of the PLRA whenever a prisoner has funds or receives income and prison officials must
give payment of federal court filing fees priority”).
postage.28 The twenty percent monthly payment is to be made separately for each case. The
Second Circuit has held that only one fee and one award of costs are to be collected at a time,
so a prisoner will never be required to pay more than forty percent of his income.29 Other
courts have held that all fees are to be collected at the same time.30
In class actions, only the prisoners who signed the complaint or notice of appeal are
responsible for payment of fees. 31 In cases involving multiple plaintiffs, the courts have
disagreed about payment of filing fees. One federal appeals court held that “each prisoner
should be proportionally liable for any fees and costs that may be assessed. Thus, any fees
and costs that the district court ... may impose shall be equally divided among all the
prisoners.”32 Another appeals court has held that multiple prisoners joining similar claims in
a single suit not only must each pay a filing fee, but also must each file a separate
complaint. 33 More recently, another federal appeals court has agreed that each prisoner
plaintiff must pay the full filing fee, but need not file a separate complaint.34
28. Rutledge v. Romero, No. 99 C 3453, 1999 U.S. Dist. LEXIS 9021, at *2–5 (N.D. Ill. June 3,
1999) (unpublished) (establishing that funds calculation is based on all money in account, including
money from third parties and money intended for legal communication). Courts have disagreed
whether money that is withheld from a prisoner’s income and held until release should be counted in
calculating the fees or used to pay the fees. Compare Cardew v. Gord, 26 F. App’x 48, 2001 U.S. App.
LEXIS 24268, at *3 (2d Cir. 2001) (unpublished) (upholding district court decision that “lag pay” should
not be used for filing fees), with Spence v. McCaughtrey, 46 F. Supp. 2d 861, 862–63 (E.D. Wis. 1999)
(holding prisoner’s “release account” was a “prisoner’s account” under the statute and should be used
for filing fees purposes).
29. Whitfield v. Scully, 241 F.3d 264, 278 (2d Cir. 2001) (“28 U.S.C. § 1915(b)(2) permits the
recoupment of up to 40 percent of a prisoner's monthly income at any given time—20 percent for filing
fees under § 1915(b) and an additional 20 percent for costs under § 1915(f).”); see also Lafauci v.
Cunningham, 139 F. Supp. 2d 144, 147 (D. Mass. 2001) (stating that simultaneous collection of fees
depriving prisoners of all resources could “raise serious constitutional concerns”).
30. Lefkowitz v. Citi-Equity Group, 146 F.3d 609, 612 (8th Cir. 1998) (holding 20% assessment
rate applies in every case); see also Miller v. Lincoln County, 171 F.3d 595, 596 (8th Cir. 1999)
(declining to reduce monthly payments for prisoner with multiple cases).
31. Talley-Bey v. Knebl, 168 F.3d 884, 887 (6th Cir. 1999) (“[I]n cases involving class actions, ...
the responsibility of paying the required fees and costs rests with the prisoner or prisoners who signed
the complaint ... . [O]n appeal, the prisoner or prisoners signing the notice of appeal are obligated to
pay all appellate fees and costs.”).
32. In re Prison Litigation Reform Act, 105 F.3d 1131, 1138 (6th Cir. 1997). One lower court has
taken a different approach to dividing the filing fee, holding that “the filing fee obligation is joint and
several. If the parties pay the entire fee, they may divide it up between them as they see fit and it is of
no concern to the court. When the parties do not pay the entire fee, all are obligated for the entire
amount of the filing fee until it has been paid in full, even if the burden falls on a few of them
unequally.” Alcala v. Woodford, No. C 02-0072 TEH (pr), 2002 U.S. Dist. LEXIS 9504, at *2–3 (N.D.
Cal. May 21, 2002) (unpublished).
Consistent with this view, another court held in a multi-plaintiff action that the lead plaintiff, who
had three strikes, was liable for the $350 filing fee up front, but observed that the other plaintiffs did
not file IFP applications and presumably could “pool their resources and pay the fees.” Hartsfield v.
Iowa Dep’t of Corr., No. CO6-3082-LRR, 2007 U.S. Dist. LEXIS 695, at *1 (N.D. Iowa Jan. 3, 2007)
(unpublished); see also Stewart v. Missouri Dep’t of Corr., No. 7-4080-CV-C-NKL, 2007 U.S. Dist.
LEXIS 70221, at *4 (W.D. Mo. Sept. 21, 2007) (unpublished) (assessing initial fees against each of
multiple plaintiffs, noting that payment of those amounts would exceed the full amount of the filing fee,
and directing payment of the full fee within 30 days).
33. Hubbard v. Haley, 262 F.3d 1194, 1197 (11th Cir. 2001). Hubbard said that the clear
language of the PLRA requires each prisoner to bring a separate suit. We cannot find anything in the
PLRA that says that. However, a number of other courts have adopted Hubbard’s holding. See Caputo
v. Belmar Municipality & County, No. 08-1975 (MLC), 2008 U.S. Dist. LEXIS 36883, at *5–6 (D.N.J.
May 2, 2008) (unpublished); Kron v. Cook, No. H-07-4054, 2008 U.S. Dist. LEXIS 4687, at *1 (S.D. Tex.
Jan. 23, 2008) (unpublished); Lilly v. Ozmint, No. 2:07-1700-JFA-RSC, 2007 U.S. Dist. LEXIS 49153, at
*2 (D.S.C. July 11, 2007) (unpublished); Osterloth v. Hopwood, No. CV 06-152-M-JCL, 2006 U.S. Dist.
These latter two holdings appear contrary to the recent Supreme Court decision in Jones
v. Bock,35 which held that courts should not interpret the exhaustion requirement to depart
from the usual procedural practices except to the extent that the PLRA actually says to do
so.36 The usual practice is to allow plaintiffs to file joint complaints under Rule 20 of the
Federal Rules of Civil Procedure, and to our knowledge, only one filing fee is usually required
when multiple plaintiffs join in the same complaint.37
The joinder rules also permit plaintiffs to sue multiple defendants and bring multiple
claims in the same lawsuit, but only as long as the injuries all arise out of the same
“transaction, occurrence, or series of transactions or occurrences” and when there is “any
question of law or fact common to all defendants.” 38 Those rules have sometimes been
enforced loosely. However, some courts are now heavily enforcing the joinder rules against
prisoners so they cannot pay a single filing fee to litigate claims that strictly speaking call for
separate complaints and payments.39
Constitutional challenges to the filing fees provisions have been unsuccessful. The
provisions have been held not to violate the right of access to courts, the First Amendment,
the Equal Protection Clause, the Due Process Clause, and other constitutional provisions.40
LEXIS 83461, at *2–3 (D. Mont. Nov. 15, 2006) (unpublished); Sharif v. Dallas County, No. 3:06-CV-
0143-K ECF, 2006 U.S. Dist. LEXIS 73756, at *1 (N.D. Tex. Oct. 5, 2006) (unpublished).
34. Boriboune v. Berge, 391 F.3d 852, 854–56 (7th Cir. 2004); see Suarez v. A1, No. 06-2782
(JBS), U.S. Dist. LEXIS 93720, at *11–13 (D.N.J. Dec. 13, 2006) (unpublished) (acknowledging the
difficulties of joint litigation, but holding different plaintiffs who sought the same remedy could proceed
jointly though they each had to pay a filing fee).
35. Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007).
36. Jones v. Bock, 549 U.S. 199, 212, 127 S. Ct. 910, 919–20, 166 L. Ed. 2d 798, 811–12 (2007).
37 . The relevant statute says: “The clerk of each district court shall require the parties
instituting any civil action, suit or proceeding in such court, whether by original process, removal or
otherwise, to pay a filing fee of $350 ... ” 28 U.S.C. § 1914(a) (emphasis added). That language certainly
suggests that a single filing fee is required even if there are multiple plaintiffs. The statute continues:
“The clerk shall collect from the parties such additional fees only as are prescribed by the Judicial
Conference of the United States.” 28 U.S.C. § 1914(b) (2006). That language seems to forbid courts to
require multiple fees based on their interpretation of the PLRA.
38. Fed. R. Civ. P. 20(a) (joinder of defendants); see also Fed. R. Civ. P. 18 (joinder of claims).
39. See George v. Smith, 507 F.3d 605, 607–08 (7th Cir. 2007); Valdez v. Dretke, No. H-04-2038,
2007 U.S. Dist. LEXIS 54851, at *20–22 (S.D. Tex. July 26, 2007) (unpublished); see also Pope v. Miller,
No. CIV-07-0284-F, 2007 U.S. Dist. LEXIS 61921, at *1–2 (W.D. Okla. Aug. 21, 2007) (unpublished)
(holding claims of two plaintiffs misjoined under Federal Rules where they involved distinct factual
issues as to exhaustion and merits). An example of how this works is Vasquez v. Schueler, No. 06-cv-
00743-bbc, 2007 U.S. Dist. LEXIS 88193, at *5–6 (W.D. Wis. Nov. 29, 2007) (unpublished). The plaintiff
in that case raised six different claims that arose at four different times. The court said he had to
pursue them in four separate lawsuits. The only claims that could be brought in the same lawsuit were
claims of excessive force and of denial of medical or mental health care following the use of force.
40. Lefkowitz v. Citi-Equity Group, 146 F.3d 609, 612 (8th Cir. 1998) (rejecting equal protection
claim and holding filing fee provision does not unconstitutionally impede access to courts); Tucker v.
Branker, 142 F.3d 1294, 1301 (D.C. Cir. 1998) (same); Lucien v. DeTella, 141 F.3d 773, 775–76 (7th Cir.
1998) (finding statute does not violate prisoners’ due process rights); Shabazz v. Parsons, 127 F.3d
1246, 1248 (10th Cir. 1997) (holding the provisions “pass constitutional muster”); Norton v. Dimazana,
122 F.3d 286, 291 (5th Cir. 1997) (finding provisions do not violate prisoners’ right to access courts);
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997) (finding no equal protection violation);
Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir. 1997) (holding the provisions constitutional both on their
face and as applied to prisoner); Hampton v. Hobbs, 106 F.3d 1281, 1288 (6th Cir. 1997) (“[W]e find
that the fee provisions of the Prison Litigation Reform Act violate neither a prisoner's constitutional
right of access to the courts, nor his rights under the First Amendment, the Due Process Clause, the
Equal Protection Clause, or the Double Jeopardy Clause of the United States Constitution.”); Roller v.
Gunn, 107 F.3d 227, 232–33 (4th Cir. 1997).
In upholding the statute, courts have emphasized the fact that it does not actually bar
anyone from bringing suit.41
The filing fees provisions of the PLRA govern proceedings in federal court, and
presumably have no application in state court. However, we are aware of no decisions on the
issue.
The filing fees provisions only apply to civil actions. Legitimate habeas corpus and other
post-judgment proceedings generally are not considered civil actions.42 Motions to vacate a
criminal sentence under 28 U.S.C. § 2255 also generally are not considered civil actions.43
Writs of mandamus (commanding a public official to perform his or her duty) and other
extraordinary writs are considered civil actions—and are thus subject to the PLRA—when
the relief sought is similar to that in a civil action but not when the writ is directed to
criminal matters.44
Bankruptcy cases and challenges to seizures of property related to criminal proceedings
have been treated as civil actions subject to the filing fees provisions.45 Decisions are divided
41. See, e.g., Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir. 1997) (citing 28 U.S.C. § 1915(b)(4)
(2006)).
42. See Skinner v. Wiley, 355 F.3d 1293, 1294 (11th Cir. 2004) (holding PLRA inapplicable to
habeas arising from prison disciplinary proceeding); Malave v. Hedrick, 271 F.3d 1139, 1140 (8th Cir.
2001) (holding PLRA does not apply to challenge a delayed parole revocation hearing); Walker v.
O’Brien, 216 F.3d 626, 633–36 (7th Cir. 2000) (holding proper habeas actions are not civil actions under
the PLRA, regardless of subject matter); Blair-Bey v. Quick, 151 F.3d 1036, 1039–41 (D.C. Cir. 1998)
(holding PLRA does not apply to challenge to parole procedures), on reh’g, 159 F.3d 591 (D.C. Cir.
1998); Davis v. Fechtel, 150 F.3d 486, 488–90 (5th Cir. 1998) (finding that PLRA’s financial assessment
does not apply to habeas challenge to parole denial); McIntosh v. U.S. Parole Comm’n, 115 F.3d 809,
811–12 (10th Cir. 1997) (holding PLRA inapplicable to parole revocation challenge); Anderson v.
Singletary, 111 F.3d 801, 805 (11th Cir. 1997) (holding that the filing fee requirement of the PLRA does
not apply to in forma pauperis habeas petitions or appeals); Santana v. United States, 98 F.3d 752, 757
(3d Cir. 1996) (same). But see Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997) (prisoners may
not “cloak” civil actions in habeas/post-conviction guise).
By “legitimate” habeas proceedings, we mean those that challenge your custody in some fashion.
Most courts hold you cannot challenge prison conditions via federal habeas corpus. See, e.g., Beardslee
v. Woodford, 395 F.3d 1064, 1068–69 (9th Cir. 2005), cert. denied, 543 U.S. 1096 (2005). The main
exceptions to this rule involve confinement to segregation and disciplinary proceedings. Some courts
have held getting out of segregation, like getting out of prison entirely, may be pursued by habeas. See,
e.g., Medberry v. Crosby, 351 F.3d 1049, 1053 (11th Cir. 2003). Others have held that it cannot. See,
e.g., Montgomery v. Anderson, 262 F.3d 641, 643–44 (7th Cir. 2001). In addition, disciplinary
proceedings resulting in loss of good time instead of or in addition to placement in segregation must be
challenged via habeas corpus. Edwards v. Balisok, 520 U.S. 641, 644, 117 S. Ct. 1584, 1587, 137 L. Ed.
2d 906, 911 (1997).
43. Kincade v. Sparkman, 117 F.3d 949, 950 (6th Cir. 1997); United States v. Cole, 101 F.3d
1076, 1077 (5th Cir. 1996).
44. See Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir. 1997) (finding writ of mandamus filed by
prisoner essentially civil, and therefore covered by PLRA); In re Smith, 114 F.3d 1247, 1250 (D.C. Cir.
1997) (holding writ of prohibition in question was within the scope of PLRA because it contained
“underlying claims that are civil in nature”); In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997) (“[A]
mandamus petition arising from an ongoing civil rights lawsuit falls within the scope of the PLRA.”); In
re Washington, 122 F.3d 1345, 1345 (10th Cir. 1997) (determining that writs for mandamus are civil
actions under PLRA). Contra Madden v. Myers, 102 F.3d 74, 76 (3d Cir. 1996) (finding “a writ of
mandamus is by its very nature outside the ambit of [PLRA]”); Martin v. United States, 96 F.3d 853,
854 (7th Cir. 1996) (holding “a petition for mandamus in a criminal proceeding is not a form of prisoner
litigation” and thus is not covered by PLRA); In re Nagy, 89 F.3d 115, 116 (2d Cir. 1996) (denying PLRA
coverage “to writs directed at judges conducting criminal trials”).
45. See United States v. Howell, 354 F.3d 693, 695–96 (7th Cir. 2004) (holding that prisoners
challenging administrative forfeiture are required to abide by the limitations imposed by PLRA);
United States v. Minor, 228 F.3d 352, 354 n.2 (4th Cir. 2000) (holding that an equitable challenge to a
completed forfeiture is a civil action); United States v. Jones, 215 F.3d 467, 469 (4th Cir. 2000) (holding
concerning motions made under the caption of a criminal prosecution addressing conditions
of confinement related to the prosecution.46
The filing fees provisions apply only to “prisoners,” whom the statute defines as “any
person incarcerated or detained in any facility who is accused of, convicted of, sentenced for,
or adjudicated delinquent for, violations of criminal law or the terms and conditions of
parole, probation, pretrial release, or diversionary program.” 47 This includes pretrial
detainees as well as military prisoners,48 prisoners in privately operated prisons and jails,49
juvenile facilities,50 and “halfway houses,” or drug treatment programs that the person is
confined in as a result of a criminal charge or conviction.51 Persons incarcerated as a result of
civil proceedings are not prisoners under the PLRA, 52 except that such persons who are
that a motion under Federal Rule of Criminal Procedure 41(e) for the return of seized property is a civil
action); Lefkowitz v. Citi-Equity Group, 146 F.3d 609, 612 (8th Cir. 1998) (“[W]e conclude that, under
the plain language of [PLRA], the phrase ‘civil action or appeal’ is not limited to challenges to
conditions of confinement, and encompasses the instant commercial litigation.”); Pena v. United States,
122 F.3d 3, 4 (5th Cir. 1997) (holding that a motion under Federal Rule of Criminal Procedure 41(e) for
the return of seized property is a “civil action” subject to the PLRA filing fee requirements).
46. In United States v. Lopez, 327 F. Supp. 2d 138, 140–42 (D.P.R. 2004), the court held that a
motion challenging placement in administrative segregation after the government decided to seek the
death penalty against the defendant was not a civil action, and granted relief. In another case raising
the same issue, the court made a similar statement but ultimately disposed of the matter by holding
that the motion was properly treated as a habeas corpus proceeding to which the PLRA is inapplicable.
United States v. Catalan-Roman, 329 F. Supp. 2d 240, 250–51 (D.P.R. 2004). In United States v.
Hashmi, No. 06 Cr. 442 (LAP), 2008 U.S. Dist. LEXIS 3801, at *19–24 (S.D.N.Y. Jan. 16, 2008)
(unpublished), the court held that a motion in a criminal case contesting “Special Administrative
Measures” affecting communication between the defendant and his counsel was not an “action,” a term
that it defined to mean a separate proceeding, and plaintiff need not exhaust administrative remedies.
Other decisions are to the contrary, holding that motions challenging SAMs or other pretrial jail
restrictions must be exhausted. See U.S. v. Khan, 540 F. Supp. 2d 344, 349–52 (E.D.N.Y. 2007). This
court seems to confuse PLRA and habeas exhaustion requirements. An appellate decision holds that a
motion in a long-completed criminal case challenging a prison policy forbidding prisoners from
retaining possession of pre-sentence reports should have been treated as a separate civil action and
that it required exhaustion. United States v. Antonelli, 371 F.3d 360, 361 (7th Cir. 2004).
47. 28 U.S.C. § 1915(b) (2006) (requiring prisoners to pay a filing fee); see also 28 U.S.C. § 1915
(h) (2006) (defining “prisoner”).
48. Marrie v. Nickels, 70 F. Supp. 2d 1252, 1262 (D. Kan. 1999) (finding PLRA applies to
military prisoners).
49. See Roles v. Maddox, 439 F.3d 1016, 1017–18 (9th Cir. 2006), cert. denied, 127 S. Ct. 232
(2006); Boyd v. Corr. Corp. of Am., 380 F.3d 989, 993–94 (6th Cir. 2004), cert. denied, 544 U.S. 920
(2005); Ross v. County of Bernalillo, 365 F.3d 1181, 1184 (10th Cir. 2004); Lodholz v. Puckett, No. 03-C-
0350-C, 2003 U.S. Dist. LEXIS 27493, at *4–5 (W.D. Wis. Nov. 24, 2003) (unpublished) (all holding the
PLRA exhaustion requirement applicable to persons held in private prisons).
50. Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 994–95 (8th Cir. 2003) (holding
attorneys’ fees provisions apply to juveniles); Alexander S. v. Boyd, 113 F.3d 1373, 1383–85 (4th Cir.
1997), cert. denied, 522 U.S. 1090 (1998) (same); Lewis v. Gagne, 281 F. Supp. 2d 429, 433 (N.D.N.Y.
2003) (holding exhaustion requirement applies to juveniles).
51. Jackson v. Johnson, 475 F.3d 261, 266–67 (5th Cir. 2007) (holding that parolee in a halfway
house, which he could not leave without permission as a result of his criminal conviction was a
prisoner); Ruggiero v. County of Orange, 467 F.3d 170, 174–75 (2d Cir. 2006) (holding “drug treatment
campus” was a “jail, prison, or other correctional facility” under 42 U.S.C. § 1997e(a), even though state
law said it was not a correctional facility, because that term “includes within its ambit all facilities in
which prisoners are held involuntarily as a result of violating the criminal law”); Witzke v. Femal, 376
F.3d 744, 752–53 (7th Cir. 2004) (holding “intensive drug rehabilitation halfway house” was an “other
correctional facility” under the PLRA).
52. See Michau v. Charleston County, S.C., 434 F.3d 725, 727–28 (4th Cir. 2006) (person civilly
detained pursuant to sexually violent predator statute); Perkins v. Hedricks, 340 F.3d 582, 583 (8th
Cir. 2003) (person civilly detained in prison Federal Medical Center); Kolocotronis v. Morgan, 247 F.3d
civilly committed in connection with criminal charges that remain pending continue to be
pretrial detainees, and are therefore prisoners subject to the PLRA.53
Ex-prisoners, including parolees,54 who file complaints or notices of appeal after they are
released are not considered prisoners under the PLRA and are not bound by the PLRA filing
fees provisions. 55 If indigent, they can proceed without any prepayment or installment
payment of fees, like any other poor person. However, courts have disagreed about prisoners
released after filing a complaint or notice. Some courts (including the Second Circuit) say the
obligation to pay ends on the prisoner’s release.56 Others say a released prisoner must pay
any fees that were due before release.57 One court has said that a released prisoner must pay
the full filing fee regardless of release, but does not explain how payments should be
assessed against a released prisoner.58
C. The “Three Strikes” Provision
Filing fees are also addressed by the “three strikes” provision, one of the most harsh
parts of the PLRA, which provides:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section [in forma pauperis] if
the prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical
injury.59
This provision means that if you have had three complaints or appeals dismissed as
frivolous, malicious, or failing to state a claim, you cannot proceed in forma pauperis (“IFP”)
726, 728 (8th Cir. 2001) (holding person committed after finding of not guilty by reason of insanity is
not a “prisoner” under the PLRA); LaFontant v. INS, 135 F.3d 158, 165 (D.C. Cir. 1998) (finding
immigration detainees not “prisoners” subject to fee provisions of PLRA); Ojo v. INS, 106 F.3d 680, 683
(5th Cir. 1997) (same); West v. Macht, 986 F. Supp. 1141, 1143 (W.D. Wis. 1997) (same).
53. Kalinowski v. Bond, 358 F.3d 978, 979 (7th Cir. 2004) (holding that persons committed under
the Illinois Sexually Dangerous Persons Act are prisoners); Gibson v. Commissioner of Mental Health,
No. 04 Civ. 4350 (SAS), 2006 U.S. Dist. LEXIS 27428, at *10–11 (S.D.N.Y. May 8, 2006) (unpublished)
(holding person held civilly as incompetent to stand trial was a prisoner).
54. As pointed out above, persons who are paroled to institutions they are not free to leave may
remain prisoners under the PLRA. However, the ordinary restrictions of parole do not make the parolee
a prisoner. See Bisgeier v. Michael [sic] Dep’t of Corr., No. 07-13625, 2008 U.S. Dist. LEXIS 5460, at *4
(E.D. Mich. Jan. 25, 2008) (unpublished) (“While there may be certain conditions imposed upon
Plaintiff as a parolee, there can be no doubt that he is neither ‘confined,’ ‘incarcerated,’ nor ‘detained in’
any jail, prison, or other correctional facility.”); Hoffman v. Tuten, 446 F. Supp. 2d 455, 468 (D.S.C.
2006); Keel v. CDCR, No. 1:05-CV-01298-AWI-LJO, 2006 U.S. Dist. LEXIS 58954, at *2 (E.D. Cal. Aug.
18, 2006) (unpublished) (holding parolee was not a prisoner).
55. Robbins v. Switzer, 104 F.3d 895, 897 (7th Cir. 1997); Whitney v. New Mexico, 113 F.3d 1170,
1171 n.1 (10th Cir. 1997).
56. See, e.g., DeBlasio v. Gilmore, 315 F.3d 396, 398–99 (4th Cir. 2003) (citing cases) (holding
released prisoner need not pay fees due before release because “[a] released prisoner should not have to
shoulder a more difficult financial burden than the average indigent plaintiff in order to continue his
lawsuit”); McGann v. Comm’r, Soc. Sec. Admin., 96 F.3d 28, 29–30 (2d Cir. 1996)
57. See, e.g., In re Smith, 114 F.3d 1247, 1251–52 (D.C. Cir. 1997); Robbins v. Switzer, 104 F.3d
895, 898–99 (7th Cir. 1997).
58. See Gay v. Tex. Dep’t of Corr. State Jail Div., 117 F.3d 240, 242 (5th Cir. 1997).
59. 28 U.S.C. § 1915(g) (2000). As with the filing fees provisions discussed in the previous
Section, this provision does not apply to a person who is not a prisoner when he or she files suit. See
Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001) (holding provision does not apply to person
committed after finding of not guilty by reason of insanity).
unless you can show you are in imminent danger of serious injury.60 Thus, you have to pay
the entire filing fee up front, or your case will be dismissed,61 and you will still have to pay
the fee in installments even though you will not get anything for it.62 If you have not paid the
fee, and the court rules that you are subject to the three strikes provision, most courts say
you should have an opportunity to pay in order to avoid dismissal.63 One court, however, has
said that a prisoner who sought IFP status, even though he had already been found to have
three strikes, had committed “a fraud on the federal judiciary,” and so dismissed his appeal.64
That court has also held that a litigant with three strikes can be barred from filing any
further papers in court until all previously incurred fees have been paid.65 However, that rule
cannot be extended to bar in forma pauperis filings by prisoners whose cases satisfy the
“imminent danger of serious physical injury” exception to § 1915(g).66
The three strikes provision makes it that much more important to be sure that in any
complaint you file, the facts that you assert amount to a violation of law. If you file lawsuits
based just on your general feeling that someone has mistreated you, you will probably be
assessed strikes and may not be able to proceed in forma pauperis in the future.
The three strikes provision, like the filing fees provisions, applies to “prisoners,” i.e.,
people who are incarcerated when they file suit. 67 It applies to civil actions or appeals,
categories that generally do not include habeas corpus or other challenges to criminal
convictions or sentences.68 Most courts have held that the three strikes provision does not
60. One court has held that a prisoner with three strikes is barred from intervening in an
already filed civil action. Holloway v. Magness, No. 5:07CV00088 JLH/BD, 2008 WL 2367235, at *9
(E.D. Ark. June 6, 2008) (unpublished). The court does not explain how it gets from the the statutory
language, “bring a civil action or appeal a judgment in a civil action or proceeding,” to intervention,
which is neither “bringing a civil action” nor “appealing a judgment.”
61. See Jones v. Federal Bureau of Prisons, No. 5:07cv158, 2008 U.S. Dist. LEXIS 47775, at *3
(E.D. Tex. June 19, 2008) (unpublished) (rejecting request for a “payment plan,” since that would
amount to proceeding in forma pauperis). One decision does state that district courts have the
discretion to allow a litigant with three strikes to pay fees over time. Dudley v. United States, 61 Fed.
Cl. 685, 688, 2004 U.S. Claims LEXIS 221, at *10–11 (Fed. Cl. Aug. 12, 2004) (unpublished). In
addition, a timely notice of appeal confers appellate jurisdiction even if the filing fee is not tendered on
time. Daly v. United States, No. 03-1445, 109 F. App’x 210, 212, 2004 U.S. App. LEXIS 15794, at *4
(10th Cir. July 30, 2004) (unpublished) and cases cited. That may mean that if you do not have the
filing fee within the 30 days during which a notice of appeal must be filed, you will have some
additional time to pay the filing fee. This question has not to our knowledge been explored.
62. Jerelds v. Smith, No. 1:07-cv-00111-MP-AK, 2008 U.S. Dist. LEXIS 21562, at *1 (N.D. Fla.
Mar. 6, 2008) (unpublished) (plaintiff whose suit was dismissed for three strikes could not get a refund
of his partial fee payment, “since by filing an action he agreed to a full payment of the filing fees”).
63. See Smith v. District of Columbia, 182 F.3d 25, 29–30 (D.C. Cir. 1999) (person barred from
filing as a poor person has 14 days to pay filing fee so his suit may proceed); Craig v. Cory, No. 98-1128,
1998 U.S. App. LEXIS 26602, at *4, 1998 Colo. J. C.A.R. 5453, 5453 (10th Cir. Oct. 20, 1998)
(unpublished) (holding PLRA does not bar prisoner with three strikes from suing, provided he pays
filing fee). But see Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (holding suit must be
dismissed without prejudice and refiled, since statute says fee must be paid when suit begins).
64. Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999) (“Litigants to whom [the three strikes
provision] applies take heed! An effort to bamboozle the court by seeking permission to proceed in
forma pauperis after a federal judge has held that § 1915(g) applies to a particular litigant will lead to
immediate termination of the suit. Moreover, the fee remains due ... .”).
65. Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999).
66. Miller v. Donald, 541 F.3d 1091, 1098–99 (11th Cir. 2008). Subsection C(1)(a) below discusses
that exception.
67. Jackson v. Johnson, 475 F.3d 261, 266–67 (5th Cir. 2007) (noting that persons released on
parole into the general public are not “prisoners” under the PLRA, but holding that a person confined to
a halfway house remained a prisoner subject to the three strikes provision).
68. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 779 (10th Cir. 1999)
(finding habeas corpus petitions are not “civil actions” for purposes of 28 U.S.C. § 1915); In re
apply retroactively to prohibit or revoke in forma pauperis status for complaints filed (or
appeals begun) before the provision went into effect.69
Rule 60(b) of the Federal Rules of Civil Procedure can be used to remove a strike,
although courts are unlikely to do so except in very unusual circumstances.70
The three strikes provision of the PLRA governs proceedings in federal court, and
presumably has no application in state court,71 so an indigent prisoner with three strikes
may prefer to file in state court if the state law in forma pauperis provisions permit.
However, some federal courts have suggested that it is inappropriate, or even sanctionable,
for prisoners to do so in cases which defendants then remove to federal court.72 This view
seems wrong. Section 1915(g) applies only to persons with three strikes who “bring” an action
under the federal in forma pauperis statute; if Congress had wished to forbid state court
filings by such persons, it could have said so (though there would be questions about its
power to do so), and if it did not wish for such cases to be removed to federal court, it could
have amended the removal statute to say that. Prisoner plaintiffs should hardly be penalized
for the actions of defendants, or for reading statutes they way they are written, especially in
view of the Supreme Court’s warning that courts should not expand the PLRA’s
requirements according to their policy views.73
1. What is a Strike?
The PLRA is very specific about what dismissals count as strikes: dismissals for
frivolousness, maliciousness, or failure to state a claim. Failure to state a claim means even
if all facts in your complaint are true, they still could not possibly establish a violation of law
the court could remedy.74 A legally frivolous suit is one failing to raise an “arguable question
of law,” 75 one based on an “indisputably meritless legal theory,” 76 or one in which the
complaint itself makes clear the case is barred by a defense, like the statute of limitations or
Crittendom, 143 F.3d 919, 920 (5th Cir. 1998) (deciding the character of a writ of mandamus depends
on the underlying suit; here, because it was a civil action, the three strikes rule required prisoner to
pay filing fee first); Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997) (holding § 1915(g) does not
apply to habeas petitions). See also Part B of this Chapter for the definition of civil actions.
69. Gibbs v. Ryan, 160 F.3d 160, 162–64 (3d Cir. 1998); Chandler v. D.C. Dep’t of Corr., 145 F.3d
1355, 1358 (D.C. Cir. 1998); Canell v. Lightner, 143 F.3d 1210, 1212–13 (9th Cir. 1998).
70. See Dalvin v. Beshears, 943 F. Supp. 578, 579 n.3 (D. Md. 1996) (holding plaintiff’s suit to
obtain a standing order of the court was not frivolous for PLRA purposes because it was the only way
he could get it). Prisoners who have been charged with a strike for failure to exhaust administrative
remedies may wish to pursue this remedy in light of the Supreme Court’s decision that failure to
exhaust is not a failure to state a claim. See Jones v. Bock, 549 U.S. 199, 213–15, 127 S. Ct. 910, 920–
21, 166 L. Ed. 2d 798, 812–13 (2007). For more information on exhaustion, see Part E of this Chapter.
71. See Lakes v. State, 333 S.C. 382, 387, 510 S.E.2d 228, 231 (S.C. Ct. App. 1998) (holding
prisoner could proceed IFP, since South Carolina has no analogy to PLRA’s three strikes provision).
72. Crooker v. Burns, 544 F. Supp. 2d 59, 62 (D. Mass. Apr. 10, 2008) (citing prior unpublished
opinion).
73. Jones v. Bock, 549 U.S. 199, 212–13, 220–24, 127 S. Ct. 910, 919–20, 924–26, 66 L. Ed. 2d
798, 810–12, 816–18 (2007); see Miller v. Donald, 541 F.3d 1091, 1099 (11th Cir. 2008) (applying Jones
prohibition on judicial supplementation of PLRA to three strikes provision).
74. Jones v. Bock, 549 U.S. 199, 212–13, 127 S. Ct. 910, 920–21, 66 L. Ed. 2d 798, 812–13 (2007);
Conley v. Gibson, 355 U.S. 41, 45–46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80, 84 (1957) (holding a case should
not be dismissed for failure to state a claim unless it is “beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief”).
75. Neitzke v. Williams, 490 U.S. 319, 328, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338, 349 (1989).
76. Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338, 348 (1989);
Sun v. Forrester, 939 F.2d 924, 925–26 (11th Cir. 1991) (“This circuit has defined a frivolous appeal
under § 1915(d) as being one ‘without arguable merit.’”) (citation omitted).
immunity.77 A factually frivolous suit is one alleging “fantastic or delusional scenarios.”78 A
malicious suit is one filed for an improper purpose or amounting to abuse of the legal
system.79
A case dismissed on grounds other than frivolousness, maliciousness, or failure to state a
claim is not a strike.80 Dismissal for suing an immune defendant is not a strike, since that
reason does not appear in § 1915(g), even though it appears in other PLRA sections
pertaining to in forma pauperis proceedings. 81 Dismissals are not strikes if they are on
grounds such as lack of prosecution,82 lack of jurisdiction,83 or expiration of the statute of
limitations.84
A grant of summary judgment—which is based on the absence of material issues of fact—
on part or all of a case is generally not a strike.85 One reason this is particularly important is
77. Neitzke v. Williams, 490 U.S. 319, 327–28, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338, 348–49
(1989); Street v. Vose, 936 F.2d 38, 39 (1st Cir. 1991) (holding dismissal of claim on grounds of
frivolousness where statute of limitations had expired to be appropriate).
78. Neitzke v. Williams, 490 U.S. 319, 328, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338, 348 (1989).
79. See Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993) (citing repetitive litigation as
malicious); Spencer v. Rhodes, 656 F. Supp. 458, 464 (E.D.N.C. 1987) (holding that case filed out of
desire for vengeance and not to remedy a violation of legal rights was malicious), aff’d, 826 F.2d 1061
(4th Cir. 1987).
80. See Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007) (refusing to treat an appeal dismissed as
premature as a strike, stating the PLRA “was designed to stem the tide of egregiously meritless
lawsuits, not those temporarily infected with remediable procedural or jurisdictional flaws”); Andrews
v. King, 398 F.3d 1113, 1120 (9th Cir. 2005); Fortson v. Kern, No. 05-CV-73223-DT2005, 2005 U.S.
Dist. LEXIS 38466, at *4–5 (E.D. Mich. Dec. 19, 2005) (unpublished) (holding dismissal for failure to
pay initial filing fee is not a strike); Maree-Bey v. Williams, No. 04-1759 (RCL), 2005 U.S. Dist. LEXIS
35722, at *7 (D.D.C. Aug. 1, 2005) (unpublished) (holding dismissal under Rule 8 of the Federal Rules
of Civil Procedure is not a strike).
81. Searcy v. Federal Bureau of Prisons, No. 6:07-cv-3146-GRA2007, U.S. Dist. LEXIS 90367, at
*12 (D.S.C. Dec. 6, 2007) (unpublished).
82. Butler v. Department of Justice, 492 F.3d 440, 443–45 (D.C. Cir. 2007) (holding dismissal for
lack of prosecution is not a strike); Harden v. Harden, No. 8:07CV68, 2007 U.S. Dist. LEXIS 56922, at
*3 (D. Neb. Aug. 3, 2007) (unpublished) (dismissals for lack of jurisdiction or failure to prosecute are
not strikes); Green v. Dewitt, No. 8:06-0626-MBS, 2006 U.S. Dist. LEXIS 26882, at *3 (D.S.C. Apr. 20,
2006) (unpublished) (declining to treat dismissal for failure to prosecute as a strike). A recent decision
holding that “[a] history of failure to prosecute is akin to the filing of a frivolous claim” and is a strike,
Gill v. Pidlypchak, No. 9:02-cv-1460 (FJS/RFT), 2006 WL 3751340, at *4 n.7 (N.D.N.Y. Dec. 19, 2006)
(unpublished), appears to be wrong, since the statute does not refer to claims that are “akin” to
frivolous claims.
83. Thompson v. Drug Enforcement Admin., 492 F.3d 428, 437 (D.C. Cir. 2007); Daniels v.
Woodford, No. CV 07-6975 PA(JC), 2008 WL 2079010, at *6, 8 (C.D. Cal. May 13, 2008) (unpublished);
Ray v. Seventh Ave. Co., No. 07-C-331-C, 2007 U.S. Dist. LEXIS 51096, at *4–5 (W.D. Wis. July 11,
2007) (unpublished); Harden v. Harden, No. 8:07CV68, 2007 U.S. Dist. LEXIS 56922, at *3 (D. Neb.
Aug. 3, 2007) (unpublished).
84. Myles v. U.S., 416 F.3d 551, 553 (7th Cir. 2005) (noting that dismissal based on limitations is
not a strike since it is based on an affirmative defense); Daniels v. Woodford, No. CV 07-6975 PA(JC),
2008 WL 2079010, at *6, 8 (C.D. Cal. May 13, 2008) (unpublished).
85. See Stallings v. Kempker, No. 04-1585, 109 F. App’x 832, 2004 U.S. App. LEXIS 1931, at *1
(8th Cir. 2004) (unpublished); Chavis v. Curlee, No. 9:06-CV-0049 (LEK/GHL), 2008 WL 508694, at *4
(N.D.N.Y. Feb. 21, 2008) (unpublished); Ramsey v. Goord, No. 05-CV-47A, 2007 WL 1199573, at *2
(W.D.N.Y. Apr. 19, 2007) (unpublished); Chappell v. Pliler, No. CIV S-04-1183 LKK DAD P, 2006 U.S.
Dist. LEXIS 92538, at *9 (E.D. Cal. Dec. 21, 2006) (unpublished) (“The granting of summary judgment
on some claims precludes a determination that the case was dismissed for failure to state a claim on
which relief could be granted.”); Barela v. Variz, 36 F. Supp. 2d 1254, 1259 (S.D. Cal. 1999)
(determining grant of summary judgment in the present case did not count as a strike because court
never reached the merits); Walker v. Kidney Doctor, No. 96 Civ. 7746, 1997 U.S. Dist. LEXIS 17677, at
*5–7 (S.D.N.Y. Nov. 7, 1997) (unpublished) (noting earlier grant of summary judgment against plaintiff
government lawyers often improperly file motions to dismiss claims that raise disputed
factual issues. The court should treat these as summary judgment motions, even though the
government called them motions to dismiss for failure to state a claim.86 If you are in this
situation, it is very important that you call the court’s attention to the fact that there is a
disputed factual issue. That way, even if you lose, you will lose by summary judgment, and
not by a dismissal for failure to state a claim that will be counted as a strike.
Failure to exhaust administrative remedies is not a failure to state a claim unless
apparent on the face of the complaint.87 That means dismissal for non-exhaustion should
generally not be a strike.88 Some courts have held a case dismissed for non-exhaustion is a
strike, because it seeks “relief to which [the plaintiff] is not entitled” and is therefore is
frivolous.89 You can argue that these courts are wrong, because an unexhausted case does not
necessarily fail to raise “an arguable question of law” or rest on an “indisputably meritless
legal theory,” which as discussed above is what “frivolous” means. Further, one court
interpreting the three strikes provision has said that the PLRA “was designed to stem the
tide of egregiously meritless lawsuits, not those temporarily infected with remediable
procedural or jurisdictional flaws.”90 Certainly, if you had an argument in an earlier case
that what you did should have satisfied the exhaustion requirement, or that no
administrative remedy was really available to you, that case should not be viewed as
frivolous and treated as a strike.
Most courts have held a partial dismissal—that is, an order throwing out some claims or
some defendants, but letting the rest of the case go forward—is not a strike,91 nor is a case
did not count as a strike). But see Davis v. Kakani, No. 06-13704, 2007 WL 2221402, at *2 (E.D. Mich.
July 31, 2007) (unpublished) (holding summary judgment can be a strike if the decision says no claim
was stated).
86. Motions to dismiss for failure to state a claim are distinct from motions for summary
judgment as a matter of law. Compare Fed. R. Civ. P. 12(b)(6) (motion to dismiss) with Fed. R. Civ. P.
56 (summary judgment).
87. Jones v. Bock, 549 U.S. 199, 212–13, 127 S. Ct. 910, 920–21, 166 L. Ed. 2d 798, 812–13
(2007).
88. Before Jones v. Bock, a number of courts had already so held. See Snider v. Melindez, 199
F.3d 108, 111 (2d Cir. 1999) (holding non-exhaustion is not failure to state a claim and is not a strike);
Green v. Young, 454 F.3d 405, 408–09 (4th Cir. 2006) (same); Smith v. Duke, 296 F. Supp. 2d 965, 965–
66 (E.D. Ark. 2003); Henry v. Med. Dep’t at SCI-Dallas, 153 F. Supp. 2d 553, 556 (M.D. Pa. 2001).
One court has held that “[a] claim that fails to allege the requisite exhaustion of remedies is
equivalent to one that fails to state a claim upon which relief may be granted” and so may be counted
as a strike. Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998). But, that holding seems to be wrong,
since Jones v. Bock holds prisoners are not required to allege exhaustion of remedies, and the statute
does not authorize strikes for things a court considers “tantamount” to failing to state a claim anyway.
The statement in Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1213 (10th Cir. 2003), that dismissal
based on lack of exhaustion “may constitute a strike for purposes of 28 U.S.C. § 1915(g)” also seems to
be based on that court’s view that exhaustion must be pleaded in the prisoner’s complaint, which was
rejected in Jones v. Bock.
89. See, e.g., Wallmark v. Johnson, No. 2:03-CV-0060, 2003 U.S. Dist. LEXIS 7088, at *4 (N.D.
Tex. Apr. 28, 2003) (unpublished).
90. Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007).
91. Thompson v. Drug Enforcement Admin., 492 F.3d 428, 432 (D.C. Cir. 2007) (statute does not
apply to actions “containing at least one claim falling within none of the three strike categories”); Tafari
v. Hues, 539 F. Supp. 2d 694, 701–02 (S.D.N.Y. 2008) (extensive discussion and review of case law);
Maree-Bey v. Williams, No. 04-1759 (RCL), 2005 U.S. Dist. LEXIS 35722, at *1 (D.D.C. Feb. 24, 2006)
(unpublished) (“Under the plain language of the statute, the dismissal of a claim in a pending action
cannot possibly trigger the so-called three-strikes bar.”); Barela v. Variz, 36 F. Supp. 2d 1254, 1259
(S.D. Cal. 1999) (“Since the Court in that case reached Plaintiff's claims on the merits as to some of the
defendants, this Court finds it unfair to penalize Plaintiff for including a defendant against whom he
could not state a cause of action.”); Moore v. Doan, No. 98 C 2307, 1998 U.S. Dist. LEXIS 19624, at *14
where some claims are dismissed on grounds specified in Section 1915(g), but other claims
are dismissed on other grounds.92 But, there are some recent decisions to the contrary. The
Seventh Circuit appeals court has held that if any claim is dismissed, the prisoner is charged
a strike.93 We see no basis for this holding, since Congress’s purpose was to cut down on
“egregiously meritless lawsuits,”94and the Seventh Circuit rule would penalize prisoners who
file perfectly meritorious cases but make mistakes such as suing some of the wrong parties or
citing some of the wrong legal theories. Another circuit has held that if part of the case is
dismissed on “three strikes grounds” but the rest of it is dismissed for failure to exhaust, the
prisoner is charged a strike.95
A case that is voluntarily withdrawn is not a strike.96 An action that was never accepted
for filing cannot be a strike.97 Only federal court dismissals count as strikes, since a state
court is not a “court of the United States” under the statute.98 At least one court has charged
the plaintiff a strike in a case filed in state court and removed to federal court by the
defendants. 99 This appears to be wrong, since § 1915(g) applies to those who on three
occasions brought suit or filed an appeal “in a court of the United States” that was dismissed
as frivolous, malicious, or failing to state a claim.
A motion filed in an already filed case is not a strike.100 A dismissal without prejudice is
a strike if it is on the grounds stated in the three strikes provision.101 The courts have not yet
(N.D. Ill. Dec. 10, 1998) (unpublished) (“dismissing a claim or a party from a case is not dismissing an
‘action,’” and does not count as a strike).
92. See Juarez v. Frank, No. 05-C-738-C, 2006 U.S. Dist. LEXIS 571, at *14 (W.D. Wis. Jan. 6,
2006) (unpublished) (where state law claim was dismissed because court declined to exercise
supplemental jurisdiction, case was not a strike); Fortson v. Kern, No. 05-CV-73223-DT2005, 2005 U.S.
Dist. LEXIS 38466, at *5 (E.D. Mich. Dec. 19, 2005) (unpublished) (holding case deemed frivolous as to
one defendant and otherwise dismissed for failure to pay filing fee was not a strike); Barela v. Variz, 36
F. Supp. 2d 1254, 1259 (S.D. Cal. 1999) (holding a case was not a strike where some claims were
dismissed for failure to state a claim and defendants were granted summary judgment in others).
93. George v. Smith, 507 F.3d 605, 607–08 (7th Cir. 2007). That court has also held that in cases
involving multiple plaintiffs, every plaintiff is charged a strike if a claim involving any one of the
plaintiffs is a strike. Boriboune v. Berge, 391 F.3d 852, 855–56 (7th Cir. 2004). The court did not cite
any authority for this holding and did not engage in any substantial statutory analysis, and we think it
is wrong. However, unless the Supreme Court rules otherwise, you are stuck with these rules if you are
litigating in the Seventh Circuit.
94. Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007).
95. Pointer v. Wilkinson, 502 F.3d 369, 376 (6th Cir. 2007).
96. Armentrout v. Tyra, No. 98-3161, 175 F.3d 1023, 1999 U.S. App LEXIS 1769, at *1 (8th Cir.
Feb. 9, 1999) (unpublished); Daniels v. Woodford, No. CV 07-6975 PA(JC), 2008 WL 2079010, at *6, 8
(C.D. Cal. May 13, 2008) (unpublished). However, one court has held that a prisoner who receives a
magistrate judge’s recommendation for dismissal cannot avoid a strike by dismissing voluntarily. See
Johnson v. Edlow, 37 F. Supp. 2d 775, 776–78 (E.D. Va. 1999) (citing prior pattern of seeking voluntary
dismissal after court and defendants have expended substantial resources on the case; dismissing as
malicious); Sumner v. Tucker, 9 F. Supp. 2d 641, 644 (E.D. Va. 1998) (holding that an action may be
dismissed, without prejudice, by the plaintiff without order of the court at any time before service by
the adverse party of an answer or a motion for summary judgment).
97. Wilson v. Yaklich, 148 F.3d 596, 603 (6th Cir. 1998) (finding cases never filed do not count as
strikes).
98. Elliott v. Beard, 2006 WL 4404771, at *3 (W.D. Pa. Sept. 27, 2006) (unpublished) (holding
state courts are not “courts of the United States” within the statute); Freeman v. Lee, 30 F. Supp. 2d
52, 54 (D.D.C. 1998) (holding actions dismissed from state and local courts do not count for purposes of
strikes).
99. See Olmsted v. Sherman, No. 08-cv-439-bbc, 2008 U.S. Dist. LEXIS 61368, at *1 (W.D. Wis.
100. Belton v. U.S., No. 07-C-925, 2008 U.S. Dist. LEXIS 68964, at *34 (E.D. Wis. June 2, 2008)
(unpublished) (motion under Rule 60(b) is not a strike; statute “does not apply to motions, only ‘actions’
or ‘appeals’”).
determined whether the prisoner is given a second strike if the case is re-filed (for example,
with an amended complaint designed to correct the problems that led to dismissal) and is
then dismissed again.102
A dismissal is not a strike if it is impossible to tell what the cause for dismissal was.103
Some decisions have held that prisoners should not be given a strike based on law that was
unclear or that changed after they filed.104 Dismissals may be strikes even if they were not in
forma pauperis cases.105 Cases filed or dismissed before the PLRA was enacted have been
counted as strikes.106
A dismissal in a habeas corpus action is not a strike. 107 Courts have disagreed over
whether actions dismissed because they were mistakenly filed under 42 U.S.C. § 1983, but
should have been filed as habeas petitions, count as strikes.108 Similarly, a case that should
have been filed under Section 1983 but was filed as a habeas petition to avoid the three
strikes provision may be counted as a strike. 109 In the past, courts have sometimes just
treated habeas petitions that should have been filed under Section 1983 as Section 1983
cases and gone forward with them, 110 but one court has cautioned this should not
automatically be done under the PLRA; since prisoners could end up being charged a strike,
101. Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (per curiam) (“Moreover, a dismissal
without prejudice counts as a strike, so long as the dismissal is made because the action is frivolous,
malicious, or fails to state a claim.”).
102. Day v. Maynard, 200 F.3d 665, 667 n.1 (10th Cir. 1999) (per curiam).
103. See Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005); Freeman v. Lee, 30 F. Supp. 2d
52, 54 (D.D.C. 1998) (finding no strike when order dismissing prisoner’s action did not recite ground on
which it was based, because “[the court] is unaware of any principle that would permit [it] to presume
that the dismissal was on one of the grounds referenced in § 1915(g)”).
104. See Clemente v. Allen, 120 F.3d 703, 705 n.1 (7th Cir. 1997) (holding appeal was not a strike
in the absence of published law on the question before the court ruled); Hairston v. Falano, No. 99-C-
2750, 1999 U.S. Dist. LEXIS 9027, at *3 (N.D. Ill. May 28, 1999) (unpublished) (holding dismissal was
not a strike where plaintiff’s claim, valid when filed, was dismissed based on the later decision in
Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995)).
105. Duvall v. Miller, 122 F.3d 489, 490 (7th Cir. 1997) (holding dismissals that were not brought
in forma pauperis still count for strikes).
106. Welch v. Galie, 207 F.3d 130, 131 (2d Cir. 2000); Rivera v. Allin, 144 F.3d 719, 729–31 (11th
Cir. 1998); Wilson v. Yaklich, 148 F.3d 596, 603–04 (6th Cir. 1998); Keener v. Pa. Bd. of Prob. & Parole,
128 F.3d 143, 144 (3d Cir. 1997); Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997); Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (holding strikes provision can apply retroactively); Green
v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th
Cir. 1996); cf. Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994)
(establishing constitutional standard for retroactive application of laws).
107. Andrews v. King, 398 F.3d 1113, 1122–23 & n.12 (9th Cir. 2005) and cases cited.
108. See Bure v. Miami-Dade Police Dept., No. 08-20483-CV-UNGARO, 2008 WL 2374149, at *3
(S.D. Fla. June 6, 2008) (unpublished) (mistakenly filed § 1983 is a strike); Grant v. Sotelo, No. 2:98-
CV-0347, 1998 U.S. Dist. LEXIS 16798, at *3–5 (N.D. Tex. Oct. 17, 1998) (unpublished) (holding § 1983
case that should have been filed under habeas corpus is frivolous; citing cases); Rogers v. Wis. Dep’t of
Corr., No. 04-C-980, 2005 U.S. Dist. LEXIS 1864, at *6 (W.D. Wis. Feb. 3, 2005) (unpublished) (holding
that dismissal of a § 1983 action that should have been filed as a habeas petition is not a strike because
“dismissal ... for failure to use the proper avenue for relief” is not a ground listed in the statute.). See
also Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 464 (5th Cir. 1998) (holding that § 1983 actions that
should have been filed as habeas petitions but would have been frivolous as such were strikes).
109. Andrews v. King, 398 F.3d 1113, 1123 n.12 (9th Cir. 2005).
110. See Carson v. Johnson, 112 F.3d 818, 819 (5th Cir. 1997) (construing habeas corpus petition
as a § 1983 case).
they ought to have a chance to think it over before proceeding.111 In a class action, only
named plaintiffs are subject to the three strikes provision.112
One court has held that a dismissal counts as a strike even if the case was filed by an ex-
prisoner after release, if the plaintiff later returns to prison.113 However, this holding would
seem contrary to the statutory language, which refers to prior actions brought “while
incarcerated or detained.”114
Appeals count as separate strikes under Section 1915(g) only if they are “dismissed ...
[as] frivolous, malicious, or fail[ing] to state a claim upon which relief may be granted.”115 If
the appeals court merely affirms a district court decision that was dismissed for one of the
reasons stated in Section 1915(g), the appeal is not a separate strike.116 An appeal that is
dismissed on grounds other than those stated in Section 1915(g) cannot be a separate strike
even if the district court decision counts as a strike.117
Some courts have held that “[a] dismissal should not count against a petitioner until he
has exhausted or waived his appeals.”118 Thus, if you receive a third strike in a district court
decision, you should still be able to appeal that decision in forma pauperis without being
111. Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999) (dismissing habeas corpus actions and
indicating plaintiffs may re-file complaints as civil rights claims).
112. Meisberger v. Donahue, 245 F.R.D. 627, 630 (S.D. Ind. 2007).
113. See Robbins v. Switzer, 104 F.3d 895, 897 (7th Cir. 1997) (holding dismissal would count as
strike if released petitioner ever returns to prison).
114. 28 U.S.C. § 1915(g) (2000). See Arvie v. Lastrapes, 106 F.3d 1230, 1232 (5th Cir. 1997) (per
curiam) (remanding to determine whether the plaintiff was a prisoner when he filed his previous
actions).
115. 28 U.S.C. § 1915(g) (2000). See Newlin v. Helman, 123 F.3d 429, 433 (7th Cir. 1997) (holding
that frivolous appeal of a dismissed claim counts as a second strike). Compare with Andrews v. King,
398 F.3d 1113, 1120–21 (9th Cir. 2005) (holding that an appeal dismissed for lack of jurisdiction is not
a strike).
116. Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999)
(“Under the plain language of the statute, only a dismissal may count as strike, not the affirmance of
an earlier decision to dismiss.”); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (“It is
straightforward that affirmance of a district court dismissal as frivolous counts as a single ‘strike.’”);
Barela v. Variz, 36 F. Supp. 2d 1254, 1258 (S.D. Cal. 1999) (“Insofar as an affirmance is not concerned
with the merits of the appeal but is rather a finding of no error at the district court level, it should not
count as a strike.”); Freeman v. Lee, 30 F. Supp. 2d 52, 54 n.3 (D.D.C. 1998) (holding that a circuit
court’s affirmation of a § 1915(g) dismissal does not count as second strike); see also Henderson v.
Norris, 129 F.3d 481, 485 n.4 (8th Cir. 1997) (recognizing that appeals of claims found to be frivolous
are not automatically also frivolous).
Courts are not always careful in dealing with this issue. See Montanez v. DeTella, No. 97-3698,
1999 U.S. App. LEXIS 628, at *6 (7th Cir. Jan. 14, 1999) (unpublished) (stating affirmance of appeal
from dismissal is itself a second strike, without discussing contrary authority); Rice v. Christopher, No.
98-1295, 1999 U.S. App. LEXIS 2040, at *5–6 (10th Cir. Feb. 9, 1999) (unpublished) (“Because a
complaint dismissed under § 1915(e)(2)(B)(i) and affirmed on appeal counts as two prior occasions for
purposes of § 1915(g), two ‘strikes’ are recorded against Mr. Rice.”). If you get a decision like this, be
sure to ask the court to reconsider charging you with the second strike.
117. Tafari v. Hues, 473 F.3d 440, 442–44 (2d Cir. 2007) (holding an appeal dismissed as
premature was not a strike); Cosby v. Knowles, No. 97-1400, 145 F.3d 1345, 1998 U.S. App. LEXIS
7845, at *4–5 (10th Cir. Apr. 23, 1998) (unpublished) (noting that dismissal based on denial of in forma
pauperis status, not the merits, is not a strike even though merits were frivolous).
118. Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996); accord Thompson v. Drug
Enforcement Admin., 492 F.3d 428, 432 (D.C. Cir. 2007) (“A contrary rule would, within those narrow
set of cases in which the third strike is appealed, effectively eliminate our appellate function. Had
Congress intended such an unusual result, we expect it would have clearly said so.”); Campbell v.
Davenport Police Dep’t, 471 F.3d 952, 953 (8th Cir. 2006). Once the time for appeal has passed, filing a
late notice of appeal will not keep the dismissal from being a strike. Smith v. District of Columbia, 182
F.3d 25, 27–28 (D.C. Cir. 1999).
barred by the three strikes provision.119 The Seventh Circuit Court of Appeals, however, has
made matters more complicated, holding that a prisoner cannot directly appeal a decision
that counts as a third strike. Instead, the prisoner must apply to the appeals court for in
forma pauperis status. The appeals court will then decide whether the lower court was
correct in issuing the third strike to the prisoner, or whether the lower court was incorrect
and should not have issued the third strike. In other words, the appeals court will decide the
merits of the appeal in the course of determining whether the prisoner can proceed IFP.120 If
an appeals court finds that your claim was not frivolous, the strike will be eliminated.121
The defendants bear the burden of producing sufficient evidence to show that a prisoner
has three strikes; if they do, the burden shifts to the prisoner to show that is not the case.122
Defendants do not meet their burden just by showing dismissals; they must show the reasons
for the dismissals.123 A court must, when applying the three strikes provision, clearly identify
each case on which it relied.124
The three strikes provision cannot be applied to revoke in forma pauperis status in a case
filed before the plaintiff had three strikes, since the statute is a limit on prisoners’ ability to
“bring” suit, not on their ability to maintain suits previously brought.125 (A case is “brought”
for these purposes when the plaintiff submits the complaint to the court, even if there is a
significant time lag caused by the in forma pauperis and merits screening before it is filed.)126
Nor does it prevent a plaintiff from filing an amended complaint in a suit filed before he had
three strikes.127 One federal court has held when multiple plaintiffs join in one lawsuit, each
plaintiff’s claims must be treated as a separate “action,” and each plaintiff must be charged a
strike for every plaintiff whose “action” is dismissed in its entirety.128 This decision appears
119. Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999);
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).
120. Robinson v. Powell, 297 F.3d 540, 541 (7th Cir. 2002); see Boriboune v. Berge, No. 04-C-
0015C, 2005 WL 1378930, at *1 (W.D. Wis. June 9, 2005) (unpublished) (instructing plaintiff in how to
use the prescribed procedure).
121. Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999)
(concluding that “[i]f we reverse a district court dismissal under 28 U.S.C. § 1915(e)(2)(B), the district
court dismissal does not count as a strike”); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996)
(“[W]e find it plain that reversal of a dismissal as frivolous nullifies the ‘strike.’”).
122. Andrews v. King, 398 F.3d 1113, 1116, 1120 (9th Cir. 2005); accord Thompson v. Drug
Enforcement Admin., 492 F.3d 428, 435-36 (D.C. Cir. 2007); Green v. Morse, No. 00-CV-6533-CJS, 2006
U.S. Dist. LEXIS 52085, at *7–9 (W.D.N.Y. May 26, 2006) (unpublished). In practice, courts often raise
three strikes on their own at initial screening.
123. Andrews v. King, 398 F.3d 1113, 1120; see Thompson v. Drug Enforcement Admin., 492
F.3d 428, 436; Green v. Morse, No. 00-CV-6533-CJS, 2006 U.S. Dist. LEXIS 52085, at *12 (W.D.N.Y.
Oct. 11, 2006) (unpublished) (both applying Andrews holding, finding docket entries sufficient to
establish strikes).
124. See Evans v. Ill. Dep’t of Corr., 150 F.3d 810, 812 (7th Cir. 1998) (“[I]n the order denying
leave to proceed in forma pauperis the district court must cite specifically the case names, case docket
numbers, districts in which the actions were filed, and the dates of the orders dismissing the actions.”);
Jennings v. Dist. Ct. for Seventh Judicial Dist., No. 98-8068, 172 F.3d 879, 1999 U.S. App. LEXIS 2386,
at *2–3 (10th Cir. Feb. 16, 1999) (unpublished) (remanding because district court did not specify which
prior actions or appeals were frivolous).
125. Nicholas v. American Detective Agency, No. 07-2018, 254 F. App’x 116, 2007 U.S. App.
LEXIS 26185, at *1–3 (3d Cir. Nov. 9, 2007) (unpublished); Cruz v. Marcial, No. 3:01cv406, 2002 U.S.
Dist. LEXIS 7307 (D. Conn. Apr. 18, 2002) (unpublished). Contra Nichols v. Rich, No. 2:01-CV-0369,
2004 U.S. Dist. LEXIS 5766, at *2 (N.D. Tex. Apr. 7, 2004) (unpublished) (citing goals of the statute but
not addressing its actual language).
126. O'Neal v. Price, 531 F.3d 1146, 1151–52 (9th Cir. 2008).
127. Elkins v. Schrubbe, No. 04-C-85, 2005 WL 1154273, at *1 (E.D. Wis. Apr. 20, 2005)
(unpublished).
128. Boriboune v. Berge, No. 04-C-0015-C, 2005 WL 1320345, at *4–8 (W.D. Wis. June 1, 2005)
(unpublished) (declaring that several plaintiffs received three strikes from this single multi-plaintiff
contrary to the statute, which seems intended to hold prisoners responsible for their own
legal claims, but not for those of other persons.129
(a) The “Imminent Danger of Serious Physical Injury” Exception
The three strikes provision does not bar a prisoner from proceeding in forma pauperis if
he is in “imminent danger of serious physical injury.”130 The existence of such a danger is
assessed as of the time of filing suit or when the prisoner makes an in forma pauperis
application in the district court or on appeal.131
Any credible allegation of imminent danger of serious physical injury meets the statutory
requirement,132 but many allegations have been dismissed as incredible or insubstantial.133 If
lawsuit). The court does not claim to find the basis for its holding in the statutory language; rather, it
says it is interpreting a Seventh Circuit opinion remanding the case, and expresses hope that the court
of appeals will clarify the matter. That has not happened.
129. See Swenson v. McDonald, No. CV 05-93-GF-CSO, 2006 WL 240233, at *3–4 (D. Mont. Jan.
30, 2006) (unpublished) (criticizing logic of Boriboune). Swenson points out that Boriboune’s imposition
of strikes based on the separate claims of individual plaintiffs contradicts the statute’s reference to
“action[s]” rather than claims; that its view that each prisoner litigant is responsible under Rule 11 for
statements other plaintiffs make is inconsistent with the lack of authority of pro se litigants to make
representations for anyone other than themselves and with pro se prisoners’ limited ability to
investigate the merits of others’ claims; and that the practical difficulties of multi-plaintiff prisoner
litigation does not lend itself to assuming one litigants’ responsibility for all actions and decisions in
such litigation.
130. 28 U.S.C. § 1915(g) (2000). See Miller v. Donald, 541 F.3d 1091, 1098–99 (11th Cir. 2008)
(rejecting district court practice of barring prisoners with three strikes from filing under “imminent
danger of serious physical injury” exception if they have not paid filing fees owed from previous cases)
131. Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (rejecting argument that time-of-filing
rule denies court access to those who cannot get their claims in during the time they are in danger);
Ibrahim v. District of Columbia, 463 F.3d 3, 6–7 (D.C. Cir. 2006); Heimermann v. Litscher, 337 F.3d
781, 782 (7th Cir. 2003); Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003); Malik v. McGinnis, 293
F.3d 559, 562–63 (2d Cir. 2002); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312–16 (3d Cir. 2001) (en
banc); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (all holding danger must exist at the time
of filing the complaint); see also Medberry v. Butler, 185 F.3d 1189, 1192–93 (11th Cir. 1999) (rejecting
idea that imminent danger is measured at time of incident, but not deciding whether time of filing or
IFP motion is appropriate rule); Banos v. O’Guin, 144 F.3d 883, 884–85 (5th Cir. 1998) (per curiam)
(holding danger must exist at time of filing or time of IFP motion).
Some courts have gone so far as to say that a danger that arose after the case was filed, and was
ongoing, did not fit the exception. Trice v. Vazquez, No. CIVA CV206-185, 2006 WL 3191175, at *2
(S.D. Ga. Nov. 1, 2006) (unpublished); see Peterson v. Perdue, No. CV 108-097, 2008 U.S. Dist. LEXIS
74948, at *1 n.1, *3 (S.D. Ga. Aug. 21, 2008) (unpublished) (magistrate judge held alleged threat of
sexual assault did not meet standard because plaintiff had not been assaulted or injured; district judge
held subsequent sexual assault did not meet standard because it occurred after filing).
132. See Ciarpiaglini v. Saini, 352 F.3d 328, 330–31 (7th Cir. 2003) (holding allegations of panic
attacks leading to heart palpitations, chest pains, labored breathing, choking sensations, and paralysis
meet the imminent danger standard; disapproving extensive inquiry into seriousness of allegations at
pleading stage); White v. Colorado, 157 F.3d 1226, 1232 (10th Cir. 1998) (rejecting claim because
plaintiff failed to raise a credible allegation of imminent danger of serious physical harm); see also
Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007) (“the three-strikes rule is a screening device
that does not judge the merits of prisoners’ lawsuits”); Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.
2002) (stating that the exception applies “[w]hen a threat or prison condition is real and proximate, and
when the potential consequence is ‘serious physical injury’”).
133. See, e.g., Merriweather v. Reynolds, No. 2:07-3418-PMD-RSC, 2008 U.S. Dist. LEXIS 38175,
at *9 (D.S.C. May 11, 2008) (unpublished) (rejecting allegations of threats, enemies, danger from prison
gangs, etc.; “unsupported, vague, self-serving, conclusory speculation” does not establish imminent
danger); Robinson v. Mawer, No. 1:08-cv-353, 2008 U.S. Dist. LEXIS 36126, at *4–6 (W.D. Mich. May 2,
2008) (unpublished) (holding claim that prisoner’s hand was broken and he couldn’t defend himself
against assault did not allege imminent danger because there was no showing that he would
serious allegations are disputed, the court may hold a hearing or rely on affidavits and
depositions to resolve the question.134 Some courts, however, seem just to have made ad hoc
judgments about the credibility of the prisoner’s claim based on no more than the pro se
complaint’s allegations, sometimes supplemented by the prisoner’s response to an order to
show cause or objections to a magistrate judge’s report. 135 Some courts have rejected
seemingly substantial allegations of threat of injury, 136 or have conflated the imminent
danger inquiry with the merits of the prisoner’s legal claim.137
To meet the “serious physical injury” requirement, the threatened injury need not be as
serious as to be an Eighth Amendment violation in and of itself.138 The risk of future injury is
sufficient to invoke the imminent danger exception.139 The “imminent danger” requirement
has been held to be satisfied by allegations that prison staff refused protective custody to a
prisoner targeted by gangs;140 disclosed a prisoner’s history as an informant, resulting in
threats and assaults;141 or repeatedly placed a prisoner near known enemies.142 Courts have
also found imminent danger where the plaintiff was denied treatment for an ongoing serious
imminently be assaulted); Althouse v. Roe, 542 F. Supp. 2d 543, 546 (E.D. Tex. 2008) (holding claim
that attention deficit hyperactivity disorder might lead the plaintiff impulsively to put himself in
danger was too speculative to show imminent danger); Burghart v. Corr. Corp. of Am., No. CIV-08-62-
C, 2008 U.S. Dist. LEXIS 16732, at *2–3 (W.D. Okla. Mar. 4, 2008) (unpublished) (complaints of
migraine headaches, fatigue, depression, weight gain and sleeping disorders did not meet standard);
Johnson v. Ala. Dept. Of Corr., No. 2:07-cv-0767-WKW (WO), 2008 U.S. Dist. LEXIS 6669, at *2–3
(M.D. Ala. Jan. 29, 2008) (unpublished) (discontinuance of hormone treatment for gender identity
disorder, allegedly causing “excessive weight gain, complete body fat redistribution, dizzy spells,
fainting spells, headaches, hot-flashes, anxiety, severe depression, more depression than usual, ... [and]
the growth of first time facial hair,” did not meet the imminent danger standard).
134. Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997); see White v. Colorado, 157 F.3d 1226, 1232
(10th Cir. 1998) (refusing to credit allegations of inadequate medical care based on magistrate judge’s
examination of medical records and failure to specify the nature of the imminent injury.
135. See, e.g., Pruden v. Mayer, No. 3:CV-08-0559, 2008 U.S. Dist. LEXIS 26700, at *3–4 (M.D.
Pa. Apr. 2, 2008) (unpublished) (concluding that prisoner’s medical care claims did not pose imminent
danger because they had occurred over a long period of time).
136. See, e.g., Palmer v. N.Y.S. Dep’t of Corr. Greenhaven, No. 06 Civ. 2873, 2007 U.S. Dist.
LEXIS 88909, at *4 (S.D.N.Y. Dec. 4, 2007) (unpublished) (finding frivolous a prisoner’s allegation of
imminent danger in that his toenails were turning black, yellow and green from an infection, and his
fingernails were becoming swollen, and he was going to lose six toenails and a fingernail as a result).
137. See, e.g., Jackson v. Jackson, No. CV508-011, 2008 WL 1924277, at *2 n.2 (S.D. Ga. May 1,
2008) (unpublished) (rejecting claim of possible consequences of untreated hernia where medical
personnel treated prisoner).
138. See Ciarpaglini v. Saini, 352 F.3d 328, 330–31 (7th Cir. 2003) (holding allegations that
termination of psychiatric medication resulted in panic attacks that caused “heart palpitations, chest
pains, labored breathing, choking sensations, and paralysis in his legs and back” met the imminent
danger standard); Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir. 1998) (holding allegation that plaintiff was
subjected to “dust, lint and shower odor” via cell vent, resulting in severe headaches, change in voice,
mucus full of dust and lint, and watery eyes sufficiently alleged imminent danger of serious injury).
139. Gibbs v. Cross, 160 F.3d 962, 966–67 (3rd Cir. 1998) (relying on alleged environmental
hazards in prison); see Ibrahim v. District of Columbia, 463 F.3d 3, 6–7 (D.C. Cir. 2006) (holding that
deterioration from lack of treatment for Hepatitis C sufficiently pled imminent danger of serious
physical injury).
140 . Cain v. Jackson, No. C-07-354, 2007 WL 2787979, at *2 (S.D. Tex. Sept. 24, 2007)
(unpublished) (alleging that plaintiff had been assaulted repeatedly by gang members and denied
protective custody).
141. See Gibbs v. Roman, 116 F.3d 83, 84–86 (3d. Cir. 1997); Malik v. McGinnis, 293 F.3d 559,
562 (2d Cir. 2002).
142. See Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998).
medical problem143 or disability,144 or subjected to environmental conditions that caused or
aggravated such problems.145
If a plaintiff’s allegations meet the statutory standard, the relevant claim should be
allowed to go forward without being restricted to the precise defendants and allegations
currently responsible for the danger. 146 But, a risk not related to the allegations in the
complaint does not fall within the exception.147 A claim of imminent danger does not excuse
the prisoner from the PLRA’s administrative exhaustion requirement.148
One court has held that self-inflicted injury cannot meet the imminent danger standard
because “[e]very prisoner would then avoid the three strikes provision by threatening
suicide.”149 Many prison suicides and attempted suicides result directly from serious mental
illness.150 For this reason, strong arguments can be made that this statement is extreme and
unwarranted, because it would be cruel and dangerous to prevent mentally-ill prisoners from
going to court to seek treatment for their mental illness or seek other help to reduce the
effects of their illness.
(b) Constitutional Challenges to the Three Strikes Provision
143 . See Ibrahim v. District of Columbia, 463 F.3d 3, 6–7 (D.C. Cir. 2006) (holding that
deterioration from lack of treatment for Hepatitis C sufficiently pleaded imminent danger of serious
physical injury); Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) (holding that a prisoner who
alleged that lack of treatment was worsening his illnesses sufficiently pleaded imminent danger of
serious physical injury); McAlphin v. Toney, 281 F.3d 709, 711 (8th Cir. 2002) (prisoner’s complaint
alleging denial of treatment for medical/dental condition posed imminent danger was sufficient to
permit him to proceed in forma pauperis despite the fact that he had three strikes).
144. Fuller v. Wilcox, No. 08-3077, 2008 U.S. App. LEXIS 16581, at *3 (10th Cir. Aug. 4, 2008)
(unpublished) (denial of a wheelchair, meaning that plaintiff must crawl, and could not walk to the
shower or lift himself to his bed, “could result in a number of serious physical injuries”).
145. Gibbs v. Cross, 160 F.3d 962, 966–67 (3d Cir. 1998); Rankins v. Rowland, No. 05-7811, 2006
WL 1836671, at *1 n.1 (4th Cir. June 27, 2006) (unpublished) (holding that an allegation that a poor
ventilation system caused the plaintiff bodily harm and he was denied medical treatment for his
symptoms made a “colorable showing” of imminent danger); Smith v. Ozmint, No.:0:07-3644-PMD-BM,
2008 U.S. Dist. LEXIS 33608, at *10–12 (D.S.C. Apr. 23, 2008) (unpublished) (finding imminent danger
standard met by allegations of use of hazardous Chinese products, 24-hour illumination in cells,
exposure to deranged behavior and unsanitary conditions from mentally ill prisoners in the segregation
unit, deprivation of sunlight, and exposure to mold).
146. See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (“[Q]ualifying prisoners can
file their entire complaint IFP; the exception does not operate on a claim-by-claim basis or apply to only
certain types of relief.”); Ciarpiaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (holding damages claim
could go forward even though injunctive claim on which “imminent danger” allegation was based was
moot); Bond v. Aguinaldo, 228 F. Supp. 2d 918, 919 (N.D. Ill. 2002) (allowing prisoner’s allegations
against defendants responsible for medical care at prisons from which he had been transferred). But see
McAlphin v. Toney, 375 F.3d 753 (8th Cir. 2004) (holding that a complaint that satisfies the imminent
danger exception cannot be amended to include claims that do not involve imminent danger).
147. Fuller v. Johnson County Bd. of County Com’rs, No. 07-3001-SAC, 2007 U.S. Dist. LEXIS
12179, at *2 (D. Kan. Aug. 8, 2007) (unpublished) (complaints about the ventilation system did not
meet the imminent danger standard where the plaintiff’s claim addressed accessibility for the
disabled).
148. McAlphin v. Toney, 375 F.3d 753, 755 (8th Cir. 2004).
149. Wallace v. Cockrell, No. 3:02-CV-1807-M, 2003 U.S. Dist. LEXIS 3602, at *10 (N.D. Tex.
Mar. 10, 2003) (unpublished), approved as supplemented, No. 3:02-CV-1807-M, 2003 U.S. Dist. LEXIS
4897, at *1–4 (N.D. Tex. Mar. 27, 2003) (unpublished).
150. See Sanville v. McCaughtry, 266 F.3d 724, 728 (7th Cir. 2001) (alleging prison officials’
failure to medicate mentally-ill prisoner resulted in prisoner’s suicide); Eng v. Smith, 849 F.2d 80 (2d
Cir. 1988) (affirming injunction based on findings that state prison’s policies for treatment of mentally-
ill prisoners were insufficient for prisoners’ protection).
So far, the federal courts have upheld the provision.151 Several district courts have held
the provision unconstitutional, but those decisions are now overruled.152
Some prisoners’ advocates believe the three strikes provision is unconstitutional for
reasons the courts have not yet addressed. The right to court access “is part of the right of
petition protected by the First Amendment.”153 As such, it is “generally subject to the same
constitutional analysis” as is the right to free speech.154 Because the three strikes provision
addresses the conduct of litigation in court and not the internal operations of prisons, it is
governed by the same First Amendment standards as other “free world” free speech
claims.155 This body of law includes a principle of narrow tailoring.156 Applying that principle,
the Supreme Court has said public officials could not recover damages for defamation unless
the statements they sued about were knowingly false or made with reckless disregard for
their truth; the First Amendment requires “breathing space,” and a margin for error is
required for inadvertent false speech, or true speech will be deterred.157 This principle has
been applied in antitrust158 and labor law enforcement159—sanctions may not be imposed
under the relevant statutes against persons who bring litigation unless the litigation is both
objectively and subjectively baseless.160
151. See Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007); Lewis v. Sullivan, 279 F.3d 526,
528 (7th Cir. 2002) (rejecting access to courts claim); Higgins v. Carpenter, 258 F.3d 797, 799–801 (8th
Cir. 2001) (rejecting equal protection and access to courts claims); Medberry v. Butler, 185 F.3d 1189,
1193 (11th Cir. 1999) (rejecting Ex Post Facto Clause argument); Rodriguez v. Cook, 169 F.3d 1176,
1178–82 (9th Cir. 1999) (rejecting due process, equal protection, access to courts, Ex Post Facto Clause,
and separation of powers arguments); White v. Colorado, 157 F.3d 1226, 1233–34 (10th Cir. 1998)
(rejecting access to courts and equal protection challenges); Wilson v. Yaklich, 148 F.3d 596, 604–06
(6th Cir. 1998) (rejecting equal protection, due process, and other claims); Rivera v. Allin, 144 F.3d 719,
723–29 (11th Cir. 1998) (stating IFP status is “a privilege, not a right”; upholding provision against 1st
Amendment, access to courts, separation of powers, due process, and equal protection challenges);
Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997) (stating the plaintiff “still has the right to file
suits if he pays the full filing fees in advance, just like everyone else”; holding the Constitution requires
waiver of filing fees only in connection with “fundamental” interests, which court equates with the
“atypical and significant” standard of Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d
418 (1995)).
152. Lewis v. Sullivan, 135 F. Supp. 2d 954, 969 (W.D. Wis. 2001) (striking statute down), rev’d,
279 F.3d 526 (7th Cir. 2001); Ayers v. Norris, 43 F. Supp. 2d 1039, 1050–51 (E.D. Ark. 1999) (same),
rev’d sub nom Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001); Lyon v. Krol, 940 F. Supp. 1433, 1439
(S.D. Iowa 1996) (same), appeal dismissed and remanded, 127 F.3d 763, 765 (8th Cir. 1997).
153. Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S. Ct. 609, 612, 30 L.
Ed. 2d 642, 648 (1972).
154. Wayte v. United States, 470 U.S. 598, 610 n.11, 105 S. Ct. 1524, 1532 n.11, 84 L. Ed. 2d 547,
558 n.11 (1985). Indeed, the Supreme Court has simply stated that advocacy in litigation is speech.
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 542–43, 121 S. Ct. 1043, 1049–50, 149 L. Ed. 2d 63, 72–
73 (2001) (holding legal representation is speech).
155. Thornburgh v. Abbott, 490 U.S. 401, 403, 109 S. Ct. 1874, 1876, 104 L. Ed. 2d 459, 466
(1989) (distinguishing between regulations of material sent into prison and material sent out of prison
for purposes of 1st Amendment).
156. NAACP v. Button, 371 U.S. 415, 438, 83 S. Ct. 328, 340, 9 L. Ed. 2d 405, 421 (1963)
(“Precision of regulation must be the touchstone in an area so closely touching our most precious
freedoms.”).
157. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 272, 84 S. Ct. 710, 721, 11 L. Ed. 2d 686, 701
(1964).
158. Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 511, 92 S. Ct. 609, 611, 30 L.
Ed. 2d 642, 646 (1972) (applying rule in antitrust context).
159. Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 741, 103 S. Ct. 2161, 2169, 76 L. Ed. 2d
277, 287 (1983) (applying rule in labor context).
160. Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60–61, 113
S. Ct. 1920, 1929, 123 L. Ed. 2d 611, 624–25 (1993) (requiring both subjective and objective intent).
Applied to the three-strikes provision, the “breathing space” principle would mean that
prisoners could only be punished for knowing falsehood or intentional abuse of the judicial
system—a category far narrower than the scope of the provision. A sanction that punishes
non-lawyers proceeding pro se—and in some cases results in barring them from court—for
honest mistakes of law would have the same inhibiting effect on valid claims that an
overbroad law of defamation would have on true speech about public officials. The three
strikes provision should therefore be found unconstitutional unless it was interpreted
consistently with the “breathing space” principle, that is, by limiting its application to
malicious actions or actions that are clearly intentional abuses of the judicial system as
opposed to honest mistakes.
D. Screening and Dismissal of Prisoner Cases
The PLRA requires federal courts to screen all suits by prisoners against government
employees and all in forma pauperis (“IFP”) cases at the litigation’s outset. The court must
dismiss cases that are frivolous or malicious, that fail to state a claim on which relief may be
granted, or that seek damages from a defendant immune from damage claims.161 If a court
does not immediately dismiss such claims, the court must dismiss them as soon as they come
to the court’s attention. This power of dismissal, which used to be limited to in forma
pauperis cases, now extends to all prisoner cases.162 The courts’ ability to dismiss cases sua
sponte (without a motion by the defendant) used to be limited to frivolous and malicious
cases, but has now been extended to cases failing to state a claim and cases suing immune
defendants. 163 Such dismissals may be done without prior notice or an opportunity to
respond,164 but the Second Circuit has cautioned this ought to be done only where “it is
unmistakably clear that the court lacks jurisdiction, or that the complaint lacks merit or is
otherwise defective.”165
Most courts have held that under the PLRA, as under prior law, pro se litigants are
allowed an opportunity to amend deficient complaints before the court dismisses them.166
161. There has been disagreement among courts over whether failure to exhaust administrative
remedies falls within the scope of this provision. The Supreme Court has just settled this question by
holding that administrative exhaustion is not a pleading requirement, so failure to include it in the
complaint is not a failure to state a claim. Exhaustion would only be addressed at initial screening if
the complaint itself showed that the prisoner had failed to exhaust. See Jones v. Bock, 549 U.S. 199,
213–15, 127 S. Ct. 910, 920–21, 166 L. Ed. 2d 798, 812–13 (2007). For more information on Exhaustion,
see Part E of this Chapter.
162. Plunk v. Givens, 234 F.3d 1128, 1129 (10th Cir. 2000); Ray v. Evercom Systems, Inc., No.
4:05-2904-RBH, 2006 U.S. Dist. LEXIS 61132, at *15–16 (D.S.C. Aug. 25, 2006) (unpublished) (holding
fee-paid prisoner case raising antitrust claims rather than prison conditions, and joining governmental
defendants, is subject to § 1915A screening).
163 . These requirements appear in three overlapping statutory provisions: 28 U.S.C. §
1915(e)(2); 28 U.S.C. § 1915A; and 42 U.S.C. § 1997e(c)(1) (2000).
164. Plunk v. Givens, 234 F.3d 1128, 1129 (10th Cir. 2000) (upholding lower court sua sponte
dismissal where no hearing was provided); Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per
curiam) (“The statute clearly does not require that process be served or that the plaintiff be provided an
opportunity to respond before dismissal.”).
165. Giano v. Goord, 250 F.3d 146, 151 (2d Cir. 2001) (quoting Carr v. Dvorin, 171 F.3d 115, 116
(2d Cir. 1999)).
166. Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795–96 (2d Cir. 1999) (holding dismissal of a
pro se complaint under § 1915(e)(2)(B) should be done with leave to amend “unless the court can rule
out any possibility, however unlikely it might be, that an amended complaint would succeed in stating
a claim”); accord Brown v. Johnson, 387 F.3d 1344, 1348–49 (11th Cir. 2004); Shane v. Fauver, 213
F.3d 113, 117 (3d Cir. 2000) (adhering to pre-PLRA practice); Lopez v. Smith, 203 F.3d 1122, 1124 (9th
Cir. 2000) (en banc) (same); see also Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (holding
under 42 U.S.C. § 1997e(c) that dismissing a pro se complaint for failure to state a claim without giving
One court has held that the PLRA prohibits this practice, but that holding is probably
undermined by a recent Supreme Court decision.167 The PLRA screening provision also does
not affect the rule that a court reviewing a complaint must accept as true all allegations of
material fact and construe them in the light most favorable to the plaintiff, or the rule that
courts must construe pro se pleadings liberally.168
Before the PLRA, dismissal as frivolous or malicious under the IFP statutes was within
the district courts’ discretion. The PLRA has expanded the grounds for dismissal to include
failure to state a claim and seeking damages from a party who is immune from damages, and
has made dismissal mandatory rather than discretionary. The way in which appeals courts
review PLRA dismissals has not been fully settled. Some courts have held that dismissal
under the PLRA is subject to de novo review—which means that the appeals court may
decide the matter however it thinks best. 169 However, some courts have limited de novo
review to dismissals for failure to state a claim, and have held that dismissals deemed
frivolous or malicious remain subject to an “abuse of discretion” standard (which means that
the appeals court will not overrule the district court’s decision unless it thinks the district
court made a very big mistake).170 Other courts have not fully addressed the question.171 The
Second Circuit has held that the de novo standard applies under 28 U.S.C. § 1915A and 42
U.S.C. § 1997e(c)(2),172 but has not addressed dismissal under 28 U.S.C. § 1915(e).173
One court has held that the PLRA-dictated screening process is generally good cause for
extending the 120-day time period for serving process.174
The screening provisions have been held not to deny due process,175 equal protection,176
or the right of access to the courts.177
the plaintiff an opportunity to amend is generally error; however, it is harmless error to dismiss
without prejudice).
167. In McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997), the court said: “Under the
Prison Litigation Act, courts have no discretion in permitting a plaintiff to amend a complaint to avoid
a sua sponte dismissal.” However, the Supreme Court has just held, in connection with the PLRA’s
administrative exhaustion requirement, that the screening requirement “does not—explicitly or
implicitly—justify deviating from the usual procedural practice beyond the departures specified by the
PLRA itself.” Jones v. Bock, 549 U.S. 199, 206, 127 S. Ct. 910, 916, 166 L. Ed. 2d 798, 807 (2007). Since
a plaintiff’s right to amend the complaint freely—and without even asking the court’s permission, if an
answer has not been filed—is part of the “usual procedural practice,” it would appear that the basis for
the Sixth Circuit’s holding has been undermined. See Fed. R. Civ. P. 15(a).
168. See Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (agreeing with district court’s
liberal construction of pro se pleading); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795–96 (2d Cir.
1999) (per curiam) (noting that pro se complaints must be read liberally).
169. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (holding that dismissals for
failure to state a claim are reviewed de novo); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.
1997) (concluding that provision requires de novo review).
170 . See Bilal v. Driver, 251 F.3d 1346, 1348–49 (11th Cir. 2001) (holding that abuse of
discretion standard was proper for review of dismissal based on frivolity); Harper v. Showers, 174 F.3d
716, 718 n.3 (5th Cir. 1998) (disavowing contrary authority and stating that de novo review is only
appropriate for dismissals for failure to state a claim on which relief may be granted).
171. See Jackson v. Ward, No. 98-7181, 185 F.3d 874, 1999 U.S. App. LEXIS 25909, at *1 (10th
Cir. July 15, 1999) (unpublished) (holding that dismissals under § 1915(e)(2)(B)(i) as frivolous or
malicious are reviewed for abuse of discretion, but the court should “consider, inter alia, whether the
plaintiff is proceeding pro se and whether the district court inappropriately resolved genuine issues of
material fact”); Mathis v. N.Y. Life Ins. Co., 133 F.3d 546, 547 (7th Cir. 1998) (not deciding question);
McWilliams v. Colorado, 121 F.3d 573, 574–75 (10th Cir. 1997) (stating that § 1915(e)(2) dismissals are
reviewed for abuse of discretion; case before court was frivolous).
172. Liner v. Goord, 196 F.3d 132, 134 (2d Cir. 1999) (holding that “28 U.S.C. § 1915A and 42
U.S.C. § 1999e(c)(2) dismissals are subject to de novo review”).
173. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 n.2 (2d Cir. 2000)
(indicating the standard of review for § 1915(e) is unsettled law).
174. Shabazz v. Franklin, 380 F. Supp. 2d 793, 799–800 (N.D. Tex. 2005).
E. Exhaustion of Administrative Remedies
The PLRA exhaustion requirement says:
No action shall be brought with respect to prison conditions under [42
U.S.C. § 1983] ... or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.178
More prisoners lose their cases because of failure to exhaust administrative remedies—
that is, failure to pursue all available administrative remedies to the end—than from any
other part of the PLRA. Here is the bottom line: if something happens to you that you may
want to bring suit about,
(1) Find out what remedies are available right away, because time deadlines are often
very short. If you wait until you have firmly decided whether to sue, it may be too
late to exhaust.
(2) Always use the prison grievance system or any other available remedy, such as a
disciplinary appeal.
(3) If you think there is a reason why you should not have to exhaust your
administrative remedies, forget it. Exhaust anyway.
(4) Take all the available appeals, even if you get what you think is a good decision at an
earlier point.
(5) If you do not get an answer to a grievance, try to appeal anyway. Many grievance
systems say that if a certain amount of time passes and there’s no decision, you can
treat the non-response as a denial of the grievance, and appeal.
(6) If you’re not sure which remedy to use, try all available remedies.
(7) If prison employees tell you an issue is not grievable but you think it is, request that
they process your grievance anyway so you will have a record of it. (And, if there is a
way to appeal or grieve a decision that something is not grievable, do it!)
(8) If prison employees tell you something will be taken care of and you do not need to
file a grievance, exhaust anyway if you think there is any chance you may wish to file
suit.
(9) Follow the rules of the grievance system or other remedy as best you can.
(10)If the people running the grievance system or in charge of the remedy tell you that
you filed your grievance incorrectly and you need to do something differently to fix it,
follow the instructions and make a record of what you were told.
(11)If you make a mistake, like missing a time deadline, do not give up. File the
grievance anyway, explain the reasons, and ask that your grievance be considered
despite your mistake, and appeal as far as you can if you lose.
Always remember that once you file suit, prison officials and their lawyers will use
anything they can find to get your case thrown out of court, and they will look for any
175 . Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (“The complained of
procedure did not deny Plaintiff due process.”); Curley v. Perry, 246 F.3d 1278, 1283–84 (10th Cir.
2001) (finding no due process violation).
176. Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (“[S]ection 1915(e)(2)(B)(ii)
is rationally related to the government's legitimate interests in deterring meritless claims and
conserving judicial resources and, therefore, does not violate the Equal Protection Clause.”); Curley v.
Perry, 246 F.3d 1278, 1285 (10th Cir. 2001), (addressing 28 U.S.C. § 1915(e)(ii)(B)(ii) and finding no
equal protection violation, but not addressing 18 U.S.C. § 1915A); Christiansen v. Clarke, 147 F.3d 655,
657–58 (8th Cir. 1998) (finding statute survives equal protection challenge); Hanley v. Stewart, 21 F.
Supp. 2d 1088, 1093 (D. Ariz. 1998) (same).
177 . Martin v. Scott, 156 F.3d 578, 580 n.2 (5th Cir. 1998) (finding provision does not
unconstitutionally restrict access to federal courts).
178. 42 U.S.C. § 1997e(a) (2006).
possible basis to say that you filed incorrectly and should not be allowed to sue. You want to
show the court that you did everything you could to comply with the exhaustion requirement,
which requires following the prison’s rules for grievances and other complaints or appeals.
The PLRA makes exhaustion of the grievance system mandatory.179 That is true even if
you are suing for damages and the grievance system does not provide damages.180 If you do
not exhaust your administrative remedies, your case will be dismissed rather than stayed
(held pending exhaustion), 181 although a recent Supreme Court decision supports an
argument that that rule is not necessarily valid in every case.182 You must exhaust before you
file suit, not afterward, or your case will be dismissed.183 Dismissal for non-exhaustion is
supposed to be “without prejudice,”184 meaning in theory that you can come back to court
after you pursue your grievance. In reality, your grievance will almost certainly be late by
that time,185 and it will be up to prison officials to decide whether to allow you to pursue a
late grievance. See Part E(6) of this Chapter for more information about time limits. If the
statute of limitations (time limit) has run on your claim when it is dismissed, your case may
179. Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 988, 152 L. Ed. 2d 12, 21 (2002)
(requiring exhaustion). Though mandatory, exhaustion is not jurisdictional. Woodford v. Ngo, 548 U.S.
81, 101, 126 S. Ct. 2378, 2392, 165 L. Ed. 2d 368, 385 (2006). That means if you didn’t exhaust and you
think you have a good enough reason, the court at least has the power to consider your argument—
though such arguments rarely succeed, as discussed throughout this Chapter.
180. Booth v. Churner, 532 U.S. 731, 738, 121 S. Ct. 1819, 1824, 149 L .Ed. 2d 958, 965 (2001).
181. Neal v. Goord, 267 F.3d 116, 121–23 (2d Cir. 2001); Perez v. Wis. Dep’t of Corr., 182 F.3d
532, 534–35 (7th Cir. 1999).
A few decisions have granted stays pending exhaustion under unusual circumstances. See Kennedy
v. Mendez, No. 3:CV-03-1366, 2004 U.S. Dist. LEXIS 20170, at *1 (M.D. Pa. Oct. 7, 2004) (unpublished)
(stating a stay was appropriate because exhaustion was raised when the litigation was at an advanced
state); Campbell v. Chaves, 402 F. Supp. 2d 1101, 1108–09 (D. Ariz. 2005) (staying litigation and
directing the prison system to consider a grievance where the prisoner had filed a tort claim rather
than a grievance at staff direction, the tort claim had been rejected for jurisdictional reasons, and
meanwhile the grievance system rules had been changed so the matter would have been grievable).
182. In Jones v. Bock, 549 U.S. 199, 212–17, 127 S. Ct. 910, 919–22, 166 L. Ed. 2d 798, 810–34
(2007), the Supreme Court held that the PLRA did not overturn usual litigation practices except to the
extent it did so explicitly. The discretion to grant a stay is part of usual litigation practice. Congress did
not say anything in the PLRA about stays pending exhaustion—it just removed the prior provision
requiring a stay when a court thought exhaustion should be required—so it can be argued that courts
retain their discretion in this regard. See Cruz v. Jordan, 80 F. Supp. 2d 109, 124 (S.D.N.Y. 1999)
(“There is simply no evidence that Congress intended by Section 1997e(a) to remove every aspect of the
district court's traditional equity jurisdiction.”). Even if a court was persuaded by this argument, we
would expect it would only grant a stay if the prisoner had a pretty good reason for not having
exhausted before filing, as in the cases in the previous footnote.
183. Neal v. Goord, 267 F.3d 116, 121–23 (2d Cir. 2001); Jackson v. District of Columbia, 254
F.3d 262, 269 (D.C. Cir. 2001); Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 534–35 (7th Cir. 1999);
Freeman v. Francis, 196 F.3d 641, 644 (6th Cir. 1999); Wendell v. Asher, 162 F.3d 887, 890 (5th Cir.
1998). But see Curry v. Scott, 249 F.3d 493, 502 (6th Cir. 2001) (stating that pre-filing exhaustion is
“the preferred practice,” but allowing exhaustion prior to filing an amended complaint in a case filed
shortly after the PLRA’s enactment that involved some pre-PLRA conduct).
184. Wendell v. Asher, 162 F.3d 887, 892 (5th Cir. 1998). Some courts have held dismissal may
be with prejudice if you clearly cannot at that point exhaust and then re-file. See, e.g., Berry v. Kerik,
366 F.3d 85, 87–88 (2d Cir. 2004). One federal appeals court has held all dismissals for non-exhaustion
should be without prejudice, since, among other things, states may allow litigants to cure failure to
exhaust, or plaintiffs may be able to proceed without exhaustion in state court, and defenses to a new
suit should be addressed in that suit. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
185. Regan v. Frank, No. 06-00066 JMS-LEK, 2007 U.S. Dist. LEXIS 1747, at *8–12 (D. Haw.
Jan. 9, 2007) (unpublished).
be permanently barred for that reason too.186 So, it is very important to get exhaustion right
the first time, since you may not get a second chance.
If you do manage to exhaust after a dismissal, you may have to pay a new fee to re-file
your case, though this is not certain.187 In addition, you may be charged a “strike,” which
may affect your ability to proceed in forma pauperis in the future.188 (See Part C above for
more information on the PLRA’s “three strikes” provision.) One federal circuit has held
dismissal for failure to exhaust is with prejudice as to your ability to proceed in forma
pauperis—that is, you will have to pay the filing fee up front if you exhaust and re-file your
case.189 This holding appears contrary to the Supreme Court’s recent opinion in Jones v.
Bock, which stated courts cannot just make up rules under the PLRA contrary to usual
federal litigation practice.190
The exhaustion provision of the PLRA applies to any case brought by a “a prisoner
confined in any jail, prison, or other correctional facility” about prison conditions under
federal law.191 A case is “brought by a prisoner” if the plaintiff is a prisoner at the time of
filing; if not, the plaintiff need not have exhausted.192 PLRA exhaustion does not apply to
petitions for habeas corpus, though habeas has its own slightly different exhaustion
186. There may be “tolling” provisions of state law suspending the operation of the statute of
limitations when you bring a suit, it is dismissed, and you have to re-file it. See Part E(6) of this
Chapter for more information about tolling.
187. Courts have generally said that a new case must be filed after dismissal for non-exhaustion,
rather than reopening the dismissed case. See Williams v. Ramirez, No. CIV S-06-1882 MCE DAD P,
2006 U.S. Dist. LEXIS 61617, at *3–4 (E.D. Cal. Aug. 28, 2006) (unpublished) (advising plaintiff that a
new post-exhaustion complaint should not bear the docket number of the dismissed action; a new in
forma pauperis application is required); Baggett v. Smith, No. 1:05-cv-804, 2006 U.S. Dist. LEXIS
44859, at *1 (W.D. Mich. June 29, 2006) (unpublished). Ordinarily this would require a new filing fee.
However, the only federal circuit actually to focus on the filing fee question held that a plaintiff need
not pay a new filing fee when re-filing a claim that was previously dismissed for non-exhaustion.
Owens v. Keeling, 461 F.3d 763, 772–74 (6th Cir. 2006). The court explained that the filing fee is
required of parties “instituting” a civil action, 28 U.S.C. § 1914(a), and that re-filing a now-exhausted
claim is not “instituting” suit but merely following the court-prescribed procedure for curing the initial
complaint’s deficiency.
188. For more information about this issue, see Part C(1) of this Chapter. As explained there, if
your complaint is dismissed because non-exhaustion is apparent on the face of the complaint, the
dismissal may be a strike. Otherwise, it should not be, but some courts have used other questionable
justifications for charging prisoners a strike for exhaustion-related dismissals.
189. Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998). At least one district court has held
that this disposition is appropriate only if the whole case is not exhausted. Cantoral v. Dretke, No.
Civ.A. 6:05CV96, 2005 WL 2297222, at *4 (E.D. Tex. Sept. 19, 2005) (unpublished).
190. See Jones v. Bock, 549 U.S. 199, 212–14, 127 S. Ct. 910, 919–20 (2007). It is also contrary to
the decision in Owens v. Keeling, which held that if you exhaust and re-file after a dismissal for non-
exhaustion, you do not have to pay a new fee at all. Owens v. Keeling, 461 F.3d 763 (6th Cir. 2006).
Courts in the Fifth Circuit seem not to have re-examined the Underwood holding in light of Jones. See
Barnes v. Brownlow, No. 6:08cv194, 2008 WL 2704868, at *3 (E.D. Tex. July 7, 2008) (unpublished);
McGrew v. Teer, No. 07-702-JVP DLD, 2008 WL 2277818, at *2 (M.D. La. June 3, 2008) (unpublished);
Johns v. Edwards, No. 06-3767, 2007 WL 1958962, at *3 (E.D. La. June 28, 2007) (unpublished) (all
following Underwood without question).
191. 42 U.S.C. § 1997e(a) (2006). For more discussion of when a person is a prisoner for PLRA
purposes, see footnotes 47–58 and text accompanying them.
192 . Ahmed v. Dragovich, 297 F.3d 201, 210 n.10 (3d Cir. 2002) (citing cases); Janes v.
Hernandez, 215 F.3d 541, 543 (5th Cir. 2000); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999); see also
Jasperson v. Fed. Bureau of Prisons, 460 F. Supp. 2d 76, 87 (D.D.C. 2006) (plaintiff who filed a
challenge to restrictions on placement in halfway house before he surrendered to the Bureau of Prisons
did not have to exhaust because he was not yet confined, even if he was legally in Bureau’s custody).
The PLRA’s administrative exhaustion requirement, discussed in Part E of this Chapter, applies to
“a prisoner confined in any jail, prison, or other correctional facility,” 42 U.S.C. § 1997e(a) (2006). The
difference in phrasing does not seem to make any substantive difference.
requirement.193 PLRA exhaustion, however, has been applied in Section 1983 actions filed in
state court, including those later removed to federal court.194
Most courts have held there is no emergency exception to the exhaustion requirement.195
There are a few decisions that have allowed cases to go forward without exhaustion to avoid
irreparable harm,196 but they mostly do not provide much legal justification for disregarding
the exhaustion requirement. The strongest basis for requesting court intervention without
waiting for exhaustion is to appeal to a court’s traditional powers of discretion.197 No one
seems to have obtained relief on that basis yet (though one court threatened to grant it, and
jail officials hastily addressed the problem), 198 but the argument may have been
strengthened by the recent Supreme Court decision holding that courts should not deviate
from the usual practices of litigation unless the PLRA explicitly says so.199 Nevertheless, this
argument is unlikely to succeed except in extreme cases. If you are arguing for relief
“pending” exhaustion, you should have the grievance process under way when you do.
For information about the New York State prison grievance system, see JLM Chapter 15,
“Inmate Grievance Procedures.”
1. What Is Exhaustion?
Exhaustion under the PLRA means “proper exhaustion,” which is “compliance with an
agency’s deadlines and other critical procedural rules.”200 Part C(5) of this Chapter discusses
this point in detail.
Exhaustion also means taking your complaint all the way to the top of the internal
prison complaint process that applies to your problem, whatever that process may be
(usually the grievance system). You must take every appeal available to you,201 and finish
193 . United States v. McGriff, 468 F. Supp. 2d 445, 447 (E.D.N.Y. 2007) (noting habeas
exhaustion requirement can be dispensed with on grounds of futility or prevention of irreparable harm,
unlike the PLRA requirement).
194. See, e.g., Johnson v. State of La. ex rel. Dep’t of Public Safety & Corr., 468 F.3d 278, 280 (5th
Cir. 2006) (“The PLRA's exhaustion requirement applies to all Section 1983 claims regardless of
whether the inmate files his claim in state or federal court.”).
195. See, e.g., Williams v. CDCR, No. CIV S-06-1373 MCE EFB P, 2007 U.S. Dist. LEXIS 60701,
at *15 (E.D. Cal. Aug. 17, 2007) (unpublished) (“The presence of exigent circumstances does not relieve
a plaintiff from fulfilling this requirement.”), report and recommendation adopted, No. CIV S-06-1373
MCE EFB P, 2007 U.S. Dist. LEXIS 71338 (E.D. Cal. Sept. 26, 2007) (unpublished); Bovarie v.
Giurbino, 421 F. Supp. 2d 1309, 1314 (S.D. Cal. 2006) (holding “irrelevant” prisoner’s claim that the
time constraints imposed on him by litigation did not allow for completion of grievance process
concerning law library access).
196. See Evans v. Saar, 412 F. Supp. 2d 519, 527 (D. Md. 2006) (declining to dismiss for non-
exhaustion, given “shortness of time,” where plaintiff challenged the protocol for his impending
execution and the grievance process was not complete); Howard v. Ashcroft, 248 F. Supp. 2d 518, 533–
34 (M.D. La. 2003) (holding that prisoner fighting transfer from community corrections to a prison need
not exhaust where appeal would take months and prison officials wanted to transfer her despite any
pending appeal).
197. Jackson v. District of Columbia, 254 F.3d 262, 267–68 (D.C. Cir. 2001).
198. Tvelia v. Dep’t of Corr., No. Civ. 03-537-M, 2004 WL 298100, at *2 (D.N.H. Feb. 13, 2004)
(unpublished). Several courts have rejected the idea of granting relief pending exhaustion, but they did
not seem to be aware of Jackson. See, e.g., Blain v. Bassett, No. 7:07-cv-00552, 2007 U.S. Dist. LEXIS
86167, at *6–7 (W.D. Va. Nov. 21, 2007) (refusing to direct delay of new prison rule pending plaintiff’s
exhaustion and dismissing action; Jackson not cited).
199. Jones v. Bock, 549 U.S. 199, 212–14, 127 S. Ct. 910, 919–20, 166 L. Ed. 798, 810–11 (2007).
The Court specifically referred to the usual practice under the Federal Rules of Civil Procedure.
Injunctions, including preliminary injunctions, are addressed in Rule 65.
200. Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S. Ct. 2378, 2385–86, 165 L. Ed. 2d. 368, 378
(2006).
201. See Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001); White v. McGinnis, 131 F.3d
593, 595 (6th Cir. 1997) (affirming dismissal for failing to appeal denial of grievance); Lopez v. Smiley,
the process before you file suit.202 Once the deadline for final decision of your last appeal has
passed, you can file suit. 203 (If a prisoner files suit after the time limit for decision has
passed, and then grievance authorities issue a late decision, the prisoner has exhausted.204)
It is not clear how long you have to wait if the system has no deadline for deciding your final
appeal.205 A number of decisions have said that if you do not get a response to your initial
grievance, you have exhausted. 206 However, other courts have said that if the grievance
system allows you to treat a non-response as a denial and appeal it, you must do so.207 When
No. 3:02CV1020 (RNC), 2003 U.S. Dist. LEXIS 16724, at *4 (D. Conn. Sept. 22, 2003) (unpublished)
(holding that a prisoner who appealed, but whose appeal was not received and was told it was too late
to file another, had exhausted).
202. Johnson v. Jones, 340 F.3d 624, 627–28 (8th Cir. 2003); Neal v. Goord, 267 F.3d 116, 122 (2d
Cir. 2001). Some courts have taken this idea to an extreme and have held that prisoners cannot add
additional claims by amending their complaints unless the new claims were exhausted before the
initial complaint was filed. See, e.g., Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005) (holding
that claims post-dating the original complaint and exhausted after its filing could not be added). Most
courts, however, have said that as long as the new issues were exhausted before you try to add them to
the case, you can amend to add them. See Cannon v. Washington, 418 F.3d 714, 719–20 (7th Cir. 2005)
(rejecting defendants’ argument that new claims could not be added by amendment even if they had
been exhausted); Barnes v. Briley, 420 F.3d 673, 677–78 (7th Cir. 2005). That view is consistent with
the Supreme Court’s recent holding that the PLRA does not require deviating from ordinary federal
procedural practice except insofar as it says so explicitly. Jones v. Bock, 549 U.S. 199, 210–12, 127 S.
Ct. 910, 918–19, 166 L. Ed. 2d. 798, 810–11 (2007). The free amendment of complaints is part of
ordinary federal procedural practice. See Fed. R. Civ. P. 15(a).
203. Whitington v. Ortiz, 472 F.3d 804, 807–08 (10th Cir. 2007); Powe v. Ennis, 177 F.3d 393,
393 (5th Cir. 1999) (per curiam) (“A prisoner’s administrative remedies are deemed exhausted when a
valid grievance has been filed and the state’s time for responding thereto has expired.”); Mattress v.
Taylor, 487 F. Supp. 2d 665, 670–62 (D.S.C. 2007) (holding plaintiff had exhausted where the deadline
for final decision was 180 days and plaintiff had waited 11 months to file).
204. See, e.g., Magee v. Chavez, No. 1:05-cv-01563-OWW-DLB PC, 2008 WL 2283133, at *3 (E.D.
Cal. May 30, 2008) (unpublished), report and recommendaton vacated on other grounds, 2008 WL
2858198 (E.D. Cal. July 24, 2008) (unpublished). But see Sergent v. Norris, 330 F.3d 1084, 1085–86 (8th
Cir. 2003) (affirming dismissal for non-exhaustion where time for response had passed before suit was
filed, but prisoner had not made that clear to the district court).
205. See McNeal v. Cook County Sheriff’s Dep’t, 282 F. Supp. 2d 865, 868 n.3 (N.D. Ill. 2003)
(holding 11 months is long enough to wait and citing cases holding that seven months is long enough
but one month is not). However, the Seventh Circuit said, in connection with a grievance system that
called for appeal decisions within 60 days “whenever possible,” that the remedy did not become
“unavailable” and allowed the prisoner to bring suit because it took six months to get a decision. “Even
six months is prompt compared with the time often required to exhaust appellate remedies from a
conviction.” Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004).
206. See, e.g., Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005) (holding prisoner who
received no decision had exhausted where the grievance policy did not say what to do absent a
decision); Boyd v. Corr. Corp. of Am., 380 F.3d 989, 996 (6th Cir. 2004) (holding that “administrative
remedies are exhausted when prison officials fail to timely respond to a properly filed grievance,”
though distinguishing a case where the prisoner could proceed without a decision); Lewis v.
Washington, 300 F.3d 829, 833 (7th Cir. 2003) (non-response made remedy unavailable).
207. See Turner v. Burnside, 541 F.3d 1077, 1083–84 (11th Cir. 2008) (where prisoner alleged
that the warden tore up his grievance, he would have been obliged to file an appeal from the lack of a
decision, except that the warden also threatened him); Cox v. Mayer, 332 F.3d 422, 425 n.2 (6th Cir.
2003); Clarke v. Thornton, 515 F. Supp. 2d 435, 438–41 (S.D.N.Y. 2007); Martinez v. Dr. Williams R.,
186 F. Supp 2d 353, 357 (S.D.N.Y. Jan. 25, 2002) (finding that prisoner who received no response after
filing a grievance should have appealed the grievance and thus did not exhaust his administrative
remedies); Smith v. Stubblefield, 30 F. Supp. 2d 1168, 1174 (E.D. Mo. 1998) (holding that a prisoner
must pursue all appeals available within the administrative remedies to fulfill the exhaustion
requirement). The New York State grievance rules provide that issues not decided within the
prescribed time limits can be appealed unless the prisoner has consented to an extension of time. State
of New York, Department of Correctional Services, Directive No. 4040 § V(G), Inmate Grievance
in doubt, try to appeal, even if officials have failed to respond. Prison officials cannot keep
you out of court by simply ignoring your grievances,208 but once you bring suit, they may try
to make it look as if you did not try hard enough to exhaust.
Courts have said that if you win your grievance before the final stage and do not appeal,
you have exhausted, since it makes no sense to appeal if you win.209 You are best advised not
to rely on that proposition, sensible as it is, because courts have also held that if you do not
win all possible relief in the grievance, you have not exhausted all available remedies.210 In
hindsight, prison officials and their lawyers will always be able to think of some relief you
could theoretically have obtained, and the court may accept their arguments.211 Courts have
Program (1998) (as revised Aug. 22, 2003); N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8 (2001). The New
York City grievance rules say essentially the same thing. See City of New York, Department of
Corrections, Directive No. 3375R § III.6, Inmate Grievance Program (1998) (as revised Mar. 4, 1985).
208. See Duke v. Hardin County, No. 3:05CV-496-S, 2008 U.S. Dist. LEXIS 25701, at *4–5 (W.D.
Ky. Mar. 31, 2008) (holding prisoner exhausted where he received a response stating the matter had
been investigated and turned over to the Jailer, and the Jailer never responded); Brown v.
Koenigsmann, No. 01 Civ. 10013, 2003 U.S. Dist. LEXIS 17009, at *9–11 (S.D.N.Y. Sept. 29, 2003)
(unpublished); John v. N.Y.C. Dep’t of Corr., 183 F. Supp. 2d 619, 625 (S.D.N.Y. 2002) (rejecting
argument that after three years, prisoner must continue waiting for a decision); see Maraglia v.
Maloney, 499 F. Supp. 2d 93, 97 (D. Mass. 2007) (holding that prisoner was not required to file a
grievance about the failure to respond to a grievance absent a regulation to that effect). In Dole v.
Chandler, 438 F.3d 804, 811–12 (7th Cir. 2006), the court held a prisoner had exhausted when he did
everything necessary to exhaust but his grievance simply disappeared, and he received no instructions
as to what if anything to do about it.
209. See Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (holding “a prisoner need not press on
to exhaust further levels of review once he has either received all ‘available’ remedies at an
intermediate level of review or been reliably informed by an administrator that no remedies are
available.”); Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004) (holding a prisoner who repeatedly got
favorable decisions that later were not carried out had exhausted despite failure to appeal the favorable
decisions); Henderson v. Moore, No. C-08-036, 2008 U.S. Dist. LEXIS 50726, at *14 (S.D. Tex. July 2,
2008) (unpublished) (exhaustion not required when prison officials failed to respond to previous
grievance); Lay v. Hall, No. CIV-S-05-2542 LKK EFB P, 2007 U.S. Dist. LEXIS 3317, at *21 (E.D. Cal.
Jan. 17, 2007) (unpublished) (holding that a prisoner, who raised a grievance about the failure to
provide surgery and got a decision stating that a request for surgery had been as a result, exhausted all
remedies); Bolton v. U.S., 347 F. Supp. 2d 1218, 1220 (N.D. Fla. 2004) (holding a prisoner exhausted
when she complained informally, the first step of the Federal Bureau of Prisons remedy, and the
offending officer resigned when confronted; stating that “[w]hen a prisoner wins in the administrative
process, he or she need not continue to appeal the favorable ruling”); Sulton v. Wright, 265 F. Supp. 2d
292, 298–99 (S.D.N.Y. 2003) (prisoner not required to complain after his grievance has been addressed
but not corrected); Dixon v. Goord, 224 F. Supp. 2d 739, 749 (S.D.N.Y. 2002) (“The exhaustion
requirement is satisfied by resolution of the matter, i.e., an inmate is not required to continue to
complain after his grievances have been addressed.”).
210. See Ross v. County of Bernalillo, 365 F.3d 1181, 1187 (10th Cir. 2004) (“When there is no
possibility of any further relief, the prisoner’s duty to exhaust available administrative remedies is
complete.”) (emphasis added); see also Garcia v. Kirkland, No. C 05-0341 MMC (PR), 2006 U.S. Dist.
LEXIS 90878, at *13 (N.D. Cal. Dec. 7, 2006) (unpublished) (holding grievance partially granted left
prisoner with available remedies, since he could appeal); Rivera v. Pataki, No. 01 civ. 5179 (MBM),
2003 U.S. Dist. LEXIS 11266, at *27 (S.D.N.Y. Feb. 14, 2005) (noting it “made sense” for a prisoner to
appeal where an intermediate decision granted some relief but did not change the challenged policy).
211. See, e.g., Braham v. Clancy, 425 F.3d 177, 182–83 (2d Cir. 2005) (holding a prisoner who
asked for a cell change informally and got it failed to exhaust because he did not go on to file a formal
grievance, which could have led to further relief like policy changes or staff discipline); accord Ruggiero
v. County of Orange, 467 F.3d 170, 178 (2d Cir. 2006) (holding prisoner who prevailed informally was
required to exhaust the grievance process because of “the larger interests at stake”). Another circuit
has rejected this idea, stating that “we do not think it [is the prisoner’s] responsibility to notify persons
higher in the chain when this notification would be solely for the benefit of the prison administration.”
held that if you have been “reliably informed by an administrator that no remedies are
available,” you are not required to pursue the process any further.212 If you do not have such
an assurance, and you want to bring suit, it may be advisable to appeal any decision all the
way up, no matter what. If you have to explain why you are appealing in these
circumstances, you could say something like “to exhaust my administrative remedies by
calling this problem to the attention of high-level officials so they can take whatever action is
necessary to make sure it never happens again.”213
Exhaustion generally means using whatever formal complaint procedure is available
(usually a grievance system or administrative appeal). “Proper exhaustion” is required—that
is, you must follow the rules of the prison procedure.214 If you do that, courts cannot require
you to do more.215 Letters and other informal means of complaint, such as cooperating in an
internal affairs or inspector general investigation, generally will not suffice to exhaust216
unless the prison rules identify them as an alternative means of complaint,217 or unless there
Thornton v. Snyder, 428 F.3d 690, 696–97 (7th Cir. 2005), cert. denied, 126 S. Ct. 2862, 165 L. Ed. 2d
896 (2006).
212. Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005); Hendon v. Ramsey, No. 06CV1060 J
(NLS), 2007 U.S. Dist. LEXIS 27658, at *9–15 (S.D. Cal. Apr. 12, 2007) (unpublished) (holding plaintiff
did not need to name all defendants in complaint, nor did he have to name all the dates on which the
harm occurred); Cahill v. Arpaio, No. CV 05-0741-PHX-MHM (JCG), 2006 U.S. Dist. LEXIS 80772, at
*7–8 (D. Ariz. Nov. 2, 2006) (unpublished) (holding plaintiff reasonably relied on grievance hearing
officer telling him that “(1) the matter was under investigation and he would not be notified of the
results, (2) he could not appeal and would not be given a form, and (3) he should proceed to federal
court,” notwithstanding that the preprinted decision form said it could be appealed); Candler v.
Woodford, No. C 05-5453 MMC (PR), 2007 U.S. Dist. LEXIS 83988, at *26 (N.D. Cal. Nov. 1, 2007)
(unpublished) (holding that failure to exhaust does not apply when plaintiff was told he could not
appeal decision).
Similarly, courts have held that if a prisoner’s grievance is rejected on the ground that the prisoner
has already received the relief sought, he has exhausted. Elkins v. Schrubbe, No. 04-C-85, 2006 U.S.
Dist. LEXIS 43157, at *154–55 (E.D. Wis. June 15, 2006) (unpublished) (holding prisoner had no
remaining “available” remedy where grievances were rejected as moot because the issue had already
been resolved in his favor in that he received the requested relief).
213. See Ruggiero v. County of Orange, 467 F.3d 170, 177 (2d Cir. 2006) (holding prisoner who
obtained what he wanted informally was still required to exhaust because a grievance “still would have
allowed prison officials to reconsider their policies and discipline any officer who had failed to follow
existing policies”).
214. Woodford v. Ngo, 548 U.S. 81, 106, 126 S. Ct. 2378, 2394, 165 L. Ed. 2d 368, 387 (2006)
(“[T]he Court conludes that the ‘PLRA exhaustion requirement requires proper exhaustion.’”) (Stevens,
J., dissenting).
215. Jones v. Bock, 549 U.S. 199, 217–19, 127 S. Ct. 910, 922–23, 166 L. Ed. 2d 798, 815 (2007)
(“Compliance with prison grievance procedures ... is all that is required by the PLRA to ‘properly
exhaust.’”)
216. See Ruggiero v. County of Orange, 467 F.3d 170, 177 (2d Cir. 2006) (holding that talking
with Sheriff’s Department investigators rather than filing a jail grievance did not satisfy the
exhaustion requirement); Panaro v. City of North Las Vegas, 432 F.3d 949, 953 (9th Cir. 2005) (holding
that participation in an internal affairs investigation did not exhaust because it did not provide a
remedy for the prisoner, even though the officer was disciplined); Yousef v. Reno, 254 F.3d 1214, 1221–
22 (10th Cir. 2001) (holding that a letter to the Attorney General was insufficient to exhaust as to
actions that had been authorized by the Attorney General, despite the government’s lack of clarity as to
what authority the administrative remedy procedure might have over the Attorney General’s
decisions); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000) (telling the warden about the problem
did not exhaust even though the warden said he would “take care” of it); Freeman v. Francis, 196 F.3d
641, 644 (6th Cir. 1999) (prompting a use of force investigation did not substitute for filing a grievance);
Scott v. Gardner. 287 F. Supp. 2d 477, 488 (S.D.N.Y. 2003) (letters of complaint are not part of the
grievance process and do not exhaust).
217. In Pavey v. Conley, 170 F. App’x 4, 8, (7th Cir. 2006), the plaintiff alleged that prison staff
had broken his arm and he couldn’t write, and the grievance rules said that prisoners who couldn’t
are “special circumstances” justifying your failure to exhaust properly. 218 In a few cases,
courts have held that non-grievance complaints that were in fact reviewed at the highest
levels of the agency satisfied the exhaustion requirement in the particular circumstances of
those cases,219 though it is not clear whether these cases are good law after the Woodford
“proper exhaustion” holding.
The Second Circuit has issued contradictory decisions concerning informal remedies. It
first held a prisoner who resolved his complaint successfully through informal channels met
the exhaustion requirement because the New York State grievance procedure states it is
“intended to supplement, not replace, existing formal or informal channels of problem
resolution.” 220 Under that ruling, using informal channels will not meet the exhaustion
requirement unless your problem is actually resolved through them,221 so you will need to file
a formal grievance or appeal. In later decisions, however, the Second Circuit called the idea
of informal exhaustion into question. It held a prisoner who got what he asked for in an
informal process should have filed a formal grievance anyway because that process could
write could be assisted by staff. The court held that any memorialization of his complaint by
investigating prison staff might qualify as a grievance—and even if they did not write it down, he
might have “reasonably believed that he had done all that was necessary to comply with” the policy. See
also Carter v. Symmes, No. 06-10273-PBS, 2008 U.S. Dist. LEXIS 7680, at *8 (D. Mass. Feb. 4, 2008)
(unpublished) (timely letter from counsel served to exhaust where grievance rules did not specify use of
a form; letter considered as part of prisoners’ grievance raising other issues); Rand v. Simonds, 422 F.
Supp. 2d 318, 326 (D.N.H. 2006) (holding that a policy stating prisoners have the “right and
opportunity” to file grievances “did not fairly suggest that the grievance procedure was the only way, or
even the correct way, for inmates to complain about their treatment”); Carter v. Klaus, No. 1:CV-05-
1995, 2006 U.S. Dist. LEXIS 93031, at *8 (M.D. Pa. Dec. 22, 2006) (unpublished) (noting that prison
policy allowed physical abuse complaints to be pursued as grievances or as complaints to the Office of
Professional Responsibility); Shaheed-Muhammad v. Dipaolo, 393 F. Supp. 2d 80, 96–97 (D. Mass.
2005) (concluding that letters to officials are considered grievances under state law).
218. For information about what counts as a “special circumstance,” see Part E(5) of this
Chapter, “What if You Make a Mistake Trying to Exhaust?”
219. See Camp v. Brennan, 219 F.3d 279, 280 (3d Cir. 2000) (holding that use of force allegation
reportedly investigated and rejected by Secretary of Correction’s office needed no further exhaustion);
Noguera v. Hasty, No. 99 Civ. 8786 (KMW) (AJP), 2001 U.S. Dist. LEXIS 2458, at *11–12 (S.D.N.Y.
Mar. 12, 2001) (unpublished) (exhaustion requirement satisfied in unusual case where the prisoner’s
informal complaint of rape resulted in an Internal Affairs investigation); Roland v. Murphy, 289 F.
Supp. 2d 321, 324 (E.D.N.Y. 2003) (complaints to Sheriff’s Department Internal Affairs unit and
District Attorney’s office gave “ample opportunity” to address complaint internally.)
These cases are unusual and you should not bypass the grievance system and count on getting such
a decision. But, if you are in the position where you must argue that another kind of complaint meets
the exhaustion requirement, be sure to remind the court that the Supreme Court, in discussing
Congress’ purpose in requiring exhaustion, said that “Congress afforded corrections officials time and
opportunity to address complaints internally before allowing the initiation of a federal case.” Porter v.
Nussle, 534 U.S. 516, 525, 122 S. Ct. 983, 988, L. Ed. 2d. 12, 22 (2002). You can then argue that if
prison officials actually reviewed your complaint, they had the opportunity to address the complaint
internally, and the exhaustion requirement was therefore satisfied. The likelihood of success of this
argument is not high. See, e.g., Macias v. Zenk, 495 F.3d 37, 43–44 (2d Cir. 2007) (holding “after
Woodford, notice alone is insufficient”; the PLRA requires both “substantive exhaustion” (notice to
officials) and “procedural exhaustion” (following the rules)).
220. Marvin v. Goord, 255 F.3d 40, 43 n.3 (2d Cir. 2001); see Gibson v. Brooks, 335 F. Supp. 2d
325, 328–29 (D. Conn. Sept. 16, 2004) (holding that a prisoner who said he complained informally about
an assault he had warned prison staff about, and who had received an apology, had sufficiently alleged
a favorable resolution).
221. See, e.g., Thomas v. Cassleberry, 315 F. Supp. 2d 301, 304 (W.D.N.Y. 2004) (holding a
complaint to the Inspector General exhausts informally only if resolution is favorable); Rivera v. Goord,
253 F. Supp. 2d 735, 751 (S.D.N.Y. Mar. 28, 2003) (holding a prisoner who began an investigation of his
claim, but did not show he got a favorable resolution informally or sought administrative review of an
unfavorable decision, had not exhausted informally).
have provided other relief, like changes in policy or discipline of staff.222 So, if you solve your
problem informally but still want to bring suit about what happened, you should file a
grievance and pursue it all the way to the top. In this grievance, you could say, for example,
you want “prison officials to reconsider their policies and discipline any officer who had failed
to follow existing policies.”223
The Second Circuit has held if a prisoner uses the wrong remedy through a reasonable
misunderstanding of the rules, the prisoner is justified in failing to exhaust correctly; if the
correct administrative remedy is still available, the prisoner must try to use it, but if it is no
longer available, the prisoner’s case may go forward without exhaustion.224 A prisoner may
also be justified in failing to exhaust the correct procedures because of threats or
intimidation by prison staff.225 These rules appear to still be good law after the Woodford
“proper exhaustion” ruling, since they address fact situations different than those before the
Supreme Court in Woodford. But the Second Circuit has not ruled on that question yet.226
The exhaustion requirement refers only to administrative remedies; you do not have to
exhaust judicial remedies (i.e., go to state court) before you go to federal court.227 That means
you do not have to appeal to the judiciary from administrative decisions in states that have
such procedures.228 The administrative remedies Congress had in mind when it passed the
PLRA are internal prison grievance procedures.229 A prisoner is not required to exhaust state
222. Braham v. Clancy, 425 F.3d 177, 183 (2d Cir. 2005); see also Ruggiero v. County of Orange,
467 F.3d 170, 177 (2d Cir. 2006) (holding prisoner beaten in jail, who talked to Sheriff’s Department
investigators and then was transferred, did not exhaust). Ruggiero says that Marvin v. Goord “does not
imply that a prisoner has exhausted his administrative remedies every time he receives his desired
relief through informal channels.”
223. Ruggiero v. County of Orange, 467 F.3d 170, 177 (2d Cir. 2006).
224. Giano v. Goord, 380 F.3d 670, 678–80 (2d Cir. 2004) (holding that prisoner who used a
disciplinary appeal rather than a grievance for his issues did so reasonably); see also Hemphill v. New
York, 380 F.3d 680, 689–90 (2d Cir. 2004) (agreeing with Giano v. Goord, 380 F.3d 670 (2d Cir. 2004));
Warren v. Purcell, No. 03 Civ. 8736 (GEL), 2004 U.S. Dist. LEXIS 17792, at *20 (S.D.N.Y. Sept. 3,
2004) (unpublished) (holding that a “baffling” grievance response that left the prisoner with no clue
what to do next was a special circumstance justifying failure to exhaust).
225. Hemphill v. New York, 380 F.3d 680, 688, 690 (2d Cir. 2004) (noting that a prisoner afraid
to file an internal grievance but not to appeal “directly to individuals in positions of greater authority
within the prison system, or to external structures of authority such as state or federal courts” might
have been justified in failing to exhaust).
226. Other courts have endorsed the Hemphill holding after the decision in Woodford. See Kaba
v. Stepp, 458 F.3d 678, 684–85 (7th Cir. 2006) (adopting Hemphill analysis); Stanley v. Rich, No. CV
605-075, 2006 U.S. Dist. LEXIS 35916, at *5 (S.D. Ga. June 1, 2006) (unpublished) (stating “threats of
violent reprisal may, in some circumstances, render administrative remedies ‘unavailable’ or otherwise
justify an inmate’s failure to pursue them”).
227. By contrast, you must exhaust state judicial remedies before you can bring a case in federal
court challenging a decision affecting your release from incarceration, like a disciplinary proceeding at
which you lost good-time credits. See Edwards v. Balisok, 520 U.S. 641, 647–49, 117 S. Ct. 1584, 1588–
89, 137 L. Ed. 2d 906, 914–15 (1997) (holding that a state prisoner’s claim for damages for violation of
his due process rights cannot be recognized in federal court if a verdict in his favor would imply the
invalidity of his sentence, unless that sentence has already been invalidated). This rule has nothing to
do with the PLRA.
228. See Jenkins v. Morton, 148 F.3d 257, 259–60 (3d Cir. 1998) (finding prisoner not required to
exhaust his state judicial remedies prior to bringing an action covered by PLRA); Mullins v. Smith, 14
F. Supp. 2d 1009, 1012 (E.D. Mich. 1998) (court dismissed plaintiff’s claim as frivolous, but noted that
plaintiff had exhausted his administrative remedies). New York does not have that kind of judicial
review procedure. Instead, New York permits review of administrative decisions by Article 78
proceedings. For more information on Article 78 proceedings, see JLM Chapter 22.
229. See Jones v. Bock, 549 U.S. 199, 217–19, 127 S. Ct. 910, 922–23, 166 L. Ed. 2d 798, 815
(2007) (“Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to
‘properly exhaust.’”) (emphasis added); Porter v. Nussle, 534 U.S. 516, 524–25, 122 S. Ct. 983, 988, 152
or federal tort claim procedures, unless the prisoner wishes to sue under the tort claims
system.230 (For information on tort claims generally, see Chapter 17 of the JLM, “The State’s
Duty to Protect You and Your Property: Tort Actions.”) Several New York federal courts have
held that prisoners making disability-related complaints must exhaust the U.S. Department
of Justice’s disability complaint procedure in addition to the prison grievance procedure.231
Others have disagreed. 232 The state prison system has rejected that argument, 233 though
other state agencies continue to support it.234 We think it is wrong, since, as noted, Congress
was concerned about internal prison procedures.
2. What Are Prison Conditions?
The exhaustion requirement applies to cases filed by prisoners about “prison conditions.”
The Supreme Court has said the phrase applies “to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.”235 In other words, if it happened to you in prison, it is
probably covered by the exhaustion requirement.236 Prior decisions holding use of force cases
L. Ed. 2d 12, 21 (2002) (stating the exhaustion requirement was intended to give corrections officials
the opportunity to solve problems before suit was filed). See also O’Guinn v. Lovelock Corr. Ctr., 502
F.3d 1056, 1062–63 (9th Cir. 2007) (holding use of Department of Justice disability complaint process
did not satisfy PLRA exhaustion requirement); Massey v. Helman, 196 F.3d 727, 733–34 (7th Cir. 1999)
(holding PLRA requires exhaustion of internal prison remedies); Alexander v. Hawk, 159 F.3d 1321,
1326 (11th Cir. 1998) (same); Aiello v. Litscher, 104 F. Supp. 2d 1068, 1074 (W.D. Wis. 2000) (prisoners
who had exhausted the grievance system were not required also to exhaust a procedure providing for
declaratory rulings by agencies).
230. See Macias v. Zenk, 495 F.3d 37, 42–44 (2d Cir. 2007); Garrett v. Hawk, 127 F.3d 1263,
1266 (10th Cir. 1997); Blas v. Endicott, 31 F. Supp. 2d 1131, 1132–34 (E.D. Wis. 1999).
231. William G. v. Pataki, No. 03 Civ. 8331 (RCC), 2005 U.S. Dist. LEXIS 16716, at *20
(S.D.N.Y. Aug. 12, 2005) (unpublished); Burgess v. Garvin, No. 01 Civ. 10994 (GEL), 2003 U.S. Dist.
LEXIS 14419, at *8 (S.D.N.Y. Aug. 19, 2003) (unpublished), on reconsideration, 2004 U.S. Dist. LEXIS
4122 (S.D.N.Y. March 16, 2004) (unpublished).
232. Veloz v. State of New York, 2004 339 F. Supp. 2d 505, 517 (S.D.N.Y. Sept. 30, 2004), aff’d,
No. 05-0272-pr, 178 F. App’x 39, 2006 U.S. App. LEXIS 10533 (2d Cir. Apr. 24, 2006) (unpublished);
Shariff v. Artuz, No. 99 Civ. 0321 (DC), 2000 U.S. Dist. LEXIS 12248 (S.D.N.Y. Aug. 28, 2000)
(unpublished); see O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1062–63 (9th Cir. 2007) (holding use
of Department of Justice disability complaint process did not satisfy PLRA exhaustion requirement).
233. Rosario v. Goord, 400 F.3d 108 (2d Cir. 2005) (per curiam).
234. William G. v. Pataki, No. 03 Civ. 8331 (RCC), 2005 U.S. Dist. LEXIS 16716 (S.D.N.Y. Aug.
12, 2005) (unpublished) (accepting argument in action defended by state Division of Parole and Office of
Mental Health).
235. Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992, 152 L. Ed. 2d 12, 26 (2002).
236. See Krilich v. Fed. Bureau of Prisons, 346 F.3d 157, 159 (6th Cir. 2003) (holding that
intrusions on attorney-client correspondence and telephone conversations are prison conditions
notwithstanding argument that attorney-client relationship “transcends the conditions of time and
place”); United States v. Carmichael, 343 F.3d 756, 762 (5th Cir. 2003) (holding that statutorily
required DNA collection is a prison condition); Castano v. Neb. Dep’t of Corr., 201 F.3d 1023, 1024 (8th
Cir. 2000) (failure to provide interpreters for Spanish-speaking prisoners is a prison condition); Brewer
v. Philson, No. 06-1013, 2007 U.S. Dist. LEXIS 2036, at *6 (W.D. Ark. Jan. 10, 2007) (unpublished)
(holding that excessive force on arrest does not require exhaustion, but excessive force after arrest in a
jail holding cell does); Ray v. Evercom Sys., Inc., No. 4:05-2904-RBH, 2006 U.S. Dist. LEXIS 61132, at
*19 (D.S.C. Aug. 25, 2006) (unpublished) (holding antitrust suit about telephone service charges was
about prison conditions).
A rare exception to this rule of thumb is Ayyad v. Gonzales, No. 05-cv-02342-WYD-MJW, 2008 WL
203420, at *3 (D. Colo. Jan. 17, 2008) (unpublished), vacated on reconsideration on other grounds, 2008
U.S. Dist. LEXIS 62863 (D. Colo. July 31, 2008) (unpublished), which holds that denial of a prisoner’s
ability to meet with clinical law students was not a matter of prison conditions, in part because the
administrative dictates were made by the Attorney General, and the Bureau of Prisons had no
authority to remove or amend them.
are not about “prison conditions” and need not be exhausted are no longer good law. This is
not an issue in use-of-force cases arising in the New York City jails, since you cannot bring
“complaints pertaining to an alleged assault” under that system’s grievance procedure, and
therefore you do not need to exhaust use-of-force or prisoner assault claims. 237 But, you
would need to exhaust other claims arising out of those incidents, like prison staff preventing
you from receiving medical care for injuries.
Actions of persons or agencies outside the prison system are generally not prison
conditions. 238 Occurrences or conditions in police custody are generally not prison
conditions.239 The same should be true of medical facilities outside the prison.240 Disputes
over whether you should be in prison at all are not about prison conditions.241 Courts have
237. City of New York, Department of Corrections, Directive No. 3375R § II.B, Inmate Grievance
Program (1998) (as revised Mar. 4, 1985). This directive has recently been revised but the substance of
this point is unchanged: “Inmate allegations of assault or harassment by either staff or inmates are not
grievable under the grievance mechanism.” City of New York, Department of Corrections, Directive
3375R-A, Inmate Grievance Resolution Program at § II.C.2 (March 13, 2008), available at
http://www.nyc.gov/html/doc/downloads/pdf/3375R-A.pdf. If a complaint is not grievable, and there is no
other administrative remedy that is applicable to a problem, then there is no exhaustion requirement.
238. For example, one court held that the Department of Homeland Security’s placement of a
prisoner on a “watch list” was not a prison condition requiring exhaustion; however, the prison’s actions
in placing him in segregation or depriving him of telephone privileges required exhaustion. Almahdi v.
Ridge, No. 04-3120, 201 F. App’x 865, 868, 2006 U.S. App. LEXIS 26938, at *6 (3d Cir. Oct. 27, 2006)
(unpublished). Another has held that a prisoner’s claim that prosecutors and investigators conspired to
harm him in jail because he had information about official corruption was not a prison condition claim,
even though it had an impact on prison conditions, and the exhaustion requirement did not apply.
Johnson v. Quinn, No. 96 C 6598, 1999 U.S. Dist. LEXIS 2434, at *3 (N.D. Ill. Feb. 26, 1999)
(unpublished). Holtz v. Monsanto, Inc., No. 05-070-GPM, 2006 U.S. Dist. LEXIS 36893, at *1 (S.D. Ill.
June 6, 2006) (unpublished) (holding prisoner’s claim of “negligence, strict products liability, ‘deceit and
misrepresentation,’ and breach of express or implied warranties arising out of Defendants’ involvement
with the product Aspartame,” was not about prison conditions). Compare Reid v. Fed. Bureau of
Prisons, No. 04-1845 (ESH), 2005 U.S. Dist. LEXIS 15138, at *10 (D.D.C. July 20, 2005) (unpublished)
(holding Privacy Act claim about inaccuracy in prison records affecting classification was about prison
conditions), with Lee v. U.S. Dep’t of Justice, 235 F.R.D. 274, 290 (W.D. Pa. Mar. 30, 2006) (holding
alleged violation of Privacy Act resulting in plaintiff’s and his agents’ being unable to access his outside
bank accounts for a year “did not related to prison life” and need not be exhausted).
239. See Brewer v. Philson, No. 06-1013, 2007 U.S. Dist. LEXIS 2036, at *6 (W.D. Ark. Jan. 10,
2007) (unpublished); Bowers v. City of Philadelphia, No. 06-CV-3229, 2007 U.S. Dist. LEXIS 5804, at
*116, n.40 (E.D. Pa. Jan. 25, 2007) (unpublished) (holding police holding cells were not prisons for
purpose of prisoner release provisions of PLRA).
240. In Borges v. Adm’r for Strong Mem. Hosp., No. 99-CV-6351Fe, 2002 U.S. Dist. LEXIS
18596, at *11 (W.D.N.Y. Sept. 30, 2002) (unpublished), the court expressed doubt that a claim made by
prisoners injured by dentists at an outside hospital involved prison conditions, since the grievance
system probably could not take any action against defendants. The court reached the opposite
conclusion in Abdur-Raqiyb v. Erie County Med. Ctr., 536 F. Supp. 2d 299, 304 (W.D.N.Y. 2008), on the
grounds that the statute is supposed to be read broadly and the plaintiff was clearly a prisoner.
241. White v. Thompson, No. 406CV207, 2007 WL 628121, at *2 (S.D. Ga. Feb. 26, 2007)
(unpublished) (holding false imprisonment claims are about prison conditions); Bost v. Adams, No.
1:04-0446, 2006 WL 1674485, at *5 (S.D. W.Va. June 12, 2006) (unpublished) (holding a challenge to a
restriction on the time a prisoner could serve in a community corrections center was not about prison
conditions); Fuller v. Kansas, No. 04-2457-CM, 2005 U.S. Dist. LEXIS 18977, at *5 (D. Kan. Aug. 8,
2005) (unpublished) (holding claims of false arrest and imprisonment are not prison conditions claims
under the statute), aff’d, 175 F. App’x 234 (10th Cir. 2006); Wishom v. Hill, No. 02-2291-KHV, 2004
U.S. Dist. LEXIS 2171, at *33 (D. Kan. Feb. 13, 2004) (unpublished) (holding detention without
probable cause not a prison condition); Monahan v. Winn, 276 F. Supp. 2d 196, 204 (D. Mass. 2003)
(holding a Bureau of Prisons rule revision abolishing its discretion to designate some offenders to
community confinement facilities did not involve conditions).
reached differing decisions on matters related to parole release or revocation.242 Complaints
that arise in halfway houses or residential treatment programs are likely to be considered as
being about prison conditions as long as you are there because of a criminal conviction or
charge and you are not free to leave.243 But, courts have held issues about placement in or
removal from such programs are not about prison conditions.244 One court has held a claim
that prisoners with mental illness were discharged without receiving psychiatric medication
and referrals is not about prison conditions.245
3. What Are “Available” Remedies?
The PLRA says you must exhaust “available” remedies. A remedy is “available” if it has
any “authority to provide any relief or to take any action whatsoever in response to a
complaint.”246 You may believe that the grievance system in your prison is unfair, futile, and
a waste of time, but you have to exhaust anyway. 247 The requirement of pre-PLRA law that
remedies be “plain, speedy and effective” has been repealed.
242. Compare L.H. v. Schwarzenegger, 519 F. Supp. 2d 1072, 1081 n.9 (E.D. Cal. Sept. 19, 2007)
(holding parole violation procedures are not prison conditions); Valdivia v. Davis, 206 F. Supp. 2d 1068,
1074 n.12 (E.D. Cal. 2002) (holding a challenge to parole revocation procedures was not a “civil action
with respect to prison conditions” under 18 U.S.C. § 3626(g)(2)) with Morgan v. Messenger, No. 02-319-
M, 2003 U.S. Dist. LEXIS 14892, at *8 (D.N.H. Aug. 27, 2003) (unpublished) (holding sex offender
treatment director’s disclosure of private information from plaintiff’s treatment file to parole
authorities and prosecutor involved prison conditions, since the director was a prison employee and the
action affected the duration of his prison confinement); Salaam v. Consovoy, No. 99-5692 (JEI), 2000
U.S. Dist. LEXIS 19971, at *10–11 (D.N.J. May 31, 2000) (unpublished) (holding failure to provide
proper parole release hearings is a prison condition). Salaam may be distinguishable from Valdivia on
the ground that parole release hearings involve a process commenced in prison, while parole revocation
proceedings are commenced and are based on events outside prison. See also Farnworth v. Craven, No.
CV05-493-S-MHW, 2007 U.S. Dist. LEXIS 19412, at *14 (D. Idaho Mar. 14, 2007) (unpublished)
(holding demand for new parole hearing was about “prison conditions” because it need not be pursued
via habeas corpus, but grievance system was not available because it had no authority over the Parole
Commission).
243. Ruggiero v. County of Orange, 467 F.3d 170, 174–75 (2d Cir. 2006) (holding “drug treatment
campus” was a “jail, prison, or other correctional facility;” that term “includes within its ambit all
facilities in which prisoners are held involuntarily as a result of violating the criminal law”); Witzke v.
Femal, 376 F.3d 744, 753 (7th Cir. 2004) (stating that an “intensive drug rehabilitation halfway house”
comes within the meaning of the term “any jail, prison, or other correctional facility”); William G. v.
Pataki, No. 03 Civ. 8331 (RCC), 2005 U.S. Dist. LEXIS 16716, at *11 (S.D.N.Y. Aug. 12, 2005)
(unpublished) (holding that question whether persons incarcerated pending parole revocation
proceedings were entitled to be placed in less restrictive residential treatment programs for mental
illness and chemical addition involved prison conditions).
244. See Bost v. Adams, No. 1:04-0446, 2006 WL 1674485, at *5 (S.D. W.Va. June 12, 2006)
(unpublished) (holding challenge to a restriction on the time a prisoner could serve in a community
corrections center was not about prison conditions); Belk v. Fed. Bureau of Prisons, No. 07-C-301-C,
2004 WL 5352260, at *14 (W.D. Wis. Oct. 15, 2004) (unpublished) (challenge to transfer from prison
camp to halfway house involved a “quantum change” in level of custody and was not about prison
conditions); Monahan v. Winn, 276 F. Supp. 2d 196, 204 (D. Mass. 2003) (holding that a Bureau of
Prisons rule revision that abolished its discretion to designate certain offenders to community
confinement facilities did not involve prison conditions).
245. Bolden v. Stroger, No. 03 C 5617, 2005 U.S. Dist. LEXIS 7473, at *4 (N.D. Ill. Feb. 1, 2005)
(unpublished). But, the court held a claim of exclusion of persons with mental illness from pre-release
programs was about conditions.
246. Booth v. Churner, 532 U.S. 731, 736, 121 S. Ct. 1819, 1822, 149 L. Ed. 2d 958, 963 (2001).
247. Booth v. Churner, 532 U.S. 731, 740 n.6, 121 S. Ct. 1819, 1825 n.6, 149 L. Ed. 2d 958, 967
n.6 (2001) (“[W]e will not read futility or other exceptions into statutory exhaustion requirements
where Congress has provided otherwise.”) (citation omitted); see Boyd v. Corr. Corp. of Am., 380 F.3d
989, 998 (6th Cir. 2004) and cases cited (holding that prisoners’ subjective belief that the process will be
unresponsive does not excuse non-exhaustion), cert. denied, 544 U.S. 920 (2005); Alexander v. Tippah
The “available” remedy you must exhaust will usually be the prison grievance
procedure.248 But, if an issue is not “grievable” under grievance rules, you should not be
required to exhaust the grievance system because it is not available for your issue.249 For
example, the New York State grievance directive states
(1) An individual decision or disposition of any current or subsequent
program or procedure having a written appeal mechanism which
extends review to outside the facility shall be considered non-
grievable.
(2) An individual decision or disposition of the temporary release
committee, time allowance committee, family reunion program or
media review committee is not grievable. Likewise, an individual
decision or disposition resulting from a disciplinary proceeding,
inmate property claim (of any amount), central monitoring case
review or records review (freedom of information request, expunction)
is not grievable.
(3) The policies, rules, and procedures of any program or procedure,
including those above, are grievable.250
So, for example, your complaint about the denial of temporary release would not be
grievable, but your complaint that the Temporary Release Committee used unfair procedures
would be grievable.
The New York City jail grievance directive lists the following “non-grievable issues:”
(1) matters under investigation by the Inspector General;
County, 351 F.3d 626, 630 (5th Cir. 2003) (holding that allegations of the grievance system’s
inadequacy did not excuse failure to exhaust).
This means, for example, that if another prisoner has just grieved the same issue and lost, you still
need to grieve it yourself, even though you are certain that it is futile because you will get the same
ruling. See Hattie v. Hallock, 8 F. Supp. 2d 685, 689 (N.D. Ohio May 11, 1997) (stating that “vicarious”
exhaustion is not permitted, except in class actions), amended by 16 F. Supp. 2d 834 (N.D. Ohio June
23, 1998) (dismissing prisoner’s action without prejudice because he had not exhausted his remedies
before filing).
248. The prisoner must use the administrative procedure of the institution or system where his
or her problem arose. Acosta v. United States Marshals Serv., 445 F.3d 509, 512–13 (1st Cir. 2006)
(holding that a prisoner who was placed by the Marshals Service in several county jails and two federal
prisons, but only used the Marshals’ complaint system, failed to exhaust either as to the jails or as to
the Bureau of Prisons institutions).
249. See Owens v. Keeling, 461 F.3d 763, 769 (6th Cir. 2006) (holding grievance system was not
an available remedy for classification complaint where prison required use of a separate classification
appeal procedure); Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003) (courts must establish that the
prisoner’s claim does not fall into an exception to the administrative remedy); Snider v. Melindez, 199
F.3d 108, 114 (2d Cir. 1999) (“[T]he provision clearly does not require a prisoner to exhaust
administrative remedies that do not address the subject matter of his complaint.”); Mitchell v. Caruso,
No. 1:07-cv-92, 2008 U.S. Dist. LEXIS 65954, at *2 (W.D. Mich. Aug. 28, 2008) (unpublished) (noting
grievance policy made “the content of a policy” non-grievable); McGrath v. Johnson, 67 F. Supp. 2d 499,
510–11 (E.D. Pa. 1999) (holding prisoner not required to file a grievance on a matter the inmate
grievance procedure would not address).
One court has recently stated that exhaustion is required “even if a prisoner ‘understood that the
claims put forth in [his] complaint were “non-grievable” under prison policy.’” Steele v. Fed. Bureau of
Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003) (quoting Beaudry v. Corr. Corp. of Am., 331 F.3d 1164,
1166 (10th Cir. 2003)). The court referred to situations where a prisoner thought a claim was non-
grievable but was wrong. If there is any question whether your claim is grievable, you should still
exhaust.
250. State of New York, Department of Correctional Services, Directive No. 4040 § 701.3(e),
Inmate Grievance Program (2003) (as revised July 1, 2006). The state regulations say the same thing.
See N.Y. Comp. Codes R. & Regs. tit. 7, § 701.3 (2006).
(2) complaints pertaining to an alleged assault or verbal harassment;
(3) complaints pertaining to matters in litigation;
(4) complaints where there is already an existing appeal mechanism within the
Department of Correction (that is, determinations of disciplinary hearings and
classification);
(5) matters outside the jurisdiction of the Department of Correction; and
(6) complaints that do not directly affect the prisoner.251
Courts have held issues over which the grievance system has no actual authority need
not be exhausted, even if they are not listed as non-grievable. 252 Also, an issue may be
grievable on paper but non-grievable in fact because of how the grievance system operates.253
For example, there have been allegations that New York City prisoners are told at
orientation “a grievance cannot be brought against Officers or Staff”; if these allegations are
true, they would excuse the prisoner from exhaustion.254
Often, there is a separate, specialized remedy for a non-grievable issue. If so, you must
use it.255 This is most often an issue with disciplinary proceedings and issues related to them:
251. City of New York, Department of Corrections, Directive No. 3375R § II(B) Inmate Grievance
Program (1998) (as revised Mar. 4, 1985). This directive has recently been revised, but the list of non-
grievable issues remains substantially the same. See New York City, Deparment of Corrections,
Directive 3375R-A, Inmate Grievance Resolution Program at § II.C. (March 13, 2008), available at
http://www.nyc.gov/html/doc/downloads/pdf/3375R-A.pdf.
252. See Nooner v. Norris, No. 5:06CV00110 SWW, 2006 WL 4958988, at *3 (E.D. Ark. June 19,
2006) (unpublished) (holding that prisoner challenging lethal injection protocol need not exhaust the
grievance process because it had no authority, since state law placed the subject entirely in the
Director’s authority); Farnworth v. Craven, No. CV05-493-S-MHW, 2007 U.S. Dist. LEXIS 19412, at
*14 (D.Idaho Mar. 14, 2007) (unpublished) (holding prisoner seeking a new parole hearing need not
exhaust the grievance system because it had no authority over the Parole Commission); Stevens v.
Goord, 99 Civ. 11669(LMM), 2003 U.S. Dist. LEXIS 10118, at *17 (S.D.N.Y. June 16, 2003)
(unpublished) (private prison medical provider failed to show that the prison grievance procedure
would actually have authority over claims against it); Handberry v. Thompson, 92 F. Supp. 2d 244,
247–48 (S.D.N.Y. 2000) (holding that prisoners need not grieve failure to deliver educational services
because the issues were out of the control of the Department of Corrections). But see Arsberry v.
Illinois, 244 F.3d 558, 562 (7th Cir. 2001) (“[P]laintiffs say they have no such remedies against
exorbitant phone bills, but the cases we have cited reject a ‘futility’ exception to the requirement of
exhaustion.”) The Arsberry court overlooked the distinction between an allegedly futile remedy and one
that is not available, and in any case did not have the benefit of Booth’s holding, with which it appears
inconsistent.
253. See Marshall v. Knight, No. 3:03-CV-460 RM, 2006 U.S. Dist. LEXIS 84040, at *7 (N.D. Ind.
Nov. 17, 2006) (unpublished) (holding that instructions to grievance personnel to respond to grievances
about law library hours only by sending prisoners a copy of a memo deprived grievance staff of
authority to act on those grievances and made the remedy unavailable); Wigfall v. Duval, No. 00-12274-
DPW, 2006 U.S. Dist. LEXIS 57836, at *25 (D. Mass. Aug. 15, 2006) (unpublished) (citing evidence that
use of force claims were not treated as grievances); Scott v. Gardner, 287 F. Supp. 2d 477, 491 (S.D.N.Y.
2003) (holding that allegations that grievance staff refused to process and file grievances about
occurrences at other prisons, claiming they were not grievable, sufficiently alleged lack of an available
remedy); Livingston v. Piskor, 215 F.R.D. 84, 86–87 (W.D.N.Y. 2003) (holding that evidence that
grievance personnel refused to process grievances where a disciplinary report had been filed covering
the same events created a factual issue precluding summary judgment); see Marr v. Fields, No. 1:07-cv-
494, 2008 U.S. Dist. LEXIS 24993, at *1 (W.D.Mich. Mar. 27, 2008) (unpublished) (evidence that
hearing officers interpreted grievance policy broadly to exclude all grievances with any relationship to a
disciplinary charges could excuse failure to exhaust).
254. Davis v. Frazier, No. 98 Civ. 2658(HB), 1999 U.S. Dist. LEXIS 5911, at *10 (S.D.N.Y. June
15, 1999) (unpublished).
255. See Owens v. Keeling, 461 F.3d 763, 769–72 (6th Cir. 2006) (holding prisoner who filed
classification appeal exhausted, notwithstanding failure to complete inapplicable grievance procedure);
Jenkins v. Haubert, 179 F.3d 19, 23 n.1 (2d Cir. 1999) (appeal of disciplinary conviction satisfied the
exhaustion requirement); Timley v. Nelson, No. 99-3038-JWL, 2001 U.S. Dist. LEXIS, at *4–5 (D. Kan.
to satisfy the "proper exhaustion" requirement, 256 you must choose correctly between
appealing a disciplinary action and filing a separate grievance—and sometimes you may
need to do both. Generally, a suit that attacks the conduct of the disciplinary hearing itself is
exhausted by a disciplinary appeal. 257 A suit about the incident that led to disciplinary
charges (e.g., an allegation that staff used excessive force in an incident for which a prisoner
was charged) will generally not be exhausted by a disciplinary appeal and will require a
separate grievance.258 However, in all cases it is the prison's rules governing grievances and
appeals that will determine which remedy is the correct one.259 This issue will most often
Feb. 16, 2001) (unpublished) (prisoner’s failure to pursue “religious accommodation” exception
procedure meant that administrative remedies were not exhausted); Mullins v. Smith, 14 F. Supp. 2d
1009, 1012 (E.D. Mich. 1998) (prisoner exhausted state administrative remedies by submitting a
request for a rehearing).
256. This rule is discussed in Part E(5), "What If You Make a Mistake Trying To Exhaust?"
257. Jenkins v. Haubert, 179 F.3d 19, 23 n.1 (2d Cir. 1999) (holding that disciplinary appeals
exhausted plaintiff’s challenge to the resulting disciplinary sanctions); Portley-El v. Steinbeck, No. 06-
cv-02096-MSK-MJW, 2008 U.S. Dist. LEXIS 20236, at *2 (D. Colo. Mar. 14, 2008) (unpublished)
(holding that a disciplinary appeal exhausted due process claims under rule stating that grievance
procedure may not be used to seek review of disciplinary convictions; rejecting defendants’ argument
that constitutional claims could be grieved); Rivera v. Goord, 253 F. Supp. 2d 735, 749 (S.D.N.Y. 2003)
(holding that a claim of hearing officer misconduct was exhausted by a disciplinary appeal);
Muhammad v. Pico, No. 02 Civ. 1052, 2003 U.S. Dist. LEXIS 13402, at *31 n.22 (S.D.N.Y. Aug. 5, 2003)
(unpublished) (holding due process claims exhausted by disciplinary appeal); Sweet v. Wende Corr.
Facility, 253 F. Supp. 2d 492, 496 (W.D.N.Y. 2003) (holding an appeal from a disciplinary hearing may
exhaust if it raises the same issues as the subsequent federal complaint). But see Rivera v. Nelson, No.
05-cv-00300-WDM-MEH, 2006 U.S. Dist. LEXIS 52586, at *3 (D. Colo. July 17, 2006) (unpublished)
(holding that disciplinary appeals exclusively addressed only “the conviction that resulted from the
disciplinary hearing and the placement that resulted from the administrative segregation hearing,” and
due process claims should have been the subject of separate grievances); accord Ross v. Gibson, No. 06-
cv-00064-WYD-MEH, 2006 U.S. Dist. LEXIS 65577, at *6–7 (D. Colo. Aug. 8, 2006) (unpublished).
258. See Terrase v. Cain, No. 03-599-C, 2008 U.S. Dist. LEXIS 20783, at *1 (M.D. La. Mar. 17,
2008) (unpublished) (a disciplinary appeal did not exhaust a claim of failure to protect, since it did not
give officials adequate notice of that claim); Chavis v. Goord, No. 9:00-CV-01418 (LEK/DEP), 2007 U.S.
Dist. LEXIS 73210, at *2 (N.D.N.Y. Oct. 1, 2007) (unpublished) (holding disciplinary appeal did not
exhaust plaintiff’s claim for retaliation and interference with religious exercise; noting case is “readily
distinguishable” from due process challenges to hearing); Webster v. Kurtz, No. 04-cv-02663-EWN-
MEH, 2006 U.S. Dist. LEXIS 19354, at *5 (D. Colo. Mar. 31, 2006) (unpublished) (holding that
successful disciplinary appeal did not exhaust claims of subsequent retaliation and refusal to reinstate
visiting privileges; these should have been grieved notwithstanding rule prohibiting grieving
disciplinary convictions); Belton v. Robinson, No. 04-5105 (GEB), 2006 U.S. Dist. LEXIS 3472, at *9–10
(D.N.J. Jan. 30, 2006) (unpublished) (holding that an appeal of a disciplinary conviction did not exhaust
a claim that the officer injured the plaintiff during the incident); Rodney v. Goord, 00 Civ. 3724 (WK),
2003 U.S. Dist. LEXIS 8176, at *19 (S.D.N.Y. May 5, 2003) (unpublished) (holding an allegation of false
disciplinary charges had to be grieved in addition to appealing the disciplinary conviction); Tookes v.
Artuz, 00 Civ. 4969 (RCC) (HBP), 2002 U.S. Dist. LEXIS 12540, at *12 (S.D.N.Y. July 11, 2002)
(unpublished) (holding that appeal of disciplinary conviction did not exhaust as to claim against officer
who allegedly wrote a false disciplinary report). But see Mitchell v. Horn, 318 F.3d 523, 531 (3d Cir.
2003) (holding that a prisoner who claimed retaliatory discipline exhausted by appealing the
disciplinary decision to the highest level); Samuels v. Selsky, 01 Civ. 8235 (AGS), 2002 U.S. Dist.
LEXIS 17089, at *26–27 (S.D.N.Y. Sept. 11, 2002) (holding that propriety of confiscation of religious
materials had been exhausted via a disciplinary appeal from the resulting contraband and
“demonstration” charges; “issues directly tied to the disciplinary hearing which have been directly
appealed need not be appealed again collaterally through the Inmate Grievance Program”).
259. Woodford v. Ngo, 548 U.S. 81, 90, 126 S. Ct. 2378, 2385, 165 L. Ed. 2d 368, 378 (2006); see
Keal v. Washington, No. C05-5737RJB, 2007 WL 1977155, at *2 (W.D. Wash. July 3, 2007)
(unpublished) (noting disciplinary appeal must be used to challenge infraction or sanction for
infraction, but staff misconduct grievance was the remedy for use-of-force complaint).
arise in connection with issues that are directly related to the disciplinary hearing or charges
but do not challenge the conduct of the hearing itself. The problem is that prison rules are
often unclear to the point where even prison officials cannot keep them straight. For
example, in one New York State case, the defendants argued that a prisoner who alleged
that evidence used against him at a disciplinary hearing was a retaliatory fabrication should
have filed a separate grievance and not a disciplinary appeal to exhaust that issue. The
Second Circuit held that the prisoner was justified by special circumstances260 in filing only a
disciplinary appeal because the rule was unclear and he had a reasonable belief that his
complaint could only be pursued in an appeal.261 New York not only failed to clarify the
rule,262 but also in a later case made exactly the opposite argument: the prisoner had filed a
If the designated remedy is a disciplinary appeal, but the prisoner cannot appeal because he pled
guilty to the offense, the remedy is not available. Marr v. Fields, No. 1:07-cv-494, 2008 WL 828788, at
*5–7 (W.D. Mich. Mar. 27, 2008) (unpublished).
260. In the Second Circuit, such a finding means the prisoner is not deemed to have exhausted
but must seek to exhaust remedies if they remain available; if not, the prisoner may proceed with the
litigation. Giano v. Goord, 380 F.3d 670, 680 (2d Cir. 2004); Hemphill v. New York, 380 F.3d 680, 690–
91 (2d Cir. 2004).
261. Giano v. Goord, 380 F.3d 670, 679 (2d Cir. 2004) (stating that even if the plaintiff was
wrong, “his interpretation was hardly unreasonable;” the regulations “do not differentiate clearly
between grievable matters relating to disciplinary proceedings, and non-grievable issues concerning the
‘decisions or dispositions’ of such proceedings”); accord Johnson v. Testman, 380 F.3d 691, 696–97 (2d
Cir. 2004) (remanding claim that “because under BOP regulations the appellate process for disciplinary
rulings and for grievances was one and the same, [plaintiff] reasonably believed that raising his
complaints during his disciplinary appeal sufficed to exhaust his available administrative remedies,”
since it “cannot be dismissed out of hand, especially since the district court has not had the opportunity
to examine it”); Cahill v. Arpaio, No. CV 05-0741-PHX-MHM (JCG), 2006 U.S. Dist. LEXIS 80772, at *6
(D. Ariz. Nov. 2, 2006) (unpublished) (stating jail rules concerning what aspects of a disciplinary
incident can be grieved are “sufficiently confusing such that Plaintiff’s interpretation that he could not
grieve his excessive force claim is reasonable”); Harper v. Harmonn, No. CIV S-04-0339 FCD JFM P,
2006 U.S. Dist. LEXIS 61975, at *7–11 (E.D. Cal. Aug. 29, 2006) (unpublished) (holding plaintiff
exhausted where he raised his claim of falsified disciplinary charges in a disciplinary appeal and the
conviction was thrown out); Parish v. Lee, No. 02-2655 SECTION "R" (4), 2004 U.S. Dist. LEXIS 7056,
at *28 (E.D. La. Apr. 22, 2004) (unpublished) (“The inmates must be given the benefit of the doubt
based on what appears to be the written policy to which they are bound.”); see Vasquez v. Hilbert, No.
07-cv-00723-bbc, 2008 U.S. Dist. LEXIS 42011, at *10 (W.D. Wis. May 28, 2008) (unpublished)
(declining to dismiss where plaintiff exhausted his medical claim late because medical treatment was
mentioned in a disciplinary report and the rules said a grievance raising “any issue related to the
conduct report” must await completion of the disciplinary process; plaintiff acted reasonably in
waiting).
In Braham v. Clancy, 425 F.3d 177, 183 (2d Cir. 2005), the court directed the district court on
remand to consider whether the prisoner’s informal requests, his argument about prison officials’
unresponsiveness presented in his disciplinary appeal, or some combination of the two, gave prison
officials sufficient notice to allow them to take responsive measures, “thereby satisfying the exhaustion
of administrative remedies requirement.” To the extent Braham suggested that the disciplinary appeal
might satisfy the exhaustion requirement, as opposed to merely justifying the failure to exhaust, the
Second Circuit has now held it overruled by the “proper exhaustion” rule of Woodford v. Ngo, 548 U.S.
81 (2006), discussed in Part E(7)–(8), below. This holding appears to undermine subsequent district
court decisions assuming that a disciplinary appeal can satisfy the exhaustion requirement with
respect to issues other than the disciplinary proceeding itself as long as the appeal gives sufficient
notice of those other issues.
262. New York has, seemingly, attempted to shift the cost of unclear rules to the prisoners. The
most recent revision to its grievance policy states: “Note: If an inmate is unsure whether an issue is
grievable, he/she should file a grievance and the question will be decided through the grievance process
in accordance with section 701.5, below.” Appendix D, New York State, Department of Correctional
Services, Directive 4040, Inmate Grievance Program at § 701.3(e) (July 1, 2006). This provision,
grievance about retaliatory false discipline, and the defendants argued he should have
pursued a disciplinary appeal.263 In some cases, prison personnel appear to have stretched
the rules to reject grievances that were related to disciplinary proceedings even though the
rules did not actually require such rejection.264 In some prison systems, the rules do bar
grievances that have any relationship to a disciplinary incident.265 The bottom line is that
you must read the rules very carefully to determine whether a particular issue (the actions of
the hearing officer, the bringing of charges or the evidence behind them, or the underlying
incident) calls for a grievance or a disciplinary appeal. In some cases both will be required if
you wish to raise multiple issues.266 If the rules are not absolutely clear, it may be wise to file
both to protect yourself from an argument later that whatever you did was wrong. If prison
officials reject your use of a particular remedy, it is harder for them to argue later that you
should have used it.
A remedy may not be available because of circumstances peculiar to a particular case.
For example, a prisoner may be unable to file a grievance because of a medical condition.267
however, does not deal with the situation addressed in Giano where the prisoner reasonably believes
the issue is not grievable.
263. Larkins v. Selsky, No. 04 Civ. 5900 (RMB) (DF), 2006 U.S. Dist. LEXIS 89057, at *24
(S.D.N.Y. Dec. 6, 2006) (unpublished) (stating that Giano “nearly mirrors this case”).
264 . Woods v. Lozer, No. 3:05-1080, 2007 WL 173704, at *3 (M.D. Tenn. Jan. 18, 2007)
(unpublished) (holding a prisoner exhausted when he appealed a decision that his use of force claim
was not grievable because it was mistakenly said to seek review of disciplinary procedures and
punishments); Livingston v. Piskor, 215 F.R.D. 84, 86–87 (W.D.N.Y. 2003) (holding that evidence of
grievance personnel refusal to process grievances where a disciplinary report had been filed covering
the same events created a factual issue preventing summary judgment).
The above cited cases involved misapplication of prison policy or staff’s making up an unauthorized
rule. In some prison systems, it is in fact the rule that any overlap with a disciplinary proceeding
makes the matter non-grievable or not immediately grievable.
265. See Vasquez v. Hilbert, No. 07-cv-00723-bbc, 2008 U.S. Dist. LEXIS 42011, at *9 (W.D. Wis.
May 28, 2008) (unpublished) (citing rule that a grievance raising “any issue related to the conduct
report” must await completion of the disciplinary process); James v. McCall, No. 9:06-1897-DCN-GCK,
2007 WL 752161, at *5 (D.S.C. Mar. 8, 2007) (unpublished) (citing rule stating “[w]hen an inmate is
involved in an incident that results in a disciplinary [proceeding], that issue/complaint becomes non-
grievable”); Lindell v. O’Donnell, No. 05-C-04-C, 2005 U.S. Dist. LEXIS 24767, at *76, 86 (W.D. Wis.
Oct. 21, 2005) (unpublished) (rejecting argument that plaintiff should have filed an inmate complaint
where the relevant policy forbade using inmate complaints for “any issue related to a conduct report”).
266. For example, in some prison systems, appealing a disciplinary conviction and challenging
the rule under which you were convicted require, respectively, a disciplinary appeal and a separate
grievance. See Singh v. Goord, 520 F. Supp. 2d 487, 497–98 (S.D.N.Y. 2007) (holding successful
disciplinary appeal challenging discipline for refusing work contrary to religious beliefs did not exhaust
plaintiff’s challenge to the underlying disciplinary rule; a separate grievance was required); Hattie v.
Hallock, 8 F. Supp. 2d 685, 689 (N.D. Ohio 1998) (holding that to challenge a prison rule, the prisoner
must both appeal from the disciplinary conviction for breaking it and also grieve the rule’s validity),
judgment amended, 16 F. Supp. 2d 834 (N.D. Ohio 1998) (ruling in favor of prison official’s claim to
dismiss prisoner’s action).
267. Days v. Johnson, 322 F.3d 863, 867 (5th Cir. 2003) (noting that “one’s personal ability to
access the grievance system could render the system unavailable”); Macahilas v. Taylor, No. No. CIV S-
06-0502 GEB KJM P, 2008 U.S. Dist. LEXIS 5652, at *11 (E.D. Cal. Jan. 25, 2008) (unpublished)
(denying summary judgment to defendants where prisoner said “his mind was too clouded” by a
physical illness to grieve timely), report and recommendation adopted, No. 2:06-cv-0502-GEB-KJM-P,
2008 U.S. Dist. LEXIS 13314 (E.D. Cal. Feb. 22, 2008) (unpublished); Ricketts v. AW of Unicor, No.
1:CV-07-0049, 2008 U.S. Dist. LEXIS 37058, at *5–6 (M.D. Pa. May 6, 2008) (unpublished) (denying
dismissal for non-exhaustion where prisoner said he was in the hospital paralyzed throughout the
period for filing a grievance); Holcomb v. Dir. of Corr., No. C-03-02765 RMW, 2006 U.S. Dist. LEXIS
85683, at *19 (N.D. Cal. Nov. 14, 2006) (unpublished) (holding a prisoner rendered quadriplegic and
never returned to prison after his injury did not have an opportunity to file in a timely way). But see
Courts have made a number of decisions concerning mental illness or retardation, some
favoring prisoners 268 and some favoring prison officials, 269 without settling on any clear
standard for such cases. Courts have also not taken any consistent position concerning
prisoners who may be unable to use the grievance system properly because of other
Ferrington v. La. Dep’t of Corr., 315 F.3d 529, 532 (5th Cir. 2002) (holding plaintiff’s near blindness did
not exempt him from exhausting, since he had managed to file the lawsuit).
268. See Cole v. Sobina, No. No. 04-99J, 2007 WL 4460617, at *7 (W.D. Pa. Dec. 19, 2007)
(unpublished) (refusing to dismiss for non-exhaustion where plaintiff alleged mental disabilities that
could account for his noncompliance with grievance procedures); Whitington v. Sokol, 491 F. Supp. 2d
1012, 1019 (D. Colo. 2007) (refusing to dismiss for non-exhaustion where plaintiff alleged he had no
remedies because he was mentally incapacitated and was transferred to a mental institution shortly
after the incident he sued about); Petty v. Goord, No. 00 CIV 803 JSR, 2007 WL 724648, at *8 (S.D.N.Y.
Mar. 5, 2007) (unpublished) (refusing to dismiss for non-exhaustion where prisoner was transferred to
a mental hospital after filing a grievance and missed the final deadline; the court notes there is no
evidence before it of his mental state at the time, and holds two months plus in a mental hospital
constituted special circumstances); LaMarche v. Bell, No. 04-cv-69-SM, 2005 U.S. Dist. LEXIS 27203,
at *7 (D.N.H. Nov. 8, 2005) (unpublished) (acknowledging that evidence of mental illness might support
argument that late grievance should be deemed effective); Ullrich v. Idaho, No. CV-04-352-S-BLW,
2006 U.S. Dist. LEXIS 37850, at *8 (D. Idaho Feb. 6, 2006) (unpublished) (dismissing for non-
exhaustion, but directing prison officials to appoint someone to assist the plaintiff, who alleged mental
illness and denial of psychiatric treatment); see also Macahilas v. Taylor, No. CIV S-06-0502 GEB KJM
P, 2008 U.S. Dist. LEXIS 5652, at *11 (E.D. Cal. Jan. 25, 2008) (unpublished) (denying summary
judgment to defendants based on alleged psychological effects of a serious physical illness), report and
recommendation adopted, No. 2:06-cv-0502-GEB-KJM-P, 2008 U.S. Dist. LEXIS 13314 (E.D. Cal. Feb.
22, 2008) (unpublished). In Johnson-Ester v. Elyea, No. 07 C 4190, 2007 U.S. Dist. LEXIS 75912, at *4
(N.D. Ill. Oct. 10, 2007) (unpublished), the mother of a mentally incompetent prisoner said she had
made repeated complaints about his medical care without success; the court rejected defendants’
argument that the case should be dismissed for non-exhaustion, citing the mother’s assertions that “she
did what she could do” to solve the problem administratively, but it did not clarify what it thought the
PLRA requires or permits in this sort of situation.
269. See Rigsby v. Schriro, No. CV 07-0916-PHX-EHC (ECV), 2008 WL 2705376, at *3 (D. Ariz.
July 9, 2008) (unpublished) (dismissing for non-exhaustion where plaintiff said that in 2007 he had
been the victim of assaults in 2004 that resulted in brain swelling, partial memory loss, depression, and
PTSD; plaintiff “provides no specific information about how these injuries prevented him from
initiating, much less completing, the inmate grievance process”); Fleming v. Dettloff, No. 07-12511,
2008 U.S. Dist. LEXIS 48258, at *4–5 (E.D. Mich. June 24, 2008) (unpublished) (dismissing for non-
exhaustion despite plaintiff’s allegation of mental incompetence and his participation in the prison
Mental Health Program, since he presented “no evidence of mental incompetency beyond allegations
and conclusory statements in the pleadings”); Lawson v. Davis, No. 7:08-cv-00288, 2008 U.S. Dist.
LEXIS 34730, at *5 (W.D. Va. Apr. 28, 2008) (unpublished) (dismissing challenge to 90-day waiting
period for psychiatric medications since the plaintiff did not allege facts indicating his mental problems
prevented him from understanding or using the grievance procedures), aff’d, No. 08-6766, 285 F. App’x
77 (4th Cir. 2008) (unpublished); Saggese v. Corrente, No. 07-4867 (SDW), 2008 U.S. Dist. LEXIS
11546, at *14–15 (D.N.J. Feb. 15, 2008) (unpublished) (rejecting prisoner’s claim that he was mentally
ill and “in a blur” since his claims of overmedication and injury only cover two weeks, and he could have
exhausted after that); Williams v. Pettiford, No. 9:07-0946-RBH, 2007 WL 3119548, at *2–3 (D.S.C.
Oct. 22, 2007) (unpublished) (rejecting argument that prisoner who was dyslexic and mentally ill was
not required to exhaust), aff’d, 272 F. App’x 311 (4th Cir. 2008) (unpublished); Evans v. McWilliams,
No. CV 05-3711-PHX-SMM (MHB), 2007 U.S. Dist. LEXIS 63165 at*5–6 (D. Ariz. Aug. 21, 2007)
(unpublished) (refusing to exempt prisoner from exhaustion requirement based on claim of mental
illness since there is no “extenuating circumstances” exception, he provided no evidence of his illness,
and he had made complaints to authorities), subsequent determination, No. CIV 05-3711-PHX-SMM
(MHB), 2007 U.S. Dist. LEXIS 77680 (D. Ariz. Oct. 10, 2007) (unpublished); Bester v. Dixion, No. 9:03-
CV-1041, 2007 U.S. Dist LEXIS 21714, at *12–13 (N.D.N.Y. Mar. 27, 2007) (unpublished) (noting initial
concern that prisoner had been transferred to a psychiatric hospital because of a mental condition, but
dismissing since he had written complaints and spoken to investigators).
disabilities, 270 illiteracy or lack of education, 271 inability to speak or write English, 272 or
youth.273
A remedy may be unavailable because the prisoner has been transferred out of the
particular prison or jail system,274 unless the system provides a way to pursue grievances
270. Kuhajda v. Ill. Dep’t of Corr., No. 05-CV-3263, 2006 WL 1662941, at *1 (C.D. Ill. June 8,
2006) (unpublished) (holding that a prisoner who is hearing-impaired and has limited ability to read
and write, and who did not have the assistance of a sign language interpreter, raised a factual issue
concerning availability of remedies); see Elliott v. Monroe Corr. Complex, No. C06-0474RSL, 2007 U.S.
Dist. LEXIS 5242, at *10–11 (W.D. Wash. Jan. 23, 2007) (unpublished) (dismissing for non-exhaustion
where plaintiff with cerebral palsy was provided with assistance and had filed numerous grievances,
though he had not actually exhausted any).
271. Langford v. Ifediora, No. 5:05CV00216WRW/HLJ, 2007 WL 1427423, at *3–4 (E.D. Ark.
May 11, 2007) (unpublished) (holding plaintiff’s age, deteriorating health, and lack of general
education, combined with failure to provide him assistance in preparing grievances, raised a factual
issue concerning the availability of the remedy to him); Kuhajda v. Ill. Dep’t of Corr., No. 05-CV-3263,
2006 WL 1662941, at *1 (C.D. Ill. June 8, 2006) (unpublished) (stating hearing-impaired prisoner’s
limited ability to read and write, and lack of a sign language interpreter, raised a factual issue
concerning availability of remedies). In the unreported decision Davis v. Corr. Corp. of Am., 131 F.
App’x 127, 128–29, (10th Cir. Apr. 18, 2005) (unpublished), the court rejected the argument that the
plaintiff’s educational deficiencies (he said he was a “slow learner and thinker” still working to obtain a
G.E.D.) should excuse his failure to exhaust, noting that his papers “did not describe insurmountable
barriers to his filing of grievances and did not show that prison officials had effectively foreclosed his
efforts.” See also Ramos v. Smith, No. 05-5278, 187 F. App’x 152, 154 (3d Cir. June 2, 2006)
(unpublished) (rejecting claim of illiteracy, since federal regulations require assistance to illiterate
prisoners, and he did not allege that he asked for such assistance); Georgacarakos v. Watts, 147 F.
App’x 12, 14–15 (10th Cir. Aug. 18, 2005) (unpublished) (ignoring litigant’s plea to appoint counsel if
his exhaustion presentation was inadequate, in light of his lack of “means and sophistication”).
272. Several courts have denied summary judgment to prison officials where a monolingual
Spanish-speaking plaintiff alleged he could not understand or follow the grievance procedures because
he could not get them, or get help with them, in Spanish. See Abel v. Pierson, No. 05-264-GPM, 2008
WL 509466, at *4 (S.D. Ill. Feb. 13, 2008) (unpublished); Ramos v. Rosevthal, No. 4:06cv3158, 2007
U.S. Dist. LEXIS 37360, at *3 n.1 (D. Neb. May 17, 2007) (unpublished); Gonzalez v. Lantz, No. 3:03-cv-
2264 (SRU)(WIG), 2005 U.S. Dist. LEXIS 14702, at *8–10 (D. Conn. July 20, 2005) (unpublished).
273. One appeals court has rejected the argument that a juvenile prisoner complaining of
excessive force should be excused from failure to use the grievance process in part because he was a
juvenile. Brock v. Kenyon County, Ky., No. 02-5442, 2004 WL 603929, at *4 (6th Cir. Mar. 23, 2004)
(unpublished); see also Minix v. Pazera, No. 1:04-CV-447 RM, 2005 U.S. Dist. LEXIS 44824, at *12–13
(N.D. Ind. July 27, 2005) (holding that a juvenile’s mother’s repeated complaints to numerous officials
did not exhaust her son’s complaint of being beaten and raped). By contrast, in Lewis v. Gagne, 281 F.
Supp. 2d 429, 433–35 (N.D.N.Y. 2003), the court held that a juvenile detainee’s mother, who had
complained to facility staff and contacted an attorney, family court, and the state Child Abuse and
Maltreatment Register, and whose complaints were known to the facility director and agency counsel,
had made sufficient “reasonable efforts” to exhaust, without explicitly commenting on the juvenile
detainee’s own status or capacity to follow administrative procedures.
274 . Rodriguez v. Westchester County Jail Corr. Dep’t, 372 F.3d 485, 488 (2d Cir. 2004);
Ammouri v. Adappt House, Inc., No. 05-3867, 2008 U.S. Dist. LEXIS 47129, at *10–12 (E.D. Pa. June
12, 2008) (unpublished) (noting that plaintiff was repeatedly told he could not grieve matters from his
previous institution); Davis v. Kirk, No. H-06-2381, 2007 U.S. Dist. LEXIS 91024, at *24–25 (S.D. Tex.
Dec. 11, 2007) (unpublished) (holding prisoner’s grievance appeal was moot on transfer); Thomas v.
Maricopa County Bd. of Supervisors, No. CV 07-0258-PHX-DGC (DKD), 2007 U.S. Dist. LEXIS 79334,
at *9–10 (D. Ariz. Oct. 12, 2007) (unpublished) (declining to dismiss where the prisoner did not have
knowledge of the violation until after his release and the grievance policy did not provide for grievances
after release); Bradley v. Washington, 441 F. Supp. 2d 97, 102–03 (D.D.C. Aug. 2, 2006) (unpublished)
(holding D.C. remedies became unavailable upon prisoner’s transfer to federal medical facility, since
D.C. procedures say they apply to facilities under authority, jurisdiction, or contract with D.C.);
Barnard v. District of Columbia, 223 F. Supp. 2d 211, 214 (D.D.C. 2002) (unpublished) (holding that a
prisoner who was first hospitalized, then involved in hearings, then transferred during the 15 days he
after transfer.275 Also, if a prisoner had time to file a grievance before transfer and failed to
do so, he or she will probably be considered to not have exhausted this option.276 Be careful
with this issue. Courts sometimes assume that a remedy remains available after transfer
whether or not there is any evidence to that effect.277 If you get transferred before you can
file a grievance, or while a grievance is pending, you should do your best to pursue the
grievance. Maybe you will succeed, and if you do not, you will be able to demonstrate that the
remedy was not available to you. In any case you will need to show the court good reasons
why you couldn’t exhaust after a transfer.278
A remedy may be made unavailable by the acts or omissions of prison personnel. The
Second Circuit, along with other courts, has held that threats or assaults directed at
preventing prisoners from complaining may make remedies unavailable in fact, even if they
are nominally available. The governing standard is the same as that applied to allegations of
had to file a grievance may not have had a grievance remedy available); Mitchell v. Angelone, 82 F.
Supp. 2d 485, 490 (E.D. Va. 1999) (excusing exhaustion by prisoner who had been transferred so
frequently he had never had time to exhaust); see Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001)
(holding that a transferred prisoner who alleged he could not get grievance forms for the transferring
prison system sufficiently alleged exhaustion of available remedies).
275. In re Bayside Prison Litig., No. 97-5127 (RBK), 2008 WL 2387324, at *5 (D.N.J. May 19,
2008) (unpublished) (prisoner transferred within New Jersey prison system could still use the
grievance system); Jackson v. Walker, No. 6:07-230-DCR, 2007 WL 2344938, at *5 (E.D. Ky. Aug. 14,
2007) (unpublished) (holding transfer did not excuse non-exhaustion because the process can be
completed by mail), amended on reconsideration in part, 2007 WL 2702325 (E.D. Ky. Sept. 12, 2007)
(unpublished), amended in part, 2007 WL 3145957 (E.D. Ky. Oct. 25, 2007) (unpublished); Lawrence v.
Washington, No. 03-2557 (JDB), 2006 WL 1071510, at *2 (D.D.C. Apr. 21, 2006) (unpublished) (holding
transfer within system did not excuse failure to exhaust where regulations permit grievances after
transfer); Soto v. Belcher, 339 F. Supp. 2d 592, 595 (S.D.N.Y. 2004) (holding transfer did not excuse
exhaustion since regulations permit grievances after transfer).
In Brownell v. Krom, 446 F.3d 305, 312–13 (2d Cir. 2006), the court found special circumstances
justifying the plaintiff’s failure to exhaust correctly where grievance regulations did prescribe the
handling of grievances following a transfer, but prison staff did not follow their own rules.
276. James v. Williams, No. 1:04CV69-1-MU, 2005 U.S. Dist. LEXIS 10076, at *6 (W.D.N.C. May
24, 2005) (unpublished) (noting prisoner had 11 days to file a new grievance after his first was rejected
and under the grievance policy he could have filed it at the new prison too); Timmons v. Pereiro, No. 00
Civ. 1278(LAP), 2003 U.S. Dist. LEXIS 996, at *5–6 (S.D.N.Y. Jan. 24, 2003) (unpublished) (holding
transfer out of state did not excuse failure to exhaust where there was time to file before the plaintiff
was moved and the system permits grievances to be pursued after transfer), affirmed in part, vacated
in part, and remanded, 88 F. App’x 447, 2004 U.S. App. LEXIS 2649 (2d Cir. 2004).
277. Blakey v. Beckstrom, No. 06-163-HRW, 2007 U.S. Dist. LEXIS 5181, at *4 (E.D. Ky. Jan.
24, 2007) (unpublished) (holding that transfer did not make grievance procedures unavailable if the
plaintiff did not take advantage of the administrative remedies); Mills v. United States, No. CV-02-5597
SJF LB, 2006 U.S. Dist. LEXIS 82903, at *7 (E.D.N.Y. Oct. 26, 2006) (holding transfer “does not relieve
[prisoner] of the obligation to pursue the grievance procedures available in the facility where the
conduct occurred”); Hemingway v. Lantz, No. 06-cv-110-JD, 2006 U.S. Dist. LEXIS 30235, at *4–6
(D.N.H. May 5, 2006) (unpublished) (holding that prisoner who said he did not exhaust for fear of
retaliation should have filed a grievance after his transfer to the “safety” of another state, without
inquiring whether an out-of-state grievance would have been processed); Crump v. May, No. 04-329-
SLR, 2006 U.S. Dist. LEXIS 10092, at *11-12 (D. Del. Mar. 14, 2006) (unpublished) (asserting that a
prisoner who was transferred after an incident still had five days of the seven-day time limit when he
arrived at the new prison, without inquiring whether he could have filed a grievance at the new prison
about events at the old prison).
278. See Mellender v. Dane County, No. 06-C-298-C, 2006 U.S. Dist. LEXIS 80103, at *7–12
(W.D. Wis. Oct. 27, 2006) (unpublished) (noting that after transfer, plaintiff tried to mail a grievance
from prison to the jail and then to use the prison’s grievance system to complain about the jail).
retaliation for First Amendment-protected activity: “[whether] ‘a similarly situated
individual of ordinary firmness’ [would] have deemed [the remedy] available.”279
Remedies may be made unavailable by other forms of obstruction by prison staff,
purposeful 280 or otherwise. 281 For example, a rule denying postage to indigents to mail a
279. Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004) (stating that it is possible for the
threat of retaliation to make administrative remedies unavailable); accord Turner v. Burnside, 541
F.3d 1077, 1084 (11th Cir. 2008) (“Remedies that rational inmates cannot be expected to use are not
capable of accomplishing their purposes, and so are not available”; following Hemphill and Kaba); Kaba
v. Stepp, 458 F.3d 678, 684–85 (7th Cir. 2006) (adopting Hemphill analysis and stating that if
administrative remedies are not "available" to a prisoner, then the prisoner cannot be required to
exhaust); Baker v. Schriro, No. CV 07-0353-PHX-SMM (JRI), 2008 U.S. Dist. LEXIS 19892, at *19–23
(D.Ariz., Mar. 4, 2008) (unpublished) (holding plaintiffs’ allegations of threats by staff and of practice of
requiring grievances to be screened by gang members satisfied “ordinary firmness” standard), review
denied, No. CV 07-0353-PHX-SMM (JRI), 2008 U.S. Dist. LEXIS 40341 (D. Ariz., May 8, 2008);
Mitchell v. Adams, No. CIV S-06-2321 GEB GGH P, 2008 U.S. Dist. LEXIS 8014, at *26–45 (E.D. Cal.
Feb. 1, 2008) (unpublished) (citing course of threatening conduct affecting multiple grievances), report
and recommendation adopted, No. 2:06-cv-2321-GEB-GGH-P, 2008 U.S. Dist. LEXIS 16202 (E.D. Cal.
Mar. 3, 2008); Harcum v. Shaffer, Civil Action No. 06-5326, 2007 U.S. Dist. LEXIS 86089, at *14–15
(E.D. Pa. Nov. 21, 2007) (unpublished) (holding that threats causing the prisoner to withdraw his
grievance “removed the availability of further administrative remedies”); Stanley v. Rich, No. CV 605-
075, 2006 U.S. Dist. LEXIS 35916, at *5 (S.D. Ga. June 1, 2006) (unpublished) (stating “threats of
violent reprisal may, in some circumstances, render administrative remedies ‘unavailable’ or otherwise
justify a prisoner’s failure to pursue them” (citing Hemphill); Larry v. Byno, No. 9:01-cv-1574, 2006
U.S. Dist. LEXIS 28920, at *9–12 (N.D.N.Y. May 11, 2006) (unpublished) (applying Hemphill and
stating that the present circumstances are similar to the special circumstances in Hemphill).
Hemphill noted that threats or intimidation “may well deter a prisoner of ‘ordinary firmness’ from
filing an internal grievance, but not from appealing directly to individuals in positions of greater
authority within the prison system, or to external structures of authority such as state or federal
courts.” Accord Turner v. Burnside, 541 F.3d 1077, 1084–85 (11th Cir. 2008). Thus, the fact that a
prisoner has, for example, written a letter of complaint to the Superintendent (as in Hemphill) does not
establish that he was not deterred from filing an ordinary grievance. A few lower courts have rejected
the notion that threats or fear can excuse non-exhaustion. See, e.g., Ware v. Tappin, No. 06-0869, 2006
U.S. Dist. LEXIS 91685, at *15–17 (W.D. La. Nov. 3, 2006) (unpublished) (holding fear of retaliation is
“no valid defense for failing to exhaust”); Broom v. Engler, No. 4:05-cv-123, 2005 U.S. Dist. LEXIS
36824, at *8–9 (W.D. Mich. Dec. 16, 2005) (unpublished) (stating “[t]he PLRA does not excuse
exhaustion for a prisoner ... who is afraid to complain”).
280. Dole v. Chandler, 438 F.3d 804, 809, 812 (7th Cir. 2006) (“Prison officials may not take
unfair advantage of the exhaustion requirement, ... and a remedy becomes ‘unavailable’ if prison
employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to
prevent a prisoner from exhausting”; prisoner whose properly filed grievance simply vanished, and who
received no instructions what to do about it, did “all that was reasonable to exhaust”); Miller v. Norris,
247 F.3d 736, 740 (8th Cir. 2001) (“We believe that a remedy that prison officials prevent a prisoner
from ‘utiliz[ing]’ is not an ‘available’ remedy under § 1997e(a) ...”); Ponton v. Bailey, No. 02-138J, 2006
U.S. Dist. LEXIS 87561, at *10 (W.D. Pa. Dec. 4, 2006) (unpublished) (same as Dole v. Chandler;
finding the prisoner sufficiently pursued his administrative remedie, as the prisoner received no
response to his initial grievance ); Alwood v. Randt, No. 3:05-CV-619 RM, 2006 U.S. Dist. LEXIS 65115,
at *6–10 (N.D. Ind. Sept. 12, 2006) (unpublished) (denying summary judgment where prisoner’s sworn
statement said a prison official came to his cell and “ripped up his grievance, thereby refusing to allow
it to be processed”); Labounty v. Johnson, 253 F. Supp. 2d 496, 502–04 (W.D.N.Y. 2003) (holding
grievance supervisor’s alleged failure to follow procedures, preventing plaintiff’s appeal, barred
summary judgment for non-exhaustion); Johnson v. True, 125 F. Supp. 2d 186, 188–89 (W.D. Va. 2000)
(holding allegation that efforts to exhaust were frustrated by officials raised an issue of material fact
whether plaintiff exhausted “available” remedies), appeal dismissed, 32 F. App’x 692 (4th Cir. 2002);
Bullock v. Horn, No. 3:CV-99-1402, 2000 U.S. Dist. LEXIS 20212, at *6–7 (M.D. Pa. Oct. 31, 2000)
(unpublished) (holding allegation that prison officials returned grievances unprocessed, without
grievance numbers, making appeal impossible was sufficient to defeat a motion to dismiss).
grievance appeal may make the appeal unavailable, 282 as may deprivation of writing
materials or documentation to prisoners in a segregation unit.283 Sometimes prisoners in a
particular status or situation are simply excluded from using the grievance system.284 Rules
specifically designed to limit prisoners’ use of the grievance system may make the remedy
unavailable for some prisoners, depending on the severity of the limit. 285 A system of
281. Frost v. McCaughtry, No. 99-2061, 2000 U.S. App. LEXIS 14702, at *2–4 (7th Cir. June 12,
2000) (unpublished) (holding allegation that no grievance appeal was available to plaintiff because of
ongoing administrative changes during the relevant time period raised a factual question as to
availability); Brookins v. Vogel, No. 1:05-CV-0413-0WW-DLB-P, 2006 U.S. Dist. LEXIS 86252, at *7–9
(E.D. Cal. Nov. 28, 2006) (unpublished) (holding that a prisoner who filed a grievance, got no response,
and was told it had never been received, and whose subsequent attempts were rejected as untimely,
had exhausted); Cahill v. Arpaio, No. CV 05-0741-PHX-MHM (JCG), 2006 U.S. Dist. LEXIS 80772, at
*7–9 (D. Ariz. Nov. 2, 2006) (unpublished) (holding grievance process became unavailable when hearing
officer stated the matter was under investigation and the plaintiff would not be informed of the results,
he could not appeal and he would not be given a form, and he should proceed to federal court); Bennett
v. Douglas County, No. 8:04cv285, 2006 U.S. Dist. LEXIS 48774, at *5–8 (D. Neb. June 30, 2006)
(declining to dismiss for failure to appeal to the Chief Deputy of the jail where there was no Chief
Deputy); Howard v. City of New York, No. 02-CV-1731 (KMK), 2006 U.S. Dist. LEXIS 63426, at *21–24
(S.D.N.Y. Aug. 30, 2006) (unpublished) (holding allegations that plaintiff asked to see the grievance
officer but was never called, and when transferred was told he could not grieve a matter from the
previous facility, did not support dismissal of the complaint); Labounty v. Johnson, 253 F. Supp. 2d
496, 504–06 (W.D.N.Y. 2003) (holding that prisoner’s factually supported claim that his grievance was
consolidated with another prisoner’s, and the decision did not mention the issue he was concerned
about, presented a factual issue whether it was “reasonable for plaintiff to be confused under such
circumstances”).
282. Bey v. Caruso, No. 06-14909, 2007 U.S. Dist. LEXIS 72462, at *2–3 (E.D. Mich. Sept. 28,
2007) (unpublished) (noting that denial of “postal loan” was based on plaintiff’s using his religious
name suffix on the relevant form, contrary to the policy he was trying to challenge; “the procedural
question of exhaustion is inextricably intertwined with the merits of this case”); Cordova v. Frank, No.
07-C-172-C, 2007 U.S. Dist. LEXIS 54789, at *15–16 (W.D. Wis. July 26, 2007) (unpublished) (noting
that “insofar as defendants have devised a grievance system that prevents indigent prisoners from
filing appeals of their inmate grievances, they have made the grievance process unavailable to those
inmates”); Kaufman v. Schneiter, 474 F. Supp. 2d 1014, 1032 (W.D. Wis. 2007) (unpublished) (stating
in dictum that “If, by reason of indigence, petitioner was unable to post his grievance appeal and
respondents did not provide an alternative means of appealing, it is difficult to see how the appeal
process would be "available" to him”).
283. Weighall v. Pea, No. C06-5663 RBL/KLS, 2007 WL 4111376, at *4 (W.D. Wash. Nov. 16,
2007) (unpublished); Woods v. Carey, No. CIV S-04-1225 LKK GGH P, 2007 U.S. Dist. LEXIS 69832, at
*1–2 (E.D. Cal. Sept. 13, 2007) (unpublished) (vacating recommendation for exhaustion dismissal
pending inquiry into plaintiff’s access to his legal property, which he said impeded his timely appeal).
284. Daker v. Ferrero, No. 1:03-CV-2526-RWS, 2004 U.S. Dist. LEXIS 30591, at *6–7 (N.D. Ga.
Nov. 24, 2004) (unpublished) (prisoner placed in “sleeper” status, meaning he remained officially
assigned to another prison and was not allowed to file grievances where he was actually located, lacked
an available remedy); see Sease v. Phillips, No. 06 Civ. 3663 (PKC), 2008 U.S. Dist. LEXIS 60994, at
*25 (S.D.N.Y. July 25, 2008) (unpublished) (summary judgment denied where prisoner in “transient
status” was told his grievance could not be processed, and when he filed one it was never processed);
Muhammad v. U.S. Marshall Serv., No. 1:07-cv-00027, 2008 WL 2367302, at *5 (W.D. Pa. June 10,
2008) (unpublished) (refusing to dismiss where plaintiff alleged that because of his status as a federal
detainee, the jail grievance system was not made known to him).
If the available remedy is a disciplinary appeal, but the prisoner cannot appeal because he pled
guilty to the offense, the remedy is not available. Marr v. Fields, No. 1:07-cv-4942008, U.S. Dist. LEXIS
24993, at *5–7 (W.D. Mich. Mar. 27, 2008) (unpublished).
285 . Rules limiting prisoners to a certain number of grievances may make the remedy
unavailable for prisoners who are over the limit. Rhodan v. Schofield, No. 1:04-CV-2158-TWT, 2007
U.S. Dist. LEXIS 44593, at *19–20 (N.D. Ga. June 19, 2007) (unpublished) (holding prisoner who said
he was told he could not have two grievances pending at once raised a factual issue as to availability of
remedies); Wood v. Idaho Dep’t of Corr., No. CV-04-99-C-BLW, 2006 U.S. Dist. LEXIS 14711, at *20–21
“modified grievance access,” which requires prior permission to file a grievance, makes the
remedy unavailable if permission is not granted.286 Remedies may also be made available by
actions by supervisors or grievance staff with respect to particular grievances or grievants,287
purposeful misconduct,288 neglect or accident,289 or events that are merely unexplained.290
(D. Idaho Mar. 16, 2006) (unpublished) (holding that a prisoner whose grievance was returned because
he was only allowed to have three pending at one time had exhausted, since he had done what he could
do to exhaust). But see Moore v. Bennette, 517 F.3d 717, 729–30 (4th Cir. 2008) (where rules allowed
only one grievance at a time except for emergencies, and plaintiff labelled his second grievance an
emergency but it did not meet the criteria in the grievance rules for an emergency and was dismissed,
plaintiff’s failure to resubmit it when his first grievance was decided was a failure to exhaust).
286. Dawson v. Norwood, No. 1:06-cv-914, 2007 WL 3302102, at *9 (W.D. Mich. Nov. 6, 2007)
(unpublished) (“If a prisoner has been placed on modified access to the grievance procedure and
attempts to file a grievance which is deemed to be non-meritorious, he has exhausted his ‘available’
administrative remedies as required by § 1997e(a).”) (citation omitted); Hahn v. Tarnow, No. 5:06CV74,
2006 WL 1705128, at *2 n.4 (W.D. Mich. June 16, 2006) (unpublished) (holding that a plaintiff on
“modified grievance restriction” who was denied grievance forms did not have an available remedy). A
rule requiring prisoners on modified grievance status to submit a notarized affidavit with a grievance
may make the remedy unavailable if the prisoner cannot get access to a notary. Thomas v. Guffy, No.
CIV-07-823-W, 2008 U.S. Dist. LEXIS 56901, at *7 (W.D. Okla. July 25, 2008) (unpublished).
287. Howard v. Hill, 156 F. App’x 886, 886 (9th Cir. Nov. 21, 2005) (unpublished) (holding that a
prisoner who had been told he would not receive responses to his grievances had no remedy available);
Woods v. Carey, No. CIV S-04-1225 LKK GGH P, 2008 WL 447553 (E.D. Cal. Feb 15, 2008)
(unpublished) (where grievance official directed plaintiff to the medical appeals analyst, but that
person said plaintiff’s grievance must first be processed by the grievance office, plaintiff had exhausted;
court refers to “runaround”); Bradley v. McVay, No. 1:04-cv-06128-AWI DLB PC, 2008 WL 495732, at
*3 (E.D. Cal. Feb. 21, 2008) (unpublished) (if prison officials required plaintiff to go to an interview
room for an investigation, and he could not do so without the cane he had been deprived of, the
grievance process would not be available to him), report and recommendation adopted, No. 1:04-cv-
6128-AWI-DLB-P, 2008 WL 669858 (E.D. Cal. Mar. 7, 2008) (unpublished); Baylis v. Taylor, 475 F.
Supp. 2d 484, 488 (D. Del. 2007) (holding officials’ withdrawal of plaintiff’s grievances because of
litigation meant that he had exhausted, since no further remedies were available). But see Howard v.
Smith, No. CV606-062, 2008 WL 816685, (S.D. Ga. Feb. 28, 2008) (unpublished), report and
recommendation rejected in pertinent part, No. 606CV062, 2008 WL 816684 (S.D. Ga. Mar 26, 2008)
(unpublished), on reconsideration on other grounds, No. 6:06CV062, 2008 WL 2316718 (S.D. Ga. June 4,
2008) (unpublished). In Howard, the prison system introduced a rule newly requiring an additional
“informal” step in the grievance process, and plaintiff’s pending grievances were all canceled; the
magistrate judge said he was deemed to have exhausted his claims, but the district judge rejected that
conclusion without explanation.
288. Allen v. City of Saint Louis, No. 4:06-CV-00810 SNL, 2008 WL 695393, at *4–5 (E.D. Mo.
Mar. 12, 2008) (unpublished) (finding remedies unavailable where plaintiff’s requests for forms and
information about how to file were ignored, denied, or “pacified with promises” of an investigation, and
he was improperly segregated to prevent access to the grievance procedure and third parties); Miller v.
Berkebile, No. 3:07-CV-0712-B ECF, 2008 WL 635552, at *7–9 (N.D. Tex. Mar. 10, 2008) (unpublished)
(where official refused to process first-stage grievances contrary to policy, remedy was unavailable;
prisoners need not take steps not prescribed in the policy to get around him; PLRA law applied in §
2241 case); Smith v. Westchester County Dep’t of Corr., No. 07 Civ. 1803(SAS), 2008 U.S. Dist. LEXIS
11049, at *10 (S.D.N.Y. Feb. 7, 2008) (unpublished) (remedies were unavailable if supervisors refused
to accept plaintiff’s grievance); Collins v. Goord, 438 F. Supp. 2d 399, 415 (S.D.N.Y. 2006) (holding
allegations that facility personnel invented a screening procedure and did not allow him to file his
grievance raised a material issue under “an exception to the PLRA’s exhaustion requirement where
prison authorities actively obstruct an inmate’s ability to ‘properly’ file a prison grievance”); Carter v.
Newland, 441 F. Supp. 2d 208, 211 (D. Mass. 2006) (declining to dismiss for non-exhaustion in view of
allegations that a prison counselor tore up the plaintiff’s grievances).
289. Pavey v. Conley, 170 F. App’x 4, 9 (7th Cir. Mar. 3, 2006) (unpublished) (holding that
isolating and failing to assist a prisoner who couldn’t write could render the remedy unavailable);
Monroe v. Beard, No. 05-04937, 2007 WL 2359833, at *12–13 (E.D. Pa. Aug. 16, 2007) (unpublished)
(holding the grievance process unavailable where prisoners were told to object to certain searches
However, courts are unlikely to be persuaded by vague claims of obstruction, unless clearly
supported by facts.291 Many courts have found that an allegation that there was a denial of
necessary grievance forms is sufficient to ensure that a case is not dismissed because of non-
exhaustion of remedies.292 Still, courts are suspicious of such claims, especially if the claim is
through an Unacceptable Correspondence Form, and they would be notified of the results of an
investigation and then could file a grievance, but were not so notified), aff’d, 536 F.3d 198, 204 n.6 (3d
Cir. 2008) (unpublished); Warren v. Purcell, No. 03 Civ. 8736(GEL), 2004 U.S. Dist. LEXIS 17792, at
*20 (S.D.N.Y. Sept. 3, 2004) (unpublished) (holding “baffling” grievance response that left prisoner with
no clue what to do next estopped defendants from claiming the defense and constituted special
circumstances justifying failure to exhaust).
290. Dole v. Chandler, 438 F.3d 804, 809, 812 (7th Cir. 2006) (holding prisoner whose properly
filed grievance simply vanished, and who received no instructions what to do about it, did “all that was
reasonable to exhaust”); Johnson v. Tedford, No. 04-CV-632 (GLS/DEP), 2007 U.S. Dist. LEXIS 85074,
at *8 (N.D.N.Y. Nov. 16, 2007) (unpublished) (holding a prisoner whose grievance is not recorded or
given a grievance number, so the lack of response cannot be appealed, may have exhausted).
291. See, e.g., Stine v. Wiley, No. CIVA 06CV-02105-BNB, 2007 U.S. Dist. LEXIS 2113, at *1–2
(D. Colo. Jan. 10, 2007) (unpublished); Djukic v. Arpaio, No. CV 05-4042-PHX-MHM (MEA), 2006 U.S.
Dist. LEXIS 72239, at *6–7 (D. Ariz. Sept. 26, 2006) (unpublished).
292. Dale v. Lappin, 376 F.3d 652, 654–56 (7th Cir. 2004) (per curiam); Mitchell v. Horn, 318
F.3d 523, 529 (3d Cir. 2003); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001); Bertres v. Byers, No.
1:CV-06-1623, 2007 WL 4224389, at *8 (M.D. Pa. Nov. 28, 2007) (unpublished) (“[P]laintiff's statements
under penalty of perjury in his complaint that he was not provided a grievance form are adequate to
establish that it is in dispute whether he was reasonably able to exhaust.”); Chatham v. Adcock, No.
3:05-CV-0127-JTC, 2007 WL 2904117, at *14 (N.D. Ga. Sept. 28, 2007) (unpublished) (“It would be an
anomalous result, indeed, if prison officials could foreclose prison inmates from filing civil rights
lawsuits in federal court simply by depriving them of the means to fulfill a mandatory prerequisite to
doing so.”); Hedgespeth v. Hendricks, No. 06-3883 (AET), 2007 WL 2769627, at *5 (D.N.J. Sept. 21,
2007) (unpublished) (refusing to dismiss where plaintiff alleged that he was told by housing officers
there were no grievance forms, and inmate handbook said housing officers were the source of forms);
Cody v. White, No. 3:06-cv-18, 2007 WL 1726583, at *2 (D.N.D. June 13, 2007) (unpublished) (denying
summary judgment where segregation prisoner said he couldn’t get forms from staff and rules did not
seem to allow him to go to grievance office); Tabarez v. Butler, No. CIV S-04-0360 LKK EFB P, 2007
WL 988040, at *2–3 (E.D. Cal. Mar. 30, 2007) (unpublished) (holding defendants’ claim that prisoners
“customarily” have access to grievance forms did not mean this plaintiff did, especially since he said
only those who were “on good terms” with the guards could get forms), report and recommendation
adopted, No. CIV S-04-0360 LKK EFB P, 2007 WL 1804968 (E.D. Cal. June 21, 2007) (unpublished);
Bowers v. City of Philadelphia, No. 06-CV-3229, 2007 WL 219651, at *16 (E.D. Pa. Jan. 25, 2007)
(unpublished) (holding grievance process unavailable where forms were not provided in police custody
or jail intake area); Allen v. McMorris, No. 4:06-cv-810 SNL, 2007 WL 172564, at *2 (E.D. Mo. Jan. 19,
2007) (unpublished) (holding allegation that prisoner could not get grievance policy or forms barred
summary judgment for defendants); Enigwe v. Zenk, No. 03-CV-854 (CBA), 2006 WL 2654985, at *4
(E.D.N.Y. Sept. 15, 2006) (unpublished) (denying summary judgment to defendants where plaintiff
asserted his repeated efforts to obtain forms were fruitless).
not supported by facts, if there is no evidence that the prisoner tried to get the forms,293 or if
the prisoner filed other grievances around the same time.294
Remedies are unavailable if officials failed to tell prisoners that certain remedies295 or
rules,296 existed. If a prisoner is misinformed about the availability or operation of a remedy,
that may make them unavailable as well. 297 Some courts have not dismissed for non-
293. See, e.g., Lomas v. U.S., No. CIV-06-869-C, 2008 WL 819459, at *3 (W.D. Okla. Mar. 25,
2008) (unpublished) (citing plaintiff’s failure to state “to whom or when the requests were made or to
explain his access to certain forms and not others”); Dye v. Bartow, No. 06-C-0634, 2007 WL 3306771,
at *6 (E.D. Wis. Nov. 6, 2007) (unpublished) (citing plaintiff’s failure to identify the forms he requested
and the date of request, to supply a copy of his request, or to submit evidence detailing officials’
response to his requests), aff’d, No. 07-3836, 2008 WL 2420991 (7th Cir. 2008) (unpublished); Beasley v.
Kontek, No. 3:05CV7262, 2007 WL 3306637, at *2 (N.D. Ohio Nov. 5, 2007) (unpublished) (“A prisoner
may not be excused from exhausting internal remedies if his failure resulted from a form not being
provided to him, unless he alleges that there was no other source for the form or that he can prove that
he made other attempts to ‘obtain a form or file a grievance.’”), quoting Jones v. Smith, 266 F.3d 399,
400 (6th Cir.2001).
294. See, e.g., Guel v. Larkin, No. 06-5091, 2008 WL 1994942, at *5–6 (W.D. Ark. May 6, 2008)
(unpublished).
295. Goebert v. Lee County, 510 F.3d 1312, 1322–23 (11th Cir. 2007) (holding that an appeal
procedure not described in the inmate handbook but only in the operating procedures the inmates did
not have access to, was not an available remedy); Westefer v. Snyder, 422 F.3d 570, 580 (7th Cir. 2005)
(holding that defendants did not show remedies were available where there was no “clear route” for
challenging certain decisions); Sadler v. Rowland, No. 3:01CV1786(CFD)(WIG), 2004 WL 2061518, at
*7 (D. Conn. Sept. 13, 2004) (unpublished) (refusing to dismiss claim of Connecticut prisoner
transferred to Virginia who attempted to grieve in Virginia and was not told to file separate grievances
in Connecticut); Burgess v. Garvin, No. 01 Civ. 10994(GEL), 2004 WL 527053, at *5 (S.D.N.Y. Mar. 16,
2004) (unpublished) (holding that “procedural channels ... not made known to prisoners ... are not an
‘available’ remedy in any meaningful sense... . [Congress] cannot have meant that prisoners would be
expected to exhaust remedies of which they were kept entirely ignorant.”); Arnold v. Goetz, 245 F.
Supp. 2d 527, 537 (S.D.N.Y. Feb. 4, 2003) (holding defendants required to make a “reasonable, good
faith effort to make the grievance procedure available to inmates”); Alvarez v. United States, No. 98
Civ. 3179, 2000 WL 557328, at *2 (S.D.N.Y. May 8, 2000) (unpublished) (stating that a showing that
prisoner was not “meaningfully informed” about administrative remedies could establish that they
were not available), on reconsideration, No. 98 CIV. 3179(WK), 2000 WL 679009 (S.D.N.Y. May 24,
2000) (unpublished).
In Davis v. Milwaukee County, 225 F. Supp. 2d 967, 975–76 (E.D. Wis. 2002), the court held that
the plaintiff had been denied access to courts by defendants’ hindering his ability to exhaust by failing
to make available materials concerning the grievance procedure.
296. Jackson v. Ivens, 244 F. App’x 508, 514 (3d Cir. 2007) (unpublished) (“We will not condition
exhaustion on unwritten or ‘implied’ requirements.”), citing Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir.
2004); Sims v. Rewerts, No. 07-12646, 2008 WL 2224132, at *5–6 (E.D. Mich. May 29, 2008)
(unpublished) (declining to dismiss where plaintiff failed to comply with a time limit that had been
changed without notice); Cabrera v. LeVierge, No. 07-cv-40-SM, 2008 WL 215720, at *6 (D.N.H. Jan.
24, 2008) (unpublished) (“inmates cannot be expected to meet procedural requirements that are
undisclosed”); Lampkins v. Roberts, No. 1:06-cv-639-DFH-TAB, 2007 WL 924746, at *3 (S.D. Ind. Mar.
27, 2007) (unpublished) (refusing to dismiss for missing a five-day time deadline which was not made
known in the materials made available to prisoners).
297. Pavey v. Conley, 170 F. App’x 4, 8–9, 2006 WL 509447, at *4–5 (7th Cir. Mar. 3, 2006)
(unpublished) (stating that “inmates may rely on the assurances of prison officials when they are led to
believe that satisfactory steps have been taken to exhaust administrative remedies ... . [P]rison officials
will be bound by their oral representations to inmates concerning compliance with the grievance
process”; plaintiff, who could not write, could reasonably rely on assurances that his oral complaint
would be investigated); Brown v. Croak, 312 F.3d 109, 112–13 (3d Cir. 2002) (holding that if security
officials told the plaintiff to wait for completion of an investigation before grieving, and then never
informed him of its completion, the grievance system was unavailable to him); Miller v. Tanner, 196
F.3d 1190 (11th Cir. 1999) (holding that grievance decision that stated it was non-appealable need not
have been appealed); Chinnici v. Edwards, No. 1:07-cv-229, 2008 WL 3851294, at *5 (D. Vt. Aug. 12,
exhaustion of remedies if a prisoner had relied on prison personnel’s statement that their
issue was not a grievance.298 If a prisoner had some notice of the remedy, like in an inmate
2008) (unpublished) (supervisor’s statement that sex abuse complaint did not require completing the
grievance process could constitute estoppel or special circumstances excusing non-exhaustion); Spinney
v. U.S., No. 06-309 Erie, 2008 WL 1859810, at *6 (W.D. Pa. Apr. 23, 2008) (unpublished) (if plaintiff
delayed one grievance on advice of counselor, remedy may not have been available to him); Tinsley v.
Giorla, No. 05-2777, 2008 WL 901697, at *5 (E.D. Pa. Apr. 1, 2008) (unpublished) (if a prison official
told a prisoner a decision could not be appealed, contrary to written grievance policy, the grievance
procedure could be found unavailable); Flory v. Claussen, No. C06-1046-RSL-JPD, 2006 WL 3404779,
at *3 (W.D. Wash. Nov. 21, 2006) (unpublished) (holding prisoner who followed officials’ instruction to
file an “appeal” to the Facility Risk Management Team about removal from his job, rather than a
grievance, exhausted); Wheeler v. Goord, No. Civ.A.03CV0787(NAM/D, 2005 WL 2180451, at *6
(N.D.N.Y. Aug. 29, 2005) (unpublished) (holding prisoner who was erroneously told to “write to
Sergeant Coffee” to grieve raised an issue whether remedies were available); Willis v. Smith, No. C04-
4012-MWB, 2005 WL 550528, at *13 (N.D. Iowa Feb. 28, 2005) (unpublished) (declining to dismiss
where plaintiff relied on the statement of a prison official that the written grievance policy was
unavailable); Croswell v. McCoy, No. Civ.9:01-CV-00547, 2003 WL 962534, at *4 (N.D.N.Y. Mar. 11,
2003) (unpublished) (holding that a prisoner who relies on prison officials’ representations as to correct
procedure has exhausted); O’Connor v. Featherston, No. 01 Civ. 3251(HB), 2003 WL 554752, at *2–3
(S.D.N.Y. Feb. 27, 2003) (unpublished) (holding allegation that prison Superintendent told a prisoner to
complain via the Inspector General rather than the grievance procedure presented triable factual
issues).
In Davis v. Milwaukee County, 225 F. Supp. 2d 967, 976 (E.D. Wis. 2002), the court held that the
plaintiff had been denied access to courts by defendants’ hindering his ability to exhaust by telling him
that his complaint was “not a grievable situation.”
298 . Marr v. Fields, No. 1:07-cv-494, 2008 WL 828788, at *6 (W.D. Mich. Mar. 27, 2008)
(unpublished) (denying dismissal for non-exhaustion where prisoner was told by staff his disciplinary
retaliation claim could not be grieved); Greene v. C.D.C., No. CIV S-05-0330 GEB JFM P, 2008 WL
413750, at *2 (E.D. Cal. Feb. 8, 2008) (unpublished) (finding that plaintiff exhausted without
completing the grievance process where the response to his grievance said it was an abuse of the
process and plaintiff should instead use a form for requesting an interview instead), report and
recommendation adopted, No. 2:05-cv-0330-GEB-JFM-P, 2008 WL 683551 (E.D. Cal. Mar. 13, 2008)
(unpublished); Smith v. Westchester County Dep’t of Corr., No. 07 Civ. 1803(SAS), 2008 WL 361130, at
*3 (S.D.N.Y. Feb. 7, 2008) (unpublished) (finding that plaintiff reasonably believed his claim was not
grievable where a Sergeant told him so); Lewis v. Cunningham, No. 05 Civ. 9243(GBD), 2007 WL
2412258, at *2 (S.D.N.Y. Aug. 23, 2007) (unpublished) (holding prisoner who was told by grievance
official that his medical complaint should go to the Chief Medical Officer rather than the grievance
system showed special circumstances excusing lack of proper exhaustion); Lane v. Doan, 287 F. Supp.
2d 210, 212 (W.D.N.Y. 2003) (holding that exhaustion is excused where the plaintiff is led to believe the
complaint is not a grievance matter or would otherwise be investigated, or that administrative
remedies are unavailable); Simpson v. Gallant, 231 F. Supp. 2d 341, 350 (D. Me. 2002) (holding a
prisoner who had been told the issue was not grievable had sufficiently exhausted). But see Gibson v.
Weber, 431 F.3d 339, 341 (8th Cir. 2005) (holding that general allegation that prison personnel “made
it clear” they should make medical complaints informally did not excuse prisoners from using a
grievance procedure they admitted having been informed of); Singh v. Goord, 520 F. Supp. 2d 487, 496
(S.D.N.Y. Oct. 9, 2007) (officials’ designating a particular staff member to deal with plaintiff’s concerns
did not excuse non-exhaustion where he was not instructed not to file grievances); Fuentes-Ramos v.
Arpaio, No. CV 06-2803-PHX-SMM (JRI), 2007 WL 1670142, at *2 (D. Ariz. June 8, 2007)
(unpublished) (refusing to credit “generalized allegations” that officers told plaintiff his issues were
non-grievable); Herron v. Elkins, No. 4:06CV627 CDP, 2006 WL 3803946, at *3 (E.D. Mo. Nov. 7, 2006)
(unpublished) (dismissing where staff told plaintiff his claim was not grievable; his “subjective belief”
based on those statements did not excuse non-exhaustion); Overton v. Davis, 460 F. Supp. 2d 1008,
1010–11 (S.D. Iowa 2006) (holding prisoner failed to exhaust where he said he was told his property
confiscation was non-grievable but the written policy said it was and also that written notice is given
when a complaint is non-grievable).
handbook, a prisoner cannot claim he did not know it existed.299 Prison officials’ statements
that do not directly misrepresent the operation of the grievance system generally are not
held to excuse the failure to exhaust, even if a prisoner relies on them.300 But, actions that
intimidate or mislead a prisoner into not exhausting, or not exhausting correctly, may be
deemed to estop (that is, prevent) prison personnel from claiming non-exhaustion, in addition
to or instead of making the remedy unavailable.301
299. Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (holding that prisoners who admitted
receiving guide that explained the grievance procedure were not excused from using it by their
allegations that prison personnel had “made it clear” that they should instead voice complaints
informally to medical personnel); Boyd v. Corr. Corp. of Am., 380 F.3d 989 (6th Cir. 2004); Edwards v.
Ala. Dep’t of Corr., 81 F. Supp. 2d 1242, 1256–57 (M.D. Ala. 2000); Rizzuto v. City of New York, No. 00
Civ. 6044(DLC), 2003 WL 1212758, at *5 (S.D.N.Y. Mar. 17, 2003) (unpublished) (refusing to credit
prisoner’s claim that he never received information about the grievance system in light of signed
receipt for rule book).
300. Lyon v. Vande Krol, 305 F.3d 806, 809 (8th Cir. 2002) (holding that warden’s statement that
a decision about religious matters rested in the hands of “Jewish experts” did not excuse non-
exhaustion, but was at most a prediction that the plaintiff would lose; courts will not consider
prisoners’ subjective beliefs in determining whether procedures are “available”); Jackson v. District of
Columbia, 254 F.3d 262, 269–70 (D.C. Cir. 2001) (holding that a plaintiff who complained to three
prison officials and was told by the warden to “file it in the court” had not exhausted); Yousef v. Reno,
254 F.3d 1214, 1221–22 (10th Cir. 2001) (holding that plaintiff who was confused by prison officials’
erroneous representations about the powers of the grievance system was still required to exhaust);
Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000) (holding that a plaintiff who complained to the
warden and was told the warden would take care of his problem, was not excused from exhausting the
grievance system); Thomas v. N.Y. State Dep’t of Corr. Servs., No. 00 Civ. 7163(NRB), 2003 WL
22671540, at *3–*4 (S.D.N.Y. Nov. 10, 2003) (unpublished) (dismissing case where prison staff told the
prisoner a grievance was not necessary; this was “bad advice, not prevention or obstruction,” and the
prisoner did not make sufficient efforts to exhaust).
301. See Hemphill v. New York, 380 F.3d 680, 688–89 (2d Cir. 2004) (holding allegations of
verbal and physical threats and fear of further assault could support a finding of equitable estoppel);
Ziemba v. Wezner, 366 F.3d 161, 162–63 (2d Cir. 2004) (similar to Hemphill); Messa v. LeClaire, No.
03-CV-1385 (TJM/DRH), 2007 WL 2292975, at *4 (N.D.N.Y. Feb. 26, 2007) (unpublished) (holding
threats by unidentified prison staff could estop the named defendants), report and recommendation
adopted, No. 9:03-CV-1385, 2007 WL 2288106 (N.D.N.Y. Aug. 6, 2007); Snyder v. Goord, No. 9: 05-CV-
01284, 2007 WL 957530, at *10 (N.D.N.Y. Mar. 29, 2007) (unpublished) (holding grievance supervisor’s
advice that if a problem had been brought “to some administration’s attention” it need not be grieved
might estop the defendants); Lawyer v. Gatto, No. 03 Civ. 7577 RPP, 2007 WL 549440, at *7 (S.D.N.Y.
Feb. 21, 2007) (unpublished) (holding defendants estopped from arguing plaintiff should have refiled
his grievance citing mitigating circumstances for its lateness where the grievance supervisor had
already rejected his mitigating circumstances); Gay v. Corr. Med. Serv., No. 1:04 CV 289, 2007 WL
495241, at *3 (D.Vt. Feb. 9, 2007) (unpublished) (holding officer’s admission that she received and
signed the plaintiff’s grievance but then returned it to him rather than forwarding it as required may
estop the defendants); Warren v. Purcell, No. 03 Civ. 8736(GEL), 2004 WL 1970642, at *6 (S.D.N.Y.
Sept. 3, 2004) (unpublished) (holding “baffling” grievance response that left prisoner with no clue what
to do next estopped the defendants from claiming non-exhaustion); Rivera v. Goord, No. 99 Civ.
1683(DC), 2003 WL 1700518, at *7 (S.D.N.Y. Mar. 28, 2003) (unpublished) (stating that prison officials
may not assert non-exhaustion where a prisoner has been told by officials that his complaint is not a
“grievance matter” and is being otherwise investigated); Heath v. Saddlemire, No. 9:96-CV-1998
(FJS/RF, 2002 WL 31242204, at *5 (N.D.N.Y. Oct. 7, 2002) (unpublished) (holding that prison officials
cannot present the defense that a prisoner has not exhausted when the prisoner did not exhaust in
reliance on what prison officials to him); Simpson v. Gallant, 223 F. Supp. 2d 286, 292 (D. Me. 2002)
aff’d, 62 F. App’x 368 (1st Cir. 2003) (holding prison officials who said the plaintiff’s problem was not
grievable could not claim that the prisoner failed to exhaust). But see Kaba v. Stepp, 458 F.3d 678, 687
(7th Cir. 2006) (declining to decide whether estoppel applied in Hemphill-type situation); Lewis v.
Washington, 300 F.3d 829, 834–35 (7th Cir. 2002) (declining to apply estoppel where the defendants did
not affirmatively mislead the plaintiff but merely failed to respond to grievances); Berry v. City of New
York, No. 00 CIV. 2834 RMBJCF, 2002 WL 31045943, at *8 (S.D.N.Y. June 11, 2002) (unpublished)
If there is some reason outside your control that you cannot exhaust in a timely and
procedurally correct manner, you might think this means that the remedy is not available to
you and you do not have to exhaust. Do not assume this. A number of courts have held, for
example, that if prisoners are prevented from filing grievances at the correct time, they must
file them whenever they can, even if the grievances will be denied for not being on time.302
This makes no sense under the “proper exhaustion” rule, but courts do it anyway, so do not
fall into the trap. Some courts have held that if your grievance or appeal just “disappears,”
it’s not enough just to say that when you go to court; you must take some action to follow up
on the grievance that has gone missing.303 One federal appeals court has recently held that if
the failure to exhaust was “innocent,” the prisoner “must be given another chance to exhaust
(provided that there exist remedies that he will be permitted by the prison authorities to
exhaust, so that he’s not just being given a runaround).”304
Courts will be very skeptical of claims that you have exhausted your remedies when
there is no record of it,305 or claims that you were not informed or misinformed about the
grievance process. You are therefore best advised to do everything you can to exhaust even if
you know the effort is going to fail—and keep records so you can prove you tried.306 For
example, if prison staff refuses to provide you with grievance forms, write your grievance on
a sheet of paper, explain that you cannot get the forms, and appeal if they reject the
grievance for not being on the right form.307 If prison staff tells you that you do not need to
file a grievance, file a grievance anyway; if they tell you that the issue is not “grievable”—
that is, if the grievance system is not available to you for that issue—file the grievance
(declining to credit estoppel claim where the plaintiff had used the grievance system successfully on
other occasions).
302. For more information about time limits, see Part E(6) of this Chapter.
303. Boyer v. Farlin, No. 04-1042, 2006 U.S. Dist. LEXIS 88940, at *10–12 (C.D. Ill. Dec. 8, 2006)
(holding prisoner didn’t exhaust because he failed to explain why he didn’t take any action for two
months when he didn’t receive a notice that his appeal had been received). The Seventh Circuit has
held that a remedy becomes “unavailable” if prison employees try to take unfair advantage of the
exhaustion requirement by not responding to a grievance or otherwise preventing a prisoner from
exhausting. In that case, Dole v. Chandler, the court ruled that a prisoner whose properly filed
grievance had simply vanished did “all that was reasonable to exhaust”). Dole v. Chandler, 438 F.3d
804, 809, 812 (7th Cir. 2006).
304. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
305. See Gaughan v. U.S. Bureau of Prisons, No. 02 C 0740, 2003 U.S. Dist. LEXIS 23297, at *3
(N.D. Ill. Dec 30, 2003) (unpublished) (rejecting claim that prisoner had exhausted but defendants had
not made a record of it); Thomas v. N.Y. State Dep’t of Corr. Serv., No. 00 Civ. 7163 (NRB), 2003 U.S.
Dist. LEXIS 20286, at *13 (S.D.N.Y. Nov. 10, 2003) (unpublished) (dismissing case where prison staff
told the prisoner a grievance was not necessary for failure to exhaust).
306. See Plasencia v. California, 29 F. Supp. 2d 1145, 1148 (C.D. Cal. 1998) (finding that
prisoner “knew of the grievance procedures and that it was possible for him to initiate a grievance
under those procedures”); Russo v. Palmer, 990 F. Supp. 1047, 1049 (N.D. Ill. 1998) (“[Plaintiff inmate]
filed grievances in the past and the grievance process is explained on the form that stated his initial
complaint ... . Thus, any failure to file the grievance ... cannot be attributed to ignorance of the
grievance process.”).
307. Kendall v. Kittles, No. 03 Civ. 628 (GEL), 2003 U.S. Dist. LEXIS 16129, at *4 (S.D.N.Y.
Sept. 15, 2003) (unpublished) (declining to dismiss where prisoner said he could not get grievance
forms; the fact that he filed grievances at other times showed only that forms were available on the
dates those grievances were filed, and not that such forms were always available). This is not an issue
in the New York State grievance system. The directive states that if forms are not available, the
grievance can be submitted on plain paper. See State of New York, Department of Correctional
Services, Directive No. 4040 § 701.5(a)(1), Inmate Grievance Program (2003) (as revised July 1, 2006);
N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(1) (2008). The New York City grievance directive does
not address the issue.
anyway, so that you will get a decision in writing telling you that it isn’t grievable.308 If they
refuse to accept your grievance, write to the Warden or Superintendent, tell him or her that
you were not allowed to file your grievance, and ask that it either be investigated as a non-
grievance complaint or treated as a grievance in case you were misinformed by the lower-
level staff. It may also be worthwhile to file a grievance about the refusal to accept your
grievance. It is crucial to keep copies of everything.
4. What Must You Put in Your Grievance or Administrative Appeal?
Exhausting requires you to raise administratively all of the issues that you intend to
raise in a lawsuit. Issues you do not include in your grievance or appeal cannot be
litigated.309 Sometimes you have to use more than one remedy to exhaust all your issues.310
How specific and detailed must you be in a grievance or appeal to satisfy the exhaustion
requirement? The Supreme Court recently ruled on one part of this question, holding that
courts could not require prisoners to have named in their grievances all the defendants that
they later named in their court complaints if the grievance system itself did not have such a
requirement.311 The Court said: “The level of detail necessary in a grievance to comply with
the grievance procedures will vary from system to system and claim to claim, but it is the
prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.”312 So if the prison does require you to name the responsible employees in a
grievance, you have to do it to the extent you have the information. Some prison systems
have recently added this and other requirements,313 and it is likely others will follow suit.
At present, most grievance systems do not have such specific requirements. Either they
say nothing about the level of detail required in grievances, or the requirement is very
308. Some courts have refused to accept prisoners’ statements that some unidentified person told
them that their issues were not grievable. See, e.g., Perez v. Arpaio, No. CV 06-0038-PHX-SMM (ECV),
2006 U.S. Dist. LEXIS 866559, at *5 (D. Ariz. Nov. 21, 2006) (unpublished).
309. Jones v. Bock, 549 U.S. 199, 218–19, 127 S. Ct. 910, 923, 166 L. Ed. 2d 798, 816 (2007); see
Johnson v. Johnson, 385 F.3d 503, 517–19 (5th Cir. 2004) (holding a prisoner who complained of sexual
assault and referred to his sexual orientation in his grievance, but said nothing about his race, did not
exhaust his racial discrimination claim); Black v. Goord, No. 03-CV-6155 CJS, 2007 U.S. Dist. LEXIS
77781, at *12–14 (W.D.N.Y. Oct. 19, 2007) (unpublished) (holding grievances about length of time the
plaintiff was held in full restraints did not exhaust his complaint about pain and inability to exercise or
about lack of due process in renewing restraint orders); Lilly v. Smith, No. 05-1383, 2007 U.S. Dist.
LEXIS 45683, at *5 (C.D. Ill. June 25, 2007) (unpublished) (dismissing claim about placement in
restraint chair not mentioned in plaintiff’s use-of-force grievance); Malik v. Sabree, C.A. No. 8:06-319-
RBH, 2007 U.S. Dist. LEXIS 18899, at *2 (D.S.C., Mar. 13, 2007) (unpublished) (holding grievance
about Muslim feasts did not exhaust claim about Muslim fasts); Beltran v. O'Mara, 405 F. Supp. 2d
140, 152 (D.N.H. 2005) (holding complaints about specific segregation conditions, like lack of toilet
paper, did not exhaust as to conditions generally or conditions not mentioned in the grievances), on
reconsideration, No. 04-cv-071-JD, 2006 U.S. Dist. LEXIS 6277 (D.N.H. Jan. 31, 2006) (unpublished);
Page v. Breslin, No. 02-CV-6030 (SJF)(LB), 2004 U.S. Dist. LEXIS 25056, at *9 (E.D.N.Y. Nov. 29,
2004) (unpublished) (holding a grievance about harassing conduct exhausted only as to incidents
mentioned in the grievance); Cooper v. Garcia, 55 F. Supp. 2d 1090, 1094–95 (S.D. Cal. 1999) (finding
plaintiff exhausted for his claim regarding his status as a sex offender but not regarding his 8th
Amendment claim); Jenkins v. Toombs, 32 F. Supp. 2d 955, 959 (W.D. Mich. 1999) (holding a court can
prevent a plaintiff from bringing a claim by limiting action to claims that have been exhausted).
310. This is most often the case in connection with disciplinary proceedings.
311. Jones v. Bock, 549 U.S. 199, 217–19, 127 S. Ct. 910, 922–23, 166 L. Ed. 2d 798, 815 (2007).
312. Jones v. Bock, 549 U.S. 199, 218–19, 127 S. Ct. 910, 923, 166 L. Ed. 798, 815 (2007).
313. Michigan has changed its policy, which formerly required prisoners only to “be as specific as
possible” but to “[b]e brief and concise,” to require inclusion of “[d]ates, times, places and names of all
those involved in the issue being grieved.” State of Michigan, Department of Corrections, Policy Dir.
No. 03.02.130 (December 19, 2003), available at
http://www.michigan.gov/documents/corrections/03_02_130_200872_7.pdf.
general.314 One court has said that if the policy does not have more specific requirements, a
“grievance suffices if it alerts the prison to the nature of the wrong for which redress is
sought. As in a notice pleading system, the grievant need not lay out the facts, articulate
legal theories, or demand particular relief. All the grievance need do is object intelligibly to
some asserted shortcoming.” 315 This court and others adopted that standard because the
purpose of the PLRA exhaustion requirement is to give prison officials time and opportunity
to resolve problems before they turn into lawsuits; because a federal court complaint is
required only to give the defendants notice of the nature of the plaintiff’s claims so they can
defend against them; and because it would make no sense to require prisoners to satisfy a
more demanding standard at the administrative stage without assistance of counsel.316 An
example of a grievance that meets the “object intelligibly” standard (though just barely) is
one in a sexual assault case where the prisoner said only: “[T]he administration do not do
there job. [A sexual assault] should’ve never happen again,” and requested that the assailant
be criminally prosecuted.317
Even courts that do not cite the “object intelligibly” standard have generally not required
a great deal of specificity and detail in grievances318 and have not accepted prison officials’
314. For example, the New York State grievance system requires only that prisoners include a
“concise, specific description of the problem and the action requested and indicate what actions the
grievant has taken to resolve the complaint, i.e., specific persons/areas contacted and responses
received.” State of New York, Department of Correctional Services, Directive No. 4040, at § 701.5(a)(2)
(July 1, 2006); N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(2) (2008).
315. Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002); accord Kikumura v. Osagie, 461 F.3d
1269, 1283 (10th Cir. 2006); Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004); Milan v. Chen, No.
CV 05-1878 VBF(JC), 2008 WL 2229215, at *5 (C.D. Cal. Feb. 5, 2008), report and recommendation
adopted, 2008 WL 2116930 (C.D. Cal. May 14, 2008) and 2008 WL 2116959 (C.D. Cal. May 14, 2008);
see Jones ’El v. Berge, 172 F. Supp. 2d 1128, 1134 (W.D. Wis. 2001) (holding that once a claim is
exhausted, “[a]ny claim for relief that is within the scope of the pleadings” may be litigated without
further exhaustion).
316. Johnson v. Testman, 380 F.3d 691, 697.
317. Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004); see Westefer v. Snyder, 422 F.3d 570,
580–81 (7th Cir. 2005) (holding that plaintiffs sufficiently exhausted complaints about transfers to a
high-security prison by listing “Transfer from Tamms” as a requested remedy, or by expressing concern
about not being given a reason for the transfer, in grievances about the conditions at that prison);
Barnes v. Briley, 420 F.3d 673, 678–79 (7th Cir. 2005) (holding a grievance “in regards to a request for
[sic] for medical test and treatment. I have requested several times to be tested for Tuberculosis, H.I.V.,
Hepatitis, etc. for the past few years” exhausted as to the past failure to respond to such requests by a
doctor not named in the grievance and no longer employed at the prison).
318. See, e.g., McAlphin v. Toney, 375 F.3d 753, 755 (8th Cir. 2004) (per curiam) (treating claim
that two defendants failed to treat plaintiff’s dental grievances as emergency matters and others
refused to escort him to the infirmary for emergency treatment were both part of a single exhausted
claim of denial of emergency dental treatment); Kikumura v. Hurley, 242 F.3d 950, 956 (10th Cir. 2001)
(holding complaint sufficient to meet the exhaustion requirement where the plaintiff complained that
he was denied Christian pastoral visits, though the defendants said his claim should be dismissed
because he had not stated in the grievance process that his religious beliefs include elements of both
the Buddhist and Christian religions); Carter v. Symmes, No. 06-10273-PBS, 2008 U.S. Dist. LEXIS
7680, at *9 (D.Mass. Feb. 4, 2008) (unpublished) (adopting administrative law rule that “claims not
enumerated in an initial grievance are allowed notwithstanding the exhaustion requirement if they ‘are
like or reasonably related to the substance of charges timely brought before [the agency]’”); Crawford v.
Dretke, No. C-04-335, 2007 U.S. Dist. LEXIS 3696, at *22 (S.D. Tex. Jan. 11, 2007) (unpublished)
(holding that a generalized statement sufficed to exhaust where the alleged violations were repetitive
and involved the same defendants); Grant v. Cathel, No. 05-3956 (MLC), 2007 U.S. Dist. LEXIS 1854,
at *13–14 (D.N.J. Jan. 10, 2007) (unpublished) (holding that a prisoner's complaint that he was not
receiving prescribed cancer treatment and medication and was in great pain sufficiently exhausted a
claim that defendants failed to provide an escort to get him to his medical appointments and
defendants failed to supervise his medical care; plaintiff's grievance “discuss[ed] the primary grievance
underlying his claims, his allegedly inadequate medical treatment”); Underwood v. Mendez, No. 3:04-
hypertechnical arguments that grievances were inadequate.319 They have held grievances
inadequate, at least in part, when they were so vague that prison officials could not
reasonably have been expected to understand what the prisoner was complaining about.320
There are exceptions. Some courts have required much greater detail and specificity in
grievances even if the policy did not require it. For example, one recent decision said it was
not sufficient for the prisoner to have grieved the claim that he had been denied treatment
for his injured finger at every prison he had been at; the court said he should have told them
CV-1624, 2006 U.S. Dist. LEXIS 20351, at *13–14 (M.D. Pa. Mar. 31, 2006) (unpublished) (holding that
a prisoner who complained of a retaliatory transfer need not also have mentioned in his grievance a
falsified progress report and a conspiracy, since these were just factual allegations supporting his
retaliation claim); Mester v. Kim, No. CV-F-04-6580 REC SMS P, 2005 U.S. Dist. LEXIS 35178, at *7
(E.D. Cal. Dec. 22, 2005) (unpublished) (holding that a grievance asserting that the plaintiff had a
hernia and had not received necessary surgery sufficiently fulfilled exhaustion requirement without
detailing the acts or omissions of individual defendants), report and recommendation adopted, No. 1:04-
cv-06580-REC-SMS-P, 2006 U.S. Dist. LEXIS 5877 (E.D. Cal. Feb. 15, 2006) (unpublished); Pineda-
Morales v. De Rosa, No. 03-4297 (JBS), 2005 U.S. Dist. LEXIS 37179, at *20–21 (D.N.J. July 6, 2005)
(unpublished) (holding that a Plaintiff seeking increased accommodation for his religion, and stating
that it could not be accommodated by existing Protestant services and that their doctrines were
incompatible, sufficiently exhausted his claim for official recognition of his Apostolic sect even though it
did not mention the Religious Freedom Restoration Act or specifically request recognition); Lyerly v.
Phillips, No. 04 Civ. 3904 (PKC), 2005 U.S. Dist. LEXIS 15602, at *6–7 (S.D.N.Y. July 29, 2005)
(unpublished) (holding that complaint of exposure to second-hand smoke sufficiently exhausted without
detail of the plaintiff’s medical condition, the relief sought, or the names of the culprits); Davis v.
Stanford, 382 F. Supp. 2d 814, 819 (E.D. Va. 2004) (holding a claim of inadequate medical care,
“liberally construed,” was encompassed by a grievance concerning inadequate treatment for the
resulting pain), aff’d, 127 F. App’x 680 (4th Cir. 2005) (unpublished); Cassels v. Stalder, 342 F. Supp.
2d 555, 560 (M.D. La. 2004) (holding that disciplinary appeal from conviction for “spreading rumors,” in
which the prisoner stated that he had placed an advertisement “in seek of legal help” and was “being
retaliated against,” sufficiently exhausted his claims of denial of access to courts and the right to seek
counsel, retaliation, and vagueness and overbreadth of the disciplinary rule).
319. See, e.g., Johnson v. Johnson, 385 F.3d 503, 517–18 (5th Cir. 2004) (agreeing legal theories
need not be presented in grievances. A prisoner who complained of sexual assault, repeatedly
referenced his sexual orientation, and said nothing about his race had exhausted his sexual orientation
discrimination claim but not his racial discrimination claim); Burton v. Jones, 321 F.3d 569, 575 (6th
Cir. 2003) (holding grievance need not “allege a specific legal theory or facts that correspond to all the
required elements of a particular legal theory”); Tillis v. Lamarque, No. C 04-3763 SI, 2006 U.S. Dist.
LEXIS 14624, at *19 (N.D. Cal. Mar. 9, 2006) (unpublished) (“In determining whether a claim has been
exhausted, a court must consider whether a reasonable investigation of the complaint would have
uncovered the allegations now before it.”); Williams v. Wilkinson, 122 F. Supp. 2d 894, 899 (S.D. Ohio
2000) (rejecting defendants’ argument that “each claim at each stage [of the grievance process] must
parallel each and every claim in the federal complaint”).
320. See, e.g., Thompson v. Stalder, No. 06-659-JJB-CN, 2008 WL 874138, at *4 (M.D. La. Apr. 1,
2008) (unpublished) (holding a general statement that plaintiff was “unable to practice [his] religious
beliefs” did not exhaust his specific claims to a meat-free diet and Rastafarian services and literature; it
did not provide a fair opportunity to address the claims later asserted in his suit); Beltran v. O'Mara,
405 F. Supp. 2d 140, 152 (D.N.H. 2005) (holding that allegations the plaintiff was “being punished for
no reason” and isolated from other prisoners were “too vague” to allow officials to make any response),
on reconsideration, No. 04-cv-071-JD, 2006 U.S. Dist. LEXIS 6277 (D.N.H. Jan. 31, 2006)
(unpublished); Aguirre v. Feinerman, No. 3:02 cv 60 JPG, 2005 U.S. Dist. LEXIS 45520, at *20 (S.D. Ill.
May 10, 2005) (unpublished) (holding that a grievance that specifically mentioned physical therapy, but
mentioned other medical care only generally, did not exhaust as to the failure to diagnose the plaintiff’s
congestive heart failure; “While specifically identifying the ailment would not be required, there must
be some indication as to what medical issues the plaintiff was complaining about.”); Ball v.
McCaughtry, No. 04-C-205-C, 2004 U.S. Dist. LEXIS 8039, at *6–7 (W.D. Wis. May 6, 2004)
(unpublished) (holding that a prisoner who complained about seized papers that he identified only as
“gay materials,” even when asked for more information, was insufficiently specific to satisfy a grievance
policy calling for sufficient facts to allow an examiner to investigate the complaint).
he was denied access to an orthopedic surgeon around a particular date, then transferred two
months later and denied medical care. 321 In particular, a number of courts have held
grievances inadequate when failing specifically to mention claims of denial of First
Amendment rights, 322 unlawful retaliation, 323 discrimination contrary to the Equal
Protection Clause,324 or conspiracy that they later asserted in their lawsuits, even if they
stated the underlying facts in their grievances.325 These decisions seem contrary to other
decisions (sometimes from the same courts) saying prisoners do not have to plead legal
theories in their grievances.
If the grievance system actually investigates and addresses your complaint on the
merits, rather than throwing it out for not being specific or detailed enough, you should be
deemed to have exhausted, even if the defendants’ lawyers later claim that you should have
said more in the grievance.326
321. Davis v. Knowles, No. CIV S-04-0821 LKK KJM P, 2007 U.S. Dist. LEXIS 6159, at *7–8
(E.D. Cal. Jan. 25, 2007) (unpublished).
322. See Dye v. Kingston, 130 F. App’x 52, 56 (7th Cir. 2005) (unpublished) (holding that a
prisoner who complained in his grievance of missing property items, including his Bibles, failed to
exhaust his 1st Amendment claim by failing to state that the Bibles’ loss was “infringing on his
religious practice”).
323. Griffin v. Miner, No. 1:06 CV 1889, 2006 U.S. Dist. LEXIS 79764, at *1–2 (N.D. Ohio Oct.
31, 2006) (unpublished) (plaintiff, who did not mention his retaliation theory in his grievance, did not
exhaust with respect to retaliation); Robins v. Atchue, No. 1:01-CV-6396-REC-SMS-P, 2006 U.S. Dist.
LEXIS 27967, at *4 (E.D. Cal. May 10, 2006) (unpublished) (holding disciplinary appeal that did not
mention retaliation could not exhaust a retaliation claim), report and recommendation adopted, No.
1:01-cv-06396-AWI-SMS-P, 2006 U.S. Dist. LEXIS 46229 (E.D. Cal. July 7, 2006) (unpublished); Lindell
v. Casperson, 360 F. Supp. 2d 932, 949 (W.D. Wis. 2005), aff’d, 169 F. App’x 999 (7th Cir. Mar. 13,
2006) (unpublished), cert. denied, 127 S. Ct. 183 (2006). Contra Mitchell v. Horn, 318 F.3d 523, 531 (3d
Cir. 2003) (holding that a prisoner who claimed retaliatory discipline exhausted by appealing the
disciplinary decision to the highest level).
324. Johnson v. Johnson, 385 F.3d 503, 518 (5th Cir. 2004) (holding that a prisoner who
complained of sexual assault, made repeated reference to his sexual orientation, but said nothing about
his race had exhausted his sexual orientation discrimination claim but not his racial discrimination
claim); Goldsmith v. White, 357 F. Supp. 2d 1336, 1338–41 (N.D. Fla. 2005); Young v. Goord, No. 01-
CV-0626 (JG), 2002 U.S. Dist. LEXIS 17715, at *12–14 (E.D.N.Y. Sept. 3, 2002) (unpublished) (holding
that a prisoner who alleged in his grievance only that he had been disciplined for conduct that did not
violate the rules could not litigate an equal protection claim that he was disciplined for discriminatory
reasons), aff’d in part, vacated in part on other grounds, 67 F. App’x 638 (unpublished) (2d Cir. 2003).
325. Brownell v. Krom, 446 F.3d 305, 310–11 (2d Cir. 2006) (holding grievance inadequate for
failing to mention allegation that loss of property was intentional); Lindell v. Frank, Slip Op., No. 05-C-
003-C, 2005 U.S. Dist. LEXIS 21300 (W.D. Wis. Sep 23, 2005) (unpublished) (holding failure to mention
conspiracy allegations in grievance appeal meant that claim was not exhausted). But see Kitchen-Bey v.
Hoskins, No. 2:06-cv-251, 2006 U.S. Dist. LEXIS 84090, at *4 (W.D. Mich. Nov. 20, 2006) (unpublished)
(declining to dismiss because plaintiff had not mentioned conspiracy in his grievance); Underwood v.
Mendez, No. 3:04-CV-1624, 2006 U.S. Dist. LEXIS 20351, at *5 (M.D. Pa. Mar. 31, 2006) (unpublished)
(holding a prisoner who complained of a retaliatory transfer need not also have mentioned in his
grievance a falsified progress report and a conspiracy, since these were just factual allegations
supporting his retaliation claim).
326. Monger v. Tilton, No. CIV S-07-1353 GEB DAD P, 2008 U.S. Dist. LEXIS 72638, at *4–5
(E.D. Cal. Aug. 18, 2008) (unpublished) (statements made by plaintiff during grievance interviews and
acknowledged in the response to his grievance helped show what was grieved); Freeman v. Salopek, No.
2:06-cv-496-FtM-34SPC, 2008 U.S. Dist. LEXIS 21452, at *4 (M.D. Fla. Mar. 19, 2008) (unpublished)
(rejecting claim that grievance was “undated, unclear, and vague” where final decisionmaker gave
response addressing the precise issue raised in the grievance); Carter v. Symmes, No. 06-10273-PBS,
2008 U.S. Dist. LEXIS 7680, at *5 (D. Mass. Feb. 4, 2008) (unpublished) (issue not raised in the
grievance, but spelled out in a timely letter from counsel, and actually investigated by defendants, was
exhausted); Holley v. Cal. Dep’t. of Corr., No. CIV S-04-2006 MCE EFB P, 2007 U.S. Dist. LEXIS
12683, at *6–8 (E.D. Cal. Feb. 23, 2007) (unpublished) (holding prisoner who complained about being
You can expect prison officials to take every opportunity to attack your grievance as
inadequate. Here are some things you can do to protect yourself. If your grievance system
requires you to name all the individuals involved, you will not necessarily know who they all
are. Make that clear in your grievance. For example, if you were beaten by several officers
while others looked on and did not intervene, you might write that your grievance was
against “Officers Smith and Jones, who beat me, along with the other officers present who
beat me or who stood by and did not intervene to stop the beating, and whose names I do not
know.” If you think there is a practice of beating prisoners that higher-ups in the prison are
responsible for, you might add something like: “Sergeant Black, Lieutenant White, Deputy
Superintendent Green and Superintendent Redd, and any other supervisors unknown to me
who fail to train and supervise the security staff and keep them from using excessive and
unnecessary force.” If you are denied a book you have ordered by the mail room officer who
tells you only “it’s not allowed,” your grievance might say it was against “Officer Jones in the
mail room, and any other person unknown to me who made the decision or policy (if any)
resulting in this book being denied to me, or if there is no such policy, the supervisor of the
mail room operation, unknown to me, who allows mail room staff to deny books to prisoners
in the absence of a policy permitting such denial.”
Even if your prison’s grievance policy does not require the naming of all involved
individuals, you are well advised to think about the different events and policies that are or
might be involved in the problem you are grieving, and mention them. For instance, in the
use of force example above, if the grievance policy requires only a “concise, specific statement
of the problem,” you might say: “I was beaten without justification by Officers Smith and
Jones and others, while other officers stood by and did not intervene, and I am also
complaining about the lack of training and supervision that allows security staff to use
excessive and unnecessary force and get away with it.”327 In the book seizure example, you
might say: “I was denied the book A Time to Die about the 1971 Attica disturbance, and I am
also complaining about the policies and practices that allow the denial to prisoners of books
without good reason and without clear written criteria and procedures.” (Or, if they do have
clear criteria and procedures that you may wish to challenge, mention those in the grievance
too.)
Similarly, if you get more information about a problem after you have filed a grievance
about it (or more information about the people responsible, if the system requires that), you
should consider filing a separate grievance reflecting the new information.328 If it is past the
required to cut his hair, asserting religious discrimination at the first stage and gender discrimination
at the last, and received a decision on the merits, exhausted), report and recommendation adopted, No.
2:04-cv-2006-MCE-EFB-P, 2007 U.S. Dist. LEXIS 20289 (E.D. Cal. Mar. 22, 2007) (unpublished);
Ambriz v. Kernan, No. CIV S-05-1298 DFL EFB P, 2007 U.S. Dist. LEXIS 5329, at *6 (E.D. Cal. Jan.
25, 2007) (unpublished) (noting that the “responses of the reviewers flesh out the circumstances of
which plaintiff was complaining,” finding exhaustion), report and recommendation adopted, No. CIV S-
05-1298 DFL EFB P, 2007 U.S. Dist. LEXIS 20066 (E.D. Cal. Mar. 21, 2007) (unpublished); Baskerville
v. Blot, 224 F. Supp. 2d 723, 730 (S.D.N.Y. 2002) (holding that where the plaintiff’s issues were actually
investigated as a result of his grievance, the purposes of the exhaustion requirement had been served
and the plaintiff had therefore exhausted). This is related to the more general principle that if the
administrative system decides the merits of your complaint rather than throwing it out for procedural
defects, those procedural defects are waived, and the defendants cannot rely on them in court; see J.P.
v. Taft, 439 F. Supp. 2d 793, 826 (S.D. Ohio 2006) (holding defendants who said they “consistently
tried” to satisfy the juvenile plaintiff’s request for an attorney could not be heard to claim they were not
sufficiently on notice from his grievance of his request for an attorney and that ”[d]efendants cannot
have it both ways.”).
327. See Kozohorsky v. Harmon, 332 F.3d 1141, 1143 (8th Cir. 2003) (holding a grievance
complaining of excessive force by line staff did not exhaust plaintiff’s claim that a supervisor failed to
supervise and take action against them).
328. If the grievance system contains a “name all responsible persons” rule, courts might require
new grievances reflecting newly identified defendants or other information. In Brownell v. Krom, 446
grievance deadline, explain that you couldn’t file it within the deadline because you didn’t
have the information. For example, if you file a grievance stating that you have been denied
certain medical care by the prison’s medical director, and then later on you learn that your
care was denied by a “utilization review” process in the prison system’s central office, you
might wish to file and exhaust a new grievance about the utilization review decision. Courts
have disagreed about whether such grievances are effective to exhaust, but filing them is the
best way to protect yourself when you learn new information after an initial grievance.329
Prison officials and their lawyers have strong incentives to try to get cases thrown out for
non-exhaustion rather than have to face the merits, and judges may be receptive to their
arguments. So, you should do your best to make your grievance reflect all aspects of the
problem that you may wish to bring suit about, so the judge will see that you did your best to
bring everything to prison officials’ attention in compliance with the grievance system’s rules
before suing.
5. What If You Make a Mistake Trying to Exhaust?
Prisoners not only must exhaust, they must do it right. The Supreme Court has held that
“the PLRA exhaustion requirement requires proper exhaustion,” 330 which “demands
compliance with an agency’s deadlines and other critical procedural rules because no
adjudicative system can function effectively without imposing some orderly structure on the
course of its proceedings.”331 If your administrative complaint is rejected because you did not
follow the procedures, your lawsuit will be barred for non-exhaustion.332
This does not mean that if you fail to follow a procedural rule, you should just give up.
You should pursue your grievance, request that your error be excused or that you be
permitted to re-file your grievance and start over, and explain any circumstances that might
have caused you to make a mistake. Sometimes grievance systems allow correction and re-
filing (in fact, sometimes they instruct prisoners to do so 333 ). Also, sometimes grievance
systems simply overlook procedural mistakes, and courts have held that if prison officials
decide the merits of a grievance rather than reject it for procedural noncompliance, they
F.3d 305, 312 (2d Cir. 2006), the court rejected the argument that the plaintiff should have filed a new
grievance reflecting new information, but only because the system did not seem to provide for
supplementing or re-filing existing grievances to reflect new information.
329. Compare Sullivan v. Caruso, No. 1:07cv367, 2008 U.S. Dist. LEXIS 9090 (W.D. Mich. Feb. 7,
2008) (unpublished) (holding defendants improperly rejected a grievance as duplicative where it named
a defendant not named in a previous grievance) with Laster v. Pramstaller, No. 06-13508, 2008 U.S.
Dist. LEXIS 11435 (E.D. Mich. Feb. 15, 2008) (unpublished) (holding a grievance naming a defendant
that is dismissed as duplicative of an earlier grievance not naming that defendant fails to exhaust).
In Dunbar v. Jones, No. 1:05-CV-1594, 2007 U.S. Dist. LEXIS 49278, at *21–22 (M.D. Pa. July 9,
2007) (unpublished), the court rejected the argument that the plaintiff should have amended his
grievance to name a defendant whose identity he did not initially know, since the rules did not provide
for such amended grievances, but dismissed the claim against that defendant because the plaintiff
didn’t add her name in his grievance appeals—without citing anything in the grievance policy that
permits adding new material in grievance appeals. Another district court accepted the argument that
the plaintiff was obliged to file a late and duplicative grievance upon learning who was responsible for
the action he complained of, without any discussion of whether the rules provided for such a grievance.
Fulgham v. Snyder, No. 2:07-CV-88, 2008 U.S. Dist. LEXIS 22590 (W.D. Mich. Mar. 21, 2008)
(unpublished).
330. Woodford v. Ngo, 548 U.S. 81, 106, 126 S. Ct. 2378, 2394, 165 L. Ed. 2d 368, 387 (2006).
331. Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S. Ct. 2378, 2386, 165 L. Ed. 2d 368, 387 (2006);
see also Jones v. Bock, 549 U.S. 199, 217–19, 127 S. Ct. 910, 922–23, 166 L. Ed. 2d 798, 815 (2007)
(“Compliance with prison grievance procedures ... is all that is required by the PLRA to properly
exhaust.”).
332 . Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006); Pozo v.
McCaughtry, 286 F.3d 1022, 1023–24 (7th Cir. 2002).
333. If they do, you should follow the directions even if you disagree with them.
cannot later claim non-exhaustion based on a procedural flaw that they let go earlier.334
Courts have disagreed over whether a grievance exhausts if it is rejected both on the merits
and for procedural reasons.335 If the purpose of the “proper exhaustion” rule is to preserve the
system’s ability to “function effectively,”336 it would seem that a decision on the merits is a
good indication that the system has functioned effectively, and dismissal serves no useful
purpose—as you should argue if the issue arises in your case. In any case, the harder you
have tried to exhaust, the more likely the court is to rule in your favor in a close case.
There is also a potential trap in the proper exhaustion rule. Sometimes prisoners are not
able to follow the rules for reasons outside their control—for example, they miss a deadline
because they are out of the institution and have no access to the grievance process. One
would think that such circumstances mean that the administrative remedy was not available
for the affected prisoner. However, a number of courts have held that prisoners who are
prevented from exhausting properly must try to exhaust improperly—for example, if they
cannot file a timely grievance, they should file a late grievance when they can, or else their
cases may be dismissed for non-exhaustion. This does not make any sense, but courts do it,
so you should act to protect yourself against such a dismissal by filing and pursuing the late
or otherwise improper grievance.
It is unclear how absolute this proper exhaustion rule is.337 The Court said it was not
ruling on the possibility that prisons might “create procedural requirements for the purpose
of tripping up all but the most skillful prisoners,” since the case did not present that
situation. 338 Several post-Woodford decisions have cited that statement in holding that
334. See, e.g., Gates v. Cook, 376 F.3d 323, 331 n.6 (5th Cir. 2004) (noting that the plaintiff sent
a form to the Commissioner rather than the Legal Adjudicator but defendants did not reject it for
noncompliance; in addition, the grievance was submitted by the prisoner’s lawyer and not by the
prisoner, as the rules specify); Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004); Ross v. County of
Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004) (overruled in part by Jones v. Bock, 549 U.S. 199, 127
S. Ct. 910, 166 L. Ed. 2d 798, (2007)); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
335. Compare Cobb v. Berghuis, No. 1:06-CV-773, 2007 U.S. Dist. LEXIS 93890, at *3–4 (W.D.
Mich. Dec. 21, 2007) (unpublished) (holding that a grievance rejected for both reasons does not exhaust)
(unpublished) with McCarroll v. Sigman, No. 1:07-cv-513, 2008 U.S. Dist. LEXIS 17254, at *10 (W.D.
Mich. Mar. 6, 2008) (unpublished) (finding exhaustion on those facts), reconsideration granted on other
grounds, No. 1:07-CV-513, 2008 U.S. Dist. LEXIS 38710 (W.D. Mich. May 13, 2008) (unpublished).
337. One court’s proclamation that “[i]n Ngo, the Supreme Court was emphatic that the PLRA
requires punctiliously proper exhaustion of administrative remedies,” Andrade v. Maloney, No. 02-
10613-DPW, 2006 U.S. Dist. LEXIS 57827, at *24 (D. Mass. Aug. 16, 2006) (unpublished), pushes
Woodford’s language a bit too far.
This is a concern that has been expressed by numerous courts. See, e.g., Hooks v. Rich, No. CV 605-065,
2006 U.S. Dist. LEXIS 12951, at *18–19 (S.D. Ga. Jan. 17, 2006) (unpublished) (“The exhaustion
requirement is a gatekeeper, not a ‘gotcha’ meant to trap unsophisticated prisoners who must navigate
the administrative process pro se.”); Ouellette v. Maine State Prison, No. 05-139-B-W, 2006 U.S. Dist.
LEXIS 2380, at *10 n.2 (D. Me. Jan. 23, 2006) (unpublished) (noting that once suit is filed, “the
defendants in hindsight can use any deviation by the prisoner to argue that he or she has not complied
with 42 U.S.C. § 1997e(a) responsibilities”), aff’d, 2006 U.S. Dist. LEXIS 6344 (D. Me. Feb. 14, 2006)
(unpublished); Campbell v. Chaves, 402 F. Supp. 2d 1101, 1106 n.3 (D. Ariz. 2005) (noting danger that
grievance systems might become “a series of stalling tactics, and dead-ends without resolution”);
LaFauci v. N.H. Dep’t of Corr., No. 99-597-PB, 2005 U.S. Dist. LEXIS 2756, at *50 (D.N.H. Feb. 23,
2005) (unpublished) (“While proper compliance with the grievance system makes sound administrative
sense, the procedures themselves, and the directions given to inmates seeking to follow those
procedures, should not be traps designed to hamstring legitimate grievances.”); Rhames v. Fed. Bureau
of Prisons, No. 4338 (AKH), 2002 U.S. Dist. LEXIS 10133, at *13–14 (S.D.N.Y. June 6, 2002)
(unpublished) (“While it is important that prisoners comply with administrative procedures designed
by the Bureau of Prisons, rather than using any they might think sufficient, ... it is equally important
prisoners who didn’t fully comply with procedural requirements, but who were arguably
“tripped up” by them, should not have their cases dismissed for non-exhaustion. 339 The
Woodford Court also said that it was relying on exhaustion law from administrative law and
habeas corpus. In response, Justice Breyer, in a separate opinion, observed that
administrative law “contains well established exceptions to exhaustion” (citing exceptions for
constitutional claims, futility of exhaustion, and hardship), and so does habeas corpus (citing
exceptions for procedural rules that are “not firmly established and regularly followed,” cases
where the petitioner shows “cause and prejudice” to overcome a procedural default, and cases
where a “miscarriage of justice” would result from enforcing the procedural default). 340
Several decisions have cited these observations in allowing claims to go forward despite
failures to exhaust in complete compliance with grievance rules.341
that form not create a snare of forfeiture for a prisoner seeking redress for perceived violations of his
constitutional rights.”).
339. Timberlake v. Buss, No. 1:06-cv-1859-RLY-WTL, 2007 U.S. Dist. LEXIS 32306, at *8 (S.D.
Ind. May 1, 2007) (unpublished) (declining to dismiss challenge to execution protocols where they were
not disclosed to plaintiff and he had no reason to have known about them), vacated as moot, No. 07-
1086, No. 07-3228, 2007 U.S. App. LEXIS 28412 (7th Cir. 2007) (unpublished); Lampkins v. Roberts,
No. 1:06-cv-639-DFH-TAB, 2007 U.S. Dist. LEXIS 22695, at *7 (S.D. Ind. Mar. 27, 2007) (unpublished)
(declining to dismiss for missing a five-day deadline that was not shown to have been made known to
prisoners); Brookins v. Vogel, No. 1:05-CV-0413-OWW-DLB-P, 2006 U.S. Dist. LEXIS 86252, at *9
had exhausted under the pre-Woodford rule that exhaustion occurs when prison officials fail to respond
to a grievance within the policy time limits; stating prisoner asserted without contradiction that he was
“prevented from complying with the exhaustion requirement”); Parker v. Robinson, No. 04-214-B-W,
2006 U.S. Dist. LEXIS 64107, at *33–34 (D. Me. Oct. 10, 2006) (unpublished) (refusing to dismiss
where the prisoner sent his appeal to the Commissioner who was supposed to decide it, not the person
who was supposed to forward it to the Commissioner under the rules); Thomas v. Hickman, No. CV F
06-0215 AWI SMS, 2006 U.S. Dist. LEXIS 72988, at *26–27 (E.D. Cal. Oct. 6, 2006) (unpublished)
(declining to dismiss where the prisoner’s grievance was untimely but the prisoner did not know about
the violation until long after the deadline had passed).
340. Woodford v. Ngo, 548 U.S. 81, 103–104, 126 S. Ct. 2378, 2393, 165 L. Ed. 2d 368, 386 (2006)
(Breyer, J., concurring in judgment). Justice Breyer’s assertions are contrary at least in part to the
Court’s earlier observation in Booth v. Churner that the PLRA rendered inapplicable “traditional
doctrines of administrative exhaustion, under which a litigant need not apply to an agency that has ‘no
power to decree ... relief,’ or need not exhaust where doing so would otherwise be futile.” Booth v.
Churner, 532 U.S. 731, 741 n.6, 121 S. Ct. 1819, 1825 n.6, 149 L. Ed. 2d 958, 967 n.6 (2001); see Ngo v.
Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008) (stating after Supreme Court decision: "It is unclear
whether we can read exceptions into the PLRA's exhaustion requirement."); Wigfall v. Duval, No. 00-
12274-DPW, 2006 U.S. Dist. LEXIS 57836, at *8–9 (D. Mass. Aug. 15, 2006) (unpublished)
(acknowledging tension between the Breyer opinion and Booth, indicating its view that estoppel is
applicable notwithstanding Woodford). On the other hand, the Woodford majority’s assertion that
exhaustion means the same thing under the PLRA that it does in administrative law appears equally
inconsistent with the Booth observation.
341. Brookins v. Vogel, No. 1:05-CV-0413-OWW-DLB-P, 2006 U.S. Dist. LEXIS 86252, at *9
had exhausted under the pre-Woodford rule that exhaustion occurs when prison officials fail to respond
to a grievance within the policy time limits; stating prisoner asserted without contradiction that he was
“prevented from complying with the exhaustion requirement”); Parker v. Robinson, No. 04-214-B-W,
2006 U.S. Dist. LEXIS 64107, at *33–34 (D. Me. Oct. 10, 2006) (unpublished) (refusing to dismiss
where the prisoner sent his appeal to the Commissioner who was supposed to decide it, not the person
who was supposed to forward it to the Commissioner under the rules); Thomas v. Hickman, No. CV F
06-0215 AWI SMS, 2006 U.S. Dist. LEXIS 72988, at *26–27 (E.D. Cal. Oct. 6, 2006) (unpublished)
(declining to dismiss where the prisoner’s grievance was untimely but the prisoner did not know about
the violation until long after the deadline had passed); Collins v. Goord, 438 F. Supp. 2d 399, 411 n.13
Before Woodford, the Second Circuit had set out circumstances under which failure to
exhaust according to prison procedures would not bar litigation:
First, the court must ask: whether administrative remedies were in
fact “available” to the prisoner. [Second], [t]he court should also
inquire ... whether the defendants' own actions inhibiting the
inmate’s exhaustion of remedies may estop one or more of the
defendants from raising the plaintiff’s failure to exhaust as a defense.
[Third], [i]f the court finds that administrative remedies were
available to the plaintiff, and that the defendants are not estopped
and have not forfeited their non-exhaustion defense, but that the
plaintiff nevertheless did not exhaust available remedies, the court
should consider whether special circumstances have been plausibly
alleged that justify the prisoner’s failure to comply with
administrative procedural requirements ... .
... What constitutes justification in the PLRA context “must be
determined by looking at the circumstances which might
understandably lead usually uncounselled prisoners to fail to grieve
in the normally required way.”342
The initial post-Woodford decisions indicate that the Second Circuit analysis remains
good law. The first district court to address the question stated that Woodford “appears to
leave open the question of whether exhaustion applies in situations such as those identified
in Hemphill and its companion cases where, for example, administrative remedies are not
‘available’ to the prisoner at the time of the grievable incident or where prison authorities
actively interfere with an inmate’s ability to invoke such remedies,” though Woodford may
not be compatible with the results of all the cases applying Hemphill.343 Other courts have,
after Woodford, adopted the Hemphill framework for determining when prison officials’
threats or intimidation make remedies “unavailable.”344 Another recent New York decision
applying the Second Circuit “special circumstances” rule also distinguished Woodford on the
ground that the prisoner before it, unlike the Woodford plaintiff, had not “bypass[ed] prison
grievance procedures” or “attempt[ed] to circumvent the exhaustion requirements.” 345
(S.D.N.Y. 2006) (unpublished) (applying Breyer’s Woodford concurrence to state that district courts
should consider “‘any challenges that [the prisoner’ may have concerning whether his case falls into a
traditional exception that the [PLRA] implicitly incorporates’”) (quoting Woodford v. Ngo, 548 U.S. 81,
104, 126 S. Ct. 2378, 2393, 165 L. Ed. 2d 368, 386 (2006) (Breyer, J., concurring in judgment).
342. Brownell v. Krom, 446 F.3d 305, 311 (2d Cir. 2006) (quoting Hemphill v. New York, 380
F.3d 680, 686 (2d Cir. 2004).
343. Collins v. Goord, 438 F. Supp. 2d 399, 411 n.13 (S.D.N.Y. 2006); Bester v. Dixion, No. 9:03-
CV-1041, 2007 U.S. Dist. LEXIS 21714, at *10–11 (N.D.N.Y. Mar. 27, 2007) (unpublished) (considering
whether prisoner was relieved of exhaustion requirements under a Hemphill analysis; Hairston v.
LaMarche, No. 6642 (KMW) (AJP), 2006 U.S. Dist. LEXIS 55436, at *22 n.9 (S.D.N.Y. Aug. 10, 2006)
(noting that the Second Circuit has not addressed the effect of Woodford on the Hemphill analysis). The
Collins court specifically noted that Justice Breyer cited with approval Giano v. Goord, 380 F.3d 670,
677–78, which held that exhaustion is “mandatory” but subject to the “caveats” outlined in Hemphill.
Justice Breyer urged district courts to continue to consider “any challenges that [the prisoner] may
have concerning whether his case falls into a traditional exception that the [PLRA] implicitly
incorporates.” Woodford v. Ngo, 548 U.S. 81, 104, 126 S. Ct. 2378, 2393, 165 L. Ed. 2d 368, 386 (Breyer,
J., concurring in judgment). See James v. Davis, No. 9:05-2733-DCN-GCK, 2006 U.S. Dist. LEXIS
53224, at *16–17 (D.S.C. July 31, 2006) (applying Hemphill analysis after Woodford); Hernandez v.
Coffey, No. 11615 (WHP), 2006 U.S. Dist. LEXIS 52066, at *7–8 (S.D.N.Y. July 26, 2006) (same).
344. Turner v. Burnside, 541 F.3d 1077, 1084–85 (11th Cir. 2008); Kaba v. Stepp, 458 F.3d 678,
684–86 (7th Cir. 2006).
345. Hairston v. LaMarche, No. 05 Civ. 6642 (KMW) (AJP), 2006 U.S. Dist. LEXIS 55436, at *30,
40 (S.D.N.Y. Aug. 10, 2006) (unpublished); see Parker v. Robinson, No. 04-214-B-W, 2006 U.S. Dist.
LEXIS 64107, at *34 (D. Me. Oct. 10, 2006) (unpublished) (not dimissing for non-exhaustion where
Rather, he had tried hard and in multiple ways to bring his complaint to the attention of
responsible officials. “[A]lthough each of his efforts, alone, may not have fully complied,
together his efforts sufficiently informed prison officials of his grievance and led to a
thorough investigation of the grievance as to satisfy the purpose of the PLRA or to constitute
‘special circumstances’ [to] justify any failure to fully comply with DOCS’ exhaustion
requirements.”346
The Second Circuit has yet to decide these post-Woodford questions,347 but it has held that
after Woodford, it is not enough that a prisoner’s informal complaints gave prison officials
enough notice to investigate a problem. It stated that the PLRA requires both “substantive
exhaustion” (notice to officials) and “procedural exhaustion” (following the rules), and that
“after Woodford notice alone is insufficient.”348 The court did not address its earlier holding
that a prisoner’s reasonable interpretation of confusing grievance rules may justify the
failure to follow procedural rules correctly.349
More specific questions remaining after Woodford include the following
(1) What if procedural requirements are not clear? The Second Circuit had held before Woodford that
a prisoner who acted reasonably when the rules were not clear presented special circumstances
justifying his failure to exhaust properly, even if he turned out to be wrong,350 and other courts
plaintiff sent his appeal directly to the Commissioner, rather than sending it to the Grievance Review
Officer to forward to the Commissioner); Rainge-El v. Moschetti, No. 05-cv-01831-PSF-CBS, 2006 U.S.
Dist. LEXIS 47305, at *3 (D. Colo. July 12, 2006) (unpublished) (questioning Woodford’s applicability
where the plaintiff “did not entirely ignore the prison’s administrative grievance machinery”).
346. Hairston v. LaMarche, No. 05 Civ. 6642 (KMW) (AJP), 2006 U.S. Dist. LEXIS 55436, at *30,
(S.D.N.Y. Aug. 10, 2006) (unpublished). Hairston, who complained of excessive force, did not file a
grievance within the proper time frame. However, he had been placed in segregated housing, and
stated that contrary to prison policy, he was unaware of any grievance staff who were making rounds in
the SHU. He argued that this created a factual question of whether the remedy was actually available
to him or whether defendants should be estopped from relying on non-exhaustion. His wife wrote to the
superintendent and requested an investigation within the prescribed time period for grievances. While
such a letter does not suffice to exhaust by itself, if it results in an Inspector General’s investigation, it
may constitute “special circumstances” satisfying the PLRA’s purposes, and cause the same result as
invoking the prison system’s expedited grievance procedure. Since the plaintiff never received notice of
any decision on his complaint (he received the results of the Inspector General’s investigation only in
discovery after filing suit), he had no opportunity to appeal it. Meanwhile, Mr. Hairston received a
disciplinary hearing, and attempted to raise his claim of assault, but was not allowed to do so there. He
raised his claim in his disciplinary appeal as well. Once he was released from SHU and advised by
another prisoner to do so, he filed a grievance, which the superintendent rejected on its merits and
deemed untimely (which means it was not filed when it should have been). He did not appeal because
he thought he could not appeal an untimely grievance, which the court found reasonable.
347. See Reynoso v. Swezey, 238 F. App’x 660, 662 (2d Cir. June 25, 2007) (unpublished), cert.
denied, 128 S. Ct. 1278 (2008); Boddie v. Bradley, 228 F. App’x 5, 6–7 (2d Cir. 2007) (unpublished) (both
declining to consider effect of Woodford on circuit precedent where plaintiff could not prevail under that
precedent anyway).
348. Macias v. Zenk, 495 F.3d 37, 43–44 (2d Cir. 2007). In saying this, it overruled its own pre-
Woodford statements in Braham v. Clancy, 425 F.3d 177, 183 (2d Cir. 2004), that suggested notice
might be sufficient by itself to satisfy the exhaustion requirement.
349. Macias v. Zenk, 495 F.3d 37, 43 n.1 (2d Cir. 2007) (citing Hemphill v. New York, 380 F.3d
680, 690 (2d Cir. 2004)).
350. Giano v. Goord, 380 F.3d 670, 679 (2d Cir. 2004). The Giano court said that prison rules “do
not differentiate clearly between grievable matters relating to disciplinary proceedings, and
non-grievable issues concerning the ‘decisions or dispositions’ of such proceedings,” and that a “learned”
district judge had recently interpreted the prison administrative rules in the same way as the plaintiff;
accord Brownell v. Krom, 446 F.3d 305, 312 (2d Cir. 2006) (holding prisoner who was given erroneous
advice as to which prison to complain to about property lost in transfer, which resulted in a failure to
investigate, and who was given incorrect advice by staff to abandon the property claim and pursue a
grievance instead, showed special circumstances excusing his failure to exhaust correctly); Abney v.
McGinnis, 380 F.3d 663, 668–69 (2d Cir. 2004) (noting the lack of instruction in the grievance rules for
agreed. 351 Since Woodford, courts have continued to hold that prisoners’ cases cannot be
dismissed for non-exhaustion where it was unclear what they had to do to exhaust, either because
the rules were not clear,352 or because the actions or instructions of officials (often in violation of
their own rules) created confusion in a particular case,353 or both354 (though some courts have
instances where a favorable grievance decision is not carried out); Johnson v. Testman, 380 F.3d 691,
696–97 (2d Cir. 2004) (holding that a federal prisoner’s argument that he adequately raised his
prisoner-prisoner assault claim through an appeal of the disciplinary proceeding that arose from the
incident should be considered by the district court); Hemphill v. New York, 380 F.3d 680, 689–90 (2d
Cir. 2004) (holding that plaintiff’s arguments that lack of clarity in grievance regulations supported the
reasonableness of his belief that he could exhaust by writing directly to the Superintendent); Roque v.
Armstrong, 392 F. Supp. 2d 382, 391 (D. Conn. 2005) (denying summary judgment to defendants where
it appeared that neither the prisoner nor the grievance system entirely followed the rules but the
prisoner had received a response from the Commissioner, the final grievance authority).
351 . See Dole v. Chandler, 438 F.3d 804, 811–12 (7th Cir. 2006) (holding a prisoner had
exhausted when he did everything necessary to exhaust but his grievance simply disappeared, and he
received no instructions as to what if anything to do about it); Westefer v. Snyder, 422 F.3d 570, 580
(7th Cir. 2005) (holding prison officials did not establish a failure to exhaust available remedies where
their policies did not “clearly identif[y]” the proper remedy and there was no “clear route” for prisoners
to challenge certain decisions); Shaheed-Muhammad v. Dipaolo, 393 F. Supp. 2d 80, 97 (D. Mass. 2005)
(“Having failed to abide by the strictures of their own regulations, defendants should not be allowed to
claim plaintiff's noncompliance as a bar.”).
352. Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801 (SAS), 2008 U.S. Dist. LEXIS 59098, at
*19–20 (S.D.N.Y. Aug. 5, 2008) (unpublished) (where allowance for late grievances was limited to 45
days after an “alleged occurrence,” and the plaintiff thought the “occurrence” was his surgery and not
his knowledge of its side-effects, he reasonably believed no remedy remained available to him); Vasquez
v. Hilbert, No. 07-cv-00723-bbc, 2008 U.S. Dist. LEXIS 42011, at *10 (W.D. Wis. May 28, 2008)
(unpublished) (holding plaintiff exhausted when he grieved his medical claim late because medical
treatment was mentioned in a disciplinary report, and the rules said a grievance raising “any issue
related to the conduct report” must await completion of the disciplinary process; plaintiff acted
reasonably in waiting. “... [W]hen prison officials fail to ‘clearly identif[y]’ the proper route for
exhaustion, they cannot later fault the prisoner for failing to predict the correct choice ... . The burden
is on the Department of Corrections to make grievance procedures clear and easy to follow.” (quoting
Westefer v. Snyder, 422 F.3d 570, 580 (7th Cir. 2005))); Wilson v. Budgeon, No. 3:05-2101, 2007 WL
464700, at *5 (M.D. Pa. Feb. 13, 2007) (unpublished) (declining to dismiss for non-exhaustion where
rules did not clearly instruct the prisoner whether to raise his retaliation claim in a disciplinary appeal
or a grievance), appeal dismissed, 248 F. App’x 348 (3d Cir. 2007).
353. Monroe v. Beard, No. 05-04937, 2007 WL 2359833, at *12–13 (E.D.Pa. Aug. 16, 2007)
(unpublished) (holding the grievance process unavailable where prisoners were told to object to certain
searches through an Unacceptable Correspondence Form, and they would be notified of the results of
an investigation and then could file a grievance, but were not so notified), aff’d, 536 F.3d 198, 205 n.6
(3d Cir. 2008); Lawyer v. Gatto, No. 03 Civ. 7577 (RPP), 2007 U.S. Dist. LEXIS 15406, at *25 (S.D.N.Y.
Feb. 21, 2007) (unpublished) (holding prisoner whose grievance was referred to the Inspector General’s
office was not obliged to wait until the IG’s investigation was concluded since the rules did not say
otherwise; it was the prison system’s responsibility to make such a requirement clear); Partee v. Grood,
No. 06 Civ. 15528 (SAS), 2007 U.S. Dist. LEXIS 54752, at *4 (S.D.N.Y. July 25, 2007) (unpublished)
(declining to dismiss where prisoner was told his issue was “beyond the purview” of the grievance
program; analogizing to the unclear rule in Giano); Cooper v. Beard, No. 3:CV-07-0620, 2007 U.S. Dist.
LEXIS 47681, at *14–15 (M.D. Pa. July 2, 2007) (unpublished) (where Request for Religious
Accommodation was a prerequisite for a grievance, and plaintiff did not get a timely response and had
moved on to the grievance process by the time he received a late response, court excuses plaintiff’s
procedural non-compliance in light of defendants’ noncompliance); Ray v. Jones, No. CIV-06-319-C,
2007 U.S. Dist. LEXIS 7590, at *5–6 (W.D. Okla. Feb. 1, 2007) (unpublished) (holding plaintiff
exhausted where in response to his complaint he was repeatedly told that the matter had been turned
over to Internal Affairs and incorrectly advised that an internal affairs investigation was a substitute
for the completion of grievance procedures); Martinez v. Weir, No. 3:00CV1140 (DJS), 2006 U.S. Dist.
LEXIS 76407, at *15 (D. Conn. Oct. 10, 2006) (unpublished) (refusing to dismiss, noting that the
plaintiff had exhausted twice in the face of a disappearing grievance and prison officials’ own
ruled against prisoners in situations where they simply guessed wrong in a confusing situation).355
There are situations where the prisoner lacks sufficient knowledge of the facts to comply with the
grievance rules. 356 In some cases an unsettled legal situation concerning the exhaustion
requirement itself has been held to constitute special circumstances justifying failure to exhaust
correctly.357
procedural mistakes); Scott v. Cal. Supreme Court, No. CIV S-04-2586 LKK GGH P, 2006 U.S. Dist.
LEXIS 59573, at *19–20 (E.D. Cal. Aug. 23, 2006) (holding that a prisoner who had relied on officials’
misinformation and sought relief in state court had exhausted, notwithstanding officials’ subsequent
issuance of an untimely decision which he did not appeal; “Prison officials cannot effectively thwart an
inmate’s attempt to exhaust a claim by failing to follow their own regulations and then later require
him to begin the exhaustion process again once they decide to follow the regulations.”); Fuller v. Cal.
Dep’t of Corr., No. CIV S-04-1276 FCD PAN P, 2006 U.S. Dist. LEXIS 58531, at *6–7 (E.D. Cal. Aug.
17, 2006) (holding that a prisoner whose intermediate appeal was rejected for “excessive verbiage” and
failure to complete documents correctly was not shown to have further available remedies because
officials did not instruct him whether to resubmit a corrected appeal or appeal to the next level if he
wished to pursue the matter).
354. Turner v. Burnside, 541 F.3d 1077, 1083–84 (11th Cir. 2008) (holding a prisoner whose
grievance was torn up by the warden was not required to file another one or grieve the warden’s action;
“[n]othing in [the rules] requires an inmate to grieve a breakdown in the grievance process”); Miller v.
Berkebile, No. 3:07-CV-0712-B ECF, 2008 WL 635552, at *7–9 (N.D. Tex. Mar. 10, 2008) (unjustified
refusal to process initial grievances made remedy unavailable; court rejected argument that prisoners
should have taken other steps not specified in the policy to get around the grievance officer’s
misconduct; PLRA law applied in § 2241 case).
355. Thus, in Marshall v. Knight, a prisoner who alleged that he had been retaliated against in
classification and disciplinary matters did not file a grievance because classification and disciplinary
matters are excluded from the grievance system. The court held that he had failed to exhaust because
retaliation claims might be grievable. Marshall v. Knight, No. 3:03-CV-460 RM, 2006 U.S. Dist. LEXIS
90478, at *1–3 (N.D. Ind. Dec. 14, 2006) (unpublished). The decision gave no consideration to the
reasonableness of Mr. Marshall’s interpretation of the rules. Similarly, in Williams v. McGrath, the
court held that a prisoner whose grievance was rejected for failure to provide necessary documentation,
and who was then denied access to the documentation, should have resubmitted his appeal without the
documentation, or should have filed a new grievance, despite the prisoner’s concerns that his grievance
had already been rejected once for lack of the documentation and that if he filed a second grievance he
would be in violation of the rule against duplicative grievances. Williams v. McGrath, No. C 04-5069
MMC (PR), 2007 U.S. Dist. LEXIS 79056, at *14–16 (N.D. Cal. Oct. 12, 2007).
356. Thomas v. Hickman, No. CV F 06-0215 AWI SMS, 2006 U.S. Dist. LEXIS 72988, at *26
(E.D. Cal. Oct. 6, 2006) (declining to dismiss where the prisoner’s grievance was untimely but the
prisoner did not know about the violation until long after the deadline had passed); Borges v.
Piatkowski, 337 F. Supp. 2d 424, 427 n.3 (W.D.N.Y. 2004) (holding that a prisoner who did not have
reason to know he had a medical care claim until he had been transferred to another prison and the 14-
day deadline had long expired was justified by special circumstances in not exhausting); see Brownell v.
Krom, 446 F.3d 305, 312 (2d Cir. 2006) (citing system’s lack of provision for supplementing or re-filing
existing grievances to reflect new information).
357. In Rodriguez v. Westchester County Jail Corr. Dep’t, 372 F.3d 485, 487 (2d Cir. 2004), the
court held that the plaintiff’s belief that he did not have to exhaust an excessive force claim was
reasonable, since the court had adopted the same view until reversed by the Supreme Court in Porter v.
Nussle, 534 U.S. 516 (2002). Accord Wilkinson v. Banks, No. 02-CV-361, 2007 WL 2693636, at *6
(W.D.N.Y. Sept. 10, 2007) (holding that a grievance filed a few weeks after Booth v. Churner held that
damages claims must be exhausted satisfied the requirement); Barad v. Comstock, No. 03CV736
(CONSENT), 2005 U.S. Dist. LEXIS 38418, at *21 (W.D.N.Y. June 30, 2005) (“the question here for
special circumstances is not the actual state of the law (or the retroactive application of new decisional
law ...), but the inmate’s belief of what the law was when he should have grieved the matter and
whether that belief is reasonable.”); Rivera v. Pataki, No. 04 Civ. 1286 (MBM), 2005 U.S. Dist. LEXIS
2747, at *41–42 (S.D.N.Y. Feb. 7, 2005) (“Rivera did the best he could to follow DOCS regulations while
responding to an evolving legal framework”; noting he had filed at a time when it appeared that his
claim need not be exhausted, and had tried to exhaust after dismissal for non-exhaustion mandated by
a subsequent Supreme Court decision).
You could argue that Woodford v. Ngo does not address situations where the
rules are not characterized by “relative simplicity,” and that the Second Circuit’s
“special circumstances” rule remains valid in such cases,358 as do similar holdings
from other courts. Further, to the extent that lack of clarity in the grievance rules or
their application makes the remedy unavailable, Woodford has no effect, since it did
not say anything about the statutory term “available.”
Frequently the actual practice in prison grievance systems diverges from the
formal written procedure. The Seventh Circuit has held that a prisoner who complies
with the informal practice has satisfied the exhaustion requirement.359 Since that
court already adhered to the “proper exhaustion” rule adopted in Woodford, that
holding remains valid after Woodford. The Third Circuit has refused to enforce
compliance with supposed grievance rules that do not appear in the written policy.360
(2) What if you are misled or prison officials obstruct your exhaustion efforts? Numerous
cases hold that non-exhaustion caused by such actions by prison staff do not bar the
prisoner from proceeding with a subsequent lawsuit. No such fact pattern was before
the Court in Woodford, and it did not purport to address the question. This body of
law is therefore undisturbed by Woodford, especially since many of the cases hold
that under the circumstances, administrative remedies were not “available,” a
statutory term Woodford did not address.
(3) What if you are threatened or intimidated by prison staff into not following the
grievance procedure? The Second Circuit has held that threats or other intimidating
conduct may make administrative remedies in general, or the usual grievance
remedy in particular, unavailable to a prisoner; may estop the defendants from
asserting the exhaustion defense; or may constitute justification for not exhausting
or not exhausting consistently with the grievance rules. 361 The court specifically
observed that threats or other intimidation might deter prisoners from filing an
358. In Hairston v. LaMarche, 05 Civ. 6642 (KMW) (AJP), 2006 U.S. Dist. LEXIS 55436, at *36
(S.D.N.Y. Aug. 10, 2006), as part of its post-Woodford discussion of special circumstances, the court
noted the unclarity of New York State administrative appeal procedures in cases where a
Superintendent has referred a complaint to the Inspector General for investigation.
359. Curtis v. Timberlake, 436 F.3d 709, 712 (7th Cir. 2005); see Marr v. Fields, No. 1:07-cv-494,
2008 WL 828788, at *6 (W.D. Mich. Mar. 27, 2008) (if policy requiring administrative appeals rather
than grievances in disciplinary cases was applied broadly in practice to related matters such as claims
of retaliatory discipline, grievance process was not an available remedy for such complaints).
360. Jackson v. Ivens, 244 F. App’x 508, No. 04-1977, 2007 U.S. App. LEXIS 18826, at *14 (3d
Cir. 2007) (unpublished) (“We will not condition exhaustion on unwritten or ‘implied’ requirements.”),
citing Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004); see Goebert v. Lee County, 510 F.3d 1312,
1322-23 (11th Cir. 2007) (holding grievance appeal was not an available remedy where prisoners were
not informed of its existence and had no way to find out); Sims v. Rewerts, No. 07-12646, U.S. Dist.
LEXIS 42395, at *1–2 (E.D. Mich. May 29, 2008) (unpublished) (declining to dismiss where plaintiff
failed to comply with a time limit that had been changed without notice); Cabrera v. LeVierge, No. 07-
cv-40-SM, 2008 U.S. Dist. LEXIS 5134, at *15 (D.N.H. Jan. 24, 2008) (unpublished) (refusing to hold
prisoners to rules and procedures not described in inmate handbook); Lampkins v. Roberts, No. 1:06-cv-
639-DFH-TAB, 2007 U.S. Dist. LEXIS 22695, at *7 (S.D. Ind. Mar. 27, 2007) (unpublished) (refusing to
dismiss for missing a five-day time deadline which was not made known in the materials made
available to prisoners). Cf. Turner v. Burnside, 541 F.3d 1077, 11–12 (11th Cir. 2008) (where warden
tore up prisoner’s grievance, he was not required to re-file his grievance or grieve the warden’s action,
neither of which were prescribed by grievance rules); Miller v. Berkebile, No. 3:07-CV-0712-B ECF,
2008 U.S. Dist. LEXIS 18154, at *1–2 (N.D. Tex. Mar. 10, 2008) (unpublished) (where official refused to
process grievances contrary to policy, prisoners were not required to take steps not prescribed in the
policy to get around him; PLRA law applied in § 2241 case); Crawford v. Berkebile, No. 3:07-CV-0791-B
ECF, 2008 U.S. Dist. LEXIS 8674, at *1–2 (N.D. Tex. Feb. 6, 2008) (unpublished) (same) .
361. Hemphill v. New York, 380 F.3d 680, 686–90 (2d Cir. 2004). In Hemphill, the plaintiff, who
alleged he was threatened and physically assaulted to prevent him from complaining, wrote a letter to
the Superintendent rather than filing a grievance.
internal grievance but not from appealing directly to persons in higher authority in
the prison system or to external authority such as state or federal courts.
Consequently the grievance remedy might be unavailable, or failure to use it
justifiable on a particular set of facts. 362 Since no such claim was presented in
Woodford, this body of law should be viewed as unaffected by it. Other courts have
adopted the Second Circuit’s approach to such circumstances after Woodford.363
(4) Is there any limit to the procedural rules that can be enforced by a “proper
exhaustion” rule? The Seventh Circuit, the first circuit to adopt a proper exhaustion
rule, stated:
The only constraint is that no prison system may establish a
requirement inconsistent with the federal policy underlying
Section 1983 and Section 1997e(a) ... . Thus, for example, no
administrative system may demand that the prisoner specify each
remedy later sought in litigation—for Booth v. Churner, 532 U.S.
731 (2001), holds that [§] 1997e(a) requires each prisoner to
exhaust a process and not a remedy.364
Woodford itself states that “[p]roper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules,” 365 implying that there are
some procedural rules that are not “critical” and whose violation does not threaten
the system’s functioning.366 This view is consistent with the earlier holding of the
Third Circuit that, even under a proper exhaustion rule, compliance need only be
“substantial,”367 which it said meant the same as its later statement that “procedural
requirements must ... not be imposed in a way that offends the Federal Constitution
or the federal policy embodied in Section 1997e(a).”368 The risk posed by Woodford’’s
holding is that prison officials will reject prisoners’ grievances for the most trivial of
rules violations,369 or will promulgate rules designed to trip prisoners up,370 or having
362. Hemphill v. New York, 380 F.3d 680, 688, 690 (2d Cir. 2004); see Ziemba v. Wezner, 366
F.3d 161, 164 (2d Cir. 2003) (directing district court to consider whether a complaint to the FBI and
subsequent investigation could amount to exhaustion by a plaintiff subjected within the prison to
threats, beatings, and denial of writing implements and grievance forms).
363. Kaba v. Stepp, 458 F.3d 678, 684–86 (7th Cir. 2006).
364. Strong v. David, 297 F.3d 646, 649–50 (7th Cir. 2002).
365. Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S. Ct. 2378, 2386 (2006).
366. The Court does not suggest what these might be or how a lower court is to determine what
is “critical.” So far there is little development of this issue in the lower courts. One district court has
said that a policy as to what issues were suitable for the grievance system must not be critical, since
the determination of non-grievability is itself appealable. However, in that case the prisoner was
following the rules as written, and prison officials seemed to be misinterpreting their own rules or
using unwritten rules at variance from those the prisoners relied on. See Woods v. Lozer, No. 3:05-1080,
2007 U.S. Dist. LEXIS 4923, at *1–2 (M.D. Tenn. Jan. 18, 2007). Another court, without using the word
“critical,”excused a prisoner’s sending of his appeal directly to the appellate decision-maker rather than
sending it via the designated recipient, noting that the latter received the appeal and had an
opportunity to address the problem; the court mentions in the discussion officials’ belief that they have
discretion in how strictly to apply their own time deadlines. Parker v. Robinson, No. 04-214-B-W, 2006
U.S. Dist. LEXIS 74031, at *1–2 (D. Me. Oct. 10, 2006). One district court has suggested that if the
administrative body reaches the merits despite the violation of a procedural rule, it must not have been
critical. Jones v. Stewart, 457 F. Supp. 2d 1131, 1136 (D. Nev. 2006).
367. Nyhuis v. Reno, 204 F.3d 65, 77–78 (3d Cir. 2000).
368. Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004).
369. There is no lack of recent examples of prisoners tripped up by trivial rules violations. See
Whitener v. Buss, 268 F. App’x 477, 478 (7th Cir. Mar. 13, 2008) (unpublished) (dismissing claim of
prisoner who missed a 48-hour grievance deadline because he needed the relevant officers’ names and
it took a week to get them, and he didn’t ask for waiver of the time limit); Whitney v. Simonson, No.
CIV S-06-1488 FCD GGH P, 2007 U.S. Dist. LEXIS 81995, at *5 (E.D. Cal. Nov. 5, 2007) (unpublished)
that effect.371 Another risk, little explored by the courts, is that grievance rules may
make it impossible for prisoners to frame the claims they wish to litigate.372
(dismissing because plaintiff filed a new grievance rather than seeking reinstatement of his existing
grievance; court admitted defendants’ approach is “hyper-technical” but held Woodford requires
dismissal), report and recommendation adopted, No. CIV S-06-1488 FCD GGH P, 2007 U.S. Dist.
LEXIS 94910 (E.D. Cal. Dec. 28, 2007) (unpublished); Cadogan v. Vittitow, No. 06-CV-15235, 2007 U.S.
Dist. LEXIS 72999, at *5–9 (E.D. Mich. Sept. 30, 2007) (unpublished) (dismissing where grievance was
rejected for “including extraneous information, going beyond the scope of the issue being grieved”—by
attaching seven pages of information relating to requests for dental care, medical information, and
dental care standards, apparently relevant to claim); Cordova v. Frank, No. 07-C-172-C, 2007 U.S. Dist.
LEXIS 54789, at *17–18 (W.D. Wis. July 26, 2007) (unpublished) (holding that a prisoner who clearly
had good cause for his late grievance failed to exhaust because he didn’t explain the reason so officials
could consider whether to excuse his lateness); Chatman v. Johnson, No. CIV S-06-0578 MCE EFB P,
2007 U.S. Dist, LEXIS 50172, at *20–21 (E.D. Cal. July 11, 2007) (unpublished) (prisoner re-submitted
his appeal to Inmate Appeals Branch rather than to the appeals coordinator as directed), report and
recommendation adopted, 2007 U.S. Dist. LEXIS 70940 (E.D. Cal. Sept. 25, 2007) (unpublished);
Scarborough v. Cohen, No. 4:06cv152-RH/WCS, 2007 U.S. Dist. LEXIS 21286, at *2–3 (N.D. Fla. Mar.
26, 2007) (unpublished) (dismissing for non-exhaustion where plaintiff had filed an “inmate request
form” rather than an “informal grievance” before formally grieving); McNeal v. Cabana, No. 4:04cv258-
GHD-EMB, 2006 U.S. Dist. LEXIS 74149, at *3–6 (N.D. Miss. Jan. 23, 2006) (unpublished) (dismissing
for non-exhaustion because the plaintiff mailed his appeal directly to the appeal body rather than using
a request for services form); see Ramsey v. McGee, No. CIV 06-313-RAW-SPS, 2007 U.S. Dist. LEXIS
69747, at *3–5 (E.D. Okla. Sept. 19, 2007) (unpublished) (noting grievances denied because one was not
signed, one was written in pink ink when blue or black was required, and one was partly written in
pencil; dismissing on merits and not ruling on adequacy of exhaustion); see also Rollings-Pleasant v.
Deuel Vocational Ins., No. CIV S-03-0228 MCE EFB P, 2007 U.S. Dist LEXIS 54578, at *14–15 (E.D.
Cal. July 27, 2007) (unpublished) (dismissing for non-exhaustion where grievance was “cancelled” for
non-cooperation with investigation after prisoner argued about needing to make a phone call and asked
about a different grievance; no finding that he refused to answer questions about the grievance at
issue), report and recommendation adopted, 2007 U.S. Dist. LEXIS 72687 (E.D.Cal. Sept. 28, 2007)
(unpublished). Cf. Love v. Pullman, 404 U.S. 522, 526, 92 S. Ct. 616, 618, 30 L. Ed. 2d 679, 684 (1972)
(stating “technicalities are particularly inappropriate in a statutory scheme in which laymen,
unassisted by trained lawyers, initiate the process”).
370. See Thomas v. Woolum, 337 F.3d 720, 732 n.4 (6th Cir. 2003) (suggesting that time
deadlines will become shorter). The Woodford Court said that no such instance was before it. Woodford
v. Ngo, 548 U.S. 81, 102–03, 126 S. Ct. 2378, 2392–93, 165 L. Ed. 2d 368, 385–86 (2006). A recent
example of a rule that appears designed to trip prisoners up is Oklahoma’s rule that prisoners on
“grievance restriction” must list in any grievance all their other grievances within the preceding
calendar year, by grievance number, date, description, and disposition at each level. One prisoner’s
complaint that he did not have that information and officials refused to provide him a copy of the
grievance log so he could obtain it was brushed off by the court. Tigert v. Jones, No. CIV-07-791-M,
2008 WL 2853625, at *7–8 (W.D. Okla. July 21, 2008) (unpublished).
371. A recent decision upheld the application of the Bureau of Prisons’ regulation defining a
grievance appeal as filed when it is logged as received, holding that even if the plaintiff’s assertion that
he mailed his appeal and it never arrived was true, the “prison mailbox” rule is inapplicable and he
failed to exhaust. Williams v. Burgos, No. CV206-104, 2007 WL 2331794, at *3 (S.D. Ga. Aug. 13, 2007)
(unpublished). Contra Crum v. U.S., No. 06-250 Erie, 2008 WL 744727, at *8 (W.D. Pa. Mar 18, 2008)
(unpublished) (where plaintiff showed that he submitted his appeal for mailing six weeks before it was
received, there was a genuine issue of material fact whether plaintiff was prevented from filing a timely
appeal so as to excuse failure to exhaust).
372. In Moore v. Bennette, 517 F.3d 717, 722, 730 (4th Cir. 2008), the court held that the plaintiff
had properly exhausted, even though his grievance was rejected for including “more than one issue,”
because his complaint was about “being punished in various ways for conduct he had never been
informed of or charged with. Under these circumstances, requiring Moore to grieve each of the alleged
components of his punishment separately would have prevented him from fairly presenting his claim in
its entirety.” The court upheld the dismissal of other claims for which his grievance was dismissed for
including more than one issue, despite the plaintiff’s claim that both issues were examples of a pattern
The most thoughtful discussion of this problem is in a recent district court
decision that links the question whether excessively technical grievance rules make
the administrative remedy unavailable with the Supreme Court’s long-ago statement
that “the creation of an additional procedural technicality ... [is] particularly
inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers,
initiate the process.”373 It then went on to analyze the issue before it—the rejection of
plaintiff’s grievances under a rule prohibiting “multiple issues” in a single
grievance—under the rule requiring restrictions on prisoners’ constitutional rights to
be reasonably related to legitimate penological purposes. 374 Though it upheld the
grievance rule at issue,375 the decision lays a foundation for striking down grievance
rules that cause great difficulties in complying without serving a useful and
legitimate purpose.
Before Woodford, courts applying a procedural default rule held that if prison
officials decide the merits of a grievance rather than rejecting it for procedural
noncompliance, they cannot rely on that noncompliance to seek dismissal of future
litigation for non-exhaustion.376 Nothing in Woodford contradicts those holdings, and
of inadequate medical care. Moore v. Bennette, 517 F.3d 717, 729 (4th Cir. 2008). “No multiple issues”
rules are especially subject to manipulation, since what constitutes an “issue” may be a matter of
interpretation. See Starks v. Lewis, No. CIV-06-512-M, 2008 WL 2570960, at *5 (W.D. Okla. June 24,
2008) (unpublished) (plaintiff said he raised one issue, “Mr. Lewis calling me a snitch, placing my life in
danger”; grievance staff said issues raised included “fired from OCI; inmate typing responses and
inmates read response, placing life in danger,” even though plaintiff disclaimed any request to get his
job back; dismissed for non-exhaustion). But see Lafountain v. Martin, No. 1:07-cv-076, 2008 WL
1923262, at *19 (W.D. Mich. Apr. 28, 2008) (unpublished) (upholding application of multiple issues
prohibition).
373. Lafountain v. Martin, No. 1:07-cv-076, 2008 WL 1923262, at *15 (W.D. Mich. Apr. 28, 2008)
(unpublished), quoting Love v. Pullman Co., 404 U.S. 522, 526–27 (1972).
374. See Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). Lafountain v.
Martin, No. 1:07-cv-076, 2008 WL 1923262, at *15 (W.D. Mich. Apr. 28, 2008) (unpublished), said:
Rubber-stamping unlimited administrative restrictions would permit state prisons to
adopt grievance procedures solely for the purpose of requiring impossible compliance
in order to terminate prisoners' access to the courts, in violation of the first prong of
the Turner test. Id. at 90 (requiring the governmental objective to be both legitimate
and neutral). Such uncritical acceptance of prison restrictions also would permit
prisons to effectively eliminate all means for prisoners to exercise their rights to
challenge prison conditions, in violation of the second prong of Turner. Id. (requiring
that prison limitations on constitutional rights leave “alternative means of exercising
the right [ ] open to prison inmates”).
375. The court held that the “no multiple issues” rule was not unconstitutional as applied to the
plaintiff’s grievance, which combined incidents occurring over a six-month time period; he had ample
opportunity to grieve each of the incidents separately, and the rule served a useful purpose in
simplifying the claims addressed in any given grievance proceeding. Lafountain v. Martin, No. 1:07-cv-
076, 2008 WL 1923262, at *15 (W.D. Mich. Apr. 28, 2008) (unpublished) (“[T]he requirements that
grievances be submitted timely, raising one issue in sufficient detail, and not duplicate issues
previously grieved are rationally related to legitimate penological interests.”). However, a “no multiple
issues” rule can be applied so as to make remedies unavailable.
376. Gates v. Cook, 376 F.3d 323, 331 n.6 (5th Cir. 2004) (noting that the plaintiff sent a form to
the Commissioner rather than the Legal Adjudicator but defendants did not reject it for noncompliance;
in addition, the grievance was submitted by the prisoner’s lawyer and not by the prisoner, as the rules
specify); Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004) (noting that prisoner did fail to follow the
prison procedures for grievances when the prison policy had nothing about putting money damages in
the grievance.); Ross v. County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004) (stating that the
PLRA contains a procedural default rule within its exhaustion requirement); Pozo v. McCaughtry, 286
F.3d 1022, 1025 (7th Cir. 2002) (rejecting the position that an untimely appeal can be treated as a
successful exhaustion), cert. denied, 537 U.S. 949 (2002); see Barnes v. Briley, 420 F.3d 673, 679 (7th
Cir. 2005) (holding claim was not procedurally defaulted where an initial grievance was rejected as
they remain good law.377 After all, if the administrative process dealt with the merits
of the prisoner’s complaint, presumably the procedural errors were not “critical” and
the system was able to “function effectively.”378 Courts have disagreed over whether a
untimely but plaintiff later “restarted” the grievance process and received a decision on the merits);
Gregory v. Ayers, No. CIV S-04-2523 DFL PAN P, 2006 U.S. Dist. LEXIS 8319, at *5–7 (E.D. Cal. Mar.
3, 2006) (unpublished) (holding that matters not initially exhausted which were addressed in a later
grievance about threats arising from the first grievance were exhausted by the later grievance), report
and recommendation adopted, 2006 U.S. Dist. LEXIS 15125 (E.D. Cal. Mar. 31, 2006) (unpublished);
Simpson v. Nickel, No. CV 05-2990-PHX-MHM (BPV), 2006 U.S. Dist. LEXIS 22266, at *6–9 (W.D.
Wis. Sept. 29, 2005) (unpublished) (holding that state law stating “a prisoner’s failure to raise an issue
at an initial disciplinary hearing constitutes waiver of the issue on appeal” did not govern the federal
question of compliance with § 1997e(a)); Shaheen v. Hollins, No. 03-CV-17 (GLS/DRH), 2005 U.S. Dist.
LEXIS 32318, at *7–11 (N.D.N.Y. Sept. 7, 2005) (unpublished) (declining to dismiss where prisoner was
told his complaint was non-grievable, appealed, and had his complaint referred to the correct decision-
maker on appeal), report and recommendation adopted, 2005 U.S. Dist. LEXIS 44554 (N.D.N.Y. Sept.
377. Subil v. U.S. Marshal, No. 2:04-CV-0257 PS, 2008 U.S. Dist. LEXIS 23813, at *13 (N.D. Ind.
Mar. 24, 2008) (unpublished) (declining to dismiss for non-exhaustion where grievance was not filed in
the normal channels, but the final reviewing authority accepted and responded to it); Broder v. Corr.
Med. Servs., Inc., No. 03-75106, 2008 U.S. Dist. LEXIS 19949, at *4–6 (E.D. Mich. Mar. 14, 2008)
(unpublished) (finding that because the Michigan Department of Corrections decided the merits of the
grievance, without rejecting them as untimely, the grievances cannot be considered unexhausted);
Pierce v. Hillsborough County Dep’t of Corr. No. 06-cv-422-SM, 2008 DNH 16, 2008 U.S. Dist. LEXIS
5132, at *16–17 (D.N.H. Jan. 24, 2008) (unpublished) (stating that the defendant did not meet his
burden of showing that the grievance was not property exhausted, since the defendant accepted,
processed, and responded to the grievance, thereby showing his accepatance of the grievance as
“procedurally sound” at the time the plaintiff filed it); Furnace v. Evans, No.C06-4229MMC(PR), 2008
U.S. Dist. LEXIS 6501, at *10–11 (N.D. Cal. Jan. 15, 2008) (unpublished) (finding that the plaintiff
exhausted his grievance as the defendant did not explicitly reject it on procedural grounds during the
review of the grievance); Trenton v. Ariz. Dep’t of Corr., No. CV 04-2548-PHX-MHM (DKD), 2008 U.S.
Dist. LEXIS 6990, at *10–12 (D. Ariz. Jan. 14, 2008) (unpublished) (holding that the plaintiff has
exhausted his remedies when he received the Assistant Deputy Warden’s response informing the
plaintiff that he had no further available remedies); Baker v. Vanderark, No. 1:07-cv-004, 2007 U.S.
Dist. LEXIS 81101, at *18–28 (W.D. Mich. Nov. 1, 2007) (unpublished) (citing Woodford, “proper
exhaustion” requires officials to raise procedural defects in a timely manner); Riley v. Haw. Dep’t of
Public Safety, No. 06-00563 JMS/KSC, 2007 U.S. Dist. LEXIS 77273, at *11–18 (D. Haw. Oct. 17, 2007)
(unpublished) (holding prisoners complaining of sexual assault who completed the emergency grievance
procedure as instructed, and whose complaints were processed through it, had exhausted despite not
additionally completing the standard grievance process); Ellis v. Albonico, No. CIV S-04-1483-LKK-
CMK-P, 2007 U.S. Dist. LEXIS 18244, at *9–13 (E.D. Cal. Mar. 15, 2007) (unpublished) (where
defendants could not locate plaintiff’s alleged first level grievance, but the warden replied to the
plaintiff that the investigation would be conducted, grievance was exhausted), report and
recommendation adopted, No. CIV S-04-1483-LKK-CMK-P, 2007 U.S. Dist. LEXIS 22914 (E.D. Cal.
Mar. 29, 2007) (unpublished); Strope v. Collins, No. 06-3150-JWL, 2006 U.S. Dist. LEXIS 85544, at *8–
10 (D. Kan. Nov. 22, 2006) (unpublished) (finding that the plaintiff exhausted his remedies because the
final arbiter accepted the plaintiff’s grievance); Jones v. Stewart, 457 F. Supp. 2d 1131, 1134–37 (D.
Nev. 2006) (arguing that the Woodford opinion sets out a “merits test” (did the agency address the
merits up to the highest level?) and a “compliance test” (did the plaintiff follow the rules?), and “proper
exhaustion” is satisfied by compliance with either); Kretchmar v. Beard, No. 05-6108, 2006 U.S. Dist.
LEXIS 49530, at *13–14 (E.D. Pa. July 18, 2006) (unpublished) (“When the merits of a prisoner’s claim
have been fully examined and ruled upon by the ultimate administrative authority, prison officials can
no longer assert the defense of failure to exhaust, even if the inmate did not follow proper
administrative procedure.”).
378. Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S. Ct. 2378, 2386, 165 L. Ed. 2d 368, 378 (2006).
See Jones v. Stewart, 457 F. Supp. 2d 1131, 1136 (D. Nev. 2006) (suggesting that the administrative
body’s reaching the merits despite a procedural violation means that the violation must not have been
critical). The rule is further supported by Woodford’s endorsement of the habeas corpus procedural
grievance exhausts if it is rejected both on the merits and for procedural reasons.379 If
the purpose of the “proper exhaustion” rule is to preserve the system’s ability to
“function effectively,” 380 it would seem that a decision on the merits is a good
indication that the system has functioned effectively, and dismissal serves no useful
purpose.
(5) Can federal courts overrule a grievance system’s procedural rejection of a grievance?
Some courts have said that they are without power to re-examine prison officials’
decisions rejecting grievances for procedural reasons, an approach which has led to
extreme and unconscionable results.381 Other federal courts have assumed that they
do have the power to review such conclusions, both before and after Woodford.382 One
default requirement as “substantively similar” to administrative law exhaustion rules applied to PLRA
exhaustion. Woodford v. Ngo, 548 U.S. 81, 92, 126 S. Ct. 2378, 2388, 165 L. Ed. 2d 368, 379 (2006). One
of the considerations in assessing procedural default in habeas is whether the last state court to rule on
the claim “actually enforced the state procedural rule so as to bar that claim.” Lafountain v. Martin,
No. 1:07-cv-076, 2008 WL 1923262, at *16 (W.D. Mich. Apr. 28, 2008).
379. Compare Grear v. Gelabert No. 1:07-CV-203, 2008 U.S. Dist. LEXIS 11669, at *4 n.1 (W.D.
Mich. Feb. 15, 2008) (unpublished); Cobb v. Berghuis, No. 1:06-CV-773, 2007 U.S. Dist. LEXIS 93890,
at *2–4 (W.D. Mich. Dec. 21, 2007) (unpublished) (holding that a grievance rejected for both reasons
does not exhaust). See Harris v. West, No. 2:06-cv-268, 2008 WL 695404, at *3 (W.D. Mich. Mar. 11,
2008) (finding exhaustion where prisoner’s step II grievance was rejected as untimely but his final
appeal was addressed on the merits). Contra Scott v. Ambani, No. 07-10459, 2008 U.S. Dist. LEXIS
15436, at *5–7 (E.D. Mich. Feb. 29, 2008) (unpublished) (finding non-exhaustion where intermediate
appeal reached the merits but final appeal did not).
381. In Lindell v. O'Donnell, No. 05-C-04-C, 2005 U.S. Dist. LEXIS 24767, at *50–51, 62–63, 73
(W.D. Wis. Oct. 21, 2005) (unpublished) (the plaintiff alleged that he had not received notice that a
letter had been confiscated until almost a year afterward; when he tried to grieve, his grievance was
dismissed as time-barred, even though it was impossible for him to file in a timely manner because of
the lack of notice. The court said that it could not review the administrative determination, and found
additional claims defaulted. The appeals court for that circuit has subsequently stated, in an
unpublished opinion: “As long as the state’s application of its own procedural rules is not arbitrary or
capricious, we will not substitute our judgment for the state’s.” Hoeft v. Wisher, 181 F. App’x 549, 550
(7th Cir. May 8, 2006) (unpublished)). See Starks v. Lewis, 2008 WL 2570960, at *5 (W.D. Okla. June
24, 2008) (“Even when prison authorities are incorrect about the existence of the perceived deficiency,
the inmate must follow the prescribed steps to cure it ... . An inmate's disagreement with prison
officials as to the appropriateness of a particular procedure under the circumstances, or his belief that
he should not have to correct a procedural deficiency does not excuse his obligation to comply with the
available process ... .”); Williams v. Burgos, 2007 WL 2331794, at *3 (S.D. Ga. Aug. 13, 2007)
(unpublished) (holding Bureau of Prisons regulation defining an appeal as filed only when it is logged
as received would apply even if plaintiff’s assertion that he mailed his appeal was true).
382. In Moore v. Bennette, 517 F.3d 717, 722, 729, 730 (4th Cir. 2008), the court approved
dismissal of some claims for non-exhaustion because the prisoner violated a rule against complaining
about more than one incident in a grievance, but reversed dismissal of another claim where it said that
requiring him to grieve each of multiple incidents separately “would have prevented him from fairly
presenting his claim in its entirety.” Similarly, in Muniz v. Kaspar, No. 07-cv-01914-MSK-MJW, 2008
U.S. Dist. LEXIS 64567, at *5–17 (D. Colo. Aug. 12, 2008) (unpublished), the first-step appeal resulted
in a decision on the merits, but the second-level appeal was rejected on the ground that the first-step
appeal was defective in that it did not state the relief requested. The plaintiff was seeking to exhaust
his remedies so he could seek damages, but damages were not provided by the grievance system. The
court rejected these “spurious procedural grounds,” but warned: “Only where the ‘procedural’ defect
cited by the prison is so transparently without merit as to be arbitrary and capricious on its face,
coupled with a grievance procedure that does not provide a reasonable opportunity for refiling of a
procedurally-compliant grievance in the event of a procedural denial, will the Court consider whether
the grievance procedure has been rendered unavailable.” Muniz v. Kaspar, No. 07-cv-01914-MSK-MJW,
2008 U.S. Dist. LEXIS 64567, at *16–17 n.5 (D. Colo. Aug. 12, 2008) (unpublished).
recent district court decision has taken a more thoughtful approach. First, it noted
Woodford’’s acknowledgment of the habeas corpus doctrine of procedural default, and
suggested that that doctrine can be helpful in analyzing proper exhaustion questions.
Specifically, it said that “the contours of the procedural default doctrine would
require the Court to consider whether the last administrative decisionmaker relied
on an established procedural rule and whether a reasonable reviewer could have
determined that the prisoner actually violated the established rule.”383 Clearly an
independent judgment by the court is contemplated. The court further observed that
instructions by grievance officials that are contrary to the relevant state regulations
may make the remedy unavailable.384 Several decisions have refused to dismiss for
non-exhaustion where a prisoner’s grievance had been rejected because it duplicated
an earlier grievance.385
For other decisions refusing to honor procedural rejections of grievances, see Price v. Kozak, 569 F.
Supp. 2d 398, 406–07 (D. Del. July 28, 2008) (holding plaintiff’s grievances timely despite the defendant
rejecting them as late); Moton v. Cowart, No. 8:06-CV-2163-T-30EAJ, 2008 U.S. Dist. LEXIS 40419, at
*15–18 (M.D. Fla. May 19, 2008) (unpublished) (rejecting decision that plaintiff’s complaint was not
grievable, and an appeal decision that it must be re-commenced at the facility, as contrary to prison
system’s own policy); Shoucair v. Warren, No. 07-12964, 2008 WL 2033714, at *7–8 (E.D. Mich. May 9,
2008) (unpublished) (rejecting decision that grievance failed to identify a policy violation, since the
grievance rules did not require it, and that decision was vague, since it set forth basic facts and
defendants failed to follow their rules requiring investigation of such complaints); Johnson v.
Correctional Medical Services, Inc., No. 4:06-cv-137, 2008 WL 878767, at *5 (W.D. Mich. Mar. 3, 2008)
(unpublished) (rejecting officials’ decision that grievance was duplicative); George v. Smith, No. 05-C-
0403-C, 2006 U.S. Dist. LEXIS 92290, at *12–18 (W.D. Wis. Dec. 12, 2006) (unpublished) (holding that
timeliness of grievance appeals must be assessed based on when they were sent, not when they arrived,
despite grievance body’s contrary interpretation of its own rule), aff’d, 507 F.3d 605 (7th Cir. 2007);
Thomas v. Hickman, No. CV F 06-0215 AWI SMS, No. CV F 06-0215 AWI SMS, 2006 U.S. Dist. LEXIS
72988, at *23–27 (E.D. Cal. Oct. 5, 2006) (unpublished) (allowing case to go forward even though
grievance was untimely, since the prisoner did not know of her injury until long after the grievance
deadline had passed); O'Connor v. Featherston, No. 01 Civ. 3251 (HB), 2002 U.S. Dist. LEXIS 7570, at
*7–8 (S.D.N.Y. Apr. 29, 2002) (unpublished) (refusing to be bound by rejection of request to file a late
grievance where the plaintiff had been kept in medical restriction for the 14 days in which he was
required to file a timely grievance); Graham v. Perez, 121 F. Supp. 2d 317, 322 n.9 (S.D.N.Y. 2000)
(holding that the court will independently determine whether a prisoner has presented “mitigating
circumstances” under grievance rules for late grievance).
In Vasquez v. Hilbert, No. 07-cv-00723-bbc, 2008 U.S. Dist. LEXIS 42011, at *6-8 (W.D. Wis. May
27, 2008) (unpublished) (the defendants agreed that grievance officials had interpreted their own rules
erroneously, but argued that the plaintiff failed to exhaust because he should have done a better job of
showing the officials that they were wrong. The court didn’t buy it, holding argument “unreasonable,
unfair and inconsistent with circuit precedent”).
383. Lafountain v. Martin, No. 1:07-cv-076, 2008 WL 1923262, at *16 (W.D. Mich. Apr. 28, 2008).
384. Lafountain v. Martin, No. 1:07-cv-076, 2008 WL 1923262, at *16 (W.D. Mich. Apr. 28, 2008).
385. There are several variations on this theme. Some decisions have held that dismissal of a
grievance as duplicative did not mean that the plaintiff had not exhausted, but suggested that he
exhausted in an earlier grievance. Neal v. Butts, No. 07-15137, 2008 WL 2704663, at *5 (E.D. Mich.
July 9, 2008) (unpublished); Broyles v. Corr. Med. Servs., Inc., No. 1:07-CV-690, 2008 U.S. Dist. LEXIS
30214, at *7 (W.D. Mich. Apr. 14, 2008) (unpublished); Houston v. Riley, No. 2:07-cv-63, 2008 WL
762114, at *3 (W.D. Mich. Feb. 25, 2008) (unpublished); Doyle v. Jones, No. 1:06-cv-628, 2007 U.S. Dist.
LEXIS 84570, at *8 (W.D. Mich. Nov. 15, 2007) (unpublished). In Gabby v. Luy, No. 05-C-0188, 2006
U.S. Dist. LEXIS 4167, at *11 (E.D. Wis. Jan. 23, 2006) (unpublished), the prisoner had filed one
grievance and failed to appeal, then filed a second grievance which was rejected on the ground that the
issue had been raised in the previous grievance. The court found exhaustion, implicitly rejecting
defendant’s argument that if a prisoner tries to exhaust an issue and makes a procedural mistake, he is
barred from trying again and doing it right even if the later grievance is otherwise proper. In Sullivan
v. Caruso, No. 1:07cv367, 2008 WL 356878, at *10 (W.D. Mich. Feb. 7, 2008) (unpublished), the court
held that defendants improperly rejected a grievance as duplicative where it named a defendant not
(6) What if the prisoner fails to comply with directions from prison staff with respect to a
particular grievance? Numerous decisions have held that a prisoner who disregards
instructions by grievance personnel as to how to proceed fails to exhaust.386 However,
some courts have refused to find non-exhaustion where the instructions or the
grievance body’s dismissal were not supported by the written grievance policy387 or
named in the previous grievance on the subject. Contra Laster v. Pramstaller, No. 06-13508, 2008 U.S.
Dist. LEXIS 11435, at *3 (E.D. Mich. Feb. 15, 2008) (unpublished) (a grievance naming a defendant
that is dismissed as duplicative of an earlier grievance not naming that defendant fails to exhaust). In
these cases, the issue is the prisoner’s attempt to comply with the state’s “name the defendant” rule
where he or she did not know all the necessary names at the time of the first grievance. In Gatlin v.
Nichols, No. CIV S-06-2465 WBS GGH P, 2007 U.S. Dist. LEXIS 87749, at *2 (E.D. Cal. Nov. 29, 2007),
(unpublished) report and recommendation adopted, 2007 U.S. Dist. LEXIS 87749 (E.D. Cal. Jan. 23,
2008) (unpublished), the court simply found that grievance officials were wrong in finding plaintiff’s
grievance duplicative, and held that the plaintiff exhausted.
386. See Cannon v. Washington, 418 F.3d 713, 718 (7th Cir. 2005); Carroll v. Yates, 362 F.3d 984, 985 (7th
Cir. 2004); Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004) (“Just as courts may dismiss suits for failure to
cooperate, so administrative bodies may dismiss grievances for lack of cooperation; in either case this procedural
default blocks later attempts to litigate the merits.”); Jernigan v. Stuchell, 304 F.3d 1030, 1032–33 (10th Cir. 2002)
(holding that a prisoner who received no response to a grievance and refused the appeals body’s direction to try to get
one had failed to exhaust); Abdulhaseeb v. Calbone, No. CIV-05-1211-W, 2008 U.S. Dist. LEXIS 26815, at *10 (W.D.
Okla. Apr. 2, 2008) (unpublished) (holding prisoner failed to exhaust when he did not comply with demand to
supplement his grievance with information about additional grievances he had filed after the one in question, despite
his belief that the demand was unreasonable); Skipper v. S.C. Dep’t of Corr, No. 4:05-3024-HFF-TER, 2008 U.S. Dist.
LEXIS 16616, at *2 (D.S.C. Mar. 4, 2008) (unpublished); Keeton v. Forsythe, No. CIV S-04-0758 GEB EFB P, 2008
U.S. Dist. LEXIS 11130, at *12 (E.D. Cal. Feb. 14, 2008) (unpublished) (plaintiff failed to exhaust when he did not
comply with instruction to resubmit his grievance because his writing was too small to read), report and
recommendation adopted, 2008 U.S. Dist. LEXIS 22114 (E.D. Cal. Mar. 20, 2008) (unpublished); Whitney v.
Simonson, No. CIV S-06-1488 FCD GGH P, 2007 U.S. Dist. LEXIS 81995, at *5 (E.D. Cal. Nov. 5, 2007)
(unpublished) (dismissing claim of prisoner who filed a new grievance rather than trying to reinstate the old one as
instructed; court concedes this approach is “hyper-technical” but required by Woodford v. Ngo), report and
recommendation adopted, 2007 U.S. Dist. LEXIS 94910 (E.D. Cal. Dec. 28, 2007) (unpublished); Richardson v.
Llamas, No. 1:04-cv-05394-LJO DLB PC, 2007 U.S. Dist. LEXIS 60920, at *3 (E.D. Cal. Aug. 20, 2007)
(unpublished) (holding plaintiff did not exhaust where he failed to cooperate with an interview concerning his
complaint of sexual abuse), report and recommendation adopted, 2007 U.S. Dist. LEXIS 73158 (E.D. Cal. Oct. 1,
2007) (unpublished); Cyrus v. Shepard, No. 3:06-CV-01665, 2007 U.S. Dist. LEXIS 54301, at *2 (M.D. Pa. July 26,
2007) (unpublished) (holding a plaintiff who used a “sensitive grievance” procedure, was told to use the regular
procedure, and didn’t, failed to exhaust); Walton v. Ayon, No. 1:07-cv-00246-OWW-SMS PC, 2007 U.S. Dist. LEXIS
44299, at *2 (E.D. Cal. June 19, 2007) (unpublished), report and recommendation adopted, 2007 U.S. Dist. LEXIS
79618 (E.D. Cal. Oct. 26, 2007) (unpublished); Fleming v. Geo Group, Inc., No. CIV-05-1502-T, 2007 U.S. Dist.
LEXIS 3843, at *2 (W.D. Okla. Jan. 18, 2007) (unpublished) (dismissing for non-exhaustion where prisoner ignored
instructions to submit a legible copy of his grievance and appealed twice instead); Faysom v. Timm, No. 04 C 8312,
2005 U.S. Dist. LEXIS 27860, at *3 (N.D. Ill. Nov. 9, 2005) (unpublished) (holding plaintiff who did not respond to
Administrative Review Board’s request for more information and clarification failed to exhaust); Jones v. Doty, No.
1:05cv491, 2005 U.S. Dist. LEXIS 29983, at *2 (E.D. Tex. Oct. 28, 2005) (unpublished) (holding a prisoner who used
the “sensitive grievance” procedure and was told he should use the regular grievance procedure, but did not, failed to
exhaust, even though he appealed the denial of the “sensitive grievance”); Robinson v. Shannon, No. 3:CV-04-2777,
2005 U.S. Dist. LEXIS 45832, at *5 (M.D. Pa. Sept. 30, 2005) (unpublished) (holding that prisoner who was instructed
on appeal to attach the Superintendent’s response did not exhaust where he failed to respond and say there was no
response); Hazleton v. Alameida, 358 F. Supp. 2d 926, 935 (C.D. Cal. 2005) (holding prisoner who failed to follow
instructions did not exhaust).
387. See Young v. Hightower, 395 F. Supp. 2d 583, 586–87 (E.D. Mich. 2005) (holding plaintiff’s
alleged failure to supply requested documents was not a failure to exhaust where the grievance policy
said grievances should not be denied for failure to provide documentation); Vega v. Alameida, No.
S021977MCEKJMPC, 2005 WL 1501531, at *1 (E.D. Cal. June 20, 2005) (unpublished) (declining to
dismiss where a prisoner’s grievance and appeal were “cancelled” because he was “incorporative,” citing
defendants’ failure to provide facts supporting the cancellation of the grievance); Griffen v. Cook, No.
Civ. 02-717-AS, 2005 WL 1113830, at *7–8 (D. Or. May 10, 2005) (unpublished) (declining to dismiss
for non-exhaustion where plaintiff’s grievances were returned unprocessed with instructions, but the
where the grievance body reached the merits of the grievance despite the prisoner’s
failure to follow instructions.388 But, some courts have refused to find non-exhaustion
where the instructions or the grievance body’s dismissal were not supported by the
written grievance policy 389 —though one decision insists that it is the prisoner’s
obligation to follow erroneous instructions. 390 In this situation, as in others, the
procedural defect is waived where the grievance body reached the grievance’s merits
anyway.391
(7) How does the proper exhaustion/procedural default rule interact with the statutory
requirement that remedies be “available”? The rulings of a number of courts have
created a procedural trap in addition to the procedural default requirement. If a
prisoner is unable to exhaust timely and properly for some legitimate reason (for
example, missing a deadline because of absence from the prison and no access to the
grievance process), one would think the remedy is not available to that prisoner,
since a late grievance does not exhaust under Woodford. However, a number of courts
have held that prisoners who are prevented from exhausting properly must try to
exhaust improperly, notwithstanding the Woodford “proper exhaustion” requirement.
Therefore, if they cannot file a timely grievance, they should file a late grievance
when they can, or the court might not even consider their arguments explaining why
they couldn’t file in a timely manner.392
6. What If You Miss a Time Limit?
The Supreme Court’s ruling requiring “proper exhaustion” requires compliance with time
limits.393 The Court was aware of the very short deadlines of most prison grievance systems
grievance policy made no provision for returning grievances unprocessed), report and recommendation
adopted as modified, 2005 WL 2314124 (D. Or. Sept. 21, 2005) (unpublished).
388. Richardson v. Sullivan, No. 104CVF5394RECDLBP, 2005 WL 2465936, at *3 (E.D. Cal.
Jan. 5, 2005) (unpublished) (holding that prisoner’s refusal to be interviewed and subsequent
cancellation of his grievance did not constitute non-exhaustion where the grievance process had
addressed the merits of his complaint).
389. See Young v. Hightower, 395 F. Supp. 2d 583, 588 (E.D. Mich. 2005) (holding plaintiff’s
alleged failure to supply requested documents was not a failure to exhaust where the grievance policy
said grievances should not be denied for failure to provide documentation); Vega v. Alameida, No.
S021977MCEKJMPC, 2005 WL 1501531 (E.D. Cal. June 20, 2005) (unpublished) (declining to dismiss
where a prisoner’s grievance and appeal were “cancelled” because he was “incorporative,” citing
defendants’ failure to provide facts supporting the cancellation of the grievance); Griffen v. Cook, No.
Civ. 02-717-AS, 2005 WL 1113830, at *7–8 (D. Or. May 10, 2005) (unpublished) (declining to dismiss
for non-exhaustion where plaintiff’s grievances were returned unprocessed with instructions, but the
grievance policy made no provision for returning grievances unprocessed), report and recommendation
adopted as modified, 2005 WL 2314124 (D.Or. Sept. 21, 2005) (unpublished).
390. Starks v. Lewis, No. CIV-06-512-M, 2008 WL 2570960, at *5 (W.D. Okla. June 24, 2008)
(“Even when prison authorities are incorrect about the existence of the perceived deficiency, the inmate
must follow the prescribed steps to cure it. ... An inmate's disagreement with prison officials as to the
appropriateness of a particular procedure under the circumstances, or his belief that he should not
have to correct a procedural deficiency does not excuse his obligation to comply with the available
process ... .”). Contra Lafountain v. Martin, No. 1:07-cv-076, 2008 U.S. Dist. LEXIS 34456, at *17 (W.D.
Mich. Apr. 28, 2008) (unpublished) (suggesting that instructions by grievance personnel contrary to
state regulations may make the remedy unavailable).
391. Richardson v. Sullivan, No. 104CVF5394RECDLBP, 2005 WL 2465936, at *3 (E.D. Cal.
Jan. 5, 2005) (unpublished) (holding that prisoner’s refusal to be interviewed and subsequent
cancellation of his grievance did not constitute non-exhaustion where the grievance process had
addressed the merits of his complaint).
392. See cases cited in footnote 416, below.
393. Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S. Ct. 2378, 2389, 165 L. Ed. 2d 368, 381–82
(2006). Cf. Hopkins v. Coplan, No. 06-cv-96-JD, 2007 U.S. Dist. LEXIS 57527, at *12–13 (D.N.H. Aug.
6, 2007) (unpublished) (holding that where there was no time limit when the plaintiff’s claim arose, but
but didn’t try to address this concern. 394 It is not clear how absolute and inflexible the
Woodford holding is with respect to time limits,395 nor is it clear if federal courts are free to
re-examine the untimeliness of administrative determinations.396
Before continuing with the legal discussion, here is some practical advice. Obviously,
learn the rules and be sure you meet the deadlines. But if you miss a grievance deadline, do
not give up. Proceed with your grievance as quickly as you can. Name any provision in the
grievance system for late grievances, explain why you were late, and take all the available
appeals if the grievance officials reject your grievance for lateness anyway. If they deal with
the merits of your grievance, then its lateness will not matter. If they do not, you will still be
in a position to argue in court either that you were justified in failing to file a grievance on
time, that circumstances prevented you from filing on time and the remedy was therefore
unavailable, or that your lateness does not matter because prison officials had the
opportunity to address your problem even if they chose not to do so. You should not assume
that if prison officials’ actions or other circumstances beyond your control keep you from
exhausting in a timely manner, you can just argue that the remedy was not “available” and
you are excused from exhausting. A number of courts have said that under those
circumstances, you must file a grievance when you are no longer subject to whatever obstacle
that kept you from exhausting,397 though some courts have disagreed.398
one was instituted later, the plaintiff was obliged to comply with that time limit as measured from the
date it was promulgated).
394. The plaintiff in Woodford had missed a 15-day deadline, and the Court noted that such
deadlines are typically 14 to 30 days according to the United States and even shorter according to the
plaintiff. 548 U.S. 81, 95–96, 126 S. Ct. 2378, 2388–89, 165 L. Ed. 2d 368, 381 (2006).
395 . See preceding Section for discussion of possible exceptions and limits to the “proper
exhaustion” rule.
396 . For examples of decisions where courts refused to re-examine questionable prison
timeliness decisions, see Wall v. Holt, No. 1:CV-06-0194, 2006 U.S. Dist. LEXIS 94573, at *9–10 (M.D.
Pa. Jan. 9, 2007) (unpublished) (holding timeliness is measured by when grievance appeal arrives
under Bureau of Prisons’ regulation, notwithstanding “prison mailbox” rule and claim that the appeal
was mailed in plenty of time); Lindell v. O’Donnell, No. 05-C-04-C, 2005 U.S. Dist. LEXIS 24767, at
*49–52 (W.D. Wis. Oct. 21, 2005) (unpublished) (holding that the court could not review an
administrative finding of untimeliness even though the plaintiff alleged that he had not received notice
that a letter had been confiscated until almost a year afterward, and it was impossible for him to file in
a timely way because of the lack of notice). For decisions where courts exercised independent judgment
about timeliness, see Price v. Kozak, 569 F. Supp. 2d 398, 406–07 (D. Del. July 28, 2008) (holding
plaintiff’s grievances timely despite their inexplicable rejection as late); Ashker v. Schwarzenegger, No.
C 05-03286 CW (PR), 2007 U.S. Dist LEXIS 45234, at *15–6 (N.D. Cal. June 14, 2007) (unpublished)
(denying summary judgment where defendants said plaintiff’s grievance was untimely but plaintiff
said it was timely measured from his receipt of the decision at issue), amended on reconsideration on
other grounds, 2007 U.S. Dist. LEXIS 73761 (N.D. Cal. Sept. 20, 2007) (unpublished); Thomas v.
Hickman, No. CV F 06-0215 AWI SMS, 2006 U.S. Dist. LEXIS 72988, at *20–27 (E.D. Cal. Oct. 6, 2006)
(unpublished) (holding that a prisoner had no available remedy where she did not know of the wrong
within the 15-day time limit and officials dismissed her grievances as untimely).
One court has held that a grievance rule stating that a prisoner “should” file within 15 days—not
that he “must” file within 15 days—is not a mandatory rule, and failing to meet it does not render a
grievance untimely. Edwards v. Dwyer, No. 1:06-CV-1 CAS, 2008 U.S. Dist. LEXIS 5767, at *25 (E.D.
Mo. Jan. 25, 2008) (unpublished). You should do what the grievance policy says, rather than relying on
this holding, because there is considerable risk that other courts will not follow it.
397. Bryant v. Rich, 530 F.3d 1368, 1373 (11th Cir. June 20, 2007) (holding prisoner who said he
didn’t grieve for fear of assault should have exhausted after transfer); Green v. McBride, No. 5:04-cv-
01181, 2007 U.S. Dist. LEXIS 71189, at *7–9 (S.D. W.Va. Sept. 25, 2007) (unpublished) (holding
prisoner who was kept on suicide watch without necessary materials until past the grievance deadline
should have filed a late grievance); Stephens v. Howerton, No. CV 105-171, 2007 U.S. Dist. LEXIS
45075, at *13 (S.D. Ga. June 21, 2007) (unpublished) (holding injured prisoner should have filed a
grievance when he was able to write), aff’d, 270 F. App’x 750 (11th Cir. 2008) (unpublished); Bradley v.
The Second Circuit has addressed compliance with time limits like other issues of
complying with grievance rules, holding that failure to exhaust or to exhaust properly can be
justified under “circumstances which might understandably lead usually uncounselled
prisoners to fail to grieve in the normally required way.” 399 This includes prisoners’
misunderstanding of the exhaustion requirement400 or of the relevant prison regulations,401
though courts have noted that those were not necessarily the only circumstances to justify
Washington, 441 F. Supp. 2d 97, 101 (D.D.C. 2006) (holding a week’s deprivation of writing materials
did not make remedies unavailable where the plaintiff had 15 days to file a grievance); Stanley v. Rich,
No. CV 605-075, 2006 U.S. Dist. LEXIS 35916, at *8–10 (S.D. Ga. June 1, 2006) (unpublished) (holding
a prisoner who complained of threats of retaliation should have filed a grievance when conditions
changed, i.e., the administration was replaced and several officers were suspended and eventually
terminated); Haroon v. Cal. Dep’t of Corr. and Rehab., No. CIV S-06-0450 DFL DAD P, 2006 U.S. Dist.
LEXIS 23476, at *7–8 (E.D. Cal. Apr. 26, 2006) (unpublished) (holding that a prisoner who was in a
coma during the usual time limit should have filed afterwards), report and recommendation adopted,
2006 U.S. Dist. LEXIS 39405 (E.D. Cal. June 9, 2006) (unpublished); Isaac v. Nix, No. 2:04-CV-172-
RWS, 2006 U.S. Dist. LEXIS 19606, at *13–4 (N.D. Ga. Mar. 30, 2006) (unpublished) (holding prisoner
who said he couldn’t get grievance forms within a five-day time limit should have filed a grievance
within five days of getting the forms); Goldenberg v. St. Barnabas Hosp., No. 01 Civ. 7435 (GBD), 2005
U.S. Dist LEXIS 2730, at *15–16 (S.D.N.Y. Feb. 23, 2005) (unpublished) (stating prisoner who was
physically and mentally incapable of filing a grievance after the challenged conduct failed to explain
why he didn’t exhaust later); Patterson v. Goord, No. 02 Civ. 759 (JSM), 2002 U.S. Dist. LEXIS 22482,
at *2–3 (S.D.N.Y. Nov. 21, 2002) (unpublished) (holding allegations of staff threats insufficient to
justify late grievance where prisoner failed to submit grievance promptly upon transfer from prison
where he was being threatened).
398. See Cotton-Schrichte v. Peate, No. 07-4052-CV-C-NKL, 2008 WL 3200775, at *4 (W.D. Mo.
Aug. 5, 2008) (prisoner who was raped by a staff member and threatened into silence “was not required
to file a grievance after the threats were removed and outside of the time allowed for filing it, on the
hope that an administrator would exercise discretion and process the grievance. For the court to
dismiss a case for failure to exhaust under these circumstances would be inherently unjust”); Bellamy
v. Mount Vernon Hosp., No. 07 Civ. 1801 (SAS), 2008 U.S. Dist. LEXIS 59098, at *12–14 (S.D.N.Y. Aug.
5, 2008) (unpublished) (declining to dismiss where prisoner reasonably believed his claim was time-
barred before he had an opportunity to grieve).
399. Williams v. Comstock, 425 F.3d 175, 176 (2d Cir. 2005) (per curiam) (holding that absent an
explanation for more than a small part of the plaintiff’s two-year delay, “the failure to timely file the
grievance in accordance with IGP rules amounted to a failure to exhaust administrative remedies in
this case”).
400. Williams v. Comstock, 425 F.3d 175, 177 (2d Cir. 2005) (citing Rodriguez v. Westchester
County Jail Corr. Dep’t, 372 F.3d 485 (2d Cir. 2004)).
401. Williams v. Comstock, 425 F.3d 175, 177 (2d Cir. 2005) (citing Giano v Goord, 380 F.3d 670,
677 (2d Cir. 2004)); Cotton-Schrichte v. Peate, No. 07-4052-CV-C-NKL, 2008 WL 3200775, at *4 (W.D.
Mo. Aug. 5, 2008) (prisoner who was raped by a staff member and threatened into silence “was not
required to file a grievance after the threats were removed and outside of the time allowed for filing it,
on the hope that an administrator would exercise discretion and process the grievance. For the court to
dismiss a case for failure to exhaust under these circumstances would be inherently unjust”); Bellamy
v. Mount Vernon Hosp., No. 07 Civ. 1801 (SAS), 2008 U.S. Dist. LEXIS 59098, at *12–14 (S.D.N.Y. Aug.
5, 2008) (unpublished) (declining to dismiss where prisoner reasonably believed his claim was time-
barred before he had an opportunity to grieve); Williams v. Hurley, No. 2:05cv1022, 2007 U.S. Dist
LEXIS 29733, at *15–16 (S.D. Ohio Apr. 23, 2007) (unpublished) (holding that a prisoner whose cancer
was not diagnosed until long after the 14-day grievance deadline had passed had no available remedy;
no reference to any provision for filing untimely).
A reasonable if mistaken appreciation of the facts may also justify lack of timely exhaustion or
result in a holding that the remedy was unavailable. In Borges v. Piatkowski, 337 F. Supp. 2d 424, 427
& n.3 (W.D.N.Y. 2004), the prisoner missed the 14-day grievance deadline because he had no reason to
know he had a medical problem until after it had expired and he had been transferred to another
prison. The court did not dismiss his suit for lack of timely exhaustion; it held that he had no available
remedy, or alternatively was justified by special circumstances in not exhausting.
failure to exhaust.402 As noted in Section 5 above, this approach still appears valid after
Woodford, since the kinds of fact patterns addressed in Second Circuit law were not before
the Court in Woodford. In addition, circumstances that prevent a prisoner from filing in a
timely manner would mean that the grievance system was not an “available” remedy for
purposes of the exhaustion rule;403 Woodford did not address the meaning of the statutory
term “available.” Nor did Woodford disturb the holdings of lower courts, including the Second
Circuit, that under some circumstances prison officials may be estopped from raising a
defense of non-exhaustion.404
Some grievance systems build in discretion to waive time limits. For example, the New
York State grievance system permits late grievances for “mitigating circumstances,”405 which
include “attempts to resolve informally by the inmate.”406 In order to take advantage of such
a provision, you have to ask for it—you cannot just argue later in court that your grievance
was not untimely because they could have given you an extension.407 The next question is
402. Williams v. Comstock, 425 F.3d 175, 176 (2d Cir. 2005). One of the court’s other decisions
holds that a prisoner who was deterred from exhausting timely by threats or other coercion by prison
staff might also be justified in having failed to exhaust, or the court might find that remedies were
unavailable to that prisoner, depending on the severity of the circumstances. Hemphill v. New York,
380 F.3d 680, 690–91 (2d Cir. 2004). Following Hemphill, recent district court decisions have held that
prisoners who did not exhaust because of assaults and/or threats until after they had been transferred
were justified in failing to exhaust timely. Lunney v. Brureton, No. 04 Civ. 2438(LAK)(GWG), 2007 WL
1544629, at *9–10 (S.D.N.Y. May 29, 2007), objections overruled, 2007 WL 2050301 (S.D.N.Y. July 18,
2007); Thomas v. Cassleberry, No. 03-CV-6394L, 2007 U.S. Dist. LEXIS 30129, at *4–6 (W.D.N.Y. Apr.
403. Days v. Johnson, 322 F.3d 863, 867–68 (5th Cir. 2003); Thorns v. Ryan, No. 07-CV-0218 H
(AJB), 2008 U.S. Dist. LEXIS 14215, at *7–12 (S.D. Cal. Feb. 26, 2008) (unpublished) (refusing to
dismiss where grievance appeal was untimely because of delay in receiving the decision; appeal was
timely measured from when plaintiff received it); Macahilas v. Taylor, No. CIV S-06-0502 GEB KJM P,
2008 U.S. Dist. LEXIS 5652, at *5–9 (E.D. Cal. Jan. 25, 2008) (unpublished) (denying summary
judgment where prisoner said “his mind was too clouded” by illness even to know he had a claim within
the time limit), report and recommendation adopted, 2008 U.S. Dist. LEXIS 13314 (E.D. Cal. Feb. 22,
2008) (unpublished); Cordova v. Frank, No. 07-C-172-C, 2007 U.S. Dist. LEXIS 54789, at *14–7 (W.D.
Wis. July 26, 2007) (unpublished) (holding remedy unavailable where a prisoner’s appeal was late
because he was indigent and prison rules forbade advancing him the postage to mail it); Cruz v.
Jordan, 80 F. Supp. 2d 109, 124 (S.D.N.Y. 1999) (holding remedies were not available to a prisoner who
was unconscious and hospitalized during the time period for filing a grievance, where prison officials
had said his grievance was time-barred).
Some courts hold that this does not mean that if you are prevented from complying with a
grievance deadline, you do not have to exhaust. It means that when you exhaust late, the lateness may
be excused if it was for reasons beyond your control. See Part D, Section 6, below.
404. See above Part D, footnote 301.
405. Graham v. Perez, 121 F. Supp. 2d 317, 322 (S.D.N.Y. 2000) (quoting N.Y. Comp. Codes R. &
Regs. tit. 7, § 701.7(a)(1) (2001)).
406. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.7(a)(1), at § 701.6(g)(1)(i)(a) (2001). The current
version of this provision is in N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(a)(1), at § 701.6(g)(1)(i)(a)
(2008); State of New York, Department of Correctional Services, Directive No. 4040 § 701.6(a), Inmate
Grievance Program (2003) (as revised July 1, 2006). It now provides: “An exception to the time limit
may not be granted if the request was made more than 45 days after an alleged occurrence.”
407. Patel v. Fleming, 415 F.3d 1105, 1110–11 (10th Cir. 2005) (holding that the existence of
provisions for time extensions did not save the untimely grievance of a prisoner who never sought one);
Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir. 1999) (holding that a prisoner whose grievance was
dismissed as untimely was obliged to appeal, since the system provided for waiver of time limits for
“good cause”); Cordova v. Frank, No. 07-C-172-C, 2007 U.S. Dist. LEXIS 54789, at *14–17 (W.D. Wis.
July 26, 2007) (unpublished) (holding that a prisoner who clearly had good cause for his late grievance
failed to exhaust because he didn’t explain the reason so officials could consider whether to excuse his
lateness); Soto v. Belcher, 339 F. Supp. 2d 592, 596 (S.D.N.Y. 2004) (holding that a prisoner who
learned of his problem after the deadline passed should have sought to file a late grievance); Kaiser v.
whether the court is bound by prison personnel’s disposition of such a request. As we have
noted, courts are divided on the question whether they can overrule grievance officials’
decisions about whether prisoners have complied with the rules. One New York district court
has held that since exhaustion is not jurisdictional, the court will decide whether late
exhaustion is excused by mitigating circumstances such as transfer to another facility or the
unavailability of grievance representatives to prisoners in a segregated unit.408 When a claim
is dismissed for non-exhaustion—whether for simple failure to exhaust at all, an error in
using the procedures, or reliance on law that has subsequently changed—the deadline for
administrative proceedings will almost always have passed. The Second Circuit has held that
where a failure to exhaust or to exhaust correctly was justified by special circumstances, the
claim should be dismissed without prejudice if remedies remain available, but if not, the case
should go forward (and if the case is dismissed and then remedies prove unavailable, it
should be reinstated).409 In other words, if the system will not entertain the plaintiff’s late
grievance, the plaintiff need not exhaust. (Whether this rule was disturbed by Woodford v.
Ngo is unclear.) It is also unclear how readily prison systems will accept post-dismissal
grievances under discretionary provisions for late filings.410 Some decisions, however, have
Bailey, No. 01-6151 (JEI), 2003 U.S. Dist. LEXIS 11103, at *15–16 (D.N.J. July 1, 2003) (unpublished)
(holding that a prisoner who did not follow instructions to obtain verification that untimeliness was not
his fault failed to exhaust). See Whitener v. Buss, 268 F. App’x 477, 478–79 (7th Cir. 2008) (dismissing
claim of prisoner who missed a 48-hour grievance deadline because he needed the relevant officers’
names and it took a week to get them, and he didn’t ask for waiver of the time limit).
408. Graham v. Perez, 121 F. Supp. 2d 317, 322 n.9 (S.D.N.Y. 2000). That approach is consistent
with the Second Circuit’s observation, in finding a prisoner’s explanation for his late grievance
inadequate, that “[w]e therefore do not find Williams’ justification persuasive.” Williams v. Comstock,
425 F.3d 175, 176 (2d Cir. 2005) (per curiam) (emphasis added) (noting that the plaintiff’s grievance
was two years late, and his explanation addressed only a short part of that time). See O'Connor v.
Featherston, No. 01 Civ. 3251 (HB), 2002 U.S. Dist. LEXIS 7570, at *4–8 (S.D.N.Y. Apr. 29, 2002)
(unpublished) (refusing to be bound by rejection of request to file a late grievance where the plaintiff
had been kept in medical restriction for the 14 days in which he was required to file a timely
grievance); Cardona v. Winn, 170 F. Supp. 2d 131 (D. Mass. 2001) (holding that the grievance appeal
deadline should be extended because the prisoner may have missed it out of “excusable confusion”); see
also Lawyer v. Gatto, No. 03 Civ. 7577 (RPP), 2007 U.S. Dist. LEXIS 15406, at *20–23 (S.D.N.Y. Feb.
21, 2007) (unpublished) (holding that the grievance appeal deadline should be extended because the
prisoner may have missed it out of “excusable confusion”); Moore v. La. Dep’t of Public Safety and
Corr., No. CIV.A. 99-1108, 2002 WL 1791996, at *4 (E.D. La. Aug. 5, 2002) (unpublished) (declining to
enforce 30-day time limit; declaring 30-day delay in filing complaint “not unreasonable” given that the
plaintiff was a juvenile in state custody). But see Cole v. Miraflor, No. 02 Civ. 9981(RWS), 2006 WL
457817, at *4 (S.D.N.Y. Feb. 23, 2006) (unpublished) (stating that prison officials’ determination
regarding mitigating circumstances “is conclusive on the issue of exhaustion”); Patterson v. Goord, No.
02 Civ. 759 (JSM), 2002 U.S. Dist. LEXIS 22482, at *2–3 (S.D.N.Y. Nov. 21, 2002) (unpublished)
(refusing to disturb finding of no mitigating circumstances where prisoner had waited six months after
dismissal for non-exhaustion before filing a grievance).
409. Brownell v. Krom, 446 F.3d 305, 313 (2d Cir. 2006); Giano v. Goord, 380 F.3d 670, 679–80
(2d Cir. 2004); Hemphill v. New York, 380 F.3d 680, 690–91 (2d Cir. 2004). The Seventh Circuit has
recently held similarly. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008) (holding that if failure to
exhaust was “innocent,” the prisoner “must be given another chance to exhaust (provided that there
exist remedies that he will be permitted by the prison authorities to exhaust, so that he’s not just being
given a runaround)”).
410. In Brownell v. Krom, 446 F.3d 305, 310–13 (2d Cir. 2006), a prisoner attempted to exhaust
his claim after dismissal for non-exhaustion in the district court, but his grievance was dismissed as
untimely, despite facts that led the Second Circuit to find special circumstances justifying his initial
failure to exhaust correctly.
directed that grievance officials consider grievances on their merits after dismissal for non-
exhaustion.411
The doctrine of equitable tolling, 412 which is usually applied to statutes of limitations,413
may excuse late grievance filings under some circumstances. In Gambina v. Dever, 414 a
prisoner had filed a grievance and been told that it had been referred to “the appropriate
investigative authority,” at a time when his claim was not required to be grieved under that
Circuit’s law. After the law changed in response to the Supreme Court decision in Booth v.
Churner, and his case was dismissed for non-exhaustion, he promptly filed a new grievance,
which was dismissed as untimely. The court held that the plaintiff, who “promptly and
consistently made good faith efforts” to pursue his claims and was victimized by
extraordinary circumstances, should have the benefit of equitable tolling, with the deadline
for filing a grievance extended to twenty days (the grievance time limit) after he received the
court’s decision dismissing his case.415
Untimely filing can also be waived by prison officials in the administrative process: a late
grievance that they decide on the merits anyway satisfies the exhaustion requirement.416
Time limits that are not made known to the prisoners cannot be enforced to bar their suits.417
411. George v. Morrison-Warden, No. 06 Civ. 3188 (SAS), 2007 U.S. Dist. LEXIS 42640, at *19
(S.D.N.Y. June 4, 2007) (unpublished) (dismissing the plaintiff’s case for failure to appeal but holding
plaintiff’s efforts had “earned him a response,” directing officials to treat a renewed appeal as timely
and respond to it); Hill v. Chalanor, 419 F. Supp. 2d 255, 259 (N.D.N.Y. 2006) (finding appeal was
“technically available,” failure to appeal resulted from “confusion or mis-communication” and not
official misconduct, directing that plaintiff’s renewed grievance appeal “shall be deemed timely” and
directing prison officials to make sure it reached its destination); Burgess v. Morse, 259 F. Supp. 2d
240, 247 (W.D.N.Y. 2003) (directing “that the IGRC Supervisor consider referral from this Court as a
mitigating circumstance” for the plaintiff’s untimely filing); see Coronado v. Goord, No. 99 Civ. 1674
(RWS), 2000 U.S. Dist. LEXIS 472, at *6 (S.D.N.Y. Jan. 24, 2000) (unpublished) (dismissing case,
suggesting that a time extension for the grievance should be granted and permitting the plaintiff to
seek one).
412. For more information about the doctrine of equitable tolling, see footnotes 463–66 of this
Chapter.
413. One court has held that it should not be applied to PLRA exhaustion. Diaz v. Rutter, No.
2:05-cv-239, 2007 WL 2683532, at *7 (W.D. Mich. Sept. 7, 2007) (holding equitable tolling applies to
statutes of limitations but not grievance proceedings). Others disagree, as cited in this section.
414. Gambina v. Dever, No. 03-cv-00118-REB-BNB, 2006 U.S. Dist. LEXIS 19371, at *5–6 (D.
Colo. Mar. 31, 2006) (unpublished).
415. Gambina v. Dever, No. 03-cv-00118-REB-BNB, 2006 U.S. Dist. LEXIS 1937, at *9–10 (D.
Colo. Mar. 31, 2006) (unpublished); see Anthony v. Gilman, No. 1:05-cv-426, 2008 U.S. Dist. LEXIS
2011, at *4–7 (W.D. Mich. Jan. 10, 2008) (unpublished) (applying equitable tolling to grievance
deadline, but ruling against prisoner on the merits). A similar equitable approach was taken by one
New York court in a case where the law at first did not seem to require exhaustion. Then the law
changed and the defendants, who had not previously raised exhaustion, sought to have the case
dismissed. The court said that the defendants had waived the exhaustion defense, and it would only let
them assert it based on the change in law if they gave the prisoner a chance to exhaust. Rivera v.
Goord, 253 F. Supp. 2d 735, 753 (S.D.N.Y. 2003) (“In other words, DOCS cannot have it both ways.”).
After dismissal, Mr. Rivera sought to exhaust, but his grievances were rejected as untimely. The court
held that defendants were estopped from raising exhaustion under those circumstances and that the
plaintiff showed special circumstances justifying his failure to exhaust. Rivera v. Pataki, No. 04 Civ.
1286 (MBM), 2005 U.S. Dist. LEXIS 2747, at *41–42 (S.D.N.Y. Feb. 7, 2005) (unpublished) (noting that
“Rivera did the best he could to follow DOCS regulations while responding to an evolving legal
framework.”).
416. Harris v. Aidala, No. 03CV467, 2006 U.S. Dist. LEXIS 63443, at *5–6 (W.D.N.Y. Sept. 6,
2006) (unpublished) (finding that “Even though the grievance was filed outside the stated time
parameters for the filing of grievances, it appears that the grievance was processed and denied based
upon the merits,” and therefore, the plaintiff exhausted his administrative remedies); Griswold v.
Morgan, 317 F. Supp. 2d 226, 229–30 (W.D.N.Y. 2004) (finding that the untimeliness of the grievance
did not mean that the plaintiff failed to exhaust, since the defendants reached a decision primarily
If a grievance system has no time limit, delay in filing cannot bar a prisoner’s claim for
non-exhaustion; 418 an unexhausted claim should be dismissed without prejudice, and the
litigant will have the opportunity to seek to exhaust.419
7. “Total Exhaustion”
Some courts adopted the “total exhaustion” rule, which said that if a prisoner includes
any unexhausted claims in a complaint, the whole case has to be dismissed.420 However, that
rule is history; in January 2007 the Supreme Court held that it is not required by the
PLRA.421 If part of your case is not exhausted, then only that part should be dismissed for
non-exhaustion.
8. Dealing with Exhaustion in Your Lawsuit
Exhaustion is an “affirmative defense,” so you do not have to put it in your complaint—
the defendants must raise it. 422 If you have in fact properly exhausted, it may be good
because of the merits of the case); see Barnes v. Briley, 420 F.3d 673, 679 (7th Cir. 2005) (holding claim
was not procedurally defaulted where an initial grievance was rejected as untimely but plaintiff later
“restarted” the grievance process and received a decision on the merits); Conyers v. Abitz, 416 F.3d 580,
585 (7th Cir. 2005) (holding claim exhausted where grievance was “principally rejected on the merits
with an ambiguous secondary observation that it was untimely”). In Conyers, the court in dictum said
that a claim “may” be procedurally barred if the grievance was rejected both on the merits and for
untimeliness. But see Scott v. Ambani, No. 07-10459, 2008 U.S. Dist. LEXIS 15436, at *6–7 (E.D. Mich.
Feb. 29, 2008) (unpublished) (untimeliness was not waived where the merits were decided only at
intermediate stages); Cole v. Litscher, 343 F. Supp. 2d 733, 741 (W.D. Wis. 2004) (holding that a
grievance rejected on both grounds suffices to exhaust, since when the grievance process rules on an
issue, the purpose of the exhaustion requirement is satisfied; the habeas rule is different because the
purpose of habeas exhaustion is different), reconsideration denied, No. 04-C-116-C, 2005 U.S. Dist.
LEXIS 1955 (W.D. Wis. Feb. 1, 2005) (unpublished).
417. See Sims v. Rewerts, No. 07-12646, 2008 WL 2224132, at *5–6 (E.D. Mich. May 29, 2008)
(unpublished) (not dismissing where plaintiff failed to comply with time limit that had been changed
without notice); Lampkins v. Roberts, No. 1:06-cv-639-DFH-TAB, 2007 U.S. Dist. LEXIS 22695, at *7
(S.D. Ind. Mar. 27, 2007) (unpublished) (refusing to dismiss for missing a five-day time deadline which
was not made known in the materials made available to prisoners).
418. Schonarth v. Robinson, No. 06-cv-151-JM, 2008 U.S. Dist. LEXIS 13596, at *8–12 (D.N.H.,
Feb. 22, 2008) (unpublished) (finding that a grievance that was filed two years after the jail was
demolished, but otherwise in compliance with grievance rules, was exhausted).
419. Alexander v. Dickerson, No. 6:07cv423, 2008 U.S. Dist. LEXIS 32866, at *17 (E.D. Tex. Apr.
22, 2008) (unpublished) (indicating that when no deadline for filing grievances exists in the jail’s policy,
the lawsuit does not have to be dismissed with prejudice, and therefore, dismissing the plaintiff’s case
without prejudice for failing to exhaust and allowing the plaintiff to refile the suit once he exhausts his
administrative remedies).
420. See, e.g., Ross v. County of Bernalillo, 365 F.3d 1181, 1188–90 (10th Cir. 2004) (requiring
dismissal of the entire action if the action contained a single unexhausted claim), overruled by Jones v.
Bock, 549 U.S. 199, 218–24, 127 S. Ct. 910, 923–26, 166 L. Ed. 2d 798, 815–18 (2007) (finding
unpersuasive the arguments in favor of dimissing the entire action because it contains even one
unexhausted claim).
(2007). Before this case, the Ninth Circuit had held that when claims were “closely related and difficult
to untangle,” the presence of unexhausted claims among them supported dismissal of the entire
complaint, but otherwise rejected total exhaustion. Lira v. Herrera, 427 F.3d 1164, 1175–76 (9th Cir.
2005). Some district courts have continued to use that analysis. See Taylor v. Calipatria, No. 04-cv-1897
DMS (CAB), 2007 WL 2712225, at *6 n.4 (S.D. Cal. Sept. 13, 2007) (stating “Lira is consistent with
Jones, although Lira provides more detailed analysis.”). You can argue that there is no basis for
preserving the Lira exception in Jones v. Bock, which rejected the total exhaustion rule entirely.
(2007). This could change. The Court suggested there might be reasons to amend the Federal Rules of
practice to put it in the complaint anyway. Then, if the defendants make a motion to dismiss,
you can simply refer to the relevant paragraph of your complaint in response, since the court
must assume that the facts you allege in your complaint are true for purposes of such a
motion.423 If you did not properly exhaust, but you think you have a good argument that
administrative remedies were not available to you, or that there are special circumstances
that justify your failure to exhaust, it is not a good idea to put that in the complaint, since
the court may dismiss your complaint on the ground that it shows failure to exhaust on its
face.424 In that case you are best advised to leave exhaustion out of the complaint and let the
defendants raise it. At that point you will have the opportunity to provide a fuller
explanation than is appropriate for a complaint. (Here’s the rule of thumb: if you can
truthfully write in your complaint, “Plaintiff has exhausted all available administrative
remedies for his claims,” you may as well do it. If it’s more complicated than that, leave it
out.)
Since exhaustion is not a pleading requirement, it cannot be addressed at initial
screening or by motion under 12(b)(6), Federal Rules of Civil Procedure to dismiss for failure to
state a claim, except in those cases where non-exhaustion is clear on the face of the
complaint. Motions under Fed. R. Civ. P. 12(b)(1) to dismiss for lack of subject matter
jurisdiction are equally inappropriate, since failure to exhaust is not jurisdictional.425
In most courts, defendants who claim you didn’t exhaust will generally have to raise that
claim in a motion for summary judgment, which requires them to submit admissible factual
evidence showing that you didn’t exhaust.426 Sometimes defendants say they are moving to
dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure but include
factual materials like documents or affidavits, which cannot be considered on a motion to
dismiss. The court may then convert the motion to one for summary judgment.427 Either way,
if you are faced with a summary judgment motion, you will have to respond to defendants’
factual presentation with your own admissible evidence. This evidence can consist of your
declaration or sworn affidavit428 (not just a statement in a brief or a letter) establishing that
you exhausted, or were unable to exhaust for some legitimate reason, and/or documentary
evidence such as a final grievance decision showing you exhausted. You should also look
Civil Procedure to make exhaustion a pleading requirement, so be sure you check the current rules (the
pleading rule is Rule 8 of Federal Rules of Civil Procedure).
423. See Amaker v. Goord, No. 98 Civ. 3634(JGK), 1999 U.S. Dist. LEXIS 10905, at *12–16
(S.D.N.Y. July 15, 1999) (unpublished) (holding that a general assertion of exhaustion in response to a
motion to dismiss in the absence of a record was sufficient in defeating the defendants’ motion to
dismiss); Wright v. Dee, 54 F. Supp. 2d 199, 206 (S.D.N.Y. 1999) (holding assertion of exhaustion made
in response to the defendants’ motion to dismiss was sufficient to survive the motion); see also Robinson
v. Dep’t of Corr., No. 96 Civ. 8290(MBM), 1998 U.S. Dist. LEXIS 19600, at *11–12 (S.D.N.Y. Dec. 17,
1998) (unpublished) (holding allegation of lack of remedies was sufficient and alleging facts about his
assault at screening stage).
424. See Jones v. Bock, 549 U.S. 199, 213–15, 127 S. Ct. 910, 920–21, 166 L. Ed. 2d 798, 812–13
(2007).
425. See Woodford v. Ngo, 548 U.S. 81, 101, 126 S. Ct. 2378, 2392 (2006).
426. See Rule 56, Federal Rules of Civil Procedure. Most federal courts routinely addressed
exhaustion disputes under the summary judgment rule. See, e.g., Brownell v. Krom, 446 F.3d 305, 310
(2d Cir. 2006); Brown v. Croak, 312 F.3d 109, 111–12 (3d Cir. 2002); Fields v. Oklahoma State
Penitentiary, 511 F.3d 1109, 1111–12 (10th Cir. 2007).
427 . McCoy v. Goord, 255 F. Supp. 2d 233, 251 (S.D.N.Y. 2003) (discussing why such a
conversion may not fit the goals of exhaustion). Courts are not required to convert such motions to
summary judgment motions. See, e.g., Perez v. Westchester County Dep’t of Corr., No. 05 Civ.
8120(RMB), 2007 U.S. Dist. LEXIS 32638, at *10 n.6 (S.D.N.Y. Apr. 30, 2007) (citing Friedl v. City of
New York, 210 F. 3d 79, 83 (2d Cir. 2000), where in a question of exhaustion, the court decided the
12(b)(6) motion on the complaint alone). We are not sure why more courts do not just deny the motions
to dismiss and leave it to the defendants to make a proper summary judgment motion.
428. See Chapter 6, “An Introduction to Legal Documents,” for more information on affidavits.
critically at the defendants’ evidence and, if it does not really show that you failed to
exhaust, explain why to the court. If the defendants do not show that it is undisputed that
you have failed to exhaust and you do not have an adequate excuse or explanation, summary
judgment will be denied. That usually means that the issue of exhaustion will be determined
at trial, by the jury if it is a jury trial.429
Some courts have taken different approaches to litigating exhaustion. Some have simply
held evidentiary hearings to determine factual disputes about exhaustion, without much
discussion of why it is appropriate to proceed in that way.430 The Ninth Circuit has held that
failure to exhaust is “a matter in abatement, which is subject to an unenumerated Rule 12(b)
motion, rather than a motion for summary judgment.”431 The difference that makes is that
courts (not juries) can decide disputed factual issues based on documents, without holding a
hearing, under this procedure.432 Recently, the Eleventh Circuit adopted this approach too.433
If you are faced with such a motion in a district court in the Ninth or Eleventh Circuit, you
should respond to it the same way you would respond to a summary judgment motion, with
declarations or sworn affidavits stating relevant facts within your knowledge, and with
documents showing relevant facts, such as the prison grievance policy, grievances you filed,
decisions or other documents you received in response, etc.
The Seventh Circuit, by contrast, has rejected the matter in abatement approach and has
held that whenever exhaustion “is contested,” the district court should conduct a hearing on
exhaustion, allowing discovery limited to exhaustion, and decide the exhaustion question;
only if the court finds the plaintiff has exhausted will the case proceed to discovery on the
merits.434 The court did not explain whether “contested” means raised as a defense in the
answer, raised by motion, or turning on a material issue of fact and therefore not susceptible
to summary judgment. The court’s expressed concern was to avoid presentation of exhaustion
to the jury; it stated that “juries do not decide what forum a dispute is to be resolved in. ...
429. Cain v. Dretke, No. C-04-364, 2006 U.S. Dist. LEXIS 42885, at *3 (S.D. Tex. June 13, 2006)
(unpublished) (holding a factual dispute over exhaustion “must be resolved at trial”); Donahue v.
Bennett, No. 02-CV-6430 CJS, 2004 WL 1875019, at *6 (W.D.N.Y. Aug. 17, 2004); Kendall v. Kittles,
No. 03 Civ. 628 (GEL), 2004 U.S. Dist. LEXIS 15145, at *14 (S.D.N.Y. Aug. 4, 2004) (unpublished)
(holding credibility issues about access to grievance forms and whether the plaintiff was told his claim
was nongrievable “are properly for a jury.”); Branch v. Brown, No. 01 Civ. 8295 (DC), 2003 U.S. Dist.
LEXIS 13218, at *33 (S.D.N.Y. July 25, 2003) (unpublished) (holding that “defendants must show that
no reasonable jury could fail to find in their favor on this issue” to obtain dismissal for non-exhaustion),
judgment granted on other grounds, 2003 U.S. Dist. LEXIS 19170 (S.D.N.Y. Oct. 28, 2003)
(unpublished); Williams v. MacNamara, No. C 00-040 SI (pr), 2002 U.S. Dist. LEXIS 6936, at *7 (N.D.
Cal. Apr. 17, 2002) (unpublished); see also Foulk v. Charrier, 262 F.3d 687, 697–98 (8th Cir. 2001)
(resolving exhaustion claim on appeal based on trial evidence); Moody v. Pickles, No. 9:03-CV-850
(DEP), 2006 U.S. Dist. LEXIS 69148, at *18 n.15 (N.D.N.Y. Sept. 13, 2006) (unpublished) (resolving
exhaustion claim after judgment based on trial evidence).
430. Peterson v. Roe, No. 05-cv-055-PB, 2007 U.S. Dist. LEXIS 7847, at *4 (D.N.H. Feb. 2, 2007)
(unpublished) (finding officials credible as to failing to receive appeal, plaintiff credible as to mailing it
and as to the unreliability of the internal mail); Parker v. Robinson, No. 04-214-B-W, 2006 U.S. Dist.
LEXIS 64107, at *3–4 (D.Me., Sept. 6, 2006) (unpublished) (noting plaintiff had objected to hearing in
light of finding that factual disputes precluded summary judgment); see also Johnson v. Garraghty, 57
F. Supp. 2d 321, 329 (E.D. Va. 1999) (holding that disputed claim that defendants obstructed
exhaustion merits an evidentiary hearing). But see Mitchell v. Adams, No. CIV S-06-2321 GEB GGH P,
2008 U.S. Dist. LEXIS 8014, at *45–46 (E.D. Cal. Feb. 4, 2008) (unpublished) (reserving factual dispute
for trial because the court lacks time and resources for an evidentiary hearing), report and
recommendation adopted, 2008 U.S. Dist. LEXIS 16202 (E.D. Cal. Mar. 3, 2008) (unpublished).
431. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).
432. Ritz v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir. 1988)
(per curiam), cited in Wyatt, 315 F.3d 1108, 1119–20 (9th Cir. 2003).
433. Bryant v. Rich, 530 F.3d 1368 (11th Cir. 2008).
Until the issue of exhaustion is resolved, the court cannot know whether it is to decide the
case or the prison authorities are to.”435
The Seventh Circuit approach seems to us contrary to Jones v. Bock,436 which held that
the PLRA exhaustion requirement does not alter usual litigation practices governed by the
Federal Rules of Civil Procedure or general practice, and that what the exhaustion
requirement actually says may not be expanded based on judges’ policy views. 437 A rule
permitting only exhaustion-related discovery until exhaustion is resolved is not consistent
with the Federal Rules’ discovery procedures. 438 Further, the court invents a seemingly
unprecedented (at least it cites no precedent) means of addressing facts that are essential to
the exhaustion decision but are also relevant to the merits of the plaintiff’s claim: the jury
will find the facts “without being bound by (or even informed of)” the district court’s
determinations.439 This notion of having a court make factual findings, and then ignoring
them in the remainder of the case, does not seem like a usual litigation practice to us. Of
course, if you are in a court in the Seventh Circuit, you will be bound by these rules. In other
courts, the arguments in this section may help persuade a court not to adopt the Seventh
Circuit approach.
These procedural issues will eventually have to be resolved by the Supreme Court.
Whatever the outcome, since exhaustion is an affirmative defense, the defendants will have
the burden of proving non-exhaustion as well as pleading it.440 That means they have to show
three things:
436. Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007).
437. Jones v. Bock, 549 U.S. 199, 213, 127 S. Ct. 910, 919–20, 166 L. Ed. 2d 798, 811 (2007).
438. The court qualified this holding by saying “in the ordinary case” discovery on the merits
should be put off until exhaustion is resolved, but “there may be exceptional cases in which expeditious
resolution of the litigation” calls for some merits-related discovery before exhaustion is decided. Pavey
v. Conley, 528 F.3d 494, 497 (7th Cir. 2008).
440. Roberts v. Barreras, 484 F.3d 1236, 1240–41 (10th Cir. 2007) (citing established rules that
the burden of proving affirmative defenses is on the defendant and that burden of proof follows burden
of pleading).
(1) That there actually was an available administrative remedy for your problem.441 The
Second Circuit has held that prisoner complaints should not be dismissed for non-
exhaustion without the court having “establish[ed] the availability of an
administrative remedy from a legally sufficient source.”442 To do that, the court must
examine whether the remedy actually will address the kind of claim the prisoner
raises, and must look at exceptions to the remedy to be sure the claim does not fall
into one of them.443 Defendants must also show what prisoners were required to do to
exhaust.444
441. See Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (“Establishing, as an affirmative
defense, the existence of further ‘available’ administrative remedies requires evidence, not
imagination.”); Fernandez v. Morris, No. 08-CV-0601 H (PCL), 2008 U.S. Dist. LEXIS 54298, at *9 (S.D.
Cal. July 16, 2008) (unpublished) (defendants who failed to show availability of remedies in segregation
were not entitled to dismissal for non-exhaustion); Ayala v. C.M.S., No. 05-5184 (RMB), 2008 U.S. Dist.
LEXIS 50692, at *7 (D.N.J. July 2, 2008) (unpublished) (defendants who failed to specify what
procedures were available were not entitled to dismissal for non-exhaustion); Ammouri v. Adappt
House, Inc., No. 05-3867, 2008 U.S. Dist. LEXIS 47129, at *8–9 (E.D. Pa. June 12, 2008) (unpublished)
(defendants who provided only “minimal explanation or proof” concerning the relevant grievance
procedures did not establish non-exhaustion); Bryant v. Sacramento County Jail, No. CIV S-06-0688
GEB EFB P, 2008 U.S. Dist. LEXIS 10273, at *13 (E.D. Cal. Feb. 12, 2008) (unpublished) (defendants
who showed there was a grievance system and plaintiff didn’t use it, but failed to show the plaintiff was
notified of the grievance system, did not meet their burden on summary judgment); Martino v.
Westchester County Dep’t of Corr., No. 06 Civ. 9900 (PKC), 2008 U.S. Dist. LEXIS 2830, at *4
(S.D.N.Y. Jan. 15, 2008) (unpublished) (defendants who failed to identify available remedies or show
that they were available to the plaintiff did not establish non-exhaustion); McCray v. Peachey, No. 06-
2794, 2007 U.S. Dist. LEXIS 82444, at *16 (E.D. La. Nov. 6, 2007) (unpublished) (holding defendants
failed to show that the grievance policy they relied on was in effect at the relevant time and the
plaintiff was advised of it); Farrell v. Hunter, No. 2:06-cv-454-FtM-99SPC, 2006 U.S. Dist. LEXIS
78402, at *10 (M.D. Fla. Oct. 27, 2006) (unpublished) (holding defendants who failed to place their
administrative procedures in the record had not met their burden of showing lack of exhaustion);
Rahim v. Sheahan, No. 99 C 0395, 2001 U.S. Dist. LEXIS 17214, at *22 n.3 (N.D. Ill. Oct. 19, 2001)
(unpublished) (holding defendants have the burden of “proving that there is an administrative process
that would be able to take action in response to [the specific] complaints—action, that is, other than
saying, ‘Sorry, we can’t do anything about it’”); Raines v. Pickman, 103 F. Supp. 2d 552, 555 (N.D.N.Y.
2000) (holding “it is [defendants’] burden to come forward to show that an administrative remedy exists
for plaintiff to pursue in reference to his claims of excessive force”).
442. Haggenmiller v. Klang, No. 06-641 DSD/AJB, 2006 U.S. Dist. LEXIS 77445, at *3 (D. Minn.
Oct. 11, 2006) (noting “the defendant has not established that an administrative complaint procedure
exists”); Baker v. Allen, No. 03-2600, 2006 U.S. Dist. LEXIS 27525, at *27–28 (D.N.J. Apr. 24, 2006)
(denying motion to dismiss because medical provider failed to describe grievance procedures existed for
its program); Monroe v. Fletcher, No. 7:05-cv-00288, 2006 U.S. Dist. LEXIS 38664, at *5 (W.D. Va. June
12, 2006) (holding defendants did not show the existence of a “specific, available remedy” against the
U.S. Marshals Service); Jordan v. Linn County Jail, No. C04-0135-MWB, 2006 U.S. Dist. LEXIS 11778,
at *5 (N.D. Iowa Mar. 10, 2006) (rejecting defendants’ argument that the plaintiff failed to appeal on
the ground that the record did not establish the existence of an appeals process) Clavier v. Goodson,
No. 4:05CV863 CDP, 2005 U.S. Dist. LEXIS 30462, at *6 (E.D. Mo. Nov. 30, 2005) (holding that
defendants seeking summary judgment must submit evidence establishing what grievance procedure
was available).
443. Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003); accord Anderson v. XYZ Correctional
Health Services, 407 F.3d 674, 683 n.5 (4th Cir. 2005).
In Mojias, the court criticized the lower court for relying on check marks and questionnaire
answers on a form complaint to determine exhaustion. Mojias v. Johnson, 351 F.3d 606, 609–10 (2d Cir.
2003). That harmful practice persists in some jurisdictions. See Winfield v. Soloman, No. CIV S-08-0875
WBS DAD P, 2008 U.S. Dist. LEXIS 46880, at *3 (E.D. Cal. May 23, 2008) (unpublished). In Randolph
v. City of New York Dep’t of Corr., No. 05 Civ. 8820 (GEL)(MHD), 2007 U.S. Dist. LEXIS 68104, at *15–
16 (S.D.N.Y. Sept. 7, 2007) (unpublished), the court points out that reading such brief and ambiguous
information to show non-exhaustion is inconsistent with the Supreme Court’s holding in Jones v. Bock
(2) That you were a prisoner and therefore required to exhaust when you filed your
complaint. 445
(3) That you didn’t exhaust. Several courts have found prison officials’ affidavits and
documentation asserting a prisoner didn’t exhaust to be insufficient or even
inadmissible into evidence because they were completely conclusory (proved
nothing),446 failed to set out how records were searched,447 rested on hearsay,448 or
otherwise failed to establish a failure to exhaust.449 In several cases, plaintiffs have
produced documentation of grievances that prison officials claimed did not exist.450
that exhaustion is an affirmative defense, as well as with the “case-specific” Second Circuit analysis of
exhaustion questions, which requires a factual record.
444. Ayala v. C.M.S., No. 05-5184 (RMB), 2008 U.S. Dist. LEXIS 50692, at *7 (D.N.J. July 2,
2008) (unpublished) (where plaintiff said he was unable to pursue administrative remedies, defendants’
failure to establish their policy’s requirements made it impossible for the court to assess plaintiff’s
claim).
445. Abner v. County of Saginaw County, 496 F. Supp. 2d 810, 823 (E.D. Mich. 2007).
446. See Ray v. Kertes, 130 F. App’x 541, 543 (3d Cir. 2005) (unpublished) (holding “conclusory
statement” that “does not constitute a factual report describing the steps Ray did or did not take to
exhaust his grievances” did not meet defendants’ burden); Owens v. Campbell, No. 0:06-427-HFF-BM,
2007 U.S. Dist. LEXIS 56059, at *13 n.3 (D.S.C. Mar. 26, 2007) (unpublished) (where plaintiff alleged
he never received a response to his grievance, defendants failed to meet their burden when they
provided no evidence about their procedure or what happened to his grievance), report and
recommendation adopted in part, 2007 U.S. Dist. LEXIS 53946 (D.S.C. July 25, 2007) (unpublished);
Laws v. Walsh, No. 02-CV-6016, 2003 U.S. Dist. LEXIS 12600, at *10 n.3 (W.D.N.Y. June 27, 2003)
(unpublished) (holding conclusory affidavit about records search and lack of appeals inadmissible).
447. Livingston v. Piskor, 215 F.R.D. 84, 85–86 (W.D.N.Y. 2003) (holding defendants’ affidavits
that they had no record of grievances and appeals by the plaintiff were inadequate where they did not
respond to his allegations that his grievances were not processed as policy required and gave no detail
as to “the nature of the searches ..., their offices’ record retention policies, or other facts indicating just
how reliable or conclusive the results of those searches are”).
448. Donahue v. Bennett, No. 02-CV-6430, 2003 U.S. Dist. LEXIS 12601, at *10 (W.D.N.Y. June
23, 2003) (unpublished) (holding counsel’s hearsay affirmation about a telephone call with grievance
officials did not properly support their motion); see Mandeville v. Anderson, No. 05-cv-92-JD, 2007 WL
4287724, at *3–4 (D.N.H. Dec. 4, 2007) (unpublished) (declining to dismiss based on a prison official’s
characterization of plaintiff’s complaints where the actual complaints were not submitted to court).
In Collins v. McCaughtry, No. 04-C147-C, 2005 WL 503818, at *2 (W.D. Wis. Feb. 28, 2005)
(unpublished), the court held that a declaration summarizing the contents of the plaintiff’s complaints
(or grievances) was admissible under Federal Rules of Evidence 1006 (Fed. R. Evid. 1006), which allows
admission of summaries of voluminous writings, etc., that cannot conveniently be examined in court.
The plaintiff disputed defendants’ claim that he had failed to exhaust and stated that certain of his
grievances did raise the issues he was suing about. The court held that his declaration was not
sufficient to establish the content of his grievances, but since the defendants had the burden of proof,
they would have to submit copies of the disputed grievances. See also Zarco v. Burt, 355 F. Supp. 2d
1168, 1174 (S.D. Cal. 2004) (holding grievance records summary admissible under Fed. R. Evid. 803(7)
and 901).
449. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (noting that defendants’ affidavit
does not state whether the plaintiff exhausted his appeals and that the defendants had thus failed to
meet their burden of proving that the plaintiff had failed to exhaust his administrative remedies);
Davis v. Mich. Dep’t of Corr., No. 1:07-cv-200, 2008 WL 1820926, at *1–2 (W.D. Mich. Apr. 4, 2008)
(unpublished) (unauthenticated documents could not be considered on a summary judgment motion);
Deemer v. Stalder, No. CV06-1775-A, 2007 WL 4589799, at *2 (W.D. La. Nov. 27, 2007) (unpublished)
(declining to dismiss where defendants’ affidavit failed to explain source of much information);
DeFranco v. Wolfe, No. 04-0230 Erie, 2007 WL 1704770, at *4–5 (W.D. Pa. June 12, 2007)
(unpublished) (holding declaration that showed only that the declarant had searched records in her
own office did not show that plaintiff had failed to file a grievance), reconsideration denied on other
grounds, 2007 WL 1810722 (W.D.Pa. June 21, 2007) (unpublished), vacated on other grounds, 2007 WL
1830770 (W.D.Pa. June 22, 2007) (unpublished); Thixton v. Berge, No. 05-C-620-C, 2006 WL 3761342,
Since exhaustion is an affirmative defense, it can be waived by failure of the defendants
to raise it, or to do so in a timely way.451 Your claim that defendants have waived exhaustion
at *3 (W.D. Wis. Dec. 19, 2006) (unpublished) (noting that the absence of an appeal about lack of a
working toilet and sink did not establish non-exhaustion, since if he prevailed at the first stage he
would have exhausted without an appeal, and he might have filed an appeal about conditions in
general including the sink and toilet issue); Ortiz v. Kilquist, No. 03-11-DRH-PMF, 2006 WL 2583714,
at *2 (S.D. Ill. Aug. 3, 2006) (unpublished) (noting that while defendants said they had no record of
plaintiff’s grievances, his medical records indicated he was seen because of a grievance); Wigfall v.
Duval, No. 00-12274-DPW, 2006 WL 2381285 (D. Mass. Aug. 15, 2006) (unpublished) (citing
“unacceptable lack of candor and completeness” in defendants’ presentation of evidence regarding
exhaustion; they claimed to log all grievances, but evidence suggested use of force claims were not
considered grievances); Montgomery v. Johnson, No. 7:05cv00131, 2006 WL 2403305, at *11 (W.D. Va.
Aug. 18, 2006) (unpublished) (crediting evidence that policies and practices were not followed and
remedies were not in fact available to the plaintiff during the relevant time period); Blount v. Fleming,
No. 7:04cv00429, 2006 WL 1805853, at *2–4 (W.D. Va. June 29, 2006) (unpublished) (finding that
officials’ representation concerning non-exhaustion of certain claims was false); Woods v. Arpaio, No.
CV-04-3067-PHX-SRB, 2006 WL 197149, at *3 (D. Ariz. Jan. 24, 2006) (unpublished) (noting that
affidavit concerning search of grievance records showed that affiant (person swearing out an affidavit)
had searched under the wrong inmate number).
450. Baker v. Schriro, No. CV 07-0353-PHX-SMM (JRI), 2008 WL 3877973, at *5 (D. Ariz. Aug.
20, 2008); Menteer v. Applebee, No. 04-3054-MLB, 2008 WL 2649504, at *6 (D. Kan. June 27, 2008)
(unpublished) (finding material issue of fact where defendants said plaintiff filed no grievances but
plaintiff produced copies of grievances and decisions on them); Marlin v. Dube-Gilley, No. 2:07CV00052
BSM/HDY, 2008 WL 2952072, at *2 (E.D. Ark. June 24, 2008) (unpublished) (plaintiff produced
grievance form defendants said they could not find); King v. Caruso, No. 2:07-CV-39, 2008 WL 725032,
at *3 (W.D. Mich. Mar. 17, 2008) (unpublished) (declining to dismiss for non-exhaustion where
defendants claimed no record of his appeals but plaintiff produced defendants’ responses to them);
Hattrick v. FMC-Devens Staff, No. 06-40238-RWZ, 2008 WL 687410, at *5 (D. Mass. Mar. 5, 2008)
(unpublished) (not dismissing where defendants said they had no record of plaintiff’s grievance but he
produced other grievances not listed in their database).
451 . See Handberry v. Thompson, 446 F.3d 335, 342–43 (2d Cir. 2006) (finding waiver);
Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 679–80 (4th Cir. 2005); Johnson v.
Testman, 380 F.3d 691, 695–96 (2d Cir. 2004) (holding the defense was waived by failure to assert it in
the district court); Randolph v. Rodgers, 253 F.3d 342, 348 n.11 (8th Cir. 2001) (finding defendants
“waived [PLRA exhaustion] argument on appeal” because it was not raised in the District Court);
Smith v. Mensinger, 293 F.3d 641, 647 n.3 (3d Cir. 2002); Dalluge v. Coates, No. CV-06-319-RHW, 2008
WL 678647, at *3 (E.D. Wash. Mar. 7, 2008) (unpublished) (answer’s admission that “the grievance
process is completed” waived the defense); Mendez v. Kham, No. 04-CV-1030S, 2008 WL 821968, at *4
(W.D.N.Y. Mar. 26, 2008) (unpublished) (omission from answer waived exhaustion defense); Becker v.
Ind. State Prison/Ind. Dep’t of Corr., No. 3:04-CV-543 RM, 2007 WL 2710474, at *3–4 (N.D. Ind. Sept.
12, 2007) (unpublished) (denying defendants’ request to amend answer to assert non-exhaustion
because it was not filed until summary judgment motion was fully briefed); Brown v. Kirk, No. 9:06-
2532-JFA-GCK, 2007 WL 1377650, at *8 (D.S.C. May 8, 2007) (unpublished) (holding failure to plead
exhaustion in answer waived the defense); Webb v. Fox, No. 9:06-1780-PMD, 2007 WL 1219402, at *4
(D.S.C. Apr. 24, 2007) (unpublished) (holding failure to plead exhaustion or argue it in their summary
judgment motion waived it); Walton v. Breeyear, No. 9:05-CV-0194 (LEK/DEP), 2007 WL 446010, at *8
(N.D.N.Y. Feb. 8, 2007) (unpublished) (finding waiver based on failure to plead); Ludy v. Sherman, No.
06-74 Erie, 2007 WL 320831, at *7 (W.D. Pa. Jan. 30, 2007) (unpublished) (holding that court “is
compelled to address the merits” of a claim as to which defendants disavowed an exhaustion defense);
Holland v. Goord, No. 05-CV-6295, 2006 WL 1983382, at *4 n.2 (W.D.N.Y. July 13, 2006) (unpublished)
(“Defendants have not raised [exhaustion] by way of a motion to dismiss, or in their answer, or by the
summary judgment motion now before the Court. Thus, the Court finds defendants have waived the
exhaustion requirement.”); Wright v. Goord, No. 9:03CV-0743, 2006 WL 839532, at *5 (N.D.N.Y. Mar.
27, 2006) (unpublished) (holding otherwise well-taken non-exhaustion defense, raised on a summary
judgment motion, was waived by failure to plead it or raise it by motion to dismiss).
One federal court had held that exhaustion cannot be waived, and concluded it must be a pleading
requirement and not an affirmative defense. Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1209
will be much stronger if you can show that their failure to raise it on time has prejudiced you
in some way. 452 The exhaustion defense, once technically waived, may be revived
procedurally 453 or in the exercise of the court’s discretion. 454 But, in one case where the
defendants sought relief from waiver because the law had changed to bring the claim within
the exhaustion requirement, the court conditioned the relief on prison officials’ permitting
the prisoner to exhaust late, since the prisoner, too, had relied on prior law.455
(10th Cir. 2003), cert. denied, 543 U.S. 925 (2004). This decision is overruled by Jones v. Bock, which, as
discussed earlier, holds that non-exhaustion is an affirmative defense.
452. See Handberry v. Thompson, 446 F.3d 335, 343 (2d Cir. 2006) (noting that plaintiffs could
have timely exhausted and returned to court had the defense been timely raised); Bonilla v. Janovick,
2005 WL 61505, at *2 (E.D.N.Y. Jan. 7, 2005) (holding defense waived where it was not asserted for two
years and eight months, plaintiff would have to expend additional resources and his long-pending case
would be delayed, and further discovery and additional dispositions would be needed to determine
whether special circumstances excusing failure to exhaust were present); Thomas v. Keyser, No. 01 Civ.
5615(PKC), 2004 WL 1594865, at *2 (S.D.N.Y. July 16, 2004) (unpublished) (declining to allow
assertion of non-exhaustion after 21 months of delay, where plaintiff would be prejudiced by having to
re-file after investing time and effort in completing discovery); Hightower v. Nassau County Sheriff’s
Dep’t, 325 F. Supp. 2d 199, 205 (E.D.N.Y. 2004) (holding defense waived where raised only after trial,
after 23 months’ delay and plaintiffs’ loss of opportunity to take discovery), vacated in part on other
grounds, 343 F. Supp. 2d 191 (E.D.N.Y. Nov. 1, 2004). Some courts require a showing of prejudice for
waiver. See Curtis v. Timberlake, 463 F.3d 709, 711 (7th Cir. 2005); Panaro v. City of North Las Vegas,
432 F.3d 949, 952 (9th Cir. 2005).
453. See Jackson v. District of Columbia, 254 F.3d 262, 267 (D.C. Cir. 2001) (holding it was not
an abuse of discretion to construe a “notice” by one party that it would rely on another party’s
exhaustion defense as an amended answer properly raising the defense); Massey v. Helman, 196 F.3d
727 (7th Cir. 1999) (holding that the filing of an amended complaint revives defendants’ right to raise
exhaustion and other defenses); Howard v. City of New York, No. 02-CV-1731 (KMK), 2006 WL
2597857, at *6 (S.D.N.Y. Sept. 6, 2006) (unpublished) (same as Massey).
454 . See Stephenson v. Dunford, 320 F. Supp. 2d 44, 48–49 (W.D.N.Y. 2004) (allowing
amendment of answer to assert exhaustion 22 months after Supreme Court decision showed the
defense was available), vacated and remanded on other grounds, 2005 WL 1692703 (2d Cir. July 13,
2005) (unpublished); Stevens v. Goord, No. 99 Civ. 11669(LMM), 2003 WL 21396665, at *4 (S.D.N.Y.
June 16, 2003) (unpublished) (allowing revival of waived exhaustion defense), on reargument, 2003 WL
22052978 (S.D.N.Y. Sept. 3, 2003) (unpublished). But see Mendez v. Barlow, No. 04-CV-1030S(F), 2008
WL 2039499, at *2 (W.D.N.Y. May 12, 2008) (unpublished) (where the court has set a cut-off date for
such motions, the liberal standard for amendment of pleadings is inapplicable; waiver enforced based
on “undue delay”); Abdullah v. Washington, 530 F. Supp. 2d 112, 115 (D.D.C. 2008) (denying
amendment to answer asserting exhaustion defense five years after filing; plaintiff would be prejudiced
because discovery was closed and plaintiff might have formulated discovery differently if exhaustion
had been asserted); Thomas v. Keyser, No. 01 Civ. 5615(PKC), 2004 WL 1594865, at *2 (S.D.N.Y. July
16, 2004) (unpublished) (declining to allow revival of defense); Hightower v. Nassau County Sheriff’s
Dep’t, 325 F. Supp. 2d 199, 205 (E.D.N.Y. 2004) (same), vacated in part on other grounds, 343 F. Supp.
2d 191 (E.D.N.Y. Nov. 1, 2004).
In Panaro v. City of North Las Vegas, 423 F.3d 949, 952 (9th Cir. 2005), the court held that
exhaustion can be raised at the summary judgment stage, even if not pled, as long as the adverse party
is not prejudiced. Accord Tyner v. Donald, No. 1:04-CV-156 (WLS), 2007 WL 842131, at *2 n.1 (M.D.
Ga. Mar. 16, 2007) (unpublished) (holding defense may be raised at a “pragmatically sufficient” time if
there is no prejudice to the plaintiff). Contra Wright v. Goord, No. 9:03CV-0743, 2006 WL 839532, at *5
(N.D.N.Y. Mar. 27, 2006) (unpublished); Mayoral v. Ill. Dep’t of Corr., No. 98 C 50246, 2002 WL
31324070, at *1 (N.D. Ill. Oct. 17, 2002) (unpublished).
455. Rivera v. Goord, No. 99 Civ. 1683(DC), 2003 WL 1700518, at *13 (S.D.N.Y. Mar. 28, 2003)
(unpublished) (stating “In other words, DOCS cannot have it both ways”). The change in law was the
Supreme Court’s decision in Porter v. Nussle, 534 U.S. 516, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002),
reversing the Second Circuit’s holding that use-of-force claims were not subject to the exhaustion
requirement.
Rivera’s holding has been overtaken by the broader one in Rodriguez v. Westchester County Jail
Corr. Dep’t, 372 F.3d 485, 487 (2d Cir. 2004), which held that a prisoner had acted reasonably in failing
If a court refuses to dismiss your case for non-exhaustion, prison officials cannot appeal
immediately; they have to wait until the end of the case.456 One court has recently allowed
the defendants an immediate appeal on the question of whether discovery must be stayed
until any dispute over exhaustion is resolved.457
9. Exhaustion and Statutes of Limitations
Most courts have held that the statute of limitations is tolled (suspended) while you are
exhausting administrative remedies,458 meaning the time does not start to run until you get
a final administrative decision. However, not every court may accept this idea; plan on
getting your complaint in within the usual time limitation if you can.
If your case is dismissed for non-exhaustion and you want to try to exhaust and re-file
it, the statute of limitations may have run by then. Ordinarily your case would be time-
459
barred. However, some states have statutes that toll the statute of limitations for various
reasons, including dismissals for reasons not involving the merits of the case. (State tolling
rules are applied by federal courts in civil rights actions.460) For example, a New York statute
says that in an action that was timely commenced but was “terminated in any other manner
than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the
defendant, a dismissal of the complaint for neglect to prosecute the action, or a final
judgment on the merits,” the plaintiff has six months to file a new lawsuit about the subject
matter of the dismissed lawsuit.461 New York state law also appears to toll the statute of
to exhaust, and could therefore proceed without exhaustion if remedies were no longer available,
because his actions were consistent with the erroneous legal position that the Second Circuit itself had
adopted. But see Robertson v. Vandt, No. 1:03-cv-06070-LJO-GSA PC, 2008 WL 752589, at *8 (E.D. Cal.
Mar. 19, 2008) (unpublished) (dismissing for non-exhaustion in situation like Rivera where prisoner’s
grievance filed after change in law was dismissed as untimely).
456. Davis v. Streekstra, 227 F.3d 759, 762–63 (7th Cir. 2000).
457. Pavey v. Conley, No. 3:03-CV-662 RM, 2006 WL 3715019, at *1 (N.D. Ind. Dec. 14, 2006)
(unpublished), rev’d, 544 F.3d 739, (7th Cir. 2008).
458. Roberts v. Barreras, 484 F.3d 1236, 1240 (10th Cir. 2007); Brown v. Valoff, 422 F.3d 926,
943 (9th Cir. 2005); Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001); Brown v. Morgan, 209 F.3d
595, 596 (6th Cir. 2000); Harris v. Hegmann, 198 F.3d 153, 157 (5th Cir. 1999). Some courts have said
or assumed that this question is determined by state tolling law. See, e.g., Harris v. Hegmann, 198 F.3d
153, 157 (5th Cir. 1999); Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1280 (11th Cir. 2001); Wisenbaker v.
Farwell, 341 F. Supp. 2d 1160 (D. Nev. 2004). Others have said that the PLRA itself dictates tolling
during exhaustion. Bourguignon v. Armstrong, No. 3:06CV0259(WIG), 2007 WL 2495230, at *2–4 (D.
Conn. Aug. 28, 2007) (unpublished) and cases cited; Wright v. O’Hara, No. Civ.A. 00-1557, 2004 WL
1793018, at *6 (E.D. Pa. Aug. 11, 2004) (unpublished).
459. You may not be allowed to do this because your grievance, too, may be time-barred, unless
you persuade prison officials there is a reason to hear your late grievance. See Part E(5) of this Chapter
for more information.
460. Bd. of Regents v. Tomanio, 446 U.S. 478, 483–86, 100 S. Ct. 1790, 1794–96, 64 L. Ed. 2d 440
(1980).
461. N.Y. C.P.L.R. 205(a) (1999); see Villante v. Vandyke, No. 03-0044, 2004 WL 605290, at *2
(2d Cir. Mar. 29, 2004) (noting prison officials’ statement that the statute applied to dismissal for non-
exhaustion); Rivera v. Pataki, No. 01 Civ.5179 MBM, 2003 WL 21511939, at *9 n.13 (S.D.N.Y. July 1,
2003); Richardson v. Romano, No. 00-CV-1076 (LEK/DEP), 2003 WL 1877955, at *2 n.1 (N.D.N.Y. Mar.
31, 2003). That statute also requires that service of process be completed within the six-month period.
However, courts have held that this service requirement is not binding in federal court, since state law
governing the method or timing of service of process is not borrowed along with the statute of
limitations for federal claims. Allaway v. McGinnis, 362 F. Supp. 2d 390, 395 (W.D.N.Y. 2005); Gashi v.
County of Westchester, 02 Civ. 6934 (GBD), 2005 U.S. Dist. LEXIS 1215, at *27–30 (S.D.N.Y. Jan. 27,
Tolling statutes vary from state to state and may not always be helpful. For example, the Indiana
statute applies only if the case is dismissed for reasons other than negligence in prosecuting it. One
court has held that failure to exhaust constitutes negligence under the Indiana statute. The statute
limitations during exhaustion of administrative remedies.462 In addition, some courts have
applied the doctrine of equitable tolling so that any time you spend going through an action
that is dismissed for non-exhaustion, and any further time spent in exhausting
administrative remedies after the dismissal, will not count against the statute of
limitations.463
A second approach is to hold the statute of limitations equitably tolled during the
pendency of the dismissed action and any subsequent state administrative proceedings, as
one appeals court has done.464 That holding was made in a case where the plaintiff had been
victimized by a change in law overruling several circuits’ holdings that damage claims need
not be exhausted where grievance systems did not provide for damages,465 but others have
held or suggested that equitable tolling may be applicable more generally.466
An alternative approach is for the court to decline to dismiss a case that would be time-
barred and instead to grant a stay pending exhaustion. That option may be foreclosed by case
law holding that stays are no longer permitted under the PLRA and that unexhausted claims
must be dismissed.467 However, courts have not explicitly addressed the question of whether
there may be an exception to the dismissal rule in order to save the meritorious claim of a
plaintiff who unfairly experienced a change in the law.468 Since a stay pending exhaustion is
not much different in practical effect from dismissal without prejudice and subsequent
reinstatement of suit, a limited exception to the dismissal rule will not do serious harm to
the PLRA’s policies, unless one assumes that Congress intended to encourage forfeitures of
meritorious cases by creating a new source of statute of limitations problems.469
was not tolled and the claim was time-barred in that case. Thomas v. Timko, 428 F. Supp. 2d 855, 857
(N.D. Ind. 2006).
462. N.Y. C.P.L.R. 204(a) (1999) (“Where the commencement of an action has been stayed by a
court or by statutory prohibition, the duration of the stay is not a part of the time within which the
action must be commenced”). The PLRA exhaustion requirement that says you cannot file suit until
you have exhausted would appear to be a “statutory prohibition” by the New York statute’ s standards.
463. Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001); Clifford v. Gibbs, 298 F.3d 328,
333 (5th Cir. 2002); McCoy v. Goord, 255 F. Supp. 2d 233, 253 (S.D.N.Y. 2003). Courts are more likely
to apply equitable tolling if there is some reason it would be unfair to dismiss your case as time-barred,
such as your having made a technical mistake the first time you tried to exhaust. But see Crump v.
Darling, No. 1:06-cv-20, 2007 U.S. Dist LEXIS 20000, at *45–47 (W.D. Mich. Mar. 21, 2007)
(unpublished) (denying equitable tolling to prisoner whose case was dismissed for non-exhaustion).
464. Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001); see also Clifford v. Gibbs, 298
F.3d 328, 333 (5th Cir. 2002). See footnotes 463–66, below, for more on equitable tolling.
465. See Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001).
466. See Wisenbaker v. Farwell, 341 F. Supp. 2d 1160, 1166–68 (D. Nev. 2004) (applying
equitable tolling where prisoner’s first suit was filed before he finished exhausting; citing his diligence
in pursuing his claim, his pro se status, and his probable lack of understanding of exhaustion law);
McCoy v. Goord, 255 F. Supp. 2d 233, 253 (S.D.N.Y. 2003) (“Courts may combine a dismissal without
prejudice with equitable tolling (when a judicial stay is not available) to extend the statute of
limitations ‘as a matter of fairness where a plaintiff has ... asserted his rights in the wrong forum.’”;
suggesting in dictum that time spent in federal court may also be tolled) (citation omitted).
467. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001).
468. See Cruz v. Jordan, 80 F. Supp. 2d 109, 124 (S.D.N.Y. 1999) (“There is simply no evidence
that Congress intended by section 1997e(a) to remove every aspect of the district court’s traditional
equity jurisdiction” to grant stays). But see McCoy v. Goord, 255 F. Supp. 2d 233, 254 (S.D.N.Y. 2003)
(holding that the PLRA removed courts’ authority to grant stays even to avoid limitations problems).
469. Compare Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004) (“Congress wanted to erect any
barrier it could to suits by prisoners in federal court, and a procedural default rule surely reduces
caseloads (even though it may be a blunt instrument for doing so.)”) (emphasis supplied), with Kane v.
Winn, 319 F. Supp. 2d 162, 220–21 (D. Mass. 2004) (“There is nothing in the PLRA’s legislative history
to suggest that Congress intended to keep meritorious claims out of court. ... Courts cannot lightly
presume that Congress has an intent hostile to our legal system’s firmly embedded commitments to
A fourth approach is for the plaintiff, after dismissal and subsequent exhaustion, to file a
motion for relief from the judgment of dismissal under Rule 60(b) of the Federal Rules of
Civil Procedure, rather than to file a new complaint. That Rule permits relief based, among
other things, upon “mistake, inadvertence, surprise, or excusable neglect,” an argument that
it “is no longer equitable that the judgment should have prospective application,” or “any
other reason justifying relief from the operation of the judgment.”470 This rule has been used
as a procedural vehicle in a variety of circumstances to permit litigants who timely filed and
diligently pursued their cases to revive suits that had become time-barred after dismissal.
These circumstances include cases in which the plaintiff was unfairly affected by a change or
ambiguity in the law471 as well as cases where the plaintiff made an error of law.472 The fact
that a case has not yet been heard on the merits weighs heavily in favor of granting such
relief.473 Although several courts have held that Rule 60(b) cannot be used to reinstate cases
after a dismissal for non-exhaustion, these courts have not addressed this limitations
issue.474
It also would seem logical that a prisoner who has filed an action that will likely be
dismissed for failure to exhaust or to exhaust properly should file a second action after non-
exhaustion is cured but before the limitations period has run. After doing so, the prisoner can
move to voluntarily dismiss the first action.475
providing access to the courts to vindicate valid human rights claims, and interpreting the PLRA as a
deliberate attempt to thwart such claims would obviously raise serious constitutional questions.”).
470. Fed. R. Civ. P. 60(b)(1),(5),(6).
471. See North Carolina Alliance for Transp. Reform, Inc. v. U.S. Dep’t of Transp., 104 F. Supp.
2d 599, 605–06 (M.D.N.C. 2000) (granting relief from judgment under Rule 60(b)(6) “catchall” provision
so a plaintiff could file a timely attorneys’ fees motion after being misled by local rules about the time
limit; in the alternative, equitably tolling the statutory limitations period); Allen v. Shalala, 835 F.
Supp. 462, 464–65 (N.D. Ill. 1993) (granting relief from judgment under Rule 60(b)(6) to permit timely
filing of fees motion rendered untimely by a change in the law); see also Bridgeway Corp. v. Citibank,
N.A., 132 F. Supp. 2d 297, 300–01, 303 (S.D.N.Y. 2001) (granting relief under Rule 60(b)(6) to reinstate
claims of litigant whose foreign judgment on the same subject matter was ruled unenforceable;
equitable tolling applied; stating “[e]quitable tolling permits a party to sue after the passing of the
statute of limitations if the party has acted with reasonable care and diligence”).
472. See Scott v. U.S. Envtl. Protection Agency, 185 F.R.D. 202, 204–06 (E.D. Pa. 1999) (relieving
plaintiff from voluntary dismissal based on erroneous belief that she could pursue her Federal Tort
Claims Act claim with other claims in state court; citing excusable neglect provision of rule),
reconsideration denied, No. 97-6529, 1999 U.S. Dist. LEXIS 8240, at *1 (E.D. Pa. June 2, 1999)
(unpublished); Balik v. Apfel, 37 F. Supp. 2d 1009, 1010 (S.D. Ohio 1999) (unpublished) (granting relief
under excusable neglect and “catchall” provisions to re-enter judgment so plaintiff with mental
impairment could appeal timely), aff’d, 210 F.3d 371 (6th Cir. 2000) (unpublished).
473. See Bridgeway Corp. v. Citibank, N.A., 132 F. Supp. 2d at 301; Scott v. U.S. Envtl.
Protection Agency, 185 F.R.D. at 206.
474. Strope v. McKune, No. 05-3344, 2006 U.S. App. LEXIS 2750, at *3–5 (10th Cir. Feb. 2,
2006) (unpublished) (declining to allow submission of additional evidence of exhaustion), cert. granted,
judgment vacated, 27 S. Ct. 1215 (Feb. 20, 2007); Baggett v. Smith, No. 1:05-cv-804, 2006 U.S. Dist
LEXIS 44859, at *1–3 (W.D.Mich. June 29, 2006) (unpublished); Okoro v. Krueger, No. 05-70269, 2006
WL 1494637, at *2 (E.D. Mich. May 30, 2006) (unpublished) (refusing to reinstate action after dismissal
for non-exhaustion once exhaustion was completed). Contra Siddiq v. Champion, No. 2:04-CV-89, 2006
U.S. Dist. LEXIS 18062, at *6–8 (W.D. Mich. Apr. 10, 2006) (unpublished) (allowing supplementation of
grievance documentation).
475. See Fed. R. Civ. P. 41(a) concerning voluntary dismissals. While it would be preferable from
the prisoner’s point of view to file an amended or supplemental complaint after exhaustion, most courts
have held that exhaustion must be completed before the initial complaint is filed, see Johnson v. Jones,
340 F.3d 624, 627–28 (8th Cir. 2003) (citing cases, overruling prior authority), and some have explicitly
held that an initial failure to exhaust cannot be cured by filing a new complaint in the same case after
exhaustion. See Cox v. Mayer, 332 F.3d 422, 428 (6th Cir. 2003).
One court has held that courts may consider claims to be exhausted even if the
exhaustion occurred outside the limitations period. 476 This holding can only apply if the
prisoner is challenging a continuing wrong that persists into the limitations period; if the
wrong itself happened and was completed outside the limitations period, the claim is time-
barred.
F. Mental or Emotional Injury
The PLRA provides:
No Federal civil action may be brought by a prisoner confined in a
jail, prison, or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of physical
injury.477
A similar requirement was added by the PLRA to the Federal Tort Claims Act (“FTCA”):
No person convicted of a felony who is incarcerated while awaiting
sentencing or while serving a sentence may bring a civil action
against the United States or an agency, officer, or employee of the
Government, for mental or emotional injury suffered while in custody
without a prior showing of physical injury.478
Note that this FTCA section applies only to convicted felons and not to detainees or
misdemeanants, unlike 42 U.S.C. § 1997e(e). So far, the courts have upheld the
constitutionality of the mental/emotional injury provision, at least as limited to damage
claims.479
The statute refers to actions “brought by a prisoner confined in a jail,” etc., and most
courts say it does not apply to cases filed by persons who sue after they are released from
prison.480 However, a few have disagreed.481 Courts are divided over whether the provision
continues to apply to a person who sues while in prison and then is released.482 If a case is
476. Harrison v. Stalder, No. 06-2825, 2006 WL 3524315, at *4 (E.D. La. Dec. 5, 2006) (holding
that the court could consider exhaustion completed more than a year earlier where the statute of
limitations was a year).
477. 42 U.S.C. § 1997e(e) (2006).
478. 28 U.S.C. § 1346(b)(2) (2006).
479. See Davis v. District of Columbia, 158 F.3d 1342, 1347 (D.C. Cir. 1998) (holding that giving
less damage remedies does not “directly and substantially” interfere with the constitutional right the
plaintiff seeks to enforce and survives rational basis equal protection scrutiny); Zehner v. Trigg, 133
F.3d 459, 461–63 (7th Cir. 1997) (holding that the existence of immunity doctrines shows that
restrictions on damage remedies are constitutional). But see Oliver v. Scott, 276 F.3d 736, 747 n.20 (5th
Cir. 2002) (noting “difficult” constitutional question whether Congress can eliminate small and punitive
damages for mental or emotional injury).
480. Harris v. Garner, 216 F.3d 970, 976–80 (11th Cir. 2000) (en banc); Kerr v. Puckett, 138 F.3d
321, 323 (7th Cir. 1998); Rose v. Saginaw County, 232 F.R.D. 267, 277 (E.D. Mich. Nov. 21, 2005)
(unpublished); Black v. Franklin County, Kentucky, No. 3:05-18-JMH, 2005 U.S. Dist. LEXIS 26362, at
*12–17 (E.D. Ky. Aug. 16, 2005) (unpublished); Dill v. Oslick, No. CIV A 97-6753, 1999 U.S. Dist.
LEXIS 10746, at *13–14 (E.D. Pa. July 19, 1999) (unpublished); Harris v. Zappan, No. CIV A 97-4957,
1999 U.S. Dist. LEXIS 8404, at *5-6 (E.D. Pa. May 28, 1999) (unpublished).
481. Cox v. Malone, 199 F. Supp. 2d 135, 140 (S.D.N.Y. 2002), aff’d, 56 F. App’x 43 (2d Cir. 2002)
(unpublished); Lipton v. County of Orange, NY, 315 F. Supp. 2d 434, 456–57 (S.D.N.Y. 2004). Several
recent decisions have rejected the reasoning of Cox v. Malone. See Kelsey v. County of Schoharie, No.
04-CV-299 (LEK/DRH), 2005 U.S. Dist. LEXIS 17057, at *1–10 (N.D.N.Y. Aug. 5, 2005) (unpublished);
Rose v. Saginaw County, 232 F. Supp. 2d 267, 277 (E.D. Mich. 2005). The appellate decision in Cox is
unpublished and non-precedential.
482. Compare Harris v. Garner, 216 F.3d 970, 973–76 (11th Cir. 2000) (en banc) (holding that
released plaintiffs remain prisoners for purposes of § 1997e(e) as long as they brought the lawsuit at
the time they were still imprisoned), with Prendergast v. Janecka, No. 00-CV-3099, 2001 U.S. Dist.
dismissed because of this statute, dismissal should be without prejudice for refiling once the
prisoner is no longer in jail.483
One circuit has held that the statute applies to a claim that arose before, and was
unrelated to, the plaintiff’s present incarceration.484 The same circuit has held that in a case
removed from state court, § 1997e(e) does not apply to claims based solely on state law–
implying, but not actually holding, that federal claims filed in state court are governed by the
statute.485 We think that is wrong. The statute says that “no Federal civil action may be
brought”486 for mental or emotional injury without physical injury. In determining whether
the statute is retroactive, courts have held that the phrase “may be brought” ties the
statute’s applicability to the time when the case is filed.487 If that is the case, a suit filed in
state court is not a “Federal civil action” when brought, so § 1997e(e) should not be applicable
to it under any circumstances–and certainly not when the case’s presence in federal court is
achieved by the adverse party. However, the statute has been applied to state law claims
filed in federal courts under their supplemental jurisdiction.488
1. What Does the Statute Do?
Section 1997e(e) prohibits “action[s] ... for mental or emotional injury,” but courts have
not interpreted it as a ban on entire actions. If you have one claim for mental or emotional
injury, and another claim for something else entirely, like loss or damage to property, the
second claim can go forward.489 Also, courts have interpreted the statute to prohibit only
awards of damages for mental or emotional injury, and most courts have held it is only a
prohibition on compensatory damages. That means you could still get nominal or punitive
LEXIS 9689, at *2–3 (E.D. Pa. July 10, 2001) (unpublished) (holding that the provision ceases to apply
when a post-release amended complaint is filed).
483. Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir. 2008), citing Harris v. Garner, 216 F.3d
970, 985 (11th Cir.2000) (en banc). As explained in the next section, dismissal of the entire action may
not be appropriate, since some courts hold that the statute restricts only compensatory damages.
484. Napier v. Preslicka, 314 F.3d 528, 532–34 (11th Cir. 2002), rehearing denied, 331 F.3d 1189
(11th Cir. 2003). This interpretation sharply divided both the panel and the court as a whole and
produced vigorous dissents. Napier v. Preslicka, 314 F.3d 528, 534–37 (11th Cir. 2002) (Propst, J.,
dissenting); 331 F.3d 1189, 1190–96 (11th Cir. 2003) (Barkett, J, dissenting).
485. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1315 (11th Cir. 2002).
486. 42 U.S.C. § 1997e(e) (emphasis supplied) (2006).
487. See Craig v. Eberly, 164 F.3d 490, 494-95 (10th Cir. 1998); Swan v. Banks, 160 F.3d 1258,
1259 (9th Cir. 1998).
488. See Hines v. Oklahoma, No. CIV-07-197-R, 2007 WL 3046458, at *6 (W.D. Okla. Oct. 17,
489. Jones v. Bock, 549 U.S. 199, 222, 127 S. Ct. 910, 925, 166 L. Ed. 2d 798, 814 (2007);
Robinson v. Page, 170 F.3d 747, 749 (7th Cir. 1999).
damages, or an injunction, for mental or emotional injury.490 (A minority of courts has said
you cannot get punitive damages for such injury either.)491
The applicability and effect of the statute is typically addressed on motions to dismiss
and for summary judgment. One district court has refused to decide it on motion, holding,
“The amount of damages Plaintiff may be entitled to recover is a determination reserved for
the trier of fact, not the Court on a summary judgment motion.”492 The first circuit-level
decision to address the question explicitly held that the provision creates an affirmative
defense rather than a jurisdictional requirement, by analogy with the administrative
exhaustion requirement of the PLRA.493 If the statute creates an affirmative defense, you do
not have to plead the existence of a physical injury in your complaint, but the district court is
free to dismiss if the complaint on its face shows that the plaintiff is a prisoner seeking
damages for mental or emotional injury without physical injury. 494 However, again by
analogy to the exhaustion requirement, courts should not be able to dismiss where the
plaintiff simply fails to plead a physical injury without otherwise characterizing his injury.
2. What Is Mental or Emotional Injury?
The courts have not completely worked out the meaning of “mental or emotional injury.”
Some courts have interpreted it narrowly; one court said, for example, “The term ‘mental or
emotional injury’ has a well understood meaning as referring to such things as stress, fear,
and depression, and other psychological impacts.”495 Courts have also recognized a variety of
490. Hutchins v. McDaniels, 512 F.3d 193, 196–98 (5th Cir. 2007); Thompson v. Carter, 284 F.3d
411, 418 (2d Cir. 2002) (citing cases); Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir. 2004); Calhoun v.
DeTella, 319 F.3d 936, 941 (7th Cir. 2003); Mitchell v. Horn, 318 F.3d 523, 533 (3d Cir. 2003); Searles v.
Van Bebber, 251 F.3d 869, 879–81 (10th Cir. 2001); Allah v. Al-Hafeez, 226 F.3d 247, 252 (3d Cir.
2000); see Calhoun v. DeTella, 319 F.3d at 942 (noting that nominal damages “are awarded to vindicate
rights, not to compensate for resulting injuries,” and that punitive damages “are designed to punish
and deter wrongdoers for deprivations of constitutional rights, they are not compensation for emotional
and mental injury”).
One circuit has held the statute would be an unconstitutional limitation on judicial remedies for
constitutional violations if it did not allow for injunctive relief and contempt sanctions. Zehner v. Trigg,
133 F.3d 459, 461–63 (7th Cir. 1997). Other courts have held injunctive and declaratory relief remain
available without addressing the constitutional question so explicitly. See Harris v. Garner, 190 F.3d
1279, 1288–89 (11th Cir. 1999), reinstated in pertinent part, 216 F.3d 970, 972 (11th Cir. 2000) (en
banc); Davis v. District of Columbia, 158 F.3d 1342, 1347 (D.C. Cir. 1998).
491. See Smith v. Allen, 502 F.3d 1255, 1271–72 (11th Cir. 2007) (stating that punitive damages
are precluded by PLRA because the plaintiff does not bring up physical harm); Davis v. District of
Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998) (arguing that “much if not all of Congress's evident
intent would be thwarted if prisoners could surmount § 1997e(e) simply by adding a claim for punitive
damages and an assertion that the defendant acted maliciously,” though no physical injury occurred);
Page v. Kirby, 314 F. Supp. 2d 619, 622 (N.D. W.Va. 2004) (finding that when the plaintiff calls for
punitive damages for emotional or mental injuries only, such damages are barred by § 1997e(e)).
492. Thomas v. Thomas, No. CV506-072, 2007 WL 2177066, at *6 (S.D. Ga. July 25, 2007)
(unpublished); accord Johnson v. Raemisch, 557 F. Supp. 2d 964, 975 (W.D. Wis. May 23, 2008)
(unpublished) (stating that question of damages for censorship of newspaper was for trial, questioning
whether substantial damages could be shown); Thompson v. Caruso, No. 2:04-CV-204, 2008 U.S. Dist.
LEXIS 14725, at *3–5 (W.D. Mich. Feb. 27, 2008) (unpublished) (plaintiff in 1st Amendment case would
be allowed to present proof and argue for recovery of nominal, compensatory, and punitive damages for
all injuries except mental and emotional ones).
493. Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir. 2008).
494. Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir. 2008).
495. Amaker v. Haponik, No. 98 Civ. 2663 (JGK), 1999 U.S. Dist. LEXIS 1568, at *22–23
(S.D.N.Y. Feb. 17, 1999) (unpublished) (also noting that requiring physical injury in all cases would
make the term “mental or emotional injury” superfluous); Robinson v. Page, 170 F.3d 747, 748 (7th Cir.
1999) (restricting the domain of the statute to suits in which mental or emotional injury is claimed.)
constitutional injuries that are neither physical nor mental or emotional, and therefore are
not affected by the statute.496
Other courts, however, seem to assume that any violation of constitutional rights that
does not result in physical injury or loss or damage to property amounts only to mental or
emotional injury. 497 For example, in Allah v. Al-Hafeez, 498 the prisoner complained that
prison policies prevented him from attending services of his religion, and the court said he
couldn’t pursue compensatory damages because the injury for which he sought compensation
was a mental or emotional one.499 Is not being able to go to church a mental or emotional
injury? It seems to us that freedom of religion is an issue of liberty, not just a matter of
mental or emotional injury. Many courts have similarly assumed that other sorts of
deprivations of liberty inflict only mental or emotional injury, including claims of unlawful
arrest and confinement,500 racial discrimination,501 and many others.502
496. Courts have acknowledged that § 1997e(e) does not bar compensatory damages for loss of
property. Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002); Robinson v. Page, 170 F.3d 747, 748
(7th Cir. 1999). Other such interests that at least some courts have acknowledged are neither physical
nor emotional in nature include 1st Amendment rights, and a claim of exclusion from an alcohol
treatment program in violation of the disability statutes, see Parker v. Mich. Dep’t of Corr., No.
4:01CV11, 2001 WL 1736637, at *2 (W.D. Mich. Nov. 9, 2001) (unpublished); 4th Amendment bodily
privacy claim and 8th Amendment conditions of confinement and medical care claims, see Waters v.
Andrews, No. 97-CV-407, 2000 WL 1611126, at *4 (W.D.N.Y. Oct. 16, 2000) (unpublished); and freedom
from racial discrimination, see Mason v. Schriro, 45 F. Supp. 2d 709, 716–20 (W.D. Mo. 1999). See also
Lewis v. Sheahan, 35 F. Supp. 2d 633, 637 n.3 (N.D. Ill. 1999) (acknowledging right to access the
courts); Friedland v. Fauver, 6 F. Supp. 2d 292, 310 (D.N.J. 1998) (acknowledging plaintiff’s claim of
right to access the courts is not barred by 42 U.S.C. § 1997e(e)).
497. Worse, there is a persistent tendency in some courts simply to declare, for example: “[A] a
prisoner may not maintain an action for monetary damages against state officials based on an alleged
constitutional violation absent some showing of a physical injury.” Charles v. Nance, 186 F. App’x 494,
495 (5th Cir. 2006) (unpublished); accord, e.g., Nelis v. Kingston, No. 06-C-1220, 2007 U.S. Dist. LEXIS
86036, at *18 (E.D. Wis. Nov. 20, 2007) (unpublished) (“under the Prison Litigation Reform Act (PLRA),
recovery in prisoner lawsuits is limited where, as here, there is no showing of physical injury”); Wimble
v. Cotton, No. 1:05-CV-156, 2007 WL 756597, at *3 (D.Vt. Mar. 8, 2007) (unpublished) (“It is well
established that a prisoner may not collect compensatory damages for a constitutional violation without
showing that he has suffered a physical injury.”); Bownes v. MDOC Employees, No. 4:06CV194-P-D,
2006 U.S. Dist. LEXIS 89911, at *3 (N.D. Miss. Dec. 12, 2006) (unpublished) (stating “the Plaintiff has
not alleged the requisite physical injury that must accompany any § 1983 claim for damages”).
498. Allah v. al-Hafeez, 226 F.3d 247, 247–250 (3d Cir. 2000).
499. Allah v. al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000) (“Allah seeks substantial damages for the harm he
suffered as a result of defendants' alleged violation of his 1st Amendment right to free exercise of religion. As we read
his complaint, the only actual injury that could form the basis for the award he seeks would be mental and/or emotional
injury.”) At this point, there is a very long list of decisions holding deprivations of religious rights amount only to
mental or emotional injury. See, e.g., Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 599, 605–06 (5th Cir. 2008)
(applying § 1997e(e) to claims of restricted religious exercise); Sisney v. Reisch, 533 F. Supp. 2d 952, 973–74 (D.S.D.
2008) (applying § 1997e(e) to various religious deprivations); Gill v. Hoadley, No. 9:01-CV-323 (FJS/DEP), 2007 U.S.
Dist. LEXIS 33122, at *10–12 (N.D.N.Y. May 4, 2007) (unpublished) (applying § 1997e(e) to deprivation of religious
exercise).
500. Brown v. Sudduth, 255 F. App’x 803, 808 (5th Cir. 2007) (applying § 1997e(e) to claim of
false arrest; plaintiff “sought compensatory damages for the sole alleged injury of liberty deprivation.
Having not alleged a physical injury, the district court correctly concluded that Brown’s claim for
compensatory damages must fail”); Scott v. Denzer, No. 06-5202, 2008 WL 694717, at *8 (W.D. Ark.
Mar. 12, 2008) (claim of wrongful detention before delayed initial court appearance); Brumett v. Santa
Rosa County, No. 3:07cv448/LAC/EMT, 2007 U.S. Dist. LEXIS 89061, at *4–6 (N.D. Fla. Dec. 4, 2007)
(unpublished) (claim of six months’ illegal detention was not sufficient for relief because it failed to
demonstrate a physical injury); Watts v. Smith, No. 5:07cv128/MCR/EMT, 2007 U.S. Dist. LEXIS
57016, at *10–14 (N.D. Fla. Aug. 6, 2007) (unpublished) (false arrest), subsequent determination, No.
5:07cv128/MCR/EMT, 2007 U.S. Dist. LEXIS 63262, at *7–9 (N.D. Fla. Aug 28, 2007); Campbell v.
Johnson, No. 3:06cv365/RV/EMT, 2006 U.S. Dist. LEXIS 72146, at *2 (N.D. Fla. Oct. 3, 2006) (refusal
to accept paperwork and collateral for release on bond).
Some courts have also held that complaints of exposure to unconstitutional prison living
conditions—that is, living conditions that deny the “minimal civilized measure of life’s
necessities”503—are claims of mental or emotional injury barred by Section 1997e(e) unless
there are also allegations of physical injury.504 These holdings seem inconsistent with the
Supreme Court’s statements that it is the objective seriousness of the conditions, and not
their effect on the prisoner, that determines whether they are lawful or not. 505 It is
questionable whether a claim alleging conditions that are objectively intolerable is an “action
for mental or emotional injury,” even if the conditions also (not surprisingly) lead to such an
injury. 506
501. Jones v. Pancake, No. 3:06CV-P188-H, 2007 U.S. Dist. LEXIS 84309, at *6–8 (W.D. Ky.
Aug. 17, 2007) (unpublished) (allowing plaintiff to amend a racial discrimination claim to include relief
for nominal and punitive damages).
502. Jordan v. Corr. Corp. of Am., No. 4:08-CV-05 (CDL), 2008 U.S. Dist. LEXIS 61846, at *3
(M.D. Ga. Mar. 11, 2008) (unpublished) (confiscation of mail); Johnson v. Georgia, Nos. 6:06-CV-49
(WLS), 7:07-cv-119(WLS), 2007 U.S. Dist. LEXIS 66312, at *2–3 (M.D. Ga. Sept. 7, 2007) (unpublished)
(violation of attorney-client privilege); Charest v. Montgomery, No. 04-00687-BH-M, 2007 U.S. Dist.
LEXIS 51788, at *6 n.6 (S.D. Ala. July 17, 2007) (unpublished) (strip search in presence of an opposite
sex prisoner); Robinson v. Dep’t of Corr., 2007 U.S. Dist. LEXIS 50817, at *10 (N.D. Fla. July 13, 2007)
(unpublished) (stopping of mail and delaying filing of lawsuits as well as deprivation of religious
materials), report and recommendation adopted, 2007 U.S. Dist. LEXIS 75961 (N.D. Fla. Oct. 12, 2007);
Ivy v. New Albany City Police Dep’t, No. 3:06CV112-P-A, 2006 U.S. Dist. LEXIS 79882 (N.D. Miss. Oct.
31, 2006) (unpublished) (being held naked in an isolation cell); Caudell v. Rose, Nos. 7:04CV00557,
7:04CV00558, 2005 U.S. Dist. LEXIS 10251, at *8 (W.D. Va. May 27, 2005) (unpublished) (seizure of
legal papers), report and recommendation adopted, 378 F. Supp. 2d 725 (W.D. Va. 2005); Ashann Ra v.
Virginia, 112 F. Supp. 2d 559, 566 (E.D. Va. 2000) (holding that a complaint that a prisoner was
routinely viewed in the nude by opposite-sex staff stated a constitutional claim sufficiently clearly
established to defeat qualified immunity, but was not actionable because of the mental/emotional injury
provision).
503. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59, 68 (1981).
504. See, e.g., Harden-Bey v. Rutter, 524 F.3d 789, 796 (6th Cir. 2008) (barring damages for
three years in segregation); Harper v. Showers, 174 F.3d 716, 719–20 (5th Cir. 1999) (barring damage
claims for placement in filthy cells formerly occupied by psychiatric patients and for exposure to
deranged behavior of those patients); Stainbrook v. Houston, No. 4:07CV3196, 2007 U.S. Dist. LEXIS
81195, at *3 (D. Neb. Nov. 1, 2007) (unpublished) (deaf prisoner’s complaint of lack of visual alarm
system and assistive communications devices); Meyers v. Arpaio, No. CV 04-2087-PHX-JAT (HCE),
2007 U.S. Dist. LEXIS 32967, at *5 (D. Ariz. May 3, 2007) (unpublished) (crowding and resulting
violent conditions, where plaintiff was not himself injured); Lloyd v. Briley, No. 05 C 1499, 2007 U.S.
Dist. LEXIS 21247, at *14 (N.D. Ill. Mar. 23, 2007) (unpublished) (confinement in strip cell with no
light and no running water); Gibson v. Ramsey, No. 99 C 5315, 2004 U.S. Dist. LEXIS 1128 (N.D. Ill.
Jan. 29, 2004) (unpublished) (holding allegations of crowding, noise, bad water and lack of ventilation,
unsupported by evidence of physical injury, not to meet the requirements of the mental/emotional
injury provision); see Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (holding that an allegation of
placement in segregation without due process might be saved from the mental/emotional injury bar by
allegations of inadequate medical care in the segregation unit).
505. Wilson v. Seiter, 501 U.S. 294, 303, 111 S. Ct. 2321, 2326, 115 L. Ed. 2d 271, 282 (1991); see
Helling v. McKinney, 509 U.S. 25, 35–37, 113 S. Ct. 2475, 2481, 125 L. Ed. 2d 22, 33–34 (1993)
(instructing as to objective assessment of environmental tobacco smoke exposure); see also Fields v.
Ruiz, No. 1:03-CV-6364-OWW DLB-P, 2007 U.S. Dist. LEXIS 45981, at *20 (E.D. Cal. June 25, 2007)
(unpublished) (for 8th Amendment claims, “the issue is the nature of the deprivation, not the injury”),
report and recommendation adopted, 2007 U.S. Dist. LEXIS 66671 (E.D. Cal. Sept. 10, 2007);
Armstrong v. Drahos, No. 01 C 2697, 2002 U.S. Dist. LEXIS 1838, at *6 (N.D. Ill. Feb. 6, 2002)
(unpublished) (“Because the Eighth Amendment is understood to protect not only the individual, but
the standards of society, the Eighth Amendment can be violated even when no pain is inflicted, if the
punishment offends basic standards of human dignity.”).
506. A few decisions make this sort of distinction. In Nelson v. Cal. Dep’t of Corr., No. C 02-5476
SI (pr), 2004 U.S. Dist. LEXIS 4521, at *21 (N.D. Cal. Mar. 18, 2004) (unpublished), aff’d, 131 F. App’x
We think the right approach is that of the courts who say that “the violation of a
constitutional right is an independent injury that is immediately cognizable and outside the
purview of Section 1997e(e),”507 completely separate from any mental or emotional injury.
Some courts have said the same thing—that “damages resulting from constitutional
violations” are “separate categories of damages” from physical or mental injuries—in cases
about unconstitutional conditions of confinement or restrictive confinement without due
process.508
549 (9th Cir. 2005), the plaintiff complained of being provided only boxer shorts and a T-shirt for
outdoor exercise in cold weather. The court said: “Even if Nelson’s complaint does include a request for
damages for mental and emotional injury, it also includes a claim for an Eighth Amendment violation
as to which the § 1997e(e) requirement does not apply. In other words, damages would be available for
a violation of his Eighth Amendment rights without regard to his ability to show physical injury.” See
Pippin v. Frank, No. 04-C-582-C, 2005 U.S. Dist. LEXIS 5576, at *4 (W.D. Wis. Mar. 30, 2005)
(unpublished) (stating that § 1997e(e) precludes claims for mental or emotional injury but not a claim
that plaintiff was “falsely confined” in segregation as a result of constitutional violations); see also
Aldridge v. 4 John Does, No. 5:00-CV-17-J, 2005 U.S. Dist. LEXIS 22113, at *10 (W.D. Ky. Sept. 30,
2005) (unpublished) (stating generally that “damages resulting from constitutional violations” are
“separate categories of damages” from physical or mental injuries in case where plaintiff alleged
medical deprivations, protracted segregation, and denial of access to courts).
507. Shaheed-Muhammad v. Dipaolo, 393 F. Supp. 2d 80, 108 (D. Mass. 2005); accord Rowe v.
Shake, 196 F.3d 778, 781–82 (7th Cir. 1999) (“A prisoner is entitled to judicial relief for a violation of
his First Amendment rights aside from any physical, mental, or emotional injury he may have
sustained.”); Carr v. Whittenburg, 462 F. Supp. 2d 925, 928 (S.D. Ill. 2006) (stating that specific 1st
Amendment violations may be compensable through “general damages” or “presumed damages” even
without proof of injury, though damages cannot be recovered based on the abstract value or importance
of the right); Lipton v. County of Orange, NY, 315 F. Supp. 2d 434, 457 (S.D.N.Y. 2004) (“Although §
1997e(e) applies to plaintiff's First Amendment retaliation claim, a First Amendment deprivation
presents a cognizable injury standing alone and the PLRA ‘does not bar a separate award of damages to
compensate the plaintiff for the 1st Amendment violation in and of itself.’”) (quoting Ford v. McGinnis,
198 F. Supp. 2d 363, 366 (S.D.N.Y. 2001)); Cancel v. Mazzuca, 205 F. Supp. 2d 128, 138 (S.D.N.Y. 2002)
(noting that plaintiff A brought this action for alleged violations of his First Amendment rights, rather
than ‘for mental or emotional injury’”).
508. Aldridge v. 4 John Does, No. 5:00-CV-17-J, 2005 U.S. Dist. LEXIS 22113, at *10 (W.D. Ky.
Sept. 30, 2005) (ruling in case involving medical deprivations, protracted segregation, and denial of
access to courts); accord Mitchell v. Horn, 318 F.3d 523, 534 (3d Cir. 2003) (stating that requests for
damages for loss of “status, custody level and any chance at commutation” resulting from a disciplinary
hearing were “unrelated to mental injury” and “not affected by § 1997e(e)'s requirements.”); Benge v.
Scalzo, No. CV 04-1687-PHX-DGC (CRP), 2008 U.S. Dist. LEXIS 40782, at *28 (D. Ariz. May 21, 2008)
(allegation of psychiatric neglect were not subject to § 1997e(e)); Wittkamper v. Arpaio, No. CV 05-
2073-PHX-MHM-MHB, 2008 U.S. Dist. LEXIS 37475, at *5 (D. Ariz. May 6, 2008) (allegations of
unsanitary conditions were not subject to § 1997e(e)); Davis v. Arpaio, No. CV 07-0424-PHX-DGC
(MEA), 2008 U.S. Dist. LEXIS 35288, at *6–7 (D. Ariz. Apr. 23, 2008) (holding allegations of denial of
rights with respect to clothing, hygiene, legal calls, recreation, library access, medical problems, sleep
deprivation, etc., were not subject to § 1997e(e)); Cockcroft v. Kirkland, No. C 05-1080 MHP (pr), 2008
U.S. Dist. LEXIS 29465, at *19 (N.D. Cal. Mar. 10, 2008) (“the violation of a constitutional right has a
compensatory value regardless of what the physical/emotional injuries are;” plaintiff alleged exposure
to waste from back-flushing toilet); Fields v. Ruiz, No. 1:03-CV-6364-OWW DLB-P, 2007 U.S. Dist.
LEXIS 45981, at *20 (E.D. Cal. June 25, 2007) (holding prisoner alleging he was confined in a cell with
an overflowing toilet for 28 days was not “seeking compensatory damages for mental or emotional
injuries;” for 8th Amendment claims, “the issue is the nature of the deprivation, not the injury”), report
and recommendation adopted, 2007 U.S. Dist. LEXIS 66671 (E.D. Cal. Sept. 10, 2007); Pippin v. Frank,
No. 04-C-582-C, 2005 U.S. Dist. LEXIS 5576, at *4 (W.D. Wis. Mar. 30, 2005) (stating that § 1997e(e)
precludes claims for mental or emotional injury but not a claim that plaintiff was “falsely confined” in
segregation as a result of constitutional violations); Nelson v. Cal. Dep’t of Corr., No. C 02-5476 SI (pr),
2004 U.S. Dist. LEXIS 4521, at *21 (N.D. Cal. Mar. 18, 2004), aff’d, 131 F. App’x 549 (9th Cir. 2005)
(stating, in case involving inadequate clothing for outdoor exercise in cold weather: “Even if Nelson's
complaint does include a request for damages for mental and emotional injury, it also includes a claim
That approach is consistent with tort law, which is supposed to be the basis of the law of
damages under 42 U.S.C. § 1983,509 but which courts seem mostly to have ignored in PLRA
cases. Historically, tort law divided damages into six categories: injury to property, physical
injuries, mental injuries, injuries to family relations, injuries to personal liberty, and injuries
to reputation.510 Under that categorization, deprivation of religious freedom or placement in
segregation without due process would injure personal liberty. They might inflict mental or
emotional injury too, but that injury would be separate and in addition to the deprivation of
liberty.
A good example of the proper distinction between mental or emotional injury and
deprivation of personal liberty is the Second Circuit decision in Kerman v. City of New
York, 511 in which the plaintiff, who had been involuntarily placed in a mental hospital,
alleged both that he had been seized in violation of the Fourth Amendment and that he had
been subjected to the tort of false imprisonment. The court treated mental and emotional
injury as a completely separate category of injury from loss of liberty, stating: “The damages
recoverable for loss of liberty for the period spent in a wrongful confinement are separable
from damages recoverable for such injuries as physical harm, embarrassment, or emotional
suffering; even absent such other injuries, an award of several thousand dollars may be
appropriate simply for several hours’ loss of liberty.”512 This approach is illustrated in a pre-
PLRA prison case in which the plaintiff had been unconstitutionally placed in segregation as
a form of punishment, and claimed “distress flowing from the fact of punitive segregation.”
However, she didn’t submit any evidence of distress. The court therefore awarded only one
dollar for distress, but it separately awarded damages of fifty dollars a day for the
confinement itself.513
You may not be able to get a court to look at your case this way. Some courts have
rejected this approach outright.514 Others, however, do not seem to have recognized the issue.
If you are bringing a case about something that did not cause you physical injury, you should
make it very clear that you are seeking damages for something other than mental or
emotional injury. For example, if you are suing for being placed in segregation without due
process for a long period, and you were not physically injured as a result, do not write in your
complaint that “plaintiff seeks damages for mental anguish and psychological torture.” You
are better off with something like this:
Plaintiff seeks compensatory damages for the loss of privileges and
quality of life in his prison living conditions, and loss of the limited
for an Eighth Amendment violation as to which the § 1997e(e) requirement does not apply. In other
words, damages would be available for a violation of his Eighth Amendment rights without regard to
his ability to show physical injury”).
509. Smith v. Wade, 461 U.S. 30, 34, 103 S. Ct. 1625, 1629, 75 L. Ed. 2d 632, 638 (1983); Carey v.
Piphus, 435 U.S. 247, 257–58, 98 S. Ct. 1042, 1049, 55 L. Ed. 2d 252, 260–61 (1978).
510. Arthur G. Sedgwick & Joseph H. Beale, Jr., 1 Sedgwick’s Treatise on Damages 50–51 (8th
ed. 1891).
511. Kerman v. City of New York, 374 F.3d 93 (2d Cir. 2004).
512. Kerman v. City of New York, 374 F.3d 93, 125 (2d Cir. 2004).
513. Soto v. Lord, 693 F. Supp. 8, 22–23 (S.D.N.Y. 1988).
514. Pearson v. Welborn, 471 F.3d 732, 744–45 (7th Cir. 2006); Royal v. Kautzky, 375 F.3d 720,
724 (8th Cir. 2004) (declining to award a prisoner who spent 60 days in segregation “some indescribable
and indefinite damage allegedly arising from a violation of his constitutional rights”). The Seventh
Circuit had held before the PLRA was enacted that “[t]he loss of amenities within prison is a
recoverable item of damages,” which can be proven by testimony concerning differences in physical
conditions, daily routine, etc.; Ustrak v. Fairman, 781 F.2d 573, 578 (7th Cir. 1986). That seemed to
suggest being subjected to restrictive or unlawful prison conditions is not merely a mental or emotional
injury, and is consistent with the argument we are suggesting. However, when this point was raised
after the PLRA, the same court said that Ustrak did not support that argument. Pearson v. Welborn,
471 F.3d 732, 744–45 (7th Cir. 2006).
liberty enjoyed by prisoners, resulting from his segregated
confinement, in that he was confined for 23 hours a day in a cell
roughly 60 feet square, and deprived of most of his personal property
as well as the ability to work, attend educational and vocational
programs, watch television, associate with other prisoners, attend
outdoor recreation in a congregate setting with the ability to engage
in sports and other congregate recreational activities, attend meals
with other prisoners, attend religious services [and whatever other
privileges you may have lost].
Plaintiff does not seek compensatory damages for mental or

emotional distress.
Plaintiff seeks punitive damages against defendant(s) [state names]

for their willful and malicious conduct in confining the plaintiff to
segregation after a hearing in which he was denied basic rights to due
process of law.
If you did suffer some physical injury from being in segregation, you should still protect
yourself (in case the court does not find your injury serious enough to satisfy the statute)
with a damages demand similar to the above that distinguishes mental and emotional injury
from other injury. After stating you sought damages for your physical injury, you would use
the same kind of damages demand as above. Just substitute “Plaintiff in addition seeks
compensatory damages for the mental or emotional distress resulting from his prolonged
confinement in segregation without due process of law” for the second paragraph in the
above example.
You would take a similar approach in demanding damages for any other kind of
constitutional violation that didn’t inflict physical injury, like deprivations of religious
freedom, freedom of speech, placement in filthy and disgusting physical conditions, etc.
There will still be some violations—for example, the denial of psychiatric treatment not
resulting in suicide or self-mutilation515—that you will not be able to describe as deprivations
of personal liberty or of “the minimal civilized measure of life’s necessities,”516 because they
really are about mental or emotional injury.
There is no guarantee of success if you take the above advice. Additionally, even apart
from the PLRA, intangible constitutional rights are very hard to place a dollar value on
(meaning that courts will often give up and just award nominal damages 517 ), and the
Supreme Court has cautioned that damage awards cannot be based on the “abstract
‘importance’ of a constitutional right.”518 However, courts have made compensatory awards
for violations of First Amendment and other intangible rights based on their particular
circumstances and without reference to mental or emotional injury,519 and you should call
515. See, e.g., Hunnicutt v. Armstrong, 305 F. Supp. 2d 175, 186 (D. Conn. 2004), affirmed in
part, vacated in part, remanded by, Hunnicutt v. Armstrong 152 F. App’x 34 (2d Cir. 2005) (finding the
district court had improperly dismissed plaintiff’s right to privacy claims due to plaintiff’s failure to
specifically mention the 9th Amendment in his complaint).
516. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59 (1981).
517. Williams v. Kaufman County, 352 F.3d 994, 1012 (5th Cir. 2003) (noting frequency of
nominal awards under § 1983); see also Carlo v. City of Chino, 105 F.3d 493 (9th Cir. 1997) (noting
nominal award for denial of phone access to overnight detainee); Sockwell v. Phelps, 20 F.3d 187 (5th
Cir. 1994) (noting nominal award for racial segregation).
518. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 310, 106 S. Ct. 2537, 2545, 91 L. Ed.
2d 249, 261 (1986).
519. See, e.g., Sallier v. Brooks, 343 F.3d 868, 880 (6th Cir. 2003) (affirming jury award of $750
in compensatory damages for each instance of unlawful opening of legal mail); Goff v. Burton, 91 F.3d
1188, 1192 (8th Cir. 1996), cert. denied, 512 U.S. 1209, 114 S. Ct. 2684, 129 L. Ed. 2d 817 (2004)
this fact to the court’s attention if prison officials argue that you can only recover nominal
damages.
3. What is Physical Injury?
Prisoners must show physical injury in order to recover damages for mental or emotional
injury, but courts have not fully explained what it takes to satisfy that requirement. They
have said that an injury “must be more than de minimis, but need not be significant.”520
However, courts disagree over where the de minimis line is drawn. One appeals court has
said that injury need not be observable or diagnosable, or require treatment by a medical
care professional, to meet the § 1997e(e) standard.521 But a much-cited district court decision
holds that, under § 1997e(e):
A physical injury is an observable or diagnosable medical condition
requiring treatment by a medical care professional. It is not a sore
muscle, an aching back, a scratch, an abrasion, a bruise, etc., which
lasts even up to two or three weeks. … [It is] more than the types and
kinds of bruises and abrasions about which the Plaintiff complains.
Injuries treatable at home and with over-the-counter drugs, heating
pads, rest, etc., do not fall within the parameters of 1997e(e).522
Not surprisingly, several courts have dismissed identifiable traumatic injuries as de
minimis.523 Others have held relatively superficial traumatic injuries are actionable under §
1997e(e).524
(affirming $2250 award at $10 a day for lost privileges resulting from a retaliatory transfer to a higher
security prison); Lowrance v. Coughlin, 862 F. Supp. 1090, 1120 (S.D.N.Y. 1994) (awarding significant
damages for repeated retaliatory prison transfers, segregation, cell searches); Vanscoy v. Hicks, 691 F.
Supp. 1336 (M.D. Ala. 1988) (awarding $50 for pretextual exclusion from religious service, without
evidence of mental anguish or suffering); see also Carr v. Whittenburg, No. 3:01-cv-625-DGW, 2006 U.S.
Dist. LEXIS 24565, at *7–8 (S.D. Ill. Apr. 28, 2006) (unpublished) (stating that specific 1st Amendment
violations may be compensable through “general damages” or “presumed damages” even without proof
of injury, though damages cannot be recovered based on the abstract value or importance of the right).
520. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
521. Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002); accord Mansoori v. Shaw, No. 99 C 6155,
2002 U.S. Dist. LEXIS 11670, at *11 (N.D. Ill. June 28, 2002) (stating that injury need not be shown by
objective evidence). Another court has rejected an effort to read “long-term” into the physical injury
requirement. Glenn v. Copeland, No. 5:02cv158-RS/WCS, 2006 U.S. Dist. LEXIS 38466, at *11 (N.D.
Fla. June 9, 2006) (unpublished) (“Presumably ... any physical injury, even if short-term, is sufficient”
to meet the statutory threshold). But see Brown v. Simmons, No. V-03-122, 2007 U.S. Dist. LEXIS
13290, at *16 (S.D. Tex. Feb. 23, 2007) (holding burns on face that “healed well” and “had no lasting
effect” did not satisfy the statute).
522. Luong v. Hatt, 979 F. Supp. 481, 485–86 (N.D. Tex. 1997). But see Pierce v. County of
Orange, 526 F.3d 1190, 1224 (9th Cir. 2008) (“Our court has rejected as overly restrictive the standard
for de minimis injuries espoused by the Northern District of Texas in Luong v. Hatt ... .”; noting that
bedsores and bladder infections resulting from inadequate accommodation of paraplegic’s disabilities
met Luong standard).
523. See, e.g., Griggs v. Horton, No. 7:05-CV-220-R, 2008 U.S. Dist. LEXIS 24888, at *2–3 (N.D.
Tex. Mar. 28, 2008) (unpublished) (wrist abrasion, tenderness to rib cage were de minimis); Diggs v.
Emfinger,
No. 07-1807 SECTION P, 2008 U.S. Dist. LEXIS 19140, at *9 (W.D. La. Jan. 10, 2008) (unpublished)
(allegation of an “open wound” causing “severe pain” was de minimis); Lyons v. Leonhardt, No. 3:05-
CV-400 JCM (VPC), 2007 U.S. Dist. LEXIS 72919, at *1–3 (D. Nev. Sept. 27, 2007) (unpublished)
(holding loss of circulation in hands, brief pain in shoulder, and three-day pain in pelvis from use of
force was de minimis); Green v. McBride, No. 8:06-0967-CMC-B, 2007 WL 295592, at *4 (D.S.C. Jan.
29, 2007) (unpublished) (holding plaintiff who alleged he was punched in the face and thrown on his
face on the floor and sustained a bruised, swollen, and scraped cheek had de minimis injuries).
Several courts have held that the physical manifestations of emotional distress are not
physical injuries for purposes of this provision, 525 which seems contrary to the statutory
language, as the language implies that mental or emotional injury with physical injury
should be actionable. Decisions are split on the question of whether the risk of future injury
meets the Section 1997e(e) standard,526 and also over how closely physical injury must be
connected to mental or emotional injury for the latter to be actionable.527
524. See, e.g., Jackson v. Armstrong, No. 1:05cv798, 2008 WL 3876604, at *5–6 (S.D. Ohio Aug.
20, 2008) (unpublished) (edema of forearm and pain from repeated baton blows were “palpable physical
injury” satisfying § 1997e(e)); Sanders v. Day, No. 5:06-CV-280(HL), 2008 WL 748170, at *2 (M.D. Ga.
Mar. 19, 2008) (unpublished) (holding allegation of kicking and using pepper spray on a handcuffed
suspect was not de minimis); Lathon v. Washbourne, No. 06-5133, 2007 WL 2710429, at *8 (W.D. Ark.
Sept. 13, 2007) (unpublished) (holding a bleeding leg, swollen testicles, and injuries to back and neck
satisfied the physical injury requirement); Edwards v. Miller, No. 06-cv-00933-MSK-MEH, 2007 U.S.
Dist. LEXIS 22639, at *4 (D. Colo. Mar. 28, 2007) (unpublished) (allegation of being punched in the face
and bitten on the arm over a 10-minute period, causing damage to forehead and facial injuries, and
leaving a lasting effect in the form of severe headaches, is more than de minimis); Cotney v. Bowers,
No. 2:03-cv-1181-WKW (WO), 2006 U.S. Dist. LEXIS 69523, at *25 (M.D. Ala. Sept. 26, 2006)
(unpublished) (holding bruised ribs that took weeks to heal could be found not de minimis).
525. Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998); Darvie v. Countryman,
No. 9:08-CV-0715 (GLS/GHL), 2008 U.S. Dist. LEXIS 52797, at *23 (N.D.N.Y. July 10, 2008)
(unpublished) (characterizing “anxiety, depression, stress, nausea, hyperventilation, headaches,
insomnia, dizziness, appetite loss, weight loss, etc.,” as “essentially emotional in nature”); McCloud
Minifield v. Butikofer, 298 F. Supp. 2d 900, 905 (N.D. Cal. 2004) (“Physical symptoms that are not
sufficiently distinct from a plaintiff's allegations of emotional distress do not qualify as a prior showing
of physical injury.”); Todd v. Graves, 217 F. Supp. 2d 958, 960 (S.D. Iowa 2002) (holding that
allegations of stress-related aggravation of hypertension, dizziness, insomnia and loss of appetite were
not actionable); McGrath v. Johnson, 67 F. Supp. 2d 499, 508 (E.D. Pa. 1999) (finding that a preexisting
skin condition, which was aggravated by emotional trauama, was not an actionable physical injury).
But see Montemayor v. Fed. Bureau of Prisons, No. 02-1283 (GK), 2005 U.S. Dist. LEXIS 18039, at *17
(D.D.C. Aug. 25, 2005) (unpublished) (holding that a heart attack resulting from physical and
emotional stress caused by treatment in prison would meet the physical injury requirement); Perkins v.
Ark. Dep’t of Corr., 165 F.3d 803, 807–08 (8th Cir. 1999) (remanding question of whether an allegation
of mental anguish so severe that it caused physical deterioration and would shorten plaintiff's life was
sufficient under § 1997e(e).)
526. Compare Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997) (holding exposure to asbestos
without claim of damages for physical injury is not actionable); Kutch v. Valdez, No. 3-06-CV-1092-H,
2006 WL 3487657, at *4 (N.D. Tex. Dec. 4, 2006) (holding potential future complications of untreated
high blood pressure are not physical injury under statute); Henderson v. Sheahan, 196 F.3d 839, 847
(7th Cir. 1999) (prisoner suing over second-hand tobacco smoke); see also Helling v. McKinney, 509 U.S.
25, 35, 113 S. Ct. 2475, 2481, 125 L. Ed. 2d 22, 33 (1993) (recognizing the possibility of an 8th
Amendment claim based on future serious health problems because of a prison smoking policy); Pack v.
Artuz, 348 F. Supp. 2d 63, 74 n.12 (S.D.N.Y. 2004) (holding proof of asbestos exposure posing a serious
risk of harm would establish an 8th Amendment violation entitling the plaintiff to nominal damages
regardless of present injury); see also Robinson v. Page, 170 F.3d 747, 749 (7th Cir. 1999) (leaving open
question of whether required physical injury “must be a palpable, current injury (such as lead
poisoning) or a present condition not injurious in itself but likely to ripen eventually into a palpable
physical injury”).
527. Compare Phillips v. Steinbeck, No. 06-cv-02569-WDM-KLM, 2008 WL 821789, at *21 (D.
Colo. Mar. 26, 2008) (unpublished) (plaintiff who alleged he was labelled an informant by staff and
assaulted by prisoners in retaliation for complaints about staff could seek damages for both 8th
Amendment and access to courts claims based on injuries from assault), and Noguera v. Hasty, No. 99
Civ. 8786 (KMW)(AJP), 2001 U.S. Dist. LEXIS 2458, at *14–15 (S.D.N.Y. Mar. 12, 2001) (unpublished)
(holding that allegations of retaliation for reporting a rape by an officer were closely enough related to
the rape that a separate physical injury need not be shown), with Purvis v. Johnson, 78 F. App’x 377,
380 (5th Cir. 2003) (unpublished) (holding that a prisoner alleging assault by a staff member could not
also pursue a claim for obstruction of the post-assault investigation); Johnson v. Dallas County Sheriff
Dep’t, No. 3:08-CV-0423-G, 2008 WL 2378269, at *3 (N.D. Tex. June 6, 2008) (unpublished) (alleged
A variety of injuries short of visible damage to body parts have been held to satisfy
Section 1997e(e). Most courts, but not all, have held that sexual assault is a physical
injury. 528 Other injuries that at least some courts have held satisfy the physical injury
requirement include loss of consciousness;529 bodily disturbances resulting from medication
withdrawal, overdose or error;530 the consequences of failure to treat illness or injury, both
immediate 531 and longer-term or prospective; 532 denial of adequate food; 533 food
sexual assault was a physical injury, but conduct of officials after the assault did not inflict injury and
was not actionable); Slusher v. Samu, No. 04-cv-02187-PSF-BNB, 2006 U.S. Dist. LEXIS 84765, at *37
(D. Colo. Nov. 21, 2006) (unpublished) (holding that a prisoner with multiple claims could only recover
damages for the one claim as to which he alleged physical injury).
528. See Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) (holding that “alleged sexual assaults,”
also described as “intrusive body searches,” “qualify as physical injuries as a matter of common sense”
and “would constitute more than de minimis injury”); Duncan v. Magelessen, No. 07-cv-01979-MSK-
MEH, 2008 WL 2783487, at *2 (D. Colo. July 15, 2008) (unpublished) (“unwanted sexual contact, alone,
is a physical injury for which there may be compensation”); Kemner v. Hemphill, 199 F. Supp. 2d 1264,
1270 (N.D. Fla. 2002) (holding that sexual assault, “even if considered to be de minimis from a purely
physical perspective, is plainly ‘repugnant to the conscience of mankind.’ Surely Congress intended the
concept of ‘physical injury’ in § 1997e(e) to cover such a repugnant use of physical force.”). But see Jones
v. Gudmundson, No. 06-3838 PJS/FLN, 2008 WL 651994, at *3 (D. Minn. Mar. 7, 2008) (unpublished)
(holding male prisoner’s complaint of sexual relationship with female employee was precluded absent
physical injury; nothing indicates the relationship was nonconsensual or the plaintiff suffered any non-
physical harm); Hancock v. Payne, No. 1:03cv671-JMR-JMR,
2006 U.S. Dist. LEXIS 1648, at *3, 7 (S.D. Miss. Jan. 4, 2006) (unpublished) (holding prisoners who
alleged they were “sexually battered ... by sodomy” did not satisfy § 1997e(e)). Non-physical sexual
harassment is, of course, not physical injury. Gillespie v. Smith, No. C07-3033-LRR, 2007 WL 2002724,
at *1, 4 (N.D. Iowa July 3, 2007) (unpublished).
529. Waggoner v. Comanche County Detention Ctr., No. CIV-06-700-C, 2007 WL 2068661, at *4
(W.D. Okla. July 17, 2007) (holding plaintiff rendered unconscious by a shock shield after being pepper-
sprayed, shaken, and punched sufficiently supported a showing of physical injury).
530. Scarver v. Litscher, 371 F. Supp. 2d 986, 997–98 (W.D. Wis. 2005) (citing self-inflicted
overdose of Thorazine as well as self-inflicted razor cut in holding prisoner with mental illness had
alleged physical injury), aff’d, 434 F.3d 972 (7th Cir. 2006); Ziemba v. Armstrong, No.
3:02CV2185(DJS), 2004 U.S. Dist. LEXIS 432, at *7 (D. Conn. Jan. 14, 2004) (unpublished) (holding
that allegation of withdrawal, panic attacks, pain similar to a heart attack, difficulty breathing and
profuse sweating, resulting from withdrawal of psychiatric medication, met the physical injury
requirement). But see Johnson v. Rawers, No. CV F 03 6241 AWI SMS P, 2008 U.S. Dist. LEXIS 21534,
at *12–13 (E.D. Cal. Mar. 19, 2008) (unpublished) (claim that medications were administered in a
crushed form, causing plaintiff to feel depressed, anxious, nauseous, and paranoid, did not satisfy the
statute), report and recommendation adopted, 2008 U.S. Dist. LEXIS 44769 (E.D. Cal. May 27, 2008)
(unpublished); Chatham v. Adcock, No. 3:05-CV-0127-JTC, 2007 U.S. Dist. LEXIS 72523, at *48–49
(N.D. Ga. Sept. 28, 2007) (unpublished) (holding hallucinations, anxiety, and nightmares resulting from
denial of Xanax did not meet physical injury requirement).
531. See Munn v. Toney, 433 F.3d 1087, 1089 (8th Cir. 2006) (holding claim of headaches,
cramps, nosebleeds, and dizziness resulting from deprivation of blood pressure medication “does not fail
... for lack of physical injury”); DeRoche v. Funkhouse, No. CV 06-1428-PHX-MHM (MEA), 2008 U.S.
Dist LEXIS 31166, at *17–19 (D. Ariz. Mar. 28, 2008) (unpublished) (further liver damage and daily
pain, swelling, nausea and hypertension from lack of treatment for Hepatitis C satisfied the physical
injury requirement); Boles v. Dansdill, No. 05-cv-01661-PSF-CBS, 2007 WL 2770473, at *21 (D. Colo.
Sept. 20, 2007) (holding allegation that denial of medical care made plaintiff “physically ill” satisfied
physical injury standard at pleading stage); Clifton v. Eubank, 418 F. Supp. 2d 1243, 1248 (D. Colo.
2006) (addressing “prolonged” pain attendant upon labor and stillbirth), on reconsideration on other
grounds, 2006 WL 893600 (D. Colo. Apr. 5, 2006) (unpublished); Fleming v. Clarke, No. 4:03CV3307,
2005 WL 2170093, at *2 (D. Neb. Sept. 6, 2005) (unpublished) (holding swelling, pain, and deterioration
resulting from denial of prescribed knee brace met physical injury requirement). But see Perez v. U.S.,
No. 1:04-CV-1944, 2008 U.S. Dist. LEXIS 42906, at *5–7 (M.D. Pa. May 30, 2008) (unpublished)
(holding that temporary dizziness, headaches, weakness, back pain, and nausea resulting from an
asthma attack, which did not require medical attention, were de minimis); Tuft v. Chaney, No. H-06-
contamination or poisoning; 534 denial of exercise; 535 exposure to harmful substances; 536
infliction of pain or illness through extreme conditions of confinement,537 physical abuse,538 or
2529, 2007 U.S. Dist. LEXIS 83817, at *7–8 (S.D. Tex. Nov. 9, 2007) (unpublished) (holding complaints
of “generalized ‘fatigue’ and ‘stress’” resulting from MRSA and Hepatitis C were not physical injuries);
Giddings v. Valdez, No. 3:06-CV-2384-G, 2007 WL 1201577, at *3 (N.D. Tex. Apr. 24, 2007)
(unpublished) (holding pain from two months’ lack of treatment for a degenerative joint disease did not
satisfy the physical injury requirement).
532. Young v. Beard, No. 06-160, 2007 WL 1549453, at *4 (W.D. Pa. May 22, 2007) (unpublished)
(holding allegation that plaintiff sought damages for present and future injury from denial of
cholesterol medication, and of testing of blood pressure, diabetes, and cholesterol more often than every
six months, sufficed at the pleading stage), vacated on other grounds, 2007 WL 2012604 (W.D. Pa. July
3, 2007) (unpublished); Mejia v. Goord, No. 9:03-CV-124, 2005 U.S. Dist. LEXIS 32394, at *16–17
(N.D.N.Y. Aug. 16, 2005) (unpublished) (denying summary judgment where prisoner was denied a low-
fat diet for potentially debilitating coronary condition). But see Cotter v. Dallas County Sheriff, No.
3:05-CV-2225-H, 2006 WL 1652714, at *3–4 (N.D. Tex. June 15, 2006) (holding staphylococcus exposure
and a “dormant” staph infection were de minimis).
533. Williams v. Humphreys, No. CIV A CV504-053, 2005 WL 4905109, at *7 (S.D. Ga. Sept. 13,
2005) (unpublished) (holding allegation of 12-pound weight loss, abdominal pain, and nausea resulting
from denial of pork substitute at meals sufficiently alleged physical injury). But see Davis v. District of
Columbia, 158 F.3d 1342, 1394 (D.C. Cir. 1998) (holding weight loss resulting from disclosure of HIV-
positive status did not meet the physical injury standard); Linehan v. Crosby, No. 4:06-cv-00225-MP-
WCS, 2008 U.S. Dist. LEXIS 63738, at *5 (N.D. Fla. Aug. 20, 2008) (unpublished) (weight loss from
denial of a kosher diet did not meet requirement); Green v. Padula, No. 9:07-0028-CMC-GCK, 2007
U.S. Dist. LEXIS 87038, at *5–9 (D.S.C., Sept. 25, 2007) (unpublished) (holding three-day denial of food
and several hours’ restraint during strip cell placement did not meet the physical injury requirement),
report and recommendation rejected in part on other grounds, No. 9:07-0028-CMC-GMK, 2007 U.S.
Dist. LEXIS 85370 (D.S.C., Nov. 19, 2007) (unpublished).
534 . Bond v. Rhodes, No. 2:05CV241, 2006 WL 1617892, at *3 (W.D. Pa. June 8, 2006)
(unpublished) (holding allegation of serious diarrhea resulting from food tampering satisfied the
requirement at the pleading stage); Gil v. U.S., No. 5:03-cv-198-Oc-10GRJ, 2006 U.S. Dist. LEXIS 8155,
at *8 (M.D. Fla. Feb. 17, 2006) (unpublished) (awarding “intangible damages for pain and suffering,
inconvenience, and loss of capacity for enjoyment of life” to prisoner who suffered food poisoning from
tainted food). But see Mayes v. Travis State Jail, No. A-06-CA-709-SS, 2007 U.S. Dist. LEXIS 47317, at
*11–12 (W.D. Tex. June 29, 2007) (unpublished) (holding diarrhea allegedly caused by spoiled food was
de minimis).
535. Williams v. Goord, 111 F. Supp. 2d. 280, 291 n.4 (S.D.N.Y. 2000) (holding allegation of 28-
day denial of exercise sufficiently alleged physical injury).
536. Smith v. Leonard, No. 06-41290, 244 F. App’x 583, 584 (5th Cir. 2007) (unpublished)
(stating headaches, sinus problems, trouble breathing, blurred vision, irritated eyes, and fatigue,
allegedly from exposure to toxic mold, might satisfy § 1997e(e) standard); Enigwe v. Zenk, No. 03-CV-
854 (CBA), 2006 U.S. Dist. LEXIS 66022, at *15–20 (E.D.N.Y. Sept. 15, 2006) (unpublished) (declining
to dismiss emotional injury claims in light of allegation of exposure to environmental tobacco smoke
resulting in dizziness, uncontrollable coughing, lack of appetite, runny eyes and high blood pressure).
But see Thompson v. Joyner, No. 5:06-CT-3013-FL, 2007 U.S. Dist. LEXIS 96515, at *14–15 (E.D.N.C.
May 29, 2007) (unpublished) (pepper spraying was de minimis), aff’d, 251 F. App’x 826 (4th Cir. 2007);
Hogg v. Johnson, No. 2:04-CV-0024, 2005 U.S. Dist. LEXIS 851, at *3, 7 (N.D. Tex. Jan. 21, 2005)
(unpublished) (dismissing allegation that plaintiff was “gassed three times for asking for a mattress
and standing up for his rights” for lack of physical injury).
537. Rinehart v. Alford, No. 3:02-CV-1565-R, 2003 U.S. Dist. LEXIS 1789, at *4–5 (N.D. Tex.
Mar. 3, 2003) (unpublished) (holding that severe headaches and back pain, attributed by the jail nurse
to bright 24-hour illumination and sleeping on a narrow bench, sufficiently alleged physical injury);
Perez G. v. Lambert, No. Civ. 01-107-HU, 2001 WL 34736218, at *3 (D. Or. Sept. 7, 2001) (holding that
allegation of cramps, vomiting, constipation, compacted bowels and anal bleeding, resulting from
confinement in conditions so filthy the plaintiff could not eat and his subsequent denial of bathroom
breaks while in restraints met the physical injury standard).
538. Payne v. Parnell, No. 05-20687, 246 F. App’x 884, 887–88 (5th Cir. 2007) (unpublished)
(holding that being jabbed with a cattle prod is not de minimis); Lawson v. Hall, No. 2:07-00334, 2008
denial of medical care;539 and stillbirth or miscarriage.540 However, there are plenty of cases
that seem to involve similar or equally serious conditions but come out the other way, and
often it is hard to see why.541 Some courts have stated explicitly that the alleged infliction of
severe physical pain does not satisfy the statute.542 It is conceivable that outright torture
may not be compensable as long as it is inflicted with sufficient care to leave no marks.543 In
addition, some courts have dismissed visible bodily injuries as de minimis.544
WL 793635, at *5–7 (S.D. W.Va. Mar. 24, 2008) (unpublished) (declining to apply § 1997e(e) to
allegation of “severe pain” from being kneed); Zamboroski v. Karr, No. 04-73194, 2007 WL 541921, at
*5 (E.D. Mich. Feb. 16, 2007) (unpublished) (holding severe pain resulting from lack of mobility during
nine months in restraints, along with rashes and scarring on his arms and inability to raise his arms
over his head when released, were not de minimis). But see Dixon v. Toole, 225 F. App’x 797, 799 (11th
Cir. 2007) (per curiam) (unpublished) (holding “mere bruising” from 17.5 hours in restraints was de
minimis; prisoner actually complained of “welts”).
539. Clifton v. Eubank, 418 F. Supp. 2d 1243, 1248 (D. Colo. 2006) (addressing “prolonged” pain
attendant upon labor and stillbirth), on reconsideration on other grounds, No. 00-CV-2555-JLK, 2006
U.S. Dist. LEXIS 19378 (D. Colo. Apr. 5, 2006) (unpublished).
540. Clifton v. Eubank, 418 F. Supp. 2d 1243, 1245–51 (D. Colo. 2006) (holding that losing one’s
child and the pain attendant upon labor and stillbirth both separately meet the physical injury
standard).
541. See Darvie v. Countryman, No. 9:08-CV-0715, 2008 U.S. Dist. LEXIS 52797, at *23–24
(N.D.N.Y. July 10, 2008) (unpublished) (characterizing “anxiety, depression, stress, nausea,
hyperventilation, headaches, insomnia, dizziness, appetite loss, weight loss, etc.,” as “essentially
emotional in nature”); Trevino v. Johnson, No. 9:05cv171, 2005 U.S. Dist. LEXIS 40438, at *13–14
(E.D. Tex. Dec. 8, 2005) (unpublished) (holding a prisoner who was struck twice in the face and had his
fingers pulled back had de minimis injury where he sustained only an abrasion to the forehead); Abney
v. Valdez, No. 3-05-CV-1645-M, 2005 U.S. Dist. LEXIS 44390, at *6–7 (N.D. Tex. Oct. 27, 2005)
(unpublished) (holding more frequent urination, near-daily migraine headaches, and itchiness and
watery eyes did not meet the physical injury requirement); Mitchell v. Horn, No. 98-4742, 2005 U.S.
Dist. LEXIS 8139, at *3–4 (E.D. Pa. May 5, 2005) (unpublished) (dismissing complaint of “severe
stomach aches, severe headaches, severe dehydration, loss of weight, severe itching, due to the inability
to take his prescribed medication, nausea, physical weakness and blurred vision,” stating that such
“transitory” injuries were not contemplated by the PLRA).
542. Calderon v. Foster, No. 5:05-cv-00696, 2007 U.S. Dist. LEXIS 24505, at *27 (S.D. W.Va.
Mar. 30, 2007) (unpublished) (pain, standing alone, is de minimis), aff’d, 264 F. App’x 286 (4th Cir.
2008) (unpublished); Ladd v. Dietz, No. 4:06cv3265, 2007 U.S. Dist. LEXIS 3782, at *1–4 (D. Neb. Jan.
17, 2007) (unpublished) (holding pain resulting from placing ear medication in plaintiff’s eye was “not
enough” to constitute physical injury); Clifton v. Eubank, 418 F. Supp. 2d 1243, 1246 (D. Colo. 2006);
Olivas v. Corr. Corp. of Am., 408 F. Supp. 2d 251, 254, 259 (N.D. Tex. 2006) (dismissing as de minimis
pain reported as 10 on a scale of 1 to 10, resulting from delay in treatment of broken teeth with exposed
nerve).
543. For example, in Jarriett v. Wilson, 14 F.3d 634 (6th Cir. 2005), a prisoner complained that
he was forced to stand in a two-and-a-half-foot square cage for about 13 hours, naked for the first eight
to 10 hours, unable to sit for more than 30 or 40 minutes of the total time, in acute pain, with clear,
visible swelling in a portion of his leg that had previously been injured in a motorcycle accident, during
which time he repeatedly asked to see a doctor. Jarriett v. Wilson, 14 F.3d 634, 644 (6th Cir. 2005)
(dissenting opinion). The appeals court affirmed the dismissal of his claim as de minimis on the ground
that the plaintiff did not complain about his leg upon release or shortly thereafter when he saw medical
staff. Jarriett v. Wilson, 14 F.3d 634, 643. The decision was initially published, but Westlaw has
removed the opinion from its original citation and replaced it with a note stating that it was
“erroneously published.” Jarriett v. Wilson, 414 F.3d 634 (6th Cir. 2005).
Jarriett contrasts with Payne v. Parnell, No. 05-20687, 246 F. App’x 884 (5th Cir. 2007)
(unpublished), in which the court, referring both to § 1997e(e) and the 8th Amendment, held that being
jabbed with a cattle prod was not de minimis, despite the lack of long-term damage, in part because it
was “calculated to produce real physical harm.” Payne v. Parnell, No. 05-20687, 246 F. App’x 884, 889
(5th Cir. 2007).
544. See, e.g,, Gibson v. Galaza, No. CVF00 5381 AWI WMW P, 2006 U.S. Dist. LEXIS 21679, at
*27–28 (E.D. Cal. Mar. 29, 2006) (unpublished) (holding multiple abrasions, a small cut on lip, and a
The problem with most of these decisions is they make no attempt to say generally what
“physical injury” means, other than “more than de minimis.” One exception is a district court
decision that cited dictionary definitions of “physical” as “of or relating to the body,” and of
“injury” as “an act that damages, harms, or hurts; an unjust or undeserved infliction of
suffering or harm; wrong,” and held that a reasonable jury could find that the statute was
satisfied by exposure to noxious odors, including those of human wastes, and “dreadful”
conditions of confinement (including inability to keep clean while menstruating, denial of
clothing except for a paper gown, and exposure to ogling (staring) by male prison staff and
construction workers).545 This case stretches the language of the statute pretty far, but other
courts have so far failed to put forward any alternative approach that is helpful in assessing
cases of physiological disturbances, disease processes, infliction of pain without visible
trauma, etc.
There is an approach to this problem that has been overlooked. A federal statute makes
it a crime for someone acting under color of state law to deprive another person of federal
civil rights and requires a showing of “bodily injury” before someone who violates the statute
can be sentenced to more than one year in prison.546 Bodily injury is not defined in the
statute. But, several other federal criminal statutes define that term as meaning “(A) a cut,
abrasion, bruise, burn, or disfigurement; (B) physical pain; (C) illness; (D) impairment of a
function of a bodily member, organ, or mental faculty; or (E) any other injury to the body, no
matter how temporary.” 547 Several circuits have adopted that definition for purposes of
Section 242,548 and there is no reason why it should not be applied under Section 1997e(a) as
well.549 As far as we know, no court has yet considered this idea. If you are faced with an
claim that your injury isn’t severe enough to satisfy the PLRA, but it falls within the
bruised right knee are de minimis); Wallace v. Brazil, No. 7:04-CV-187-R, 2005 WL 4813518, at *1
(N.D. Tex. Oct. 10, 2005) (holding a knot on the head allegedly inflicted by an officer with an iron bar
was de minimis). Contra Cotney v. Bowers, No. 2:03-cv-1181-WKW (WO), 2006 U.S. Dist LEXIS 69523,
at *25 (M.D. Ala. Sept. 26, 2006) (unpublished) (holding bruised ribs that took weeks to heal could be
found not de minimis); Hardin v. Fullenkamp, No. 4-99-CV-80723, 2001 U.S. Dist. LEXIS 22335, at
*19–21 (S.D. Iowa June 22, 2001) (unpublished) (holding evidence prisoner was cut and bruised and
other prisoners’ affidavits that they saw him beaten and later limping met the standard).
545. Waters v. Andrews, No. 97-CV-407, 2000 WL 1611126, at *7 (W.D.N.Y. Oct. 16, 2000)
(unpublished). But see Alexander v. Tippah County, Miss., 351 F.3d 626, 631 (5th Cir. 2003) (holding
that prisoner who vomited as a result of exposure to noxious odors in a filthy holding cell full of raw
sewage suffered only a de minimis injury, if any); Jennings v. Weberg, No. 2:06-CV-235, 2007 WL
80875, at *1 (W.D. Mich. Jan. 8, 2007) (unpublished) (holding a prisoner who was routinely spat upon
and had urine thrown on him by an HIV-positive prisoner alleged only mental or emotional injury);
Parter v. Valone, No. 06-10561, 2006 WL 3086900, at *2–3 (E.D. Mich. Oct. 30, 2006) (unpublished)
(holding a prisoner who was denied the use of a bathroom and urinated on himself suffered only mental
or emotional injury). Cf. Glaspy v. Malicoat, 134 F. Supp. 2d 890, 894–95 (W.D. Mich. 2001) (treating
denial of toilet access to a non-prisoner, with predictable results, as a deprivation of liberty).
546. 18 U.S.C. § 242 (2006) (providing “if bodily injury results from the acts committed in
violation of this section ... [the defendant] shall be fined under this title or imprisoned not more than
ten years, or both”).
547. 18 U.S.C. § 831(f)(5) (2006); accord 18 U.S.C. § 1365(g)(4) (2006); 18 U.S.C. § 1515(a)(5)
(2006); 18 U.S.C. § 1864(d)(2) (2006).
548. See the following cases that have applied the definition of bodily injury set out in Section
242: United States v. Gonzales, 436 F.3d 560, 575 (5th Cir. 2006); United States v. Bailey, 405 F.3d
102, 111 (1st Cir. 2005); United States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992).
Gonzales excludes use of force cases from this holding because of other 5th Circuit principles concerning
such cases.
549. “When Congress uses, but does not define a particular word, it is presumed to have adopted
that word's established meaning.” United States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992) (citing
Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 806, 109 S. Ct. 1500, 1503, 103 L. Ed. 2d 891, 899
(1989)). Although § 1997e(e) uses the word “physical” rather than “bodily,” it is hard to see what real
difference that makes.
statutory definition of bodily injury, you should point these statutes out to the court and
argue there cannot be much difference between “bodily” and “physical” injury.
G. Attorneys’ Fees
The PLRA limits the attorneys’ fees prisoners can recover compared to other civil rights
litigants. Most of the limitations do not affect prisoners directly, since prisoners proceeding
pro se cannot recover attorneys’ fees, but they will affect the ability of prisoners to get
lawyers to represent them.
Fees under 42 U.S.C. § 1988550 are barred in “any action brought by a prisoner”551 except
when the fees are “directly and reasonably incurred in proving an actual violation of the
plaintiff’s rights” under a statute that allows fees to be awarded.552 It is unclear whether this
provision bars fee awards in cases that are settled, rather than cases that go to trial. Several
courts have held injunctive proceedings that are settled may support an award of fees if
there are findings of legal violation or a record that supports such findings.553 Fees may also
be awarded if they are “directly and reasonably incurred in enforcing the relief ordered for
the violation.”554 The statute says that fees must be “proportionately related to the court
ordered relief for the violation.”555 It does not say in what proportion. However, defendants
may be required to pay fee awards of up to 150 percent of any damages awarded—but no
more.556
550. 42 U.S.C. § 1988 is the statute that authorizes attorneys’ fees in actions under 42 U.S.C. §
1983. In cases where fees are based on some other law, the PLRA fees restrictions do not apply. See,
e.g., Armstrong v. Davis, 318 F.3d 965, 973–74 (9th Cir. 2003) (holding that fees in Americans with
Disabilities Act and Rehabilitation Act suits are not governed by the PLRA fees limitations).
551. For purposes of these provisions, ex-prisoners are not prisoners, and a case filed after the
plaintiff’s release is not governed by the PLRA fees provisions. Greig v. Goord, 169 F.3d 165, 167 (2d
Cir. 1999); Doe By and Through Doe v. Washington County, 150 F.3d 920, 924 (8th Cir. 1998) (PLRA
provisions about attorney’s fees do not apply to a plaintiff who was not a prisoner at the time of filing
his suit). The attorneys’ fees provisions are not limited to cases about prison conditions. Robbins v.
Chronister, 435 F.3d 1238, 1241–44 (10th Cir. 2006) (en banc) (applying PLRA attorney’s fees
restrictions to a case about events before prisoner’s incarceration); Jackson v. State Bd. of Pardons and
Paroles, 331 F.3d 790, 794–95 (11th Cir. 2003) (applying PLRA restrictions to case about parole
eligibility hearings and the length of his confinement, and not about prison conditions).
552. 42 U.S.C. § 1997e(d)(1)(A) (2006).
553. See Laube v. Allen, 506 F. Supp. 2d 969, 979–80 (M.D. Ala. Aug. 31, 2007) (holding that fees
may be awarded for injunctive settlements to the extent they satisfy the PLRA’s “need-narrowness-
intrusiveness” requirement and the fees were “directly and reasonably incurred” in obtaining it); Watts
v. Dir. of Corr., No. CV F-03-5365 OWW DLB P, 2007 WL 1100611, at *3 (E.D. Cal. Apr. 11, 2007)
(unpublished) (awarding fees for “proving an actual violation” notwithstanding that case was settled),
amended on reconsideration on other grounds, 2007 WL 1752519 (E.D. Cal. June 15, 2007)
(unpublished); Lozeau v. Lake County, Mont., 98 F. Supp. 2d 1157, 1168 n.1, 1170 (D. Mont. 2000)
(“Defendants cannot settle a case, promise reform or continued compliance, admit the previous
existence of illegal conditions, admit that Plaintiffs’ legal action actually brought the illegal conditions
to the attention of those in a position to change them and subsequently allege a failure of proof.”); Ilick
v. Miller, 68 F. Supp. 2d 1169, 1173 n. 1 (D. Nev. 1999) (stating that there was sufficient evidence to
demonstrate that the post-PLRA fees were “directly and reasonably” incurred in establishing the
violation of the prisoner’s rights).
554. 42 U.S.C. § 1997e(d)(1)(B)(ii) (2006); see West v. Manson, 163 F. Supp. 2d 116, 120 (D. Conn.
2001) (holding fees are recoverable for post-judgment monitoring).
555. 42 U.S.C. § 1997e(d)(1)(B)(i) (2006).
556. 42 U.S.C. § 1997e(d)(2) (2006); see Pearson v. Welborn, 471 F.3d 732, 742–44 (7th Cir. 2006)
(holding fees limited to $1.50 where plaintiff recovered only $1.00 in nominal damages); Boivin v.
Black, 225 F.3d 36, 40–46 (1st Cir. 2000) (going through an extensive analysis of the constitutional
basis for the fee cap and arriving at the same conclusion, that fees are limited to 150% of recovered
nominal damages); Clark v. Phillips, 965 F. Supp. 331, 334 (N.D.N.Y. 1997) (holding fees of $7921.96 to
be proportionately related to $10,000 damage award). This 150% limit does not apply to cases in which
Hourly rates for lawyers are limited to 150 percent of the Criminal Justice Act (“CJA”)
rates for criminal defense representation set in 18 U.S.C. § 3006A.557 Courts have disagreed
whether this means 150 percent of the rates authorized by the federal Judicial Conference or
the actual, lower rates paid in the district based on how much money Congress actually
provides.558 Both rates are much lower than the market rates that lawyers usually charge
and that are awarded in non-prisoner cases, and they will probably discourage many lawyers
from taking prisoners’ cases. (Although the hourly rate is higher than the Criminal Justice
Act rates, lawyers defending clients under the CJA get paid for their time whether they win
or lose.)
Prisoners are more directly affected by the provision that says that “up to” twenty-five
percent of a damage judgment is to be applied to the fee award. If the fee award is not
greater than 150 percent of the judgment, defendants must pay the rest.559 Most courts have
held that the term “up to” allows the courts some discretion in determining how much of a
winning prisoner-plaintiff’s damage award must be applied to attorneys’ fees, 560 several
courts have mistakenly assumed that the twenty-five percent figure is mandatory, or have
applied it without discussing the question.561
The Supreme Court has held that the PLRA fee restrictions apply to work done after the
PLRA’s enactment but not to pre-PLRA work.562 However, that decision may be limited to
the work done by an attorney in his or her role as a monitor of court judgments.
A majority of courts have rejected arguments that attorneys’ fees restrictions deny equal
protection.563
the plaintiff seeks and receives an injunction as well as damages. Walker v. Bain, 257 F.3d 660, 667 n.2
(6th Cir. 2001) (stating that §1997e(d)(2) does not apply if non-monetary relief is granted); Carbonell v.
Acrish, 154 F. Supp. 2d 552, 566 (S.D.N.Y. 2001) (finding that the 150% cap of the fee would not be
needed in cases where the plaintiff received both monetary and injunctive relief).
557. 42 U.S.C. § 1997e(d)(3) (2006).
558 . Compare Hadix v. Johnson, 398 F.3d 863, 867–68 (6th Cir. 2005) (holding Judicial
Conference rates apply), with Hernandez v. Kalinowski, 146 F.3d 196, 201 (3d Cir. 1998) (holding that
150% of the rates established by 18 U.S.C.S. § 3006A(d)(1) apply); see also Johnson v. Daley, 339 F.3d
582, 58–84 (7th Cir. 2003) (en banc) (stating that 150% of the rates set out by Criminal Justice Act
apply).
559. 42 U.S.C. § 1997e(d)(2) (2006); see Torres v. Walker, 356 F.3d 238, 243 (2d Cir. 2004)
(holding that a case resolved by “so ordered” stipulation was not governed by the 150% limit, since
there was no “money judgment”).
560 . See Boesing v. Hunter, 540 F.3d 886, 892 (8th Cir. 2008) (affirming district court’s
application of 1% of $25,000 recovery); Siggers-El v. Barlow, 433 F. Supp. 2d 811, 822–23 (E.D. Mich.
2006) (applying $1.00 of the recovery to attorneys’ fees, noting that the jury found that defendants had
lied about their conduct and awarded significant damages as punishment and deterrent); Morrison v.
Davis, 88 F. Supp. 2d 799, 811–13 (S.D. Ohio 2000) (applying only $1.00 of judgment against recovery).
561. See Jackson v. Austin, 267 F. Supp. 2d 1059, 1071 (D. Kan. 2003) (holding that “the Court
must automatically apply plaintiff's fee award against his damages to the extent that it does not exceed
25 per cent of the damages”); Beckford v. Irvin, 60 F. Supp. 2d 85, 89–90 (W.D.N.Y. 1999) (applying
25% without discussion).
562. See Martin v. Hadix, 527 U.S. 343, 361–62, 119 S. Ct. 1998, 2008, 144 L. Ed. 2d 347, 362
(1999) (holding that § 803(d)(3) limits attorney’s fees for post-judgment monitoring services performed
after the PLRA’s effective date, but does not limit fees for monitoring performed before that date).
563. Johnson v. Daley, 339 F.3d 582, 597–98 (7th Cir. 2003) (en banc) (finding no constitutional
violation of equal protection); Jackson v. State Bd. of Pardons and Paroles, 331 F.3d 790, 796–98 (11th
Cir. 2003) (holding that §1997e(d) passed the rational basis test and was therefore constitutional);
Foulk v. Charrier, 262 F.3d 687, 704 (8th Cir. 2001) (upholding cap of 150% of damages); Hadix v.
Johnson, 230 F.3d 840, 847 (6th Cir. 2000) (upholding limit on hourly rates and claiming that this limit
survives rational basis review); Boivin v. Black, 225 F.3d 36, 40, 43 (1st Cir. 2000) (finding that the
plaintiff’s claim survived the rational basis equal protection review); Carbonell v. Acrish, 154 F. Supp.
2d 552, 561–66 (S.D.N.Y. 2001) (upholding 150% limit as a rational means to achieve the Congress’s
end). But see Johnson v. Daley, 117 F. Supp. 2d 889 (W.D. Wis. 2000) reversed on these grounds by
H. Waiver of Reply
The PLRA provides:
(g) Waiver of Reply.
(1) Any defendant may waive the right to reply to any action brought
by a prisoner confined in any jail, prison, or other correctional facility
under [42 U.S.C. § 1983] ... or any other Federal law.
Notwithstanding any other law or rule of procedure, such waiver
shall not constitute an admission of the allegations contained in the
complaint. No relief shall be granted to the plaintiff unless a reply
has been filed.
(2) The court may require any defendant to reply to a complaint

brought under this section if it finds that the plaintiff has a
reasonable opportunity to prevail on the merits.564
This provision says that in prisoners’ suits, the defendants do not have to answer the
complaint unless the court tells them to do so. Courts can only do this if the plaintiff has a
“reasonable opportunity to prevail on the merits.” In practice, courts generally direct
defendants to answer if the case survives initial screening or a motion to dismiss, which
means that the complaint states a claim for which relief can be granted.565
If you amend the complaint to add parties after the initial screening, the court might not
direct the defendants to answer. When you move to amend a complaint, always ask the court
to direct the defendants to answer and grant your motion to amend. If you amend the
complaint as a matter of course (when no motion is required), and if the defendants do not
answer , you may need to move to direct them to answer.566
The provision that “[n]o relief shall be granted to the plaintiff unless a reply has been
filed” raises a question about default judgments, which ordinarily are granted if a defendant
fails to respond to the complaint. 567 One could read this provision as saying courts cannot
grant default judgments if defendants refuse to reply. We are not aware of decisions
addressing this point, and courts continue to grant default judgments in prison cases.568 If
the defendants in your case do not respond, and the court thinks it cannot enter a default
judgment, try moving to hold the defendants in contempt of the order to reply to the
complaint, and ask the court for contempt damages equal to what you would get if the case
went forward.569
I. Hearings by Telecommunication and at Prisons
The PLRA added a new section to the Civil Rights of Institutionalized Persons Act
(“CRIPA”):
Johnson v. Daley, 339 F.3d 582 (7th Cir. 2003) (en banc) (holding that limit on hourly rates and limit to
150% of damages deny equal protection).
564. 42 U.S.C. § 1997e(g) (2006).
565. See Daniel v. Power, No. 04-CV-789-DRH, 2005 U.S. Dist. LEXIS 17235, at *6 (S.D. Ill. July
20, 2005) (unpublished) (after initial screening, “ [d]efendants are ORDERED to timely file an
appropriate responsive pleading to the Amended Complaint, and shall not waive filing a reply pursuant
to 42 U.S.C. § 1997e(g).”); Proctor v. Vadlamudi, 992 F. Supp. 156, 159 (N.D.N.Y. 1997) (magistrate’s
recommendation that if case is not dismissed, defendants should be declared from now on to have
waived reply and should be directed to answer within 30 days).
566. Amendment by motion and as a matter of course are discussed in Fed. R. Civ. P. 15.
567. Fed. R. Civ. P. 55.
568. See Cameron v. Myers, 569 F. Supp. 2d 762 (N.D. Ind. 2008).
569. Concerning contempt damages, see Hutto v. Finney, 437 U.S. 678, 691 (1978); Benjamin v.
Sielaff, 752 F. Supp. 140, 148–49 (S.D.N.Y. 1990); Morales Feliciano v. Hernandez Colon, 704 F. Supp.
16, 20 (D.P.R. 1988).
(f) Hearings.
(1) To the extent practicable, in any action brought with respect to
prison conditions in Federal court pursuant to section 1979 of the
Revised Statutes of the United States (42 U.S.C. § 1983), or any other
Federal law, by a prisoner confined in any jail, prison, or other
correctional facility, pretrial proceedings in which the prisoner’s
participation is required or permitted shall be conducted by
telephone, video conference, or other telecommunications technology
without removing the prisoner from the facility in which the prisoner
is confined.
(2) Subject to the agreement of the official of the Federal, State, or

local unit of government with custody over the prisoner, hearings
may be conducted at the facility in which the prisoner is confined. To
the extent practicable, the court shall allow counsel to participate by
telephone, video conference, or other communications technology in
any hearing held at the facility.570
For years, many federal courts have been using telephones and videos in court
proceedings and holding proceedings at prisons.571 But, the provision concerning hearings at
the prison raises legal and practical problems. The statute refers to counsel’s participation
“[t]o the extent practicable” by telephone, video, etc. If a prisoner has an attorney, there
seems to be no reason the attorney cannot attend the proceeding in person. If the prison is at
such a remote location that neither counsel’s presence nor her participation by
telecommunication is practicable, it is questionable whether the proceeding should be held at
the prison. It will generally be fairer to a prisoner to have pretrial proceedings at a location
counsel can attend.
The statute refers to holding “hearings” but not “trials” at the prison, leaving it unclear
whether evidentiary proceedings are included. 572 Conducting a trial or evidentiary
proceeding by video conferencing raises large questions of fairness, particularly in jury trials.
In United States v. Baker, 573 a non-PLRA case, the court upheld the constitutionality of
holding prisoners’ psychiatric commitment hearings by video, but was careful to note that
such decisions are generally based on expert testimony and do not depend either on the
demeanor of the witnesses or the “impression” made by the person being committed, and that
the proceeding does not involve fact-finding in the usual sense. That description does not fit
most evidentiary proceedings in prisoner cases, and courts have traditionally expressed a
strong preference for having prisoner plaintiffs physically present in court for trial.574
570. 42 U.S.C. § 1997e(f) (2000); see Moss v. Gomez, 162 F.3d 1169 (9th Cir. 1998) (holding
district court should have considered teleconferencing as an alternative to producing prisoner witness
who was a security risk).
571. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (noting use of telephone
evidentiary hearing to assess frivolousness of claim); Am. Inmate Paralegal Ass’n v. Cline, 859 F.2d 59,
62 (8th Cir. 1988) (upholding constitutionality of a pretrial conference by two-way audio-video
connection between prison and courthouse).
572. But see Bickham v. Blair, No. Civ.A. 98-881, 1999 U.S. Dist. LEXIS 12773, at *1 (E.D. La.
Aug. 16, 1999) (unpublished) (noting that an evidentiary hearing was held by telephone); Edwards v.
Logan, 38 F. Supp. 2d 463, 466–67 (W.D. Va. 1999) (authorizing video jury trial for Virginia prisoner
held in New Mexico; analogizing to PLRA’s provisions concerning pretrial proceedings).
573. United States v. Baker, 45 F.3d 837 (4th Cir. 1994).
574. Hernandez v. Whiting, 881 F.2d 768, 770–72 (9th Cir. 1989); Muhammad v. Warden, Balt.
City Jail, 849 F.2d 107, 113 (4th Cir. 1988); Poole v. Lambert, 819 F.2d 1025, 1029 (11th Cir. 1987).
If the court does hold a hearing by telephone or video in your case, it is your
responsibility to subpoena any witnesses you wish to present or cross-examine, just as in a
live hearing in the courtroom.575
J. Revocation of Earned Release Credit
The PLRA adds a new section concerning earned release credit:
§ 1932. Revocation of earned release credit
In any civil action brought by an adult convicted of a crime and

confined in a Federal correctional facility, the court may order the
revocation of such earned good time credit under section 3624(b) of
title 18, United States Code, that has not yet vested, if, on its own
motion or the motion of any party, the court finds that:
(1) the claim was filed for a malicious purpose;
(2) the claim was filed solely to harass the party against which it
was filed; or
(3) the claimant testifies falsely or otherwise knowingly presents
false evidence or information to the court.576
This provision, which applies only to federal prisoners, takes away good time based on
what a court thinks about a prisoner’s litigation activities. Though it raises substantial
questions about due process of law, the statute sets out no procedural protections. It is not
clear what due process requirements would govern. The only reported decisions applying this
provision do not discuss due process.577
The revocation of earned release credit provision of the PLRA governs proceedings in
federal court, and presumably applies in state court. There appear to be no decisions yet on
this issue, however.
K. Diversion of Damage Awards
The PLRA includes two provisions about awarding damages in a successful suit brought
by a prisoner:
Any compensatory damages awarded to a prisoner in connection with
a civil action brought against any Federal, State, or local jail, prison,
or correctional facility or against any official or agent of such jail,
prison, or correctional facility, shall be paid directly to satisfy any
outstanding restitution orders pending against the prisoner. The
remainder of any such award after full payment of all pending
restitution orders shall be forwarded to the prisoner.578
Prior to payment of any compensatory damages awarded to a prisoner

in connection with a civil action brought against any Federal, State,
or local jail, prison, or correctional facility or against any official or
agent of such jail, prison, or correctional facility, reasonable efforts
shall be made to notify the victims of the crime for which the prisoner
575. See Bickham v. Blair, No. Civ.A. 98-881, 1999 U.S. Dist. LEXIS 12773, at *1 (E.D. La. Aug.
576. 28 U.S.C. § 1932 (2006). Note that there is another statute with the same Section number—
entitled Judicial Panel on Multidistrict Litigation—but this citation is correct.
577. See Rice v. Nat’l Sec. Council, 244 F. Supp. 2d 594, 597, 605 (D.S.C. 2001) (citing cases),
aff’d, 46 F. App’x 212 (4th Cir. 2002).
578. Prison Litigation Reform Act of 1995, Pub. L. No. 104–134, § 807, 110 Stat. 1321–66, 1321–
76 (1996). This provision is not codified, and appears after 18 U.S.C. § 3626 (2000).
was convicted and incarcerated concerning the pending payment of
any such compensatory damages.579
There is very little case law about these statutes.580 One important question is whether
the phrase “compensatory damages awarded” includes settlement of damage claims. As a
matter of plain English, it would seem not, and that is the holding of the only relevant
decision of which we are aware.581
L. Injunctions
The PLRA contains a number of provisions restricting courts’ abilities to enter and to
maintain “prospective relief” (mostly injunctions, or court orders)582 in prison cases.
1. Entry of Prospective Relief
Under the PLRA, courts may not enter prospective relief in prison cases “unless the court
finds that such relief is narrowly drawn, extends no further than necessary to correct the
violation of the Federal right, and is the least intrusive means necessary to correct the
violation of the Federal right. The court shall give substantial weight to any adverse impact
on public safety or the operation of a criminal justice system caused by the relief.”583 This
standard is not very different from the law in effect before the PLRA, 584 though the
579. Prison Litigation Reform Act of 1995, Pub. L. No. 104–134, § 808, 110 Stat. 1321–66, 1321–
76 (1996). This provision is not codified, and appears after 18 U.S.C. § 3626 (2000).
580. See Loucony v. Kupec, No. 3:98 CV 61(JGM), 2000 U.S. Dist. LEXIS 6620, at *1 (D. Conn.
Feb. 17, 2000) (unpublished) (holding a person sued after release from prison was not a “prisoner” and
the statute did not apply to him).
581. Dodd v. Robinson, Civil Action No. 03-F-571-N, Order at *1 (M.D. Ala. Mar. 26, 2004). In
that case, the court held that a damages settlement was not subject to the requirement of direct
payment of restitution orders because the parties had reached a private settlement agreement.
582. One federal appeals court has held that under the PLRA’s language, punitive damages are
“prospective relief” subject to the PLRA’s limitations. Johnson v. Breeden, 280 F.3d 1308, 1325 (11th
Cir. 2002); see Hudson v. Singleton, No. CV602-137, 2006 U.S. Dist. LEXIS 17800, at *3 (S.D. Ga. Mar.
27, 2006) (unpublished) (upholding a punitive award under Breeden). Other courts have mostly ignored
this decision. We think it is wrong, because the prospective relief provisions are clearly written to deal
with injunctions and make very little sense applied to punitive damages. See Tate v. Dragovich, No. 96-
4495, 2003 U.S. Dist. LEXIS 14353, at *20 n.7 (E.D. Pa. Aug. 14, 2003) (“At first blush, it seems that
one can neither ‘narrowly draw’ punitive damages, not adjust them to better ‘correct’ a violation of
rights, nor render them any more or less ‘intrusive.’”). One court has gone further and has held that the
PLRA has abolished punitive damages entirely. Margo v. Bedford County, No. 3:04-cv-147-KAP-KRG,
2008 U.S. Dist. LEXIS 25625, at *7 (W.D.Pa. Mar. 31, 2008). We see no basis for this conclusion.
583. 18 U.S.C. § 3626(a) (2006); see Morales Feliciano v. Rullan, 378 F.3d 42, 54–56 (1st Cir.
2004) (finding remedy of privatization of medical care appropriate in light of failure of less intrusive
measures; “[d]rastic times call for drastic measures”); Benjamin v. Fraser, 156 F. Supp. 2d 333, 344,
350 (S.D.N.Y. 2001), aff’d in part, vacated and remanded in part, 343 F.3d 35, 53–57 (2d Cir. 2003)
(applying PLRA standards in jail conditions litigation); Gomez v. Vernon, 255 F.3d 1118, 1130 (9th Cir.
2001) (affirming injunction benefiting named individuals; though an unconstitutional policy had been
found, it had been directed at those persons); Morrison v. Garraghty, 239 F.3d 648, 661 (4th Cir. 2001)
(affirming injunction prohibiting refusing the plaintiff a religious exemption from property restrictions
solely based on his non-membership in the “Native American race”).
584. See Gilmore v. California, 220 F.3d 987, 1006 (9th Cir. 2000) (holding that courts are
required to “give substantial weight to any adverse impact on public safety or the operation of a
criminal justice system caused by the relief ... limiting the courts’ power to grant preliminary injunctive
relief”); Smith v. Ark. Dep’t of Corr., 103 F.3d 637, 647 (8th Cir. 1996) (holding PLRA “merely codifies
existing law and does not change the standards for determining whether to grant an injunction”);
Williams v. Edwards, 87 F.3d 126, 133 n.21 (5th Cir. 1996) (PLRA “codifies the standards governing a
district court’s grant of prospective relief in prison reform litigation”); see also Toussaint v. McCarthy,
801 F.2d 1080, 1086–87 (9th Cir. 1986) (pre-PLRA cases applying similar standard); Duran v. Elrod,
requirement of specific court findings is new. The statute also bars injunctive relief requiring
state or local officials to exceed their local authority unless federal law requires such relief,
such relief is necessary to fix a federal law violation, and no other relief will correct the
violation.585 This provision also appears consistent with prior law.586 The PLRA does limit
federal court prospective relief to correcting violations of “Federal rights,” which means a
court cannot enter an injunction based on a violation of state or local law.587
2. Preliminary Injunctions
Preliminary injunctions must meet the same standards as for other prospective relief,
and automatically expire after ninety days unless the court makes the order final.588 But, a
court may grant a new preliminary injunction after the first has expired if the plaintiff shows
conditions justifying the injunction still exist.589
3. Prisoner Release Orders
The PLRA contains special rules for “prisoner release orders,” which it defines as “any
order ... that has the purpose or effect of reducing or limiting the prison population, or that
directs the release from or non-admission of prisoners to a prison.” 590 Such orders are
permitted only if previous, less intrusive relief has failed to remedy the federal law violation
in a reasonable time.591 A release order must be supported by clear and convincing evidence
that “crowding is the primary cause of the violation of a Federal right” and no other relief
will remedy the violation.592 One court has held that the limits on prisoner release orders do
not apply to motions to modify pre-PLRA prisoner release orders, citing the statutory
language that “no court shall enter a prisoner release order” without complying with the
PLRA requirements.593
The PLRA requires three-judge courts to issue prisoner release orders, which either the
moving party or the district court may request. 594 This requirement may give rise to
760 F.2d 756, 760–61 (7th Cir. 1985) (weighing public safety and criminal justice system concerns in
enforcing jail crowding order).
585. 18 U.S.C. § 3626(a)(1)(B) (2006); see Perez v. Hickman, No. 05-05241, 2007 U.S. Dist. LEXIS
44432, at *7–10, 16–17 (N.D. Cal. June 12, 2007) (ordering increase in salaries paid to prison dentists,
contrary to state law, and finding PLRA standards met).
586. See, e.g., Stone v. City & County of San Francisco, 968 F.2d 850, 861–65 (9th Cir. 1992)
(holding, pre-PLRA, that provisions of consent decree that overrode state law were not the least
intrusive option available and were thus prohibited). See also LaShawn A. v. Barry, 144 F.3d 847, 854
(D.C. Cir. 1998) (stating, pre-PLRA, that “[d]isregarding local law ... is a grave step and should not be
taken unless absolutely necessary”).
587. Handberry v. Thompson, 446 F.3d 335, 344–46 (2d Cir. 2006) (holding that in prison cases
the PLRA overrides federal courts’ “supplemental jurisdiction” to enforce state law).
588. 18 U.S.C. § 3626(a)(2) (2006).
589. Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001).
590. 18 U.S.C. § 3626(g)(4) (2006); see Berwanger v. Cottey, 178 F.3d 834, 836 (7th Cir. 1999)
(noting that a maximum population provision is a prisoner release order). But see Inmates of Suffolk
County Jail v. Sheriff of Suffolk County, 952 F. Supp. 869, 883 (D. Mass.) (holding that a population
cap is not a prisoner release order in the absence of an order to release), aff’d as modified and
remanded on other grounds, 129 F.3d 649 (1st Cir. 1997).
591. 18 U.S.C. § 3626(a)(3)(A) (2006). Some courts had adopted that view before the enactment of
the PLRA. See Inmates of Occoquan v. Barry, 844 F.2d 828, 842–43 (D.C. Cir. 1988) (holding that
population limit is a last resort remedy, not a first step).
592. 18 U.S.C. §§ 3626(a)(3)(E)(i)–(ii) (2006).
593. Berwanger v. Cottey, 178 F.3d 834, 836 (7th Cir. 1999) (citing 18 U.S.C. § 3626(a)(3)(A)
(2006)).
594. 18 U.S.C. §§ 3626(a)(3)(B)–(D) (2006).
procedural tangles in cases involving different kinds of relief.595 One court refused to convene
a three-judge court to consider an individual prisoner’s “[m]otion for [his own] Prisoner
Release” that failed to allege, except in conclusory terms, how overcrowding violated his
constitutional rights.596 The prisoner release order procedure is rarely used .597
The PLRA permits state and local officials to intervene to oppose prisoner release
orders.598
4. Termination of Judgments
The PLRA provides that court orders in prison litigation, including consent judgments,
may be terminated after two years unless the court finds that there is a “current and ongoing
violation” of federal law. After this two-year period, orders may be challenged every year.599
An order may be challenged at any time if it was entered without findings by the court that it
“is narrowly drawn, extends no further than necessary to correct the violation of the Federal
right, and is the least intrusive means necessary to correct the violation of the Federal
right.”600 Such an order may be terminated immediately unless a current and ongoing federal
law violation is shown. A “violation of the Federal right” means a violation of the federal
Constitution, statutes, or regulations. Violation of the court order itself is not enough.601
Under this provision, numerous court orders that benefited prisoners—but that were
entered before the PLRA and did not contain the findings required by the PLRA—have been
terminated. Constitutional challenges asserting that the provision violates the separation of
powers, the Equal Protection Clause, and the Due Process Clause have been unsuccessful.602
5. Automatic Stay
The PLRA provides that courts must promptly rule on motions to terminate prospective
relief, and that such prospective relief is automatically stayed on the thirtieth day after such
595. See Tyler v. Murphy, 135 F.3d 594, 598 (8th Cir. 1998) (unclear under PLRA whether
“findings that will avoid termination of an existing injunction must in all cases be made by a three-
judge court if the injunction includes a prisoner release order”).
596. Pangburn v. Goord, No. 98-CV-0309E(H), 1999 WL 222553, at *7 (W.D.N.Y. Apr. 12, 1999)
(unpublished).
597. See Roberts v. County of Mahoning, Ohio, 495 F. Supp. 2d 784, 786 (N.D. Ohio 2007) (noting
appointment of three-judge court and entry of prisoner release order by consent); see also Plata v.
Schwarzenegger, No. C01-1351, 2007 WL 2122657 (N.D. Cal. July 23, 2007) (requesting the Ninth
Circuit to appoint a three-judge court to consider a population limit on the California prison system),
appeal dismissed, 2007 WL 2669591 (9th Cir. Sept. 11, 2007).
598. 18 U.S.C. § 3626(a)(3)(F) (2000); see Ruiz v. Estelle, 161 F.3d 814, 818–21 (5th Cir. 1998)
(holding that PLRA grants individual legislators the right to intervene in prison litigation).
599. 18 U.S.C. § 3626(b)(1)(3) (2000).
600. 18 U.S.C. § 3626(b)(2) (2000); see Tyler v. Murphy, 135 F.3d 594, 597 (8th Cir. 1998) (noting
that absent the required findings, immediate termination provision rather than two-year provision
applies).
601. Plyler v. Moore, 100 F.3d 365, 370 (4th Cir. 1996); Harvey v. Schoen, 51 F. Supp. 2d 1001,
1005 (D. Minn. 1999); Imprisoned Citizens Union v. Sharp, 11 F. Supp. 2d 586, 608–09 (E.D. Pa. 1998),
aff’d, 169 F.3d 178 (3d Cir. 1999).
602 . Court of appeals decisions and district court decisions upholding the statute include
Berwanger v. Cottey, 178 F.3d 834 (7th Cir. 1999); Nichols v. Hopper, 173 F.3d 820 (11th Cir. 1999);
Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999); Imprisoned Citizens Union v. Ridge, 169 F.3d 178
(3d Cir. 1999); Hadix v. Johnson, 133 F.3d 940 (6th Cir. 1998); Dougan v. Singletary, 129 F.3d 1424
(11th Cir. 1997); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997); Gavin v.
Branstad, 122 F.3d 1081 (8th Cir. 1997); Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996); Vazquez v.
Carver, 18 F. Supp. 2d 503 (E.D. Pa. 1998), aff’d, 181 F.3d 85 (3d Cir. 1999). One circuit initially struck
the provision down on separation of powers grounds; on rehearing, the court did not decide the
constitutional issue. Taylor v. United States, 143 F.3d 1178 (9th Cir. 1998), superseded, 181 F.3d 1017
(9th Cir. 1999) (en banc).
a motion is made. The thirty days can be extended to sixty days for good cause shown.603 The
Supreme Court has held that this provision does not violate the principle of separation of
powers.604
6. Settlements
The PLRA provides that settlements that include prospective relief must meet the same
requirements that the PLRA establishes for other court orders.605 The court must find that
these settlements are narrowly drawn, necessary to correct federal law violations, and the
least intrusive way of doing so. (In practice, parties who are settling agree to these findings,
and the court approves them.) It is no longer the case that parties can agree to a federal
court settlement on whatever terms they choose. Parties can enter into “private settlement
agreements” that do not meet the PLRA standards, but these agreements cannot be enforced
in federal court.606 In effect, they must be contracts enforceable in state court. The PLRA
does not restrict settlements not involving prospective relief (i.e., settlements involving
damages, not other relief).
M. Conclusion
By passing the Prison Litigation Reform Act, Congress has made it harder than ever for
you to have your claims heard in federal court. Though you may feel, after reading this
Chapter, that many of the provisions of the PLRA are unfair, you cannot disregard its strict
requirements. To give yourself the best possible chance of getting your claim into federal
court and having it resolved favorably, you will have to familiarize yourself with all the
portions of the PLRA that are relevant for your case.
In going back through this Chapter, you should pay attention to the “three strikes”
provisions of the PLRA (see Part C) and to the new administrative procedure exhaustion
requirements (see Part E). The three strikes rules should encourage you to consider your
decision whether to bring suit very carefully, since if a court decides you have brought a
frivolous suit, your ability to bring future suits may be jeopardized. You must also be certain
you understand the exhaustion requirements, since courts will not allow your suit to proceed
unless you have made every effort to resolve your grievance through administrative
procedures.
603. 18 U.S.C. § 3626(e)(3) (2006).

604. Miller v. French, 530 U.S. 327, 120 S. Ct. 2246, 147 L. Ed. 2d 326 (2000).
605. 18 U.S.C. § 3626(c)(1) (2006).
606. 18 U.S.C. § 3626(c)(2) (2006).
Manual
Chapter 15:
Inmate Grievance Procedures

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 15
INMATE GRIEVANCE PROCEDURES*

A. Introduction
If you have a complaint concerning your treatment at a state correctional facility, you
must consult the state’s formal inmate grievance procedures. According to the Prison
Litigation Reform Act (“PLRA”), you must exhaust (use up) all of the available grievance
procedures before you can take your complaint to court.1 You should read JLM Chapter 14,
“The Prison Litigation Reform Act,” carefully before filing any type of lawsuit. In New York,
for example, state law and the New York Inmate Grievance Program (“IGP”) require the
Commissioner of the Department of Correctional Services (“DOCS”) to establish a committee
in each correctional facility to address prisoner grievances.2 The purpose of the IGP is to
“provide each inmate an orderly, fair, simple, and expeditious method for resolving
grievances” and “to promote mediation and conflict reduction in the resolution of
grievances.”3 The details of this program appear in DOCS Directives 4040 and 4041,4 and in
Title 7 of the Codes, Rules, and Regulations of the State of New York. 5 Directive 4002
describes the Inmate Liaison Committee (“ILC”), which is concerned with prisoners’ general
welfare.6
This Chapter will help you make an informed decision about how to proceed with your
grievance, using New York’s IGP as an example. Part B discusses the PLRA requirement
that you go through the entire complaint process in your prison before taking your claim to
federal court. Part C defines the term “grievance,” discusses what kinds of claims are non-
grievable (meaning that you cannot use the IGP), and provides you with an overview on how
to write your grievance. Part D describes the basic structure of the New York IGP. Part E
looks closely at the relevant New York DOCS directives, explaining specific steps to follow
when filing a grievance through the New York IGP. Part F discusses the publication of rules
for other states’ inmate grievance procedures and how to find these rules.
If you are a foreign national (not a U.S. citizen) and are having problems with prison
conditions, or need to contact someone in your home country, you may want to contact your
consulate. The JLM Supplement on Immigration and Consular Access contains information
on how to do this.
* This Chapter was revised by Erin LaFarge based in part on previous versions by Sarah Martinez,
Samuel J. Levine, Wendy Lang, Patricia A. Sheehan, and Caroline Lim Starbird.
1. 42 U.S.C. § 1997e(a) (2000) (“No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.”).
2. N.Y. Correct. Law § 139(1) (McKinney 2003). This law was enacted in response to the 1971
Attica uprising. The McKay Commission looked into the cause of that uprising and recommended
procedures to resolve prison issues through administratively. See also Patterson v. Smith, 53 N.Y.2d
98, 101, 423 N.E.2d 23, 25, 440 N.Y.S.2d 600, 602 (1981).
3. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.1(a)–(b) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.1(a)–(b) (2006).
4. See Chapter 7 of the JLM to learn how to obtain a copy of these directives through the state
Freedom of Information Law (“FOIL”) and the federal Freedom of Information Act (“FOIA”). In
addition, ask the librarian if your prison law library has copies of the directives.
5. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701–02 (2001). Ask the librarian if your prison law
library has this code.
6. This directive has not yet been codified in the New York Code as of the JLM print date. See
JLM Chapter 7 to learn how to obtain a copy of this directive through the state Freedom of Information
Law (“FOIL”) and the federal Freedom of Information Act (“FOIA”). In addition, ask the librarian if
your prison law library has a copy of the directive.
B. Exhausting Your Administrative Remedies
The PLRA requires you to go through your prison’s entire complaint process before you
can bring a federal court claim under 42 U.S.C. § 1983 (a federal law that deals with
prisoners’ complaints). 7 Therefore, even if you believe that the grievance system in your
prison is unfair or pointless, you still have to go through all of the steps of the process to try
to resolve your grievance before you file a lawsuit.8 In New York, for example, the IGP is not
considered exhausted until you receive a final decision on your complaint from the highest
grievance committee, such as New York’s Central Office Review Committee. If you bring a
complaint in federal court under 42 U.S.C. § 1983 without first exhausting administrative
remedies, your case will be dismissed, and you might be barred from bringing a future case.9
In addition to filing your grievance under federal law, some states allow you to file your
grievance under state law too. In New York, for example, you may challenge the Central
Office Review Committee’s decision under Article 78 of New York state law.10 But just like
the federal grievance procedures, you may not bring an Article 78 proceeding until you first
pursue all administrative remedies available through the IGP.11 Even if your grievance is
denied by the initial grievance resolution committee, you still may not bring an Article 78
proceeding until you exhaust all your administrative remedies. In New York, this means you
first have to appeal the Inmate Grievance Resolution Committee’s denial to your prison’s
superintendent. If your grievance is again denied, you must appeal to the Central Office
Review Committee. Only if that committee also denies your grievance are you allowed to
bring a lawsuit in state court under Article 78 because that is the last committee to review
your claim under the state administrative grievance procedures. 12
As you go through the inmate grievance procedures, it is important to bring up right
from the beginning any issues you think you might want to raise in a later lawsuit. If you fail
to state a particular claim in your original grievance, a court may later on consider this claim
“unexhausted.” As a result, the court may dismiss this unexhausted claim and hear only the
7. 42 U.S.C. § 1997e(a) (2000). Note that the PLRA exhaustion requirement applies only to cases
filed on or after April 26, 1996 (the effective date of the PLRA), including cases where the actions
complained of occurred before the enactment. It does not apply to actions or appeals filed before its
passage. See Ancrum v. St. Barnabas Hosp., 301 A.D.2d 474, 475, 755 N.Y.S.2d 28, 31 (1st Dept. 2003)
(holding that the PLRA exhaustion requirement applies to all prisoners who sue while they are
incarcerated—including prisoners who are released before a ruling on their suit is issued); White v.
McGinnis, 131 F.3d 593, 595 (6th Cir. 1997) (finding prisoner’s claims were properly dismissed when he
had failed to exhaust his administrative remedies). See Chapter 16 of the JLM for more information on
42 U.S.C. § 1983 actions.
8. If you receive a satisfactory remedy from the IGP, then there will be no need to go to court. If
you are unsatisfied with the result of the IGP, you may then file a lawsuit in federal court.
9. Dismissal for non-exhaustion is supposed to be “without prejudice,” which means that you will
be able to come back to court after fully pursuing your prison’s grievance procedures. (A dismissal “with
prejudice” means that you cannot take that particular issue back to court.) See Wendell v. Asher, 162
F.3d 887, 892 (5th Cir. 1998); Wright v. Morris, 111 F.3d 414, 417 n.3 (6th Cir. 1997). However, if the
statute of limitations has run on your claim before you return to court, your claim may be permanently
barred. In addition, if you are able to bring your claim back to court, you will probably have to pay
another filing fee to re-file your claim in court.
10. See Chapter 22 of the JLM on Article 78 proceedings. Article 78 proceedings allow you to
challenge decisions made by New York administrative bodies or officers, like the Central Office Review
Committee.
11. See Patterson v. Smith, 53 N.Y.2d 98, 100–01, 423 N.E.2d 23, 24–25, 440 N.Y.S.2d 600, 601–
02 (1981) (dismissing prisoner’s Article 78 claim because he failed to exhaust prison’s grievance
procedures).
12. See Symmonds v. Leonardo, 138 A.D.2d 810, 810–11, 526 N.Y.S.2d 44, 45 (3d Dept. 1988)
(dismissing prisoner’s petition for failing to exhaust administrative remedies); People ex rel. Chapman
v. Sullivan, 135 A.D.2d 675, 676, 522 N.Y.S.2d 249, 250 (2d Dept. 1987) (holding that petitioners are
not entitled to an Article 78 hearing until they have exhausted all administrative remedies).
claims that you brought up in your original grievance. Courts are required to hear your
exhausted claims and are no longer allowed to dismiss the entire action if only some of the
claims are unexhausted.13 Keep in mind that in order to exhaust all of your claims, you may
have to use more than one administrative procedure. That is, you may have to go through
one review process for one of your claims and a different review process for another of your
claims.14
When you are ready to file a complaint in federal court after exhausting your
administrative remedies, make sure that your complaint states that you have already
exhausted all other remedies.
C. Grievances in New York
1. What Grievances Can Be Raised?
A grievance is defined by the New York State DOCS as “a complaint ... about the
substance or application of any written or unwritten policy, regulation, procedure or rule of
the Department of Correctional Services or any of its program units, or the lack of a policy,
regulation, procedure or rule.”15 You may raise a grievance only if it relates to a situation
that affects or will affect you personally. 16 Examples of grievable issues include: prison
official retaliation, inadequate medical care, and assignment of prison jobs.17
2. Non-Grievable Issues18
An issue is “non-grievable” when the grievance system has no remedy for it and thus
cannot be used to resolve your issue. The PLRA requires that you exhaust the IGP if any
remedy is “available” to you.19 This means that you must still go through the IGP even if it
13. Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 913, 166 L. Ed. 2d 798, 804 (2007) (holding that
judicial screening of prisoner complaints requiring total exhaustion is not permitted under the Prison
Litigation Reform Act of 1995); see also Cooper v. Garcia, 55 F. Supp. 2d 1090, 1094–95 (S.D. Cal. 1999)
(holding that only those claims that are unexhausted should be dismissed); Jenkins v. Toombs, 32 F.
Supp. 2d 955, 959 (W.D. Mich. 1999) (holding that the PLRA does not require prisoners suing for
violations of their civil rights under 42 U.S.C. § 1983 to first exhaust all their other options, sometimes
referred to as a total exhaustion requirement).
14. For example, in New York there is a separate claims review process for inmate personal
property claims. You need to exhaust this procedure before bringing a personal property claim in court.
See N.Y. Comp. Codes R. & Regs. tit. 7, § 1700 (2001).
15. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.2(a) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.2(a) (2006).
16. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.3(b) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.3(b) (2006).
17. Examples of cases in which the courts have required prisoners to exhaust administrative
remedies include the following: Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1999) (prisoner
brought § 1983 suit against prison officials alleging they assigned him to jobs that forced him to
perform work beyond his physical capabilities and medical work restrictions); White v. McGinnis, 131
F.3d 593, 595 (6th Cir. 1997) (prisoner alleged that prison officials retaliated against him after he filed
a lawsuit against another prison official); Barry v. Ratelle, 985 F. Supp. 1235, 1238 (S.D. Cal. 1997)
(prisoner brought civil rights action against prison officers claiming deliberate indifference to his
serious medical needs in violation of his 8th and 14th Amendment rights).
18. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.3(e) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.3(e) (2006).
19. Booth v. Churner, 532 U.S. 731, 733−34, 121 S. Ct. 1819, 1821, 149 L. Ed. 2d 958, 962 (2001)
(holding that the PLRA requires prisoners to exhaust administrative remedies that are available before
suing over prison conditions); see also Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998)
(holding that a prisoner was required to submit his claims for monetary and injunctive relief to
available prison grievances program, even if the relief offered by that program was not necessarily
plain, speedy, and effective); Sallee v. Joyner, 40 F. Supp. 2d 766, 767 (E.D. Va. 1999) (holding that a
prisoner must bring forth confinement-related grievances through the Administrative Remedy Program
cannot give you the exact remedy you want. If no remedy is available through the IGP, you
are not required to exhaust the grievance system. 20 However, if there is some other
administrative remedy for your claim, you will be required to pursue that remedy.
A grievance committee may dismiss and close your grievance as non-grievable if21 (a) you
have made no effort to resolve the complaint through procedures and officials at your prison;
(b) you are not or will not be personally affected by the issue in your complaint; (c) your
grievance is about the decision of a program with already established procedures, including
temporary release programs, 22 family reunion programs, 23 or media review 24 programs;
disciplinary proceedings or time allowance committee proceedings; 25 central monitoring, 26
inmate claims, or records review procedures;27 or any other program or procedure involving a
written appeal which extends review outside of the facility; 28 (d) your grievance involves
issues outside DOCS supervision; or (e)your grievance relates only to an individual no longer
in your facility.
If a majority of the committee (three out of four members) votes that your grievance falls
into one of these categories, your grievance will be dismissed as non-grievable.29 Otherwise,
the committee will hear your grievance.30 If you believe that your grievance was improperly
dismissed as non-grievable, you can apply for review directly to the IGP supervisor. You
must do so within seven calendar days after receiving the committee’s decision to dismiss the
grievance.31
You cannot use the IGP for complaints concerning the decisions of other committees such
as those relating to disciplinary proceedings and records review as listed above.32 But you
even if he seeks money damages, which are not available through the Administrative Remedy
Program).
20. See Davis v. Frazier, No. 98 Civ. 2658 (HB), 1999 U.S. Dist. LEXIS 8911, at *9–10 (S.D.N.Y.
Jun. 10, 1999) (unpublished) (citing State of New York, Department of Correctional Services, Directive
No. 3375R, which states that complaints about alleged assaults or verbal harassment and matters
under investigation by the Inspector General are non-grievable); Kearsey v. Williams, No. 99 Civ. 8646,
2004 U.S. Dist. LEXIS 18727, at *9—10 (S.D.N.Y. Sept. 16, 2004) (unpublished) (finding that a prisoner
was informed by officials at his prison that, under State of New York, Department of Correctional
Services, Directive No. 3375R, his complaint was non-grievable, which is why the prisoner sued in
court); see also Marcello v. Dep't of Corr., No. 07 Civ. 9665, 2008 U.S. Dist. LEXIS 60895, at *9
(S.D.N.Y. July 30, 2008) (stating that prisoners “may overcome the exhaustion requirement only if they
are able to show either (1) that administrative remedies were not actually ‘available’ to them; (2) that
defendant should be estopped from raising plaintiffs' failure to exhaust as an affirmative defense; or (3)
that special circumstances exist that excuse plaintiffs' non-compliance with official procedural
requirements”).
21. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(4)(i) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(b)(4)(i) (2006).
25. N.Y. Comp. Codes R. & Regs. tit. 7, § 261 (2006).
27. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.3(e)(2) (2007). Records review includes freedom of
information (FOI) requests and expunction (erasing a record). See Chapter 7 of the JLM, “Freedom of
Information,” for information about FOI requests and appeals.
28. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.3(e)(1) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.3(e)(1) (2006).
30. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(4)(iv) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(b)(4)(iv) (2006).
31. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(4)(iii) (2007); State of New York, Department
of Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(b)(4)(iii) (2006).
can use the IGP to file a grievance concerning the IGP’s general policies, rules, and
procedures.33 However, complaints you may have against any policy, regulation, or rule of an
outside agency, or action taken by an outside agency, are non-grievable under the New York
IGP.34 Outside agencies are those not under the supervision of the DOCS Commissioner,
including the Division of Parole, Citizenship and Immigration Services,35 and the Office of
Mental Health. 36 Note that New York City DOC Directive 3375R, Inmate Grievance
Resolution Program, sets out non-grievable issues specific to New York City jails.37
Finally, if you are filing a claim for loss of or damage to personal property, the New York
State Court of Claims requires you to first exhaust the administrative procedures available
for compensating prisoners.38 The IGP cannot be used to do this. See Chapter 17 of the JLM,
“The State’s Duty to Protect You and Your Property: Tort Actions,” for more information
about property claims.
If you are unsure whether an issue is grievable under the IGP, you should file a
grievance, and the committee will decide through the grievance process in Section 701.5 of
DOCS Directive 4040.39
3. How to Write an Effective Grievance
When using the IGP, you should follow several guidelines to increase your chances of
obtaining relief (help). First, if you file a formal grievance with a grievance resolution
committee, write out your grievance in detail and list exactly what attempts you made to
resolve the problem.40 If you do not try to resolve the problem on your own, your grievance
may be dismissed and closed at the grievance committee hearing.41
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.3(e)(2) (2006); see, e.g.,
Harris v. Coughlin, 143 A.D.2d 1018, 1018, 533 N.Y.S.2d 604, 605 (2d Dept. 1988) (holding that where
administrators deny a prisoner’s temporary release application, and then deny his only chance at
administrative appeal, he can seek judicial review).
33 . State of New York, Department of Correctional Services, Directive No. 4040, Inmate
Grievance Program § 701.3(e)(3) (2006). An example of a rule that could be challenged using the IGP is
the rule governing membership of the Temporary Release Committee. See Cintron v. Coughlin, 141
A.D.2d 1006, 1007, 531 N.Y.S.2d 46, 47 (3d Dept. 1988) (allowing prisoner to challenge his rejection for
release by the Temporary Release Committee by arguing that a parole officer should not be allowed on
the committee). Note that this decision is pre-PLRA, but it serves as an example of the grievable rules
of the committees listed in DOCS Directive 4040.
34. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(4)(i)(d) (2007); State of New York, Department
of Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(b)(4)(i)(d) (2006).
35. The U.S. Citizenship and Immigration Services is a bureau of the Department of Homeland
Security and was formerly referred to as Immigration and Naturalization Services.
36. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.3(f) (2006); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.3(f) (2006).
37 . New York City Department of Correction, Directive No. 3375R-A, Inmate Grievance
Resolution Program § II(C) (1982) (as revised Mar. 4, 1985), available at
http://home2.nyc.gov/html/doc/html/directives/dept_directives.shtml (select “Inmate Grievance
Resolution Program” from the alphabetized list of documents) (last visited Oct. 3, 2008). This city jail
grievance directive lists the following issues as non-grievable: matters under investigation by the
Inspector General; complaints pertaining to an alleged assault or verbal harassment; complaints
pertaining to matters in litigation; complaints where there is already an existing appeal mechanism
within the Department of Correction; matters outside the jurisdiction of the Department of Correction;
and complaints not directly affecting the prisoner.
38. N.Y. Ct. Cl. Act § 10(9) (McKinney 1989 & Supp. 2008) (“[F]ailure to timely comply with
statutory filing requirements of the Court of Claims Act … constitutes a fatal jurisdictional defect.”).
Because of the strict time limits in the Court of Claims, you should exhaust administrative procedures
as soon as possible before filing a tort claim in court.
40. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(2) (2007); State of New York, Department of
Second, your complaint must show that you are personally affected by the policy or issue
you are filing a grievance against or that you will be affected unless relief is granted and
changes are made.42
Third, you should state the problem accurately and precisely. Using inflammatory,
disrespectful, offensive, or foul language (such as curse words) in your complaint will reduce
your chances of success.
Fourth, the more specific you are about the relief you are seeking, the more likely you are
to receive it. You should list in detail every aspect of relief that you seek because the inmate
grievance resolution committee may not consider types of relief that you do not specifically
request.
Finally, you should keep copies of all papers filed and received. For a more detailed
discussion of what information you must include in your grievance, see Part E of this
Chapter.
D. The Basic Structure of the New York IGP
1. Levels of Authority
The IGP has three levels of authority: the Inmate Grievance Resolution Committee
(“IGRC”), the Superintendent, and the Central Office Review Committee (“CORC”).43
(a) The Inmate Grievance Resolution Committee (“IGRC”)
Each correctional institution must have an IGRC. 44 The IGRC must be a five-person
group, made up of two voting prisoners, two voting staff members, and a non-voting
chairperson.45 The prisoner IGRC representatives are elected by their peers for a term of six
months and ordinarily serve full-time.46 A prisoner representative may not be removed from
his position without a limited due process hearing.47
(b) The Role of the Superintendent and Staff
The superintendent selects staff IGRC representatives from a list of personnel who
successfully complete a training course designed for individuals who want to serve as IGRC
representatives. 48 The Superintendent must ensure that the IGP staff is trained and
available.49 Chairpersons for IGRC hearings are selected by the IGP Supervisor from a list
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(a)(2) (2006).
41. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.3(a), 701.5(b)(4)(i)(a) (2007); State of New York,
Department of Correctional Services, Directive No. 4040, Inmate Grievance Program §§ 701.3(a),
701.5(b)(4)(i)(a) (2006).
42. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.3(b), 701.5(b)(4)(i)(b) (2007); State of New York,
Department of Correctional Services, Directive No. 4040, Inmate Grievance Program §§ 701.3(b),
701.5(b)(4)(i)(b) (2006).
43. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.1(c) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.1(c) (2006).
46. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.4(b)(2), (4) (2007); State of New York, Department
of Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.4(b)(2), (4) (2006).
47. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.4(c)(1) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.4(c)(1) (2006).
48. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.4(d) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.4(d) (2006).
submitted by the IGRC representatives.50 The chairperson may be a prisoner, staff member,
or a volunteer associated with the facility’s program.
(c) The Central Office Review Committee (“CORC”)
CORC consists of Deputy Commissioners and staff members.51 It functions on behalf of
and under the authority of the Commissioner of Correctional Services. 52 An Office of
Diversity Management representative attends CORC hearings and may offer input on
grievances alleging discrimination, but cannot vote.53
CORC decisions have the effect of directives. CORC decisions requiring corrective action
are implemented by the appropriate facility and/or departmental office. 54 Although the
Director of the IGP is not a voting member of the CORC, he is responsible for the
administrative function of the IGP and for ensuring that the appropriate facility and/or
departmental office carry out CORC decisions.55
E. The New York IGP Rules
Understanding how the IGP works will help you use the program effectively. The rules
are in two DOCS directives. Directive 4040 contains the rules for the general program, while
Directive 4041 contains alternative rules for special facilities. The policies, rules, and
procedures contained in Directives 4040 and 4041 are also in Title 7 of the Codes, Rules, and
Regulations of the State of New York.56 Also, Directive 4002 establishes the Inmate Liaison
Committee (“ILC”), which is concerned with the general welfare of prisoners.
1. Directive 4040: The Inmate Grievance Program
(a) General Procedures
IGP procedures work along three levels of authority: the IGRC, the Superintendent, and
the CORC. As noted earlier, before filing a complaint with the IGRC, you should try to
resolve the complaint on your own through existing formal or informal methods.
(b) The IGRC
(i) Filing the Complaint57
You must submit your complaint to the Grievance Clerk, using the Inmate Grievance
Complaint Form 2131, within twenty-one calendar days of the incident described in your
complaint.58 In some cases, the IGP supervisor can approve exceptions to this time limit if
you attempt to resolve the situation on your own or if your complaint is referred back to the
51. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(2)(i) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(d)(2)(i) (2006)
52. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(2)(ii) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(d)(2)(ii) (2006).
53. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(2)(iii) (2007); State of New York, Department
of Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(d)(2)(i) (2006)
of Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(d)(2)(ii) (2006).
of Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(d)(2)(iii) (2006).
56. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701–02 (2007).
IGP by the courts.59 If for some reason a grievance form is not available, you should submit
your complaint to the clerk on a piece of paper. Your Grievance Form must include your
name, Department Identification Number, housing unit, program assignment, and other
identifying information. In addition, your grievance must include a short, specific description
of the problem and the remedy you are requesting. You must also provide details of the
actions you have already taken to try to resolve the complaint, including people you have
contacted and responses you have received. If you submit your complaint on a plain piece of
paper, be sure to include the same information.
(ii) Informal Resolution60
IGRC Representatives may try to solve the problem informally instead of conducting a
formal hearing. If they do this, it will be within sixteen calendar days of the time the
grievance was filed. If the IGRC resolves the matter to your satisfaction, it will enter the
resolution, along with your consent, on the Complaint Form.
(iii) IGRC Hearing61
If there is no resolution, the full IGRC will consider your complaint. If a hearing is
necessary, it must be held within sixteen calendar days after your complaint was filed.62 The
IGRC will conduct the hearing at a set time and place. At the hearing, you, your advisor,
anyone the grievance directly affects, or any witnesses can offer evidence. The IGRC will
judge the relevance and importance of the evidence offered.63
You can miss your IGRC hearing twice before the committee will rule in your absence, as
long as you miss your hearing for a legitimate reason, such as a visit, parole hearing,
program committee, sick call, keeplock, etc. 64 However, at the third scheduled hearing, it
will rule in your absence even if you have a good excuse. You should make every effort to be
at the hearing so you can explain your evidence.
If your confinement status prevents you from appearing within sixteen days and you will
be released within thirty calendar days, you can have the hearing postponed until your
release or have the hearing held in your absence.65 But, if you will not be released within
thirty days, the hearing will be held without you.66
(iv) Committee Decision/Recommendation67
After the hearing, the IGRC will discuss the complaint privately. When it has reached a
decision, the IGRC may tell you the decision orally. Within two working days of the hearing,
59. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(g) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.6(g) (2006).
60. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(1) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(b)(1) (2006).
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(b)(2) (2006).
62. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(2)(ii) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(b)(2)(ii) (2006).
63. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(2)(iii) (2007); State of New York, Department
of Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(b)(2)(iii) (2006).
64. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(2)(ii)(b) (2007); State of New York, Department
of Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(b)(2)(ii)(b) (2006).
65. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(2)(ii)(a) (2007); State of New York, Department
of Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(b)(2)(ii)(a) (2006).
66. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(2)(ii)(a) (2007); State of New York, Department
of Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(b)(2)(ii)(a) (2006).
67. NY. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(3) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5 (b)(3) (2006).
the Committee must inform you of its decision and reasons in writing. 68 If the decision
requires action by the Superintendent or Central Office, the IGRC will make
recommendations for the Superintendent to respond and take action. If a majority of the
committee cannot agree, your complaint will be sent to the Superintendent for a response.69
(v) Dismissals70
As discussed in Part C, the IGRC may dismiss and close your grievance if: (1) you have
made no effort to resolve the complaint on your own; (2) you are not or will not be personally
affected by the issue you raise; (3) you seek a remedy is available through other DOCS
programs; (4) your grievance involves issues outside the supervision of DOCS; or (5) the
grievance relates only to an individual no longer in your facility.71
(c) Appealing to the Superintendent
(i) Filing an Appeal72
Within seven calendar days of receiving the Committee’s written response to your
grievance, you may appeal the decision to the Superintendent by filing an appeal with the
Grievance Clerk. If you want to appeal the decision, it is important that you file in time. If
you do not file within seven calendar days, it will be presumed that you have accepted the
IGRC’s decision.
(ii) Superintendent’s Action73
The Superintendent’s response to your appeal will depend on whether the issue involved
is a departmental or an institutional issue. A Departmental Grievance is one that would
affect you during your confinement at any of the facilities in the Department. 74 An
Institutional Grievance is one affecting you only as long as you remain a resident of the
facility in which you filed the grievance.75
If the matter concerns changing or revising a Departmental policy or directive, then the
Superintendent will forward the grievance papers and a recommendation to the CORC for
further review—and notify you that he has done so—within seven calendar days of the
appeal. Otherwise the Superintendent will answer your appeal within twenty calendar
days.76
In all institutional matters, the Superintendent will make a decision and notify you of it,
with reasons stated, within twenty calendar days of the appeal.77
69. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b)(3)(ii) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(b)(3)(ii) (2006)
Correctional Services, Directive No. 4040 , Inmate Grievance Program § 701.5(b)(4) (2006).
74. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.2(b) (2007). State of New York, Department of
75. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.2(c) (2007). State of New York, Department of
76. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(c)(3)(i) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(c)(3)(i) (2006).
77. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(c)(3)(ii) (2007). State of New York, Department of
(d) Appeal to the CORC
(i) Filing an Appeal78
If you are not satisfied with the Superintendent’s decision, you may appeal the
Superintendent’s action to the CORC. To do so, you must file an appeal (Form 2133) with the
Grievance Clerk within seven calendar days of receiving the Superintendent’s written
response.79
(ii) CORC Action
The CORC will review the appeal, make a decision, and inform you of its decision and
reasons stated within thirty calendar days from the time it receives the appeal.80 It may take
the CORC up to six working days to actually receive your appeal.
(e) Procedural Safeguards for Fair Consideration of Grievances
(i) Advisors81
During the grievance process, you may either present the grievance yourself, receive
advice or assistance from a staff member who is willing to serve as an advisor, or receive
assistance from another prisoner. An advisor is not a direct party to a grievance.82 A direct
party is a person who is so affected by the grievance that he is given the opportunity to
provide input before the decision, and he can also appeal it afterward.83
In addition, if you are a prisoner in a Special Housing Unit, you will have restricted
access to other prisoners and may be prohibited from using another prisoner as an advisor
(or from serving as an advisor to another prisoner). In this situation, a willing staff member
can serve as your advisor.84
(ii) Reprisals Prohibited85
Reprisal means “any action or threat of action against anyone for the good faith use of ...
the grievance procedure.”86 This rule forbids any reprisal, or retaliation, to be taken against
you if you use the IGP to file an honest grievance. If such retaliation occurs, you can respond
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(c)(3)(ii) (2006).
78. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(1) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(d)(1) (2006).
79. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(1)(i) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(d)(1)(i) (2006).
80. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(3)(ii) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.5(d)(3)(ii) (2006). Note that
the code has an error and does not have § 701.5(d)(3) in between § 701.5(d)(2) and § 701.5(d)(4).
Instead, it lists § 701.5(d)(2) twice. The JLM cites to § 701.5(d)(3) to refer to the second § 701.5(d)(2)
that is listed. However, you should cite to § 701.5(d)(2) if you are using this provision in preparing
written documents.
81 . N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.2(h), 701.6(a) (2007); State of New York,
Department of Correctional Services, Directive No. 4040, Inmate Grievance Program §§ 701.2(l),
701.6(a) (2006).
82. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.2(h) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.2(l) (2006).
83. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.2(i) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.2(m) (2006).
86. 28 C.F.R. § 40.9 (2002).
by filing a complaint. You also cannot receive a misbehavior report for making an allegedly
false statement to the IGP.87
(iii) Objection to IGRC Representatives88
If you object to any of the prisoner representatives on the IGRC, that person will not take
part in the resolution of your grievance and will be replaced by one of the alternates. If you
object to all of the prisoner representatives and the alternates, the committee staff members
will make the decision on their own. In addition, a staff representative who is a party to your
grievance cannot vote on the matter. In some especially sensitive circumstances, only staff
members will conduct the investigation, even if you do not object to the prisoner
representatives.89 If that happens, the prisoner representatives will still vote.
(iv) Code of Ethics90
A Code of Ethics for IGRC staff and prisoner representatives, clerks, and chairpersons
has been established to strengthen the credibility and effectiveness of the IGP. 91 For
example, the Code of Ethics prohibits IGRC members from preventing a prisoner from filing
a grievance92 or improperly disclosing confidential information.93 Under the Code of Ethics, a
member must have a willing, respectful attitude, a working knowledge of the IGP, and
awareness of their own responsibilities.94
(v) Time Limits95
Time limit extensions for review by the IGRC may only be granted if you consent in
writing. Otherwise, if a matter is not decided within the time limit, you may appeal to the
next level.
(vi) File Maintenance/Confidentiality96
Grievance files are maintained in a specific area to be used by the IGRC and the Clerk.
Unless you consent in writing, no copies of documents may be placed in your central file or
facility file. None of the grievance materials will be given to anyone other than you, a direct
party, or someone involved in the review process. The Superintendent is responsible for
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.6(e)(2) (2006).
90 . State of New York, Department of Correctional Services, Directive No. 4040, Inmate
Grievance Program § 701.6(f) (2006). The Code of Ethics can be found in N.Y. Comp. Codes R. & Regs.
tit. 7, § 701.11 (2006) and in the State of New York, Department of Correctional Services, Directive No.
4040, Inmate Grievance Program § 701.11 (2006).
91. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(f)(1) (2006); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.6(f)(1) (2006).
94. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.11(b), (h) (2006); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.11(a)–(b) (2006).
95. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(g)(2) (2006); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.6(g)(2) (2006).
96. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(k) (2006); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.6(k) (2006).
assuring the confidentiality and maintenance of grievance records. Grievance files are kept
for at least four years following their conclusion.97
(vii) IGRC Reference Materials98
The IGRC at each facility is responsible for keeping an up-to-date set of Departmental
Directives and the IGP Monthly Index of Written Opinions. A copy of the Index must also be
kept in the prison law library.
(viii) Emergencies99
If your grievance is an emergency, it will be referred directly to the Superintendent or
the CORC, depending on who has the authority to ensure a quick and meaningful response.
Emergencies include situations in which your health, safety, or welfare is in danger.
(f) Procedures for Prisoners in Special Housing Units100
If you are living in a Special Housing Unit (“SHU”), your access to the IGRC may be
more restricted than that of general population prisoners. So, facilities must follow many
procedures to help you file a grievance.
For example, Inmate Grievance Complaint Forms must be available to you at all
times.101 You will be given envelopes so you may forward your grievance confidentially to the
Inmate Grievance Office.102 Your facility may use Inmate Grievance boxes instead of sealed
envelopes. These boxes are to be kept locked, and only the IGP supervisor and staff
representatives should have keys to them. The grievances will be collected from these boxes
at least twice a week.103 You also have direct access to members of the IGRC, who must make
rounds to all special housing units at least once a week to “give inmates who are having
communication problems or difficulty writing their complaints an opportunity to request and
receive assistance.” 104 For security reasons, you may have to use staff, and not another
prisoner, as your advisor.105
(g) Employee Harassment106
There are expedited procedures for grievances concerning employee harassment.
Employee harassment is defined as “employee misconduct meant to annoy, intimidate or
harm an inmate.” 107 Under these conditions, you should first report the problem to the
97. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(k)(3) (2006); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.6(k)(3) (2006).
98. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(l) (2006); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.6(l) (2006).
99. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(m) (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.6(m) (2006).
100. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.7 (2007); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.7 (2006).
harassing employee’s immediate supervisor; however, this is not a requirement.108 You can
still file a complaint in the IGP if you choose not to report the employer to his supervisor. In
cases of harassment, your grievance and supporting documents will be sent directly to the
Superintendent by the end of the day.109 If the Superintendent concludes that the issue does
not relate to harassment, then the grievance will be returned to the IGRC for normal
processing.110
If the Superintendent determines that the issue does relate to harassment, he must
investigate further, and you will not be allowed to withdraw your complaint. 111 The
Superintendent will then make a decision within twenty-five calendar days and inform you
of the decision with reasons stated.112 The time limit can be extended only with your consent.
If the Superintendent does not respond within twenty-five days, you may appeal to the
CORC by filing a Form 2133 with the Clerk. 113 If you receive a decision from the
Superintendent and you want to appeal, you must file your appeal within seven calendar
days.114
(h) Unlawful Discrimination115
Unlawful discrimination includes “acts or policies which adversely affect individuals
based on race, religion, national origin, sex, sexual orientation, age, disabling condition(s) or
political belief, except as provided by law.” 116 If you are being unlawfully discriminated
against by an employee, program, policy, or procedure, you should report the incident to the
immediate supervisor of the offending employee. But, this is not required before filing a
complaint in the IGP.117 This grievance will be forwarded to the Superintendent, and a copy
sent to the Office of Diversity Management within twenty-four hours. 118 Either the
Superintendent and high ranking supervisor or the Office of Diversity Management will
investigate.119
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.2(i) (2006).
111. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8(d)–(e) (2006); State of New York, Department of
114. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8(h) (2006); State of New York, Department of
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.8(h) (2006); see, e.g.,
Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002) (finding that behavior of officials fit within the
category of “inmate suits about prison life” where prisoner alleged that prison officials fabricated
misbehavior reports and related improper action in retaliation for earlier complaints of staff
misconduct filed by prisoner).
Correctional Services, Directive No. 4040, Inmate Grievance Program § 701.2(j) (2006).
After supervising an investigation, the Superintendent will give a decision within
twenty-five calendar days of the grievance and inform you of the decision, with reasons
stated.120 If the Superintendent does not respond within twenty-five days, you may appeal to
the CORC. 121 If you receive a decision from the Superintendent and want to appeal, you
must file Form 2133 with the Clerk within seven calendar days.122
2. Directive 4041: The Inmate Grievance Program Modification Plan
(a) Application of the IGP Modification Plan
It may be difficult for some prisoners to participate in regular IGP procedures. For
example, if you are involved in a temporary release program, you may spend many hours
each day looking for a job or education, and you may have weekend furloughs (leaves of
absences) and daily family visits. In cases like these, the IGP Modification Plan is used to
allow you the same opportunity to file a grievance.123
(b) Procedures
The procedures for filing a grievance under the Modification Plan are found in N.Y.
Comp. Codes R. & Regs. tit. 7, § 702.2 and also in DOCS Directive 4041 § 702.4(a)–(c). First,
you must request a grievance form, and one will be provided to you within twenty-four hours
of your request. You can ask for help in filling out the form from any prisoner or staff
member. A designated staff member will have sixteen calendar days to try to resolve your
grievance informally. If no resolution occurs, the staff member will request an Inmate
Grievance Resolution Committee hearing within sixteen calendar days of receiving your
grievance.124 IGRC members include two staff representatives and a non-voting chairperson
the Superintendent chooses, and two prisoners you choose. After the hearing, the IGRC will
make a recommendation about your claim.
Within seven calendar days after you receive a written recommendation from the IGRC,
you can appeal to the Superintendent. The appeal will follow the procedure described in Part
E(1)(c) of this Chapter. If you do not file an appeal within seven calendar days, you are
presumed to have accepted the recommendation.125
Within seven calendar days of receiving the Superintendent’s response, you can appeal to
the Central Office Review Committee.126 The appeal will follow the procedure described in
Part E(1)(d) of this Chapter.
120. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.9(e) (2006). State of New York, Department of
Correctional Services, Directive No. 4041, Inmate Grievance Program Modification Plan § 702.2(a)
(2007).
Correctional Services, Directive No. 4041, Inmate Grievance Program Modification Plan § 702.4(a)(4)
(2007).
Correctional Services, Directive No. 4041, Inmate Grievance Program Modification Plan § 702.4(b)(1)
(2007).
Correctional Services, Directive No. 4041, Inmate Grievance Program Modification Plan § 702.4(c)(1)
(2007).
3. Directive 4002: The Inmate Liaison Committee
The Superintendent in your facility must establish an Inmate Liaison Committee
(“ILC”).127 This committee’s goal is to provide effective communication between prisoners and
the administration, and to promote the accurate distribution and exchange of information.
The ILC must discuss the prisoners’ general welfare with prison officials. This includes, for
example, suggestions from prisoners on facility operations. These discussions may not relate
to specific problems of individual prisoners. The Superintendent and Facility Executive
Team will meet with the ILC monthly, and informal discussions should occur consistently.
The ILC is made up of a group of prisoners chosen by the general population.
Representatives are elected by secret ballot for a term of six months and may serve for two
terms in a row. The ILC will elect officers and an executive committee who can serve for one
six month term per year. The Superintendent can deny membership to prisoners with recent
or ongoing disciplinary problems.128
The ILC must have a room with facilities, including a typewriter, desks, supplies, and
stationery.129 The ILC will be governed by a Constitution and By-Laws, which it will prepare
with the help of a staff member. A suggested format for the Constitution and By-Laws is
attached to Directive 4002.130
F. Rules for Inmate Grievance Procedures in Other States
In 1979, Congress set out minimum standards for formal inmate grievance procedures to
help reduce the large number of prisoner civil rights cases that were waiting to be heard in
courts.131 States with grievance procedures that meet these standards are certified by the
Attorney General.132 Remember, you must exhaust all available administrative procedures
before you can file a claim under 42 U.S.C. § 1983.133
In order for an inmate grievance procedure to be certified, the state must meet certain
federal minimum standards for the communication of those procedures to all prisoners.134
One of the requirements set out by Congress is that all IGPs must be published. A certified
inmate grievance procedure must also be readily available to all prisoners and employees of
the institution. Every prisoner and employee must receive written notification of the
procedure when they get to the institution. You must also be given a verbal explanation of
the procedure and the opportunity to ask questions about the procedure at that time. The
procedure must be written in any language that is spoken by a significant portion of the
prison population. Provisions must be made to aid prisoners who speak other languages, as
well as for those with disabilities.
In general, you should be able to find guidelines and procedures for filing a grievance in
your prison law library. Ask your librarian if you need help finding them. It is important for
127. State of New York, Department of Correctional Services, Directive No. 4002, Inmate Liaison
Committee § II(A) (1997) (as revised Sept. 21, 2006).
Committee § II(B)(5) (1997) (as revised Sept. 21, 2006).
Committee § II(E) (1997) (as revised Sept. 21, 2006).
Committee § II(F) (1997) (as revised Sept. 21, 2006).
131. S. Rep. No. 96-416, at 34 (1979), as reprinted in 1980 U.S.C.C.A.N. 787, 816. The minimum
standards for inmate grievance procedures can be found at 28 C.F.R. §§ 40.1–40.10 (2007).
132 . 42 U.S.C. § 1997e (2000). The procedures for obtaining certification of a grievance
procedure can be found at 28 C.F.R. §§ 40.11–40.22 (2007).
133. 42 U.S.C. § 1997e(a) (2000). See Chapter 16 of the JLM for more information on § 1983
claims.
134. 28 C.F.R. § 40.11(b) (2007). For a detailed description of how these procedures must be
communicated, see 28 C.F.R. § 40.3 (2007).
you to understand these rules before filing your grievance to make the best use of the
grievance procedure.
G. Conclusion
If you have a grievance, you must go through your state’s inmate grievance program
before going to court. Once you receive a final decision from the IGP, you may file a
complaint in court. If you fail to exhaust your remedies, your case will be dismissed. Even if
you feel that the grievance system in your prison is unfair or inefficient, you must exhaust it.
Though all of the requirements under the PLRA may seem complicated and intimidating,
you should try your best to properly exhaust your grievance. If you make an honest, good-
faith effort to comply with the requirements, courts are more likely to excuse mistakes. For
example, if you miss a deadline, you should not give up. Continue to pursue your grievance
and request to be excused from the rule you failed to follow, or ask to be able to refile your
grievance and start over.
Manual
Chapter 16:
Using 42 U.S.C. § 1983 and 28 U.S.C.
§ 1331 to Obtain Relief From
Violations of Federal Law

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 16
USING 42 U.S.C. § 1983 AND 28 U.S.C. § 1331

TO OBTAIN RELIEF FROM VIOLATIONS OF FEDERAL LAW*
A. Introduction
1. Overview
The U.S. Constitution and some federal laws protect you against unfair government
actions by giving you individual rights. For example, the Eighth Amendment protects your
right to be free from cruel and unusual punishment,1 and the First Amendment protects your
right to practice your religion.2 But, the Constitution does not tell you what to do if someone
violates your constitutional or statutory rights.3 The Civil Rights Act of 1871 (“Section 1983”)
is the law allowing prisoners to bring suits challenging state or local prison conditions that
violate constitutional or federal statutory rights.4
Specifically, Section 1983 allows you to sue state and local (but not federal) officials who
have violated your rights. 5 You can also use Section 1983 to challenge prison rules and
regulations—for example, restrictions on religious practices or cell assignment policies—that
violate constitutional and statutory rights. These rights are explained in other Chapters of
the JLM. See Figure 1 of this Chapter for a list of different types of your rights.
You can use a different law, 28 U.S.C. § 1331, to sue federal officials for violating your
constitutional rights.6 Section 1331 gives federal courts the power to hear claims against the
federal government. These lawsuits are usually called Bivens actions.
* This Chapter was revised by Elana Pollak, based on previous versions by Amy Lowenstein, Colin
Starger, Ambreen Delawalla, Michael Irvine, Kimberly Mazzocco, Manjula Gill, Amy Longo, Paul
Clabo, and Kim Sweet. Special thanks to John Boston of The Legal Aid Society for his valuable
comments.
1. U.S. Const. amend. VIII.
2 . U.S. Const. amend. I. See Figure 1 of this Chapter for a list of your other important
constitutional rights.
3. “Constitutional rights” are those rights guaranteed by the U.S. Constitution. Section 1983
cases usually involve constitutional rights from the first 10 Amendments to the Constitution (the Bill of
Rights) or the 14th Amendment. The Bill of Rights was originally written to limit only the power of the
federal government, but the Supreme Court has ruled that most Bill of Rights guarantees also protect
citizens against state governments. E.g., Ingraham v. Wright, 430 U.S. 651, 673 n.42, 97 S. Ct. 1401,
1414 n.42, 51 L. Ed. 2d 711, 731 n.42 (1977) (holding that the 4th Amendment was incorporated
against the states by the 14th Amendment).
“Federal statutory rights” are rights created by federal laws enacted by Congress. Many federal
statutes include their own “enforcement provisions,” which means that the statute gives you a
particular right and allows you to sue someone for violating that right. If a federal statute has its own
enforcement provision, you must use that statute rather than § 1983 to bring your lawsuit. See Part
B(3) of this Chapter for more information about statutory rights and § 1983.
4. 42 U.S.C. § 1983 (2000). See Part B(1) of this Chapter for complete language of the statute.
5. See Monroe v. Pape, 365 U.S. 167, 173–74, 81 S. Ct. 473, 477, 5 L. Ed. 2d 492, 498 (1961)
(holding that § 1983 gives a federal remedy to parties deprived of constitutional rights, privileges, and
immunities by an official’s abuse of his position), overruled in part on other grounds, Monell v. N.Y.
City Dep’t of Social Servs., 436 U.S. 658, 695–701, 98 S. Ct. 2018, 2038–41, 56 L. Ed. 2d 611, 638–41
(1978) (holding that when the official policy of a government agency causes a harm, the government is
liable under § 1983). If an official deprives you of constitutional or federal statutory rights, you may
also be able to sue that official under state law. However, § 1983 allows you to sue that official under
federal law regardless of whether a state remedy is available. Monroe v. Pape, 365 U.S. 167, 173–74, 81
S. Ct. 473, 477, 5 L. Ed. 2d 492, 498 (1961) (detailing several reasons you might prefer to use federal
law instead of state law to seek your remedy).
6. 28 U.S.C. § 1331 (2000).
This Chapter is organized into several Parts. This Part, Part A, is the introduction and
includes important warnings and general advice. Part B explains how to use Section 1983 to
challenge state prison conditions and other practices that violate your constitutional or
federal statutory rights. Part C explains what you can sue for (the types of relief, like money
damages or injunctions), whom to sue, typical defense arguments you will have to defeat,
when to sue, where to sue, and how to proceed with your Section 1983 suit. Part D describes
other ways to bring lawsuits, including class actions and state court lawsuits. Part E
explains Bivens actions against federal officials under 28 U.S.C. § 1331. Note that Bivens
actions closely rely on case law interpreting Section 1983, so if you want to bring a Bivens
action, you should still read all of this Chapter. Finally, the Appendices to this Chapter have
sample forms that you can use as examples when preparing your case.
Figure 1 below explains your rights, the source of each of your rights, and which JLM
chapters to read.
Types of Prisoner Source of JLM Chapter

Rights Constitutional
Right7
Mail, visitation, telephone use, First Amendment Chapter 19, “Your Right to
and other communications Communicate with the Outside
World”
Religious practices First Amendment Chapter 27, “Religious Freedom in

Prison”
Searches and seizures of Fourth Amendment Chapter 25, “Your Right to Be Free
pretrial detainees; body From Illegal Body Searches”
searches.
Prison conditions: Eighth Amendment Chapter 16, “Using 42 U.S.C. §

overcrowding, cleanliness, etc. 1983 and 28 U.S.C. § 1331
to Obtain Relief From
Violations of Federal Law”
(this chapter)
Medical care Eighth Amendment Chapter 23, “Your Right to Adequate

Medical Care”
Assault/failure to protect Eighth Amendment Chapter 24, “Your Right to Be Free

From Assault”
Informational privacy Fourteenth Amendment Chapter 26, “Infectious

Diseases: AIDS, Hepatitis, and
Tuberculosis in Prison,” and
Chapter 23, “Your Right to
Adequate Medical Care”
7 . This chart is only a simple outline for in which parts of the Constitution courts have
traditionally located the rights at issue. Some of these rights may also be protected by federal statutes.
Your case will depend on your particular facts, so you should only use this chart as guide to begin your
research and then research further on your own.
Types of Prisoner Source of JLM Chapter
Rights Constitutional
Right7
Due Process in disciplinary Due Process Clause of Chapter 18, “Your Rights at Prison
hearings the Fifth & Fourteenth Disciplinary Proceedings”
Amendments
Discrimination on the basis of, Equal Protection Clause Chapter 16, “Using 42 U.S.C. §
race, ethnicity, etc. of the Fourteenth 1983 and 28 U.S.C. § 1331
Amendment to Obtain Relief From
(this chapter)
Discrimination on the basis of Equal Protection Clause Chapter 16, “Using 42 U.S.C. §
gender of the Fourteenth 1983 and 28 U.S.C. § 1331
Amendment to Obtain Relief From
(this chapter)
Rights of prisoners with Eighth & Fourteenth Chapter 29, “Special Issues for
mental illness Amendments Prisoners with Mental Illness”
Discrimination on the basis of Equal Protection Clause Chapter 28, “Rights of Prisoners with
disability of the Fourteenth Disabilities”
Amendment
Discrimination on the basis of Equal Protection Clause Chapter 30, “Special Information for
sexual orientation or gender of the Fourteenth Lesbian, Gay, Bisexual, and
identity Amendment Transgender Prisoners”
Access to courts—law First, Sixth, & Chapter 3, “Your Right to Learn the
libraries or legal assistance Fourteenth Amendments Law and Go to Court”
Figure 1: Other JLM Chapters that may help you bring a Section 1983 Claim
2. Important Warnings and General Advice
(a) It Is VERY Important That You Read Chapter 14 of the JLM, “The
Prison Litigation Reform Act,” Before You Begin Your Section 1983
Claim.
The Prison Litigation Reform Act (“PLRA”)8 is a federal law that significantly affects
Section 1983 cases. You need to make sure that you meet all of the PLRA requirements
before you begin any lawsuit. In particular, be aware of the PLRA’s “three strikes” rule,
which gives you a “strike” whenever you have a case dismissed as frivolous, malicious, or
failing to state a valid legal claim. If you have three cases dismissed as “strikes,” you will not
be able to use the in forma pauperis procedure9 any longer.
Another PLRA requirement you should be especially careful about is the need to exhaust
(use up) your administrative remedies—like prison grievance procedures and appeals—before
8. 42 U.S.C. § 1997e (2000).

9. In forma pauperis allows you to file a lawsuit as a “poor person.” Filing in forma pauperis
allows you to avoid paying many of the normal court fees and costs or pay them on an installment plan.
going to court. In other words, you need to figure out what procedures exist in your prison to
protest your situation and use all of those procedures.10 Some courts used to require you to
describe what you have done to exhaust your remedies in your complaint; but, in Jones v.
Bock, the Supreme Court said that such rules are not allowed.11 Many prisoner Section 1983
complaints are dismissed for failing to exhaust administrative remedies.12
(b) Your Constitutional Rights Are Not Absolute.
In most cases, a prisoner’s constitutional rights are balanced against the state or federal
government’s interests (usually, the government’s interest in maintaining a secure prison
environment). In many situations, your constitutional rights may be outweighed by the
government’s interest in prison security. For most constitutional claims, courts use a test
from a case called Turner v. Safley13 to determine whether your constitutional rights have
been violated. This test is discussed in detail in Part B(2)(a) of this Chapter.
(c) Do NOT Use Section 1983 to Challenge Your Original Criminal
Conviction, Your Sentence, Loss of Good Time, or Denial of Parole.
You cannot use Section 1983 to challenge violations of your constitutional rights in the
course of your criminal conviction and sentencing, except in very limited circumstances.14
Instead of Section 1983, you can challenge your conviction or sentence by appealing, or if
your appeal is denied, filing for a writ of habeas corpus or other post-conviction relief.15 You
also cannot use Section 1983 to challenge a loss of good-time credit, a parole denial, or other
official actions that directly affect how much time you spend in prison.16 You should use state
procedures to challenge these losses. For example, in New York, prisoners can challenge the
loss of good-time credit or denial of parole through an Article 78 proceeding. 17 For
information about Article 78 proceedings, see Chapter 22 of the JLM, “How to Challenge
Administrative Decisions Using Article 78 of the New York Civil Practice Law and Rules.”
10. See JLM, Chapter 15, “Inmate Grievance Procedures.”

11. Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 921–22, 166 L. Ed. 2d 798, 813–14 (2007).
12. See, e.g., Booth v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819, 1825, 149 L. Ed. 958, 967
(2001) (holding that petitioner did not exhaust all available administrative remedies when he failed to
appeal an unfavorable administrative decision to the highest level of review).
13. Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). Turner applies to
substantive constitutional rights. Prisoners’ rights subject to the Turner test include the right to
freedom of speech, freedom of association, free exercise of religion, and to marry (subject to
restrictions). Note that 8th Amendment “cruel and unusual” violations are not judged under the Turner
test. See Part B(2)(a) of this Chapter for more information on the Turner test. Always remember: you
may have a better claim under a federal statute than § 1983 and the Turner test.
14. See Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383, 394
(1994) (holding that § 1983 suits are not available if the outcome of the suit would imply that a
prisoner’s conviction or sentence is invalid, unless he proves that his conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized
to make such a determination, or called into question by a federal court’s issuance of a writ of habeas
corpus).
15. See Chapter 9 of the JLM, “Appealing Your Conviction or Sentence;” Chapter 20, “Using
Article 440 of the New York Criminal Procedure Law to Attack Your Unfair Conviction or Illegal
Sentence;” Chapter 13, “Federal Habeas Corpus;” and Chapter 21, “State Habeas Corpus” for more
information on post-conviction relief.
16. See Edwards v. Balisok, 520 U.S. 641, 648, 117 S. Ct. 1584, 1589, 137 L. Ed. 2d 906, 915
(1997) (holding that § 1983 claim alleging that the prisoner was deprived of good-time credits without
procedural due process could not go forward, because if successful it would imply that the deprivation of
good-time credits was invalid).
17. If you are a New York State prisoner whose prison is not following its own rules or policies,
you can file an Article 78 petition. See Chapter 22 of the JLM for information on using Article 78.
However, you can usually use Section 1983 to challenge administrative decisions not
directly affecting your sentence length.18 This Chapter primarily focuses on how you can use
a Section 1983 suit if government officials have abused or denied your constitutional or
federal statutory rights while you have been in prison. You should not use Section 1983 to
attack the amount of time to be spent in prison.
(d) Make Sure That All Defendants in Your Section 1983 Lawsuit Had
Personal Involvement19 in the Violation of Your Rights.
Pro se litigants (people who file a suit without a lawyer) often want to include everybody
they can think of as defendants, including supervisory prison officials like wardens or the
head of the state department of corrections, and you may want to do this too. But naming
everybody is often not a good idea. Courts generally dismiss all claims against supervisory
officials unless you provide enough facts in your complaint to show the particular supervisory
officials were involved in the violation of your rights.20 If the court quickly dismisses your
claims against particular defendants because they weren’t personally involved, the judge
may be less likely to trust the rest of your lawsuit. Try the best you can to find out which
officials were involved.
(e) Explain the Facts of Your Case in as Much Detail as Possible.
The most common mistake made by pro se litigants is failing to state the facts clearly and
adequately. Remember, the court already knows something about the law, but it knows
nothing about your case’s facts. Make sure to tell the court exactly what happened, when and
where it happened, who was involved, and how it happened. If you know why your rights
were violated, you should explain that too. More than anything else, the particular facts
of your case will determine the success of your claim. For an example of a complaint,
see Appendix A-2 of this Chapter.
Here is an example. Imagine that you are claiming that your access to the prison law
library has been unfairly restricted. The court will want to know: When did you want to get
into the library? Why did you need access to the library? Are there any set rules in your
prison for library access? Exactly how did the denial of access hurt you? Were you unable to
meet a filing deadline or respond to a legal argument? Did you have a case pending or a court
date? What research were you trying to do? Who stopped you? How many times did this
happen, and when? Include as much of this information as possible in your complaint. Of
course, the kinds of questions you will want to ask yourself and answer for the court depends
on your claim. Give as much relevant21 detail as possible.
18. See Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S. Ct. 1242, 1248, 161 L. Ed. 253, 262–63
(2005) (allowing prisoners to use § 1983 to to request new reviews of parole eligibility, but noting that
the prisoners winning the lawsuit would not necessarily result in prisoners obtaining earlier parole);
Muhammad v. Close, 540 U.S. 749, 754–55, 124 S. Ct. 1303, 1306, 158 L. Ed. 2d 32, 38 (2004) (holding
that a § 1983 claim may challenge an administrative decision as long as it does not dispute the validity
of the underlying conviction); Leamer v. Fauver, 288 F.3d 532, 543 (3d Cir. 2002) (finding valid a § 1983
claim challenging a disciplinary action that could affect the granting of parole, but not directly affecting
length of sentence); Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir. 1999) (holding that § 1983 may be
used to challenge a prisoner’s term of disciplinary segregation, which does not affect the length of
confinement).
19. Part B(1)(a) of this Chapter explains how you can prove a defendant official was personally
involved in violating your rights.
20. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 663 n.7, 98 S. Ct. 2018, 2022 n.7, 56 L. Ed. 2d
611, 619 n.7 (1978) (holding that supervisory officials are not automatically responsible for the actions
of their employees). But sometimes you can name supervisory officials as defendants even if they were
not directly involved in violating your rights. See Part C(2)(b) of this Chapter for more information on
supervisor liability.
21. “Relevance” is a legal idea. “Relevant evidence” means “evidence having any tendency to
If possible, try to get sworn, written statements—also known as affidavits or
declarations22—from witnesses who saw your rights being violated. Try to get as much proof
as possible that supports the factual claims you are making in your case.
(f) Confirm the Information in This or Any Other Chapter of the JLM
Through Research in the Library.
Remember that the cases discussed in this Chapter are only examples to use as starting
points in your research. There are many court decisions relating to Section 1983 claims. It is
essential that you research and make sure the courts still follow the cases in the footnotes of
this Chapter.23 We have tried to make the JLM as up-to-date as possible, but some cases
might not be good law anymore.24
(g) Bivens Actions Against Federal Officials Are Similar to Section
1983 Claims Against State or Local Officials.
If you want to sue federal officials, you cannot use Section 1983. Instead, you can bring a
type of lawsuit called a Bivens action. Most federal prisoners therefore bring Bivens actions,
which are described in Part E of this Chapter. But because Bivens actions are very similar to
Section 1983 claims, you should still read Parts B and C of this Chapter.
B. Using 42 U.S.C. § 1983 to Challenge State or Local Government Action
1. Essential Requirements for Obtaining Relief Under Section 1983
Section 1983 states:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or 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
deprivation 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 other proper proceeding for redress.25
The italicized words and phrases state the three essential requirements (elements) you
must fulfill when bringing a lawsuit under Section 1983. In your pleadings, you need to show
all three elements are met.
(a) First Requirement: Person
Section 1983’s first requirement is to show a “person” violated your constitutional or
federal statutory rights. But, the legal definition of “person” for Section 1983 claims includes
more than actual people (prison wardens, guards, etc.). A city, county, or municipality can
make the existence of any fact that is of consequence to the determination of [your claim] more
probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Basically, relevant
evidence is anything that helps to prove your legal claim.
22. See Chapter 6 of the JLM, “Introduction to Legal Documents.”
23. See JLM Chapters 1, “How to Use the JLM,” and 2, “Introduction to Legal Research,” for
more information.
24. It is very important you read the footnoted cases in full. Try to read any cases cited in those
cases as well. If possible, look up 42 U.S.C. § 1983 in the United States Code Annotated (U.S.C.A.) or
United States Code Service (U.S.C.S.). The U.S.C.A. and U.S.C.S. are commercial publications of the
United States Code that include the federal statutes and summaries of related cases interpreting those
statutes. You should also look at the Federal Practice Digest and other digests that have case
summaries organized by subject matter. The process of making sure a case is up-to-date using Lexis
Nexis is called “Shepardizing.” See Chapter 2 of the JLM, “Introduction to Legal Research,” for more
information on how to Shepardize a case.
25. 42 U.S.C. § 1983 (2006) (emphasis added).
also be a “person” under Section 1983.26 The definition of “person,” however, does not include
state governments and their agencies.27 For example, you cannot sue the State of New York
or the State Department of Corrections under Section 1983. 28 Thus, while you may sue
officials (actual people) at any level of government (including state government) under
Section 1983, you may sue only non-state governments and their agencies (such as cities,
counties, local agencies, and private corporations) as “persons” under Section 1983. See Part
C(2) of this Chapter, “Whom to Name as Defendants” for a further discussion of whom you
can sue using Section 1983.
You should name all “persons” who violated your rights as defendants, whether they are
individuals, local government agencies, or both. You may name as many defendants as you
choose, as long as each of them is personally involved in the wrong you are claiming. Courts
consider officials and local government agencies to be personally involved if they:
(1) Directly participated in the wrong; or
(2) Knew about the wrong but did not try to stop or fix it; or
(3) Failed to oversee the people who caused the wrong, such as by hiring unqualified
people or failing to adequately train the staff; or
(4) Created a policy or custom that allowed the wrong to occur.
The situations in (1), (2), and (3) are most common in cases when you are challenging
defendants’ specific behavior or failure to act. The fourth situation occurs when you challenge
general prison rules.
For an example of a type (1) situation, imagine a case in which an injured prisoner asked
a guard for medical care. If the guard refused to get the prisoner help, you might say that he
directly participated in violating the prisoner’s right to medical care. An example of a type (2)
situation could be a guard seeing a prisoner being attacked by other prisoners, but not trying
to stop the attack. In a type (3) situation, prison officials may be liable for hiring unqualified
people29 or failing to properly train or supervise their staff.30
Finally, in a type (4) situation, prison officials can be liable for creating rules, policies, or
customs that result in a violation of your rights. These can include written rules or policies31
26. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035–36, 56 L. Ed. 2d
611, 635 (1978) (holding that municipalities and local governments are considered “persons” under §
1983).
27. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d
45, 58 (1989) (holding that states may not be sued under § 1983).
28. You may, however, be able to sue states and state agencies under other federal laws such as
the Americans with Disabilities Act. See 42 U.S.C. §§ 12101–213 (2006); United States v. Georgia, 546
U.S. 151, 159, 126 S. Ct. 877, 882, 163 L. Ed. 2d 650, 660 (2006) (holding that a state may be sued
under the Americans with Disabilities Act so long as the conduct at issue independently violates the
14th Amendment of the U.S. Constitution); Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213, 118 S. Ct.
1952, 1956, 141 L. Ed. 2d 215, 221 (1998) (holding that “Title II of the ADA unambiguously extends to
state prison inmates”). For information on the rights of prisoners with disabilities, see the
Rehabilitation Act of 1973, 29 U.S.C. § 794 (2006) and Chapter 28 of the JLM, “Rights of Prisoners with
Disabilities.”
29. See Bd. of the County Comm’rs v. Brown, 520 U.S. 397, 411–12, 117 S. Ct. 1382, 1392–93,
137 L. Ed. 2d 626, 644–45 (1997) (holding a municipality may be liable for hiring decisions under a
deliberate indifference standard if adequate screening of the employee who allegedly violated plaintiff’s
rights would have made it clear to a reasonable policymaker that hiring the employee was highly likely
to result in the type of constitutional violation alleged).
30. See City of Canton v. Harris, 489 U.S. 378, 388–89, 109 S. Ct. 1197, 1204–05, 103 L. Ed. 2d
412, 426–27 (1989) (holding that a municipality may be liable under § 1983 for failure to train
employees, if the failure amounts to deliberate indifference to the rights of persons coming into contact
with those employees).
31. See, e.g., Shain v. Ellison, 273 F.3d 56, 66 (2d Cir. 2001) (holding that a prison’s written
policy of unreasonably strip searching all arrestees was unconstitutional); Barrett v. Coplan, 292 F.
Supp. 2d 281 (D.N.H. 2003) (allowing prisoner to go forward with claim that prison’s blanket policy of
or unwritten policies.32 You should always be specific about what kind of rule or practice you
are challenging and who was responsible for creating the rule or practice (if you know). If you
are arguing that an unwritten policy or custom violated your rights, you need to gather as
much evidence as possible to show that it is widely followed in your jail or prison, so that it
will be considered an actual policy or custom.33
Sometimes, several people or agencies will be involved in violating your rights, and they
will all be involved in different ways. For example, if a prison guard assaults you, you can
sue that guard because he participated in violating your rights. If another guard sees the
assault but does not try to stop it, you can sue that guard as well for not trying to stop or fix
the wrong. If you complain to the warden that this guard has assaulted you several times,
and the warden does nothing, you might also be able to sue the warden. If you then find out
that there is a prison policy of allowing guards to assault prisoners, or that this guard had a
history of assaulting prisoners at his previous job, then you might be able to sue the local
department of corrections for creating an unconstitutional policy or hiring an unqualified
guard. In this situation, it would probably be obvious to you that the guard who assaulted
you and the guard who watched the assault were personally involved in violating your rights.
However, figuring out whether the warden and/or the local department of corrections were
personally involved is much more complicated. For more about showing personal
involvement, see Part C(2)(b) of this Chapter, “Supervisor Liability,” and Part C(2)(c) of this
Chapter, “Municipal or Local Government Liability.”
(b) Second Requirement: Under Color of State Law
The second requirement for suing under Section 1983 is that the person who violated
your rights acted “under color of” state law. This means the person you sue must be someone
acting under the state’s authority. States have authority over their agencies and employees;
over cities, counties, and municipalities; and city, county, and municipal employees. In
prison, persons acting under color of state law include
(1) Employees of state or local prisons or jails, like a prison doctor or guard; and
(2) Private parties who make contracts with the state to perform services.34
refusing to consider surgical or hormone treatment for prisoners with gender identity disorder violated
the 8th Amendment right to adequate medical care).
32. See, e.g., Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002) (holding that city’s failure to
have procedures in place to verify warrants was an unwritten policy that deprived a man of his right to
due process when he was mistakenly held on a warrant for someone else); Garrett v. Unified Gov. of
Athens-Clark County, 246 F. Supp. 2d 1262, 1279–80 (M.D. Ga. 2003) (noting that even when there is
no formal written policy, supervisors can be held liable where there is an unconstitutional custom, but
not where there is a custom that is used unconstitutionally only on particular occasions), rev’d on other
grounds sub nom., Garrett v. Athens-Clark County, 378 F.3d 1274 (11th Cir. 2004) (per curiam);
Gonzalez v. City of Schenectady, 141 F. Supp. 2d 304, 307 (N.D.N.Y. 2001) (holding that an unwritten
city policy of strip searching all detainees prior to court action was unconstitutional).
33. See, e.g., Henry v. Farmer City State Bank, 808 F.2d 1228, 1237 (7th Cir. 1986) (holding that
if there is no formal written policy, “the plaintiff must allege a specific pattern or series of incidents
that support the general allegation of a custom or policy”); Gailor v. Armstrong, 187 F. Supp. 2d 729,
734 (W.D. Ky. 2001) (holding that one incident of failure to follow a jail’s excessive force policy plus 30
to 40 other instances of excessive force over a 10-year period for which officers were punished was not
enough to show a custom of failing to follow the excessive force policy).
34. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 n.5, 122 S. Ct. 515, 522 n.5, 151 L. Ed. 2d
456, 467 n.5 (2001) (noting, but not holding, that state prisoners may sue private prison corporations
under § 1983); West v. Atkins, 487 U.S. 42, 54–57, 108 S. Ct. 2250, 2258–60, 101 L. Ed. 2d 40, 53–55
(1988) (holding that a doctor under contract with a state to provide medical services to prisoners at a
state prison hospital on a part-time basis acts “under color of state law” within the meaning of § 1983);
Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003) (holding that “private prison-
management corporations and their employees may be sued under” § 1983); Conner v. Donnelly, 42
F.3d 220, 223 (4th Cir. 1994) (“[A] physician who treats a prisoner acts under color of state law even
Be aware that a person may act “under color of” state law even though the person does
something that state law specifically prohibits. For example, state law forbids a prison guard
from assaulting you. But if a prison guard assaults you, he is acting “under color of” state law
because the guard carries a “badge of authority” from the state.35 Thus, “under color of” state
law can be loosely interpreted to mean “as a representative of the state.”
(c) Third Requirement: Deprived of Federal Right
The third and final requirement is that the person you sue must have deprived you of a
right, privilege, or immunity you have under the Constitution or under federal law. In
simpler terms, they must have violated one of your constitutional or federal statutory rights.
Part B(2) explains the general rules that courts have developed for determining whether the
constitutional rights of prisoners have been violated and gives examples of violations of
rights claimed by other prisoners. Part B(3) discusses Section 1983 claims for violations of
rights that have been created by federal statutes.
2. Constitutional Bases for Section 1983 Claims
Not every violation of state law or prison regulations amounts to a constitutional
violation that you can challenge using Section 1983. For example, a prison may have a
regulation stating that all general population prisoners are allowed five phone calls a week.
This “right to five phone calls” is not a constitutionally guaranteed right, and if the prison
suddenly allows prisoners to make only one call a week, you won’t be able to sue using
Section 1983.36 Instead, you may want to challenge that change in privileges through your
prison’s grievance system or in a state court.37 Similarly, if a prison guard harms you or your
property by acting negligently (carelessly), this will not be enough to allow you to sue under
Section 1983. Instead, you may, in some cases, be able to sue using state tort law.38
though there was no contractual relationship between the prison and the physician.”); Skelton v. Pri-
Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (holding private prisons under contract with the state may
be sued under § 1983); Ancata v. Prison Health Servs., 769 F.2d 700, 703 (11th Cir. 1985) (noting that
defendant Prison Health Services workers, while not public employees, were clearly state actors);
Christy v. Robinson, 216 F. Supp. 2d 398, 412 (D.N.J. 2002) (noting that doctors employed by a private
medical association that contracts with the state to provide medical services to prisoners acted “under
color of state law”); Mauldin v. Burnette, 89 F. Supp. 2d 1371, 1376–77 (M.D. Ga. 2000) (holding that
private individual who was responsible for signing prisoner in and out of prison and supervising him on
work release acted under color of state law). But compare further, Styles v. McGinnis, No. 00-1415, 28
F.App’x 362, 364 (6th Cir. 2001) (unpublished) (holding that a doctor who was an independent
contractor who provided emergency services at a hospital where he treated plaintiff prisoner was not
acting under color of state law); Nunez v. Horn, 72 F. Supp. 2d 24, 27 (N.D.N.Y. 1999) (holding that a
doctor who treated prisoner was not acting under color of state law because the treatment was provided
at a non-prison hospital and the doctor was not under contract with the state or Bureau of Prisons to
treat prisoners).
35. Monroe v. Pape, 365 U.S. 167, 172, 81 S. Ct. 473, 476, 5 L. Ed. 2d 492, 497 (1961) (holding
officials who violate rights by acting illegally or abusing their authority act under “color of state law”),
overruled in part on other grounds, Monell v. N.Y. City Dep’t of Social Servs., 436 U.S. 658, 695–701, 98
S. Ct. 2018, 2038–41, 56 L. Ed. 2d 611 (1978).
36. If a New York state prison is not following its own rules or policies, prisoners can file an
Article 78 petition. See Chapter 22 of the JLM for information on filing Article 78 petitions.
37. Chapter 5 of the JLM, “Choosing a Court and a Lawsuit: An Overview of the Alternatives,”
explains the advantages and disadvantages of the different types of lawsuits you can bring in state and
federal court. For information on prison grievance procedures, see Chapter 15 of the JLM, “Inmate
Grievance Procedures.” For information on challenging state violations of your right to protect your
body and property, see Chapter 17 of the JLM, “The State’s Duty to Protect You and Your Property:
Tort Actions.”
38. See Chapter 17 of the JLM, “The State’s Duty to Protect You and Your Property: Tort
Actions,” for information on bringing a tort claim.
Subsection (a) begins with a general discussion of prisoners’ constitutional rights and the
“reasonably related” test (called the Turner test). Subsections (b) through (g) outline different
constitutional protections that prisoners have under specific constitutional amendments.
Make sure to read the other chapters of the JLM discussed in the following Subsections for
more information about particular constitutional rights. Also, remember that your claim
might involve violations of more than one constitutional right. Think about your situation
from as many different angles as possible.
(a) General Framework for Prisoners’ Constitutional Rights
As discussed earlier, keep in mind that your constitutional rights are not absolute. The
government is allowed to take away some of your rights in order to run the prison
more safely or smoothly. When you sue government officials or agencies for violating your
rights, the officials or agencies must explain to the court why they acted that way. The
reasons they give must have some rational (logical) relationship to the violation of your
rights. The court then balances your constitutional rights against the reasons the defendants
give for taking away some of those rights. Most of the time, courts accept the prison officials’
explanations for the violations and decide the case against the prisoner.
In your claim, you should emphasize why your right is important and reasonable and
why the prison officials’ actions were unnecessary or unreasonable. Just saying that your
rights were violated is usually not enough. You must try to expect and respond to arguments
that the prison will make about the need for security or order.
One of the leading Supreme Court cases regarding prisoners’ constitutional rights is
Turner v. Safley.39 In Turner, the Supreme Court held that when a prison regulation has an
impact on a prisoner’s constitutional rights, the regulation is still valid if it is “reasonably
related to legitimate penological interests.” 40 Penological means “related to prison
management.” Legitimate penological interests are valid justifiable interests and concerns of
the prison and the officials operating it. These may include concerns for safety, discipline,
effective punishment, and other management issues. Under the Turner test (also called the
“reasonably related” test), a court will weigh the importance of the state’s valid penological
interests against the impact of the state’s actions on your constitutional rights.
The Turner test has been used in cases challenging formal and informal prison policies
and practices, as well as individual actions.41 The test applies both to prison regulations and
to actions taken by prison officials, individually or together. Note that Turner does not apply
to claims of racial discrimination,42 Eighth Amendment violations,43 restrictions on private
religious exercise,44 and at least some procedural due process claims.45
39. Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987).
40. Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64, 79 (1987).
41. See, e.g., Allah v. Al-Hafeez, 208 F. Supp. 2d 520, 529–31 (E.D. Pa. 2002) (applying Turner
test to chaplain’s decision to exclude prisoner from services after he disrupted them); Youngbear v.
Thalacker, 174 F. Supp. 2d 902, 914 (N.D. Iowa 2001) (applying Turner test to administrative decision
causing year-long delay in building a sweat lodge).
42. Johnson v. California, 543 U.S. 499, 510–11, 125 S. Ct. 1141, 1149, 160 L. Ed. 2d 949, 961–62
(2005) (holding that the Turner test could not be applied to evaluate prison policy of assigning new
prisoners cellmates of the same race). For more information on equal protection rights in prison, see
Part B(2)(g) of this Chapter.
43. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir. 1993) (refusing to apply Turner
test to prisoner’s 8th Amendment claim); Austin v. Hopper, 15 F. Supp. 2d 1210, 1255 (M.D. Ala. 1998)
(refusing to apply the Turner test to prisoner’s 8th Amendment claim and noting that the Supreme
Court has never used Turner for an 8th Amendment claim). For information on 8th Amendment claims
for “cruel and unusual punishment,” see Part B(2)(d) of this Chapter.
44. The Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc–
2000cc-5 (2006), replaced Turner’s “legitimate penological interest” standard with a stricter “compelling
governmental interest” and “least restrictive means” test when evaluating government restrictions on
To use the Turner test, courts evaluate if a regulation (or action) is “reasonably related”
by looking at four factors:
(1) Whether a valid connection between the regulation and the government’s
justification for it exists;46
(2) Whether you have other ways of exercising your constitutional right despite the
regulation;47
(3) Whether there will be a “ripple effect” on the rights of others if you are allowed to
exercise the right;48 and
(4) Whether an easy way to meet the regulation’s goal without limiting your
constitutional right exists.49
A prison regulation usually survives the Turner test because the government’s
explanation for the regulation need only be rational (make sense). The government does not
need to show the regulation you are challenging is better than another less restrictive
regulation, but the government does need to demonstrate a connection between the
regulation and the purpose it is supposed to accomplish.50
private religious exercise in prisons and other institutions. See Warsoldier v. Woodford, 418 F.3d 989,
994 (9th Cir. 2005) (applying RLUIPA to an inmate’s religious claim to keep his long hair for religious
reasons and finding that the policy was not the least restrictive means available for addressing the
compelling government interest of security). See Chapter 27 of the JLM, “Religious Freedom in Prison,”
for more information on your religious rights.
45. See Washington v. Harper, 494 U.S. 210, 225, 228–29, 110 S. Ct. 1028, 1038, 1040–41, 108 L.
Ed. 2d 178, 200, 202–03 (1990) (using the Turner test to analyze prisoner’s substantive due process
claim but not applying it to prisoner’s procedural due process claim). For further discussion of your
procedural due process rights, see Chapter 18 of the JLM, “Your Rights at Prison Disciplinary
Proceedings.”
46. Turner v. Safley, 482 U.S. 78, 89–90, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64, 79 (1987) (“[A]
‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put
forward to justify it” must exist).
47. Turner v. Safley, 482 U.S. 78, 90, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64, 79 (1987) (“Where
‘other avenues’ remain available for the exercise of the asserted right ... courts should be particularly
conscious of” giving weight to prison officials’ decisions.). For example, in McRoy v. Cook County Dep’t
of Corr., 366 F. Supp. 2d 662, 678–79 (N.D. Ill. 2005), a court upheld a prison’s cancellation of Muslim
services on certain occasions, in part because the court found that the prison had provided other
opportunities for the prisoner to observe his religion, such as allowing him to keep religious materials
and allowing prisoners to pray together in community rooms.
48. Turner v. Safley, 482 U.S. 78, 90, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64, 79–80 (1987) (“A
third consideration is the impact accommodation of the asserted constitutional right will have on
guards and other inmates, and on the allocation of prison resources generally.”).
49. Turner v. Safley, 482 U.S. 78, 89–91, 107 S. Ct. 2254, 2262–63, 96 L. Ed. 2d 64, 79–80 (1987)
(“[T]he absence of ready alternatives is evidence of the reasonableness of a prison regulation. ... [B]y
the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not
reasonable, but is an ‘exaggerated response’ to prison concerns.”). A prison may be able to meet the
same goal using one of several different rules. The prison does not have to choose the rule impacting
your rights the least. But, the existence of alternative rules that accomplish the same goals may be
considered evidence that the rule you are challenging is unreasonable, especially if the alternative rules
do not have additional drawbacks. Turner v. Safley, 482 U.S. 78, 90–91, 107 S. Ct. 2254, 2262, 96 L. Ed.
2d 64, 80 (1987).
50. See Hunafa v. Murphy, 907 F.2d 46, 48 (7th Cir. 1990) (finding the factual record provided by
the prison was too “skimpy” to determine whether the prison’s refusal to provide a pork-free meal to a
prisoner was reasonably related to a legitimate penological interest); Walker v. Sumner, 917 F.2d 382,
386–87 (9th Cir. 1990) (holding that prison officials must provide support for the justifications of their
regulations, and assertions made without explanation or factual support are not enough; these
justifications must be the actual reasons that the rule was adopted or enforced). But see Whitmire v.
Arizona, 298 F.3d 1134, 1136 (9th Cir. 2002) (noting that a plaintiff’s case should not be dismissed
unless the prison has provided evidence supporting a rational relationship between a policy and the
policy’s justification, or there is a “common-sense connection” between the policy and the prison’s
In Turner, the Court applied this test to a prison regulation banning prisoners from
writing to or receiving letters from prisoners at other prisons (not including family
members). The prison argued that letters between prisoners could be used to plan escapes or
assaults. The Court, considering factor (1) of the Turner test, found that preventing escapes
and assaults was a valid government interest, and that banning letters between prisoners
was a rational way to help prevent escapes and assaults. As for factor (2), the Court noted
that prisoners still had other ways to exercise their First Amendment rights to express
themselves, since prisoners could write to and receive letters from anyone besides other
prisoners. Under factor (3) of the Turner test, the Court found that allowing prisoners to
correspond with other prisoners would have a significant “ripple effect” on others, since it
might threaten the safety of other prisoners and prison guards. Finally, the Court considered
factor (4), and found that there was no simple alternative way of ensuring that escapes and
assaults were not planned through prisoner-to-prisoner letters. After going through all four
factors of the Turner test, the Court held that the regulation was “reasonably related” to
legitimate interests in security despite its interference with prisoners’ First Amendment
rights to free expression and communication.51
But, Turner also decided a regulation preventing prisoners from marrying unless the
superintendent found “compelling circumstances” was not “reasonably related” to legitimate
security concerns.52 The prison claimed that the regulation was primarily justified because
“love triangles” among prisoners might lead to violence. The Court stated that there was no
reasonable relationship between preventing marriage and preventing violence, since “love
triangles” were just as likely when prisoners were unmarried. The Court also mentioned that
a prisoner’s marriage was generally a private decision that would not have a “ripple effect”
on others. The Court emphasized that less restrictive regulations on prisoner marriages,
such as those used at many other prisons, would be sufficient to meet the concerns of prison
officials.
As you can see from these examples, you need to carefully consider how to argue your
claim in terms of the four factors. You have a better chance of success if a regulation
completely deprives you of the ability to exercise your right, since such a rule fails factor (2)
above. In such cases, you should suggest other rules that could accomplish the same prison
goal without completely violating your rights. Comparing bad practices of your prison with
better practices of other prisons might be helpful.
The next Subsections address specific constitutional rights and give examples of claims
brought under Section 1983 by prisoners. Many of these rights are addressed elsewhere in
the JLM in much more detail, so make sure you read any relevant JLM chapters listed in
each Subsection.
(b) First Amendment Claims
The First Amendment to the Constitution provides that:
penological interests).
51. Turner v. Safley, 482 U.S. 78, 93, 107 S. Ct. 2254, 2264, 96 L. Ed. 2d 64, 81–82 (1987) (“The
prohibition on correspondence is reasonably related to valid corrections goals. The rule is content
neutral, it logically advances the goals of institutional security and safety identified by [state] prison
officials, and it is not an exaggerated response to those objectives.”). But see Allen v. Coughlin, 64 F.3d
77, 81 (2d Cir. 1995) (holding that prison had not established a valid reason for regulation banning
newspaper clippings sent through the mail).
52. Turner v. Safley, 482 U.S. 78, 96–98, 107 S. Ct. 2254, 2265–66, 96 L. Ed. 2d 64, 84–85 (1987)
(“The Missouri regulation ... [restricting prisoner marriage] represents an exaggerated response to ...
security objectives. There are obvious, easy alternatives to the Missouri regulation that accommodate
the right to marry while imposing a ... [minimal] burden on the ... security objectives.”). Although the
right to marry comes from the substantive due process part of the 14th Amendment, not the 1st
Amendment, the analysis on how to balance the rights is the same.
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances.53
In other words, the First Amendment protects your rights to express yourself, practice
your religion, and communicate with others. Your rights under the First Amendment can
take many forms and several chapters of the JLM address these rights in detail. For a
summary of your right to freedom of expression and a discussion of your right to
communicate, see Chapter 19 of the JLM, “Your Right to Communicate with the Outside
World.” If your religious rights are being violated, you may want to sue under the Religious
Freedom Restoration Act (“RFRA”)54 or the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”) 55 instead of Section 1983. It is more difficult for the prison to defend a
regulation against a RLUIPA or RFRA lawsuit than a Section 1983 lawsuit.56 See Chapter 27
of the JLM, “Religious Freedom in Prison,” for more information.
(c) Fourth Amendment Claims
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated.”57 It prohibits unreasonable searches and seizures of pretrial detainees and other
individuals confined by the state who have not been convicted of a crime. 58 The Fourth
Amendment also protects convicted prisoners from unreasonably intrusive body searches
(but not cell searches59), as discussed in Chapter 25 of the JLM, “Your Right to be Free From
Illegal Body Searches.”
53. U.S. Const. amend. I.

54. 42 U.S.C. § 2000bb-1 (2006). You may only bring a lawsuit under RFRA if you are a federal,
not a state, prisoner. See City of Boerne v. Flores, 521 U.S. 507, 535, 117 S. Ct. 2157, 2171–72, 138 L.
Ed. 2d 624, 649 (1997) (holding RFRA’s application to State governments and officials
unconstitutional); see also O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003) (finding
RFRA could constitutionally be applied to federal officers and agencies).
55. 42 U.S.C. § 2000cc-1 (2000). If you are a state prisoner, you can use RLUIPA only if the
agency operating your prison receives federal funding. See Charles v. Verhagen, 348 F.3d 601, 609 (7th
Cir. 2003) (holding that the conditions imposed by RLUIPA on states are valid). Most state and local
corrections departments do receive federal funding.
56. See Warsoldier v. Woodford, 418 F.3d 989, 998 (9th Cir. 2005) (noting that RLUIPA was
designed to enhance protection of prisoners’ religious freedom by replacing the Turner “legitimate
public interest” test with a “compelling interest” test).
57. U.S. Const. amend. IV.
58. See Shain v. Ellison, 273 F.3d 56, 63–66 (2d Cir. 2001) (allowing a pretrial detainee to
challenge a prison’s strip-search policy).
59. See Block v. Rutherford, 468 U.S. 576, 591, 104 S. Ct. 3227, 3235, 82 L. Ed. 2d 438, 450
(1984) (holding searches of pretrial detainees’ cells in their absence to be constitutional because
government interest in conducting searches and maintaining security in this manner exceeded contrary
interests of detainees); Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct. 3194, 3200, 82 L. Ed. 2d 393,
402–03 (1984) (holding that the 4th Amendment prohibition against unreasonable searches does not
apply to prison cells because “[t]he recognition of privacy rights for prisoners in their individual cells
simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal
institutions”); Willis v. Artuz, 301 F.3d 65, 68–69 (2d Cir. 2002) (holding that prisoner was not
protected from warrantless cell searches by prosecutors or police even though such searches are not
related to prison security). Note that the 4th Amendment does apply to searches of jail cells in some
cases. United States v. Hogan, 539 F.3d 916, 923–24 (8th Cir. 2008) (holding that a search of a pretrial
detainee’s jail cell for security reasons, rather than only to add to the prosecution’s case, did not violate
prisoner’s 4th Amendment rights).
(d) Eighth Amendment Claims
The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”60 There are several types of
claims that courts will consider under the “cruel and unusual punishment” part of the Eighth
Amendment. These claims include alleged harm resulting from prison conditions, inadequate
medical care, and assault. The cases below provide some specific examples of Eighth
Amendment claims courts recognize.
You MUST read Chapter 14 of the JLM, “The Prison Litigation Reform Act” (“PLRA”), if
you plan to file an Eighth Amendment cruel and unusual punishment claim. The PLRA
prohibits federal lawsuits by prisoners for compensatory61 damages for mental or emotional
injury without physical injury.62
Your claim that prison conditions or practices constitute cruel and unusual punishment
must satisfy two tests. These tests are referred to as an “objective” and a “subjective” test:
(1) The objective test requires that prison conditions be bad enough to be considered
cruel and unusual. To be “cruel and unusual” in violation of the Eighth Amendment,
conditions must amount to “unquestioned and serious deprivations of basic human
needs,” constitute a deprivation of the “minimal civilized measure of life’s
necessities,” be grossly disproportionate to the severity of the crime, or involve the
“wanton and unnecessary infliction of pain.”63 Recent Supreme Court cases have
emphasized threats to prisoners’ health and safety, such as conditions posing “an
unreasonable risk of serious damage to [a prisoner’s] future health”64 or “excessive
risk to inmate health or safety.”65 However, under some circumstances conditions
need not inflict or threaten serious injury to meet the objective test of the Eighth
Amendment. The Supreme Court has said that cell searches amounting to
“calculated harassment unrelated to prison needs” may constitute cruel and unusual
punishment,66 and that excessive force may violate the Eighth Amendment even if it
inflicts little injury if it is “repugnant to the conscience of mankind.”67 It is possible
that other conditions not actually inflicting physical injury (for example, sexually
intrusive searches,68 credible threats of immediate harm that are not acted on,69 or
60. U.S. Const. amend. VIII (emphasis added).

61. See Part C(1)(a) of this Chapter for an explanation of compensatory damages.
62. 42 U.S.C. § 1997e(e) (2006). The statute states that “[n]o Federal civil action may be brought
by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury.” Courts have held that the PLRA
only prohibits compensatory damages for mental or emotional injury, so you can still ask for injunctive
relief to prevent further injury or for other forms of damages for mental or emotional injuries.
63. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59, 69 (1981)
(finding that practice of placing two prisoners in cells did not violate 8th Amendment, although there is
no static test to determine whether conditions of confinement are cruel and unusual).
64. Helling v. McKinney, 509 U.S. 25, 35, 113 S. Ct. 2475, 2481, 125 L. Ed. 2d 22, 32 (1993)
(finding that an 8th Amendment claim could be based upon possible harm to future health, and
exposure to dangerous levels of cigarette smoke could represent such a risk).
65. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811, 825 (1994)
(finding that excessive risk of attack—whether for reasons personal to prisoner or all in his situation—
could qualify).
66. Hudson v. Palmer, 468 U.S. 517, 530, 104 S. Ct. 3194, 3202, 82 L. Ed. 2d 393, 405 (1984)
(although there was no calculated harassment in this case, the Court suggested an 8th Amendment
claim as an alternative remedy in cases involving calculated harassment). But, note that the Court
found no calculated harassment had occurred in this case.
67. Hudson v. McMillian, 503 U.S. 1, 10, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156, 168 (1992)
(allowing 8th Amendment claim to go forward even absent significant injury or need for medical
attention).
68. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1522, 1530 (9th Cir. 1993) (en banc) (holding
acts that amount to psychological torture70) may also be considered cruel and
unusual.
(2) The subjective test requires that prison officials have a certain state of mind in order
to be found to have violated the Eighth Amendment. In most prison conditions cases,
the standard is “deliberate indifference,” which means that the officials must have
had actual knowledge that they were subjecting you to an excessive risk of harm or
other objectively unconstitutional conditions.71 In use of force cases, however, you
must show that the official who used force against you acted “maliciously and
sadistically” for the purpose of causing harm.72
Under the objective test, as mentioned above, if your complaint is about the conditions of
your imprisonment, you have to show that, “alone or in combination,” the conditions deprived
you of “the minimal civilized measure of life’s necessities.” 73 Life’s necessities (or basic
human needs) identified by the courts include “food, clothing, shelter, medical care and
reasonable safety,”74 warmth,75 exercise,76 and the “basic elements of hygiene.”77 If you are
policy of “random, non-emergency, suspicionless clothed body searches on female prisoners” by male
guards violated the 8th Amendment).
69 . See, e.g., Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992) (holding that
allegation that corrections officer brandished a gun and threatened to kill prisoner stated an excessive
force claim under the 8th Amendment); Burton v. Livingston, 791 F.2d 97, 100 (8th Cir. 1986) (holding
that a prisoner has a right to be “free from the terror of instant and unexpected death at the whim of
his allegedly bigoted custodians”).
70. See, e.g., Hicks v. Frey, 992 F.2d 1450, 1457 (6th Cir. 1993) (noting that confining paraplegic
prisoner to a cell where he was restricted to his bunk without access to the showers could constitute an
8th Amendment violation); Parrish v. Johnson, 800 F.2d 600, 605 (6th Cir. 1986) (finding prisoner who
was threatened with a knife, denied requests for medical attention and continuously aggressively
taunted by guard could make out an 8th Amendment violation).
71. Farmer v. Brennan, 511 U.S. 825, 839–43, 114 S. Ct. 1970, 1980–82, 128 L. Ed. 2d 811, 826–
29 (1994) (holding that under the 8th Amendment, prison officials were not liable for confinement
under inhumane conditions unless they satisfied the recklessness test of criminal law, and had known
of the excessive risk to the prisoner’s health or safety).
(finding a beating violated the 8th Amendment because the harm was caused “maliciously and
sadistically,” regardless of what injuries were inflicted).
(holding putting two prisoners in cells one person does not deprive them of essentials and thus does not
violate the 8th Amendment).
74. Helling v. McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 2480, 125 L. Ed. 2d 22, 31 (1993)
(citing DeShaney v. Winnebago County Dep’t of Social Serv., 489 U.S. 189, 199–200, 109 S. Ct. 998, 103
L. Ed. 2d 249 (1989)) (noting that when the state takes a prisoner into custody it acquires an 8th
Amendment duty to provide for those needs).
75. Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d 271, 283 (1991)
(noting that warmth is a “single, identifiable human need”); Palmer v. Johnson, 193 F.3d 346, 352–53
(5th Cir. 1999) (holding overnight exposure to winds and cold could violate the 8th Amendment).
76. Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d 271, 283 (1991)
(“Some conditions of confinement may establish an Eighth Amendment violation "in combination" when
each would not do so alone, but only when they have a mutually enforcing effect that produces the
deprivation of a single, identifiable human need such as food, warmth, or exercise.”); Perkins v. Kan.
Dep’t of Corr, 165 F.3d 803, 810 (10th Cir. 1999) (holding allegation of prolonged denial of outdoor
exercise could violate the 8th Amendment).
77. Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999) (quoting Novak v. Beto, 453 F.2d 661,
665 (5th Cir. 1971)) (holding that deprivation of toilet facilities for prisoners in a small area would
violate the 8th Amendment); see Harper v. Showers, 174 F.3d 716, 717, 720 (5th Cir. 1999) (noting that
allegation of placement into filthy, sometimes feces-smeared cells formerly housing psychiatric patients
states an 8th Amendment claim); Bradley v. Puckett, 157 F.3d 1022, 1025–26 (5th Cir. 1998) (holding
that inability to bathe for two months resulting in a fungal infection requiring medical attention stated
an 8th Amendment claim). But see Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir. 1998) (holding that
trying to show that several conditions combined to deprive you of a life necessity, keep in
mind that the conditions must have a “mutually enforcing [combined] effect that [deprives
you] of a single, identifiable human need such as food, warmth, or exercise.”78 For example,
you may suffer cruel and unusual punishment if the inadequate heat in your cell-block,
combined with the prison’s failure to issue blankets, deprives you of warmth.79
Under the subjective test, as mentioned above, you must show that the prison officials
who injured you or failed to provide for your basic human needs did so with a certain state of
mind. What that state of mind is will depend on whether your claim is for inadequate prison
conditions, inadequate medical care, assault, or issues surrounding work or exercise, as
described in the next few sections.
The amount of harm that the court will require you to show also varies depending on the
type of Eighth Amendment claim. For example, if you are complaining about prison guard
brutality, you may not have to show that your injury was “serious,” only that it was more
than minor and the other circumstances of the assault were unjustifiable.80 On the other
hand, if your claim is that you were deprived of medical care, you will have to show that your
medical needs were “sufficiently serious” and that prison officials were “deliberately
indifferent” to these needs.81
(e) Prison Conditions
Poor prison conditions might violate the Eighth Amendment’s prohibition of cruel and
unusual punishment. Poor prison conditions can include a lack of basic necessities.82 They
can also include safety hazards, like substandard fire prevention. 83 Excessively long
confinement to a small cell and denial of outdoor exercise can also violate the Eighth
Amendment. 84 Other conditions amounting to possible cruel and unusual punishment
confinement in cell with blood on floor and excrement on wall was not unconstitutional because it was
only for three days and cleaning supplies were available).
78. Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d. 271, 283 (1991)
(“Some conditions of confinement may establish an 8th Amendment violation ‘in combination’ when
each would not do so alone, but only when they have a mutually enforcing effect that produces the
deprivation of a single, identifiable human need such as food, warmth or exercise—for example, a low
cell temperature at night combined with a failure to issue blankets.”).
79. See, e.g., Wilson v. Schomig, No. 93-C-3854, 1998 U.S. Dist. LEXIS 6849, at *9–10 (N.D. Ill.
May 7, 1998) (holding that lack of heat in prison cells may violate 8th Amendment principles).
80. See Hudson v. McMillian, 503 U.S. 1, 10, 112 S. Ct. 995, 1000–01, 117 L. Ed. 2d 156, 168
(1992) (holding that an assault on a prisoner by prison guards resulting in a cracked dental plate and
minor bruises and swelling was enough harm to constitute a valid 8th Amendment claim).
81. See Wilson v. Seiter, 501 U.S. 294, 299, 111 S. Ct. 2321, 2324–25, 115 L. Ed. 2d 271, 279–80
(1991) (holding that a claim of an 8th Amendment violation must show deliberate indifference on part
of prison officials). To bring a claim challenging inadequate medical care, see Chapter 23 of the JLM,
“Your Right to Adequate Medical Care.”
82. See, e.g., Ramos v. Lamm, 639 F.2d 559, 566 (10th Cir. 1980) (holding that a state must
provide “prisoners with reasonably adequate food, clothing, shelter, sanitation, medical care, and
personal safety so as to avoid the imposition of cruel and unusual punishment”); Nicholson v. Choctaw
County, Ala., 498 F. Supp. 295, 308–11 (S.D. Ala. 1980) (finding that 8th Amendment rights had been
violated through, among other things, the unsanitary conditions in the jail, the lack of adequate
medical care, unsafe conditions, and the lack of religious services or instruction).
83. See, e.g., Hoptowit v. Spellman, 753 F.2d 779, 783–84 (9th Cir. 1985) (holding that hazardous
work environment, vermin infestation, and inadequate lighting, plumbing, fire safety, and ventilation
could constitute inhumane conditions); Ramos v. Lamm, 639 F.2d 559, 566 (10th Cir. 1980) (holding
that a state must provide “prisoners with reasonably adequate ... personal safety so as to avoid the
imposition of cruel and unusual punishment”). But see Osolinski v. Kane, 92 F.3d 934, 938–39 (9th Cir.
1996) (requiring more than a single defective piece of equipment to create inhumane conditions).
84. See Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 810 (10th Cir. 1999) (holding that prolonged
denial of outdoor exercise could violate the 8th Amendment); Spain v. Procunier, 600 F.2d 189, 199 (9th
Cir. 1979) (stating that with the exception of “inclement weather, unusual circumstances, or
include unsanitary facilities, overcrowding, and inadequate heating and ventilation.85 Some
courts have held that the failure to protect prisoners from secondhand smoke may violate the
Eighth Amendment. 86 However, such cases generally require prisoners to show that the
secondhand smoke poses an unreasonable risk of future harm to their health.87 For more
information about addressing secondhand smoke exposure, see Chapter 23 of the JLM, “Your
Right to Adequate Medical Care.”
Courts have found that overcrowding violates prisoners’ Eighth Amendment rights,
especially where overcrowding leads to harmful consequences.88 For example, in Lareau v.
Manson, 89 prisoners successfully sued because a prison increased the prisoners’ risk of
contracting contagious diseases by failing to check newcomers for infection for more than a
thirty-day period.
Some Section 1983 claims challenge the prison housing arrangements. Courts have
generally held that double-celling (placing two prisoners in each cell) is constitutional as long
as both prisoners are provided with their basic needs, such as enough space to sleep and a
clean interior. Double-celling is not by itself considered a constitutional violation, because
prisoners still enjoy their rights within that two-person set-up and because prison officials
have strong administrative concerns in providing housing for all prisoners. 90 Similarly,
administrative segregation is also acceptable and does not violate your rights. 91 But,
disciplinary needs that [make it] impossible,” outdoor exercise is required when prisoners are otherwise
confined in small cells 24 hours per day).
85. See, e.g., Palmer v. Johnson, 193 F.3d 346, 352–53 (5th Cir. 1999) (finding that the combined
circumstances of overnight outdoor confinement without shelter, blanket, heating, or access to
bathroom facilities denied necessities in violation of the 8th Amendment); DeMallory v. Cullen, 855
F.2d 442, 445 (7th Cir. 1988) (finding that prisoner stated sufficient 8th Amendment claim in § 1983
complaint alleging unsanitary and dangerous conditions); French v. Owens, 777 F.2d 1250, 1252–53
(7th Cir. 1985) (holding that overcrowding, medical neglect, and failure to protect prisoners from
threats to safety violated 8th Amendment); Morales Feliciano v. Hernandez Colon, 697 F. Supp. 37, 40–
45 (D.P.R. 1988) (ruling that overcrowding, vermin-infestation, and otherwise unsanitary conditions
violated the 8th Amendment); Toussaint v. McCarthy, 597 F. Supp. 1388, 1409–11 (N.D. Cal. 1984)
(finding constitutional violation due to certain conditions, including double-celling (placing two
prisoners in each cell); insufficient ventilation and heating; and inadequate and unsanitary clothing
and bedding), aff’d in part and rev’d in part, 801 F.2d 1080 (9th Cir. 1986).
86. See Gill v. Smith, 283 F. Supp. 2d 763, 769 (N.D.N.Y. 2003) (allowing prisoner with asthma
to go forward with 8th Amendment claim that exposure to secondhand smoke posed an unreasonable
risk of future harm to his health); Atkinson v. Del. Dep’t of Corr., No. 99-562-JJF, 2001 U.S. Dist
LEXIS 25586, at *13 (D. Del. June 27, 2001) (same).
87. See Helling v. McKinney, 509 U.S. 25, 36, 113 S. Ct. 2475, 2482, 125 L. Ed. 2d 22, 33 (1993)
(holding that exposure to extreme levels of tobacco smoke that poses an unreasonable risk to future
health may be an 8th Amendment violation, and that the plaintiff did not need to wait until he was
actually harmed to ask a court to correct unsafe conditions); Gill v. Smith, 283 F. Supp. 2d 763, 769
(N.D.N.Y. 2003) (same); Atkinson v. Del. Dep’t of Corr., No. 99-562-JJF, 2001 U.S. Dist LEXIS 25586,
at *13 (D. Del. June 27, 2001) (unpublished) (same).
88. See, e.g., Tillery v. Owens, 907 F.2d 418, 427–28 (3d Cir. 1990) (holding that double-celling
due to overcrowding, in combination with other factors, such as the physical condition of the cell,
violated 8th Amendment); Mitchell v. Cuomo, 748 F.2d 804, 807–08 (2d Cir. 1984) (granting prisoners
an injunction against the closing of a facility that would result in overcrowding in other prisons); Fisher
v. Koehler, 692 F. Supp. 1519, 1564 (S.D.N.Y. 1988) (holding that the level of both prisoner-prisoner
violence and staff-prisoner violence resulting, in part, from overcrowding, violated 8th Amendment),
aff’d, 902 F.2d 2 (2d Cir. 1990).
89. Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981).
90. See Rhodes v. Chapman, 452 U.S. 337, 348, 101 S. Ct. 2392, 2400, 69 L. Ed. 2d 59, 70 (1981)
(holding that double-celling did not violate the 8th Amendment since it did not lead to deprivations of
basic needs, and did not increase violence among prisoners or create other conditions intolerable for
prison confinement).
91. See, e.g., Sealey v. Giltner, 197 F.3d 578, 589–90 (2d Cir. 1999) (finding that, under Due
Process Clause, administrative confinement for 101 days of a plaintiff who posed a threat to prison
administrative segregation imposed on you by prison officials to get back at you for a
complaint or claim you filed is not constitutional. 92 (Note that cases complaining about
administrative segregation are brought as substantive due process claims, not Eighth
Amendment claims. For a discussion of substantive due process, see Part B(2)(f)(i) below.
Because cases for inadequate cell assignments often overlap with Eighth Amendment claims
for assault, you should be sure to review the cases cited in this Subsection and Chapter 24 of
the JLM, “Your Right to be Free From Assault.”)
(i) Inadequate Medical Care and Other Health Risks
Inadequate medical care has also been found to violate the Eighth Amendment.
Unreasonable risks to your health may violate the Eighth Amendment even if you have not
been harmed yet.93 For information on your right to medical care, see Chapter 23 of the JLM,
(ii) Assault
Many Section 1983 cases have claimed Eighth Amendment violations because prison
officials failed to protect prisoners from assaults by other prisoners. For more detailed
information, see Chapter 24 of the JLM, “Your Right to be Free from Assault.”
(iii) Exercise, Work, and Education
Eighth Amendment claims challenging deprivations of exercise and recreation have had
mixed results. Your right to exercise is judged in terms of basic needs. Thus, because prison
officials are constitutionally required to provide for the health of the prisoners under their
supervision, prisoners must generally be allowed certain minimum levels of exercise.94 This
right is violated only if movement is denied, muscles are allowed to waste, or the health of
the individual is threatened.95 Most courts will not find a deprivation of recreation time to be
safety was not an “atypical and significant hardship” compared to the ordinary conditions of prison
life). But see Hanrahan v. Doling, 331 F.3d 93, 95 (2d Cir. 2003) (holding due process focuses on the
disciplinary sentence imposed at the time of the alleged violation).
92. See Allah v. Seiverling, 229 F.3d 220, 223–24 (3d Cir. 2000) (allowing prisoner to pursue a
claim for violation of his due process rights because he was kept in administrative segregation in
retaliation for filing civil rights suits).
93. See Helling v. McKinney, 509 U.S. 25, 35–36, 113 S. Ct. 2475, 2481–82, 125 L. Ed. 2d 22, 32–
33 (1993) (holding that exposure to extreme levels of environmental tobacco smoke that poses an
unreasonable risk to future health may be an 8th Amendment violation, and that the plaintiff did not
need to wait until he was actually harmed to ask a court to correct unsafe conditions). But see Glick v.
Henderson, 855 F.2d 536, 540 (8th Cir. 1988) (denying prisoner’s 8th Amendment claim based on
exposure to HIV in prison, because it was based on an “unsubstantiated fear” with medical science not
recognizing the alleged exposures as possible modes of transmission).
94 . See Davenport v. DeRobertis, 844 F.2d 1310, 1315–16 (7th Cir. 1988) (finding an 8th
Amendment violation where prisoners in a segregation unit were allowed only one hour a week of
exercise outside of their cells); French v. Owens, 777 F.2d 1250, 1255–56 (7th Cir. 1985) (noting that
lack of physical exercise may be a constitutional violation when it threatens a prisoner’s health); Spain
v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (affirming trial court’s decision that “[t]he denial of fresh
air and regular outdoor exercise and recreation constitutes cruel and unusual punishment,” but
declining to decide whether or not deprivation of outdoor exercise is necessarily an 8th Amendment
violation ). But see Anderson v. Coughlin, 757 F.2d 33, 36 (2d Cir. 1985) (“[N]either an occasional day
without exercise when weather conditions preclude outdoor activity nor reliance on running,
calisthenics, and isometric and aerobic exercises in lieu of games is cruel and unusual punishment.”).
95. French v. Owens, 777 F.2d 1250, 1255–56 (7th Cir. 1985) (When “movement is denied and
muscles are allowed to atrophy, the health of the individual is threatened and the state’s constitutional
obligation” is affected); see Mitchell v. Rice, 954 F.2d 187, 192–93 (4th Cir. 1992) (stating that prisons
may restrict exercise only in exceptional circumstances, such as when an adult prisoner is in
disciplinary segregation).
a violation of constitutional rights, since general recreation, unlike exercise, does not
necessarily affect your health.
Eighth Amendment claims challenging deprivations of meaningful work or educational
programs have not been very successful. The Supreme Court has said that because limited
work hours or delays in accessing education do not inflict pain and are not punishments,
work and education generally are not basic needs protected by the Eighth Amendment.96
(f) Fourteenth Amendment Claims: Due Process Clause
The Due Process Clause of the Fourteenth Amendment forbids the state from
“depriv[ing] any person of life, liberty, or property, without due process of law.”97 The Clause
has been interpreted as containing two separate types of protections: “substantive due
process” and “procedural due process.”
(i) Substantive Due Process
The substantive aspect of the Due Process Clause prevents the government from
interfering with your fundamental individual rights in a way that is not “reasonably related
to legitimate penological interests.”98 The constitutional idea of liberty includes some rights
that you retain as a prisoner, and in general, substantive due process claims arise when
state officials deprive you of certain liberties. For example, you have a right to bodily privacy,
a right to informational privacy and confidentiality, a right to get married, and a right to
refuse medical or psychiatric treatment. These rights are protected under substantive due
process, but this protection has limits. The government only violates your substantive due
process rights when it acts in a way not reasonably related to a legitimate goal. “Reasonable
relation to a legitimate goal” is determined using the Turner test, described above in Part
B(2)(a).
As mentioned earlier, the right to bodily privacy is a liberty rights you maintain in
prison. The right to bodily privacy includes a limited right to not be viewed unclothed or
strip-searched by members of the opposite sex.99 This right is often outweighed by prison
96. See Rhodes v. Chapman, 452 U.S. 337, 348, 101 S. Ct. 2392, 2400, 69 L. Ed. 2d 59, 70 (1981)
(“[L]imited work hours and delay before receiving education do not inflict pain, much less unnecessary
and wanton pain; deprivations of this kind simply are not punishments.”); Women Prisoners v. District
of Columbia, 93 F.3d 910, 927, 320 U.S. App. D.C. 247, 264, 113 Ed. Law Rep. 30 (D.C. Cir. 1996)
(noting that a prisoner has no constitutional right to work and educational opportunities); Higgason v.
Farley, 83 F.3d 807, 809 (7th Cir. 1996) (determining that reduction in privileges, including educational
programs, does not create an “atypical or significant hardship”).
97. U.S. Const. amend. XIV, §1. The 14th Amendment applies to state government action. The
5th Amendment contains an identical prohibition—“No person shall be ... deprived of life, liberty, or
property, without due process of law”—and applies to the federal government. U.S. Const. amend. V.
Federal prisoners therefore usually use the 5th Amendment instead of the 14th Amendment to
challenge due process violations.
98. Turner v. Safley, 482 U.S. 78, 87,107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64, 77–78 (1987) (finding
that prison regulations affecting constitutional rights can only be upheld if they are “reasonably
related” to a legitimate government interest and are not an “exaggerated response” to those
government concerns); see also Washington v. Harper, 494 U.S. 210, 225–26, 110 S. Ct. 1028, 1038–39,
108 L. Ed. 2d 178, 200 (1990) (reasoning that the right to be free of psychotropic medication had to be
balanced against the state’s duty to treat mentally ill prisoners and run a safe prison).
99. See, e.g., Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993) (finding right to bodily
privacy may have been violated where male prisoners were subject to unclothed observation by female
guards); Sepulveda v. Ramirez, 967 F.2d 1413, 1415 (9th Cir. 1992) (upholding parolees’ privacy rights
not to be under surveillance by guards of the opposite sex while giving urine samples). But see Oliver v.
Scott, 276 F.3d 736, 739 (5th Cir. 2002) (holding prison’s use of female prison guards to strip search
male prisoner was justified by security concerns); Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir. 1980)
(finding that issuing suitable sleepwear and covering cell windows during changing times adequately
protects female prisoners’ privacy interest in not being viewed by male guards when compared with the
security interests, but not always. Bodily privacy also includes the right to an abortion,
which some courts have upheld for prisoners.100
The right to informational privacy and confidentiality is another substantive due process
right. Some courts have interpreted the Fourteenth Amendment to find that HIV-positive
prisoners have protections against disclosure of their HIV status, at least to non-medical
personnel.101 Segregation of HIV-positive prisoners may also violate their substantive due
process right to informational privacy.102
Among other rights, the Supreme Court has held the right to marriage103 and the right to
marital privacy104 to be fundamental and protected by substantive due process.
There are two important points that you should know if you are thinking of bringing a
Section 1983 lawsuit based on a substantive due process violation. First, if the particular
“liberty” that you think was violated is specifically protected by another constitutional
amendment, you should make sure to claim a violation of that amendment rather than using
the general substantive due process protection.105 For instance, if you are not given proper
access to medical care, you should not argue that you are suffering a substantive due process
violation of life or liberty, since inadequate medical care is specifically covered by the Eighth
Amendment’s prohibition of cruel and unusual punishment.
Second, in order to bring a lawsuit for a substantive due process violation, you must be
able to show that the officials who violated your liberty rights acted with “deliberate
indifference” to your rights. The definition of deliberate indifference varies from circuit to
government’s equal employment interests). See JLM Chapter 25, “Your Right to be Free From Illegal
Body Searches” for more information.
100. See Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 337–38 (3d Cir. 1987)
(holding the county’s administrative and economic reasons for limiting access to elective abortions for
prisoners did not meet the Turner reasonableness standard); Roe v. Crawford, 514 F.3d 789, 798–99
(8th Cir. 2008) (holding prison policy prohibiting elective, non-therapeutic abortions did not violate 8th
Amendment rights but was invalid under the Turner test for 14th Amendment violations). But see
Gibson v. Matthews, 926 F.2d 532, 536–37 (6th Cir. 1991) (holding that prison officials’ negligent
failure to provide a prisoner with a requested abortion was not a violation of the prisoner’s 8th
Amendment or 5th Amendment rights); Bryant v. Maffucci, 729 F. Supp. 319, 327 (S.D.N.Y. 1990). For
more information on women prisoners’ access to abortion, see Part D(2) of Chapter 23 of the JLM,
101. See Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001) (holding the 14th Amendment protects a
prisoner’s right to medical privacy, subject to legitimate penological interests, including administrative
concerns); Woods v. White, 689 F. Supp. 874, 876 (W.D. Wis. 1988) (finding prisoners’ substantive due
process rights were violated when prison officials allowed non-medical employees and other prisoners to
learn their HIV status and prison officials did not claim that any important public interest was served
by these discussions).
102. For information and cases on segregation of prisoners with HIV, see Chapter 26 of the JLM,
“Infectious Diseases (AIDS, Hepatitis, and Tuberculosis) in Prison.”
103. Turner v. Safley, 482 U.S. 78, 95–96, 107 S. Ct. 2254, 2265, 96 L. Ed. 2d 64, 83 (1987)
(holding the right to marry is subject to substantial restrictions due to incarceration, but remains a
constitutionally protected right in prison).
104. See generally Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 2267, 138 L.
Ed. 2d 772, 787 (1997) (discussing liberty interests protected by substantive due process); Griswold v.
Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965) (discussing “notions of
privacy surrounding the marriage relationship”).
105. See Jackson v. Hamm, 78 F.Supp.2d 1233, 1242 (M.D. Ala. 1999) (“[T]he Supreme Court has
made clear that if a constitutional claim is covered by a specific constitutional provision, the claim must
be analyzed under the standard appropriate to that specific provision, not under substantive due
process.”); County of Sacramento v. Lewis, 523 U.S. 833, 842–43, 118 S.Ct. 1708, 1714–15, 140 L.Ed.2d
1043, 1055 (1998) (holding that, because of reluctance to expand substantive due process, the Court
should use a specific constitutional protection instead of general substantive due process when
possible).
circuit, so be sure to look at cases raising similar claims in your circuit to see how your
circuit defines deliberate indifference.
The second kind of substantive due process violation occurs when a state official acts in a
way that “shocks the conscience.” Courts have never supplied a clear definition of what the
phrase means. In Rochin v. California, the Supreme Court found that forcibly pumping a
person’s stomach to obtain evidence was shocking to the conscience.106 In high-speed police
car chases, the Court has stated that a police officer’s behavior only shocks the conscience if
the officer acts “maliciously and sadistically for the very purpose of causing harm.”107 In
general, you will probably only be able to bring this type of claim if a state official has
harmed you by intentionally acting in a way that is truly outrageous.
(ii) Procedural Due Process
Your Fourteenth (or Fifth) Amendment right to procedural due process means the
government cannot deprive you of life, liberty, or property without going through certain
procedures (“due process”). To successfully claim your procedural due process rights were
violated, you must show you were deprived of liberty or property, and the deprivation
occurred without enough procedural protection.
Showing that you were deprived of liberty or property means showing that either your
property or your liberty was taken from you in a way that is not typical of prison life.108 You
must also show that the prison officials’ action was not accidental or simply careless.109
You might want to file a procedural due process claim after a prison administrative
procedure or hearing happens in a way that is unfair to you, like if you were not told about
the hearing in advance or if you were not allowed to defend yourself in some other way.110
For an extensive discussion of due process claims resulting from disciplinary and
administrative segregation and loss of good time credits, work release programs, and parole,
see Chapter 18 of the JLM, “Your Rights at Prison Disciplinary Proceedings.” Chapter 18
also explains the Supreme Court’s important decision in Sandin v. Conner,111 which governs
the procedural due process requirements in the prison setting.
The amount of procedural protection sufficient to protect your rights and the exact
procedures that prisons must use depend on the situation. For example, if prison officials
106. Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 209–10, 96 L. Ed. 183, 190 (1952).
107. County of Sacramento v. Lewis, 523 U.S. 833, 853–54, 118 S. Ct. 1708, 1720, 140 L. Ed. 2d
1043, 1061–62 (1998) (holding that “high-speed chases with no intent to harm suspects physically or to
worsen their legal plight” do not violate suspect’s 14th Amendment rights).
108. See Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 430
(1995) (holding that due process liberty interests created by prison regulations will generally be limited
to freedom from restraints that impose an atypical and significant hardship on the prisoner in relation
to the ordinary incidents of prison life).
109. See Daniels v. Williams, 474 U.S. 327, 331–32, 106 S. Ct. 662, 664–65, 88 L. Ed. 2d 662, 668
(1986) (holding that negligence is not enough to constitute a violation under the Due Process Clause,
and injury sustained by inmate when he tripped because of deputy sheriff’s negligence did not amount
to a “deprivation” under the 14th Amendment).
110. See, e.g., Jones v. Ray, 279 F.3d 944, 946 (11th Cir. 2001) (noting that a parole board’s
reliance on false information in a parole file can violate procedural due process); Colon v. Howard, 215
F.3d 227, 231 (2d Cir. 2000) (finding 305 days in segregation to be sufficient departure from normal
prison life to require due process protections); Welch v. Bartlett, 196 F.3d 389, 394 (2d Cir. 1999)
(finding a 90-day confinement in segregation may require due process protections if the facts show such
confinement is an atypical and significant deprivation); Taylor v. Rodriguez, 238 F.3d 188, 192 (2d Cir.
2001) (prisoner’s procedural due process rights were violated when notice of charges for upcoming
hearing were too vague to allow him to prepare an adequate defense).
111. Sandin v. Conner, 515 U.S. 472, 478, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 430 (1995)
(holding liberty interests created by prison regulations will generally be limited to freedom from
restraints imposing an atypical and significant hardship on the prisoner in relation to the ordinary
incidents of prison life).
know in advance they will take away a liberty or property interest, then they have to provide
some type of procedural due process (such as a hearing) before the deprivation occurs. If they
do not, you may be able to pursue a claim under Section 1983.112 However, if the deprivation
is necessary because of an emergency situation or occurs accidentally—then due process
(such as a hearing) is not required until after the deprivation occurs.113 Some courts say the
availability of a remedy (such as compensation for lost property) under state tort law is
enough to meet the requirement of due process—even if you can’t actually win the state
claim because of governmental immunity.114 If there is a remedy for the deprivation of liberty
or property under state law, you may not be allowed to bring a Section 1983 suit.115
(g) Fourteenth Amendment Claims: The Equal Protection Clause
Under the Equal Protection Clause of the Fourteenth Amendment, all persons in the
United States, including prisoners, are guaranteed “the equal protection of the laws.”116 This
means that the state may not treat you differently or discriminate against you because you
belong to a particular group or “class” of people. In general, for a prisoner to make a claim
under the Equal Protection Clause, the claim must meet two requirements:117 (1) it must
state that you were treated differently from other prisoners who were in a similar situation
or similar circumstances,118 and (2) it must state that the unequal treatment resulted from
intentional or purposeful discrimination.119 You are most likely to be able to make an equal
protection claim if you have been discriminated against because of your race,120 gender,121
ethnicity,122 or disability.123
112. See Zinermon v. Burch, 494 U.S. 113, 139, 110 S. Ct. 975, 990, 108 L. Ed. 2d 100, 122 (1990)
(finding plaintiff had made a sufficient due process claim when he showed deprivation of his rights was
foreseeable such that pre-deprivation safeguards could have prevented the harm suffered).
113. See Parratt v. Taylor, 451 U.S. 527, 540–41, 101 S. Ct. 1908, 1915–16, 68 L. Ed. 2d 420, 432
(1981) (holding that post-deprivation remedy is sufficient to meet the requirements of due process
where a pre-deprivation hearing would be “impracticable” or “impossible”), overruled on other grounds
by Daniel v. Williams, 474 U.S. 327, 330–31, 106 S. Ct. 662, 664, 88 L. Ed. 2d 662, 668 (1986).
114. Hamlin v. Vaudenberg, 95 F.3d 580, 585 n.3 (7th Cir. 1996) (noting that adequate state law
remedies are not made inadequate by defendants’ ability to raise immunity defenses); Jackson v.
Hamm, 78 F. Supp. 2d 1233, 1245 (M.D. Ala. 1999) (holding that a state tort claim for false
imprisonment was an adequate remedy even if the defendants were immune from being sued); Irshad
v. Spann, 543 F. Supp. 922, 929 (E.D. Va. 1982) (finding a state remedy could be adequate even if
defendants were immune from suit). But see Larramendy v. Newton, 994 F. Supp. 1211, 1216 (E.D. Cal.
1998) (holding that state tort law is not sufficient to satisfy due process where a state defendant would
be absolutely immune from being sued under state law, thereby making recovery impossible); Soto v.
Lord, 693 F. Supp. 8, 15–16 (S.D.N.Y. 1988) (same); Madden v. City of Meriden, 602 F. Supp. 1160,
1169 (D. Conn. 1985) (noting that state remedy is inadequate for procedural due process purposes if
defendant cannot be sued); Harper v. Scott, 577 F. Supp. 15, 17 (E.D. Mich. 1984) (holding that state
law remedies are inadequate where defendants are immune from suit).
115. See City of W. Covina v. Perkins, 525 U.S. 234, 119 S. Ct. 678, 142 L. Ed. 2d 636 (1999)
(holding that police seizure of private property during a criminal investigation did not violate due
process where the police gave plaintiffs a list of the property seized, and where state law provided the
means for plaintiffs to eventually retrieve their property, even though the police did not actually notify
plaintiffs that they could retrieve their property).
116. U.S. Const. amend. XIV.
117. Williams v. Manternach, 192 F. Supp. 2d 980, 989–90 (N.D. Iowa 2002) (naming the two
requirements that must be met for a prisoner who wants to make an equal protection claim).
118. Klinger v. Dep’t of Corr., 31 F.3d 727, 731 (8th Cir. 1994) (noting that the Equal Protection
Clause requires the state to treat people alike when they are in similar situations).
119. McCleskey v. Kemp, 481 U.S. 279, 292, 107 S. Ct. 1756, 1767, 95 L. Ed. 2d 262, 278 (1987)
(noting that a successful equal protection claim must prove that there was purposeful discrimination).
This means that it is not enough to argue that you receive different treatment, but that you must also
argue that you were intentionally treated differently (treated differently on purpose).
120. See Johnson v. California, 543 U.S. 499, 512, 125 S. Ct. 1141, 1150, 160 L. Ed. 2d 949, 963
You may also have an equal protection claim if you are discriminated against because of
your custodial status (the type of custody you are in, such as protective custody, general
population, etc.). 124 But, in practice, equal protection claims for discrimination based on
custodial status are hard to win, since treating different types of prisoners differently is
allowed as long as the prison has some reasonable explanation.125
The Supreme Court has also recognized that it may be possible to make an equal
protection claim if you are singled out as an individual for “arbitrary and irrational
treatment,” even if you are not being discriminated against as a member of a certain
group.126 Like other constitutional rights, the right to equal protection is balanced against
the state’s legitimate interests, such as keeping prisons safe.
(h) First, Sixth, and Fourteenth Amendments Claims: Access to Courts
A prisoner’s right to court access comes from several constitutional provisions, including
the First Amendment’s right to freedom of speech, the Sixth Amendment’s right to counsel,
(2005) (finding that a prisoner’s 14th Amendment rights to equal protection are violated if the prison
discriminates on the basis of race, unless the prison can demonstrate that such discrimination is
necessary in order to achieve a compelling government interest); Sockwell v. Phelps, 20 F.3d 187, 191
(5th Cir. 1994) (finding equal protection violation where prisoners were segregated by race in their
cells, because a general fear of racial violence could not justify segregation); Santiago v. Miles, 774 F.
Supp. 775, 797 (W.D.N.Y. 1991) (finding that plaintiffs had proven the existence of equal protection
violations based on a pattern of racism affecting job placement, housing assignments and discipline).
But see Bass v. Becher, No. 04-C-033-C, 2004 U.S. Dist. LEXIS 2372 (W.D. Wis. Feb. 17, 2004)
(unpublished) (dismissing claim of equal protection violation based on race because the plaintiff did not
provide facts to show how his treatment would be different from a white prisoner in the same position);
Brown v. Byrd, No. 00-3118, 2000 U.S. Dist. LEXIS 17354 (E.D. Pa. Dec. 1, 2000) (unpublished)
(finding that defendants’ policy of assigning cells based on whether they thought prisoners would get
along, withstood Turner scrutiny and did not violate the Equal Protection Clause even though it had a
racial (and not discriminatory) purpose because the difference in treatment to the prisoners reasonably
related to the prison’s legitimate interests in safety and security); Giles v. Henry, 841 F. Supp. 270, 275
(S.D. Iowa 1993) (finding African-American plaintiff’s argument that defendants treated similarly
situated white prisoners more favorably than him to be unpersuasive, because there was no clear
pattern of discrimination in the evidence).
121. For information on cases regarding equal protection violations based on gender, write to the
JLM.
122. See, e.g., Jean v. Nelson, 711 F.2d 1455 (11th Cir. 1983) (finding an equal protection
violation where plaintiffs showed a pattern of discrimination based on the fact that they were
Haitians); Parisie v. Morris, 873 F. Supp. 1560 (N.D. Ga. 1995) (finding plaintiff’s claim that the parole
board had impermissibly considered his ethnicity in denying him parole was a valid claim).
123. See, e.g., Green v. McKaskle, 788 F.2d 1116, 1125 (5th Cir. 1986) (noting restrictions on
movement and access based on disability may violate equal protection if no possible justification is
shown). See Chapter 28 of the JLM, “Rights of Prisoners with Disabilities,” for more information on
disability discrimination.
124. Williams v. Manternach, 192 F. Supp. 2d 980, 992 (N.D. Iowa 2002) (finding that plaintiff
made a valid equal protection claim by stating that he was treated differently as a “lifer” with regards
to jobs and classification). But see Gerber v. Hickman, 291 F.3d 617, 623-624 (9th Cir. 2002) (en banc)
(finding no equal protection violation for a life prisoner barred from providing his wife with a sperm
sample for the purposes of artificial insemination, because keeping up with contacts outside of prison is
not as important for prisoners who will never be released from prison).
125. Little v. Terhune, 200 F. Supp. 2d 445 (D.N.J. 2002) (rejecting plaintiff’s equal protection
claim because, although he did not have the same programming available to him in administrative
segregation that was available to general population prisoners, the prison had a rational basis for its
programming).
126. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074, 145 L. Ed. 2d
1060, 1063 (2000) (finding equal protection claims can be made by a “class of one” if the plaintiff has
been arbitrarily and irrationally treated differently from others similarly situated and no rational basis
for the different treatment exists).
and the Fourteenth Amendment’s right to due process. For a discussion of your right to
access the courts see Chapter 3 of the JLM, “Your Right to Learn the Law and Go to Court.”
3. Federal Statutory Bases for Section 1983 Claims
Sometimes you can also bring a Section 1983 claim if a state actor has violated a right
created by certain federal statutes. 127 But, only a few federal laws can be enforced with
Section 1983. These include 38 U.S.C. § 5301(a), which deals with payment of veteran’s
benefits.128 You may also be able to bring a Section 1983 claim if your rights under some
international treaties have been violated. For example, a few courts have decided that Article
36 of the Vienna Convention on Consular Relations (“VCCR”), 129 which describes foreign
nationals’ right to consular access, can be used as the basis for a Section 1983 claim.130
Remember, some federal statutes that cannot be enforced through Section 1983 have their
own enforcement provisions.131
It can be easier to show your rights under a statute have been violated than it is to show
a constitutional violation, so if courts have already found a particular statute can be used as
the basis for a Section 1983 claim, you should examine the cases interpreting the statute to
determine if your case is similar to them. Pay special attention to which cases rely on Section
1983 and which do not.132
127. Maine v. Thiboutot, 448 U.S. 1, 4, 100 S. Ct. 2502, 2504, 65 L. Ed. 2d 555, 559 (1980)
(holding that § 1983 may be used for violations of a right under a federal statute).
128. Higgins v. Beyer, 293 F.3d 683, 689-690 (3d Cir. 2002) (holding that 38 U.S.C. § 5301(a),
which prohibits veterans’ benefits from being seized or attached, creates a right that can be enforced
under § 1983). In Higgins, a prisoner brought a § 1983 claim against the New Jersey Department of
Corrections and other defendants for taking a portion of the money from his veteran’s disability check
to pay a fine the prisoner owed to the Victims of Crime Compensation Board. Higgins v. Beyer, 293
F.3d 683, 685–86 (3d Cir. 2002).
129. Vienna Convention on Consular Relations, art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S.
261.
130. Note that federal courts are not in agreement as to whether Article 36 of the Vienna
Convention creates a right enforceable by an individual who has been arrested. Compare, e.g., Standt v.
City of N.Y., 153 F. Supp. 2d 417, 431 (S.D.N.Y. 2001) (allowing plaintiff to go forward with § 1983
claim based on violation of his right to receive notice of a right to consular access under Article 36 of the
Vienna Convention on Consular Relations); United States v. Hongla-Yamche, 55 F. Supp. 2d 74 , 78 (D.
Mass. 1999) (holding that “Article 36 of the Vienna Convention does confer an individual right to
consular notification, and that [plaintiff] has, therefore, standing to contest the alleged violation of that
right”), with, e.g., United States v. Emuegbunam, 268 F.3d 377, 391 (6th Cir. 2001) (holding that the
Vienna Convention did not create an enforceable right to consular notification); United States v.
Jimenez-Nava, 243 F.3d 192, 198 (5th Cir. 2001) (holding Article 36 of the Vienna Convention on
Consular Relations does not create a private right to sue); United States v. Li, 206 F.3d 56, 61–62 (1st
Cir. 2000) (finding the Vienna Convention does not create any fundamental rights). The majority of
federal courts that have addressed the issue have concluded the Vienna Convention does not create
enforceable individual rights, and the Supreme Court has not yet addressed the issue. United States v.
Perez-Sanchez, No. CR02-4065-MWB, slip op., 2006 WL 2949503, at *8 (N.D. Iowa Oct. 16, 2006)
(unpublished). For more information on consular access, see the Immigration and Consular Access
Supplement to the JLM.
131. See, e.g., The Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–213 (2006);
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc–2000cc-5
(2006). For more about your rights under the ADA, see Chapter 28 of the JLM, “Rights of Prisoners
with Disabilities.” For more about your rights under RLUIPA, see Chapter 27 of the JLM, “Religious
Freedom in Prison.”
132. Courts generally decide case by case what statutes can be used as the basis for a § 1983
lawsuit, depending on how the court thinks Congress intended the statute to work. See Blessing v.
Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997) (discussing how courts have
traditionally decided whether federal statutes create rights enforceable with § 1983). Sometimes
different courts disagree on whether a particular statute can be the basis for a § 1983 claim. You should
research your jurisdiction’s case law on bringing § 1983 claims based on federal statutory rights.
C. Your Lawsuit
1. Types of Relief a Court May Grant
Whether your Section 1983 claim is based on a violation of constitutional or federal
statutory rights, you may generally ask a federal district court for several types of relief in a
Section 1983 action. Types of relief include damages (money payment), injunctive relief (an
order from the court to the person you sued to stop doing something or to do something), and
declaratory relief (a court statement of what your rights are). You may ask for more than one
type of relief in your suit. However, the type of relief you can ask for may be different
depending on whom you sue or name as the defendants.133
(a) Money Damages
The court may require the individual defendants (such as wardens, guards, or employees)
to pay you money damages. You generally cannot get a judgment for damages against states
or state agencies, like a state prison.134 Money damages are available, with some limits,
against cities and private corporations. If you are suing for damages, either you (the plaintiff)
or the defendant can demand a jury trial.
There are three general categories of money damages: compensatory, punitive, and
nominal damages. Compensatory damages, also known as actual damages, are awarded to
make you “whole”—that is, to put you back in the same position as before you suffered the
wrong. For example, if an item of your property has been unlawfully damaged by a prison
official and the property was worth seventy dollars, then you could receive seventy dollars in
damages, unless you could repair or restore the property to its original condition for less than
seventy dollars. Or, if you sustained physical injuries as a result of the defendant’s conduct, a
court or jury might award you sufficient money to cover your medical expenses or to
compensate you for a resulting disability. In addition, compensatory damages may include
pain and suffering damages, which try to compensate you financially for the physical pain
and suffering that you endured as a result of the wrongful conduct. When you seek
compensatory damages, you must state and prove the nature, extent, and cause of your
injuries in detail.
A second type of money damages is punitive damages. These are not awarded very often.
The purpose of punitive damages is to punish the defendant for what she did, rather than
just to compensate you for what happened. Punitive damages are available when the
defendant acted with “evil motive or intent” or when his or her conduct involved “reckless or
callous indifference” to your federal rights. 135 A court cannot award punitive damages
against governmental agencies, 136 like the prison or jail, but it can award them against
individual officials or employees.
133 . For a list of the types of relief available from different defendants, see Figure 2 in
Subsection 3(c) of Part C of this Chapter.
134. As a practical matter, if you sue state employees (as opposed to the actual state or state
agency) in their individual capacity, the state will voluntarily pay damages for the employees. This is
called indemnification.
135. Smith v. Wade, 461 U.S. 30, 56 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632, 651 (1983) (holding
a prisoner may be awarded punitive damages for recklessness or serious indifference to his rights, as
well as for “evil intent”); see also Reilly v. Grayson, 310 F.3d 519, 521 (6th Cir. 2002) (upholding
punitive damages award against prison officials whose refusal to house asthmatic prisoner in smoke-
free environment was found to be a reckless disregard for his rights); Blissett v. Coughlin, 66 F.3d 531,
535–36 (2d Cir. 1995) (upholding jury award of punitive damages against prison guards for assault and
unlawful confinement of prisoner).
136. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L.
Ed. 2d 616, 635 (1981) (holding that punitive damages are not available against a municipality in a §
1983 suit); Ciraolo v. City of N.Y., 216 F.3d 236, 242 (2d Cir. 2000) (reversing, based on City of Newport,
a punitive damages award against New York City in a § 1983 action and finding municipalities
The third type of money damages are nominal damages. Nominal damages are a form of
symbolic relief that is usually no more than one dollar.137 A plaintiff prisoner who proves his
rights were violated but does not prove that any harm resulted is entitled to nominal
damages, but not compensatory damages.138 If you receive nominal damages, you may be
able to recover punitive damages as well.139
No matter which type of damages you ask for, you should read JLM Chapter 14, “The
Prison Litigation Reform Act,” since the PLRA limits the types of damages you can get in
given situations.140
(b) Injunctive Relief
Another type of relief the court can award in a Section 1983 action is an injunction. An
injunction is an order to prison officials either to take certain actions—for example, to
improve the conditions of your confinement—or not to take certain kinds of actions against
you in the future—for example, to stop censoring your mail.141 An injunction is often referred
to as “equitable relief.”
In order to obtain an injunction, you must be able to show that (1) there is a likelihood of
substantial immediate irreparable injury without an injunction; and (2) the remedies at law,
such as money damages, are inadequate.142 To meet the immediate injury requirement, you
must be able to prove that your injury is likely to happen to you again in the foreseeable
absolutely immune, with no “outrageous conduct” exception).

137. Courts may award more than one dollar. See, e.g., Hatch v. Yamauchi, 809 F. Supp. 59, 61
(E.D. Ark. 1992) (awarding nominal damages in the amount of ten dollars for violation of prisoners’
right to access the courts (meaning access to the law library and trained legal assistance)).
138. See Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002) (holding that, under the PLRA,
claims for constitutional violations absent physical injury need not be dismissed outright, but recovery
is limited to nominal and punitive damages (as well as injunctive and declaratory relief) because
allowing compensatory damages without physical injuries would amount to recovery for mental or
emotional injury, which the PLRA prohibits); see also Royal v. Kautzky, 375 F.3d 720, 722–23 (8th Cir.
2004) (holding that a prisoner could seek punitive damages but could not recover for indefinite,
indescribable damage); Searles v. Van Bebber, 251 F.3d 869, 875–76 (10th Cir. 2001) (finding that
punitive and compensatory damages should not be awarded where there is no physical injury).
139. See Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000) (noting that in appropriate cases,
both nominal and punitive damages may be awarded for a violation of constitutional rights without an
accompanying injury).
140. See Harris v. Garner, 216 F.3d 970, 984 (11th Cir. 2000) (en banc) (holding that the
language “no action shall be brought” operates as a bar to a prisoner’s entire suit absent physical
injury). Compare Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998) (“[Section]
1997e(e) precludes claims for emotional injury without any prior physical injury, regardless of the
statutory or constitutional basis of the legal wrong.”), with Rowe v. Shake, 196 F.3d 778, 781 (7th Cir.
1999) (“[Section] 1997e(e) applies only to claims for mental or emotional injury. Claims for other types
of injury do not implicate the statute.”) (citations omitted); Canell v. Lightner, 143 F.3d 1210, 1213 (9th
Cir. 1998) (“[T]he deprivation of First Amendment rights entitles a plaintiff to judicial relief wholly
aside from any physical injury he can show, or any mental or emotional injury he may have incurred.
Therefore, Section 1997e(e) does not apply to First Amendment [c]laims regardless of the form of relief
sought.”).
141. See, e.g., Koch v. Lewis, 216 F. Supp. 2d 994, 1007 (D. Ariz. 2001) (ordering prison to release
prisoner from segregation into the general population after finding that indefinite segregation based
solely on gang membership was unconstitutional), vacated as moot, Koch v. Schriro, 399 F.3d 1099,
1100–01 (9th Cir. 2005).
142. See O’Shea v. Littleton, 414 U.S. 488, 502, 94 S. Ct. 669, 679, 38 L. Ed. 2d 674, 687 (1974)
(noting that to obtain equitable relief, plaintiff must prove “likelihood of substantial and immediate
irreparable injury, and the inadequacy of remedies at law”); Younger v. Harris, 401 U.S. 37, 46, 91 S.
Ct. 746, 751, 27 L. Ed. 2d 669, 676 (1971) (stating that proof of an irreparable injury is required for any
injunction). These requirements are often referred to as the requirements for “standing” (the right to
make a legal claim before the court) to seek injunctive relief.
future and that it was not a single, isolated incident.143 One of the most effective ways of
showing that you are likely to suffer future harm is to show that the harm is ongoing either
due to a written policy or to a pattern or custom of officially sanctioned behavior (behavior
approved by officials). 144 You also have to prove that your injury is a substantial and
irreparable one. You can show that your injury is substantial (serious) by pointing out the
specific ways you are being harmed. Showing that your injury is irreparable means showing
you are being harmed in a way that cannot be fixed in the future. Many courts consider the
ongoing violation of a constitutional right to be substantial irreparable harm.145 Lastly, you
have to show that no other available legal remedy will address your injury. In other words,
you must demonstrate that an injunction is the only way to prevent and correct the source of
your injury.146
If you can show that an injunction is necessary to protect your rights until your trial is
over, you may be able to get a temporary injunction before the trial is completed or even
before it starts.147 This type of relief is called a preliminary injunction. To get one, you must
follow the procedures described in Rule 65(a) of the Federal Rules of Civil Procedure. Most
courts also require you to show that:
(1) You are likely to succeed on the merits of your claim;
(2) You are likely to suffer irreparable harm if the preliminary injunction is denied;
143. See Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S. Ct. 1660, 1670, 75 L. Ed. 2d 675, 690
(1983) (holding that injunctive relief is unavailable when there is no “real or immediate threat that the
plaintiff will be wronged again”); Hague v. CIO, 307 U.S. 496, 518, 59 S. Ct. 954, 965, 83 L. Ed. 1423,
1438 (1939) (granting injunctive relief because the threat of continued police misconduct made the
threat of constitutional deprivations ongoing).
144. See Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) (stating that a realistic threat of a
repeating injury may arise from a written policy or a pattern of officially sanctioned behavior).
145 . See, e.g., Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (stating that there is a
“presumption of irreparable injury that flows from a violation of constitutional rights”); Nat’l People’s
Action v. Wilmette, 914 F.2d 1008, 1013 (7th Cir. 1990) (“Even a temporary deprivation of First
Amendment freedom of expression rights is generally sufficient to prove irreparable harm.”); Ross v.
Meese, 818 F.2d 1132, 1135 (4th Cir. 1987) (noting that deprivation of a constitutional right amounts to
irreparable harm); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (holding that an alleged
violation of a constitutional right is enough to show irreparable harm). But see Wis. Cent. Ltd. v. Public
Serv. Comm’n of Wis., 95 F.3d 1359, 1372 (7th Cir. 1996) (holding that where the only constitutional
right at issue related to the procedures for receiving compensation for a governmental taking of
property, irreparable harm was not shown); Pinckney v. Bd. of Educ., 920 F. Supp. 393, 400–01
(E.D.N.Y. 1996) (holding that irreparable harm was not shown by alleged procedural due process
violation where plaintiff could be compensated with money damages).
146. See O’Shea v. Littleton, 414 U.S. 488, 501-02, 94 S. Ct. 669, 679, 38 L. Ed. 2d 674, 686–87
(1974) (holding that plaintiffs did not meet the required elements for injunctive relief because there
were state and federal remedies that could provide them with adequate relief for their alleged wrongs).
147. See, e.g., Mitchell v. Cuomo, 748 F.2d 804, 808 (2d Cir. 1984) (upholding preliminary
injunction that prohibited closing a prison where prisoners proved such a closing would force them to be
moved to prisons that already were too crowded); Inmates of Attica Corr. Facility v. Rockefeller, 453
F.2d 12, 23–24 (2d Cir. 1971) (granting preliminary injunctive relief to prisoners after extended
mistreatment by prison guards, where prison officials had not taken sufficient steps to ensure that such
mistreatment would not continue during trial), overruled on other grounds; Campos v. Coughlin, 854 F.
Supp. 194, 214 (S.D.N.Y. 1994) (allowing prisoners to wear religious beads); Dean v. Coughlin, 623 F.
Supp. 392, 405 (S.D.N.Y. 1985), vacated on other grounds, 804 F.2d 207 (2d Cir. 1986) (ordering prison
officials to provide “adequate dental care to prisoners with serious dental needs”). But see Parker v.
State Bd. of Pardons and Paroles, 275 F.3d 1032, 1037 (11th Cir. 2001) (finding plaintiff not entitled to
a preliminary injunction since he was unable to show that there was a substantial likelihood of success
on the merits of his claims); Espinal v. Goord, 180 F. Supp. 2d 532, 541 (S.D.N.Y. 2002) (denying
plaintiff’s motion for a temporary restraining order or preliminary injunction because plaintiff had not
made a “substantial showing of likelihood of success on the merits of his due process claims”).
(3) You will suffer more if the injunction is denied than the defendant will suffer if
granted; and
(4) Granting the preliminary injunction is consistent with the public interest.148
Generally you can only receive a preliminary injunction after a hearing, in which your
opponent has the opportunity to argue against the injunction. However, there is one type of
injunction that can be granted in advance of a hearing. This type of injunction is a temporary
restraining order (“TRO”). Courts will only grant a TRO in exceptional and urgent situations.
To get a TRO, you must show that you will suffer “immediate and irreparable injury, loss, or
damage” if you have to wait for a hearing.149 If you are granted a TRO, the court will set a
date for a hearing as soon as possible. At this hearing, you must ask that the TRO be
converted to a preliminary injunction.150
If the court grants a TRO, it may require you to provide money for assurance purposes.
But, you can ask the court to waive this requirement. To take advantage of this waiver, you
should file your TRO request in forma pauperis.151 See Appendix A-5 of this Chapter for
sample in forma pauperis documents.
If you believe you are eligible for a TRO, you must file an “Order to Show Cause and
Temporary Restraining Order” with the court. See Appendix A-4 of this Chapter for an
example. If possible, you must also notify prison officials that you are requesting a TRO and
send them copies of your request. You must also submit to the court an affidavit that
describes your efforts to contact the prison officials, and a short memorandum stating the
reasons why the court should grant your request for a TRO.152
148. Consistency with the public interest is the standard for a preliminary injunction in most
federal courts. See Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571, 578 (6th Cir. 2006) (holding that
a district court determining whether to grant a preliminary injunction must consider the injunction’s
potential impact on the public interest); Joelner v. Vill. of Wash. Park, Ill., 378 F.3d 613, 619 (7th Cir.
2004) (holding that the moving party must show that the preliminary injunction would not harm the
public interest); Rodde v. Bonta, 357 F.3d 988, 994 (9th Cir. 2004) (holding that plaintiffs seeking
preliminary injunction had to demonstrate “advancement of the public interest”); Nieves-Marquez v.
Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003) (holding that plaintiffs seeking a preliminary injunction
“bear the burden of demonstrating ... a fit (or lack of friction) between the injunction and the public
interest”); Shire U.S., Inc. v. Barr Labs., Inc., 329 F.3d 348, 352 (3d Cir. 2003) (holding that district
court must determine whether the consideration of the public interest favors granting preliminary
injunctive relief); Newsom v. Albemarle County Sch. Bd., 354 F.3d 249, 254 (4th Cir. 2003) (holding
that a court must consider the public interest when deciding whether to issue a preliminary injunction);
In re Sac & Fox Tribe of the Miss. in Iowa / Meskwaki Casino Litigation, 340 F.3d 749, 758 (8th Cir.
2003) (holding that the appropriate way to analyze whether to issue a preliminary injunction includes
considering the public interest); Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001) (holding that
the plaintiff is entitled to a preliminary injunction if he can establish, among other things, that the
injunction is not adverse to the public interest); Parker v. State Bd. of Pardons & Paroles, 275 F.3d
1032, 1035 (11th Cir. 2001) (same); Wenner v. Tex. Lottery Comm’n, 123 F.3d 321, 325 (5th Cir. 1997)
(holding the district court must consider the public interest when determining whether to issue
preliminary injunction). However, some courts modify the test slightly. To receive a preliminary
injunction from a court in the Second Circuit, you must show: (1) you are likely to suffer irreparable
harm if the preliminary injunction is denied, and (2) either (a) you are likely to succeed on the merits of
your claim, or (b) your claim raises sufficiently serious questions to justify litigation and you will suffer
more if the injunction is denied than the defendant will suffer if it is granted. See Mitchell v. Cuomo,
748 F.2d 804, 806 (2d Cir. 1984) (upholding preliminary injunction prohibiting prison closing where
prisoners proved such a closing would force them to be moved to prisons that were already too
crowded).
149. Fed. R. Civ. P. 65(b).
150. Fed. R. Civ. P. 65(b).
151. “In forma pauperis” is Latin for “in the manner of a pauper.” It means that you cannot
afford the fee or costs and are asking the court to waive them. See Black’s Law Dictionary 794–95 (8th
ed. 2004). Some states use the English “Poor Person Status” instead of the Latin term.
152 . There are no technical rules that you must follow in composing your supporting
Under 18 U.S.C. § 3626(a)(2) of the PLRA, any preliminary injunction that is granted
will automatically expire after ninety days, unless the court makes certain findings required
for granting an injunction153 and issues a final order for an injunction before the expiration of
the ninety-day period. 154 It is often difficult or impossible for the parties to complete
discovery and for the court to complete a trial and issue a decision within ninety days.
However, the court can issue a new preliminary injunction if it finds you are still faced with
irreparable harm.155
(c) Declaratory Relief
Finally, the court may issue a declaratory judgment. A declaratory judgment is a court’s
statement about the nature and limits of your rights made before your rights have been
violated.156 A declaratory judgment can be useful if prison officials threaten to take some
action that you believe would violate your rights. In such circumstances, you may use Section
1983 to request that the court issue a declaratory judgment saying that it would be illegal for
the prison to take the action in question. You may seek a declaratory judgment even if you
are not seeking any other type of relief.157 Later on, you can still seek an injunction if you
find that the declaratory judgment is not enough to protect you.
2. Whom to Name as Defendants
Figuring out exactly whom to name as a defendant in your Section 1983 lawsuit can be
confusing. As noted in Part B(1)(a) above, you can only sue a “person” who violated your
rights while acting “under color” of state law. For the purposes of Section 1983, the definition
of a “person” includes individual people (like prison wardens, guards, and other employees),
as well as a city, county, or municipality that adopts policies, rules, or regulations that
violate your rights. 158 However, state governments and their agencies (like a state’s
department of corrections) are not “persons” under Section 1983.159
(a) Individual Defendants
If any of your defendants are individuals, you must decide in what “capacity” you will sue
them—“individual capacity,” “official capacity,” or both. When you sue someone in his
individual capacity, you are suing him personally. When you sue someone in his official
capacity, you are suing his office (for example, suing the county prison warden rather than
suing the individual who happens to be the county prison warden). Whether you sue an
memorandum. Simply state your arguments as clearly as possible and stress the consequences that will
result if the court does not grant your request. Be sure to tell the court why you need action
immediately and why you cannot wait for a hearing. Chapter 2 of the JLM, “Introduction to Legal
Research,” explains how to conduct research for a memorandum of law. See also Chapter 6 of the JLM,
“An Introduction to Legal Documents.”
153. 18 U.S.C. §§ 3626(a)(1)–(2) (2006).
154. 18 U.S.C. § 3626(a)(2) (2006).
155. See, e.g., Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001) (upholding a district
court’s second preliminary injunction allowing prisoners to attend religious services without being
punished).
156. Declaratory Judgment Act, 28 U.S.C. § 2201(a) (2006).
157. Declaratory Judgment Act, 28 U.S.C. § 2201(a) (2006).
611, 635 (1978) (holding that municipalities and local governments are considered “persons” under §
1983).
159. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 68–71, 109 S. Ct. 2304, 2311–12, 105 L.
Ed. 2d 45, 56–58 (1989) (holding that states and state defendants sued in their official capacities are
not “persons” under § 1983 and therefore may not be sued for money damages).
individual in his individual capacity, his official capacity, or both will affect the type of relief
you can receive and the defenses the individual can raise.160
In general, if you want to obtain an injunction (described in Part C(1)(b) of this Chapter),
you should sue defendants in their official capacities. If you are seeking money damages, you
should sue defendants in their individual capacities. If you are seeking monetary damages
against a high-ranked local official, like a sheriff or a warden, you should probably sue him
in both his official and individual capacities. If you are very confused about which capacity to
use for a particular defendant, you always have the option of suing that defendant in both
his individual and official capacities. However, you should know that suing defendants in
both capacities may lead the defendants to file motions asking that part of your lawsuit be
dismissed. Such motions can be confusing and further delay your lawsuit.
Sometimes you may not know the name of the person who violated your rights. In such a
case, you must refer to the defendant as “John (or Jane) Doe.”161 This tells the court that you
do not know the name of the person about whom you are complaining. You must, however,
locate and identify all John and Jane Does at some point or the claims against them will be
dismissed. 162 Once the lawsuit is started, you should be able to find out the defendants’
identities through discovery. For more information on discovery, see Chapter 8 of the JLM,
“Obtaining Information to Prepare Your Case: The Process of Discovery.”
(b) Supervisor Liability
A supervisory official who causes or participates in a violation of your rights may be
liable under some circumstances. Supervisor liability under Section 1983 should not be
confused with “respondeat superior,” which is the idea that supervisors are legally
responsible for their subordinates’ (lower-ranked staff members’) actions whether or not the
supervisor had actual knowledge of the actions.163 The concept of respondeat superior does
not apply to Section 1983 lawsuits. 164 Thus, in Section 1983 claims, supervisory officials
cannot be charged with responsibility for lower officials’ acts unless they were “personally
involved” in them. As with any other individual, a supervisor may be liable if he directly
participated in the violation of your rights: for example, a supervisor who participated in an
assault on you might be liable because of his own role. In addition, a supervisor is considered
to be “personally involved” in a constitutional violation if:
(1) The supervisor, “after learning of [a] violation [of your rights] ... failed to remedy the
wrong”; or
(2) The supervisor “created a policy or custom under which” your constitutional rights
were violated, “or allowed such a policy or custom to continue”; or
160. See Part C(3) of this Chapter for an explanation of how individual and official capacities
affect potential defenses and the types of damages you can receive.
161. See Roper v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996) (holding that it is permissible to
name John or Jane Doe defendants “so long as the plaintiff provides an adequate description of some
kind which is sufficient to identify the person involved so process can eventually be served”); Dean v.
Barber, 951 F.2d 1210, 1215–16 (11th Cir. 1992) (finding plaintiff adequately identified unnamed
defendant such that he could be added later when his identity was determined).
162. See, e.g., Figueroa v. Rivera, 147 F.3d 77, 82–83 (1st Cir. 1998) (upholding dismissal of
claim without prejudice where plaintiffs had made no attempt to identify or to serve John Doe
defendants 17 months after filing suit).
163. Respondeat superior is Latin for “let the superior [master] make answer.” See Black’s Law
Dictionary 1338 (8th ed. 2004).
164. See, e.g., Worrell v. Henry, 219 F.3d 1197, 1214 (10th Cir. 2000) (“Under § 1983, a defendant
may not be held liable under a theory of respondeat superior.”); Aponte Matos v. Toledo Davila, 135
F.3d 182, 192 (1st Cir. 1998) (“Supervisory liability under § 1983 ‘cannot be predicated on a respondeat
theory, but only on the basis of the supervisor's own acts or omissions.’”) (citation omitted).
(3) The supervisor was “grossly negligent” in that he did not adequately supervise the
subordinates who violated your rights.165
To hold a supervisor liable in any of the above situations, you must show that the
supervisor acted with “deliberate indifference.”166 The definition of deliberate indifference
can vary from circuit to circuit and may depend on the type of supervisor liability you are
claiming.167 Be sure to look at cases in your circuit to see how your circuit defines deliberate
indifference for the purposes of supervisor liability. Most courts say that a supervisor acts
with deliberate indifference when he knows or should know that there is a substantial risk of
constitutional harm and he fails to prevent or remedy that harm.168
To win on a supervisor liability claim, you must show your constitutional rights were
actually violated, and there was a clear connection between the violation of your rights and
the supervisor’s actions or failure to act. 169 Below is a discussion of the three situations
where you may be able to hold a supervisor liable.
(i) Failure to Act to Remedy a Wrong
If a supervisor becomes aware of a violation of your rights, but fails to take steps to
remedy the violation, he may be liable under Section 1983.170 Information about a violation of
rights may come to a supervisor’s attention in a variety of ways. The supervisor may learn of
the violation through an appeal you make through the prison grievance system,171 or the
appeal of a disciplinary decision.172 He may learn of the violation through a report or through
165. See Williams v. Smith, 781 F.2d 319, 323–24 (2d Cir. 1986) (discussing the ways in which
supervisors may be found liable under § 1983).
166. See Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (“Liability of a supervisor under
§ 1983 must be predicated on the supervisor's deliberate indifference, rather than mere negligence.”).
167. See, e.g., Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (defining supervisor
“deliberate indifference” in an 8th Amendment context as occurring where the supervisor knows “he is
‘creating a substantial risk of bodily harm’”) (emphasis added).
168. See Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998) (“To demonstrate deliberate
indifference a plaintiff must show (1) a grave risk of harm, (2) the defendant's actual or constructive
knowledge of that risk, and (3) his failure to take easily available measures to address the risk.”). The
Second Circuit has applied a standard of gross negligence in cases involving a supervisor’s deficient
management of staff or failure to respond to constitutional violations, that the supervisor need only
have been “grossly negligent.” See, e.g., Williams v. Smith, 781 F.2d 319, 323–24 (2d Cir. 1986) (“[A]
supervisory official may be personally liable if he or she was grossly negligent in managing
subordinates who caused the unlawful condition or event”); Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994) (“Supervisory liability may be imposed where an official demonstrates ‘gross negligence’ or
‘deliberate indifference’ to the constitutional rights of inmates by failing to act on information
indicating that unconstitutional practices are taking place.”). But, if you are filing your complaint
within the Second Circuit, you should plead “deliberate indifference” in your complaint.
169. See Aponte Matos v. Toledo Davila, 135 F.3d 182, 192 (1st Cir. 1998) (“There is supervisory
liability only if (1) there is subordinate liability, and (2) the supervisor's action or inaction was
‘affirmatively linked’ to the constitutional violation caused by the subordinate.”); Green v. Branson, 108
F.3d 1296, 1302 (10th Cir. 1997) (“To establish a supervisor's liability under § 1983 [plaintiff] must
show that an affirmative link exists between the [constitutional] deprivation and either the supervisor's
personal participation, his exercise of control or direction, or his failure to supervise.”) (citations and
internal quotations omitted).
170. See Williams v. Smith, 781 F.2d 319, 324 (2d Cir. 1986) (holding that supervisor who
affirmed prisoner’s disciplinary conviction when prisoner was not permitted to call witnesses may be
liable for violation of prisoner’s due process rights); Boone v. Elrod, 706 F. Supp. 636, 638 (N.D. Ill.
1989) (finding valid § 1983 claim where plaintiff claims that defendants ignored complaints of prior
attacks by other prisoners).
171. See Amaker v. Hakes, 919 F. Supp. 127, 131–32 (W.D.N.Y. 1996) (stating that information
received by superintendent of correctional facility through prisoner grievance procedures may support
supervisor liability in that it may demonstrate personal involvement on part of supervisor).
172. Gabai v. Jacoby, 800 F. Supp. 1149, 1156 (S.D.N.Y. 1992) (finding supervisor who learned
the filing of a lawsuit. 173 He may also learn of a violation through informal sources of
information,174 such as letters from prisoners175 or by directly witnessing the violation.176
Regardless of how a supervisor learns of a violation of your rights, the information
received must be sufficient to put him on notice of the violation. This means the supervisor
must have enough information that he knows or should know the violation is occurring.177
Note, some courts have held prisoner letters are not sufficient to put prison officials on
notice.178 Moreover, the nature of the violation must be one the particular supervisor has
authority to fix.179 Finally, he or she must have actually failed to fix the violation.
prisoner’s rights were violated during a disciplinary procedure could be liable for not overturning the
disciplinary decision on appeal).
173. Morris v. Eversley, 205 F. Supp. 2d 234, 242 (S.D.N.Y. 2002) (noting that supervisor who
received prisoner’s report of sexual misconduct by guard may be found liable); Langley v. Coughlin, 709
F. Supp. 482, 486 (S.D.N.Y. 1989) (holding that commissioner of Department of Correctional Services
may be personally liable for violation of mentally ill prisoners’ rights where he received information of
such violations through complaints filed in lawsuits as well as through a report written by the
Correctional Association of New York in conjunction with the Department of Correctional Services
describing “deficiency in the treatment of chronically mentally ill inmates”).
174. See, e.g., Green v. Branson, 108 F.3d 1296, 1302–03 (10th Cir. 1997) (holding that warden
who was informed by prisoners of attack on a prisoner and who failed to take any steps to ensure that
the prisoner receive adequate medical care may be liable); Walker v. Godinez, 912 F. Supp. 307, 312–13
(N.D. Ill. 1995) (stating that prisoners’ report of corrections officers’ misconduct to supervisory officials
may be sufficient for supervisory liability).
175. See Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (stating that Commissioner may
be liable, depending on contents of letter from prisoner complaining about violation of his rights);
Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (noting that letters from prisoner to supervisory
official regarding violation of rights may be sufficient for “personal involvement” of supervisor where
supervisor failed to remedy the violation); Pacheco v. Comisse, 897 F. Supp. 671, 678 (N.D.N.Y. 1997)
(same); Barry v. Ratelle, 985 F. Supp. 1235, 1239 (S.D. Cal. 1997) (same); Mandala v. Coughlin, 920 F.
Supp. 342, 351 (E.D.N.Y. 1996) (same); Strachan v. Ashe, 548 F. Supp. 1193, 1204 (D. Mass. 1982)
(stating that letter from prisoner’s attorney informing supervisory officials of violation of prisoner’s
rights may support finding of personal involvement for supervisor liability). But see Watson v.
McGinnis, 964 F. Supp. 127, 130 (S.D.N.Y. 1997) (“[A]llegations that an official ignored a prisoner’s
letter are insufficient to establish liability” under § 1983); Pritchett v. Artuz, No. 99 Civ. 3957, 2000 WL
4157, *6 (S.D.N.Y. Jan. 3, 2000) (“Generally, the allegation that a supervisory official ignored a
prisoner's letter protesting unconstitutional conduct is not itself sufficient to allege the personal
involvement of the official so as to create liability under § 1983.” (quoting Gayle v. Lucas, No. 97 Civ.
883, 1998 WL 148416, *4 (S.D.N.Y. Mar. 30, 1998))).
176. See Gailor v. Armstrong, 187 F. Supp. 2d 729, 736–37 (W.D. Ky. 2001) (finding supervisor
who failed to intervene during use of excessive force resulting in prisoner’s death may be liable under §
1983). Keep in mind that all prison officials, not only supervisors, may be liable for failing to intervene
or stop a violation of your rights. See Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir. 2002) (“It is
not necessary that a police officer actually participate in the use of excessive force in order to be held
liable under section 1983. Rather, an officer who is present at the scene and who fails to take
reasonable steps to protect the victim of another officer's use of excessive force, can be held liable for his
[failure to act].”); Davis v. Hill, 173 F. Supp. 2d 1136, 1143 (D. Kan. 2001) (“Although only two
defendants were directly responsible for the attack [on the prisoner], the remaining five may still be
liable if they were in a position to prevent the attack but failed to do so.”).
177. See Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996) (“The plaintiff still has the burden of
demonstrating that the communication, in its content and manner of transmission, gave the prison
official sufficient notice to alert him or her to” a constitutional violation); Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995) (finding that supervisor could not be held personally involved in violation of
prisoner’s rights based on letter, the contents of which were unknown, because the court could not
determine “whether the letter was one that reasonably should have prompted [the supervisor] to
investigate”); Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 81–82 (6th Cir. 1995) (finding that warden
could be found to have known of potential that prisoner would be raped because warden knew that
there were problems in the classification procedures and that young prisoners were more vulnerable to
sexual assaults).
178. See Watson v. McGinnis, 964 F. Supp. 127, 130 (S.D.N.Y. 1997) (holding that “allegations
(ii) Creating or Allowing an Unconstitutional Policy or Custom
A supervisor may be found to be personally involved in a violation of your rights if he
develops an unconstitutional policy or if he allows an unconstitutional policy to continue.180
The policy does not need to be written. Supervisors can be held liable for creating or allowing
an unconstitutional informal policy or custom. 181 However, if supervisors create a
constitutional policy and their subordinates violate your rights by failing to follow that
policy, the supervisor cannot be held liable.182 Similarly, if policies are in place to protect
your constitutional rights, and subordinates violate your rights by ignoring those policies, the
supervisor cannot be held liable. 183 There is one exception to these two rules. If staff
members ignore or fail to follow a policy because the supervisor did not do a good enough job
of hiring or training those staff members, then the supervisor can be held liable. This
exception is discussed in Part C(2)(b)(iii), below.
(iii) Deficient Management of Subordinates
A supervisor may be liable if a staff member violates your constitutional rights because
of that supervisor’s mismanagement of subordinates (individuals working under the
supervisor’s command). This type of liability can arise when the supervisor (1) knew of a
subordinate’s past misconduct and failed to take action to remedy it,184 (2) failed to set up
policies that help guide subordinates’ conduct so that violations of constitutional rights do
not occur, 185 (3) failed to inform staff of and train them on policies designed to avoid
constitutional deprivations,186 or (4) failed to properly supervise staff to ensure that they
follow policies.187
that an official ignored a prisoner’s letter are insufficient to establish liability” under § 1983).
179. Hill v. Marshall, 962 F.2d 1209, 1213–14 (6th Cir. 1992) (stating corrections official whose
job was “to review and respond to inmates’ medical needs” could be liable for failing to do his job when
he was on notice of prisoner’s medical needs); Pinto v. Nettleship, 737 F.2d 130, 133 (1st Cir. 1984)
(holding supervisor cannot be personally liable “based on prison conditions beyond” his control);
Williams v. Bennett, 689 F.2d 1370, 1389 (11th Cir. 1982) (holding a supervisor “who was without the
authority or means to provide the necessary security” could avoid supervisor liability).
180. See Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 84 (6th Cir. 1995) (finding warden could be
liable for failure to adopt reasonable policies ensuring transferees were not placed in grave danger of
rape); Redman v. County of San Diego, 942 F.2d 1435, 1446–49 (9th Cir. 1991) (en banc) (noting sheriff
could be liable for prisoner’s rape where sheriff approved a faulty classification policy); Williams v.
Coughlin, 875 F. Supp. 1004, 1014 (W.D.N.Y. 1995) (finding superintendent of prison could be liable for
policy of withholding food from prisoners who committed disciplinary infractions).
181. See Leach v. Shelby County Sheriff, 891 F.2d 1241, 1247–48 (6th Cir. 1989) (stating that
sheriff may be liable for unwritten policy or custom of deliberate indifference to detainees’ serious
medical needs).
182. See Buffington v. Baltimore County, 913 F.2d 113, 122–23 (4th Cir. 1990) (holding that
police chief was not liable for subordinates’ violation of suicide prevention policy).
183. See Vasquez v. Coughlin, 726 F. Supp. 466, 473–74 (S.D.N.Y. 1989) (noting that supervisor
was not liable for subordinate’s violation of prisoner’s rights where a policy existed that was designed to
prevent such violations).
184. See Estate of Davis by Ostenfeld v. Delo, 115 F.3d 1388, 1396 (8th Cir. 1997) (affirming
finding that superintendent of prison was liable for guard’s use of excessive force where superintendent
knew of guard’s propensity for excessive force and failed to take steps to investigate and correct the
problem).
185. See Bryant v. McGinnis, 463 F. Supp. 373, 387 (W.D.N.Y. 1978) (holding that commissioner
could be liable for failing to issue rules for protecting Muslim religious practices).
186. See Gilbert v. Selsky, 867 F. Supp. 159, 166 (S.D.N.Y. 1994) (finding that Director of Inmate
Discipline may be liable for failing to train disciplinary hearing officers who violated prisoner’s rights
at disciplinary hearing).
187. See Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80–81 (6th Cir. 1995) (noting warden’s failure
to ensure that staff properly carried out transfer policy may create supervisor liability); Allman v.
If your complaint alleges that the violation of your rights resulted from a failure to train
staff (the third basis for liability under a deficient management theory), you must show “a
complete failure to train, or training that is so reckless or grossly negligent that future
misconduct is almost inevitable.”188
(c) Municipal or Local Government Liability
A municipality or local government—such as a county, city, or town—can be held liable
under Section 1983 if you can show that the violation of your constitutional rights was either
(1) caused by a policy or custom of the municipality or (2) caused by a municipal
policymaker’s failure to take certain actions, such as properly training employees. In the first
situation, the municipality has “direct liability” for violating your rights. In the second
situation, the municipality has “indirect liability” for violating your rights. The requirements
for each type of liability are discussed in detail in Parts C(2)(c)(i) and (ii) of this Chapter
below.
There are several benefits to naming a municipality as a defendant. First, while you
cannot recover punitive damages from a municipality, 189 you can still sue it for both
compensatory damages and injunctive relief.190 Second, municipalities, unlike individuals,
cannot claim qualified immunity.191 A third benefit is that if you are successful in your suit
against a municipality, there is a better chance that the municipality will make broad
changes in handling situations similar to yours in the future.
(i) “Direct” Municipal Liability
In order to hold a municipality directly liable for a violation of your rights, you must
meet the regular requirements for a Section 1983 claim and also show the following:
(1) A policy or custom of the municipality caused your rights to be violated;192 and
(2) The policy was created by someone who is a final policymaker for the municipality.193
For a policy or custom to be considered the direct cause of a violation of your rights, it
must be unconstitutional on its face. A policy or custom is “unconstitutional on its face” if the
policy or custom itself causes your rights to be violated.194 For example, if a particular prison
Coughlin, 577 F. Supp. 1440, 1448 (S.D.N.Y. 1984) (stating Commissioner could be liable for failing to
supervise emergency response team).
188. McDaniels v. McKinna, No. 03-1231, 96 F. App’x 575, 579, 2004 U.S. App. LEXIS 8262, *8
(10th Cir. Apr. 27, 2004) (unpublished) (quoting Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir.
1988)) (dismissing plaintiff’s medical care claim, because defendant did not “personally participate” in
denying plaintiff medical treatment and was not “deliberately indifferent” to plaintiff’s medical
difficulties).
189. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L.
Ed. 2d 616, 635 (1981) (holding that punitive damages are not available against municipalities in §
1983 actions).
190. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035, 56 L. Ed. 2d 611,
635 (1978) (concluding local governments may be sued under § 1983 for compensatory damages,
injunctions and declaratory relief).
191. See Owen v. City of Independence, 445 U.S. 622, 638, 100 S. Ct. 1398, 1409, 63 L. Ed. 2d
673, 685–86 (1980) (finding qualified immunity available for municipality). Qualified immunity is
discussed in Part C(3)(c) of this Chapter.
192. See Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427, 2436, 85 L. Ed. 2d 791, 804
(1985) (finding that municipal liability required a showing of an actual connection between the policy or
custom and the violation).
193. See Pembaur v. Cincinnati, 475 U.S. 469, 481–83, 106 S. Ct. 1292, 1299–1300, 89 L. Ed. 2d
452, 464–65 (1986) (noting that municipalities can only be held liable under § 1983 for policies made by
officials who had final authority to make the challenged policy).
611, 638 (1978) (holding that a municipality can be held liable when an unconstitutional official policy
guard refuses to get medical help for you when you are injured, the municipality will not be
liable for failing to provide medical care. However, if the prison has a known policy of
delaying medical help to some or all prisoners, the municipality will be held liable for your
denial of medical care. Policies do not necessarily have to be written. Policymakers’ acts may
also be considered municipal “policies.” For instance, if a policymaker fires an employee for
an unconstitutional reason, the firing may be considered a “policy.” 195 Moreover, a
municipality can also be held responsible for a custom or settled practice of the municipality
that is unconstitutional.196 In all of these situations, you must be able to show a clear link
between the existence of the policy or custom and the constitutional violation.197
Under the second requirement for “direct” municipal liability, the person who created the
policy must be someone with final authority to make that particular policy for the
municipality. A court will look to state law to determine if the law in your state has given the
person in question the authority to make policy.198
If you are claiming that a municipal custom, rather than an official policy, resulted in a
violation of your rights, you generally must show that the custom was so widespread that
policymakers knew of or should have known of the custom. In essence you will be arguing
that, because the custom was so widespread, policymakers implicitly approved of it.199
(ii) “Indirect” Municipal Liability
There are two “indirect” ways that a municipality can be held responsible when its
employees violate your rights. First, a municipality may be liable when its failure to
is the “moving force” behind a violation); Gibson v. County of Washoe, 290 F.3d 1175, 1189 (9th Cir.
2002) (finding municipal policy of delaying medical care to prisoners who are “combative, uncooperative
or unable to effectively answer questions due to intoxication” may create municipal liability for
deliberate indifference to serious medical needs of prisoners).
195. See Hall v. Marion Sch. Dist. No. 2, 31 F.3d 183, 196 (4th Cir. 1994) (holding school board
that had final authority to make firing decisions could be liable for unconstitutional firing of teacher);
Bowles v. City of Camden, 993 F. Supp. 255, 268–69 (D.N.J. 1998) (allowing plaintiff to go forward with
claim against city and mayor for unconstitutional firing). Note, however, that the municipality must
have, in some way, deliberately caused the injury. Bd. of the County Comm’rs of Bryan County v.
Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1388, 137 L. Ed. 2d 626, 639 (1997) (“[I]t is not enough for a
§ 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must
also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind
the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite
degree of culpability and must demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.”) This is a high standard to meet: you may have to prove that the
municipality’s legislative body or authorized decision maker intentionally deprived you of a federally
protected right or that the action itself violated federal law.
196. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d
611, 635 (1978) (finding a municipality may be liable for a custom that causes violation of rights);
Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68, 90 S. Ct. 1598, 1613–14, 26 L. Ed. 2d 142, 159–60
(1970) (holding official practices can be so settled and permanent that they amount to a custom even
though not authorized in writing).
197. See Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427, 2436, 85 L. Ed. 2d 791, 804
(1985) (finding municipal liability requires showing an actual connection between the policy or custom
and the constitutional violation).
198. See McMillian v. Monroe County, 520 U.S. 781, 786, 117 S. Ct. 1734, 1737, 138 L. Ed. 2d 1,
8 (1997) (finding that state law determines whether an individual is an authorized policymaker for a
municipality).
199. See, e.g., Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002) (holding that in order
for a municipality to be liable for a widespread custom, the municipality or a municipal policymaker
must have “actual or constructive knowledge” of the custom); Sorlucco v. N.Y. City Police Dep’t, 971
F.2d 864, 871 (2d Cir. 1992) (concluding a plaintiff may establish a municipality’s liability by showing
that the actions of subordinate officers are sufficiently widespread to amount to “constructive
acquiescence” (implied approval) by senior policymakers).
adequately train, supervise, or discipline its employees results in an employee violating your
rights.200 Second, a municipality may be liable for failing to adequately screen (look at the
background of) an employee during hiring if that employee violates your rights. For a claim
of inadequate screening, or failure to train, supervise, or discipline, you will need to show
that an employee of the municipality violated your constitutional rights and that the
municipality was “deliberately indifferent” to your constitutional rights. In this context,
“deliberate indifference” means that you must prove that the municipal policymakers knew
that their actions were likely to cause someone’s rights to be violated.201
(1) Failure to Train, Supervise, or Discipline
There are some types of training that are so obviously necessary to avoid having
employees violate your rights that a municipality can be held liable for failing to provide this
training. For example, failing to train armed prison guards on when they may use deadly
force creates an obvious risk that someone’s rights will be violated and can amount to
deliberate indifference.202
In other situations, if there is a pattern of repeated unconstitutional behavior by
municipal employees, at some point this pattern makes it obvious that more or better
training, supervision, or discipline is needed to prevent such behavior.203 In such situations,
the municipality may be held liable for failing to address these obvious needs.204
(2) Inadequate Screening
The basis of an inadequate screening claim is that the municipality knew or should have
known that it was highly likely that the individual it hired would violate your rights.205 For
example, if a city jail hired a guard that had been dismissed from a previous job for
assaulting prisoners, and then the guard assaulted you, you could claim that the
200. See City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412,
426 (1989) (noting that a city could be liable under § 1983 for failure to train its employees only if the
failure amounted to deliberate indifference to the rights of people with whom the employees come into
contact).
201. Gibson v. County of Washoe, 290 F.3d 1175, 1186 (9th Cir. 2002) (“[P]laintiff must show
that the municipality was on actual or constructive notice that its omission would likely result in a
constitutional violation.” (quoting Farmer v. Brennan, 511 U.S. 825, 841, 114 S. Ct. 1970, 1981, 128 L.
Ed. 2d 811, 828 (1994))).
202. See City of Canton v. Harris, 489 U.S. 378, 390, 109 S. Ct. 1197, 1205, 103 L. Ed. 2d 412,
427–28 (1989) (“[I]t may happen that in light of the duties assigned to specific officers or employees the
need for more or different training is so obvious, and the inadequacy so likely to result in the violation
of constitutional rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.”).
203. Bd. of the County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 407, 117 S. Ct. 1382,
1390, 137 L. Ed. 2d 626, 641 (noting that policymakers’ awareness of a pattern of unconstitutional
conduct by employees, along with a failure to address the problem, may demonstrate conscious
disregard for a need to train, which would give rise to municipal liability).
204. See, e.g., Olsen v. Layton Hills Mall, 312 F.3d 1304, 1320 (10th Cir. 2002) (leaving it up to
jury to decide whether county’s failure to train its officers to recognize detainees’ symptoms of
Obsessive Compulsive Disorder, which the court noted is a fairly common disease, amounts to
deliberate indifference); Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 479 (E.D.N.Y. 2002)
(finding that six reports and complaints alleging potential unconstitutional conduct of a police officer
could “demonstrate an ‘obvious need for more or better supervision to protect against constitutional
violations’” (quoting Vann v. City of N.Y., 72 F.3d 1040, 1049 (2d Cir. 1995)); Perin v. Gentner, 177 F.
Supp. 2d 1115, 1125 (D. Nev. 2001)) (finding that evidence that municipality failed to adequately train
police officers and discipline them for use of excessive force could support an inadequate training and
supervision claim).
205. Romero v. City of Clanton, 220 F. Supp. 2d 1313, 1318 (M.D. Ala. 2002) (allowing plaintiff to
go forward with an inadequate screening claim against a city that hired a police officer who allegedly
had a prior history of sexual misconduct and who later attempted to sodomize plaintiff).
municipality is responsible because any reasonable person should have known that there
was a high risk that this guard would engage in the specific act of assaulting prisoners.
In order to make a successful inadequate screening claim, you must show that the
decision to hire the individual who violated your rights shows “deliberate indifference to the
risk that a violation of a particular constitutional or statutory right will follow the [hiring]
decision.”206 It is not enough to show that the city or town hired someone who committed bad
acts in the past. 207 Instead, you must show that an adequate look at the job applicant’s
background would cause an objectively “reasonable policymaker” to conclude that the
“plainly obvious” result of hiring that individual would be a violation of someone’s federal
rights.208 You must also show that it was highly likely—not just possible or probable—that
the particular harm you suffered would be the result of hiring the individual. In other words,
the violation of your rights must have a strong link to the bad acts that the supervisor knew
or should have known that the employee committed in the past, and it must have been highly
likely that those bad acts would be repeated.209
Making a successful claim regarding inadequate screening during hiring is very difficult.
Courts demand a very close connection between the information available to the person
making the hiring decision and the violation that took place. Such claims are not likely to
succeed unless the individual who violated your rights engaged in similar behavior before he
was hired, and the supervisor knew or should have known about it.
3. Defenses That May Be Raised Against Your Claim
The defendants you are suing might be able to defend themselves against your Section
1983 lawsuit in several ways. For example, they might claim that the facts in your complaint
are false or that your legal arguments are incorrect. You will not know how the defendants
have chosen to defend themselves until after you file your complaint. You do not need to
respond to their defenses until after you receive either an answer or a motion to dismiss from
the defendants.210 However, your lawsuit is more likely to succeed if you can organize your
complaint to avoid some of the defenses you think they might raise.
The rest of this Part will explain some of the defenses that are most likely to be available
in a Section 1983 lawsuit. Most of the following sections focus on different kinds of
immunities. Immunities are rules that protect certain individuals or agencies from liability
even when they may have done something wrong. Immunities are almost always an issue in
Section 1983 suits.
1392, 137 L. Ed. 2d 626, 644 (1997) (holding that a plaintiff must show that the decision to hire reflects
deliberate indifference to the risk that the particular violation that occurred would follow the decision).
207. See Snyder v. Trepagnier, 142 F.3d 791, 796–97 (5th Cir. 1998) (holding that evidence that
an officer committed nonviolent offenses in the past is not enough to show that the municipality knew
or should have known that the officer would engage in violent acts in the future).
1392, 137 L. Ed. 2d 626, 644 (holding that in order to hold a municipality liable for a hiring decision,
the risk that the violation of rights would occur must be plainly obvious to an objectively reasonable
policymaker).
209. See Bd. of the County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 412, 117 S. Ct.
1382, 1392, 137 L. Ed. 2d 626, 644 (1997) (holding that municipal liability for inadequate screening
requires a strong connection between the employee’s background and the specific harm he inflicted).
210. See Part C(8) of this Chapter, “What to Expect After Your Legal Papers Have Been Filed in
Court,” for an explanation of an “answer” and a motion to dismiss.
(a) Eleventh Amendment Immunity
As a general matter, the Eleventh Amendment211 to the U.S. Constitution protects states
and their agencies from being sued in federal court.212 This means you cannot name the state
itself as a defendant in your Section 1983 suit.213 Nor can you name the state department of
corrections or any other state government agency as a defendant.214 Eleventh Amendment
immunity is also known as “sovereign immunity.”
This same Eleventh Amendment immunity rule prevents you from suing a state official
in his “official capacity” for money damages in federal court.215 Suing a state official in his
“official capacity” is considered the same thing as suing the state. 216 However, this
prohibition does not apply to suits for injunctive or declaratory relief against state officials
sued in their official capacity. Though you cannot sue the state itself for an injunction, you
can sue a state official in his official capacity for an injunction.217 But, the effect of suing a
state official for an injunction has the same effect as suing the state or a state agency. When
211. U.S. Const. amend. XI.

212. Note that these rules do not apply to claims brought under the Rehabilitation Act of 1973,
29 U.S.C. § 794 (2000), which prohibits disability discrimination. These rules also do not apply to some
claims brought under the Americans with Disabilities Act, 42 U.S.C. §§ 12101–213 (2000) (“ADA”). See
United States v. Georgia, 546 U.S. 151, 159, 126 S. Ct. 877, 882, 163 L. Ed. 2d 650, 659 (2006) (holding
that when misconduct violates the 14th Amendment and Title II of the ADA, a person may bring a
claim for damages caused by this misconduct; when misconduct violates Title II and does not violate
the 14th Amendment, the trial court must determine whether or not the state is immune from lawsuit
for the damages). In New York, you may also need to prove discriminatory intent in order to recover
money damages. Garcia v. State Univ. of N.Y. Health Servs. Ctr., 280 F.3d 98, 111–12 (2d Cir. 2001)
(holding that a person bringing a suit for a Title II violation must establish that the violation was
“motivated by discriminatory animus or ill will based on plaintiff’s disability”). For more information on
rights of prisoners with disabilities, see Chapter 28 of the JLM, “Rights of Prisoners with Disabilities.”
In addition, some states may allow you to sue the state or its agencies under certain state laws.
213. Alabama v. Pugh, 438 U.S. 781, 782 98 S. Ct. 3057, 3057, 57 L. Ed. 2d 1114, 1116 (1978)
(“[S]uit against the State ... is barred by the Eleventh Amendment.”). The state must affirmatively
raise an 11th Amendment immunity defense. Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 389, 118 S.
Ct. 2047, 2052, 141 L. Ed. 2d 364, 372 (1998) (“[T]he Eleventh Amendment grants the State a legal
power to assert a sovereign immunity defense should it choose to do so. The State can waive the
defense. Nor need a court raise the defect on its own. Unless the State raises the matter, a court can
ignore it.”) (citations omitted).
214. Alabama v. Pugh, 438 U.S. 781, 782, 98 S. Ct. 3057, 3057, 57 L. Ed. 2d 1114, 1116 (1978)
(“[S]uit against the State and its Board of Corrections is barred by the Eleventh Amendment”); see also
Hale v. Arizona, 993 F.2d 1387, 1399 (9th Cir. 1993) (finding governmental agency in charge of prison
industry is “an arm of the state” and therefore protected by 11th Amendment immunity); Griess v.
Colorado, 841 F.2d 1042, 1044–45 (10th Cir. 1988) (holding that a state must waive immunity
specifically in federal court, and a state’s waiver of immunity in state court does not waive 11th
Amendment immunity in a § 1983 action in federal court against that state).
215. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24, 117 S. Ct. 1055, 1070 n.24,
137 L. Ed. 2d 170, 194 n.24 (1997) (“State officers in their official capacities, like States themselves, are
not amenable to suit for damages under § 1983.” (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58,
71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45, 58 (1989))).
216. Kentucky v. Graham, 473 U.S. 159, 169, 105 S. Ct. 3099, 3107, 87 L. Ed. 2d 114, 123–24
(1985) (noting that official capacity suits for money damages have the same effect as suing the state for
money damages and therefore both types of suits are barred); see also Lawson v. Bouck, 747 F. Supp.
376, 380 (W.D. Mich. 1990) (noting that “the determination of official versus personal capacity status
has traditionally been made on the basis of the target of the relief requested” (citing Edelman v.
Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 1355, 39 L. Ed. 2d 662 (1974))).
217. Verizon Md., Inc., v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645, 122 S. Ct. 1753, 1760,
152 L. Ed. 2d 871, 882 (2002) (allowing plaintiff to seek injunctive relief against state commissioners
sued in their official capacities); Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S. Ct. 3099, 3106
n.14, 87 L. Ed. 2d 114, 122 n.14 (1985) (“[O]fficial-capacity actions for prospective [injunctive] relief are
not treated as actions against the State.”).
you sue state officials for injunctive relief, you must sue them in their official capacity to
have this same effect.218
Eleventh Amendment immunity does not apply to suits for money damages against state
officials sued in their individual capacities.219 If you are seeking money damages and are
suing state officials, you must sue these state officials in their individual capacities.
Also, county and city officials do not receive Eleventh Amendment immunity at all.220
You should note, though, that state and county officials may claim one of the personal
immunities discussed below. Defendants in prison litigation suits often use immunity
defenses. You should read the following parts carefully so you will be able to demonstrate
why the defendant(s) in your suit do not have immunity.
(b) Absolute Immunity of Individuals
Certain types of individuals are absolutely (completely) immune from suit for all actions
taken within the scope of their official duties. If an official is absolutely immune it means
that he cannot be sued for money damages and sometimes cannot be sued for injunctive
relief either. Legislators,221 prosecutors,222 witnesses,223 and judges (including administrative
218. Suits for injunctive relief against state officials in their official capacities are said to fall
within the “Ex parte Young doctrine.” See Ex parte Young, 209 U.S. 123, 155–56, 28 S. Ct. 441, 452, 52
L. Ed. 714 (1908) (finding that state officials can be sued for an injunction in federal court even thought
the state itself may not be sued).
219. See Hafer v. Melo, 502 U.S. 21, 31, 112 S. Ct. 358, 365, 116 L. Ed. 2d 301, 313 (1991)
(holding that state officials, when sued in their individual capacities, are “persons” within the meaning
of § 1983). Some states will pay any damages awarded against state officials sued in their individual
capacities because of state “indemnification” laws. Even though the state will be paying damages, an
indemnification law does not turn your lawsuit into a suit against the state that would be barred by the
11th Amendment. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 317 n.10, 110 S. Ct. 1868,
1879 n.10, 109 L. Ed. 2d 264, 279 n.10 (1990) (Brennan, J., concurring) (noting that “[l]ower courts
have uniformly held that States may not cloak their officers with a personal Eleventh Amendment
defense by promising, by statute, to indemnify them for damage awards imposed on them for actions
taken in the course of their employment”).
220. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 n.54, 98 S. Ct. 2018, 2036 n.54, 56 L. Ed. 2d
611, 636 n.54 (1978) (noting the 11th Amendment does not bar suits against local government units not
considered part of the state).
221. See Bogan v. Scott-Harris, 523 U.S. 44, 49, 118 S. Ct. 966, 970, 140 L. Ed. 2d 79, 85 (1998)
(“[S]tate and regional legislators are entitled to absolute immunity from liability under § 1983 for their
legislative activities. ... Congress did not intend the general language of § 1983 to impinge [on this
immunity].”) (internal citations omitted); Tenney v. Brandhove, 341 U.S. 367, 372, 71 S. Ct. 783, 786,
95 L. Ed. 1019, 1025 (1951) (extending absolute legislative immunity to protect state legislators);
Kilbourn v. Thompson, 103 U.S. 168, 202–04, 26 L. Ed. 377, 391–92 (1881) (interpreting the Speech or
Debate Clause, U.S. Const., art. I, § 6, to provide absolute immunity to federal legislators).
222. See Burns v. Reed, 500 U.S. 478, 492, 111 S. Ct. 1934, 1942, 114 L. Ed. 2d 547, 562 (1991)
(holding that prosecutor’s appearance at pretrial probable cause hearing to present evidence in support
of an application for a search warrant was protected by absolute immunity in civil rights action brought
by arrestee); Imbler v. Pachtman, 424 U.S. 409, 430–31, 96 S. Ct. 984, 995, 47 L. Ed. 2d 128, 143–44
(1976) (holding that prosecutor was absolutely immune from suit for actions performed in a judicial or
“quasi-judicial” capacity, even though he knowingly used perjured testimony, deliberately withheld
exculpatory information, and failed to make full disclosure of all facts casting doubt upon the state’s
testimony). But see Buckley v. Fitzsimmons, 509 U.S. 259, 273–74, 113 S. Ct. 2606, 2615–16, 125 L. Ed.
2d 209, 226 (1993) (holding prosecutor was entitled to qualified immunity, not absolute immunity, in
civil rights action alleging that the prosecutor fabricated evidence and made false statements during
investigation prior to the suspect’s arrest).
Prosecutorial immunity is limited to immunity from being sued for money damages. Prosecutors do
not have immunity from being sued for injunctive relief. If a prosecutor violates your rights while
acting within the scope of his official duties, you can sue him for injunctive relief. See Supreme Court of
Va. v. Consumers Union of U.S., 446 U.S. 719, 736, 100 S. Ct. 1967, 1977, 64 L. Ed. 2d 641, 656 (1980)
(noting that prosecutors, though shielded by absolute immunity for damages liability, may be subject to
judges)224 are usually completely immune from liability for damages under Section 1983 as
long as they were acting within the scope of their official duties. You should be aware of
these immunities when deciding whom to name as defendants in your lawsuit.
You usually will not be able to sue any of these individuals for violating your
constitutional rights if their actions were within the scope of their official responsibilities. In
figuring out whether an action falls within the scope of an official’s duties, the courts
generally look to the nature of the individual’s responsibilities, as opposed to the individual’s
title. For example, many officials with state or federal legislative responsibilities will be
completely immune from suit even if they are not legislators. 225 Similarly, officials who
perform judicial functions within administrative agencies may be entitled to absolute judicial
immunity even though they are not technically judges.226 However, the Supreme Court has
held that prison officials on a prison disciplinary committee are not performing judicial
functions, and therefore do not have absolute immunity from liability for violating your
rights.227
Keep in mind none of these officials is absolutely immune from being sued for damages
for performing an action outside the scope of his official duties. As described above, you must
look to the nature of the official’s actions, and not simply his title, to determine whether the
official’s particular actions are entitled to absolute immunity. For example, in keeping with
the rule, a prosecutor is only absolutely immune from suit for those actions taken within “the
scope of his prosecutorial duties.”228 Therefore, he has absolute immunity for actions related
to initiating and presenting the government’s case against you, but not for investigative
actions performed prior to this or for actions that did not relate to his role as prosecutor.229 In
§ 1983 suits for injunctive relief), superseded by statute on other grounds, Federal Courts Improvement
Act of 1996, Pub. L. No. 104-317, 110 Stat. 3847, as recognized in Leclerc v. Webb, 270 F. Supp. 2d 779,
792–93 (E.D. La. 2003).
223. See Briscoe v. LaHue, 460 U.S. 325, 326, 103 S. Ct. 1108, 1111, 75 L. Ed. 2d 96, 102 (1983)
(holding that a police officer, when testifying in court, is acting as a witness and is therefore entitled to
absolute immunity).
224. See Stump v. Sparkman, 435 U.S. 349, 355–56, 98 S. Ct. 1099, 1104, 55 L. Ed. 2d 331, 338
(1978) (holding that a judge is entitled to immunity in civil actions, even if the action he took was in
error, was allegedly done maliciously, or was in excess of his authority); Pierson v. Ray, 386 U.S. 547,
553–54, 87 S. Ct. 1213, 1217–18, 18 L. Ed. 2d 288, 294 (1967) (holding local judge immune from
liability for civil rights damages that occurred when judge convicted an individual under a statute later
found to be unconstitutional), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 819,
102 S. Ct. 2727, 2738–39, 73 L. Ed. 2d 396, 411 (1982) (defining the limits of qualified immunity in only
objective terms).
225. See Supreme Court of Va. v. Consumers Union of U.S., 446 U.S. 719, 734, 100 S. Ct. 1967,
1976, 64 L. Ed. 2d 641, 655 (1980) (holding defendant judges absolutely immune from suit because they
were performing legislative functions when they created the disciplinary rules at issue); see also Lake
Country Estates v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 405, 99 S. Ct. 1171, 1179, 59 L. Ed. 2d
401, 412–13 (1979) (holding regional officials entitled to absolute immunity where they were officially
acting in a capacity comparable to that of state legislators).
226. See Butz v. Economou, 438 U.S. 478, 512–13, 98 S. Ct. 2894, 2914, 57 L. Ed. 2d 895, 920
(1978) (granting absolute individual immunity to administrative judges of the Department of
Agriculture for damages from wrongful initiation of administrative proceedings, because an
administrative adjudication is similar enough to a judicial process to be afforded the same protections).
227. See Cleavinger v. Saxner, 474 U.S. 193, 206, 106 S. Ct. 496, 503, 88 L. Ed. 2d 507, 517–18
(1985) (holding that prison officials on prison disciplinary committee do not have absolute immunity,
because they do not have a similar enough function to state and federal judges).
228. See Imbler v. Pachtman, 424 U.S. 409, 430, 96 S. Ct. 984, 995, 47 L. Ed. 2d 128, 143 (1976)
(granting absolute immunity to a prosecutor for actions that were “intimately associated with the
judicial phase of the criminal process,” and noting that a prosecutor engaged in other activities, such as
pre-trial investigation, may instead receive “a good-faith defense comparable to the policeman’s”).
229. Zahrey v. Coffey, 221 F.3d 342, 346 (2d Cir. 2000) (“The nature of a prosecutor’s immunity
depends on the capacity in which the prosecutor acts at the time of the alleged misconduct. Actions
Buckley v. Fitzsimmons, the Supreme Court found that a prosecutor was not entitled to
absolute immunity for allegedly making false statements to the media regarding the
defendant because giving statements to the press is outside the prosecutor’s role in
prosecuting the defendant.230 Similarly, investigative actions performed by a prosecutor to
establish probable cause to arrest a defendant are also outside his prosecutorial role and not
entitled to absolute immunity because such actions do not relate to preparing for trial.231 On
the other hand, actions such as interviewing witnesses and evaluating evidence in
preparation for trial are within the prosecutor’s role as advocate for the government and are
always entitled to absolute immunity.232
With respect to judges (including administrative judges),233 the only instances in which
they do not have complete immunity from damages are when they perform acts that are not
judicial in nature234 and when they act with a clear and complete absence of jurisdiction.235 A
judge acts in the complete absence of jurisdiction when he makes a ruling in a case that he
had absolutely no authority to hear in the first place. For example, a family court judge does
not have authority to try felony cases and therefore would be acting without jurisdiction if he
did hear such a case.236 If you think that a judge had the power to hear your case but made a
taken as an advocate enjoy absolute immunity, while actions taken as an investigator enjoy only
qualified immunity. This immunity law applies to Bivens actions as well as actions under [S]ection
1983.” (internal citations omitted)). For more on Bivens actions, see Part E of this Chapter.
230. Buckley v. Fitzsimmons, 509 U.S. 259, 277–78, 113 S. Ct. 2606, 2617–18, 125 L. Ed. 2d 209,
228 (1993) (holding prosecutor’s prejudicial out-of-court statements to the press were not within the
scope of his duties and not entitled to absolute immunity); see also Burns v. Reed, 500 U.S. 478, 496,
111 S. Ct. 1934, 1944–45, 114 L. Ed. 2d 547, 566 (1991) (holding that absolute immunity from liability
for damages under § 1983 did not apply to actions of state prosecutor who gave legal advice to police).
231. See Buckley v. Fitzsimmons, 509 U.S. 259, 273–74, 113 S. Ct. 2606, 2616, 125 L. Ed. 2d 209,
226 (1993) (holding that “[w]hen a prosecutor performs the investigative functions normally performed
by a detective or police officer,” he is not entitled to absolute immunity); Zahrey v. Coffey, 221 F.3d 342,
346–47 (2d Cir. 2000) (prosecutor accused of fabricating false evidence against a defendant was only
entitled to a qualified immunity defense, rather than absolute immunity, because the alleged
misconduct occurred while prosecutor was acting in an investigative capacity).
232. See Imbler v. Pachtman, 424 U.S. 409, 431, 96 S. Ct. 984, 995, 47 L. Ed. 2d 128, 144 (1976)
(holding prosecutors absolutely immune from a civil suit for damages under § 1983 for all actions
performed “in initiating a prosecution and in presenting the State’s case”).
233. Butz v. Economou, 438 U.S. 478, 512–13, 98 S. Ct. 2894, 2914, 57 L. Ed. 2d 895, 920 (1978)
(granting judicial immunity to federal administrative agency officers performing judicial functions
during the course of a hearing, noting the similarity in safeguards built into the federal administrative
hearing process and those in the judicial process).
234. See Forrester v. White, 484 U.S. 219, 228–29, 108 S. Ct. 538, 545, 98 L. Ed. 2d. 555, 566
(1988) (holding that judge who fired an employee because of her sex was not absolutely immune from
suit, because hiring and firing are administrative, not judicial functions, and judges may be liable for
damages for administrative, legislative, or executive functions: “[I]t [is] the nature of the function
performed, not the identity of the actor who performed it, that inform[s] our immunity analysis.”),
superseded by statute on other grounds, Federal Courts Improvement Act of 1996, Pub. L. No. 104-317,
110 Stat. 3847, as recognized in Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 923 (9th Cir. 2004).
235. See Mireles v. Waco, 502 U.S. 9, 11–12, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9 (1991) (per
curiam) (explaining that judicial immunity is overcome in only two sets of circumstances: a judge is not
immune from liability for nonjudicial actions (actions not taken in judge’s judicial capacity) or for
actions that are judicial in nature but taken in complete absence of all jurisdiction); Bradley v. Fisher,
80 U.S. 335, 352, 10 L. Ed. 646, 651 (1872) (noting that a judge does not have absolute immunity when
he acts in a situation where he knows that he has no jurisdiction over the subject matter of the
lawsuit); Figueroa v. Blackburn, 208 F.3d 435, 441 (3d Cir. 2000) (holding that judges of courts of
limited jurisdiction (e.g., city court judges) are also afforded absolute immunity).
236. Stump v. Sparkman, 435 U.S. 349, 357 n.7, 98 S. Ct. 1099, 1105 n.7, 55 L. Ed. 2d 331, 339
n.7 (1978) (noting the difference between an act in excess of jurisdiction and one in the absence of
jurisdiction: “[I]f a probate judge, with jurisdiction over only wills and estates, should try a criminal
case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for
mistake that harmed you, you cannot sue the judge for money damages. Instead, you should
try to appeal the judge’s ruling.
(c) Qualified Immunity of Individuals
Officials who are sued in their individual capacity and who are not completely immune
from suit may still enjoy a limited immunity, known as “qualified immunity.” State, city, and
county officials at all levels may claim some degree of qualified immunity. 237 However,
qualified immunity does not protect private parties who are acting under color of state law.238
Qualified immunity means that officials will only have to pay money damages if “their
conduct ... violate[s] clearly established statutory or constitutional rights of which a
reasonable person would have known.”239 Therefore, to be protected by qualified immunity,
the official you sue has to show either that it was objectively reasonable to believe his or her
even if their conduct is found to be illegal—but only if the court finds that it was objectively
reasonable actions did not violate the law, or that the law was not clearly established at the
time of the violation.240 In other words, prison officials sued in their individual capacity can
be granted qualified immunity241 for the official to believe his conduct was legal or that the
law was unclear when the violation occurred.242
his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent
crime, he would merely be acting in excess of his jurisdiction and would be immune.”).
237. See Procunier v. Navarette, 434 U.S. 555, 561–62, 98 S. Ct. 855, 859–60, 55 L. Ed. 2d 24,
30–31 (1978) (noting that the scope of qualified immunity varies depending on the level of discretion
and responsibilities of the official and how the circumstances appeared at the time), overruled on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).
238. See Wyatt v. Cole, 504 U.S. 158, 159, 112 S. Ct. 1827, 1829, 118 L. Ed. 2d 504, 509 (1992)
(concluding that the rationales mandating qualified immunity for public officials are not applicable to
private parties); Richardson v. McKnight, 521 U.S. 399, 412, 117 S. Ct. 2100, 2108, 138 L. Ed. 2d 540,
552 (1997) (holding that prison guards at a privatized prison are not entitled to qualified immunity,
unlike prison guards who are employed by the government). But see Eagon ex rel. Eagon v. City of Elk
City, Okl., 72 F.3d 1480, 1489–90 (10th Cir. 1996) (holding that defendant, a private individual acting
under the authority of the City and not a city official, was entitled to qualified immunity because she
was not “invok[ing] state law in pursuit of private ends” but was “performing a government function
pursuant to a government request.” “[A] private individual who performs a government function
pursuant to a state order or request is entitled to qualified immunity if a state official would have been
entitled to such immunity had he performed the function himself.”) (citation omitted).
239. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982).
For examples of cases dealing with the issue of qualified immunity, see Anderson v. Creighton, 483
U.S. 635, 641, 107 S. Ct. 3034, 3040, 97 L. Ed. 2d 523, 532 (1987) (holding that since defendant could,
as a matter of law, reasonably have believed that the search at issue was lawful, he should have been
allowed to claim qualified immunity), and Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994) (holding
that defendants should have been given the opportunity to attempt to prove that they reasonably
believed they were not violating settled law and were therefore entitled to a qualified immunity
defense).
240. See Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994) (remanding, based on factual dispute
related to whether a reasonable officer could believe that his conduct was lawful); Powell v. Ward, 643
F.2d 924, 934 n.13 (2d Cir. 1981) (stating that a defendant who “knew or should have known that her
conduct violated a constitutional norm” was not entitled to immunity); Fiscus v. City of Roswell, 832 F.
Supp. 1558, 1564 (N.D. Ga. 1993) (holding that Supreme Court decision within same month did not
constitute clearly established law); Kaminsky v. Rosenblum, 737 F. Supp. 1309, 1318 (S.D.N.Y. 1990)
(holding that qualified immunity did not apply because the prison doctors were aware that alleged
conduct implicated the prisoner’s rights).
241. “Objectively reasonable” means it does not matter whether the officer actually believed that
his conduct was legal. Instead, the officer has to prove that any other reasonable officer could have
believed that the conduct was legal.
242. Courts will look at the clarity of the law in the factual context of your case. For example, if
you claim that an officer violated your substantive due process right to privacy by strip-searching you,
you cannot defeat a qualified immunity defense just by showing that there is a clearly established right
You do not have to allege in your complaint that the violated law was clearly established.
The defendant is responsible for raising the qualified immunity defense.243 If the defendant
fails to claim qualified immunity at the trial court level, he may lose the right to raise that
defense in later proceedings (such as appeals).244
Note that qualified immunity does not give officials a defense to a claim for injunctive
relief. 245 Qualified immunity is also not available as a defense for municipalities 246 or
privately employed prison guards.247 Qualified immunity is usually (but not always) decided
by the judge during summary judgment proceedings.248 Summary judgment is described in
Part C(8).
Figure 2 below should help you understand which defendants are completely or partially
immune from suit in federal court, and what kind of relief you can request. Note that state
courts have different immunity rules. If you want to bring your lawsuit in state court
(discussed below in Part D(2)), you should research your state’s immunity rules.
to bodily privacy. You would also have to show that at the time you were strip-searched, clearly
established law (from the Supreme Court or a court in your circuit or district) dictated that strip-
searching violated your right to bodily privacy. See Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,
2156, 150 L. Ed. 2d 272, 282 (2001) (stating that the question of whether a law is clearly established
“must be undertaken in light of the specific context of the case, not as a broad general proposition”).
243. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1924, 64 L. Ed. 2d 572, 578 (1980)
(“It is for the official to claim that his conduct was justified by an objectively reasonable belief that [his
conduct] was lawful.”). Note that Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817, 86 L. Ed.
2d 411, 427 (1985), allows defendants to immediately appeal a court’s decision to deny them qualified
immunity, provided that the denial turns on an issue of law. These immediate appeals are called
“interlocutory appeals.” You may attempt to oppose a defendant’s immediate appeal of a ruling on
qualified immunity by arguing to the appellate court that the issue turns on “disputed questions of
fact” rather than questions of pure law. See Tierney v. Davidson, 133 F.3d 189, 194 (2d Cir. 1998) (“[A]
district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is
an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a
final judgment.” (citation omitted)); Kulwicki v. Dawson, 969 F.2d 1454, 1461 (3d Cir. 1992) (holding an
order denying qualified immunity is subject to interlocutory appeal). But see Feagley v. Waddill, 868
F.2d 1437, 1439 (5th Cir. 1989) (finding a denial of motion for summary judgment on issue of qualified
immunity not immediately appealable).
244. See Walsh v. Mellas, 837 F.2d 789, 800 n.5 (7th Cir. 1988) (holding that the qualified
immunity defense was waived because it was not raised prior to the second appeal).
245. See Project Release v. Prevost, 463 F. Supp. 1033, 1036 (E.D.N.Y. 1978) (finding that the
Court could issue a declaratory judgment against officials despite officials’ qualified immunity).
246. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 166, 113 S. Ct. 1160, 1162, 122 L. Ed. 2d 517, 523 (1993) (“[U]nlike various government officials,
municipalities do not enjoy immunity from suit—either absolute or qualified—under § 1983. In short, a
municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom
caused the constitutional injury [because there is no respondeat superior municipal liability under §
1983].”); Owen v. City of Independence, 445 U.S. 622, 638, 100 S. Ct. 1398, 1409, 63 L. Ed. 2d 673, 685–
86 (1980) (holding that a municipality cannot use the defense of qualified immunity in a § 1983 action
by simply arguing its employees acted in good faith). But see City of Newport v. Fact Concerts, Inc., 453
U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L. Ed. 2d 616, 635 (1981) (holding that punitive damages are
not available against a municipality in a § 1983 suit).
247. See Richardson v. McKnight, 521 U.S. 399, 412–13, 117 S. Ct. 2100, 2107–08, 138 L. Ed. 2d
540, 552–53 (1997) (holding that there is no reason to grant private prison guards governmental
immunity).
248. See Snyder v. Trepagnier, 142 F.3d 791, 799–800 (5th Cir. 1998) (noting that qualified
immunity is ordinarily determined by the judge, but finding that there was no error in allowing the
jury to decide the issue when there were facts in dispute relating to qualified immunity); Warren v.
Dwyer, 906 F.2d 70, 76 (2d Cir. 1990) (“The better rule, we believe, is for the court to decide the issue of
qualified immunity as a matter of law, preferably on a pretrial motion for summary judgment when
possible.”); see also Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589, 595
(1991) (“[W]e repeatedly have stressed the importance of resolving immunity questions at the earliest
possible stage in litigation.”).
Type of Defendant Type of Immunity Relief You Can Obtain
Eleventh Amendment None, unless state law
State or state agency
(sovereign) immunity authorizes such lawsuits
- Declaratory judgment
- Injunctive relief
- Money damages, only if:
a) the official does not
raise the qualified
immunity defense; or
Any officials sued in their
Qualified immunity b) he does raise the
individual capacity
defense, but you can
demonstrate that a
reasonable person would
have known that his
actions violated a clearly
established right
Eleventh Amendment
State officials in their official -Declaratory judgment
(sovereign) immunity from
capacity
suit for money damages only -Injunctive relief
Non-state (local or municipal) -Declaratory judgment
officials in their official None -Injunctive relief
capacity -Money damages
None, unless you are alleging
that the individual violated
Witnesses Absolute immunity
your rights at a time that he
was not acting as a witness
None, unless you are alleging
Absolute immunity from any
Legislators and individuals that the individual violated
suit for actions performed
authorized to perform your rights while acting
within the scope of official
legislative functions outside the scope of his
legislative duties
official duties
Absolute immunity from suit
for money damages only, for
-Declaratory judgment
Prosecutors actions performed within the
scope of official prosecutorial -Injunctive relief
duties
Absolute immunity from suit -Declaratory judgment
for damages, for actions
-Injunctive relief, but only
Judges (including performed within the scope of
if a declaratory judgment
administrative judges) judicial duties, unless acting
with a complete absence of has been violated or is not
jurisdiction available
Immunity from punitive
Municipalities -Injunctive relief
damages
-Attorney’s fees
Private parties acting under
color of state law (such as Qualified immunity in some
-Injunctive relief
prison guards at a privately- circumstances
run prison) -Money damages
Figure 2:Types of Immunity Available to and Types of Damages Available from Different
Defendants
(d) Defenses Based on Required Procedure
The defendants may try to persuade the court to dismiss your lawsuit by arguing that
you have failed to meet important procedural requirements. For example, the court can
dismiss your case if you fail to meet the filing deadline imposed by your state’s statute of
limitations. See Part C(5) of this Chapter for an explanation of statutes of limitations. Of
course, you can avoid the possibility of this defense by filing your lawsuit on time.
In addition, the defendants may argue that your claim has already been resolved by an
earlier court case or a prior administrative proceeding of a judicial nature. If this argument
applies to you, the court may refuse to hear your current lawsuit based on the doctrines of
“res judicata,” “collateral estoppel,” or “preclusion.”249 These doctrines effectively prohibit the
re-litigation of specific claims or issues that have already been litigated in previous cases
between the same parties. 250 To avoid these defenses, you should carefully analyze and
understand any claims you have previously filed and any determinations a court may have
made with regard to those claims, before you assert the claims in your current case. In
general, a claim will be barred because it was previously raised if:
(1) there was a final judgment on the merits of the claim in the previous case;251
(2) the ruling court in the previous case was a court of competent jurisdiction;252
(3) the prior action involved the same parties as the present case; and
(4) the prior case involved the same type of claim (cause of action).253
Finally, defendants may argue your complaint should be dismissed if you did not exhaust
all administrative procedures before bringing your suit. This is because, under the PLRA,
you must exhaust all administrative remedies (like prisoner grievance procedures) before
bringing a suit. See JLM Chapter 14, “The Prison Litigation Reform Act,” for more
information on the exhaustion requirement, and JLM Chapter 15, “Inmate Grievance
Procedures,” for information on prisoner grievances. Remember to keep copies of everything
you or prison officials write in this process, so that if a defendant claims you did not use all
required administrative procedures, you will be able to prove you did.254 Note, however, that
neither Section 1983 nor the PLRA requires you to exhaust possible state court remedies
before suing in federal court.255
249. Allen v. McCurry, 449 U.S. 90, 105, 101 S. Ct. 411, 420, 66 L. Ed. 2d 308, 320 (1980)
(holding that collateral estoppel applied to § 1983 actions and included both civil and criminal state-
court decisions); see Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n.5, 99 S. Ct. 645, 649 n.5,
58 L. Ed. 2d 552, 359 n.5 (1979) (“Under the doctrine of res judicata, a judgment on the merits in a
prior suit bars a second suit involving the same parties or their privies based on the same cause of
action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a
different cause of action and the judgment in the prior suit precludes relitigation of issues actually
litigated and necessary to the outcome of the first action.”).
250. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, 99 S. Ct. 645, 649, 58 L. Ed. 2d
552, 559 (1979) (explaining collateral estoppel and res judicata have the “dual purpose of protecting
litigants from the burden of relitigating an identical issue with the same party ... and of promoting
judicial economy by preventing needless litigation.”).
251. “On the merits” generally means that the previous lawsuit was decided on a motion for
summary judgment or was decided after a trial, or was dismissed with prejudice.
252. Jurisdiction is a word for a court’s power to hear and decide a case. If the court that heard
your original case was not a court with the power to hear that case, you can file the same case in
another court.
253. See In re Teltronics Servs., Inc., 762 F.2d 185, 190 (2d Cir. 1985) (describing the factors that
prevent re-litigation of earlier decisions).
254. It is also a good idea to save all documents related to these procedures because if your
complaints are ignored, the documents may be evidence of the prison officials’ indifference that can be
used in your § 1983 suit. Their responses might also admit things, like explanations for their behavior,
which you can use later at trial.
255. See Jenkins v. Morton, 148 F.3d 257, 259 (3d Cir. 1998) (holding that the PLRA does not
4. Where to File
Once you have decided to bring your Section 1983 action in federal district court, you
have to figure out which federal district court.256 (For example, New York is divided into four
federal judicial districts.) Your Section 1983 suit must be filed in the same district where the
harm occurred or in the district where any defendant lives if all the defendants live in the
same state.257 If not all of your defendants live in the same state, and there is a reason that
you cannot file in the district where the harm occurred, then you can file in a judicial district
where any defendant can be found.258 In most cases, this means you have to file in the district
where your prison is located. If you have been moved to another prison or have been released
since the time you suffered the wrong, you must still file in the district where the harm
occurred. Appendix I of the JLM contains the addresses of all federal district courts and tells
you the federal district for each of the New York state prisons.
5. When to File
The statute of limitations is the amount of time you have after the harm occurs before
your right to file a lawsuit expires forever. Section 1983 claims use the state statute of
limitations for personal injury suits, based on the state where you filed your claim (because
there is no federal statute of limitations for Section 1983 claims).259 (This may seem strange,
but it is because the Supreme Court has found that Section 1983 claims are most similar to
tort claims for personal injury.260) New York law says that personal injury suits have to be
require exhaustion of state judicial review procedures and noting that § 1983 claims also do not require
exhaustion of state judicial review procedures); see also Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.
1999) (per curiam) (“A prisoner’s administrative remedies are deemed exhausted [under the PLRA]
when a valid grievance has been filed and the state’s time for responding thereto has expired.”).
256. See the Federal Government’s U.S. Courts website at http://www.uscourts.gov/courtlinks/
(last visited Oct. 1, 2008) for help in locating your local federal district court. You can also consult
Appendix I of the JLM, which has federal court addresses and the federal districts of all New York
state prisons.
257. 28 U.S.C. § 1391(b) (2006) (describing requirements for district court jurisdiction).
258. 28 U.S.C. § 1391(b) (2006).
259. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S. Ct. 1938, 1947, 85 L. Ed. 2d 254, 266 (1985)
(holding that the statute of limitations for a § 1983 claim is the same as for state tort actions for
personal injuries), superseded by statute on other grounds, Judicial Improvements Act of 1990, Pub. L.
No. 101-650, § 313(a), 104 Stat. 5114 (codified as amended at 28 U.S.C. § 1658 (2000 Supp. II)), as
recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377–82, 124 S. Ct. 1836, 1842–45, 158
L. Ed. 2d 645, 653–56 (2004) (noting that 28 U.S.C. § 1658’s four-year statute of limitations only applies
to claims made possible by laws enacted after 1990). If your state has different statutes of limitations
for different types of personal injury actions, courts will apply the state’s general or residual personal
injury statute of limitations to your § 1983 case. See Owens v. Okure, 488 U.S. 235, 249–50, 109 S. Ct.
573, 582, 102 L. Ed. 2d 594, 606 (1989) (“[W]here state law provides multiple statutes of limitations for
personal injury actions, courts considering § 1983 claims should borrow the general or residual statute
for personal injury actions.”). General statutes of limitations apply to all personal injury claims, but
have some exceptions. Residual personal injury statutes of limitation are those that apply to types of
personal injuries not specified elsewhere.
Note that Congress created a four-year “catch-all” statute of limitations applicable to “civil
action[s] arising under an Act of Congress enacted after” December 1, 1990. 28 U.S.C. § 1658(a) (2000
Supp. II). This four-year limitations period applies to all claims “made possible by a post-1990
[congressional] enactment” that do not themselves contain a statute of limitations provision. Jones v.
R.R. Donnelley & Sons Co., 541 U.S. 369, 382, 124 S. Ct. 1836, 1845, 158 L. Ed. 2d 645, 656 (2004). Do
not be confused by this new four-year catch-all provision: § 1983 has not been amended after December
1, 1990, so courts still apply the statute of limitations given by state law.
260. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709, 119 S. Ct. 1624,
1638, 143 L. Ed. 2d 882, 904–05 (1999) (“[T]here can be no doubt that claims brought pursuant to §
1983 sound in tort.”).
brought within three years from the date you suffered the wrong,261 so you have three years
to file a Section 1983 suit if you file your claim in New York.262 You should look up the
statute of limitations for personal injury suits in the state in which you are filing your claim.
You can usually find this information in the state code of statutes. The state’s statute of
limitations for personal injury suits is the amount of time you will have to bring your Section
1983 suit in that state.
The statute of limitations period begins to run when you find out about (or should have
found out about) the injury on which you base your claim.263 If the injury that violated your
rights continues over a period of time—for example, failure to treat a medical condition
despite repeated requests for medical care—then the statute of limitations may not start to
run until the end of the period of injury.264 However, it is better not to gamble that the court
will agree that your injury is continuing. If you can, bring your lawsuit early enough so that
even the earliest actions you are complaining about are still within the limitations period.
6. What to File
(a) Your Complaint
Your lawsuit begins when you file your complaint. Many districts provide model
complaint forms for Section 1983 actions. After you figure out which district you have to file
in, write to the clerk of that district and ask for the model forms. (In New York, you should
write to the pro se clerk.) If you cannot get the forms, make your own using the examples in
Appendix A of this Chapter. You should also read the local rules of practice for the federal
district court where you decide to file. You can get the local rules for a small fee from the
court clerk and possibly through your prison law library.
In your complaint, you must identify yourself as the plaintiff (the party bringing the
suit). You also have to identify the defendant(s) (the party or parties you are suing)265 and
state the grounds for your complaint (the defendant’s actions violating your constitutional or
other rights). You must specifically state which constitutional or federal statutory rights the
defendants violated. You also must inform the court what laws give it the power or
261. N.Y. C.P.L.R. 214 (McKinney 2003); see Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994)
(“For § 1983 actions arising in New York, the statute of limitations is three years.”).
262. See Owens v. Okure, 488 U.S. 235, 249–51, 109 S. Ct. 573, 581–82, 102 L. Ed. 2d 594, 605–
06 (1989) (holding that in New York, the time limit on bringing a § 1983 claim is three years, which
comes from the statute of limitations for personal injury suits, rather than the one-year limitation that
applies to claims for intentional torts such as assault, battery, or false imprisonment).
263. Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994) (“Section 1983 claims accrue, for the
purpose of the statute of limitations, when the plaintiff knows or has reason to know of the injury
which is the basis of his action.”) (citation omitted).
264. Federal courts are required to apply state rules regarding when the statute of limitations
begins running. Therefore, you should look at the specific provisions of your state’s statute of
limitations. See Hardin v. Straub, 490 U.S. 536, 537, 109 S. Ct. 1998, 2000, 104 L. Ed. 2d 582, 587–88
(1989) (holding that a federal court should have applied Michigan’s law that tolls (suspends) statutes of
limitation for prisoners until they are released); Beck v. Caterpillar Inc., 50 F.3d 405, 406 (7th Cir.
1995) (noting that federal courts generally borrow states’ tolling and savings provisions, and where the
timeliness of a federal claim is governed by a state statute of limitations, “it only makes sense to apply
the state’s tolling and savings provisions, for they are interrelated.” (citations omitted)). The Beck court
also warned, however, that “[t]he same cannot be said when the federal claim in question is governed
by a federal statute of limitations. ... If Congress explicitly puts a limit upon the time for enforcing a
right which it created, there is an end of the matter.” Beck v. Caterpillar Inc., 50 F.3d 405, 407 (7th Cir.
1995) (internal citations and quotations omitted).
265. You should name the defendants using their full, proper names. If you do not know a
defendant’s full name, write down whatever identifying information you do know, such as his
nickname, badge number, official position or duties, etc. Only defendants who have been adequately
identified can be served with the summons and complaint. For more information on what you should do
if you do not know a defendant’s name, see Part C(2)(a) of this Chapter.
“jurisdiction” to hear your suit. If you are suing in federal court, you must state in your
complaint that 28 U.S.C. § 1331 266 and § 1343(a)(3) 267 give the federal district courts
jurisdiction over 42 U.S.C. § 1983 cases. You also have to tell the court the type of relief you
are seeking—damages, injunctive relief, or declaratory relief. See Part C(1) of this Chapter
for information on the types of relief available.
The Federal Rules of Civil Procedure require you to make a “short and plain statement”
of your claim in the complaint.268 In your complaint, you should include a specific description
of the incident or practice that you are basing your claim on. Give the court details such as
names, dates, locations, and injuries suffered. Details help convince the court that you “state
a claim for relief” and that your claim should not be dismissed. In particular, your complaint
should indicate how each person you name as a defendant was involved in the violation you
are complaining about. Being clear about the facts will allow the court to apply the law more
accurately to your claim. The federal courts are under a duty to read prisoner pro se
complaints generously, giving the prisoner every benefit of the doubt in stating a claim for
which relief can be granted.269 Still, it is in your best interest to write your complaint and
state its legal basis as clearly and thoroughly as you can.
You are not legally required to prove the facts behind your complaint at the time you file
it. But remember, it is very important to explain what happened or is happening to you as
clearly as possible. You can use affidavits to do this. If you do, your complaint must refer to
the affidavits and you must include copies of them to send to each defendant. Appendix A-3
of this Chapter contains a sample affidavit.
(b) Including Supplemental State Claims in Your Complaint
You may want to add some supplemental (additional) state law claims to your federal
claim. A state law claim is considered “supplemental” to a federal constitutional or statutory
violation if it involves the same facts and will be considered by a federal court270 if it is
attached to a non-frivolous federal claim.271 For example, you could file a single complaint
266. 28 U.S.C. § 1331 (2006) (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”).
267. 28 U.S.C. § 1343(a)(3) (2006) (“The district courts shall have original jurisdiction of any civil
action authorized by law to be commenced by any person ... [t]o redress the deprivation, under color of
any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity
secured by the Constitution of the United States.”).
268. Fed. R. Civ. P. 8(a) (“A pleading which sets forth a claim for relief ... shall contain (1) a short
and plain statement of ... the court’s jurisdiction[,] ... (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader
seeks.”).
269. See Haines v. Kerner, 404 U.S. 519, 520–21, 92 S. Ct. 594, 595–96, 30 L. Ed. 2d 652, 654
(1972) (stating that prisoner should be allowed opportunity to offer proof unless it appears beyond
doubt that prisoner can prove no facts to support his claim); Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
2006) (“We construe complaints filed by pro se litigants liberally and interpret them to raise the
strongest arguments that they suggest.”) (internal quotations and citations omitted); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant’s pleadings are to be construed liberally and
held to a less stringent standard than formal pleadings drafted by lawyers. We believe that this rule
means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff
could prevail, it should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of
various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements. At the same time, we do not believe it is the proper function of the district court to
assume the role of advocate for the pro se litigant.”).
270. 28 U.S.C. § 1367 (2006) (“[I]n any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.”).
271. 28 U.S.C. § 1367 (2006).
claiming that prison officials failed to prevent another prisoner from assaulting you in
violation of your Eighth Amendment rights and that the officials were negligent under state
tort law.272
Note that, in New York, you cannot add a supplemental claim in federal or state court
when suing a state corrections officer in his individual capacity for acts he committed within
the scope of his employment.273 But if your claim is based on conduct that was not within the
scope of the officer’s employment, you can add a supplemental state law claim.274 You can
also add a supplemental state claim when suing county or city corrections personnel. If you
want to add supplemental state claims to your lawsuit, you should research the law in your
own state to find out whether your state also limits your ability to add state claims to Section
1983 suits against particular kinds of defendants.
Bringing a supplemental state claim in federal court can save you time and effort, but
there are three potential disadvantages. First, the federal courts cannot grant an injunction
against a state official when the claim against that official is based on a supplemental state
law claim.275 If you want to get an injunction against a state official based on a state law
claim, you must bring that state law claim in state court. Second, you cannot use Section
1983 to sue a state official in his official capacity for damages in federal court.276 Similarly,
you cannot use state law to sue a state official in his official capacity for damages in federal
court. However, most federal courts permit damage claims against state officials sued in
their individual capacities based on state law.277 Third, if your state claim depends on state
law that is unclear, the federal court may refuse to decide both your state and federal claims
272. For more information on state tort claims, see Chapter 17 of the JLM, “The State’s Duty to
Protect You and Your Property: Tort Actions.”
273. This is because New York state law does not permit such suits—it requires claims of that
type to be brought in the State Court of Claims. N.Y. Correct. Law § 24 (McKinney 2003) (prohibiting
individuals from bringing civil suits in state court against employees of the Department of Correctional
Services in their personal capacities for damages arising out of any act performed within the scope of
the employment); Baker v. Coughlin 77 F.3d 12, 14–15 (2d Cir. 1996) (holding that N.Y. Correct. Law §
24 also prohibits such actions from being brought in federal court); Riviello v. Waldron, 47 N.Y.2d 297,
303, 391 N.E.2d 1278, 1281, 418 N.Y.S.2d 300, 303 (1979) (When determining an employee’s scope of
employment, New York courts have considered such factors as: “the connection between the time, place
and occasion for the act; the history of the relationship between employer and employee as spelled out
in actual practice; whether the act is one commonly done by such an employee; the extent of departure
from normal methods of performance; and whether the specific act was one that the employer could
reasonably have anticipated.”).
274. See Ierardi v. Sisco, 119 F.3d 183, 188 (2d Cir. 1997) (holding that sexual harassment of a
co-worker by a state corrections officer is not within the scope of the officer’s employment and therefore
allowing plaintiff’s supplemental state law claim); Degrafinreid v. Ricks, 452 F. Supp. 2d 328, 334
(S.D.N.Y. 2006) (finding plaintiff’s negligence claim against corrections officers barred because, while
the officers were negligent in not replacing plaintiff’s hearing aids, such negligent conduct occurred in
the course of “doing the employer’s work” and was not “prompted purely by personal reasons unrelated
to the employer’s interest”).
275. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S. Ct. 900, 911, 79 L.
Ed. 2d 67, 82 (1984) (holding that the 11th Amendment prevents a federal court from ordering state
officials to abide by state law); see also Futernick v. Sumpter Twp., 78 F.3d 1051, 1055 (6th Cir. 1996)
(holding that Pennhurst doctrine does not extend 11th Amendment immunity to actions seeking
injunctive relief against a state officer who is violating federal law, and reaffirming that “state officers
who are violating a federal law may always be sued for purely injunctive relief”). See Part C(3)(a) of
this Chapter for more information on 11th Amendment immunity.
276. See Part C(3)(a) of this Chapter for more on suing state officials in their official capacities.
277. See Williams v. Kentucky, 24 F.3d 1526, 1543 (6th Cir. 1994) (permitting plaintiff to pursue
supplemental state law damages claim against state officials sued in their individual capacity); Wilson
v. Univ. of Tex. Health Ctr., 973 F.2d 1263, 1271 (5th Cir. 1992) (holding that federal courts may hear
state law claims for damages against officials sued in their individual capacity).
until the state court clarifies the state law, which takes time.278 Even if you then win your
state claim in state court, the federal court may still refuse to decide your federal claim
because your state victory has made federal relief “unnecessary.” The bottom line is that you
should be very careful when adding anything but the most routine state claim to your
Section 1983 action.
7. How to File Your Complaint
Each court has its own detailed procedures for filing a complaint. You should try to
obtain a copy of the local Rules of the Court for the court where you are filing your lawsuit.
These can be obtained from your prison’s law library or by writing to the clerk of the court
and (sometimes) paying a small fee.
You can also ask the clerk of the district court for model Section 1983 forms and in forma
pauperis papers (described below). Be sure to ask the clerk how many copies of each
document you need to file and if you need to submit a summons for each defendant you are
naming in the complaint. A summons is the document that orders the defendant to respond
to or “answer” your complaint with his own legal papers. Appendix A-1 of this Chapter has a
sample summons form.
You should file your complaint by mailing the complaint, your in forma pauperis papers
(described below), the summonses, and as many copies as the court requires in a sealed
envelope to the clerk of the court for the federal district in which the wrongful act took place.
The clerk will request a United States Marshal to deliver a copy of the complaint and a
summons to each defendant. The court clerk will mail one copy of each paper to you marked
“received by the clerk,” so that you will have a record of all papers that you have officially
filed with the court. Although the amount of time it will take for you to receive this copy
varies from court to court, it should range from one to two weeks. Make sure to keep all the
documents you receive from the court.
An in forma pauperis declaration is a sworn statement in which you tell the court that
you cannot afford the filing fee and other legal expenses. If the court approves your in forma
pauperis declaration, you do not have to pay certain court expenses, including a fee and
travel expenses (a mileage charge) for each summons delivered by the U.S. Marshal.
In forma pauperis status does not relieve you from having to pay the filing fees
associated with filing a complaint. These fees will no longer be waived in the same manner in
which they were in the past.279 See Chapter 14 of the JLM, “The Prison Litigation Reform
Act” to determine how you are required to pay filing fees. If you cannot obtain a form for an
in forma pauperis declaration from the clerk of the district court, use the form in Appendix
A-5 of this Chapter as a model, filling in your answers to the questions, and file the
declaration with an in forma pauperis motion, an example of which is also contained in
Appendix A-5.
278. 28 U.S.C. § 1367(c)(1) (2006) (“The district courts may decline to exercise supplemental
jurisdiction ... if ... the [state] claim raises a novel or complex issue of State law”); see also R.R. Comm’n
of Tex. v. Pullman Co., 312 U.S. 496, 501–02, 61 S. Ct. 643, 645–46, 85 L. Ed. 2d 971, 974 (1941)
(holding that federal court should refuse to hear unsettled state law issue until the issue is resolved by
the state courts and that, on the facts of the case, the federal constitutional claim could not be heard by
the federal court because the question of whether a constitutional violation occurred depended on the
outcome of the state law issue). In practice, federal courts will often ask the state’s highest court to
resolve unsettled state law issues instead of refusing to hear the state law question at all. When a
federal court asks a state’s highest court to decide a state law issue, it is called “certification.” See
Arizonans for Official English v. Arizona, 520 U.S. 43, 79, 117 S. Ct. 1055, 1074–75, 137 L. Ed. 2d 170,
200–01 (1997) (encouraging federal courts to certify unsettled questions of state law to state courts).
Most states have a provision allowing certification. Hart and Wechsler, The Federal Courts and The
Federal System 1201 n.5 (Richard H. Fallon, Jr., et al. eds., 5th ed. 2003).
279. 28 U.S.C. § 1915(b) (2006) (outlining procedures for prisoner payment of filing fees).
If you wish the court to appoint you a lawyer, you should also make this request when
filing to proceed in forma pauperis. See Appendix A-6 of this Chapter for a sample form to
request an attorney.
To summarize, the following are the general steps required to file a complaint:
(1) Determine the federal district court in which you must file. (See Appendix I of the
JLM if you are in New York.)
(2) Write to the clerk (the pro se clerk if there is one) of that district court. Ask:
(a) for a model Section 1983 complaint form;
(b) for in forma pauperis papers;
(c) for the local rules of practice for that district;
(d) whether you need a summons for each named defendant; and
(e) how many copies of each document (complaint, in forma pauperis declaration,
and summons) you must file.
(3) Complete and mail to the clerk of the court:
(a) complaint and copies of the complaint, including any affidavits, using the
sample complaints in Appendix A of this Chapter as a guide for drafting your
complaint if the clerk does not send you model forms;
(b) in forma pauperis papers and copies, using the forms for an in forma pauperis
motion and an in forma pauperis declaration found in Appendix A-5 of this
Chapter if you cannot obtain model forms from the clerk of the district court;
and
(c) summonses (if necessary) and copies (see Appendix A-1 of this Chapter).
By mailing these documents to the clerk, you have filed your Section 1983 lawsuit.
8. What to Expect After Your Legal Papers Have Been Filed in Court
Once you file your complaint, your lawsuit has officially begun. However, it is your
responsibility to make sure that your lawsuit continues to move forward. It is not enough
simply to file your complaint and then wait for something to happen. Nothing will happen
unless you stay involved.
After you file your complaint and serve the appropriate documents to the defendant(s),
the defendant(s) must respond by filing an “answer.” 280 Defendants are supposed to file
answers within twenty days of receiving the complaint,281 but some defendants ask for extra
time. The defendant’s answer usually denies the truth of your factual statements or
allegations. The defendant may also file a motion to dismiss your complaint under Federal
Rule of Civil Procedure 12(b)(6).282 In a motion to dismiss, a defendant may argue that even
if your allegations are true, they do not make out a legal claim upon which relief can be
granted. In other words, the defendant could argue that your complaints are not violations of
statutory or constitutional rights that can be enforced using Section 1983. The court should
give you the opportunity to amend (make changes to) your complaint if you left something
important out of your original complaint. If the district does not let you amend your
complaint, you may have grounds for an appeal.283 If the defendant does not respond to your
280. See Chapter 6 of the JLM, “An Introduction to Legal Documents.”

281. Fed. R. Civ. P. 12(a)(1)(A)(i).
282. Fed. R. Civ. P. 12(b)(6) (“Every defense to a claim for relief in any pleading must be asserted
in the responsive pleading if one is required. But a party may assert the following defenses by motion:
... (6) failure to state a claim upon which relief can be granted.”).
283. See Platsky v. CIA, 953 F.2d 26, 29 (2d Cir. 1991) (holding, in an appeal, that the pro se
plaintiff whose claim was dismissed should be given an opportunity to amend his pleadings and re-file
his complaint). But see Woodard v. Hardenfelder, 845 F. Supp. 960, 969 (E.D.N.Y. 1994) (holding that
“leave to file an amended complaint is only appropriate when, based on the plaintiff’s first complaint, it
is conceivable that an amended complaint could state a cause of action for a violation of the plaintiff’s
complaint at all, you can move for a “default judgment.” 284 If the court grants you a default
judgment, you win your case because the defendants did not answer. Although the court will
probably not grant your motion for a default judgment, moving for one may force the
defendant to respond.
Another way a defendant might seek to end your lawsuit is by filing for summary
judgment under Federal Rule of Civil Procedure 56.285 In a summary judgment motion, the
defendant argues that there is no real factual dispute and that on the undisputed facts, they
would win. For example, the defendant may claim that he or she is immune from suit for
your claim. 286 If the defendant makes a summary judgment motion, you must raise a
“genuine issue of material fact.”287 To raise a genuine issue of material fact, you must provide
factual support that would be admissible in evidence for each element of your claim against
each defendant. For example, if you are suing supervisory officials, you must provide some
evidence that the particular official is responsible for what happened. Factual support can be
your own affidavit or declaration, the affidavit or declaration of other people who witnessed
the event, or relevant documents.288 If you need discovery in order to obtain evidence to
defend against a summary judgment motion, you can ask to delay the motion, but you will
have to explain to the court what discovery you want and why you think it would help. Since
statements in response to a summary judgment motion must be sworn to, you cannot just
rely on the complaint unless the complaint is verified. If the verified complaint does not
address all relevant issues, you will still need to supplement it with a declaration.289
The defendants in your lawsuit could also try to stop your case by making it “moot.” A
lawsuit is moot when it presents claims that no longer exist. Courts will not hear lawsuits
that become moot. For example, if you ask for an injunction against certain bad prison
conditions and the prison then improves the conditions, your lawsuit would be moot.
Mootness is usually decided when a defendant files a summary judgment motion. To avoid
having your claim dismissed because of mootness, you can request money damages for
injuries you have already received—a damages claim is never moot—or ask the court to
decide if the changes made by prison officials really solve the problem and are not just
temporary.290
civil rights”). Taken together, these cases mean that you should be given a chance to amend your
original complaint with additional facts that support your legal claim, unless the court determines,
based upon what you wrote in your original complaint, that there is no possible way that you can prove
additional facts to strengthen your legal claim.
284. Fed. R. Civ. P. 55 (outlining the procedures for default judgment).
285. Fed. R. Civ. P. 56(b) (“A party against whom relief is sought may move at any time, with or
without supporting affidavits, for summary judgment on all or part of the claim.”).
286. See Part C(3) of this Chapter for information on other possible defenses.
287. Fed. R. Civ. P. 56(c) (“The [summary] judgment sought should be rendered if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.”).
288. If you give the court documents, you must provide a proper foundation (explanation) for the
documents so the court knows what the document is, when you received it, who gave it to you, etc. You
must explain in an affidavit or declaration what the documents are. For example, you might need to
explain that the document is the notice you received that you were found guilty of a particular
disciplinary offense, or that the document is the grievance you filed and the decision you received, etc.
289 . See Chapter 6 of the JLM, “Introduction to Legal Documents,” for explanations of
documents such as affidavits and declarations.
290. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 478 n.1, 109 S. Ct. 706, 713 n.1, 102
L. Ed. 2d 854, 872 n.1 (1989) (stating that the expiration of an affirmative action program did not make
a challenge to the program moot, because the plaintiff had asserted a claim for monetary damages);
Weinstein v. Bradford, 423 U.S. 147, 148–49, 96 S. Ct. 347, 348–49, 46 L. Ed. 2d 350, 352–53 (1975)
(holding that the release of the plaintiff prisoner on parole mooted his challenge to earlier parole board
proceedings; but also noting that where an issue is so short-lived that it will not continue throughout
the time it takes to litigate, the issue will not be declared moot if there is a “reasonable expectation that
If your suit is not dismissed, the next stage of the proceedings may be the “discovery” or
investigation stage. Discovery is the process by which each party requests information from
the other about the case. See Chapter 8 of the JLM, “Obtaining Information to Prepare Your
Case: The Process of Discovery,” for more information on discovery in a federal civil case. It is
your responsibility, not the court’s, to keep your case moving. Once you have filed your
complaint, you should begin discovery. Defendants often ignore discovery requests from pro
se plaintiffs such as prisoners. If the defendants ignore your discovery request, you should
write a letter to them requesting a response “in a timely manner,” and stating that if you do
not hear from them you will write to the judge. Most courts now have what are called “meet
and confer” requirements. Under these requirements, you must try to settle any discovery
disputes with the defendant before you ask the court for help. If you do not hear from the
defendants after you write to them, or if you are otherwise unable to resolve a discovery
dispute with them, after a week or two you should write to the judge. Judges want cases to
move quickly. If your discovery demands are proper, the judge should order the defendants to
fulfill these demands or assist you in narrowing them so they may be met. See Appendix A of
Chapter 8 of the JLM for examples of letters that you may send to defendants and judges.
If you receive discovery requests from the defendants, you should make sure to respond
in a timely and honest manner because you are obligated to follow the rules of the court
when you file a lawsuit. If you ignore discovery requests or delay your response to them, you
might damage your case and compromise your credibility before the judge.
If you are threatened or punished by prison officials for bringing your suit, you should
tell the court or your attorney (if you have one) as soon as possible. You should also tell the
court if your appointed attorney has not communicated with you.
If, at any time, the court dismisses your suit, make sure you understand the reasons for
the dismissal. Your lawsuit may be dismissed with or without prejudice. If the court
dismissed your suit “without prejudice,” you can file your suit again. 291 If your suit is
dismissed “with prejudice,” you cannot re-file your claim. Instead you must appeal the court’s
decision—before the deadline to appeal—to dismiss your suit.
D. Alternate Ways to Bring Lawsuits
1. Filing Your Lawsuit as a Class Action
Section 1983 claims can also be brought as “class action” suits. A class action is a lawsuit
brought on behalf of a group of people who experience the same harm or have the same
complaint—in other words, all persons who are “similarly situated.”292
the same complaining party would be subjected to the same action again.”).
291. For example, if you filed in the wrong district court, you may be allowed to re-file in the
right court. Your suit could also be dismissed without prejudice because of a technical problem in your
pleadings. If the statute of limitations has not ended, you may have the chance to fix your pleadings
and re-file your complaint.
292. Fed. R. Civ. P. 23. There are two main advantages offered by a class action. First, the suit
will not become “moot” if one plaintiff is transferred or released. See U.S. Parole Comm'n v. Geraghty,
445 U.S. 388, 402, 100 S. Ct. 1202, 1211, 63 L. Ed. 2d 479, 494 (1980) (holding that even without class
certification, the resolution of the named plaintiff’s substantive claim does not necessarily moot all
other issues in the case); Sosna v. Iowa, 419 U.S. 393, 401, 95 S. Ct. 553, 558, 42 L. Ed. 2d 532, 541
(1975) (holding that when a claim is no longer relevant for a named plaintiff in a class action suit, the
claim is still alive and not moot for the class of persons the named plaintiff has been certified to
represent); Sze v. I.N.S., 153 F.3d 1005, 1010 (9th Cir. 1998) (noting two exceptions to Sosna’s mootness
doctrine: where, in a proposed class action, plaintiffs’ claims are “inherently transitory” and “there is a
constantly changing putative class,” leaving the court no time to certify the class; and where “but for
the ‘relation back’ of a later class certification, putative class members’ claims would be barred by the
statute of limitations.”). The second advantage of bringing a class action is that if you win, each
member of the class can enforce the judgment or injunction on behalf of the other class members, which
avoids separate enforcement actions.
Class actions are very complicated and can take years. Practically speaking, you need an
attorney to bring a class action. Losing a class action affects the rights of all class members,
so having a good lawyer is very important. Courts will probably not “certify” (recognize) a
case as a class action if you do not have a lawyer. If you believe that other prisoners like you
are experiencing similar mistreatment, you should talk with a lawyer about whether
bringing a class action would be appropriate.
A class action will only be recognized by the court if it meets all of the following
conditions:
(1) the class of similarly situated persons must be too large for each person to bring his
own lawsuit or even join individual lawsuits;
(2) the prison officials must have acted or refused to act on grounds that apply to the
entire class;
(3) the personal claims of the main plaintiff(s), the “class representative,” must be
typical of the other plaintiffs; and
(4) the class representative must adequately protect the rights of the other members of
the class.293
Class actions are appropriate only if you and the other plaintiffs in the suit suffered the
same wrong from the same people. All of you together are considered a “class.” The class
members do not need to know each other, but you must have a way to reasonably identify
most of them, so they can be given notice of the suit and an opportunity to decide whether to
participate in it.294 Again, because class actions are so complicated, you will need to retain a
lawyer or ask the court to appoint one to have your class certified.
If you decide to proceed on your own and feel that the case fits the requirements of a
class action suit, you should name yourself and “all others similarly situated” as the
plaintiffs. In the complaint, you should state all the facts concerning the wrongs done to you
and also state whatever information you have about similar treatment of other prisoners.
The court will then decide, on the basis of the facts you provide, whether or not a class action
would be proper. If the court allows the class action, it may appoint an attorney to represent
the class. If the court does not recognize the class action, you will be allowed to amend your
complaint and sue by yourself.
2. Using State Law and/or State Courts
There are certain advantages to suing in federal court, such as liberal discovery rules
and potentially higher damage awards. But you may want to file in state court if you only
have state law claims or if there are advantages to bringing your Section 1983 claim in a
particular state court.
(a) Turning Your Federal Civil Rights Claim into a State Law Claim
By bringing a state claim (instead of a federal civil rights claim) in state court, you can
avoid the Prison Litigation Reform Act (“PLRA”), since the PLRA applies only to claims
arising under federal law. See Chapter 14 of the JLM, “The Prison Litigation Reform Act,”
for more information on the PLRA. You can bring your claim in state court by converting
your federal civil rights claim into a state tort claim or other state law claim.295 For example,
a claim for “deliberate indifference to serious medical needs” in violation of the Eighth
Amendment could be brought in state court instead as a tort action for medical malpractice.
293. Fed. R. Civ. P. 23(a)–(b).

294. Fed. R. Civ. P. 23(c)(2).
295. For more information on state tort claims, see Chapter 17 of the JLM, “The State’s Duty to
Protect You and Your Property: Tort Actions.”
Similarly, if a disciplinary hearing denied you due process, you could file in state court for
violation of the state regulations governing prison disciplinary proceedings.
In addition to avoiding the PLRA, you may have a better chance of winning if you file in
state court because of the lower standard that you, as the plaintiff, will have to meet to prove
your case. For example, a state court may find that you have a valid state medical
malpractice tort claim even if you cannot show the prison officials were “deliberately
indifferent” as required in a Section 1983 claim.296 However, many state statutes contain
PLRA-like restrictions as well.297 You need to research the law in your own state before
deciding to file a claim in state court.
Another advantage of bringing your claim in state court is you may be able to enforce
rights not granted under federal law. State constitutions may protect rights not recognized
by the U.S. Constitution. This is because the U.S. Constitution protects a minimum level of
individual rights and allows the states to provide greater rights for state citizens through
their own “constitutions, statutes, and rule-making authority.”298
(b) Bringing Your Section 1983 Action in State Court
Even if you have a federal law claim, you may want to consider bringing your Section
1983 action in state court. The advantages and disadvantages of federal court compared with
state court vary by state. Some state courts might have more sympathetic judges, more
favorable procedural rules, or fewer cases to hear than federal courts. There may, however,
be restrictions on damages or the amount recoverable for attorney fees. State courts also
have different immunity rules than federal courts, which might be helpful or harmful to your
lawsuit depending on what state you are in and who you want to sue. You should research
the law and practice of your state to see if it has any of these advantages or disadvantages.
296. See Estelle v. Gamble, 429 U.S. 97, 104–05, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 260 (1976)
(describing the “deliberate indifference” standard to prove a § 1983 claim against a prison official for
denial of medical care).
297. See, e.g., Cal. Civ. Proc. Code §§ 391-391.7 (West 2004) (governing “vexatious” (troublesome)
litigants in general, and preventing those litigants that a court has found to be troublesome from filing
future lawsuits without the permission of a judge); Fla. Stat. Ann. §§ 57.085(6)-(7) (West 2006)
(allowing a court to dismiss a prisoner’s claim if it is frivolous, malicious, or harassing, and requiring
that a prisoner who has litigated as an indigent twice within the previous three years receive
permission from a judge before going ahead with another suit); Ga. Code Ann. §§ 42-12-1 to -9 (1997 &
Supp. 2007) (governing payment of certain court fees and costs by a prisoner, and requiring that any
prisoner who has filed three or more actions that were later dismissed as frivolous or malicious be
barred from filing any future actions unless the prisoner is under imminent danger of serious physical
injury); Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001–.014 (Vernon 2002 & Supp. 2007) (requiring that
prisoners exhaust their administrative remedies before filing a claim in state court and that the state
court claim be filed within 31 days of when the prisoner receives a written decision from the
administrative grievance system; allowing courts to dismiss claims that are frivolous or malicious; and
governing costs and fees that the court may require a prisoner to pay).
298. See Hernandez v. Robles, 7 N.Y.3d 338, 362, 855 N.E.2d 1, 9, 821 N.Y.S.2d 770, 778 (2006)
(“We have at times found our Due Process Clause to be more protective of rights than its federal
counterpart, usually in cases involving the rights of criminal defendants or prisoners. [W]e have used
the same analytical framework as the Supreme Court ... though our analysis may lead to different
results.” (internal citations omitted)); New York v. LaValle, 3 N.Y.3d 88, 129, 817 N.E.2d 341, 366, 783
N.Y.S.2d 485, 510 (2004) (“It bears reiterating here that on innumerable occasions this Court has given
the State Constitution an independent construction, affording the rights and liberties of the citizens of
this State even more protection than may be secured under the United States Constitution.” (internal
quotations omitted)); Cooper v. Morin, 49 N.Y.2d 69, 79, 399 N.E.2d 1188, 1193, 424 N.Y.S.2d 168, 174
(1979) (“We have not hesitated when we concluded that the Federal Constitution as interpreted by the
Supreme Court fell short of adequate protection for our citizens to rely upon the principle that that
document defines the minimum level of individual rights and leaves the States free to provide greater
rights for its citizens through its Constitution, statutes or rule-making authority.” (internal citations
omitted)).
Bringing your Section 1983 action in state court will also avoid some, but not all of the
restrictions of the PLRA. For example, the barriers in the PLRA for prisoners filing in forma
pauperis will not apply in state court (though many states have their own PLRA-like laws
restricting in forma pauperis filing). But, the requirement to exhaust administrative
remedies before bringing your claim applies even in state court.
E. Special Concerns for Prisoners in Federal Prisons
1. Bivens Actions
There is no statute similar to Section 1983 providing individuals with a way to sue
federal officials who violate federal rights while acting under color of federal law. But, in
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court
held, even without a statute, you can sue federal officials for damages and injunctive relief
for violations of your rights.299 These suits are called Bivens actions.
Federal courts have jurisdiction to hear Bivens actions under 28 U.S.C. § 1331(a). A
Bivens action is the federal equivalent of a Section 1983 action. So, most of the discussion of
Section 1983 in Part B also applies to a federal Bivens action under Section 1331. Before
proceeding, you should review all of Part B. Appendix A of this Chapter provides a sample
Section 1983 complaint, which can also be used for a Bivens action. The rest of this Part of
the Chapter explains the differences between Section 1983 suits and Bivens actions.
2. Exhaustion of Remedies
In a Bivens suit against federal officials, you must exhaust (use up) any and all available
administrative remedies, such as internal grievance procedures, before going to court.300 This
requirement applies regardless of whether you are suing for injunctive relief, declaratory
relief, or monetary damages.301 See Chapter 14 of the JLM, “The Prison Litigation Reform
Act,” for more information.
3. Whom You Can Sue
In bringing a Bivens action, you are generally limited to suing the federal official who
violated your rights. You can sue the official only in his individual capacity, not his official
capacity.302 This is because “official capacity” suits are considered the same as suits against
the government, which has “sovereign immunity” (a type of absolute immunity) from being
299. See Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 389, 91
S. Ct. 1999, 2001, 29 L. Ed. 2d 619, 622 (1971) (holding suit for a 4th Amendment violation is permitted
against a federal agent); see also Carlson v. Green, 446 U.S. 14, 18–19, 100 S. Ct. 1468, 1471, 64 L. Ed.
2d 15, 23–24 (1980) (finding the widow of deceased federal prisoner had a Bivens remedy under the
Constitution). But see FDIC v. Meyer, 510 U.S. 471, 484–86, 114 S. Ct. 996, 1004–06, 127 L. Ed. 2d 308,
315 (1994) (refusing to extend Bivens doctrine to suits against federal agencies).
300. See Booth v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819, 1825, 149 L. Ed. 2d 958, 966–67
(2001) (holding that the Prison Litigation Reform Act requires the prisoner to exhaust all
administrative remedies before filing suit, regardless of the form of relief sought).
301. See Booth v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819, 1825, 149 L. Ed. 2d 958, 966–67
(2001) (holding the PLRA requires the prisoner to exhaust administrative remedies before filing suit,
regardless of the form of relief sought).
302. See Tapia-Tapia v. Potter, 322 F.3d 742, 746 (1st Cir. 2003) (holding the Postmaster
General cannot be sued in his official capacity under Bivens); Affiliated Prof’l Home Health Care
Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999) (noting that Bivens “provides a cause of action only
against government officers in their individual capacities”); Buford v. Runyon, 160 F.3d 1199, 1203 (8th
Cir. 1998) (holding that a Bivens claim cannot be brought against a federal official in his official
capacity); Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (noting that Bivens actions must
be against federal officials individually); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510
(2d. Cir. 1994) (stating that a Bivens action “must be brought against the federal officers involved in
their individual capacities”).
sued.303 This is different from how you can sue officers in their official capacity under Section
1983. You also cannot bring a Bivens action against a federal agency 304 or a private
corporation that contracts with the federal government to operate prison facilities. 305 In
Corrections Services Corporation v. Malesko, the Supreme Court held that it would be unfair
to allow Bivens suits against private corporations and not federal agencies. Violations by
these private corporations, the Court said, are best handled through tort remedies available
to prisoners.306 It is not yet clear whether employees of private corporations contracting with
the federal prisons may be sued under Bivens. While some courts have found that Malesko
only excluded private entities and not private individuals from Bivens actions,307 others have
found that neither private entities nor their employees can be sued.308
4. What You Can Complain About
In a Bivens action under Section 1331, like a Section 1983 action, you may complain
about conditions and/or treatment that violate your federal constitutional rights. Parts B(2)
and (3) of this Chapter, which explain possible Section 1983 actions, apply equally to Bivens
actions. Whom you can sue (as a defendant) in Bivens actions is also similar to Section 1983
suits, although remember you cannot sue federal agencies.309
Federal courts may refuse to hear Bivens complaints based on the Fifth Amendment’s
Due Process Clause310 if the complaints fall within the category of less serious harms, like
303. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d. Cir. 1994) (“Under the
doctrine of sovereign immunity, an action for damages will not lie against the United States absent
consent. Because an action against a federal agency or federal officers in their official capacities is
essentially a suit against the United States, such suits are also barred under the doctrine of sovereign
immunity, unless such immunity is waived.”). See the discussion of state sovereign immunity under the
11th Amendment immunity in Part C(3)(a) of this Chapter. The discussion generally applies to the
federal government as well.
304. See FDIC v. Meyer, 510 U.S. 471, 486, 114 S. Ct. 996, 1006, 127 L. Ed. 2d 308, 323 (1994)
(finding a damages remedy against federal agencies inappropriate and inconsistent with Bivens
because of the “potentially enormous financial burden for the Federal Government.”).
305. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63, 122 S. Ct. 515, 517, 151 L. Ed. 2d 456, 461
(2001) (not extending Bivens remedy against private company operating halfway house under contract
with Bureau of Prisons).
306. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71–73, 122 S. Ct. 515, 521–22, 151 L. Ed. 2d
456, 466–67 (2001) (noting that the purpose of Bivens is to deter individual officers from violating the
Constitution).
307. See Sarro v. Cornell Corr., Inc., 248 F. Supp. 2d 52, 58–60 (D.R.I. 2003) (finding private
prison guards to be federal actors under Bivens because they are considered state actors within the
meaning of § 1983 and act under color of federal law); Bender v. Gen. Servs. Admin., 539 F. Supp. 2d
702, 712 (S.D.N.Y. 2008) (“[A] Bivens action may lie against a private individual defendant acting
under color of federal law.”). But see LaCedra v. Donald W. Wyatt Det. Facility, 334 F. Supp. 2d 114,
141 (D.R.I. 2004) (holding no Bivens action can be brought against employees of a public corporation
because they are not federal agents).
308. See Holly v. Scott, 434 F.3d 287, 290–91 (4th Cir. 2006) (dismissing Bivens lawsuit brought
by prisoner in a privately run federal correctional facility because he could seek relief under state law);
Peoples v. CCA Det. Ctr., 422 F.3d 1090, 1103 (10th Cir. 2005) (finding Bivens actions are not available
against private prison employees because there are other remedies, such as negligence actions), aff’d by
an equally divided court, 449 F.3d 1097 (10th Cir. 2006) (per curiam) (en banc), cert. denied, 127 S. Ct.
664 (2006) and 127 S. Ct. 687 (2006).
309. See FDIC v. Meyer, 510 U.S. 471, 484–86, 114 S. Ct. 996, 1004–06, 127 L. Ed. 2d 308, 322–
24 (1994) (holding that federal agencies, such as the FDIC, are immune from Bivens actions).
310. U.S. Const. amend. V. The 5th and 14th Amendments to the Constitution each contain a
Due Process Clause. The 5th Amendment’s clause applies to the federal government, while the 14th
Amendment’s applies to the states. The due process protections described in Part B(2)(e) of this
Chapter will apply to federal prisoners through the 5th Amendment rather than the 14th Amendment.
deprivation or removal of personal items.311 For simple tort violations, you will need to sue
using the Federal Tort Claims Act (“FTCA”)312 instead of a Bivens action. The FTCA is a
statute authorizing damages suits against the federal government for actions by federal
employees who, within the scope of their employment, negligently or wrongfully harm
persons or their property. You begin a FTCA claim by submitting Form 95, “Claim for
Damage, Injury, or Death,” and requesting damages from the federal agency whose employee
allegedly committed the harmful action(s).313 Many FTCA cases are resolved at the agency
level through negotiation and an eventual settlement. But, if your claim is denied, you may
file suit in federal court. But remember, the judge will dismiss your case if you go to federal
court without exhausting this administrative remedy.314
5. What You Should File
If you are suing for injunctive relief in a Bivens action under Section 1331, you must
serve a copy of the summons and complaint on: (1) the named defendants, (2) the U.S.
Attorney for the district in which you bring your suit, and (3) the U.S. Attorney General in
Washington, D.C.315 If you are suing under Section 1331 for only money damages, you need
to serve the summons and complaint on: (1) the U.S. Attorney for the district in which you
bring your suit, (2) the U.S. Attorney General in Washington D.C., and (3) the officer or
employee being sued.316 All service must be by registered or certified mail.317
6. Where to File
If you seek injunctive or declaratory relief, you may file suit in the federal district where
any defendant resides, where the events complained of occurred or are occurring, or where
you presently reside.318 But, if you are suing for money damages only, you must file suit in
the federal district in which all the defendants reside or the district in which your claim
arose (where the events you are complaining about occurred).319
311. See, e.g., Hudson v. Palmer, 468 U.S. 517, 526, 533, 104 S. Ct. 3194, 3200, 3204, 82 L. Ed.
2d 393, 402–03, 407 (1984) (holding that the 4th Amendment’s prohibition of unreasonable searches
and seizures did not apply to searches of prison cells or seizures of prisoner property, and that such
seizures did not violate the 5th Amendment’s Due Process Clause if a post-deprivation remedy was
available); Daniels v. Williams, 474 U.S. 327, 328, 106 S. Ct. 662, 663, 88 L. Ed. 2d 662, 666 (1986)
(holding that “the Due Process Clause is simply not implicated by a negligent act of an official causing
unintended loss of or injury to life, liberty, or property.”).
312. Federal Tort Claims Act, 28 U.S.C. § 1346(b) (2006).
313. You may obtain this form by writing to the clerk of the federal district court in which you
plan to file your action. Form 95 is also available at http://www.usdoj.gov/civil/forms/SF95.pdf (last
visited Oct. 1, 2008).
314. See, e.g., Deutsch v. Fed. Bureau of Prisons, 737 F. Supp. 261, 266 (S.D.N.Y. 1990) (holding
failure to file an administrative claim will bar a plaintiff from suing under the FTCA), aff’d, 930 F.2d
909 (2d Cir. 1991).
315. Fed. R. Civ. P. 4(i).
316. Fed. R. Civ. P. 4(i)(2)(B).
317. Fed. R. Civ. P. 4(i)(1).
318. 28 U.S.C. §1391(e) (2006) (“A civil action in which a defendant is an officer or employee of
the United States ... may, except as otherwise provided by law, be brought in any judicial district in
which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3)
the plaintiff resides if no real property is involved in the action.”).
319. See Stafford v. Briggs, 444 U.S. 527, 544, 100 S. Ct. 774, 785, 63 L. Ed. 2d 1, 15 (1980)
(finding that “under 28 U.S.C. § 1391(b), suits against private persons for money damages must be
brought ‘in the judicial district where all defendants reside, or in which the claim arose’”).
F. Conclusion
If your constitutional rights were violated, you may be able to get relief by suing state
and local officials under 42 U.S.C. Section 1983 or federal officials under 28 U.S.C. Section
1331. Through these suits, prisoners may receive monetary or injunctive relief, and/or
declaratory judgment. In a 1983 claim against state and local officials, you can sue officials
in their official capacities as state representatives. But, when suing federal officials under
Section 1331, you may only sue them in their individual capacities. Refer to Part E of this
chapter to review special requirements for Section 1331 claims. Appendix A of this chapter
provides helpful sample forms, like a summons form, a temporary restraining order, and a
full complaint. Remember to read JLM Chapter 14 on the Prison Litigation Reform Act
before starting your 1983 claim.
APPENDIX A
SAMPLE FORMS
A-1. Sample Summons Form
A-2. Sample Section 1983 Complaint Form320
A-3. Form for an Affidavit
A-4. Order to Show Cause and Temporary Restraining Order (“TRO”)
A-5. In Forma Pauperis (“IFP”) Papers
a. Notice of Sample Motion to Proceed In Forma Pauperis
b. Declaration in Support of Request to Proceed In Forma Pauperis
A-6. Application for Appointment of Counsel
A-7. Prisoner Authorization
A-8 Sample Full Complaint
Parts B and C of this Chapter contain instructions on when and how to use each of the
following forms. DO NOT USE THESE FORMS UNTIL YOU HAVE READ PARTS B AND C
OF THIS CHAPTER.
You may obtain free model forms for Section 1983 complaints and supporting papers by
writing to the clerk of the district court in which you plan to file your action. These model
forms are designed to make your work less confusing, and will help the district court process
your case. If for some reason you cannot obtain model forms, draft your own papers based on
the samples in this section. The endnotes following the sample documents (on the last page
of this chapter) tell you how to fill in the necessary information. DO NOT TEAR THESE
FORMS OUT OF THE JLM.
If you are in New York and need to know the address of the court to send these papers to,
see Appendix I at the end of the JLM for federal courts in New York and Appendix II for
state courts in New York.
For sample forms for state court In Forma Pauperis Motions and Declarations in Support
of Request to Proceed In Forma Pauperis, see Appendix B of JLM Chapter 9, “Appealing
Your Conviction or Sentence.”
320. Federal prisoners can also use this form for a Bivens action. Just cross out the reference to
“42 U.S.C. § 1983” and replace it with “28 U.S.C. § 1331(a) (Bivens action).”
A-1. SAMPLE SUMMONS FORM321
This is based on the official form. You can get as many free copies as you need from the
clerk of the U.S. district court for your district.
In the United States District Court

For the______________________i
————————————————————x
[Name(s) of the Prisoner(s) :
Who Are Bringing the Suit], :
Plaintiffs, :
: Summons
v. :
:
[Names and Titles of All the People : Civil Action No.____ii
and Governments Whom :
You Are Suing], individually and :
in their official capacities,iii :
Defendants. :
————————————————————x
To the Above-Mentioned Defendants:

You are hereby summoned and required to serve upon plaintiffs, whose address is
______________, iv an answer to the complaint which is herewith served upon you, within
_______ days after service of this summons upon you, exclusive of the day of service. If you
fail to do so, judgment by default will be taken against you for the relief demanded in the
complaint. Any answer that you serve on the parties to this action must be filed with the
Clerk of this Court within a reasonable period of time after service.
_________________________________________
Clerk of the Court
Date: ___________________
321. See Admin. Office of the U.S. Courts, Form No. AO 440, Summons in a Civil Action (2001),
available at http://www.uscourts.gov/forms/AO440.pdf; see also Nat’l Ctr. for State Courts, Pro Se: Self
Represented Litigants,
http://www.ncsconline.org/wc/courtopics/StateLinks.asp?id=64&topic=ProSe (last visited Sept. 8, 2008)
(listing state court websites with limited state court forms); WashLaw: Legal Research on the Web,
Legal Forms, http://www.washlaw.edu/legalforms/#fedcts (last visited Sept. 8, 2008) (a legal form
resource page with links to federal court forms, state court forms, and form databases).
A-2. SAMPLE SECTION 1983 COMPLAINT FORM322
For the______________________v
————————————————————x
[Name(s) of the Prisoner(s)] :
:
Plaintiffs, :
: Complaint
v. :
:
[Names and Titles of All the People : Civil Action No.____ vi
and Governments Whom :
You Are Suing], individually and : Jury Trial Demanded
in their official capacities,vii :
Defendants. :
————————————————————x
I. Complaint
Plaintiffs, [your name and names of any other plaintiffs], pro se, for their complaint state
as follows:
II. Parties, Jurisdiction and Venue
(1) Plaintiff [your name] was confinedviii in the [type of facility: municipal (city) jail,
federal penitentiary, state correctional institution], located at [address of the facility]
in the city of ____ in the state of _____ from [dates of confinement at that facility] to
_______ of 20___. Plaintiff is currently confined at [your current address].
(2) Plaintiff [your name] is, and was at all times mentioned herein, an adult citizen of
the United States and a resident of the state of ___________.
(3) [If other prisoners are complaining, you should repeat paragraphs 1, 2 and 3 for their
names and addresses].
(4) Defendant [name of first defendant]ix was at all relevant times herein mayor of the
city of ____.x
(5) Defendant [name of second defendant] was at all relevant times herein the
commissioner of adult services for the city of ___ , with responsibility for operating
and maintaining detention, penal, and corrective institutions within the City of
_____, including the city jail.xi
(6) Defendant [name of third defendant] is and was at all relevant times herein the
warden or “superintendent” of the municipal prison for the City of ______. As
Superintendent of the prison, Defendant manages its day-to-day operations and
executes its policies.
(7) Defendant [name of fourth] is and was at all relevant times herein an employee of the
prison.
(8) Defendant ________is employed as [job of defendant, such as prison guard, mayor,
warden or doctor] at [name of prison or other place that this defendant works].
Defendant ________is employed as [job of defendant, such as prison guard, mayor,
warden or doctor] at [name of prison or other place that this defendant works].
322. This sample complaint uses the complaint forms found in John W. Witt et al., § 1983
Litigation: Forms 1-5–1-8.2 (1994 & Jonathan M. Purver, ed., Aspen Publishers 3d ed. Supp. 2006) as a
guide and source of sample language. See also U.S. District Court, EDNY, Civil Rights Complaint-
Prisoner (2006), available at
http://www.nyed.uscourts.gov/General_Information/Court_Forms/CivilRightsCmpPrisoner.pdf.
(9) Defendant City of ___ is and was at all relevant times herein a municipal corporation
of the State of ___.
(10) This action arises under and is brought pursuant to 42 U.S.C. Section 1983 to
remedy the deprivation, under color of state law, of rights guaranteed by the Eighth
and Fourteenth Amendmentsxii to the United States Constitution. This Court has
jurisdiction over this action pursuant to 28 U.S.C. Sections 1331 and 1343.
(11) Plaintiff’s claims for injunctive relief are authorized by Rule 65 of the Federal
Rules of Civil Procedure.
(12) This cause of action arose in the ______ District of ______.xiii Therefore, venue
is proper under 28 U.S.C. Section 1391(b).
III. Previous Lawsuits by Plaintiff
(13) Plaintiff has filed no other lawsuits dealing with the same facts involved in
this action or otherwise relating to his/her imprisonment.xiv
Use these paragraphs if you have filed a lawsuit before:
(14) Plaintiff has filed other lawsuits dealing with the same facts involved in this
action or otherwise relating to his/her imprisonment.
(15) [Describe the lawsuit in the space below. (If there is more than one lawsuit,
describe the additional lawsuits on another piece of paper, using the same outline.)]
The parties to the previous lawsuit were Plaintiffs [names of all of the plaintiffs in
that lawsuit] and Defendants [names of all of the defendants in that lawsuit] in the
[if federal court, name the district; if state court, name the county] Court, Docket
Number, under [name of judge to whom case was assigned]. The case was
[disposition (outcome) of the cases: dismissed? appealed? still pending?]. The lawsuit
was filed on ______, 20 __ and I learned of the outcome on _____, 20___.
IV. Exhaustion of Administrative Remediesxv
(16) [Read Chapter 14 of the JLM, “The Prison Litigation Reform Act,” to
determine whether you need to include any description here of how you exhausted
your administrative remedies and in what detail. It may depend on your jurisdiction.]
V. Statement of Claim
(17) At all relevant times herein, defendants were “persons” for purposes of 42
U.S.C. § 1983 and acted under color of law to deprive plaintiffs of their federal rights,
as set forth fully below.
VI. Statement of Facts
(18) [State here fully but briefly your case’s facts. Describe how each defendant is
involved. The facts should be in clear, chronological order, like you are telling a story.
Try starting each paragraph with the date of the events you are describing. Include
the names of persons involved, dates and places. Do not give legal arguments or cite
cases or statutes.xvi If you are alleging several related claims, number and explain
each in separate paragraphs. Use as much space as you need. Attach extra sheet(s) if
necessary. See the full sample complaint in Appendix A-8.]
VII. Prayer for Relief
[State briefly exactly what you want the court to do for you. Make no legal arguments.
Cite no cases or statutes. Some sample things you might want are:]
(19) Plaintiffs request an order declaring that the defendants have acted in
violation of the United States Constitution.
(20) Plaintiffs request an injunctionxvii compelling defendants to provide or stop
_________.
(21) Plaintiff requests $ ___as compensatory damages.
Signed this _ day of _____ , 20_ .
______________________________________
[Name of Plaintiff]
I declare under penalty of perjury that the foregoing is true and correct.
______________________________________
PLAINTIFF’S NAME
____________________________
DATE
A-3. FORM FOR AN AFFIDAVIT323
This form is for plaintiffs, other prisoners, or anyone else who wants to make a sworn
statement on behalf of plaintiffs.

For the______________________xviii
————————————————————x
[Name of First Prisoner in :
Complaint],xix et al., :
Plaintiffs, :
: AFFIDAVIT
v. :
:
[Name of First Defendant in : Civil Action No.____ xx
Complaint],xxi et al. :
Defendants. :
————————————————————x
AFFIDAVIT OF [Name of person making statement]

I, [Full name of prisoner or other person making the statement], being duly sworn
according to the law depose and say [that I am the Plaintiff in the above entitled proceeding].
[Write statement here. Use numbered paragraphs.]
All of the information I have submitted [in support of my request, Plaintiff’s case, etc.] is
true and correct.
_____________________________________________
Sign Here Before Notary Public
Sworn to before me this

____ day of ____ , 20__ .
_______________________xxii
NOTARY PUBLIC
323. See, e.g., U.S. District Court, EDNY, Affidavit in Support of Application for Appointment of
Counsel, available at http://www.nyed.uscourts.gov/General_Information/Court_Forms/apptcnsl.pdf.
A-4. ORDER TO SHOW CAUSE AND TEMPORARY RESTRAINING
ORDER (“TRO”)324
Be sure to submit, along with this paper, an affidavit (Form A-3) stating how you will be
hurt if you do not get temporary relief and how you tried to notify the defendants of your
request for temporary relief.

For the______________________xxiii
————————————————————x
[Name of First Prisoner in :
Complaint, et al., :
Plaintiffs, :
: Order to Show Cause for
v. : Preliminary Injunction and
: Temporary Restraining Order
[Name of First Defendant in :
Complaint, et al. : Civil Action No.____
Defendants. :
————————————————————x
Upon the complaint, supporting affidavits of plaintiffs sworn to the ____ day of _____,
20___, and the memorandum of law submitted herewith, it is:
ORDERED that the above named defendants [names of defendants against whom you
need immediate court action] show cause in room ____ of the United States Courthouse,
[address] on the __day of ____ , 20__ , at _ o’clock,xxiv or as soon thereafter as counsel may be
heard, why preliminary injunction should not issue pursuant to Rule 65(a) of the Federal
Rules of Civil Procedure enjoining the defendants, their successors in office, agents, and
employees, and all other persons acting in concert and participation with them, from [a
precise statement of the actions you want the preliminary injunction to cover].
IT IS FURTHER ORDERED that effective immediately, and pending the hearing and
determination of this order to show cause, the defendants [names of defendants against
whom you want temporary relief] and each of their officers, agents, employees, and all
persons acting in concert or participation with them, are restrained from [statement of
actions you want the preliminary injunction to cover].
IT IS FURTHER ORDERED that personal service of a copy of this order and annexed
affidavit upon the defendant(s) or his counsel on or before [date], shall be deemed good and
sufficient service thereof.
[leave this space blank for judge’s signature]

_________________________________________
Dated: [leave blank]
United States District Judge
324. See, e.g., U.S. District Court, SDNY, Order to Show Cause for Preliminary Injunction and
Temporary Restraining Order (1999), available at
http://www1.nysd.uscourts.gov/cases/show.php?db=forms&id=14 (last visited Sept. 7, 2008); John W.
Witt, et al., Section 1983 Litigation: Forms 4-1, 4-2, 252–54 (1994).
A-5. IN FORMA PAUPERIS (“IFP”) PAPERS325
You should ask for this form from the district court clerk where you will file. They will
also send you the paperwork (A-7, “Prisoner Authorization,” below) to fill out regarding your
prison account as the Prison Litigation Reform Act reqyures. Each plaintiff prisoner must fill
out IFP and Prisoner Authorization forms.
a. Notice of Motion to Proceed In Forma Pauperisxxv

For the______________________
————————————————————x
[Name(s) of the Prisoner(s) :
Who Are Bringing the Suit], :
Plaintiffs, :
: Request to Proceed
v. : In Forma Pauperis
:
[Names and Titles of All the People : Civil Action No.____ xxvi
and Other Entities Whom You Are :
Suing] :
Defendant. :
————————————————————x
PLEASE TAKE NOTICE, that upon the declaration [or affidavit or affirmation] of [your
name], sworn to on the ________ day of __________, 20__, a motion will be made at a term of
this court, for an order permitting plaintiff to pursue this action as a poor person, upon the
ground that said plaintiff has insufficient income and property to enable [him/her] to pay the
costs, fees, and expenses to pursue said action, and for such other and further relief as this
Court may deem just and proper.
Signed this ___ day of ______, 20__.
_____________________________________________
(Signature of Plaintiff)
To: ___________________________
Clerk
United States District Court For the __________________xxvii
b. Declaration in Support of Request to Proceed In Forma Pauperisxxviii

DECLARATION IN SUPPORT OF REQUEST TO
PROCEED IN FORMA PAUPERIS326
For the _________ xxix
————————————————————x
[YOUR NAME IN CAPITAL LETTERS] :
325. See, e.g., U.S. District Court, EDNY, In Forma Pauperis Form-Prisoner (2002), available at
http://www.nyed.uscourts.gov/General_Information/Court_Forms/ifppris.pdf; John W. Witt, et al.,
Section 1983 Litigation: Forms 7-1, 310 (1994).
326. See, e.g., U.S. District Court, SDNY, Declaration in Support of Request to Proceed In Forma
Pauperis (1999), available at http://www1.nysd.uscourts.gov/forms/pleadings_and_motions/ifpreq.pdf.
:
:
(Petitioner/Plaintiff) :
:
:
:
[RESPONDENT’S NAME IN ALL CAPS] :
:
(Respondent(s)/Defendant(s)) :
:
————————————————————x
I, [Your Name], am the petitioner/plaintiff in the above entitled case. In support of my
motion to proceed without being required to prepay fees or costs or give security therefore, I
state that because of my poverty I am unable to pay the costs of the said proceeding or to give
security therefore, that I believe I am entitled to redress.
I declare that the responses which I have made below are true.
1. If you are presently employed, state the amount of your salary wage per month, and
give the name and address of your last employer. YOU MUST ANSWER THIS QUESTION
EVEN IF YOU ARE INCARCERATED.
2. If you are NOT PRESENTLY EMPLOYED, state the date of last employment and
amount of the salary per month that you received AND how long the employment lasted.
YOU MUST ANSWER THIS QUESTION EVEN IF YOU ARE INCARCERATED. IF YOU
HAVE NEVER BEEN EMPLOYED, SAY SO.
3. Have you ever received, within the past twelve months, any money from any of the
following sources?
(a) Business, profession, or form of self-employment? YES NO
(b) Rent payments, interest, or dividends? YES NO
(c) Pensions, annuities, or life insurance payments? YES NO
(d) Gifts or inheritances? YES NO
(e) Any form of public assistance? YES NO
(f) Any other sources? YES NO
If the answer to any of the questions (a) through (f) is yes, describe each source of money
and state the amount received from each during the past months.
4. Do you own any cash or do you have money in a checking or savings account? Include
any funds in prison accounts.
__If the answer is yes, state the total value owned.
5. Do you own any real estate, stock, bonds, notes, automobiles, or other valuable
property (including ordinary household furnishings and clothing)?
___If the answer is yes, state the total value owned.
6. List the person(s) who are dependent upon you for support, state your relationship to
those person(s), and indicate how much you contribute toward their support at the present
time.
7. If you live in a rented apartment or other rented building, state how much you pay
each month for rent. Do not include rent contributed by other people.
8. State any special financial circumstances which the court should consider in this
application.
I understand that a false statement or answer to any questions in this declaration will
subject me to the penalties of perjury.
I declare under penalty of perjury that the foregoing is true and correct.
Signed this ____ day of ___ , 20___.
_____________________________________________
(signature)
_______________________________________
Social Security No.
_______________________________________
Date of birth
A-6. APPLICATION FOR APPOINTMENT OF COUNSEL327
For the _________ xxx
————————————————————x
[YOUR NAME IN CAPITAL LETTERS] :
: APPLICATION
: FOR APPOINTMENT
(Petitioner/Plaintiff) : OF COUNSEL
:
: No. _______xxxi
:
[RESPONDENT’S NAME IN ALL CAPS] :
:
(Respondent(s)/Defendant(s)) :
:
————————————————————x
(1) Your Name and Mailing Address _____________________________________________xxxii

(2) Explain why you feel you need a lawyer in this case. (For example, you don’t know
the law well, you don’t have access to the law library, you have a disability, your case
is very complicated, etc. Use additional paper or include an affidavit supporting your
application if necessary.)xxxiii
(3) Explain what steps you have taken to find an attorney and with what results. (Use
additional paper if necessary.)
(4) If you need a lawyer who speaks in a language other than English, state what
language you speak: ____________________________
I declare under penalties of perjury that my answers to the foregoing questions are true
to the best of my knowledge.
I understand that if I am assigned a lawyer and my lawyer learns, either from myself or
elsewhere, that I can afford a lawyer, the lawyer may give this information to the court.
I understand that if my answers on my application to Proceed in Forma Pauperis [or
Affidavit in Support of Application for Appointment of Counsel] are false, my case can be
dismissed.
I understand that making this application does not excuse me from litigating my case,
and that it is still my responsibility to have the defendants served with a summons and
complaint, if I have not already done so.
Dated: ___________________
_____________________________________________
[Your Signature]
327. See, e.g., U.S. District Court, EDNY, Application for Appointment of Counsel, available at
http://www.nyed.uscourts.gov/General_Information/Court_Forms/apptcnsl.pdf; John W. Witt, et al.,
Section 1983 Litigation: Forms 7-3, 7-4 312–13 (1994).
A-7. PRISONER AUTHORIZATION328
This is the form that should be sent to you after you submit your complaint to the district
court. If you do not receive it within two weeks of submitting your complaint, you should copy
the information found here and send it to the court so that your complaint is not dismissed
because you did not comply with the Prison Litigation Reform Act.
*****************************************************************************
Mailed to the Plaintiff by the Court on this date:
RE:________ v._______
NOTICE IS HEREBY GIVEN THAT THIS ACTION WILL BE DISMISSED UNLESS

PLAINTIFF COMPLETES AND RETURNS THIS AUTHORIZATION FORM TO THIS
COURT WITHIN FORTY-FIVE DAYS FROM THE DATE OF THIS NOTICE.
On April 26, 1996, the Prison Litigation Reform Act (“PLRA” or “Act”) was signed into law.
This Act amends the in forma pauperis statute (28 U.S.C. Section 1915) and requires you to
pay the full filing fee when bringing a civil action if you are currently incarcerated or
detained in any facility. If you do not have sufficient funds in your prison account at the time
your action is filed, the Court must assess and collect payments until the entire filing fee of $
xxxiv has been paid, no matter what the outcome of the action.
*********************************************************************************
SIGN AND DATE A COPY OF THE FOLLOWING AUTHORIZATION:

I, ______________ , request and authorize the agency holding me in custody to send to the
Clerk of the United States District Court for the _____ xxxv a certified copy of my prison
account statement for the past six months. I further request and authorize the agency
holding me in custody to calculate the amounts specified by 28 U.S.C. Section 1915(b), to
deduct those amounts from my prison trust fund account (or institutional equivalent), and to
disburse those amounts to the United States District Court for the ____________________.xxxvi
This authorization shall apply to any agency into whose custody I may be transferred.
I UNDERSTAND THAT BY SIGNING AND RETURNING THIS NOTICE TO THE

COURT, THE ENTIRE COURT FILING FEE OF $______ xxxvii WILL BE PAID IN
INSTALLMENTS BY AUTOMATIC DEDUCTIONS FROM MY PRISON TRUST
FUND ACCOUNT EVEN IF MY CASE IS DISMISSED.
_____________________________________________
Signature of Plaintiff
_____________________________________________
Date Signed
State I.D. #
Local Prison I.D. #
Federal Bureau of Prisons I.D. #
328. See, e.g., U.S. District Court, EDNY, In Forma Pauperis Form-Prisoner 3 (2002), available
at http://www.nyed.uscourts.gov/General_Information/Court_Forms/ifppris.pdf.
A-8. SAMPLE FULL COMPLAINT
The following is a sample full complaint. DO NOT COPY ANY OF THESE as your
facts will be different than this example. NOTE, you will want to DOUBLE SPACE the
body of your complaint. This complaint is single spaced.
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF STATE
————————————————————x
:
Scott Martin, :
:
Plaintiff, : COMPLAINT
v. :
: Jury Trial Demanded
Captain Jack Williams, :
Sergeant John Doe, Acting :
Sergeant Joseph Franks, : No. 12345
Correctional Officer Steve Doe, :
Dr. Stanley Thomas, Correctional :
Officer Ronald C. Smith, and :
Warden Justin A. Kent, individually :
and in their official capacities. :
:
Defendants. :
————————————————————x
PLAINTIFF’S SECOND AMENDED COMPLAINT

Plaintiff Scott Martin, by his attorneys, for his second amended complaint against
defendants Captain Jack Williams, Sergeant John Doe, Acting Sergeant Joseph Franks,
Correctional Officer Steve Doe, Dr. Stanley Thomas, Correctional Officer Ronald C. Smith,
and Warden Justin A. Kent, alleges as follows:
JURISDICTION AND VENUE

1. This Court has jurisdiction over this action under 28 U.S.C. Sections 1331
and 1343(3) and (4). The matters in controversy arise under 42 U.S.C. Section 1983.
(a) Venue properly lies in this District pursuant to 28 U.S.C. Section 1391(b)(2), because
the events giving rise to this cause of action occurred at Plaineville Correctional
Center (“Plaineville”) in City, State, which is located within the Northern District of
State.
PARTIES
3. Plaintiff Scott Martin is and was, at all times relevant hereto, a prisoner in the
custody of the State Department of Corrections (“SDOC”). At the time of the events relevant
hereto, Martin was incarcerated at Plaineville. Martin is currently incarcerated at the
Smithville Correctional Center (“Smithville”).
4. Defendant Jack Williams is an SDOC officer with the rank of captain, who at all
times relevant hereto was assigned to Plaineville.
5. Defendant Dr. Stanley Thomas was, at all times relevant hereto, a physician
employed or retained by SDOC to provide medical services at Plaineville.
6. Defendant Sergeant John Doe is an SDOC officer with the rank of Sergeant, who at
all times relevant hereto was assigned to Plaineville.
7. Defendant Acting Sergeant Joseph Franks was, at all times relevant hereto, a
correctional officer at Plaineville, who at the time of the events described below was serving
as an acting sergeant.
8. Defendant Officer Steve Doe was, at all times relevant hereto, a correctional officer
at Plaineville.
9. Defendant Ronald C. Smith was, at all times relevant hereto, a correctional officer at
Plaineville.
10. Defendant Justin A. Kent was, at all times relevant hereto, Warden of Plaineville. As
Superintendent of the prison, Defendant manages its day-to-day operations and executes its
policies.
PREVIOUS LAWSUITS BY PLAINTIFF

11. Plaintiff has filed no other lawsuits dealing with the same facts involved in this
action or otherwise relating to his/her imprisonment.
EXHAUSTION OF ADMINISTRATIVE REMEDIES

[Read Chapter 14 of the JLM, “The Prison Litigation Reform Act.”]
FACTS
12. On or about January 1, 2003, plaintiff was assigned to and resided in cell 1, Unit 1,
at Plaineville with his cellmate, Mr. Joshua Nixon (“Nixon”).
13. On several occasions prior to January 1, 2003, plaintiff informed defendant Williams
that he feared for his personal health and safety due to serious conflicts he was having with
Nixon, and plaintiff requested that one of them be transferred as soon as possible.
14. Prior to January 1, 2003, plaintiff wrote a letter to defendant Williams that again
informed Williams of his fear for his personal health and safety due to the situation between
plaintiff and Nixon and asked that plaintiff be transferred from the cell.
15. On January 1, 2003, Nixon also made a request to defendant Williams for a cell
transfer due to conflicts between himself and plaintiff. Defendant Williams denied the
request.
16. On January 1, 2003, plaintiff personally asked defendant Williams if he could be
transferred from his cell because he feared for his personal health and safety due to conflicts
between himself and Nixon. Defendant Williams refused plaintiff’s request.
17. On January 1, 2003, Nixon asked Correctional Officer Washington whether he could
be transferred from his cell to an adjoining cell occupied only by Charles Jones, because he
and plaintiff were having serious problems living together. Officer Washington agreed to
make such a transfer. However, without explanation, defendant Sergeant John Doe refused
to permit Officer Washington to supervise the move.
18. Charles Jones also discussed with both Officer Washington and defendant Williams
Nixon’s request for a move into Jones’s cell, and he notified Washington and Williams that
he was not opposed to Nixon moving into his cell.
19. On January 1, 2003, the same day that plaintiff and Nixon repeatedly asked various
correctional officers at Plaineville for a cell transfer, the two engaged in a verbal argument
about the volume level of Nixon’s radio. A few hours later, plaintiff was sleeping when he
heard his cellmate making noise. Plaintiff awoke to see Nixon putting on his boots. After
Nixon had put on his boots, he attacked plaintiff without provocation. Nixon struck plaintiff
numerous times, causing injuries to his eyes, nose, mouth, and chest. Nixon also used
various objects to strike plaintiff, including the radio and a property box. During the attack,
Nixon stomped on plaintiff’s bare feet with his heavy boots, causing injury to plaintiff’s feet.
20. As Nixon beat him, plaintiff yelled for a “med tech” and summoned prison officials for
assistance via a buzzer in his cell. When Acting Sergeant Franks and Correctional Officer
Steve Doe arrived, they refused to open the cell door while plaintiff was being attacked. The
two officers acknowledged to plaintiff that they saw that he was being attacked but failed to
intervene until later.
21. Immediately following this assault, plaintiff was taken to the emergency room at
Plaineville Hospital. Plaintiff suffered from cuts and lacerations on his body and his face, as
well as multiple bruises and swelling on his face and body. Plaintiff was informed by medical
personnel that a deep, 1.25 inch cut in his mouth required stitches. In addition, plaintiff was
given an X-ray to determine whether or not his nose was broken, but the amount of blood in
plaintiff’s nose rendered the X-ray inconclusive.
22. Despite the severity of his injuries and the excruciating pain plaintiff suffered as a
result of these injuries, only two Tylenol were administered to plaintiff after the attack.
Plaintiff endured severe pain throughout the night from his extensive injuries. The next day,
despite the serious pain, Dr. Thomas prescribed only Motrin for pain relief. Although
plaintiff’s pain was not alleviated, no stronger pain killer was administered.
24. Notwithstanding the opinion of other medical personnel that plaintiff required
stitches, defendant Dr. Thomas refused to administer any stitches for the deep cut in
plaintiff’s mouth. He instead told a colleague that plaintiff was “a crybaby” and discharged
him from any further care. Despite plaintiff’s repeated requests, defendant Dr. Thomas
refused to arrange for any follow-up care for his injuries.
25. At plaintiff’s request, he was given a pass permitting him to return to the Hospital
the following day for follow-up medical care, but he was never called to return to the
Hospital. Plaintiff wrote to defendants Warden Kent and Dr. Thomas to tell them that he
had not been taken back to the Hospital for follow-up treatment for his injuries and to
request such treatment, but he never was sent back to the Hospital for follow-up care. The
only further action any member of the prison staff took with respect to plaintiff’s injuries was
to advise plaintiff in the future to avoid going to sleep before resolving disagreements with a
cellmate.
26. Following his visit to the emergency room, plaintiff continued to suffer from migraine
headaches, dizziness, and general physical pain as a result of his injuries. He continued to
bleed from the unstitched cut in his mouth for days afterwards, making it difficult or
impossible to eat.
27. Soon after, plaintiff filed a grievance and a civil suit against the above-named
defendants for their deliberate indifference to harm caused to him throughout the
above-mentioned period.
28. After filing the civil suit, plaintiff was the target of harassment and retaliation from
both defendant Williams and defendant Smith.
29. On January 14, 2004, plaintiff exited his cell and approached defendant Smith to ask
him when lunch was being served. Defendant Smith stuck out his arm and threw plaintiff
backwards, nearly causing him to fall. Plaintiff then approached defendant Williams, who
witnessed the event, to ask him if he would let this act go without reprimand. Defendant
Smith then threatened plaintiff by telling him that “next time, I will bust your head.” To
this, defendant Williams responded to plaintiff, “you know what you’ve got to do, take care of
your business.” On subsequent occasions, defendant Smith verbally harassed plaintiff for
filing grievances and lawsuits.
30. Defendant Williams also harassed plaintiff in retaliation for grievances plaintiff had
filed against Williams. For example, on February 1, 2004, during an alcohol “shake down,”
plaintiff and only two other prisoners were forced to submit to a strip search, even though
plaintiff had never had an alcohol violation, nor had he ever failed any drug test
administered by the prison.
31. Similarly, on March 12, 2004, defendant Williams loudly berated plaintiff from the
gallery for accusing him of being a racist in one of the grievances plaintiff had filed against
him. Defendant Williams then approached plaintiff’s cell, opened the cell door, and told
plaintiff that he does not harass prisoners and only tries to help and protect them. In doing
so, Williams used the precise language that plaintiff had used in his grievance against
Williams, thus emphasizing that he was acting in retaliation for the grievance.
COUNT ONE: BREACH OF DUTY TO PROTECT

32. Defendant Williams exercised deliberate indifference to plaintiff’s health and safety
by failing to protect him from a prison attack even though he had been informed of a threat
to plaintiff’s health and safety. Defendant Williams received repeated requests, oral and in
writing, from both plaintiff and his cellmate, Nixon, for a cell transfer due to conflict between
the two and refused to act upon them. Defendant Williams’ deliberate indifference to
plaintiff’s health and safety was further demonstrated when he spoke to plaintiff the day
after plaintiff had been attacked and laughed at plaintiff’s injuries.
33. Defendant Sergeant John Doe exercised deliberate indifference to plaintiff plaintiff’s
health and safety by refusing, for no reason, to authorize a cell transfer of either plaintiff or
Nixon to an available cell, when he knew that there were serious conflicts between plaintiff
and Nixon and that plaintiff’s health and safety were at risk.
34. Defendants Acting Sergeant Franks and Correctional Officer Steve Doe exercised
deliberate indifference to plaintiff’s health and safety by failing immediately to protect
plaintiff from an attack by his cellmate as soon as they knew it was occurring. Instead, these
defendants merely acknowledged to plaintiff that they saw the attack and, despite seeing
that plaintiff had suffered and was suffering serious injuries, the defendants failed to stop
the attack immediately.
35. As a result of the deliberate indifference exercised by the aforementioned defendants,

plaintiff suffered serious harm at the hands of his cellmate. Plaintiff sustained multiple
physical injuries, including deep cuts in his mouth and upon his face, bruises upon his face
and body, as well as migraine headaches and dizziness. Plaintiff also suffered extreme
emotional distress from the incident.
COUNT TWO: FAILURE TO ADMINISTER ADEQUATE MEDICAL

REMEDY
36. Defendant Dr. Thomas exercised deliberate indifference to plaintiff’s health by failing
to provide adequate medical care to him following the attack by Nixon. Defendant Dr.
Thomas intentionally did not administer stitches to a deep cut in plaintiff’s mouth and
refused to fulfill any of plaintiff’s requests for follow-up care. Instead, defendant Dr. Thomas
mocked plaintiff in front of other medical personnel.
37. As a result of Dr. Thomas’s deliberate indifference to plaintiff’s condition, plaintiff

suffered further pain and mental anguish. He continued to suffer from migraine headaches
and general pain throughout his body, and Dr. Thomas refused to provide adequate pain
medication for plaintiff. In addition, plaintiff was unable to eat properly for days after
receiving care from defendant Dr. Thomas, because the unstitched cut in his mouth did not
properly heal.
COUNT THREE: RETALIATORY TREATMENT

FOR FILING SECTION 1983 CLAIM AND FOR FILING GRIEVANCES
38. Almost immediately after plaintiff filed grievances against him, defendant Williams
repeatedly harassed and caused harm to plaintiff in retaliation for the grievances. Defendant
Williams forced plaintiff to submit to a strip search, even though he had no reason to do so.
Defendant Williams came on the gallery and loudly berated plaintiff for allegations he made
in one of the grievances filed against Williams.
39. After plaintiff filed a civil rights action against defendant Williams, plaintiff suffered
retaliation by defendants Williams and Smith. When plaintiff approached defendant Smith
to speak with him, defendant Smith stuck his arm out straight and struck plaintiff, throwing
him backward and nearly knocking him down. Defendant Williams looked on and failed to
correct or chastise defendant Smith as a result of this battery, merely warning plaintiff that
“you know what you’ve got to do, take care of your business.”
40. A few months later, after plaintiff had filed a grievance against defendants Smith
and Williams for the above incident, Officer Smith verbally harassed plaintiff in retaliation
for plaintiff’s filing of the grievance. Defendant Smith told plaintiff that he “was the type who
liked to file grievances and that it didn’t matter if [Martin] filed a [lawsuit] because [Martin]
wasn’t going to be getting any money and that nothing [was] going to be done.”
41, These acts represent a pattern of events demonstrating intentional retaliation

against plaintiff by defendants Williams and Smith for filing grievances and a civil rights
action and have caused plaintiff further mental anguish as a result.
WHEREFORE, Scott Martin prays for judgment in his favor and damages in his favor
against all defendants in an amount sufficient to compensate him for the pain and mental
anguish suffered by him due to the deliberate indifference and intentional misconduct of
defendants, but in no event less than $300,000, together with his attorneys’ fees and costs,
and such additional relief as the Court may deem just and proper.
Respectfully submitted,
_____________________________________________
Scott Martin, Plaintiff
Fill in the forms shown in Appendix A as follows:
i. Name of the federal district in which your prison is located and the alleged violation occurred, for
example, “Southern District of New York” or “District of Colorado.”
ii. Leave this blank. This entry will be filled in by the clerk of the court where you file the form.
iii. See Section C(2) of this Chapter for information on whom to name as proper defendants.
iv. Your complete prison address.
v. Name of the federal district in which your prison is located and the alleged violation occurred, for
vi. Leave this blank. This will be filled in by the clerk of the court where you file the form.
vii. See Section C(2) of this Chapter for information on whom to name as proper defendants.
viii. Add “as a pretrial detainee” if that applied to you at the time about which you are complaining.
ix. If you do not know the names of the defendants, you should refer to them as either John or Jane
Doe. See Section C(2) for more information.
x. In this and the following paragraphs, use the descriptions and titles of defendants that are correct
for your case.
xi. Include the type of prison about which you are complaining, such as federal or state correctional
institute.
xii. Use the name of whatever part of the Constitution or federal statute that protects your rights, such
as the Eighth Amendment or Section 1983.
xiii. Fill in the name of the District and State where you are filing, for example, “Southern District of
New York” or “District of Colorado.”
xiv. Use this paragraph if you have never filed a lawsuit before.
xv. Whether you will need to include this section and what you will need to include in it varies greatly
depending on where you are filing your lawsuit. For an explanation of how to indicate to the court that
you exhausted your administrative remedies, see Chapter 14 of the JLM, “The Prison Litigation
Reform Act.” Pay particular attention to whether the courts in your jurisdiction require you to plead
and prove in your complaint that you exhausted the administrative grievance procedures available to
you. Depending on where you are, you may be able to omit this section entirely. However, in some
circuits, like the 6th Circuit, you will need to include quite a bit of information in this section.
xvi. You should try to write the facts in such a way that they satisfy the appropriate legal standard.
See Appendix A-8 for a full sample complaint.
xvii.An order from the court making the defendants do or stop doing something.
xviii. Name of the federal district in which your prison is located and the alleged violation occurred,
for example, “Southern District of New York” or “District of Colorado.”
xix. Your name.
xx. Leave this blank.
xxi. The name of the first defendant against whom you are bringing suit.
xxii.Leave blank. You should have this affidavit notarized. The notary public will fill in the date here.
xxiii. Name of the federal district in which your prison is located and the alleged violation occurred,
xxiv. Leave these blank. The court clerk will fill these in.
xxv. This format is only a sample. You should request what is usually called a T-1080 Form of Motion
from the court and use it to make your motion to file in forma pauperis.
xxvi. Leave this blank. This entry will be filled in by the clerk of the court where you file the form.
xxvii. of the federal district in which the prison in which the alleged offense occurred is located, for
xxviii. The Prison Litigation Reform Act (“PLRA”) requires you to submit a certified copy of your
prison account statement showing your balance for the last six months along with this declaration. For
more information on complying with the PLRA, see Chapter 14 of the JLM, “The Prison Litigation
Reform Act.”
xxix. Name of the federal district in which your prison is located and the alleged violation occurred,
xxx. Name of the federal district in which your prison is located and the alleged violation occurred, for
xxxi. Leave this blank. The clerk of the court will write in a number.
xxxii. Your name.
xxxiii. The most obvious reason prisoners need legal representation is that § 1983 claims involve
complex legal issues that are difficult to understand and litigate effectively for non-lawyers.
xxxiv. Filing fees may differ depending upon the federal district court in which you file your claim.
xxxv. Fill in the district in which the court is located, such as “Southern District of New York” or
“District of Colorado.”
xxxvi. Once again, fill in the federal district in which the court is located.
xxxvii. Fill in the fee charged by the district court in which your case is filed.
Manual
Chapter 17:
The State’s Duty to Protect You
and Your Property: Tort Actions

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 17
THE STATE’S DUTY TO PROTECT YOU AND YOUR PROPERTY: TORT

ACTIONS*
A. Introduction
This Chapter explains your rights to protect your body and your property while you are
in prison, and the steps you can take if you believe someone has violated those rights. Part B
of this Chapter will introduce you to the general law of personal injury, called tort law. It
covers injuries caused by excessive force, the failure of prison officials to protect you from
other prisoners, improper or inappropriate medical care and poorly maintained facilities.
Part B also covers compensation for damages or destruction of your personal property. Part C
of this Chapter will help you determine who, if anyone, you may sue regarding your injury.
Part C also addresses where you should pursue your claim, starting with your institution’s
administrative remedies, and, once you have exhausted those remedies, which courts you can
use and the types of relief you can obtain. Part D explains, step-by-step, how to proceed with
your case, from filing the right papers in the right place, to obtaining evidence and, if
necessary, appealing a decision. Part D is very important because if you wait too long to file a
claim or file your claim in the wrong place, you could lose your case before it begins. Keep in
mind prisoners face additional hurdles when trying to recover for injuries obtained in prison.
At the end of this Chapter there is an Appendix with examples of forms you may need to
fill out and submit at various stages of the court process.
JLM Chapter 24, “Your Right To Be Free From Assault,” gives more information about
excessive force by correction officers and failure to protect you from attacks by other
prisoners. If you believe you have been assaulted in a prison, Chapter 24 will explain your
rights and action you can take.
Please note that this Chapter details the procedures to follow under New York State law.
Prisoners outside New York State should use this Chapter to learn about the basic concepts
of tort law, and then do careful research about their own state’s laws. Chapter 2 of the JLM,
“Introduction to Legal Research,” will help you perform this task.
B. Know Your Rights: Tort Actions
The law recognizes that, in general, people have a duty not to injure one another, and not
to damage or destroy one another’s property. When someone breaks that duty, that breach is
called a “tort.”1 A tort can be either intentional or negligent. An intentional tort is when one
person hurts another person on purpose. A negligent tort, on the other hand, is when one
person fails to do something they should have done, and this failure causes someone else to
be hurt or someone else’s property to be damaged. The person who commits a tort, whether
intentionally or through negligence, is called a “tortfeasor.”2
Once you determine that you have suffered a tort, you must decide whether it was an
intentional or negligent tort. This decision will be important in determining what you will
have to prove to the court in order to win your case.
* This Chapter was revised by Jonathan Gant, based on previous versions by Alison Fischer, Sandy
Santana, Mathew Strada, Elizabeth Galani, Vanessa Armstrong, Deirdre Bialo-Padin, and members of
the 1977 Columbia Human Rights Law Review. Special thanks to Lanny E. Walter, Esq. of Walter,
Thayer & Mishler, P.C. for his valuable comments.
1. Black’s Law Dictionary 1526 (8th ed. 2004).
1. Intentional Torts
Intentional torts are fairly easy to understand but not always easy to prove. The
tortfeasor must intend to hurt you or damage your property, and be successful in doing so. To
prove an intentional tort, you must prove both of these two elements—sometimes called the
“intent prong” and the “result prong.” For example, if you were alleging the common tort of
battery—an illegal, intentional touching that causes injury3—you would have to prove 1) that
the tortfeasor intended to touch you in a way that would injure you, and 2) that he actually
succeeded in touching and injuring you. Other examples of intentional torts against people
include assault, false arrest, false imprisonment, intentional infliction of emotional distress,
libel, and slander. Intentional torts against property include trespass4 (wrongful entry) and
conversion (taking something that doesn’t belong to you and acting like it’s yours).5
2. Negligent Torts
The biggest difference between intentional torts and negligent torts is the state of mind
of the person who caused the injury. Unlike an intentional tortfeasor, a negligent tortfeasor
creates an unreasonably unsafe situation, either because he has failed to do something he
should have done or because he has done something an ordinary person would not do, not
because he meant to. When this unreasonable behavior causes injury or destruction of
property, we call it a negligent tort.6
To prove that someone is responsible for a tort in negligence, you must first show that
the tortfeasor had a responsibility to keep you from being injured, called a “duty of care.”
Second, you must show the tortfeasor didn’t fulfill his responsibility—that he “breached” his
duty of care. Third, you must show that your injury was “foreseeable”—that a reasonable
person would have known the situation he created was one that could cause this type of
injury. Finally, you must show that a reasonable person would not have acted the way the
person you are accusing of the tort acted. You may need to show that a reasonable person
would have taken more precautions to prevent your injury or would not have taken the
actions the tortfeasor did.
(a) Duty and Breach
Whether or not someone owes you a duty of care depends on the particular situation and
your relationship to that person. For example, a supervisor in a job owes you a duty of care to
maintain a safe workplace, and you can therefore sue him if he fails to do so. A coworker,
however, does not owe you that duty, and you could not sue him, even if he gave you a piece
of defective equipment and you got injured using it. To decide whether or not the person
responsible for your injuries owed you a duty of care, you can look to what other courts have
said about similar situations. The cases mentioned in the footnotes of this Chapter are good
places to start your research.
There may also be laws in your state that define what duties individuals owe each other
in certain situations and what actions or inactions count as breaches of those duties. The
type of negligence that is defined by a law or statute is called “negligence per se.”7
Generally, as a prisoner, the state and its employees owe you a duty of care. But, to make
sure that the state or a state employee owes you such a duty in your case, you will have to
look for cases or laws that apply to your specific situation.

6. Negligence is defined as the “[t]he failure to exercise the standard of care that a reasonably
prudent person would have exercised in a similar situation.” Black’s Law Dictionary 1061 (8th ed.
2004). See also Black’s Law Dictionary 1527 (8th ed. 2004) (defining “negligent tort”).
(b) Reasonableness and Foreseeability
In court, ordinary words like “reasonable” and “foreseeable” have special legal meanings.
You should look to cases with facts like yours to determine how courts would define those
terms in your case. As with a duty of care, certain written laws and statutes may define
standards of reasonableness and foreseeability.
To determine whether your injury was foreseeable and whether the alleged tortfeasor
acted reasonably, courts will examine the situation before you were injured. This is called an
“ex ante” perspective. You must show your injury was predictable apart from the fact that
you ended up injured; in other words, you cannot use the fact that you were injured to show
an injury was foreseeable.
(c) Checklist for General Tort Claims
Before filing a tort claim, make sure your case can establish the following elements:
(1) In the case of an intentional tort:
(a) The person causing the injury meant to cause it; and
(b) The person causing the injury had no established right to do what he or she did.8
(2) In the case of a negligent tort:
(a) The person causing the injury could have prevented the harm when the injury
happened; and
(b) The person’s actions or failure to act directly resulted in harm to you or your
property; and
(c) If the person causing the injury is a state or prison employee, he or she, in his or
her official capacity, owed you a greater duty of care than you received.9
(3) In both intentional and negligent torts, you must prove actual injury.
(a) It is not enough to show a prison official intended to harm you if you were not
actually injured.
(b) You must show signs of injury to your body, or proof of loss or damage to your
property. Medical records will be helpful in proving this element. It is possible to
show that emotional distress you have suffered is an actual injury, but this is
very difficult. The act necessary to produce such emotional distress must be
“extreme and outrageous.”10
3. Constitutional Torts
The violation of your constitutional rights is an additional type of tort. The state officers
and employees you encounter have the same duties of care and duties not to harm you or
your property intentionally as all other citizens. However, because they are state actors,
these individuals also have a duty not to violate your federal or state constitutional rights.
You should read JLM Chapter 13 “Federal Habeas Corpus” and Chapter 16 “Using 42 U.S.C.
8. See, e.g., N.Y. Correct. Law § 137(5) (McKinney 2003) (“No inmate … shall be subjected to
degrading treatment, and no officer or other employee … shall inflict any blows … upon any inmate,
unless in self-defense, or to suppress a revolt or insurrection.”). Thus, if a guard hit you and was not
acting in self-defense, the guard would be acting outside the scope of granted authority.
9. See, e.g., Kagan v. State, 221 A.D.2d 7, 11, 646 N.Y.S.2d 336, 339 (2d Dept. 1996) (finding
State liable for failure of prison employees to bring complaining prisoner to see nurse in a timely
fashion, and of the nurse to refer prisoner to a physician, when both actions were required by prison
regulations).
10. See, e.g., Shenandoah v. Hill, 9 Misc. 3d 548, 553, 799 N.Y.S.2d 892, 896–97 (N.Y. Sup. Ct.
2005) (defining extreme and outrageous behavior as conduct “so outrageous of character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community”) (citing Howell v. New York Post Co., 81 N.Y2d 115, 612
N.E. 699 (1993)).
§1983 and 28 U.S.C. §1331 to Obtain Relief from Violations of Federal Law” if you believe
your constitutional rights have been violated.
(a) Violation of State Constitutional Rights
When the state violates your rights as defined by the constitution of your state, you may
sue the state for damages.11 Part C of this Chapter explains more about choosing the right
court in which to file your claim, but if you wish to sue the State of New York, you must file
your case in the New York Court of Claims. To prove a constitutional tort against the state,
you must show that the state harmed you and that the state’s actions violated specific rights
listed in the state constitution. For example, you can sue the state government if the state
discriminated against you because of your race or religion.12
The New York Court of Appeals13 established the right to bring claims for violations of
the state constitution in the 1996 case Brown v. State. 14 But, the Brown decision only
addressed constitutional tort claims based on the equal protection and search and seizure
clauses of New York’s Constitution. 15 That court left open whether people could sue for
damages for violations of other parts of the state constitution for future courts to decide.16 So
far, only one New York court has allowed damages based on another part of the state
constitution—the cruel and unusual punishment provision.17
After Brown, courts have refused to award damages for state constitutional violations if
other remedies are available.18 This means if you can bring a common tort claim or a federal
civil rights claim under 42 U.S.C. § 1983,19 courts may not allow you to bring a constitutional
11. See Brown v. State, 89 N.Y.2d 172, 183, 674 N.E.2d 1129, 1136, 652 N.Y.S.2d 223, 230 (1996)
(“[D]amage claims against the state based upon violations of the State Constitution come within the
jurisdiction of the Court of Claims.”).
12. N.Y. Const. art. I, § 11: No person shall be denied the equal protection of the laws of this
state or any subdivision thereof. No person shall, because of race, color, creed, or religion, be subjected
to any discrimination in his civil rights by any other person or by any firm, corporation, or institution,
or by the state or any agency or subdivision of the state.
13.The New York Court of Appeals is the highest court in the State of New York. The intermediate
court is the New York Appellate Division, and the trial level court is called the New York Supreme
Court.
14. See Brown v. State, 89 N.Y.2d 172, 674 N.E.2d 1129, 652 N.Y.S.2d 223 (1996).
15. See Brown v. State, 89 N.Y.2d 172, 188, 674 N.E.2d 1129, 1139, 652 N.Y.S.2d 223, 233 (1996)
(“[W]e conclude that a cause of action to recover damages may be asserted against the State for
violation of the Equal Protection and Search and Seizure Clauses of the State Constitution.”); see also
N.Y. Const. art. I, § 11 (equal protection clause); N.Y. Const. art. 1, § 12 (search and seizure clause);
Bin Wahad v. FBI, 994 F. Supp. 237, 239 (S.D.N.Y. 1998) (stating that Brown recognized a “narrow
remedy” against the State of New York for violations of the equal protection and search and seizure
guarantees of the New York State Constitution).
16. See Augat v. State, 244 A.D.2d 835, 837, 666 N.Y.S.2d 249, 251–52 (3d Dept. 1997) (stating
damages availability under New York due process and freedom of association protections “not
specifically resolved in Brown”).
17. See De La Rosa v. State, 173 Misc. 2d 1007, 1009–10, 662 N.Y.S.2d 921, 924 (N.Y. Ct. Cl.
1997) (holding a suit for damages can be based on the cruel and unusual punishment provision in
Article I, § 5 of the New York Constitution if injunctive or declaratory relief were inadequate, and
money damages would further the constitutional purpose).
18. See Bin Wahad v. FBI, 994 F. Supp. 237, 240 (S.D.N.Y 1998) (refusing to imply a cause of
action for violation of the State Due Process Clause because plaintiffs had alternative remedies under
42 U.S.C. § 1983); see also Augat v. New York, 244 A.D.2d 835, 837, 666 N.Y.S.2d 249, 252 (3d Dept.
1997) (holding that plaintiff’s constitutional tort claims were related to existing common-law torts for
which there were adequate remedies); Remley v. State, 174 Misc. 2d 523, 527, 665 N.Y.S.2d 1005, 1009
(N.Y. Ct. Cl. 1997) (refusing to imply private right of action for violations of State Due Process Clause
under Brown analysis because plaintiff had alternative remedies under State tort law).
19. See Chapter 16 of the JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief
from Violations of Federal Law,” for more information on how to obtain relief for violations of federal
tort claim. But you can still sue the state in the Court of Claims for violations of ordinary tort
law. Since it is usually easier to prove a simple tort law claim than a constitutional claim,
your chance of success is also better under tort law.
(b) Federal Constitutional Violations
If you want to recover damages for what you believe is a violation of your rights under
the U.S. Constitution, you must file this claim in either a U.S. federal district court or in the
New York Supreme Court—not in the Court of Claims. See JLM Chapter 16, “Using 42
U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of Federal Law,” for
more information about using Section 1983 to bring a claim for violations of federal
constitutional rights. Remember that the New York State Constitution has similar
provisions to the U.S. Constitution, so you may be able to use the same facts to sue in the
Court of Claims by alleging violations of the state constitution.
4. Examples of Common Tort Actions
This Section will describe five torts that prisoners commonly experience and the
elements you must prove in court to win damages for these torts. Excessive force and failure
to protect from other inmates are two types of actions that are not included in this Chapter,
because they are covered in JLM Chapter 24, “Your Right to be Free From Assault.” You
should read these chapters if you have been assaulted by a corrections officer or if you feel
that the prison failed to protect you from assault by another prisoner. While the footnotes for
this Section include citations to relevant cases, you should use these cases only as starting
points for your research. If you use the cases cited here, you should read the full text of those
cases.
This Chapter only includes cases from New York and some federal cases. While New
York cases are not binding on the courts of any other state, the tort law of most states is very
similar to New York’s tort law. So, this group of case summaries should serve as a useful
starting point for determining the general types of claims that other states’ courts will hear.
However, you should make sure to research the law in your state so that you know which
cases to cite in your lawsuit.
Again, there are many other reasons for bringing a tort suit; the following list provides
just a few examples of possible claims. Try to look for cases with similar facts to your
situation in which the prisoner won, and use those cases to support your claim.
(a) Injuries Relating to Work and Work-Release Programs
Injuries sustained during the course of work within the prison or while on work release
are considered work injuries. Generally, tort actions under this category include the state’s
failure to provide reasonably safe equipment or the state’s failure to warn prisoners of
specific dangers they might face when they use certain equipment.20
For example, a court awarded damages to a prisoner working in an on-site prison
sawmill when he lost his fingers because of a missing safety guard on a woodchipping
machine.21 The missing safety guard violated the state’s duty to maintain safe machinery.
law under 42 U.S.C. § 1983.

20. See Kandrach v. State, 188 A.D.2d 910, 913, 591 N.Y.S.2d 868, 871 (3d Dept. 1992) (finding
that when a prisoner participates in a prison work program, the State has a duty to provide reasonably
safe equipment and warn prisoners of any potential dangers).
21. Kandrach v. State, 188 A.D.2d 910, 912, 915, 591 N.Y.S.2d 868, 870, 872 (3d Dept. 1992)
(recommending dividing damages between the prisoner and the State, since even though the State did
not provide a safe environment, the plaintiff ignored safety warnings).
Similarly, a prisoner won money for injuries suffered when the scaffolding on which he was
standing to repair some heating units collapsed underneath him.22
Just as the state has a duty to maintain a safe workplace, you too have a responsibility to
take proper care of yourself while working in the prison or work-release program. When you
fail in your duty to take care of yourself, and this failure plays a part in your injury, you have
engaged in what is called “contributory negligence” or “comparative negligence.” 23 If the
court finds that your contributory negligence played a role in you being injured, it can reduce
your damages by the amount for which it believes you were responsible.
For example, in the woodchipper case above, the court only awarded half the damages to
the plaintiff because it believed half his injuries were his fault for climbing onto the chipping
machine in the first place.24 In another case, the court reduced damages because the prisoner
did not follow safety instructions. 25 But, courts may not reduce your damages under
contributory negligence theory if you were ordered to do the act that caused your injury,
since they recognize in prison you can be punished for disobeying instructions.26
If the court believes you behaved recklessly in a work-related setting, it can refuse to
award you damages at all. Generally, to act recklessly is to create an unjustifiable risk and
then to ignore that risk.27 For example, a court awarded no damages to a prisoner working in
a recycling plant who cut himself on a metal can because the task could have been performed
safely with available cut-resistant gloves, which he failed to request.28 However, whether or
not the court determines you were reckless can also depend on how much knowledge you
have about the field or area in which you are working. For instance, one court prevented a
prisoner who had electrical training from recovering damages for injuries he suffered when
he touched live wiring, because his previous experience made him aware that touching wires
was a reckless thing to do. 29 By contrast, where a prisoner had received only minimal
training, he could not be held responsible for causing his injuries.30
Finally, you may be unable to recover from the state for injuries you receive during work-
release programs that do not occur on the grounds of the prison. This may be the case if the
state was not the owner or contractor at the work site. Also, if recommending a prisoner for a
work-release job is a discretionary action within the scope of a correctional employee’s duties,
the state is not responsible. Finally, the state has no duty to inspect possible work sites for
work-release programs.31
You may be able to determine whether the state is liable and the details of its liability by
researching New York State labor laws, which courts have found applicable to work-related
situations in prisons.32
22. Shulenberg v. State, 35 Misc. 2d 751, 751–52, 231 N.Y.S.2d 816, 817 (N.Y. Ct. Cl. 1962).
24. Kandrach v. State, 188 A.D.2d 910, 914–15, 591 N.Y.S.2d 868, 872 (3d Dept. 1992).
25. Hicks v. State, 124 A.D.2d 949, 949–50, 509 N.Y.S.2d 152, 152–53 (3d Dept. 1986) (upholding
a damages award as reasonable but reducing it because the prisoner had not followed instructions).
26. See Lowe v. State, 194 A.D.2d 898, 899, 599 N.Y.S.2d 639, 641 (3d Dept. 1993) (finding that
the prisoner faced an unfair decision of disobeying orders or risking injury).
27. Black’s Law Dictionary 1298–99 (8th ed. 2004).
28. Muhammad v. State, 15 A.D.3d 807, 808, 790 N.Y.S.2d 570, 572 (3d Dept. 2005).
29. Martinez v. State, 225 A.D.2d 877, 879, 639 N.Y.S.2d 145, 147 (3d Dept. 1996).
30. See Kandrach v. State, 188 A.D.2d 910–11, 591 N.Y.2d 868, 869 (3d Dept. 1992) (upholding
partial damages for a prisoner who had received only five minutes’ training on how to operate a
woodchipper).
31. See Gress v. State, 157 A.D.2d 479, 479, 549 N.Y.S.2d 666, 667 (1st Dept. 1990).
32. See Callahan v. State, 19 A.D.2d 437, 438, 243 N.Y.S.2d 881, 882–83 (3d Dept. 1963),
(holding that the Labor Law establishes a standard of care against which the state should be judged),
aff’d, 14 N.Y.2d 665, 198 N.E.2d 903, 249 N.Y.S.2d 871 (1964).
(b) Medical Care Provided to Prisoners33
Claims relating to inadequate or inappropriate medical care are negligence claims.
Courts agree that the state has a duty to provide prisoners with reasonable and adequate
medical care without undue delay.34 If you believe the state has breached (violated) this duty
to care for you, and that this breach of duty caused your injury, you may have a successful
medical tort claim.
First, to pursue a tort claim for medical negligence you will have to prove the treatment
the state gave you (or failed to give you) was not standard—that it was not within “accepted
medical practice.”35
Second, you will have to prove that it was the state’s actions or inactions that caused
your injury and that the injury wouldn’t have happened anyway. This is called proving that
the state’s negligence was the “proximate cause” of your injury.36 For example, even if you
had to wait a long time or make repeated requests to receive treatment, you would not be
able to recover damages from the state unless the court decides that it was the waiting that
caused your injury or made it significantly worse.37 In order to prove the cause of your injury,
you will almost always need testimony from medical experts.38 Like in other negligence tort
claims, you must also show that the injury you suffered was a foreseeable result of your
denial of treatment or the improper treatment you received.39
Unlike other negligent tort claims, if you believe you have been injured due to improper
or inadequate medical care, you can also seek damages under the theory of “ministerial
neglect,” which states that if the state makes rules regarding the administration of its duty
to provide medical care and fails to follow those rules, it is liable for the resulting harm.40 For
example, if the prison has a formal process by which prisoners can see medical staff, but fails
33. For more information about inadequate medical care claims in federal court, see Chapter 23
of the JLM, “Your Right to Adequate Medical Care.”
34. See, e.g., Kagan v. State, 221 A.D.2d 7, 11, 646 N.Y.S.2d 336, 339 (2d Dept. 1996) (citing
Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d. 251, 259 (1976), which provides
that prisoners have the right to adequate and timely medical care.
35. See, e.g., Larkin v. State, 84 A.D.2d 438, 445–46, 446 N.Y.S.2d 818, 823 (4th Dept. 1982)
(holding the state liable where a doctor failed to diagnose and treat a prisoner’s headaches, resulting in
the prisoner’s death by aneurysm).
37. See, e.g., Brown v. State, 192 A.D.2d 936, 938–39, 596 N.Y.S.2d 882, 884–85 (3d Dept. 1993)
(refusing to award damages for delay in treatment to prisoner who had to have his larynx (voice box)
removed because it was determined that by the time he complained the larynx would have had to be
removed anyway), appeal denied, 82 N.Y.2d 654, 622 N.E.2d 304, 602 N.Y.S.2d 803 (1993).
38. See Zi Guang v. State, 263 A.D.2d 745, 747, 695 N.Y.S.2d 142, 145 (3d Dept. 1999) (finding
that prisoner failed to establish medical malpractice by prison officials in part because the prisoner’s
medical expert at trial “often … appeared unfamiliar with [prisoner’s] medical records”); Duffen v.
State, 245 A.D.2d 653, 654, 665 N.Y.S.2d 978, 980 (3d Dept. 1997) (dismissing prisoner’s claim against
the State because medical expert’s testimony was too “speculative” to prove causation).
39. See Kagan v. State, 221 A.D.2d 7, 17, 646 N.Y.S.2d 336, 342 (2d Dept. 1996) (finding that
prisoner’s loss of hearing was foreseeable result of not treating the pain or bleeding in her ear);
Williams v. State, 164 Misc. 2d 783, 785, 626 N.Y.S.2d 659, 661 (N.Y. Ct. Cl. 1995) (stating that court
would not award damages for delay in receiving dental care unless prisoner could show the delay was
“a deviation from good and accepted dental practice.”).
40. See Kagan v. State, 221 A.D.2d 7, 10–11, 646 N.Y.S.2d 336, 338–39 (2d Dept. 1996) (finding
there is “no governmental immunity for the negligent performance of the ministerial duties” and
“whenever delays in diagnosis and/or treatment [are] a proximate cause or aggravating cause of [a]
claimed injury, the state may be liable); see also Ogle v. State, 191 A.D.2d 878, 881 594 N.Y.S.2d 824,
826 (3d Dept. 1993) (stating the State’s failure to administer a tuberculosis treatment consistent with
its policies made it liable for damages when surgery was ultimately necessary).
to follow that process, leading to injury or the worsening of your condition, the prison may
have automatically breached its duty to you.41
The court may decide that your actions contributed to your medical injuries in a way that
reduces or eliminates damages. For example, if you know that you have tuberculosis but do
not inform prison officials of this fact, you may not receive damages if your condition goes
untreated.42
A court may also refuse to hold the state liable if your injuries were due to the negligence
of a private physician not directly employed by the state.43 In this case, you may have to take
legal action against the medical official or private hospital that treated you instead. This rule
may not apply if you reasonably believed the person treating you did work for the state, and
there was no reason for you to believe otherwise. For example, courts have held the state
responsible for the actions of a private doctor who negligently treated a prisoner in the prison
medical clinic.44 However, the state was later allowed to introduce evidence that the prisoner
was told the doctor did not work for the state.45
(c) Destruction or Loss of Prisoner Property
State employees have an obligation not to take, damage, or destroy your property
without just cause—either intentionally or through negligence. If they do, you may be able to
sue the state in the Court of Claims. 46 Remember that before you can file a claim for
damages in any court, you must first exhaust all of your prison’s administrative remedies.47
A full description of what courts you should use and when is contained in Part C below.
If your items were stolen from you, you may be able to hold the state responsible for
negligence in failing to provide adequate security in the area from which your property was
taken.48 Courts have said that although prisoners cannot sue the state for decisions it makes
in administering prison resources, maintaining the security of cell and dorm areas is a
different type of prison-administration decision.49
Also remember that you have a responsibility for securing your own belongings. If you
fail to lock a footlocker or leave your valuables in an open space, the court may reduce your
damages to the degree they feel you were responsible and may prevent you from recovering
damages at all.50 If you believe that prison officials have intentionally taken or destroyed
41. See Kagan v. State, 221 A.D.2d 7, 11–12, 17, 646 N.Y.S.2d 336, 339, 343 (2d Dept. 1996)
(finding negligence where, contrary to policy, prison officials failed to allow prisoner to make
appointment for next available screening, to make her medical records available to the screening nurse,
and to properly enter her complaints into the record).
42. See Ogle v. State, 191 A.D.2d 878, 881, 594 N.Y.S.2d 824, 826 (3d Dept. 1993) (stating that it
is “well established that culpable conduct, including the failure to reveal part of one’s medical history,
may diminish a victim’s recovery in a medical malpractice case”).
43. See Williams v. State, 164 Misc. 2d 783, 785, 626 N.Y.S.2d 659, 661 (N.Y. Ct. Cl. 1995)
(holding that the State was not liable for the negligence of a private dentist not working for the state).
44. See Soltis v. State, 172 A.D.2d 919, 920, 568 N.Y.S.2d 470, 471–72 (3d Dept. 1991).
45. See Soltis v. State, 188 A.D.2d 201, 203, 594 N.Y.S.2d 433, 434 (3d Dept. 1993).
46. See Tigner v. New York, 559 F. Supp. 25, 27 (W.D.N.Y. 1983), aff’d, 742 F.2d 1432 (2d Cir.
1983) (holding that the Court of Claims provides a remedy for lost and damaged property claims that is
sufficient to satisfy constitutional guarantees of due process).
47. N.Y. Ct. Cl. Act § 10(9) (McKinney Supp. 2007) (also stating that such a claim must be filed
within 120 days after the date in which the prison’s administrative remedies have been exhausted).
48. See Foy v. State, 182 A.D.2d 670, 671, 582 N.Y.S.2d 262, 263 (2d Dept. 1992) (holding that
the State is not immune from liability in a prisoner’s claim for loss of personal property when the
prisoner alleged that the State negligently failed to properly secure the area of his cell).
49. See Foy v. State, 182 A.D.2d 670, 671, 582 N.Y.S.2d 262, 263 (2d Dept. 1992) (holding that
the State is not immune from liability in a prisoner’s claim for loss of personal property when the
prisoner alleged that the State negligently failed to properly secure the area of his cell).
50 . Cf. Pollard v. State, 173 A.D.2d 906, 907–08, 569 N.Y.S.2d 770, 771 (3d Dept. 1991)
your property without authorization, or that it was destroyed because of negligently
maintained prison facilities, you should refer to the Sections in this Chapter on intentional
torts (Part B(1) above) and negligently maintained facilities (immediately below, in Part
B(4)(f)).
(d) Negligently Maintained Prison Facilities
As with injuries in the workplace, the state is not responsible for preventing all injuries
that may occur on its property.51 The state is only responsible for maintaining facilities in a
“reasonably safe condition.” 52 To determine what reasonably safe means, a court could
consider how likely it was that an injury would occur, how serious that injury was likely to
be, and how much it would have cost the state to prevent the injury.53
For example, a court refused to award damages to a prisoner who was injured by a fall on
an icy exercise yard because it found prison staff had taken reasonable precautions to
prevent such falls by checking the area daily and salting the area if slippery or if a complaint
had been filed.54 To recover in that case, the prisoner would have had to show that this area
of the track was especially dangerous (and, thus, that the prison should have taken extra
care in maintaining it) or that officials already had notice, or should have had notice, that
the area was especially dangerous.55
(e) False Arrest and False Imprisonment
False imprisonment primarily applies to prisoners in cases of wrongful confinement in
special housing units or on “keeplock.”56 For additional information on confinement to special
housing units, refer to JLM Chapter 18, “Your Rights at Prison Disciplinary Proceedings.”
A plaintiff making a false arrest claim must prove four elements: (1) the defendant
intended to confine the plaintiff; (2) the plaintiff was aware of the confinement; (3) the
plaintiff did not consent to the confinement; and (4) the confinement was not otherwise
privileged.57 The elements for proving false imprisonment are essentially the same as the
elements for proving false arrest.58
(addressing the State’s contributory negligence defense, but deferring to findings of trial court that
prisoner had locked his locker and was thus not contributorily negligent).
51. See, e.g., Killeen v. State, 66 N.Y.2d 850, 851, 489 N.E.2d 245, 246, 498 N.Y.S.2d 358, 359
(1985) (holding that while the State “owes patients in its institutions a duty of reasonable care to
protect them from injury, whatever the source,” that does not “render the State an insurer or require it
to keep each patient under constant surveillance” and finding the State not liable for injury that
resulted when a patient in a state mental facility accidentally spilled hot water on himself (internal
citation omitted)).
52. Basso v. Miller, 40 N.Y.2d 233, 241, 352 N.E.2d 868, 872, 386 N.Y.S.2d 564, 568 (1976) (“A
landowner must act as a reasonable man in maintaining his property in a reasonably sage condition in
view of all the circumstances.” (quoting Smith v. Arbaugh’s Rest., Inc., 469 F.2d 97, 100 (D.C. Cir.
1972))).
53. Basso v. Miller, 40 N.Y.2d 233, 241, 352 N.E.2d 868, 872, 386 N.Y.S.2d 564, 568 (1976)
(quoting Smith v. Arbaugh’s Rest., Inc., 469 F.2d 97, 100 (D.C. Cir. 1972)).
54. Condon v. State, 193 A.D.2d 874, 875, 597 N.Y.S.2d 531, 532 (3d Dept. 1993).
55. Condon v. State, 193 A.D.2d 874, 875, 597 N.Y.S.2d 531, 532 (3d Dept. 1993).
56. See, e.g., Gittens v. State, 132 Misc. 2d 399, 406–07, 504 N.Y.S.2d 969, 974 (N.Y. Ct. Cl. 1986)
(finding that prisoner kept in keeplock for an additional nine days beyond the last day of the penalty
imposed by a disciplinary hearing was entitled to damages for false imprisonment).
57. See Broughton v. State, 37 N.Y.2d 451, 456, 335 N.E.2d 310, 313, 373 N.Y.S.2d 87, 93 (1975).
In Scofield v. Critical Air Medicine, Inc., 52 Cal. Rptr. 2d 915, 923–24, 45 Cal. App. 4th 990, 1003–07
(Cal. Ct. App. 1996), the court concluded that second element did not require awareness of the
confinement, but only that the person be harmed by the confinement. Therefore, in some jurisdictions
awareness will not be a necessary requirement.
58. See Broughton v. State, 37 N.Y.2d 451, 455–56, 335 N.E.2d 310, 313–14, 373 N.Y.S.2d 87,
92–93 (1975).
The Court of Appeals has found that when prison employees, acting under the authority
of and in compliance with statutes and regulations, discipline prisoners, both those
employees and the state have absolute immunity from suit.59 This means that even if you are
placed on keeplock or in administrative segregation for charges that are eventually
dismissed, you may not be able to recover damages.60
Note also that a judge is not a state officer within the meaning of the Court of Claims
Act, and thus you cannot sue in the Court of Claims for an erroneous decision by a judge.61
(f) Excessive Force and Failure to Protect
Perhaps the most common torts prisoners sue for are excessive force used by corrections
officers and, in some cases, failure to protect from force of other prisoners. Actions to recover
for excessive force and failure to protect are covered in detail in JLM Chapter 24 “Your Right
to be Free From Assault.”
C. Protecting Your Rights
This section provides an overview of the ways that you can go about seeking relief for
your tort claim. It covers both administrative remedies that are available through the prison
itself and other remedies that are available through the courts.
1. Facility Grievance Procedures
(a) Exhaustion
If you are filing a claim for damages for damage to or loss of personal property, you
cannot file in the Court of Claims until you have exhausted the prison’s own administrative
remedies for personal property claims.62 This means that you must use all Department of
Correctional Services internal procedures for compensating prisoners for loss or damage to
property before suing in the Court of Claims. After you have used all those procedures in a
59. See Arteaga v. State, 72 N.Y.2d 212, 214, 527 N.E.2d 1194, 1195, 532 N.Y.S.2d 57, 58 (1988)
(finding that acts by employees in compliance with regulations constitute discretionary conduct for
which the State has absolute immunity); see also Gittens v. State, 132 Misc. 2d 399, 403, 504 N.Y.S.2d
969, 972 (N.Y. Ct. Cl. 1986) (finding that prison employee’s disciplinary confinement of prisoner fell in
compliance with applicable regulations and, thus, no false imprisonment occurred).
60. See Arteaga v. State, 72 N.Y.2d 212, 214, 527 N.E.2d 1194, 1195, 532 N.Y.S.2d 57, 58 (1988)
(finding the state and prison officers not liable for confinement of prisoners even though charges
against prisoners were later dismissed); see also Gittens v. State, 132 Misc. 2d 399, 403 n.5, 504
N.Y.S.2d 969, 972 n.5 (N.Y. Ct. Cl. 1986) (“[R]egardless of a disposition ultimately favorable to the
inmate, [confinement during the period when the charges are pending] does not constitute an
actionable deprivation.”).
61. See Murph v. State, 98 Misc. 2d 324, 326, 413 N.Y.S.2d 854, 856 (N.Y. Ct. Cl. 1979). Police
officers, prosecutors and other state officials enjoy qualified immunity from civil suits. See Cunningham
v. State, 71 A.D.2d 181, 183, 422 N.Y.S.2d 497, 499 (3d Dept. 1979) (“[W]hen engaged in the role of
investigator, like that of a policeman, … [a prosecutor] should not enjoy absolute but only qualified
immunity.” (internal citations omitted). For example, where a seemingly valid arrest warrant is
properly executed by an officer relying on another officer’s word, the arresting police officer is not liable
in a civil action for the legal deficiency of the warrant if he exercises due diligence in identifying the
person named in the warrant. See Dennis v. State, 113 Misc. 2d 540, 542–43, 449 N.Y.S.2d 602, 604–05
(N.Y. Ct. Cl. 1982), aff’d, 96 A.D.2d 1143, 467 N.Y.S.2d 737 (4th Dept. 1983). Where the legal process of
committing an individual to a mental institution is valid on its face, the state is not liable for damages.
See Ferrucci v. State, 42 A.D.2d 359, 361, 348 N.Y.S.2d 236, 238 (3d Dept. 1973), aff’d, 34 N.Y.2d 881,
316 N.E.2d 715, 359 N.Y.S.2d 279 (1974). But, if a prosecutor or police officer knowingly and
deliberately misleads the court or supplies false information that leads to your imprisonment, the
officer and the State may both become liable for malicious prosecution. See Conkey v. State, 74 A.D.2d
998, 998, 427 N.Y.S.2d 330, 331–32 (4th Dept. 1980).
62. N.Y. Ct. Cl. Act § 10(9) (McKinney Supp. 2007).
loss or damage to property action, you have 120 days to file and serve your claim in the Court
of Claims.63
(b) Administrative Remedies
The Department of Correctional Services (“DOCS”) may pay you if (1) another prisoner
has damaged or destroyed your personal property or (2) an employee of DOCS has damaged
or destroyed your personal property. According to Directive #2733, claims are limited to $350
if another prisoner caused the loss of property and $5000 if a DOCS employee is responsible
for the loss or damage. You should ask prison officials for a copy of Directive #2733, which
includes sample forms for applying for reimbursement.64
You must use all of the available DOCS procedures before suing in the Court of Claims
for damage to property. If DOCS grants your claims as requested, then you will not be able to
pursue a suit in the Court of Claims. However, if you wish to preserve your right to pursue
your suit in the Court of Claims, it may be necessary to begin the filing process even though
your DOCS procedures are not yet completed. Part D describes how to file a claim in the
Court of Claims.
2. Pursuing a Remedy in Court
(a) Choosing a Court
Where you file suit depends on the circumstances of your case, whom you want to sue,
and what you are suing for. Generally, the Court of Claims exists for suits against the state,
and the New York State Supreme Court exists for suits against people acting as individuals
(as opposed to people acting as representatives of the state—explained in the next
Subsection). If you want to sue individuals for violating your federal constitutional rights,
you would sue in federal court.
(i) The Court of Claims
If you wish to sue the State of New York (if, for example, you are a prisoner in a state
prison and you believe the state’s employees have harmed you), you must sue in the New
York Court of Claims.65 The State of New York is the only defendant you can name in a suit
before the Court of Claims. If a particular guard or other employee has harmed you in the
course of his employment, you cannot sue him in the Court of Claims for actions that were
within the scope of his employment.66 Because the state is responsible for acts of employees
done in the scope of their duties, you may sue the state for damages these employees cause.
If, however, an employee does something to you that is clearly outside the scope of his or her
employment (for example, a criminal act unrelated to any part of the employee’s duty), you
may then sue that individual in the New York Supreme Court (New York’s general trial
court) or in federal court under Section 1983.67 You may not do so in the Court of Claims.

64 . N.Y. State Fin. Law § 8(12-a) (McKinney 2007) (establishing that (1) heads of state
departments are authorized to pay out of a cash advance account up to $250 at their own discretion
through facility grievance procedures; (2) payments over $250 must be submitted to the State
comptroller; (3) payments over $1000 must be approved by the State Attorney General; and (4)
payments from internal grievance procedures cannot exceed $5000).
65. N.Y. Ct. Cl. Act § 9(2) (McKinney Supp. 1989) (giving the Court of Claims jurisdiction to hear
cases against the State for damages); N.Y. Correct. Law § 24(2) (McKinney 2003) (requiring that claims
for damages from acts done by state employees be brought as claims against the State in the Court of
Claims).
66. See Part C(2)(b)(i) of this Chapter for a discussion of rules regarding suits against individual
State employees.
67. For a discussion of how to sue state officials in federal court see JLM Chapter 16, “Using 42
U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of Federal Law.”
Though there are some exceptions that will be discussed below, the Court of Claims can
generally only award money damages. It cannot prevent forms of punishment that violate
your constitutional rights or fix unconstitutional conditions in the prison. You must address
these conditions in either a Section 1983 proceeding or an Article 78 claim.68
You also cannot bring suit in the Court of Claims to attack your sentence or any decision
made by prison or parole officials regarding your status. Such complaints must be made
under New York Civil Practice Article 78 (proceedings against body or officer) or Article 70
(state habeas corpus) or New York Criminal Procedure Law Article 440 (post-judgment
motions).69 You may, however, attack your conviction under the Court of Claims Act Section
8-b, which allows a suit for damages if the prosecutor used improper means to secure your
conviction.70 But, to win this suit, you must prove by clear and convincing evidence that you
have served all or any part of your sentence resulting from your felony or misdemeanor
conviction(s) 71 , that you have been pardoned of the crime 72 , or that the judgment of
conviction against you has been reversed or vacated and the document that accuses you has
been dismissed.73 You must also prove that you did not commit the charged acts or that your
acts did not constitute a felony or misdemeanor,74 and that you did not cause your conviction
by your own conduct.75
(ii) Filing in New York State Supreme Court
You can sue individual state employees in the New York Supreme Court (the trial court)
only if that employee (1) owes you a duty as an individual and (2) was not acting in his or her
official capacity in the exercise of governmental functions. If the employee does not owe you a
duty as an individual or was acting in his official capacity when he injured you, you will have
to sue in the Court of Claims.76 You cannot sue the State of New York for damages in the
New York Supreme Court, but only in the Court of Claims.
If you are suing the state in order to receive something other than money damages, such
as injunctive relief, you can also sue in New York Supreme Court.
(iii) Filing in Federal Court
If you would like to sue individual state employees (for example, prison employees) for
violating your federal constitutional rights, filing a suit in federal court might also be
appropriate. In federal court, you may receive damages and injunctive relief. For a full
68. See JLM Chapter 22, “How to Challenge Administrative Decisions Using Article 78 of the
New York Civil Practice Law and Rules,” for a discussion of Article 78 proceedings. For more
information on injunctive relief in the Court of Claims, see Part C(2)(b)(iii) of this Chapter.
69. See JLM Chapter 20, “Using Article 440 of the New York Criminal Procedure Law to Attack
Your Unfair Conviction or Illegal Sentence,” and Chapter 21, “State Habeas Corpus,” for more
information. In brief, you may challenge your sentence using Article 440; decisions made by prison
officials using Article 78; and decisions made by parole officials using Article 78 or state habeas corpus.
70. See N.Y. Ct. Cl. Act §8-b(3)(b)(ii)(A) (McKinney 1989). Section §8-b(3)(b)(ii)(A) states that a
violation of N.Y. Crim. Proc. § 440.10(1)(b) (McKinney 2005) gives rise to a claim for damages. N.Y.
Crim. Proc. § 440.10(1)(b) (McKinney 2005) provides that a court can vacate a conviction if “the
judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or
a person acting for or in behalf of a court or a prosecutor.”
71. N.Y. Ct. Cl. Act § 8-b(5)(a) (McKinney 1989).
72. N.Y. Ct. Cl. Act § 8-b(5)(b)(i) (McKinney 1989).
73. N.Y. Ct. Cl. Act § 8-b(5)(b)(ii) (McKinney 1989)
74. N.Y. Ct. Cl. Act § 8-b(5)(c) (McKinney 1989)
75. N.Y. Ct. Cl. Act § 8-b(5)(d) (McKinney 1989).
76. See Morell v. Balasubramanian, 70 N.Y.2d 297, 300, 514 N.E.2d 1101, 1102, 520 N.Y.S.2d
530, 531 (1987) (deeming “actions against State officers acting in their official capacity in the exercise
of governmental functions” to be essentially “claims against the State, and, therefore, arguable only in
the Court of Claims”).
discussion of how to file a claim in federal court against a state employee for the violation of
your federal rights, see Chapter 16 of the JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331
to Obtain Relief from Violations of Federal Law.”
(b) Pursuing a Case in the Court of Claims
(i) Whom You Can Sue in the Court of Claims
Traditionally, people may not sue governments. This freedom from lawsuits for state
governments is called “sovereign immunity.” However, many governments (including the
government of New York State) have waived their immunity by passing laws that allow
certain types of lawsuits. While the state is still immune from some types of lawsuits, it
allows people to bring suits against the state for torts committed by its employees. In the
State of New York, if you would like to sue a prison official for actions performed in the scope
of his employment you are required to file your claim against the State in the Court of
Claims77—a specific division of the New York State court system.78 This requirement of filing
in the Court of Claims does not apply to claims against employees of county or city jails.
Because you are allowed to sue the state for torts its employees commit in their roles as
employees, you are not allowed to sue those same employees as individuals in state court, as
long as what you want to sue them for was done in the scope of their employment.79 Again, if
77. N.Y. Correct. Law § 24(2) (McKinney 2003) (“Any claim for damages arising out of any act
done or the failure to perform any act within the scope of the employment and in the discharge of the
duties of any officer or employee of the [D]epartment [of Correctional Services] shall be brought and
maintained in the court of claims as a claim against the state.”).
78. N.Y. Ct. Cl. Act § 2 (McKinney 1989).
79. N.Y. Correct. Law § 24 (McKinney 2003). The test for whether an employee can be held
personally liable, or whether the State must instead be sued for the employee’s tortious acts, is
“whether the act was done while the [employee] was doing [the State]’s work, no matter how
irregularly, or with what disregard of instructions.” See, e.g., Riviello v. Waldron, 47 N.Y.2d 297, 302,
391 N.E.2d 1278, 1281, 418 N.Y.S.2d 300, 302 (1979) (considering employee to be within the scope of
his employment so long as he is discharging his duties, “no matter how irregularly, or with what
disregard of instructions”) (quoting Jones v. Weigand, 134 A.D. 644, 645, 119 N.Y.S. 441, 443 (2d Dept.
1909)). This test is complicated, however. An employee is not personally liable for an act simply because
he was not ordered to do that act. Rather, you may be able to find liability against New York State
instead of the individual employee if the tort can be explained as a necessary step to the employee’s
ordered task or responsibility. In deciding whether an employee’s conduct falls within the definition of
“employment,” the New York Court of Appeals has listed the following factors for consideration:
(1) The time, place and occasion of the act;
(2) The history of the relationship between employer and employee in actual practice;
(3) Whether the act is one commonly done by such an employee;
(4) The extent of departure from normal methods of performance; and
(5) Whether the employer could have “reasonably anticipated” the act.
Riviello v. Waldron, 47 N.Y.2d 297, 303, 391 N.E.2d 1278, 1281, 418 N.Y.S.2d 300, 303 (1979).
The Court of Appeals of New York has applied these factors liberally to a range of situations. See, e.g.,
Riviello v. Waldron, 47 N.Y.2d 297, 302, 391 N.E.2d 1278, 1281, 418 N.Y.S.2d 300, 302 (1979)
(considering employee to be within the scope of his employment so long as he is discharging his duties,
“no matter how irregularly, or with what disregard of instructions.”); Cepeda v. Coughlin, 128 A.D.2d
995, 996, 513 N.Y.S.2d 528, 530 (3d Dept. 1987) (finding that corrections officers’ use of force when
supervising movement of prisoners was within the scope of their employment), appeal denied, 70
N.Y.2d 602, 512 N.E.2d 550, 518 N.Y.S.2d 1024 (1987). While these cases do not establish a clear point
at which a state employee becomes personally liable, it is clear that the level of violence or disregard
must be very high to satisfy the test. Courts have determined that custody and control of prisoners and
the maintenance of safety and security in prisons are the main responsibilities of prison employees.
Cepeda v. Coughlin, 128 A.D.2d 995, 997, 513 N.Y.S.2d 528, 530 (3d Dept. 1987). A New York Supreme
Court has held that “it is entirely foreseeable that correction officers will be called upon to quell
disturbances and subdue violence among inmates.” Mathis v. State, 140 Misc. 2d 333, 340, 531
N.Y.S.2d 680, 684 (Sup. Ct. Albany County 1988). But see Sharrow v. State, 216 A.D.2d 844, 846, 628
you are going to sue a person for actions not done in the scope of his employment—that is,
sue them as an individual—you must do so in New York Supreme Court or Federal Court.
Also keep in mind that federal prison officials are federal employees, so federal prisoners
cannot sue the state for actions of federal prison officials.80
(ii) Types of Relief
If you prove that you were the victim of a tort, whether intentional or negligent, the court
will order compensation to make up for whatever “damages” you suffered.81 “Damages” is a
term that refers to the sum of money that a court can order someone to pay you to
compensate you for damage to or loss of personal property or for an injury.82
A court may award you three kinds of damages: compensatory, punitive, and nominal.83
Compensatory damages, the kind most commonly awarded, include payments to make up for
the value of items destroyed (like a wristwatch) or money spent because of an injury (doctor’s
bills) or “pain and suffering.”84 “Pain and suffering” may include a period after an injury
during which you continue to suffer as a result of the injury.
Punitive damages, which are amounts beyond what will compensate for the loss or injury
suffered, are awarded when the injury was aggravated by violence, oppression, malice, fraud,
or wanton and wicked conduct on the part of the tortfeasor (the person who committed the
tort).85 Punitive damages are intended to punish the tortfeasor, rather than compensate the
injured party.86 It is important to note that the Court of Claims will not award you punitive
damages against the State.
Nominal damages are a very small sum of money awarded when the court finds there is
no substantial loss or injury to be compensated, but the law still recognizes that a right has
been violated.87 Nominal damages can also be granted when a real injury is found, but the
evidence fails to show the amount of injury.
N.Y.S.2d 878, 880 (3d Dept. 1995) (finding that no justification existed for correction officers to use
force after they had already quelled a disturbance among the prisoners because, at this point, the use of
force was counter to the goal of maintaining order and discipline in the facility). The Court of Appeals
of New York has found that even some intentional torts can be considered within the scope of an
employee’s job if they were foreseeable. Riviello v. Waldron, 47 N.Y.2d 297, 304, 391 N.E.2d 1278, 1282,
418 N.Y.S.2d 300, 304 (1979). This means that even if a prison employee means to harm or injure you,
if the employee can prove that situations in the past led the employee to think the act was necessary to
keep control, the employee will not be found personally liable.
80. See JLM Chapter 16, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from
Violations of Federal Law,” for more information on how to sue federal prison officials if you are a
federal prisoner.
81. For a detailed definition of compensation, see Black’s Law Dictionary 201 (8th ed. 2004).
from Violations of Federal Law,” for more information on damages.
84. Black’s Law Dictionary 417 (8th ed. 2004) (defining “discretionary damages” as damages
“such as mental anguish or pain and suffering”).
85. See Restatement (Second) of Torts § 908 (1979):
(1) Punitive damages are damages, other than compensatory or nominal damages, awarded
against a person to punish him for his outrageous conduct and to deter him and others like
him from similar conduct in the future.
(2) Punitive damages may be awarded for conduct that is outrageous, because of the
defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive
damages, the trier of fact can properly consider the character of the defendant’s act, the nature
and extent of the harm to the plaintiff that the defendant caused or intended to cause and the
wealth of the defendant.
86. Black’s Law Dictionary 418–19 (8th ed. 2004).
Do not forget that if you are filing a claim for damages for injury or loss of personal
property, you must first exhaust the administrative remedies provided by the Department of
Corrections. See Part C(1)(a) of this Chapter.
(iii) Injunctive Relief that the Court of Claims May Award
Aside from these monetary awards, the Court of Claims may order specific actions to be
taken by an institution. The Court of Claims does not order such actions often because its
ability to order people to do things is limited to orders authorized by statute or included as
part of issuing a judgment to pay damages.88 Accordingly, you cannot bring a suit in the
Court of Claims to complain generally about conditions in your prison because the court
cannot order the state to correct those prison conditions.89
When a judge orders someone to behave in a certain way or to stop doing something, it is
called an injunction.90 If you want to obtain an injunction, you must bring your case in the
New York Supreme Court or in federal court. In the Court of Claims, you may seek an
injunction against the State only if it is “incidental” (not the basis of your suit, but a sort of
“extra” action connected to your claim for damages). Even so, the Court of Claims is not
likely to issue injunctions.91
(iv) Settlements in the Court of Claims
There is no limit to the amount of damages the Court of Claims may award.92 It is also
possible to settle your claim against the State out of court. When the State offers you a
settlement, it is not necessarily agreeing that it did something wrong, but is offering to pay
you an amount of money you both agree to instead of going to trial. Once you reach a
settlement with the State, you cannot sue on the same facts for additional damages. If you
decide not to settle with the State and do go to trial, you may be awarded damages. If you
receive a judgment that you consider to be too low, you may then appeal to the Appellate
Division of the Supreme Court of New York, asking for additional damages.
88. See Doe v. State, 86 Misc. 2d 639, 641, 383 N.Y.S.2d 172, 174 (N.Y. Ct. Cl. 1976); see also
N.Y. Ct. Cl. Act § 9, Notes of Decisions, n.59 (McKinney 1989 & Supp. 2006). In this context, “equity
powers” means the power of a court to issue orders commanding parties to do something or to cease
from doing something.
89. Such relief may be obtained, if warranted, under 42 U.S.C. § 1983. See JLM Chapter 16,
“Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of Federal Law.”
90. For more discussion of injunctive relief, see JLM Chapter 16, “Using 42 U.S.C. § 1983 and 28
U.S.C. § 1331 to Obtain Relief from Violations of Federal Law.”
91 . To get an injunction either (1) to prevent forms of punishment which violate your
constitutional rights; or (2) to fix unconstitutional conditions in the prison, you must bring another kind
of lawsuit. This lawsuit must either be in a § 1983 proceeding or Article 78 proceeding. It is also
possible to bring a plenary action in State court for an injunction. An Article 78 proceeding is a special
proceeding. N.Y. C.P.L.R. 7804(a) (McKinney 1994). Accordingly, discovery requires permission of the
court. N.Y. C.P.L.R. 408 (McKinney 2001); see also N.Y. C.P.L.R. 408, Practice Commentaries
(McKinney 2001) (“Consistent with the summary nature of a special proceeding, CPLR 408 generally
disallows pretrial disclosure without leave of court.”). A plenary action allows for full scale discovery
like any other civil action. See Chapter 8 of the JLM, “Obtaining Information To Prepare Your Case:
The Process of Discovery.”
92. N.Y. Ct. Cl. Act § 20-a (McKinney Supp. 2007) (stating that settlements must be approved by
the court); see also N.Y. Ct. Cl. Act § 20(6-a) (McKinney Supp. 2007) (“[I]n any case where a judgment
… is to be paid to an inmate … the comptroller shall give written notice, if required pursuant to
subdivision two of [§ 632-a] of the executive law, to the state crime victims board….”).
D. Proceeding With Your Case in the Court of Claims
This section covers important technical requirements for the process of filing a claim,
including information about deadlines, filing fees and the correct way to file documents to
the court.
3. Filing Requirements
(a) Filing Within a Certain Time
When you want to file a claim because a state employee’s negligent or intentional act
injured your body, you have ninety days from the time of the injury or loss93 in which to
either (1) file your claim or (2) serve a Notice of Intention to File a Claim with the Attorney
General.94 You must serve at least the Notice of Intention within this period of time or you
may not be permitted to file at all.95 Whether you are filing a claim or serving a Notice of
Intention, the document must be received within the ninety day deadline. Part D(1)(c)
below explains how to make sure your document has been received within the filing deadline.
IMPORTANT! These time limits exist even if you are still proceeding with the
administrative remedies required by your institution. See Appendix A-1 of this Chapter for a
sample “Notice of Intention” form.
It is important to note that the reason you must file a Notice of Intention is to alert the
State of your claim so it has an opportunity to address your claim or prepare for its defense.
If you are asking for permission to file a late claim, you should tell the court why your filing
late has not prevented the State from getting ready for its defense.
Please also remember that serving a Notice of Intention is not the same as actually
beginning a lawsuit; it only preserves your right to file a lawsuit against the State in the
future. Once you serve a Notice of Intention to File a Claim, you have two years from the
time of your injury to file your claim for a negligent or unintentional tort.96 But if your claim
93. For more information on the time of injury or loss and the discovery of injury or loss, see N.Y.
Ct. Cl. Act § 10(7) (McKinney Supp. 2007) (stating that claim against the state that would be governed
by N.Y. C.P.L.R. 214-c (McKinney 2003), which applies to non-visible effects of exposure to any
substance upon or within the body or upon or within property, such as a toxic substance, shall be
deemed to have accrued either on the date of discovery of the injury by the claimant or when the injury
should have been discovered through reasonable diligence, whichever is earlier). Note that if you are
assaulted by a corrections officer, for example, but the full extent of the injuries does not become
apparent immediately, the 90 days begin when the assault happens, not when the injuries become
apparent. The court has been very hesitant to extend a filing deadline to 90 days from the point at
which an injury was realized, finding that it can be extended only when the injury is “reasonably
ascertainable.” Augat v. State 244 A.D.2d 835, 836, 666 N.Y.S.2d 249, 251 (3d Dept. 1997), appeal
denied, 91 N.Y.2d 814, 698 N.E.2d 956, 676 N.Y.S.2d 127 (1998). Therefore, you should be very careful
not to wait.
94. N.Y. Ct. Cl. Act § 10(3) (McKinney Supp. 2007). See Appendix A-1 of this Chapter for a
sample Notice of Intention.
95. The claim itself should state the time and place where such claim arose, the nature of the
claim, the damage or injuries claimed to have been sustained, and the total sum claimed. In your
Notice of Intention to File a Claim, you should state the same matters, except that you do not have to
state the items of damage or injuries or the total sum claimed. N.Y. Ct. Cl. Act § 11(b) (McKinney Supp.
2007). Therefore, you do not have to know the extent and severity of your injuries in order to file a
Notice of Intention. Atterbury v. State, 26 Misc. 2d 422, 424, 210 N.Y.S.2d 460, 463 (N.Y. Ct. Cl. 1961)
(explaining that claimant could have filed a notice of intention prior to being referred to a specialist
because neither the severity of the injuries nor the sum claimed must be included in the notice and
visiting a physician in the first instance shows she knew she had some injuries).
96. N.Y. Ct. Cl. Act § 10(3) (McKinney Supp. 2007). A claim “accrues” when the extent of
damages giving rise to the claim can be ascertained. Bronxville Palmer, Ltd. v. State, 36 A.D.2d 647,
647–48, 318 N.Y.S.2d 412, 413 (3d Dept. 1971) (holding that, “where a continuing injury or other
circumstance prevents an evaluation of damages at the time of the occurrence of the wrong, the time for
filing a claim does not begin to run until such an evaluation can be made.”); see also Mahoney v. Temp.
is for injuries from an intentional tort you have only ninety days to file a claim, unless you
serve the Attorney General a written Notice of Intention to File a Claim—then you may file
the claim itself within one year after the accrual of the claim.97
If you are filing a claim for damages to or for the loss of your personal property, the
process is a little different. The time limit for filing is not ninety days after the injury, but
120 days after you have exhausted all administrative remedies. However, within this 120
days you must file the claim itself—NOT a Notice of Intention.98 Again, this deadline is for
the reception of the Notice of Intention by the Attorney General.
Courts strictly enforce the time limitations on filing a claim and serving the Notice of
Intention to File a Claim.99 The Court of Claims will not accept late filing of claims relating
to loss of property.100 In a few cases, however, the Court may permit late claims.101 Section
10(6) of the New York Court of Claims Act lists factors that may be considered by the Court
in determining whether to permit a late filing. There is no requirement that each of the
factors be satisfied in order for the court to exercise its discretion to permit the late filing of a
claim.102 The factors listed by the Court of Claims Act:
(1) Whether the delay in filing was excusable;
Comm’n of Investigation of N.Y., 165 A.D.2d 233, 240–41, 565 N.Y.S.2d 870, 874–75 (3d Dept. 1991)
(holding that causes of action were not limited to conduct that occurred within 90-day period before
filing because the violations were ongoing and interrelated and evaluation of damages could not be
made within that period).
97. N.Y. Ct. Cl. Act § 10(3-b) (McKinney Supp. 2007).
98. N.Y. Ct. Cl. Act § 10(9) (McKinney Supp. 2004); see also Wright v. State, 195 Misc. 2d 597,
598, 760 N.Y.S.2d 634, 635 (N.Y. Ct. Cl. 2003) (“[C]laims for property losses by inmates are no longer
measured from the date of loss, but rather within a 120-day period commencing upon exhaustion of
institutional remedies.” (internal citation omitted)), appeal dismissed, 11 A.D.3d 1000, 782 N.Y.S.2d
209 (4th Dept. 2004).
99. See Conquest v. State, 58 Misc. 2d 121, 121, 294 N.Y.S.2d 892, 893 (N.Y. Ct. Cl. 1968)
(holding that, where notice of intention to file claim was filed on the 92nd day after claim arose, the
claim itself was not filed within statutory period and court did not have jurisdiction to hear the case).
But see Killeen v. State, 12 Misc. 2d 89, 92, 174 N.Y.S.2d 1000, 1002 (N.Y. Ct. Cl. 1958) (excusing minor
lateness per N.Y. Ct. Cl. Act § 10(5), where there was slight error in attorney’s computation of time and
State was not prejudiced).
100. See Roberts v. State, 11 A.D.3d 1000, 1001, 783 N.Y.S.2d 190, 191–92 (4th Dept. 2004)
(holding that, because § 10(6) of the Court of Claims Act only allows a court discretion to permit the
late claims mentioned in §§ 10(1)–(5), and loss of property claims are addressed in § 10(9), the court
may never allow late claims for loss of property). But see Wright v. State, 195 Misc. 2d 597, 602, 760
N.Y.S.2d 634, 638 (N.Y. Ct. Cl. 2003) (holding that it was within the spirit of the Court of Claims Act to
allow the court discretion over late loss of property claims). A subsequent Court of Claims decision
disagreed with the holding in Wright, that the spirit of the Court of Claims Act demanded providing
discretionary authority to courts for late filings based on § 10(9) claims, and found that the 90-day
filing period must be read literally. See Murray v. State, 5 Misc.3d 398, 403–04, 781 N.Y.S.2d 724, 728–
29 (N.Y. Ct. Cl. 2004) (strictly adhering to the 90-day filing period and dismissing § 10(9) claim that
was filed late).
101. N.Y. Ct. Cl. Act § 10(6) (McKinney Supp. 2007); see also Gavigan v. State, 176 A.D.2d 1117,
1119, 575 N.Y.S.2d 217, 219 (3d Dept. 1991) (upholding Court of Claims’ broad discretion under N.Y.
Ct. Cl. Act § 10(6) to grant permission to file a late Notice of Claim where an employee of the State
Office of General Services knew of an accident and, therefore, the State could not be said to have been
prejudiced by the lateness). But see Jerrett v. State, 166 A.D.2d 907, 907, 560 N.Y.S.2d 568, 568 (4th
Dept. 1990) (holding that Court of Claims abused its discretion in granting motion to serve a late claim
where there was no valid excuse for claimant’s delay in filing the claim, the State did not have timely
notice of the essential facts constituting the claim nor the opportunity to investigate the circumstances
underlying the claim, and the three other factors in N.Y. Ct. Cl. Act § 10(6) did not weigh heavily in
claimant’s favor).
102. See Butler v. State, 81 A.D.2d 834, 834, 438 N.Y.S.2d 834, 834 (2d Dept. 1981) (explaining
that there is no requirement that claimant comply with all six requirements of § 10(6) for the Court of
Claims to grant permission to file a late notice).
(a) Case law suggests that a reasonable excuse for failing to file within the ninety-
day period may be where the delay was caused by the claimant’s treatment for, or
hospitalization because of, physical or mental disabilities resulting from injuries
that are the basis of the claim;103
(b) Section 10(5) of the New York Court of Claims Act permits late filing where the
claimant has a legal disability. In such a situation, the claim must be presented
within two years after the disability has been removed (although, as explained
below in this Section, you will not get to use all of this two-year extension
because of the statute of limitations on injury claims). This section applies to
those who are under a disability because of insanity or infancy;104 and
(c) Imprisonment is not in and of itself a legal disability. Incarceration and
ignorance of the filing requirements of the New York Court of Claims Act do not
excuse late filing. However, since prisoners have a right to hire counsel and the
right to sue the State, if you are denied an opportunity to contact an attorney or
denied access to the prison’s law library to learn your rights, this may be
considered a reasonable excuse for late filing;105
(2) Whether the State had notice of the essential facts of the claim;
(3) Whether the State had an opportunity to investigate the circumstances of the claim;
(4) Whether the claim appears to be meritorious;106
(5) Whether the failure to file a timely claim or Notice of Intention resulted in
substantial prejudice to the State;
(6) Whether the claimant has any other available remedy; and
(7) Any other relevant factors.107
103. See DeOlden v. State, 91 A.D.2d 1057, 1057, 458 N.Y.S.2d 666, 666 (2d Dept. 1983)
(acknowledging a reasonable excuse for delay in filing a claim where the claimant’s extreme
psychological trauma from amputation of his leg affected his ability to function after being discharged
from the hospital); Schweickert v. State, 64 A.D.2d 1026, 1026–27, 409 N.Y.S.2d 308, 309 (4th Dept.
1978) (holding that the amendment to the Court of Claims Act contained in § 10(6), which grounds and
lengthens the time limits for allowing late claims, makes the failure to show a reasonable excuse for the
delay no longer fatal to a claim for late filing); Cole v. State, 64 A.D.2d 1023, 1024, 409 N.Y.S.2d 306,
308 (4th Dept. 1978) (holding excuse reasonable because claimant was completely immobilized by his
injuries and heavily medicated).
104. N.Y. Ct. Cl. Act § 10(5) (McKinney Supp. 2007); N.Y. C.P.L.R. 208 (McKinney 2003 & Supp.
2007); see Vitello v. State, 66 Misc. 2d 582, 585, 321 N.Y.S.2d 787, 790 (N.Y. Ct. Cl. 1971) (“Infancy,
along with incompetency, habitual drunkenness, and the like, are legal disabilities.”), aff’d, 39 A.D.2d
792, 332 N.Y.S.2d 289 (3d Dept. 1972). For an application of insanity to the tolling of statutes of
limitations, see McCarthy v. Volkswagen of America, Inc., 78 A.D.2d 849, 849, 432 N.Y.S.2d 722, 722–
23 (2d Dept. 1980) (granting defendant’s motion to dismiss on grounds that plaintiff’s claim was time-
barred because plaintiff was not suffering from a temporary mental incapacity which prevented him
from understanding or protecting his legal rights), aff’d, 55 N.Y.2d 543, 548–49, 435 N.E.2d 1072, 1075,
450 N.Y.S.2d 457, 460 (1982); Vitello v. State, 66 Misc. 2d 582, 586, 321 N.Y.S.2d 787, 791 (N.Y. Ct. Cl.
1971) (holding that plaintiff was under a legal disability at the time of his conviction, and it continued
until his final discharge even though his status changed from “hospitalization under commitment” to
“voluntary hospitalization,” and thus, his claim was filed in a timely manner), aff’d, 39 A.D.2d 792, 332
N.Y.S.2d 289 (3d Dept. 1972).
105. See Plate v. State, 92 Misc. 2d 1033, 1038, 402 N.Y.S.2d 126, 129 (N.Y. Ct. Cl. 1978)
(holding denial of claimant’s access to attorney and the law library to learn his rights for a substantial
part of the 90-day period prevented him from suing to the same degree as any other citizen and such a
denial provides an excuse for not filing on time).
106. Black’s Law Dictionary 1010 (8th ed. 2004) (defining “meritorious” as “meriting a legal
victory; having legal worth”).
In addition, if you served a Notice of Intention within the time limit, but then failed to
file a claim within the required time, you may apply to the court for permission to treat the
Notice of Intention as a claim.108
The court may grant this application if:
(1) The application is made before the same type of action against a citizen of the State
would be disallowed under the provisions of article two of the Civil Practice Law and
Rules (this means, for example, if an assault claim against a citizen has to be brought
in less than two years, an application against the state must be made in less than
two years if you are bringing an assault claim);
(2) The Notice of Intention was timely served and filed, and contains facts sufficient to
constitute a claim; and
(3) The granting of the application would not prejudice the defendant (the State).109 The
State will be prejudiced if granting the application will damage the State’s legal
rights, especially the right to defend itself.110
The Court of Claims will not allow you to file a negligence tort claim more than three
years after an injury,111 or more than one year after the injury in the case of an intentional
tort claim (for example, assault and battery).112 Therefore, even though the Court of Claims
may have the power to allow late claims (but not loss of property claims), you should try to
file and serve within the initial ninety-day time limit. This is because courts can grant
permission to file a late notice only to the extent of the New York statute of limitations for
the claim you are filing. Generally speaking, actions for personal injury must begin within
three years of the incident.113 The statute of limitations for a malpractice claim is two and a
half years.114
(b) Filing Fees
All persons must pay a fifty dollar filing fee whenever they bring a claim in the New York
State Court of Claims. 115 Prisoners follow the same steps as everyone else to appeal for
reduced filing fees or to be excused from these fees altogether.116
To get the reduced filing fee, you must submit an affidavit to the court explaining why
you cannot afford the full filing fee. 117 You should include in your affidavit detailed
information about your financial situation, including the amount of money in your prison
account, any income you receive from a prison job or work release program, and any property
108. N.Y. Ct. Cl. Act § 10(8)(a) (McKinney Supp. 2007). Section 10(8)(a) provides a claimant who
timely serves and files a notice of intention, but who fails to timely serve or file a claim, may apply for
permission to treat notice of intention as a claim. See Wright v. State, 195 Misc. 2d 597, 602, 760
N.Y.S.2d 634, 638 (N.Y. Ct. Cl. 2003) (clarifying debate in previous cases over § 10(8)(a) and affirming
that courts do have the discretion to treat a notice of intention as a claim). But see Murray v. State, 5
Misc. 3d 398, 401, 781 N.Y.S.2d 724, 729 ( N.Y. Ct. Cl. 2004) (construing subdivision literally, as
opposed to more broadly, thus implying there should be no discretion to treat notice of intention as a
claim).
109. N.Y. Ct. Cl. Act § 10(8)(a) (McKinney Supp. 2007).
110. Prejudice is defined as “[d]amage or detriment to one’s legal rights or claims.” Black’s Law
Dictionary 1218 (8th ed. 2004).
111. N.Y. C.P.L.R. 214 (McKinney 2003).
112. N.Y. Ct. Cl. Act § 10(3-b) (McKinney Supp. 2007); N.Y. C.P.L.R. 215(3) (McKinney 2003). In
addition, property claims have shorter deadlines for filing—these must be filed within 120 days of the
administrative decision on the claim (that is, after the Directive #2377 decision). N.Y. Ct. Cl. Act § 10(9)
(McKinney Supp. 2007).
114. N.Y. C.P.L.R. 214-a (McKinney 2003 & Supp. 2006).
115. The fee requirements can be found in N.Y. Ct. Cl. Act § 11-a (McKinney Supp. 2007).
116. N.Y. C.P.L.R. 1101(d) (McKinney 1997 & Supp. 2007).
you own.118 If any other person has an interest in the monetary award you may win (for
example, if a lawyer is representing you in exchange for a percentage of any damages
awarded), you must also include this in your affidavit.119 You should tell the court, in your
affidavit, if you are unable to work because you are medically or mentally ill, or, if you are in
protective custody, because you are in danger, and no jobs are offered. Also explain any
outstanding obligations you have, especially court-ordered obligations such as child support
or restitution. If your case has already begun, you will have to give notice to the State, as the
party you are suing, that you have filed this motion.120
See Appendix A-5 for a sample affidavit requesting a reduced filing fee. If the court
denies your request for the reduced filing fee, it will notify you. You will then have 120 days
to pay the full fee (fifty dollars) or else your case will be dismissed.121
If you win your case, the court will refund you any filing fee that you paid.
(c) Filing in the Right Place and in the Right Way
All claims are filed at the office of the Clerk of the Court of Claims in Albany.122 If you
are proceeding by Notice of Intention, you do not need to file the Notice of Intention in the
Court of Claims; however, you must serve the Attorney General with the Notice of
Intention. 123 (This is very important—if your case goes to trial, you must show that the
Notice of Intention was served on the Attorney General.)
When you file your actual claim, you must also serve the defendant (since the State of
New York is the defendant, you serve the Attorney General). After you serve the Attorney
General, you must file proof of service with the Clerk of the Court of Claims within ten days
by filing an Affidavit of Service describing the service.124 Filing is accomplished by delivering
the necessary papers to:
Clerk, New York State Court of Claims
P.O. Box 7344 Capitol Station
Albany, New York 12224
When you file the original claim, you must also file two copies of each document with the
Clerk’s office. One copy of each must also be served on the Attorney General. The address is:
Attorney General’s Office
Department of Law
Capitol Building
Keep at least one copy of each document concerning your suit for your own records.
Sample claim and notice forms appear at the end of this Chapter in Appendix A.
Your papers can be personally delivered to the Clerk or, in the Clerk’s absence, to some
person in charge of the office, or they can be sent by certified mail, return receipt requested
to the Clerk’s office. A copy of the papers must also be personally served upon or sent by
118. N.Y. C.P.L.R. 1101(a) (McKinney 1997 & Supp. 2007).

120. N.Y. C.P.L.R. 1101(c) (McKinney 1997 & Supp. 2007).
122. N.Y. Ct. Cl. Act § 11(a)(i) (McKinney Supp. 2007).
124. N.Y. Comp. Codes R. & Regs. tit. 22, § 206.5(a) (2007). “Service” means you have delivered
and you can prove that you have delivered copies of the legal complaint to the person (or in the case of
the Court of Claims, the State) you are suing. In the Court of Claims, service is accomplished by
sending a copy of the claim to the State Attorney General.
certified mail with the return receipt requested, to the Attorney General.125 The Clerk of the
Court of Claims must notify you of the date of the filing of the claim.126
Service on the State is not considered completed until papers have been received by both
the clerk and the Attorney General’s Office (the Notice of Intention need only be received by
the Attorney General).127 Remember, putting your papers in the mail is NOT the same as
filing them. You must mail your documents early enough so that they are received within
the time limits mentioned earlier (again, either ninety or 120 days). Allow enough time for
delays in the mail. Do not forget: your claim may be dismissed if you fail to serve the State in
the manner and time the law requires.128
IMPORTANT! If you cannot deliver your Notice of Intention and/or your actual claim in
person, you should send them “certified mail with return receipt requested.” When the
postal service delivers the documents, they will mail you a receipt to prove the delivery
happened. Do not lose this receipt, as it is the only way to prove that you completed service.
If you do not receive a return receipt from both the Court of Claims and the Attorney
General’s Office within a reasonable period of time, you should send a follow-up letter to one
or both of these offices asking if they have received your claim.129
(d) Filing the Right Documents
Sample copies of papers you may find necessary to file are provided in Appendix A at the
end of this Chapter, including sample claims and Notices of Intention to file a claim.
Remember to file the required number of copies of each paper (discussed above in Part
D(1)(c), “Filing in the Right Place and in the Right Way”).
Your claim must be clearly typed or printed on 8½-by-11 inch paper. You should
specifically include
(1) Your name and address;
(2) Where the incident happened;
(3) When the incident happened;
(4) The manner in which New York State (through its employees’ actions) was negligent
or intentionally responsible for your injury;
(5) A description of the incident (include the names of the individuals responsible, if you
know);
(6) A detailed description of the injuries you received as a result of the incident;
(7) The date and place you served your Notice of Intention to File a Claim (if you served
a Notice of Intention);
(8) A statement that you are filing this claim within the time limits in the Court of
Claims Act; and
(9) An itemized listing of the damages you are claiming.130

127. N.Y. Ct. Cl. Act § 11(a) (McKinney Supp. 2007); see also Aetna Cas. & Sur. Co. v. State, 92
Misc. 2d 249, 252, 400 N.Y.S.2d 469, 471 (N.Y. Ct. Cl. 1977) (dismissing claim that was mailed 88 days
after accident but not received by the Court of Claims clerk until the 93rd day).
128. See Mingues v. State, 146 Misc. 2d 412, 413, 550 N.Y.S.2d 802, 803 (N.Y. Ct. Cl. 1990)
(dismissing claim when notice of intention and claim were sent by regular mail). But see Colon v. State,
146 Misc. 2d 1034, 1035–36, 553 N.Y.S.2d 979, 980 (N.Y. Ct. Cl. 1990) (holding that the issue of method
of service under § 11 is one of personal jurisdiction that may be waived).
129. The Court of Claims sends a letter of acknowledgment once a claim has been received. The
Attorney General’s Office does not; therefore, if your claim was served in person, get an affidavit that
the claim was served, or if the claim was sent Return Receipt Requested, keep the green card.
130. N.Y. Ct. Cl. Act § 11(b) (McKinney 1989 & Supp. 2007) (“The claim shall state the time
when and place where such claim arose, the nature of same, [that a negligent or intentional action by a
state employee has injured you or your property], and the items of damage or injuries claimed to have
If you are filing a claim initially, rather than filing a Notice of Intention to File a Claim,
you do not need to include step (7) above, and step (8) should read that your claim is being
filed within the ninety-day statutory limit. At the bottom of your claim form you must
include and sign a “verification,” which states that all of the information included in your
claim is true.131 You must sign this verification in the presence of a notary public, who then
must sign his or her name. The prison librarian may be a notary public or may be able to
direct you to the person who provides that service within the prison.
If you are filing a motion for permission to file a late claim, your motion should describe
the facts that will convince the Court of Claims that it should permit you to file late and,
among other things, that the State will not be “substantial[ly] prejudiced” by the delay,
which means that the State will not have a harder time defending itself because you filed
late.132
(e) List of all Papers to be Filed, Number of Copies, and How They are
Distributed
See Figure 1, below, to determine how many copies you need to file.
Clerk of N.Y. Attorney Total Number of Copies
Court General Self You Will Need
Notice of Intention to File 1
Claim 0 copies 1 copy copy 2 copies
1 original
Claim and Any Supporting and 1 1 original and
Affidavits 2 copies 1 copy copy 4 copies
1 original
Motion for Permission and 1 1 original and
to File Late Claim 2 copies 1 copy copy 4 copies
1 original
Affidavit in Support of and 1 1 original and
Reduction of Fees 2 copies 1 copy copy 4 copies
Figure 1: Copies needed when filing notices, claims, motions, or affidavits.
2. How to Obtain Help from a Lawyer
Since a tort claim filed against New York State is not a criminal action, you do not have
the right to be assigned a lawyer. While the court may, at its discretion, require an attorney
to represent poor people without providing for the attorney’s compensation, it is not likely to
do so.133
It is often difficult to find a lawyer who will take your case. If it seems likely that you will
win a large amount of money from the State, you may be able to find a private attorney to
represent you on a “contingency fee” basis where the attorney charges you only if you win the
case. If you win, the attorney takes his fee (usually a percentage of the money you won), and
any additional costs of representing you, from your award. You may be able to find the
number of an attorney to call through the New York State Bar Association. If you cannot find
been sustained and the total sum claimed.”).

131. N.Y. Ct. Cl. Act § 11(b) (McKinney 1989 & Supp. 2007); N.Y. C.P.L.R. §§ 3020, 3021
(McKinney 1991 & Supp. 2006). For a sample Verification, see Appendix A-2 of this Chapter.
132. N.Y. Ct. Cl. Act § 10(6) (McKinney 1989 & Supp. 2007).
133. See Stephens v. State, 93 Misc. 2d 273, 274, 404 N.Y.S.2d 536, 537 (N.Y. Ct. Cl. 1978)
(refusing to assign counsel in prisoner’s civil case unless State provides for attorney compensation); see
also Menin v. Menin, 79 Misc. 2d 285, 293, 359 N.Y.S.2d 721, 729 (Sup. Ct. Westchester County 1974),
aff’d mem., 48 A.D.2d 904, 372 N.Y.S.2d 985 (2d Dept. 1975) (refusing to assign counsel in a civil case
to represent poor prisoner seeking damages from State for injuries allegedly received during
confinement, in absence of any legislative provision of funds for compensation of such counsel).
a lawyer, you can bring your own claim in the Court of Claims and even appeal to the
Appellate Division of the New York Supreme Court.
3. Examinations Before Trial: Obtaining Testimony from Witnesses
Like other civil cases, you are allowed to engage in some forms of pretrial discovery.
Chapter 8 of the JLM, “Obtaining Information to Prepare Your Case: The Process of
Discovery,” discusses the processes of discovery for federal and New York State trials.
Chapter 8 will help you decide if you need to take discovery in your case. Discovery may
include any of the following methods to obtain evidence to support your claim before trial:
interviewing witnesses, requesting documents, and demanding physical and mental
examinations.134 The same discovery rules that apply to private persons in lawsuits apply to
the State.135
You must pay any fees and expenses required in obtaining testimony.136 Poor person
status does not permit you to avoid paying these costs.
4. Reopening Trial Before Decision
If you discover new evidence favorable to you after you have closed your case in the Court
of Claims but before the court has made a decision, you can submit a Notice of Motion to
Reopen a Claim. Use this Notice only if you have discovered important and relevant evidence
that could make a difference in the court’s decision,137 but be aware that courts rarely grant
these motions.
5. Final Process and Appeal
(a) Appeal from a Judgment
Appeals from a judgment may be taken upon questions of law, fact, or both, or if the
amount awarded was too high or too low. When you make an appeal, the Appellate Division
may affirm, reverse or modify the judgment, dismiss the appeal, grant a new trial, or send
the case back to a lower court for further proceedings.138
Once the Court of Claims makes a decision in your original case, that decision will be
entered with the Clerk of the Court of Claims, and then the Attorney General will serve you
with a copy of a notice that this judgment has been entered. You must file a Notice of
Appeal within thirty days of the date on which the Attorney General mails you the
notice that your judgment has been entered.139 Because there may be problems with
mail getting to you promptly in prison, be sure to check the date on the envelope you receive
with this notice.
You must serve both the Attorney General and the Clerk of the Court of Claims a written
Notice of Appeal, briefly stating the reasons for the appeal.140 You will need a transcript of
your trial in the Court of Claims. If you were permitted to proceed as a poor person, you may
have a right to a free copy of this transcript.141 If you have not filed for permission to proceed

135. N.Y. C.P.L.R. 3102(f) (McKinney 2005 & Supp. 2007).
136. N.Y. Ct. Cl. Act § 18 (McKinney 1989 & Supp. 2007).
137. See Williams v. State, 90 A.D.2d 882, 884, 456 N.Y.S.2d 528, 530 (3d Dept. 1982) (holding
that, where the Court of Claims was unable to accurately measure the damages resulting from a partial
taking of claimant’s property, which then affected the market value of the remaining premises, the
court below properly reopened the trial to obtain further and more accurate evidence on the issue).
138. N.Y. Ct. Cl. Act § 24 (McKinney 1989 & Supp. 2007).
139. N.Y. Ct. Cl. Act § 25 (McKinney 1989 & Supp. 2007)
140. N.Y. Ct. Cl. Act § 25 (McKinney 1989 & Supp. 2007). See Appendix A-10 for a sample Notice
of Appeal.
141. N.Y. C.P.L.R. 1102(b) (McKinney 1997 & Supp. 2007).
as a poor person, you may wish to apply for status as a poor person at this point. For
information on the procedure for applying for status as a poor person, please see above Part
D(1)(b).
(b) Final Process
If you win at trial, you will be paid the amount of the judgment, unless either you or the
State appeals all or part of the judgment of the Court of Claims. The Comptroller of the State
of New York will mail you a check once you submit the following:
(1) A copy of the judgment certified by the Clerk of the Court of Claims;
(2) A certificate from the Attorney General stating that the State has not and will not
take an appeal from the judgment; and
(3) A release signed by your attorney (if you have one) that he or she has waived any fee
for services provided to you.142
Note that this is only a waiver of attorney’s fees for purposes of New York State. In
actuality, since you and your attorney have a contractual relationship, the State will make
out the check to both you and your attorney and will probably mail it to your attorney’s
office. You and your attorney will most likely have already decided what percentage of any
award the attorney will keep. Typically, attorneys will deduct the expenses of trying your
case from the total award, then keep one-third of what remains. Thus, you will receive two-
thirds of the damages awarded to you, minus expenses.
E. Checklist for Filing With the Court of Claims
6. Does your claim include violations of your constitutional rights?
(a) If Yes
If yes, you may bring suit in federal district court under 42 U.S.C. § 1983 or in State
Supreme Court. See JLM Chapter 16, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to
Obtain Relief from Violations of Federal Law.” Recall that you may also file New York State
constitutional claims with the Court of Claims. New York’s state constitution protects many
of the same rights as the Bill of Rights.
(b) If No
If no, then you may sue under the state statute that allows for claims such as yours; in
New York, you may bring suit against the State in the Court of Claims.
**Note: You must use the Department of Correctional Services’ internal procedure to
address issues with loss of or damage to property, which allows for prisoner compensation
before bringing your claim to the Court of Claims. See Part C(1) of this Chapter.
**Note: If you wish to sue the federal government for a tort, and none of your
constitutional rights have been violated, you must sue under the Federal Tort Claims Act.143
7. When bringing a suit in the New York Court of Claims:
(a) File a claim or Notice of Intention
Be sure to file a claim within ninety days of the accident or injury at the clerk’s office in
Albany. From there, serve a claim or Notice of Intention to File a Claim with return receipt
requested upon the Attorney General’s Office within ninety days of the accident or injury.
You should always err on the side of serving the Notice of Intention, even if you are not
certain if you will later proceed forward with the claim. That way, you may still have an
142. N.Y. Ct. Cl. Act § 20(6) (McKinney 1989 & Supp. 2007).
143. Federal Tort Claims Act provisions are found in 28 U.S.C. §§ 1291, 1346, 1402, 2401, 2402,
2411, 2412, 2671–80 (2000).
opportunity to file a claim later should you decide to do so. Remember: the papers must be
received within ninety days.
(b) File the original and two copies of each document
File the original and two copies of each document with the clerk’s office when you file
your claim;
(1) Include all necessary information in your claim. See Part C(1)(e) of this Chapter;
(2) Serve one copy of each document on the Attorney General;
(3) Keep one copy of every document for your own records;
(4) File proof of service on the Attorney General (the representative of the defendant, the
State) at the Clerk’s office in Albany within ten days of such service; and
(5) Include a notarized verification with your claim.
8. If you are appealing a judgment
Serve both the Attorney General and the Clerk of the Court of Claims with a written
Notice of Appeal. You should state the grounds of appeal, though it is not required that you
explain in the Notice all the reasons why you want to appeal. Within thirty days after the
notice of the judgment being entered and served was mailed to you.
F. Conclusion
You should consider several things before you think about bringing a tort claim. First,
you should determine what kind of tort claim you want to bring and whether you can prove
that you have suffered an actual injury. If you feel confident that you have a legitimate
claim, check to see whether you must exhaust facility grievance procedures before you think
about the court in which you will file a claim and the kind of relief you will seek. Observe all
deadlines for filing documents (especially the strict ninety-day time window in which you
must file your claim or Notice of Intention with the Court of Claims), make sure you file the
right documents in the right places, and pay the proper fees. Consult the checklists provided
in this chapter and the sample documents in the Appendix when filing your tort claims. Last
but not least, always retain photocopies of all of the documents you file.
APPENDIX A
SAMPLE TORT CLAIM AND SUPPORTING PAPERS

A-1. Sample Notice of Intention to File a Tort Claim
A-2. Sample Verification
A-3. Sample Assault and Battery Tort Claim
A-4. Sample Negligence Tort Claim
A-5. Sample Affidavit in Support of Application for a Reduction of Fees
A-6. Sample Affidavit in Support of Motion for Permission to File a Late Claim
A-7. Affidavit of Service
A-8. Sample Demand for Bill of Particulars
A-9. Sample Claimant’s Bill of Particulars
A-10. Sample Notice of Appeal
Parts A, B, and C of this Chapter tell you how to use each of these papers. Do not use
these forms until you have read all of this Chapter.
These papers are examples of the types of documents that you must file in the Court of
Claims for various purposes. You should use the basic form of these papers where
appropriate, but you must be careful to substitute the information that is applicable to your
own case for the general information that is supplied by these samples. The endnotes
following the sample documents tell you how to fill in the necessary information. These are
only samples. DO NOT TEAR THESE FORMS OUT OF THE JLM. Many of the following
forms can also be found in the New York Consolidated Laws Service Vol. 43 (1987). In
addition, the form for applying for a reduction of filing fees can be obtained from the Chief
Clerk’s Office in Albany.
A-1. Sample Notice of Intention to File a Tort Claim
State of New York Court of Claims
———————————————————————————————-X
:
__________________________i :
:
:
- against - : Notice of Intention
: to File Claim
:
The State of New York :
:
———————————————————————————————-X
TO THE ATTORNEY GENERAL OF THE STATE OF NEW YORK:
PLEASE TAKE NOTICE, that the undersigned __________________,ii intends to file a
claim against the State of New York, pursuant to Sections 10 and 11 of the Court of Claims
Act.
The post office address of the claimant herein is: _________________.iii
For the time being I am representing myself.
The time when and the place where such claim arose and the nature of my claim are as
follows:
__________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______.iv
__________________________ v
Claimant
Dated: _______________________ vi
A-2. Sample Verification

STATE OF NEW YORK )
)ss:
COUNTY OF ________vii )
_________________________,viii being duly sworn, says:
I am the claimant above named; I have read the foregoing claimix against the State of
New York and know its contents; the same is true to my knowledge, except as to the matter
therein stated to be alleged on information and belief, and as to those matters, I believe it to
be true.
______________________x
Claimant
Sworn to before me this ________
day of _________________, 20____.
______________________________
Notary Publicxi
A-3. Sample Assault and Battery Tort Claimxii
———————————————————————————————-X
:
___________________________xiii :
:
:
against : Claim No. __________xiv
:
:
The State of New York. :
———————————————————————————————-X
Claimant, _______________________, xv appearing pro se, complaining of defendant, the
State of New York, alleges the following:
1. The post office address of the claimant herein is ___________________.xvi
2. This claim is for assault and battery of the State committed by its employee
_________________ xvii for injuring the claimant while acting within the scope of his/her
employment and in the discharge of his/her duties, on __________________ xviii at
_________________________.xix
3. [On September 10, 1999, at approximately 6:00pm, Correction Officer Smith at XYZ
Correctional Facility told the claimant [name] to leave the day room where claimant was
mopping the floor.
4. Claimant responded that he had been told to remain there by another officer, whose
name he could not remember.
5. Correction Officer Smith then told claimant to leave immediately or he would receive
an infraction.
6. Claimant, pursuant to Correction Officer Smith’s order, began to leave when, without
just cause or provocation, the defendant Correction Officer Smith willfully and maliciously
grabbed the mop from claimant and hit him across the chest and head with the handle,
causing the claimant to sustain serious injury.
7. The actions of Correction Officer Smith were intentional and unwarranted.xx
8. As a result of this assault and battery, claimant was hospitalized for two weeks and
received 26 stitches on his chest and head.
9. As a result of this incident, claimant suffered severe physical and mental pain and
anguish.
10. Claimant’s hearing has been permanently impaired as a result of a blow on the head
by Correction Officer Smith.]
11. The particulars of claimant’s damages are as follows:xxi
a) Medical expensesxxii
__________________________________________________________________________________
______________________________________________________________________________________
_.
b) Lost earningsxxiii
[Claimant having been a musician prior to his incarceration, claimant having anticipated
returning to that profession upon his release, claimant’s hearing having been impaired as a
result of this incident so as to render him unable to be gainfully employed as a musician,
claimant seeks $_____ in damages for lost potential earnings.]
c) Pain and sufferingxxiv
__________________________________________________________________________________
______________________________________________________________________________________
_.
d) Mental anguishxxv
__________________________________________________________________________________
______________________________________________________________________________________
_.
e) Permanent disability
__________________________________________________________________________________
______________________________________________________________________________________
_.
12. Attached hereto as part of the claim is a sketch of the place of the above-described
incident.xxvi
13. Notice of intention to file this claim was served in the Office of the Clerk of the Court
of Claims, on the ____ day of _____________, 20____, and in the office of the Attorney General
on the ______ day of _____ 20_____.xxvii
14. This claim is filed within ____ years after the claim accrued, as required by law.xxviii
15. This action is filed pursuant to Sections 10 and 11 of the Court of Claims Act.
WHEREFORE, claimant respectfully requests judgment against the defendant in the
sum of _______ dollars ($________).xxix
____________________________ xxx
Pro-Se
Dated: ________________________ xxxi
A-4. Sample Negligence Tort Claimxxxii

———————————————————————————————-X
:
____________________________xxxiii :
:
:
against : : Claim No. __________xxxiv
:
:
The State of New York. :
———————————————————————————————-X
Claimant, _______________________,xxxv appearing pro se, complaining of defendant, the
State of New York, alleges the following:
1. The post office address of the claimant herein is ___________________.xxxvi
2. This claim is for negligence of the State [for failure to adequately maintain the ceiling
of the day room of] xxxvii ___________________________xxxviii on the ___ day of __________,
20___, so as to cause serious injury to the claimant, _____________________.xxxix
3. It was the duty of the defendant State of New York [to maintain in a safe and proper
condition the ceilings and walls in the correctional facilities of the State of New York, and
more particularly the ceiling in the day room on Tier 3xl at XYZ Correctional Facility.xli
4. On and prior to the 5th day of May, 2000, the defendants disregarded their duty by
negligently and carelessly permitting the ceiling at Tier 3 at XYZ Correctional Facility to be
improperly and dangerously maintained in an unsafe condition in that the plaster had
disintegrated so that large portions had become loosened and not properly held in place.
5. On the 5th day of May, 2000, at approximately 1:00pm, claimant [name] was sitting
in the day room of Tier 3 at XYZ Correctional Facility reading a newspaper when a large
portion of plaster fell from the ceiling striking claimant on the head, shoulder, arm, and leg
and causing him to sustain serious injuries.
6. On the 5th day of May, 2000, and for three months prior, the defendant had actual
knowledge and notice of the defective and dangerous condition of the ceiling of the day room
as claimant had filed a grievance requesting the repair of the ceiling with the Superintendent
of XYZ Correctional Facility on February 5, 2000.]xlii
7. [As a result of this incident, claimant received a broken arm, a broken leg, and
injuries to the shoulder and head, including recurring headaches.
8. As a result of this incident, claimant suffered severe physical and mental pain and
anguish.
9. As a result of this incident, claimant has suffered permanent disabilities including
chronic headaches, lameness, and the loss of the full use of his arm.]xliii
10. Attached hereto as part of the claim is a sketch of the place of the above-described
incident.xliv
11. The particulars of claimant’s damages are as follows:xlv
a) Medical expensesxlvi
__________________________________________________________________________________
_________________________________________________________________________________.
b) Lost earningsxlvii
[Claimant having been a carpenter prior to his incarceration; claimant having anticipated
returning to that profession upon his release; claimant’s loss of the full use of the arm as a
result of this incident so as to render him unable to be gainfully employed as a carpenter;
claimant seeks $_____ in damages for lost potential earnings.]
c) Pain and sufferingxlviii
__________________________________________________________________________________
_________________________________________________________________________________.
d) Mental anguishxlix
__________________________________________________________________________________
_________________________________________________________________________________.
e) Permanent disability
__________________________________________________________________________________
_________________________________________________________________________________.
12. Notice of intention to file this claim was served in the Office of the Clerk of the Court
of Claims, on the ____ day of _____________, 20____, and in the office of the Attorney General
on the ______ day of _____ 20_____.l
13. This claim is filed within ____ years after the claim accrued, as required by law.li
14. This action is filed pursuant to Sections 10 and 11 of the Court of Claims Act.
WHEREFORE, claimant respectfully requests judgment against the defendant in the
sum of _______ dollars ($________).lii
____________________________ liii
Pro-Se
Dated: ________________________ liv
A-5. Sample Affidavit in Support of Application for a Reduction of
Fees
———————————————————————————————-X
: Application Pursuant to
_________________________________lv : N.Y. C.P.L.R. 1101(f)
DIN No. ______________,lvi Claimant :
:
against : : Claim No.________lvii
:
:
The State of New York, :
Defendant. :
———————————————————————————————-X
STATE OF NEW YORK )
ss.:
COUNTY OF ____________lviii)
I, _______________________________,lix being duly sworn, hereby declare as follows:
1) I am the claimant in the above-entitled proceeding, I am a prisoner in a [federal,
state, or local] correctional facility, _____________________,lx and I submit this affidavit in
support of my application for a reduction of the filing fee pursuant to CPLR 1101(f).
2) I currently receive income from the following sources, exclusive of correctional facility
wages:
3) I own the following valuable property (other than miscellaneous personal property):
NONElxi
List property:lxii Value:
___________________________________________ ___________________
___________________________________________ ___________________
___________________________________________ ___________________
4) I have no savings, property, assets, or income other than as set forth herein.
5) I am unable to pay the filing fee necessary to prosecute this proceeding.
6) No other person able to pay the filing fee has a beneficial interest in the result of this
proceeding.
7) The facts of my case are described in my claim and other papers filed with the court.
8) I have made no prior request for this relief in this case.
________________________________________lxiii
day of _________________, 20____.
______________________________
Notary Publiclxiv
AUTHORIZATIONlxv
I, _____________________,lxvi inmate number ______________,lxvii request and authorize the
agency holding me in custody to send to the Clerk of the Court of Claims certified copies of
the correctional facility trust fund account statement (or the institutional equivalent) for the
past six months.
I further request and authorize the agency holding me in custody to deduct the filing fee
from my correctional facility trust fund account (or the institutional equivalent) and to
disburse those amounts as instructed by the Court of Claims. This authorization is furnished
in connection with the above entitled case and shall apply to any agency into whose custody I
may be transferred.
I UNDERSTAND THAT THE ENTIRE FILING FEE AS DETERMINED BY THE
COURT OF CLAIMS WILL BE PAID IN INSTALLMENTS BY AUTOMATIC
DEDUCTIONS FROM MY CORRECTIONAL FACILITY TRUST FUND ACCOUNT EVEN
IF MY CASE IS DISMISSED.
___________________________lxviii
___________________________lxix
A-6. Sample Affidavit in Support of Motion for Permission to File a Late
Claimlxx
State of New York Court of Claimslxxi
——————————————————————————————————-X
:
_______________________________lxxii :
: Motion For Permission To
: File A Late Claim
- against - :
:
:
———————————————————————————————————X
TO THE CLERK OF THE COURT OF CLAIMS:
TO THE ATTORNEY GENERAL OF THE STATE OF NEW YORK:
The undersigned claimant, _________________________, lxxiii hereby deposes and swears
under penalty of perjury that the following is true.
Claimant requests the permission of the Court to file the attached claim against the
State of New York, pursuant to the provisions of Section 10(6) of the Court of Claims Act for
filing late claims. In support of my motion for permission to file this claim, I respectfully
submit that:
1. The incident underlying this claim occurred on ___________________.lxxiv Under the
provisions of Article Two of the Civil Practice Law and Rules, I would not be barred from
asserting a like claim against a citizen of the State.
2. The delay in filing this claim is excusable because: [I am not a lawyer and I had no
access to professional legal counsel or to the prison law library during the statutory period for
filing because of the illness caused by the incident underlying this claim.lxxv
3. The State had notice of the essential facts constituting the claim in that medical
personnel in the prison dispensary were aware of my illness during my stay in the prison
dispensary, and the State also had opportunity to investigate the cause of this illness, which is
the subject of this claim, by simply questioning the guards and other persons who were present
in the machine shop at the time of my injury.]lxxvi
4. I have no other available remedy for the injury and suffering I sustained because of
the State’s negligence.
__________________________ lxxvii
Claimant
Dated: ________________, 20____ lxxviii
_______________________
_______________________
A-7. Affidavit of Servicelxxix
——————————————————————————————————X
:
_______________________________lxxx :
:
: Affidavit of Service
- against- :
:
:
——————————————————————————————————X
STATE OF NEW YORK)
)
COUNTY OF_________lxxxi)
_________________________,lxxxii being duly sworn, deposes and says:
I am over the age of 18 and reside at _________________________,lxxxiii
On __________________________,lxxxiv I served the within _________________________ lxxxv
upon the Attorney General of the State of New York by certified mail
No.________________________ , return receipt requested at the following address:
Department of Law
Capitol Building
Albany, NY 12224
said address being the address designated by the Attorney General for that purpose, by
depositing a true copy of the within in a postpaid properly addressed wrapper in an official
depository under the exclusive care and custody of the United States Postal Service within
the State of New York.
__________________________lxxxvi
Claimant
day of _________________, 20____.
______________________________
Notary Publiclxxxvii
A-8. Sample Demand for Bill of Particularslxxxviii
————————————————————————————————X
:
_______________________________lxxxix :
Claimant, : Demand for
: Bill of Particulars
- against - :
: Claim #: __________
:
Defendant. :
————————————————————————————————X
SIR:
PLEASE TAKE NOTICE that you are hereby required to serve upon the defendants
within 30 days after service of a copy of this notice, a verified bill of particulars, setting forth
in detail:
(a) The date and time of the occurrence.
(b) Its exact location.
(c) A general statement of the acts or omissions constituting the negligence claimed.
(d) Whether actual or constructive notice is claimed.xc
(e) If actual notice is claimed, state when and the name of the person to whom same was
given.
(f) Statement of the injuries and description of those claimed to be permanent.
(g) Length of time confined (a) to bed, (b) to house.
(h) Length of time incapacitated from employment; nature of employment.
(i) Total amounts claimed as special damages for (1) physicians’ services and medical
supplies; (2) loss of earnings, with name and address of the employer; (3) hospital expenses;
names of hospitals; (4) nurses’ services.
(j) Address of claimant. If claimant is married women, state maiden name.
(k) What statutes, ordinances, rules, and regulations claimant claims were violated by
defendant.
Hon. __________________________xci
Attorney General of the State of New York
Department of Law
Albany, NY 12224
By:____________________________
Assistant Attorney General
A-9. Sample Claimant’s Bill of Particularsxcii
———————————————————————————————-X
:
______________________________xciii :
Claimant, :
: Bill of Particulars
- against - :
: Claim #: __________
:
Defendant. :
———————————————————————————————-X
Claimant, pursuant to the demand of the defendant, submits the following for his/her bill
of particulars:
1. The occurrence took place on [May 5, 2000 at approximately 1:00p.m.].
2. The occurrence took place in the [day room of Tier 3 at XYZ Correctional Facility].
3. The negligence of the defendants consisted of those acts alleged in paragraphs 4, 5,
and 6 of the claim; specifically, [the failure to maintain in a safe and proper condition the
ceilings and walls of the day room of Tier 3 at XYZ Correctional Facility].
4. Actual notice claimed.
5. Actual notice was given by the filing of a grievance with the Superintendent of [XYZ
Correctional Facility requesting the repair of the ceiling on February 5, 2000].
6. As a result of this incident claimant received [a broken arm, a broken leg, injuries to
the shoulder and head, including recurring headaches, and severe physical and mental pain
and anguish]. Permanent disabilities include [chronic headaches, lameness, and the loss of
full use of the arm].
7. Claimant was confined in the hospital for three weeks, in the prison infirmary for ten
weeks and was bedridden for an additional five months.
8. Claimant lost employment wages [as law library clerk within the prison of $0.75 an
hour for eight months]. Claimant’s injuries also render him unable to be gainfully employed
[as a construction worker] (his employment prior to incarceration) upon his release from
prison, which will be no later than [May, 2004, the date of release based upon the serving of
the maximum sentence].
9. Special damages for:
(a) physicians’ services and medical supplies—not applicable;xciv
(b) loss of earnings—not applicable except as set forth in paragraph 8;
(c) hospital expenses—not applicable;
(d) nurses’ services—not applicable.
10. Claimant’s address currently is: ______________________________________________xcv
11. Claimant claims that defendant violated ______________________________.xcvi
_____________________________
Claimant, Pro se
_____________________________
_____________________________xcvii
Hon. __________________________xcviii
Department of Law
Albany, NY 12224
A-10. Sample Notice of Appealxcix
———————————————————————————X
:
__________________________c :
:
:
- against - : Notice of Appeal
:
: Claim #____________ci
:
———————————————————————————X
SIRS:
PLEASE TAKE NOTICE, that the undersigned __________________,cii hereby appeals to
the Appellate Division of the New York Supreme Court in and for the _____ciii Department,
from a judgment entered in the above entitled action in favor of the above named defendant,
the State of New York, against the above named claimant __________________,civ entered in
the office of the Clerk of the County of ______________cv on the ____ day of ____________,
20__,cvi and this appeal is taken from each and every part of said judgment as well as the
whole thereof.
Dated: _______________________cvii
__________________________cviii
Claimant, pro se
To: ______________________cix
Clerk of the County of ____________cx
Hon. ______________________cxi
Department of Law
Fill in the forms shown in Appendix A as follows:
i. Your name.
ii. Your name.
iii. Your complete address.
iv. Give clear, detailed information about the basis for your complaint: who did what, where,
when. Include the date of the incident and the facility in which it occurred.
v. Your signature.
vi. The date on which you sign the notice and your address. Attach a Verification. See Appendix
A-2 for a sample Verification.
vii. The name of the county in which you signed the affidavit.
viii. Your name.
ix. Your tort claim. See Appendices A-3 and A-4 for sample tort claims.
x. Your signature. Sign this only in the presence of a notary public, as the next footnote explains.
xi. This is where the notary public notarizes the Verification by signing it and fixing his or her
official seal to it. If you have difficulty obtaining the services of a notary public, you should have
another prisoner witness your signature and cross out “Notary Public.” (But only do this if it is
impossible for you to find a notary public.) If another prisoner is your witness, you should add the
following paragraph at the bottom of the certification:
I declare that I have not been able to have this [insert claim, or notice of
intent to file a claim, etc.] notarized according to law because [explain here
your efforts to get the claim, etc. notarized]. I therefore declare under penalty
of perjury that all of the statements made in this [claim, or notice of intent,
etc.] are true of my own knowledge, and I pray leave of the Court to allow this
[claim, or notice of intent, etc.] to be filed without notarization.
_______________________
(Your signature)
xii. This form is adapted from “Using the Court of Claims: A Guide for New York State Prisoners,”
a manual by the Prisoners’ Rights Project of The Legal Aid Society. Assault and battery are intentional
torts, in other words, torts that were committed purposefully and not by accident. In a claim for assault
and battery, as in all claims for intentional torts, you must allege the following:
(1) The facts of the assault and battery (the intentional tort). You should not simply say that assault and battery
was committed by the defendant; rather, you should give the basic facts of what happened. However,
remember that not only must you be able to prove all of the allegations set forth in your claim at trial, but that
any inconsistencies between the allegations set forth in your claim and the proof you present at trial will
make it more difficult for you to win at trial.
(2) Intent. You must state that the defendant’s actions were not accidental but rather were intentional.
(3) Injury. You must indicate that you were injured as a result of the defendant’s actions. You also must include
a description of the injuries you received.
(4) That the person who injured you was working for the State of New York and injured you while acting within
the scope of his/her employment and in the discharge of his/her duties.
(5) That you served the claim or the Notice of Intention to File a Claim upon the Attorney General within 90
days of the incident about which you are complaining.
(6) That your claim is filed pursuant to §§ 10 and 11 of the Court of Claims Act.
xiii. Your name.
xiv. Leave this blank. This will be filled in by the clerk of the Court of Claims.
xv. Your name.
xvi. Your prison address, including the name of your prison and the county where it is located.
xvii.Name of the state official who is responsible for your injury.
xviii. Insert the date (day, month, and year) when your injury or property damage occurred.
xix. Insert the name of the correctional facility where your injury or property damage occurred.
xx. Describe in detail how your injury happened, including names and dates. Each point should be
in its own paragraph with its own number.
xxi. You should only include the following factors that apply to your case for determining damages.
xxii.If applicable, list the medical expenses you have had to pay for or that you can show a high
probability of having to pay for in the future. You cannot obtain damages for any money your care cost
while in prison because the State pays those bills. However, in seeking damages, you might consider
such factors as the long-term effects of your injury after your release, including whether there is a high
probability that you may require hospitalization, specialist care, or the purchase and maintenance of
medical or therapeutic equipment such as, in this sample claim, the cost and maintenance of a hearing
aid.
xxiii. List below any current or future lost earnings.
xxiv. You should be specific in detailing the location, length, and severity of the pain and
suffering you have experienced.
xxv. Examples of factors that demonstrate mental anguish are nightmares, loss of sleep,
heightened anxiety, and depression.
xxvi. This paragraph is optional.
xxvii. Include the day, the month, and the year when you filed the Notice of Intention with
the Clerk for the Court of Claims and the Attorney General, respectively. Do not include this paragraph
if you did not serve a Notice of Intention.
xxviii. Paragraphs 13 and 14 will depend upon whether you served a Notice of Intention to
File Claim. N.Y. Ct. Cl. Act § 10 (McKinney Supp. 2004). If you did not serve a Notice of Intention, do
not include paragraph 13. Paragraph 14 should now read: “13. This claim is filed within ninety days
after the claim accrued as required by law.” If you are filing a late motion, add: “I am filing this motion
pursuant to the late motion that the Court of Claims granted on [date].”
xxix. Insert total amount of money you are claiming as damages.
xxx. Your signature.
xxxi. The date on which you sign the petition. Also write your mailing address in this space
and attach at the end of your claim a Verification exactly like the one illustrated at Appendix A-2.
xxxii. This form is adapted from “Using the Court of Claims: A Guide for New York State
Prisoners,” a manual by the Prisoners’ Rights Project of The Legal Aid Society. An action for personal
injury due to negligence, unlike assault and battery, does not require that you plead or prove intent.
However, you must show that your injuries were foreseeable—that your injuries were a likely result of
the defendant’s action or failure to act. You must also show that the negligence of the defendant-State’s
employee’s actions or failures to act when under a duty to do so were the major cause of the accident.
Also, where appropriate, you should plead that the defendant had actual or constructive knowledge
(knew or should have known) of the defective condition causing the accident.
xxxiii. Your name.
xxxiv. Leave this blank. This will be filled in by the clerk of the Court of Claims.
xxxv. Your name.
xxxvi. Your prison address, including the name of your prison and the county where it is
located.
xxxvii. Insert the type of the negligence tort you are claiming. For example, you may claim
failure to protect, negligent destruction of property, or inadequate medical care. These claims may be
stated as follows
Sample Failure to Protect Claim:
This claim is for negligence of the State for the failure of its
employee [insert name of the state/prison official responsible for not
protecting you] to protect claimant from the reasonably foreseeable
assault by [insert the prisoner’s name who attacked you] while acting
within the scope of his/her employment and in the discharge of
his/her duties, on [insert the date when the attack occurred], at
[insert the name of the facility where the attack occurred], so as to
cause serious injury to the claimant, [insert your name].
Sample Destruction of Property Claim:
This claim is for negligence of the State committed by its employee

[insert the name of the state or prison official responsible for the
damage to your property, if known] for the destruction of claimant’s
property while acting within the scope of his/her employment and in
the discharge of his/her duties, on [insert the date when the
destruction of your property occurred, if known], at [insert the name
of the facility where the destruction of your property occurred].
Sample Inadequate Medical Care Claim:
This claim is for negligence of the State committed by its employee

for failure of its employee [insert name of the state/prison official
responsible for not protecting you] to provide adequate medical care
following accepted medical standards on [insert the date when you
requested medical care that you did not receive or the date when you
received inappropriate medical care] while acting within the scope of
his/her employment and in the discharge of his/her duties, on [insert
the date when the denial of medical care occurred], at [insert the
name of the facility where the denial of medical care occurred], so as
to cause serious injury to the claimant, [insert your name].
xxxviii. Insert the name of the facility where the injury occurred.
xxxix. Insert your name.
xl. Insert the state’s duty of reasonable care that the State has violated. Examples of duty of care
include: medical care following accepted professional standards, protection from reasonably foreseeable
attacks by corrections officers or other prisoners, and other dangers that a reasonable official knew or
should have known about. If the duty that an official owes you is defined by a statute or regulation, you
may be able to make a claim of negligence per se.
xli. Insert the name of the facility where your injury occurred.
xlii. In the preceding paragraphs you should describe in detail how your injury happened, including
names and dates. Each point should be in its own paragraph with its own number.
xliii. In the preceding paragraphs you should describe your injury in detail. Each point
should be in its own paragraph with its own number.
xliv.This paragraph is optional.
xlv. You should only include the following factors that apply to your case for determining damages.
xlvi.If applicable, list below the medical expenses you have had to pay for or those you can show a
high probability of having to pay for in the future. You cannot obtain damages for the money your care
cost while you were incarcerated as the State has assumed this cost. However, in seeking damages, you
might consider such factors as the long-term effects of your injury after your release, including whether
there is a high probability that you may require hospitalization, specialist care, or the purchase and
maintenance of therapeutic devices.
xlvii. List below any current or future lost earnings.
xlviii. You should be specific in detailing the location, length, and severity of the pain and
suffering you have experienced.
xlix.Examples of factors that demonstrate mental anguish are nightmares, loss of sleep,
heightened anxiety, and depression.
l. Include the day, the month, and the year when you filed the Notice of Intention with the Clerk
for the Court of Claims and the Attorney General, respectively. Do not include this paragraph if you did
not serve a Notice of Intention.
li. Paragraphs 12 and 13 will depend upon whether you served a Notice of Intention to File
Claim. N.Y. Ct. Cl. Act § 10 (McKinney Supp. 2004). If you did not serve a Notice of Intention, do not
include paragraph 12. Paragraph 13 should now read: “12. This claim is filed within ninety days after
the claim accrued as required by law.” If you are filing a late motion, add: “I am filing this motion
pursuant to the late motion which the Court of Claims granted on (date).”
lii. Insert total amount of money you are claiming as damages.
liii. Your signature.
liv. The date on which you sign the petition. Also write your mailing address in this space and
attach a Verification at the end of your claim, illustrated at Appendix A-2.
lv. Your name.
lvi. Your identification number.
lvii. Leave this blank. This will be filled in by the clerk of the Court of Claims.
lviii. The name of the county in which you signed the affidavit.
lix. Your name.
lx. Name and address of your correctional facility.
lxi. Check this box if you do not have any valuable property, and skip down to paragraph 4.
lxii. If you did not check the “NONE” box because you own valuable property, check the “List
property” box and list all of the valuable property you own below.
lxiii. Your signature.
lxiv.This is where the notary public notarizes the verification by signing it and fixing his or her
official seal to it. If you have difficulty obtaining the services of a notary public, you should have
another prisoner witness your signature and delete “Notary Public.” (Use this technique only as a last
resort.) If another prisoner is your witness, you should add the following paragraph at the bottom of the
certification:
I declare that I have not been able to have this [insert claim, or
notice of intent to file a claim, etc.] notarized according to law
because [explain here your efforts to get the claim, etc. notarized]. I
therefore declare under penalty of perjury that all of the statements
made in this [claim, or notice of intent, etc.] are true of my own
knowledge, and I pray leave of the Court to allow this [claim, or
notice of intent, etc.] to be filed without notarization.
_______________________
(Your signature)
lxv. By signing this section, you give permission for your facility to send the Court copies of your
trust fund account statement. You also authorize the facility to withdraw the filing fee from your
account and to send it to the Court. The entire filing fee will be withdrawn automatically from your
account even if your case is dismissed.
lxvi.Your name.
lxvii. Your inmate number.
lxviii. Your signature.
lxix.Your name.
lxx. When submitting this form, you will also need to include a Notice of Motion form. See N.Y. Ct.
Rules § 206.8, which includes a copy of the form.
lxxi.When filing this motion you must attach the proposed claim itself so the court knows what the
motion refers to. The court will not consider this copy of your claim as being filed, however. After you
receive permission to file a late claim, you must send your claim to the court along with the order
granting you permission to file a late claim.
lxxii. Your name.
lxxiii. Your name.
lxxiv. The date on which the actions upon which you are basing your claim occurred.
lxxv. These are only sample reasons; do not copy them unless they apply to you. The
reasons you give here for your failure to timely file your claim must be persuasive. See Part C(1)(b) of
the Chapter for a list of factors that the court considers in ruling on your application for permission to
file a late claim.
lxxvi. These are examples of the types of justification that you must offer to the court to
persuade it to grant your application; do not copy them unless they apply to you.
lxxvii. Your signature.
lxxviii. The date and your address.
lxxix. You must complete this form and submit it to the court within 10 days after serving
your Notice of Intention to File a Tort Claim or Claim on the Attorney General. N.Y. Comp. Codes R. &
Regs. Tit. 22, § 206.5 (2003). This form is adapted from “Using the Court of Claims: A Guide for New
York State Prisoners,” a manual by the Prisoners’ Rights Project of The Legal Aid Society.
lxxx. Your name.
lxxxi. Insert the name of the county in which you signed the affidavit.
lxxxii. Your name.
lxxxiii. Insert the name and address of the correctional facility where you are incarcerated.
lxxxiv. Insert the date on which you mailed the Notice of Intention or Claim to the Attorney
General.
lxxxv. Insert either “Notice of Intention to file a Claim” if you filed a Notice of Intention, or
“Claim” if you filed a Claim.
lxxxvi. Your signature.
lxxxvii. This is where the notary public notarizes the verification by signing it and fixing his
or her official seal to it. If you have difficulty obtaining the services of a notary public, you should have
another prisoner witness your signature and delete “Notary Public.” (Use this technique only as a last
resort.) If another prisoner is your witness, you should add the following paragraph at the bottom of the
certification:
I declare that I have not been able to have this [insert claim, or
notice of intent to file a claim, etc.] notarized according to law
because [explain here your efforts to get the claim, etc. notarized]. I
therefore declare under penalty of perjury that all of the statements
made in this [claim, or notice of intent, etc.] are true of my own
knowledge, and I pray leave of the Court to allow this [claim, or
notice of intent, etc.] to be filed without notarization.
_______________________
(Your signature)
lxxxviii. If you do not answer or object to a demand for a Bill of Particulars within 30 days
after receiving it, the Court may stop you (preclude you) from introducing evidence at trial of the facts
asked for in the demand. See N.Y. C.P.L.R. 3042, 3126 (McKinney Supp. 2004). This form is adapted
from “Using the Court of Claims: A Guide for New York State Prisoners,” a manual by the Prisoners’
Rights Project of The Legal Aid Society. This is a sample of a demand that the State may serve on you.
Appendix A-9 is a sample response.
lxxxix. Your name.
xc. This means whether you claim the defendant actually knew of the condition that caused your
injury (“actual notice”) or just that they should have known (“constructive notice”).
xci. The name of the New York State Attorney General.
xcii. This form is adapted from “Using the Court of Claims: A Guide for New York State Prisoners,”
a manual by the Prisoners’ Rights Project of The Legal Aid Society. This is not a form you will prepare,
but is a form that can be served on you by the State. This response to the Request for a Bill of
Particulars (see Appendix A-9) is loosely based upon the facts set forth in the Sample Tort Claim in
Appendix A-4, personal injury due to negligence. Please refer to this Claim to see how closely the Bill of
Particulars follows it.
xciii. Your name.
xciv. This is because DOCS typically pays for medical expenses (unless you request, and
pay for, a private doctor).
xcv. Your address.
xcvi. Insert statutes, ordinances, rules, or regulations the state officials violated.
xcvii. Your address.
xcviii. The name of the New York State Attorney General.
xcix. If you would like to appeal the decision of the Court of Claims to the Appellate
Division of the New York Supreme Court, you must file a Notice of Appeal within 30 days after the
judgment. See N.Y. Ct. Cl. Act § 24 (McKinney 1989). This form is adapted from “Using the Court of
Claims: A Guide for New York State Prisoners,” a manual by the Prisoners’ Rights Project of The Legal
Aid Society.
c. Your name.
ci. Insert the claim number.
cii. Your name.
ciii . The Appellate Division is divided into four departments. Each department has a fixed
geographic jurisdiction hearing cases from specific counties. You can determine which department your
appeal should be taken to by checking the list of counties served by each Appellate Division, which can
be found in Appendix II of the JLM.
civ. Your name.
cv. The county in which your case was heard.
cvi. Insert the date the judgment was filed in the Clerk’s office.
cvii. The date on which you sign the notice.
cviii. Your signature.
cix. Insert the name of the Clerk (if known) in whose office the judgment was filed.
cx. The county in which your case was heard.
cxi. The name of the New York State Attorney General.
Manual
Chapter 18:
Your Rights At Prison Disciplinary
Proceedings

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 18
YOUR RIGHTS AT PRISON DISCIPLINARY PROCEEDINGS*

A. Introduction
This Chapter is a guide for prisoners facing disciplinary action for violating prison rules.
It outlines basic requirements for disciplinary proceedings under federal law, with special
emphasis on New York State disciplinary proceedings. If you are incarcerated outside New
York, you should research the rules and regulations covering disciplinary proceedings in your
state before preparing your defense.1
This Chapter begins with a broad overview of your constitutional rights during prison
disciplinary proceedings. Part B explains the concept of “due process of law,” which applies to
disciplinary proceedings. Part C details the concept of due process in the prison setting, with
a detailed discussion of the U.S. Supreme Court case Sandin v. Conner. Part D describes
prisoners’ basic rights in disciplinary proceedings. Part E explains disciplinary proceedings
in the State of New York and includes information on the procedures that prison officials
must follow before they put you in disciplinary segregation. Finally, Part F explains the
procedures that officials in New York State must follow before they put you in administrative
segregation as well as the procedures that federal prisons must follow.
Prison officials have the authority to discipline prisoners who violate the law, or who
violate prison rules and regulations. They also have the authority to place prisoners who
pose a threat to prison safety and security in administrative segregation. Prison officials
generally have wide discretion in disciplinary and administrative matters, and courts will
usually defer to (agree with) the officials’ conclusions and decisions about how to manage the
prison. However, there are limits on this discretion. To protect you from arbitrary or unfair
abuses of power by prison officials, federal and state laws require officials to follow
procedural requirements (certain guidelines) when they discipline you or place you in
administrative segregation. If officials do not comply with these procedural requirements and
as a result you are subject to “atypical and significant hardship” (see below for more on what
kinds of discipline meet this standard), you may be able to claim that your rights under the
Due Process Clause of the U.S. Constitution have been violated.
This Chapter describes those rights that relate to the conditions of your confinement. To
protect these rights, you must first go through your institution’s administrative grievance
procedure. Chapter 15 of the JLM contains further information on inmate grievance
procedures. If you are unsuccessful or do not receive a favorable result through the prisoner
grievance procedure, you can either bring an action under 42 U.S.C. § 1983 (in certain cases)
or file a tort action in state court. If you are in New York, you can bring a tort action in the
Court of Claims, or file an Article 78 petition in state court. More information on all of these
types of cases can be found in JLM Chapter 5, “Choosing a Court and Lawsuit,” JLM
Chapter 14, “Prison Litigation Reform Act,” JLM Chapter 16, “42 U.S.C. § 1983 and 28
U.S.C. § 1331 to Obtain Relief From Violations of Federal Law,” JLM Chapter 17, “The
State’s Duty to Protect You and Your Property: Tort Actions,” and JLM Chapter 22, “How to
Challenge Administrative Decisions Using Article 78 of the New York Civil Practice Law and
Rules.” If you decide to pursue a claim in federal court, you MUST read Chapter 14 of the
* This Chapter was written by Miranda Berge based in part on previous versions by Rachel Wilgoren,
Marjorie A. Adams, Jennifer L. Hurt, Ivan A. Sacks, and James A. Skarzynski. Special thanks to
Kenneth Stephens of The Legal Aid Society, Prisoners’ Rights Project for his assistance in the revision
of this Chapter.
1. See Chapter 2 of the JLM, “Legal Research,” for information on how to conduct legal research
in prison.
JLM on the Prison Litigation Reform Act (PLRA). If you fail to follow the PLRA
requirements you could lose your good-time credit and your right to bring future claims in
federal court without paying the full filing fee.
B. Definition of “Due Process”
The Constitution’s Fifth and Fourteenth Amendments prevent the government from
taking your life, liberty, or property without due process. The Fifth Amendment limits the
power of the federal government, including federal prison officials. The Fourteenth
Amendment similarly limits the power of state prison officials. Both federal and state courts
have authority to review the actions of prison officials to make sure they comply with due
process requirements.2 The Due Process Clause of the Fourteenth Amendment protects you
from arbitrary and unfair treatment by the government. It refers to two kinds of interests:
substantive rights and procedural rights. Substantive rights include the fundamental right
to “life, liberty, and property,” and the specific guarantees in the Bill of Rights, like the right
to free speech and to freedom of religion. Substantive due process requires that the
government treat people with “fundamental fairness” and not interfere with these rights
unless it is absolutely necessary to achieve a more important public need.
If the government seeks to restrict your substantive rights, procedural due process
guarantees that certain procedures be followed. These procedural rights include the right to
know about a hearing before it occurs (advance notice) and the opportunity to be heard. The
exact procedures that the government must follow are different from case to case. Courts
determine what procedures are required in a given case by balancing the individual interests
at stake against the interests of the government.
C. Due Process in Prison
Due process means something different in the prison context than it does outside. The
Constitution only guarantees you a right to due process in situations where the government
attempts to deprive you of your “life, liberty, or property.” So, a court must decide whether
you have a “liberty interest” at stake before it identifies the required “due process” in your
disciplinary hearing.3 In other words, Fourteenth Amendment due process only applies when
prison officials attempt to deprive you of a recognized interest.
It is important to note the Supreme Court’s decision in Sandin v. Conner4 changed the
law in this area dramatically. During the 1960s and ‘70s, the Supreme Court took major
steps toward recognizing the constitutional rights of prisoners. Unfortunately, the Sandin
decision reversed that trend by significantly limiting the circumstances in which prisoners
may petition the courts to vindicate their constitutional rights. Sandin v. Conner is
important because in it the Supreme Court sets the minimum standard all other federal and
state courts must follow. States may choose to grant prisoners more rights than those
required by the Supreme Court in Sandin v. Conner, but they cannot take away rights
guaranteed by federal law.
In Sandin v. Conner, a prisoner in Hawaii faced a disciplinary proceeding for trying to
physically interfere with a strip search being performed on him and for using “abusive or
2. Article III of the Constitution grants federal courts jurisdiction to hear cases “arising under
this Constitution.” State courts have “concurrent jurisdiction,” which means that they are equally able
as federal courts to decide cases involving the U.S. Constitution.
3. This “liberty interest” refers to the liberty described in the 5th and 14th Amendments.
Individuals cannot be deprived of liberty (which includes being imprisoned) without due process of law.
4. Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 430 (1995)
(holding that due process liberty interests created by prison regulations will generally be limited to
freedom from restraints that impose an atypical and significant hardship on the prisoner in relation to
the ordinary incidents of prison life).
obscene language” toward prison employees.5 The prison disciplinary committee refused the
prisoner’s request to present witnesses at the hearing, stating that all of the witnesses were
unavailable. 6 The prisoner was sentenced to a thirty-day disciplinary segregation in the
Special Holding Unit (SHU) and sought administrative review of the decision.
Administrators eventually waived the charge, finding that it was unsupported. 7 In the
meantime, however, the prisoner filed a Section 1983 claim, alleging that his civil rights had
been violated.
According to the Supreme Court, although a change may have a substantial, adverse
impact on the conditions of a prisoner’s confinement, it does not necessarily violate a liberty
interest protected by due process rights (rights dealing with procedural fairness).8 As long as
the new conditions are “within the normal limits or range of custody which the conviction has
authorized the State to impose,” the Due Process Clause does not apply.9 However, even if
the conditions of your confinement are not necessarily due process violations, you may still
be able to use the Due Process Clause to challenge the procedures by which you were
confined. The Supreme Court has held that if a state avoids certain types of confinement, it
may create a protected liberty interest. For that to be the case in your state, your state must
have made a law or regulation that requires certain procedures to be followed before a
particular condition is imposed on you.10
Even then, not every law or regulation that requires prison officials to follow procedures
before depriving you of liberty creates a protected liberty interest. In Sandin, the Supreme
Court held that such laws and regulations only implicate the Due Process Clause when the
condition in question imposes “atypical [uncommon] and significant [major] hardship on the
inmate in relation to the ordinary incidents of prison life.”11 To determine whether this is the
case, a court will generally compare the conditions prisoners can ordinarily expect in the
course of their incarceration with a fact-based analysis of the length and extent of the
deprivation you are claiming. In Sandin, the Supreme Court decided that, “[b]ased on a
comparison between inmates inside and outside disciplinary segregation, the state’s actions
in placing him there for thirty days did not work a major disruption in his environment.”12
The court concluded that the prisoner’s thirty-day disciplinary segregation was not the
“atypical, significant deprivation in which a State might conceivably create a liberty
interest.”13 Because the prisoner did not have a liberty interest protected by due process, the
court concluded that prison officials conducting the disciplinary proceeding were not required
to follow the constitutional due process requirements or state regulations regarding
disciplinary procedures.
5. Sandin v. Conner, 515 U.S. 472, 475, 115 S. Ct. 2293, 2296, 132 L. Ed. 2d 418, 424 (1995).
8. Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451, 459 (1976) (holding
that the transfer of a prisoner to a prison, the conditions of which are substantially less favorable to
him, does not necessarily infringe or implicate a liberty interest protected by the Due Process Clause of
the 14th Amendment).
9. Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451, 459 (1976); see
also Montanye v. Haymes, 427 U.S. 236, 242–43, 96 S. Ct. 2543, 2547, 49 L. Ed. 2d 466, 471–72 (1976)
(holding that no Due Process Clause liberty interest is infringed when a prisoner is transferred from
one prison to another within the State, unless there is some right or expectation that can be derived
from state law that a prisoner will not be transferred except for misbehavior or upon the occurrence of
other “specified events”).
10. Sandin v. Conner, 515 U.S. 472, 483–84, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 429–30
(1995) (citing Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974)).
In sum, if you wish to make a claim that your due process rights were violated by a
deficiency in the procedures that led to your confinement in the SHU, you must show that:
(1) the confinement constituted an “atypical and significant hardship” compared with
the deprivations experienced in the general population; and
(2) the state, through language in a statute, had created a protected liberty interest in
avoiding that form of confinement .
Unfortunately, the Court’s opinion in Sandin sets a very high standard for showing that
the prison’s procedures actually violated your right to due process, and typically you can
allege this violation only after you have already been confined. However, even if you are
unable to prove a due process violation using the Sandin standard, you may still be entitled
to other protections from state actions that impose arbitrary and severe conditions of
confinement on you. You may either:
(1) draw upon internal prison grievance procedures14 and state judicial review (review by
state courts under state laws or state constitutional protections) where available; or
(2) pursue a claim under the Eighth Amendment of the Constitution, which protects
against cruel and unusual punishment.15
Since the Supreme Court decided Sandin, courts around the country have applied the
Sandin test differently when determining what constitutes an “atypical and significant
hardship” protected by state regulation. This Chapter examines when courts (especially in
New York) have interpreted regulations as mandatory (and therefore creating a liberty
interest) and how they have applied Sandin to disciplinary and administrative segregation,
transfers, good-time credits, and work release programs.
The rest of this Part will examine whether certain prison practices create “atypical and
significant hardship.” Remember that it does not matter whether the punishment is “atypical
and significant” unless the state has a statute creating a protected liberty interest.
1. Disciplinary and Administrative Segregation
Prison officials in New York may confine a prisoner in a Segregated Housing/Holding
Unit (SHU) for a predetermined period of time if the prisoner was found to have committed a
rule violation. Pending the disciplinary hearing or during investigation, the prisoner may be
placed in administrative segregation. Prison officials may also hold a prisoner in
administrative segregation in a SHU if the prisoner poses a threat to the safety or security of
the prison.16 Disciplinary segregation must be based on a finding—after a formal hearing—
that the prisoner violated the New York State Department of Correctional Services (DOCS)
Standards of Prisoner Behaviors. However, administrative segregation is based on a
determination after an informal hearing that a prisoner’s presence in the general prison
population threatens prison safety and security. Disciplinary confinement takes place for a
specific time period, unlike administrative segregation, which is not considered punishment
and therefore may continue until the superintendent finds the threat is over.17 For more on
the procedural requirements for disciplinary and administrative segregation in New York
prisons, see Parts E and F of this Chapter.
Courts in New York State and the Second Circuit analyze both disciplinary and
administrative detention proceedings under the Sandin test explained above. Claims arising
from both kinds of segregation must be evaluated by the court to determine whether:
(1) there are procedures explicitly required of prison officials; and,
14. See Chapter 15 of the JLM, “Inmate Grievance Procedures,” for more information.
From Violations of Federal Law,” for more information.
16. See N.Y. Comp. Codes R. & Regs. tit. 7, § 301.4(b) (2007).
17. See N.Y. Comp. Codes R. & Regs. tit. 7, §§ 301.2(a), 301.4 (2007).
(2) an “atypical and significant hardship” exists.18
This Section will help you figure out whether the procedures that took place before you
were placed in disciplinary or administrative detention met requirement (1) and then how
courts evaluate a prisoner’s confinement in the SHU under requirement (2). This Section
focuses specifically on the law that governs courts in the Second Circuit (that is, federal
courts in New York, Vermont, and Connecticut). Analysis by courts in other jurisdictions
may be different. Unfortunately, some courts outside of the Second Circuit have held that no
liberty interests may arise in the context of administrative detention.19 If you live outside the
jurisdiction of the Second Circuit, you should research how courts in your jurisdiction have
interpreted your prison’s rules and whether administrative detention has been found to be a
protected liberty interest.
(a) The Requirement of a State-Created Liberty Interest
Even if segregation was “atypical and significant,” courts will not recognize a due process
violation unless you can show you had a constitutional or state-created liberty interest in
avoiding the segregation. Relying on cases that came before Sandin, some district courts in
New York have found existing state and federal regulations governing both disciplinary
confinement20 and administrative segregation21 create liberty interests implicating the Due
Process Clause. But, the Second Circuit has announced it will analyze the language of state
statutes and regulations to determine whether they impose substantive procedures on prison
officials sufficient to create a protected liberty interests.22 Remember, courts outside New
18. See, e.g., Sealey v. Giltner, 197 F.3d 578, 584–85 (2d Cir. 1999) (interpreting Sandin to
require consideration of: whether, first, a prisoner has a protected liberty interest in avoiding
administrative confinement, and, second, the confinement imposed an atypical and significant
hardship); Giano v. Kelly, No. 89-CV-727(C), 2000 U.S. Dist. LEXIS 9138, at *8 (W.D.N.Y. May 16,
2000) (unpublished) (“[C]onfinement implicated due process only if it was an atypical and significant
hardship and if DOCS regulations conferred a liberty interest in remaining free from such
confinement.”).
19. See Crowder v. True, 74 F.3d 812, 815 (7th Cir. 1996) (holding administrative detention
cannot give rise to a protected liberty interest); Moore v. Ham, No. 92-3305, 1993 U.S. App. LEXIS 826,
at *5 (10th Cir. Jan. 13, 1993) (unpublished) (“If segregation is non-punitive in nature and is done for
administrative or supervisory reasons, the inmate has no due process rights prior to administrative
confinement unless prison regulations provide him with a liberty interest.” (citation omitted)); Awalt v.
Whalen, 809 F. Supp. 414, 416 (E.D. Va. 1992) (holding regulations providing for staff procedures and
time frames, but not mandating release upon a hearing and specific findings, do not create a liberty
interest in release from administrative detention). But see Muhammad v. Carlson, 845 F.2d 175, 177
(8th Cir. 1988) (holding a liberty interest may be created by prison regulations if those regulations
impose substantive criteria limiting or guiding prison officials’ discretion); Maclean v. Secor, 876 F.
Supp. 695, 701–02 (E.D. Pa. 1995) (holding regulations limiting prison officials’ discretion in
administrative detention decisions created a liberty interest).
20. See, e.g., Nicholas v. Tucker, No. 95 Civ. 9705, 2000 U.S. Dist. LEXIS 749, at *19 (S.D.N.Y.
Jan. 27, 2000) (unpublished) (finding New York State regulations grant prisoners a protected liberty
interest in freedom from disciplinary confinement); Wright v. Miller, 973 F. Supp. 390, 395 (S.D.N.Y.
1997) (finding a state-created liberty interest in being free from disciplinary confinement); Gonzalez v.
Coughlin, 969 F. Supp. 256, 257–58 (S.D.N.Y. 1997) (holding state regulations on disciplinary
segregation create a liberty interest in freedom from disciplinary confinement).
21. See, e.g., Tellier v. Fields, 280 F.3d 69, 81 (2d Cir. 2000) (holding 28 C.F.R. § 541.22 creates a
liberty interest); Gonzalez v. Coughlin, 969 F. Supp. 256, 257–58 (S.D.N.Y. 1997) (concluding that New
York State rules regarding administrative confinement create a liberty interest); Taylor v. Rodriguez,
238 F.3d 188, 196 (2d Cir. 2001) (concluding that Connecticut State regulations regarding
administrative detention may give rise to a protected liberty interest).
22. See Sealy v. Giltner, 197 F.3d 578, 583–84 (2d Cir. 1999); Welch v. Barlett, 196 F.3d 389, 392
(2d Cir. 1999). This method of analysis, based on the Supreme Court’s opinion in Hewitt v. Helms, 459
U.S. 460, 103 S. Ct. 864, 74 L. Ed.2d 675 (1983), was later explicitly rejected in Sandin as the primary
means of determining the existence of a due process claim. But the Second Circuit held that, in
York State do not necessarily recognize state statutes and regulations as creating interests
in avoiding segregation.
(b) The Requirement of an “Atypical and Significant Hardship”
In determining whether your confinement in the SHU implicates a protected liberty
interest, a court will conduct the same analysis for disciplinary segregation as for
administrative detention. That is, the court will assess whether the specific factual
conditions of your confinement in a segregated facility rise to the level of an “atypical and
significant hardship on you in relation to the ordinary incidents of prison life.”23 A court will
look at the particular facts of your confinement in conducting its analysis.24 There is no clear
formula for determining whether a given SHU confinement is an “atypical and significant
hardship,” but courts will consider two main elements in their analysis:
(1) the length of the confinement; and
(2) the extent of the deprivation.25
The court will consider both factors “since especially harsh conditions endured for a brief
interval and somewhat harsh conditions endured for a prolonged interval might both be
atypical.”26
(i) Duration of the Confinement
If you are filing a claim within the jurisdiction of the Second Circuit, the length of your
confinement is the actual time that you have been detained in the SHU. This is typically the
period for which a prison official (potential defendant) is responsible for any violations of
your due process rights. This means that you will use the actual time you have spent in
detention and not the potential duration of your confinement.27 You should count the total
number of days you spent in the SHU before, during, and after the disciplinary or
administrative hearing. 28 Transfer from one SHU directly to another SHU in a different
prison facility does not restart the number of days of SHU confinement to be considered.29
There is no set cut-off point at which a period of confinement in a SHU becomes “atypical
and significant,” but the Second Circuit has indicated some general rules for evaluating these
claims. The Second Circuit recently suggested that SHU confinement of approximately 305
days or more will probably be held to implicate a protected liberty interest.30 For periods of
confinement shorter than 305 days but longer than 101 days, it is likely that the extent of
combination with the Sandin “atypical and significant hardship” test, this is still an appropriate way to
determine the presence of a due process issue.
24. Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997) (holding that Sandin did not create a blanket
rule, and “courts must examine the circumstances of a confinement to determine whether that
confinement affected a liberty interest”).
25. Sealey v. Giltner, 197 F.3d 578, 582–83 (2d Cir. 1999).
26. Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999).
27. See Scott v. Albury, 156 F.3d 283, 286–87 (2d Cir. 1998) (holding that where prisoner was
sentenced to 60-day keep-lock and seven weeks in the SHU, the actual penalty assessed, not the
potential penalty the prisoner faced, is the measure of liberty deprivation under Sandin).
28. See Sealey v. Giltner, 197 F.3d 578, 587–88 (2d Cir. 1999).
29. See Giano v. Selsky, 238 F.3d 223, 226 (2d Cir. 2001) (holding that a court must consider the
cumulative period of time that a prisoner was held in administrative segregation at two facilities
because his detention at the two facilities was continuous, based on the same administrative rationale,
and under basically identical conditions); see also Sims v. Artuz, 230 F.3d 14, 23–24 (2d Cir. 2000)
(suggesting that “some or all” of a series of separate SHU sentences “should be aggregated for purposes
of the Sandin inquiry” when they are imposed within a period of days or hours and constitute a
sustained period of confinement).
30. See Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000).
the deprivation will be crucial in establishing whether your protected liberty interest has
been implicated. 31 (This second factor is discussed below.) Courts have indicated that
confinement for 101 days or shorter probably will not implicate a liberty interest under
Sandin, unless you can prove that you endured unusually severe conditions in SHU. 32
Finally, confinement under typical SHU conditions for thirty days or fewer probably will not
give rise to a successful due process claim.
In addition, courts have indicated another factor they consider when determining
whether a particular duration of segregation is “atypical.” That factor is the frequency with
which prisoners spend comparable periods of time confined to SHU for non-disciplinary
reasons. In other words, courts are willing to compare your period of confinement (probably
statistically) with “periods of comparable deprivation typically endured by other prisoners in
the ordinary course of prison administration” (i.e., for non-disciplinary reasons).33
(ii) Extent of the Deprivation Compared to “Ordinary Incidents
of Prison Life”
Courts will compare the extent of the hardship you suffered in disciplinary or
administrative segregation to the “ordinary incidents of prison life.”34 The Second Circuit has
explained that, under Sandin, a prisoner has no due process claim if other prisoners typically
experience approximately the same hardship as a result of the ordinary administration of the
prison.35 Though there is some dispute as to the meaning of “ordinary incidents of prison
life,”36 courts have accepted comparisons between the SHU and the general population at the
particular prison in which you are housed.37 Thus, to constitute an “atypical and substantial
31. See Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000); see also Beckford v. Portuondo, 151 F.
Supp.2d 204, 219 (N.D.N.Y. 2001) (holding plaintiff’s confinement, which lasted less than a week, was
not sufficiently atypical to implicate a protected liberty interest); Prince v. Edwards, No. 99 Civ. 8650 ,
2000 U.S. Dist. LEXIS 6608, at *16 (S.D.N.Y. May 17, 2000) (unpublished) (dismissing procedural due
process claim because plaintiff failed to allege his 66-day confinement constituted an atypical or
significant hardship under Sandin); Jones v. Kelly, 937 F. Supp. 200, 202–03 (W.D.N.Y. 1996)
(concluding that 191 days in segregated confinement does not impose an atypical and significant
hardship); Tulloch v. Coughlin, No. 91-CV-0211E(M), 1995 U.S. Dist. LEXIS 19624, at *9 (W.D.N.Y.
Dec. 28, 1995) (unpublished) (holding that a 180-day disciplinary segregation in SHU does not present
an atypical or significant hardship and thus does not trigger a due process analysis); Carter v. Carriero,
905 F. Supp. 99, 104 (W.D.N.Y. 1995) (finding that 270 days in a SHU does not violate a protected
liberty interest).
32. See Sealey v. Giltner, 197 F.3d 578, 589–90 (2d Cir. 1999) (holding confinement for 101 days
under standard SHU conditions did not constitute an “atypical and significant” deprivation under
Sandin). But see Colon v. Howard, 215 F.3d 227, 232 n.5 (2d Cir. 2000) (noting that confinement for
periods of 101 days or less “could be shown on a record more fully developed than the one in Sealey to
constitute an atypical and severe hardship under Sandin”); Welch v. Bartlett, 196 F.3d 389, 394 (2d
Cir. 1999) (holding 90-day confinement in a SHU may be “atypical and significant”).
33. Scott v. Coughlin, 78 F. Supp. 2d 299, 307 (S.D.N.Y. 2000) (noting, “[a]long with duration, the
Court must examine the frequency with which inmates are confined to SHU in the ordinary course of
the prison administration”); see also Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (holding periods
of confinement in the SHU do bear on the “atypicality” test and that, although there is no specific time
cut-off, 305 days is enough to trigger atypicality); Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997)
(holding though New York prison regulations allow for lengthy administrative confinement, the court
may still examine the facts and make a determination as to the atypicality of the confinement).
36. See Sealey v. Giltner, 197 F.3d 578, 588–89 (2d Cir. 1999) (noting unresolved questions as to
whether SHU conditions should be compared to: (1) conditions within administrative confinement or
general population, and (2) within the particular prison of confinement, within all the prisons in that
state, or within the prison system nationwide).
37. See, e.g., Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir. 1999) (accepting on appeal this
comparison which had been made at trial); Welch v. Bartlett, 196 F.3d 389, 394 (2d Cir. 1999)
deprivation,” the hardships imposed on you must be “substantially more grave” than those
hardships you would ordinarily experience as a member of the general prison population.38
But, as with the length of time of confinement, courts have not determined a set cut-off point
at which deprivation in a SHU is “substantially grave” enough to be “atypical and
significant.”
In a case in the Southern District of New York, Giano v. Kelly,39 the court noted the
significant differences between conditions in SHU and in general population. The Court
pointed out these differences:
(1) significantly greater isolation;
(2) absence of organized, meaningful activity, such as job assignments, vocational
training, or classroom instruction; and
(3) lack of social and recreational activity, such as drug and alcohol counseling, religious
services, group meals, or group exercise.
The court further recognized that SHU prisoners are confined to their cells for twenty-
three hours per day, with one hour of daily exercise allowed in a separate, slightly larger cell
without any equipment. The court also noted that prisoners in the SHU are permitted two
showers per week, one non-legal visit per week, and no telephone calls except in the event of
an emergency and with the permission of prison officials. Finally, the court considered the
prisoner’s testimony that his cell was ten feet by ten feet in size, often dirty, and usually
dark (since windows were covered to prevent eye contact with the general population
prisoners on the grounds outside).40
The Giano court reasoned that while general population prisoners under “lock-down” are
subject to conditions similar to those in SHU, the duration and extent of “inactivity or cell
confinement, long-term isolation, and idleness are far less typical outside of SHU.”41 The
court then noted it could not ignore the “often-devastating effect of prolonged isolation and
inactivity”42 as a factor in its analysis. The court concluded that
[g]iven the degree of deprivation which Giano endured and the
duration of that deprivation [over one year], this court finds that his
AS [administrative segregation] confinement imposed atypical and
significant hardship on him in relation to the ordinary incidents of
(comparing the conditions of a prisoner’s segregation to what other prisoners endure in the ordinary
course of prison administration); Giano v. Kelly, No. 89-CV-727(c), 2000 U.S. Dist. LEXIS 9138, at *17
(W.D.N.Y. May 16, 2001) (unpublished) (comparing the conditions faced in SHU by segregated
prisoners with the conditions of confinement of the general prison population in Attica).
38. Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 430 (1995); see
also Welch v. Bartlett, 196 F.3d 389, 392 (2d Cir. 1999) (finding that, after Sandin, a prisoner who
experiences a deprivation arising under mandatory rules has no actionable due process claim if other
prisoners experience approximately the same deprivation in the ordinary administration of the prison
regularly that such deprivation is typical); Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (holding
that no Due Process Clause liberty interest is infringed when a prisoner was confined in the SHU for 12
days while awaiting the disposition of disciplinary proceedings, despite the fact that the prisoner was
denied certain privileges that prisoners in the general population enjoy because the conditions of that
confinement fell “within the expected parameters of the sentence imposed by a court of law”).
39. Giano v. Kelly, No. 89-CV-727(c), 2000 U.S. Dist. LEXIS 9138, at *18–20 (W.D.N.Y. May 16,
40. Giano v. Kelly, No. 89-CV-727(C), 2000 U.S. Dist. LEXIS 9138, at *18–21 (W.D.N.Y. May 16,
41. Giano v. Kelly, No. 89-CV-727(C), 2000 U.S. Dist. LEXIS 9138, at *21 (W.D.N.Y. May 16,
prison life and implicated a liberty interest protected by due
process.43
This type of analysis, which considers segregation conditions in combination with length
of time of confinement, appears typical of what courts in the Second Circuit have been doing
in recent years.44
It is important to remember that the length of time you are in administrative or
disciplinary segregation is one of two factors the court will consider when comparing your
detention to the ordinary incidents of prison life. Thus, if you wish to bring a claim that your
due process rights were violated when you were confined in administrative or disciplinary
segregation for a period of less than 305 days, it is recommended that you present any and
all available evidence of the conditions of the SHU, any evidence of psychological effects of
prolonged confinement in isolated conditions, and the specific amount of times you have been
placed in SHU confinements of varying durations.45 Your own testimony may be considered
by the court, but it is recommended that you obtain and submit other, independent evidence
about the conditions of your detention as well.
2. Transfers
The due process analysis is often triggered when a prisoner is transferred from one
facility to another. Although the Supreme Court has concluded that you do not have a
protected liberty interest in remaining at a specific prison,46 you do have a claim if prison
authorities transfer you in retaliation for exercising your constitutional rights.47
43. Giano v. Kelly, No. 89-CV-727(C), 2000 U.S. Dist. LEXIS 9138, at *24–25 (W.D.N.Y. May 16,
44. See, e.g., Labounty v. Kinkhabwala, No. 99-0329, 2001 U.S. App. LEXIS 1696, at *6–7, 2 F.
App’x. 197, 201 (2d Cir. Feb. 5, 2001) (unpublished) (instructing the district court to compare both the
specific conditions of the prisoner’s disciplinary segregation and the duration thereof to the conditions
of other categories of confinement); Vaughan v. Erno, No. 00-264, 2001 U.S. App. LEXIS 10585, at **3,
8 F.App’x 145, 146 (2d Cir. May 18, 2001) (unpublished) (finding no due process violation where the
prisoner failed to allege any adverse conditions of the confinement other than its duration); Sealey v.
Giltner, 197 F.3d 578, 587–89 (2d Cir. 1999) (finding that plaintiff’s 101-day confinement in
administrative segregation did not impair a protected liberty interest since the confinement was not of
such duration and in such conditions as to meet the Sandin atypicality standard); Welch v. Bartlett,
196 F.3d 389, 394 (2d Cir. 1999) (holding that the relevant comparison concerning duration is between
the period of deprivation endured by the plaintiff and periods of comparable deprivation typically
endured by other prisoners in the ordinary course of prison administration); Nicholas v. Tucker, 95 Civ.
9705, 2000 U.S. Dist. LEXIS 749, at *13–14 (S.D.N.Y. Jan. 27, 2000) (unpublished) (holding that in
determining whether a confinement constitutes an atypical and significant hardship, courts should
consider the effect of the segregation on the length of the plaintiff’s prison confinement, the extent to
which conditions differ from other prison conditions, and the duration of the disciplinary confinement
compared to the potential duration of discretionary confinement). All of these cases compared the
individual experience of the prisoner in the SHU under the conditions imposed by applicable
regulations to experiences of the general prison population.
45. See, e.g., Colon v. Howard, 215 F.3d 227, 232 (2d Cir. 1999) (recommending to the district
courts that this information would be helpful in evaluating on appeal whether segregation is atypical
and significant); see also Taylor v. Rodriguez, 238 F.3d 188, 195 (2d Cir. 2001) (reinforcing the finding
in Colon that a “fully developed record” along with the length of confinement would be helpful in
determining atypicality); Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir. 1999) (noting evidence of
“conditions of administrative confinement at other New York prisons, as well as the frequency and
duration of confinements imposing significant hardships, might well be relevant to a prisoner’s liberty
claim”).
46. See Meachum v. Fano, 427 U.S. 215, 224–25, 96 S. Ct. 2532, 2538–39, 49 L. Ed. 2d 451, 459–
60 (1976) (holding that the “Due Process Clause [does not] in and of itself protect a duly convicted
prisoner against transfer from one institution to another within the state prison system,” such that a
transfer within a state is within the normal range of custody), rehearing denied, Meachum v. Fano, 429
U.S. 873, 97 S. Ct. 191, 50 L. Ed. 2d 155 (1976); Olim v. Wakinekona, 461 U.S. 238, 247, 103 S. Ct.
You also do not have a recognized liberty interest in remaining in a specific prison when
you are transferred to a new prison that maintains a different level of security. 48 For
example, a discretionary transfer from a minimum security prison to a medium security
prison is not a disruption exceeding the ordinary incidents of prison life.49 Likewise, courts
may view transfers from the general population to maximum security as “within the normal
limits or range of custody which the conviction” has authorized the State to impose, even
when the conditions in maximum security are much more burdensome.50 The frequency of
transfers between prisons will not change this analysis.51
The courts’ reasoning in the context of transfers also applies to deportation. It is settled
that you do not have a protected liberty interest in being deported, despite that you may be
subjected to less humane conditions in the United States than you would have faced in your
home country’s prisons.52
3. Good-Time Credits
Good-time credits alone do not create a protected liberty interest.53 In order to sustain a
claim that you have a liberty interest, that interest must be created by the state. 54 For
example, in Reynolds v. Wolff, a Nevada statute provided for the accumulation of good-time
credits “unless the prisoner ha[d] committed serious misbehavior.”55 The court found that
1741, 1746, 75 L. Ed. 2d 813, 821 (1983) (transfer for confinement in another state is within the normal
range of custody). But see Vitek v. Jones, 445 U.S. 480, 494, 100 S. Ct. 1254, 1264, 63 L. Ed. 552, 555–
56 (1980) (transfer to a mental hospital is not within the normal range of custody).
47. See Merriweather v. Coughlin, 879 F.2d 1037, 1046 (2d Cir. 1989) (holding that a jury could
reasonably conclude that prisoners were transferred solely because they exercised their 1st
Amendment rights, and thus had a valid claim, where the prisoners were transferred after critiquing
the prison administration).
48. See Moorman v. Thalacker, 83 F.3d 970, 973 (8th Cir. 1996) (holding that discretionary
transfer of prisoner from minimum to medium security prison, as a result of disciplinary action, was
not a disruption exceeding ordinary incidents of prison life and, thus, did not implicate a due process
liberty interest); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (noting standard for determining
whether prisoner had protected liberty interest in prison transfer depends on whether conditions at
facility to which prisoner transferred imposed significant and atypical hardship).
49. See Moorman v. Thalacker, 83 F.3d 970, 973 (“[S]uch assignments are discretionary, so long
as they are not done for prohibited or invidious reasons”).
50. Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 2538–39, 49 L. Ed. 2d 451, 459 (1976)
(concluding transfer to prison with more severe rules does not in itself signify a 14th Amendment
liberty interest violation).
51. See Maguire v. Coughlin, 901 F. Supp. 101, 106 (N.D.N.Y. 1995) (asserting transfer of
prisoner between four different correctional facilities in the span of three weeks did not implicate
protected liberty interest).
52. See Marshall v. Reno, 915 F. Supp. 426, 431–32 (D.D.C. 1996) (stating that it was beyond the
authority of the courts to order where a defendant (in this case, a Canadian) is to be incarcerated,
because this is the role of the Bureau of Prisons); see also Meachum v. Fano, 427 U.S. 215, 224, 96 S.
Ct. 2532, 2538, 49 L. Ed. 2d 451, 459 (1976) (“The initial decision to assign the convict to a particular
institution is not subject to audit under the Due Process Clause, although the degree of confinement in
one prison may be quite different from that in another.”).
53. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935, 951 (1974)
(holding actual restoration of good-time credits could not be handled in a civil rights suit—habeas
corpus was the proper remedy—but declaratory judgment regarding good-time withdrawal procedures,
as a predicate to a damage award, was not barred).
54. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935, 951 (1974);
see also Leacock v. DuBois, 937 F. Supp. 81, 83–84 (D. Mass. 1996) (holding prisoner may not be
divested of state-created right to good-time credit without minimum of due process, including written
notice of claimed violations, qualified right to call witnesses and present evidence, and written
statement of fact-finders as to evidence relied upon and reasons for action).
55. Reynolds v. Wolff, 916 F. Supp. 1018, 1023 (D. Nev. 1996).
this statute, since it offered a “right of ‘real substance’” by providing good-time credits, gave
rise to a liberty interest falling under the due process analysis.56 As a result, before finding
“serious misbehavior” resulting in the loss of good-time credits, Nevada prisoners must be
given a notice of the charges and an opportunity to be heard.57
The mere opportunity to earn good-time credits, however, does not create a protected
liberty interest. 58 For example, in Luken v. Scott, 59 the prisoner was confined to
administrative segregation and was, therefore, unable to accrue additional good-time credits
to accelerate his eligibility for parole. Still, the court found no liberty interest in his custody
status because the “loss of opportunity to earn good-time credits ... is an [unsure]
consequence of administrative decisions [that] do not create constitutionally protected liberty
interests.”60 Similarly, in Bulger v. U.S. Bureau of Prisons, the loss of a prison job did not
involve the prisoner’s liberty interest even though the prisoner lost the ability to
automatically accrue good-time credits as a result.61
The Supreme Court case of Edwards v. Balisok has major implications for prisoner
claims involving loss of good-time credits.62 According to that case, where good-time credits
are involved, a prisoner must have the disciplinary hearing reversed in state court before he
can bring a Section 1983 claim if his or her federal lawsuit questions the results of the
hearing (as opposed to simply the procedures).63 The application of the Edwards standard
varies greatly. The Second Circuit, for instance, has interpreted Edwards as applying only to
good-time credit cases.64 The Seventh Circuit and some district courts, however, have read
the case as broadly requiring an administrative or court reversal in all disciplinary or even
administrative segregation cases before a prisoner can bring a damages action.65 See JLM
Chapter 35, “Getting Out Early: Conditional & Early Release,” for more information about
good-time credits.
4. Work Release Programs
The Supreme Court has found that a liberty interest may arise from the Due Process
Clause, even without a state statute creating one, when the prisoner’s “release from
56. Reynolds v. Wolff, 916 F. Supp. 1018, 1023 (D. Nev. 1996); see also Zamakshari v. Dvoskin,
899 F. Supp. 1097, 1106–07 (S.D.N.Y. 1995) (loss of good time constitutes protected liberty interest in
New York under Sandin).
57. See Reynolds v. Wolff, 916 F. Supp. 1018, 1023 (D. Nev. 1996).
58. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
59. Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
60. Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) (alterations in original).
61. Bulger v. U.S. Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995); see also Rivera v. Coughlin,
No. 92 CIV 3404, 1996 U.S. Dist. LEXIS 560, at *17 (S.D.N.Y. Jan. 22, 1996) (unpublished) (holding no
protected liberty interest existed where loss of good-time credit under New York regulations was a
recommendation and, therefore, only tentative).
62. Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584 (1997); see also Rivera v. Coughlin, No. 92
CIV 3404, 1996 U.S. Dist. LEXIS 560, at *9 (S.D.N.Y. Jan. 22, 1996) (unpublished) (finding no
protected liberty interest existed where loss of good-time credit under New York regulations was a
recommendation and, therefore, only tentative).
63. Edwards v. Balisok, 520 U.S. 641, 647–48, 117 S. Ct. 1584, 1589 (1997); Interview with
Kenneth Stephens, Esq., The Legal Aid Society, Prisoners’ Rights Project N.Y., N.Y. (Oct. 22, 1999).
64. See Jackson v. Johnson, 15 F. Supp. 2d 341, 360 (S.D.N.Y. 1998) (holding that where prisoner
had not lost good-time credits and was not otherwise challenging the fact or duration of his
confinement, he could use a § 1983 suit rather than habeas corpus to make a due process challenge to a
disciplinary hearing); see also Brown v. Plaut, 131 F.3d 163, 166 (D.C. Cir. 1997) (finding that former
prisoner who brought § 1983 action seeking damages for being placed in administrative segregation
without due process was not required to raise claim via writ of habeas corpus).
65. See Stone-Bey v. Barnes, 120 F.3d 718, 722 (7th Cir. 1997) (holding that prisoner’s § 1983
claim that disciplinary segregation violated due process was barred because disciplinary judgment had
not been overturned and claim would necessarily imply its invalidity).
institutional life altogether” has been revoked. 66 Lower courts have interpreted this
restriction broadly enough to find an inherent liberty interest arising from the Due Process
Clause “when a person has substantial, albeit conditional, freedom, such as when he is on
probation or parole.” 67 The standard used by courts to determine whether “substantial
freedom” exists is whether the work release program in question is more similar to release
from incarceration or whether it remains more similar to institutional life.68 In fact, one
court has proposed that parole and work release should be viewed on a scale, with a liberty
interest existing when the program more closely resembles parole.69
The deciding factor for whether you have been “release[d] from institutional life
altogether” is where you live on a full-time basis. In Edwards v. Lockhart, the court found
that a work release program participant had a protected liberty interest because he “no
longer lived in an institution but lived in the community.” 70 In Roucchio v. Coughlin,
however, the court found no inherent liberty interest in continued placement in a work
release program where the participant was on “5” and “2” status (spent five nights a week at
home and two at the institution), held a full-time job, lived at home with his mother, and
reported twice a week to the institution to sleep over and meet with his counselor.71 In this
case, the court found “although the [prisoner] ‘did enjoy some conditional liberty while
participating in the work release program, he had not been released from institutional life
altogether.’”72
Even if you do not have an inherent (absolute) liberty interest under the Due Process
Clause, you may still have a state-created liberty interest in a work release program.
Although it is settled that you do not have a state-created liberty interest in the initial
determination of whether you may participate in a work release program,73 in some states
66. See Hewitt v. Helms, 459 U.S. 460, 467, 103 S. Ct. 864, 868, 74 L. Ed. 2d 675, 684 (1983)
(finding that neither parole nor good-time are interests that enjoy independent protection under the
Due Process Clause). More recently, the Supreme Court has strongly disapproved of this line of
reasoning in Sandin.
67. Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666, 668 (8th Cir. 1996)
(asserting that work release program did not give rise to liberty interest inherent in Due Process
Clause itself and that there was no state-created liberty interest because revocation of prisoner’s work
release program was not atypical or significant deprivation in relation to ordinary prison life).
68. See Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666, 668 (8th Cir. 1996)
(finding the work release program in question “did not provide the sort of substantial freedom that
gives rise to a liberty interest” because it “was more analogous to institutional life than it was to
probation or parole”).
69. See Harper v. Young, 64 F.3d 563, 566–67 (10th Cir. 1995) (citing Edwards v. Lockhart, 908
F.2d 299, 302–03 (8th Cir. 1990)) (a “prisoner release program which permits a convict to exist, albeit
conditionally, in society on a full-time basis more closely resembles parole or probation than even the
more permissive forms of institutional confinement”).
70. Edwards v. Lockhart, 908 F.2d 299, 302 (8th Cir. 1990); see also U.S. v. Stephenson, 928 F.2d
728, 732 (6th Cir. 1991) (finding inherent liberty interest in continued placement in supervised release
program allowing convicts to live in society).
71. Roucchio v. Coughlin, 923 F. Supp. 360, 369 (E.D.N.Y. 1996).
72 . Roucchio v. Coughlin, 923 F. Supp. 360, 369 (E.D.N.Y. 1996) (quoting Whitehorn v.
Harrelson, 758 F.2d 1416, 1421 (11th Cir. 1985)).
73. See Roucchio v. Coughlin, 923 F. Supp. 360, 371 n.3 (E.D.N.Y. 1996) (stating that “a New
York prisoner has no state-created liberty interest in the initial determination” about participation in a
work release program in a case about revocation of work release privileges); see also Greenholtz v.
Prisoners of Neb. Penal and Correctional Complex, 442 U.S. 1, 9, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668,
676 (1979) (“There is a crucial distinction between being deprived of a liberty one has ... and being
denied a conditional liberty that one desires.”); Lee v. Governor of the State of N.Y., 87 F.3d 55, 58 (2d
Cir. 1996) (holding that since prisoners had not previously participated in work release program, new
rules rendering him ineligible for such programs did not give rise to a liberty interest); Whitehorn v.
Harrelson, 758 F.2d 1416, 1422 (11th Cir. 1985) (determination of initial placement in work release
program, and removal of prisoner from such program, present different inquiries).
removal from a work release program does constitute an “atypical and significant hardship”
under the Sandin analysis.74 In New York, for example, it is settled that “the removal of a
prisoner from a work release program in which he has been gainfully employed imposes an
atypical, significant hardship upon the prisoner relative to the ordinary incidents of prison
life.”75 The Second Circuit recently set out the process required before a participant may be
removed from temporary work release:
(1) Written notice of the alleged violation of the program’s rules or conditions;
(2) A statement of the actual reason for consideration of the prisoner’s removal from
work release;
(3) A report or summary of the evidence against him or her;
(4) An opportunity to be heard and to present evidence;
(5) Advance notice of a temporary release committee hearing;
(6) The right to confront and cross-examine adverse witnesses;
(7) A TRC [temporary release committee] composed of neutral decision makers; and
(8) A post-hearing written account of the actual reason for removal and a summary of
the evidence supporting that reason.76
(9) Additionally, removal from a temporary work release program does not meet due
process requirements “unless the findings of the [temporary release committee] are
supported by some evidence in the record.”77
5. Parole
You do not have an inherent liberty interest in obtaining parole.78 The Constitution does,
however, give rise to a protected liberty interest when your parole has been revoked.79
74. See Roucchio v. Coughlin, 923 F. Supp. 360, 374–75 (E.D.N.Y. 1996) (where prisoner removed
from work release program after 15 months, the “revocation of [his] conditional freedom” gave rise to a
liberty interest). But see Dominique v. Weld, 73 F.3d 1156, 1160 (1st Cir. 1996) (finding no liberty
interest implicated when prisoner was removed from work release program in which he participated for
almost four years; although “return from the quasi-freedom of work release to the regimentation of life
within four walls” may have been a significant deprivation, it was not atypical); Hamilton v. Peters, 919
F. Supp. 1168, 1172 (N.D. Ill. 1996) (finding no liberty interest under Sandin when prisoner was
removed from work release in a disciplinary transfer).
75. Quartararo v. Catterson, 917 F. Supp. 919, 940 (E.D.N.Y. 1996) (affirming the “continued
vitality of Tracy v. Salamack in light of Sandin”). Tracy v. Salamack, 572 F.2d 393, 396 (2d Cir. 1978)
(holding “that the State of New York, in establishing the Temporary Release Program, created a liberty
interest that may not be terminated without an individualized due process hearing.”). In Anderson v.
Recore, 317 F.3d 194 (2d Cir. 2003), the Second Circuit concluded that the Supreme Court in Sandin,
by affirming the validity of Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)
and Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976), implicitly affirmed by
Tracy v. Salamack, 572 F.2d 393, because Tracy explicitly rests upon Morrissey and Meachum. But see
Duffy v. Selsky, No. 95 CIV 0474, 1996 WL 407225, at *11 (S.D.N.Y. Jul. 18, 1996) (unpublished)
(holding no liberty interest in admission to the Temporary Release Program).
76. Tracy v. Salamack, 572 F.2d 393, 396 (2d Cir. 1978) (defining the circumstances under which
removal would be proper after a Due Process hearing).
77. Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) (quoting Superintendent, Mass. Corr.
Inst. v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 2773, 86 L. Ed. 2d 356, 364 (1985)).
78. See Bd. of Pardons v. Allen, 482 U.S. 369, 373, 107 S. Ct. 2415, 2418, 96 L. Ed. 2d 303, 309–
10 (1987) (citing Greenholtz v. Prisoners of Neb. Penal and Corr. Complex, 442 U.S. 1, 11, 99 S. Ct.
2100, 2106, 60 L. Ed. 2d 668, 677–78 (1979)) (stating that “the presence of a parole system by itself does
not give rise to a constitutionally protected liberty interest in parole release”); see also Bowser v. Vose,
968 F.2d 105, 106 (1st Cir. 1992) (holding that there is no liberty interest in continuing to participate in
furlough).
79. See Morrissey v. Brewer, 408 U.S. 471, 485–88, 92 S. Ct. 2593, 2602–04, 33 L. Ed. 2d 484,
496–98 (1972) (holding that minimum due process requirements for parole revocation include
preliminary hearing to determine probable cause “as promptly as convenient after arrest,” as well as
revocation hearing).
Although a liberty interest in obtaining parole does not arise from the Constitution, you
have a protected liberty interest when a parole statute creates an expectation of parole.80 The
existence of an “expectation of parole” varies from state to state and depends on whether the
statute contains mandatory language creating such an expectation. 81 For example, if a
statute contains language such as “shall” or “unless,” such an expectation may exist.82
Generally, confinement in either administrative or disciplinary segregation that may also
affect your parole opportunities does not give rise to a protected liberty interest under
Sandin.83 Therefore, even if your release date has been postponed because you have spent
time in segregation, you still do not have a liberty interest at stake when you are initially
charged with a violation.
D. Prisoners’ Basic Rights in Disciplinary Procedures
In Wolff v. McDonnell,84 the Supreme Court described how prison disciplinary procedures
should be conducted in order to comply with constitutional due process requirements. The
due process safeguards for disciplinary action described below do not apply to your placement
in administrative segregation. The procedural requirements for administrative segregation
are described in Part F of this Chapter. If you have suffered a deprivation of a recognized
liberty interest, such as a loss of good-time credits or some similarly severe punishment, this
Part will provide a detailed explanation of the Wolff due process rights you can assert to
defend yourself at your disciplinary proceeding or to challenge it on appeal in court. Once you
establish that a disciplinary action was an atypical and significant hardship affecting a
protected liberty interest, the court then addresses “whether the deprivation of that liberty
interest occurred without due process of law.”85 Even if the punishment you face is not severe
80. See Bd. of Pardons v. Allen, 482 U.S. 369, 376–78, 107 S. Ct. 2415, 2420–21, 96 L. Ed. 2d 303,
311–13 (1987) (finding the Montana statute, which includes mandatory language, “creates a liberty
interest in parole release”). This remains true even under Sandin. See Wilson v. Kelkhoff, 86 F.3d 1438,
1446 n.9 (7th Cir. 1996) (“It appears that the Court [in Sandin] intended to leave undisturbed the cases
holding that a protectable liberty interest exists in parole statutes that create an ‘expectancy of
release.’”); Ellis v. Dist. of Columbia, 84 F.3d 1413, 1417–18, 318 U.S. App. D.C. 39 (D.C. Cir. 1996)
(noting that Sandin did not overrule Greenholtz v. Prisoners of Neb. Penal and Correctional Complex or
Board of Pardons v. Allen, and holding that liberty interest in parole stems from state parole statutes).
81. See, e.g., Watson v. DiSabato, 933 F. Supp. 390, 394 (D.N.J. 1996) (New Jersey parole statute
creates a sufficient expectation of parole eligibility to give rise to liberty interest); Allison v. Kyle, 66
F.3d 71, 73–74 (5th Cir. 1995) (no state-created liberty interest in parole procedures in Texas); Harper
v. Young, 64 F.3d 563, 564–65 (10th Cir. 1995) aff’d, 520 U.S. 143, 117 S. Ct. 1148, 137 L. Ed. 2d 270
(1997) (declining to address whether state-created liberty interest remained in Oklahoma parole
revocation proceedings after Sandin, but holding that “program participation is sufficiently similar to
parole or probation to merit protection by the Due Process Clause itself”); Clarkson v. Coughlin, 898 F.
Supp. 1019, 1040 (S.D.N.Y. 1995) (holding that state-created limited protected liberty interest in New
York parole proceedings extending as far as prisoner’s right to be heard and right to know reasons for
parole denial); Wilson v. Kelkhoff, 86 F.3d 1438, 1446 (7th Cir. 1996) (holding that the Illinois parole
statute provides “for protectable liberty interest in release” for most prisoners).
82. See Watson v. DiSabato, 933 F. Supp. 390, 392–93 (D.N.J. 1996) (holding that mandatory
language created “expectancy of release”, and that Greenholtz and Allen remain good law after Sandin
in the point of liberty interest in parole); see Clarkson v. Coughlin, 898 F. Supp. 1019, 1040 (S.D.N.Y.
1995) (“Mandatory language in a state parole statute may create such an interest” in parole board
proceedings).
83. See Meachum v. Fano, 427 U.S. 215, 229 n.8, 96 S. Ct. 2532, 2540 n.8, 49 L. Ed. 2d 451, 462
n.8 (1976) (noting that possible effect on parole decision does not create liberty interest); Haff v. Cooke,
923 F. Supp. 1104, 1119 (E.D. Wis. 1996) (citing Sandin v. Conner, 515 U.S. 472, 487, 115 S. Ct. 2293,
2302, 132 L. Ed. 2d 418, 431–32 (1995)) (noting that a disciplinary violation that may “later affect a
parole decision does not implicate a liberty interest because prisoner’s disciplinary record is only one of
many criteria used to determine parole”).
84. Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).
85. Sealey v. Giltner, 116 F.3d 47, 51–52 (2d Cir. 1997) (quoting Bedoya v. Coughlin, 91 F.3d 349,
enough to trigger due process, your prison regulations may state that certain disciplinary
procedures must be followed. Prison officials are still required to follow their own rules.86
Therefore, while you might not be able to appeal the outcome in federal court, you may still
be able to file an administrative appeal within the prison system. In any case, you will have a
better chance of success if you are familiar with the procedures that your prison provides and
if you take advantage of them at your disciplinary hearing.
1. The Prison Must Publish Rules Governing Your Conduct
Although it was not discussed in Wolff, one of your most basic due process rights is that
you generally cannot be punished for an act not prohibited by prison regulations unless that
act violates state criminal laws. For example, in Richardson v. Coughlin,87 prison officials
disciplined a prisoner for circulating a petition without their authorization. The court in that
case ruled in favor of the prisoner, stating that the punishment violated due process because
none of the prison’s rules required prisoners to seek official authorization before circulating
petitions.88 Therefore, it was unfair to punish the prisoner for an activity that he reasonably
believed the prison allowed. The Supreme Court described this principle of fairness in
Grayned v. City of Rockford,89 stating that “because we assume that man is free to steer
between lawful and unlawful conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he may act
accordingly.”90
Prison officials may also be violating your right to due process when they punish you for
conduct that is prohibited only by vague (unclear) regulations. For example, a federal court
in Ohio struck down as unconstitutionally vague a regulation that prohibited “objectionable”
conduct between a prisoner and his or her visitor.91 The word “objectionable” was considered
vague because it can mean different things to different people. To meet the standard of due
process, the regulation should spell out exactly what type of conduct qualifies as
“objectionable.” A regulation can also be found vague as applied to your particular case. In
Rios v. Lane,92 the court found a regulation that prohibited “engaging or pressuring others to
351–52 (2d Cir. 1996)) (finding plaintiff’s 101-day confinement in administrative segregation did not
impair a protected liberty interest since the confinement was not of such duration and in such
conditions as to meet the Sandin atypicality standard).
86. See Uzzell v. Scully, 893 F. Supp. 259, 263 n.10 (S.D.N.Y. 1995) (finding that though a
prisoner’s treatment did not amount to a deprivation of his right to due process, the prisoner remained
free to raise a claim of procedural error on the ground that the State failed to adhere to its own rule
requiring a prisoner to be given 24-hour notice of charges filed against him that resulted in his
administrative segregation).
87. Richardson v. Coughlin, 763 F. Supp. 1228 (S.D.N.Y. 1991).
88. Richardson v. Coughlin, 763 F. Supp. 1228, 1235 (S.D.N.Y. 1991).
89. Grayned v. City of Rockford, 408 U.S. 104, 121, 92 S. Ct. 2294, 2306, 33 L. Ed. 2d 222, 235
(1972) (holding that anti-noise ordinance was not unconstitutionally vague or overbroad).
90. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298–99, 33 L. Ed. 2d 222, 227
(1972) (concluding that an anti-picketing and anti-noise ordinance was not impermissibly vague
because it was written specifically for its context, enabling the impact of prohibited disturbances to be
easily measured).
91. See Taylor v. Perini, 413 F. Supp. 189, 233–34 (N.D. Ohio 1976); see also Jenkins v. Werger,
564 F. Supp. 806, 807 (D. Wyo. 1983) (invalidating rule against “unruly or disorderly” conduct for
vagueness); Laaman v. Helgemoe, 437 F. Supp. 269, 321 (D.N.H. 1977) (invalidating prison rule
forbidding “poor conduct” for vagueness). But see El-Amin v. Tirey, 817 F. Supp. 694, 701 (W.D. Tenn.
1993) (holding that while due process requires certain minimum standards of specificity in prison
regulations, it does not require the same degree of specificity that is required in criminal laws or in
statutes that apply outside of prison), aff’d, 35 F.3d 565 (6th Cir. 1994).
92. Rios v. Lane, 812 F.2d 1032, 1037 (7th Cir. 1987); see also Adams v. Gunnell, 729 F.2d 362,
369–70 (5th Cir. 1984) (finding a regulation that prohibited “conduct which disrupts the orderly
running of the institution” was unconstitutionally vague when used to punish a prisoner for writing
engage in gang activities” unconstitutionally vague when it was applied to a prisoner
involved in a Salvadoran political organization. In other words, a regulation that is not vague
when you read it may be considered vague in your particular situation if it is used to punish
you for an activity that is typically considered lawful.
Nevertheless, you are presumed to have knowledge of the penal law (criminal statutes).
Therefore, you cannot claim that your rights have been violated if prison officials fail to post
and distribute copies of your state’s penal law.93 As one court put it, “[T]he law presumes
that everyone knows the law, and ignorance of the law is no excuse for its violation.”94 You
are also presumed to have knowledge of statewide rules of misbehavior if you have
previously served time in another prison in New York and were provided with a copy of the
statewide rules.95
Although you cannot be punished for violating a prison regulation that is temporarily
posted on a bulletin board,96 you can be punished if the regulation is posted permanently.97
New York law requires that every prisoner be given a personal copy of the prison rules.98 If
required by the chief administrative officer of the prison, the prisoner must acknowledge in
writing his or her receipt of the prison disciplinary handbook. 99 All regulations must be
printed in both English and Spanish, 100 and the range of punishments for each type of
violation must be clearly noted.101
If you do not have a copy of your prison’s regulations, ask prison officials to give you one.
If you do not understand English, or if you read Spanish better than English, ask for a copy
of the regulations in Spanish. 102 If you are brought before a prison disciplinary board,
remember that you generally cannot be punished for violating a rule that is not published in
the prison regulations, nor can you be punished if you have not been issued a copy of the
regulations.
and circulating a petition).

93. See McRae v. State, 157 S.E.2d 646, 648, 116 Ga. App. 407, 410 (Ga. Ct. App. 1967) (holding
that prison is not required to inform every prisoner of consequences of escape or attempt to escape and
failure to so inform prisoner did not render sentence for escape void).
94. McRae v. State, 157 S.E.2d 646, 648, 116 Ga. App. 407, 410 (Ga. Ct. App. 1967).
95. See Johnson v. Coughlin, 205 A.D.2d 537, 539, 613 N.Y.S.2d 192, 193 (2d Dept.1994) (holding
that prisoner’s due process rights not violated by officials’ failure to provide him with prisoner rule book
in timely manner where prisoner had previously been incarcerated and received various manuals
governing prisoner conduct at another facility).
96. See Taylor v. Perini, 413 F. Supp. 189, 235 (N.D. Ohio 1976) (finding that a prisoner manual
did not adequately inform prisoners of prohibited conduct since the posting of regulations on a bulletin
board does not constitute fair notice).
97. See Forbes v. Trigg, 976 F.2d 308, 314 (7th Cir. 1992) (finding that a prisoner had fair notice of
a prison rule requiring urine tests since the posting of the rule was not temporary or transitory).
100. N.Y. Correct. Law § 138(1) (McKinney 1987); See Burgos v. Kuhlmann, 137 Misc. 2d 1039,
1040, 523 N.Y.S.2d 367, 368 (Sup. Ct. Sullivan County 1987) (holding that disciplinary charges were
dismissed and the prisoner’s record cleared on the ground that the Spanish-speaking prisoner did not
have meaningful notice of prison rules where he was only provided with the English version of the
rules).
102. If you are incarcerated outside New York, the prison may not be required to provide you
with a copy of the prison regulations. Copies may also be available in Spanish. Research the rules and
regulations of your state to see if this is the case where you are incarcerated. See Chapter 2 of the JLM
for information on conducting legal research.
2. Written Notice Requirement
Under Wolff v. McDonnell,103 you have the right to receive notice of (know about) the
charges against you at least twenty-four hours before your disciplinary hearing is scheduled
to begin. An oral (spoken) explanation of the charges is not sufficient. The charges must be in
writing, and they must be clear enough to allow you to prepare your defense.104 At least one
court has found that a prisoner was denied due process because although he was given notice
twenty-four hours in advance, he was only allowed to review the actual written charges for
five hours.105 With only five hours to study the twelve charges against him, the prisoner had
to rely largely on his memory in gathering evidence and preparing his defense, putting him
at a great disadvantage.106 The purpose of the twenty-four hour notice requirement is to give
prisoners a fair chance to prepare their defense by informing them of the specific nature of
the charges.107
New York law also requires that prisoners receive written notice of the formal charges at
least twenty-four hours before the hearing begins.108 Unlike Wolff v. McDonnell, which did
not require the notice to have a particular content,109 New York regulations require notice to
contain the date, time, place, and nature of the allegation (including particulars of the
alleged misbehavior and the applicable rule allegedly violated). 110 The regulations also
require that prison officials provide translations of the notice of the charges and statements
of evidence to non-English speaking prisoners.111 In addition, non-English speaking prisoners
are entitled to have a translator present at the disciplinary hearing. 112 Similar
accommodations must be made for prisoners who are deaf or hard of hearing.113
103. Wolff v. McDonnell, 418 U.S. 539, 564, 94 S. Ct. 2963, 2979, 41 L. Ed. 2d 935, 956 (1974).
104. See Spellmon-Bey v. Lynaugh, 778 F. Supp. 338, 344 (E.D. Tex. 1991) (holding that prison
disciplinary board could not, consistent with due process, rely solely on testimony of charging officer
regarding hearsay statements of unidentified informer to support revocation of prisoner’s good-time
credit).
105. See Benitez v. Wolff, 985 F.2d 662, 665 (2d Cir. 1993).
106. Benitez v. Wolff, 985 F.2d 662, 665 (2d Cir. 1993).
107. See Hameed v. Mann, 849 F. Supp. 169, 172 (N.D.N.Y. 1994) (holding that notice received
by prisoner prior to disciplinary hearing was sufficient, but acknowledging that “a notice lacking the
required specifics which fail to apprise the accused party of the charges brought against him must be
found to be unconstitutional because then, the accused party cannot adequately prepare a defense”).
109. Wolff v. McDonnell, 418 U.S. 539, 563–65, 94 S. Ct. 2963, 2978–79, 41 L. Ed. 2d 955, 956
(1974). Some federal courts have created certain minimum standards. For example, in Spellmon-Bey v.
Lynaugh, the court held that notice must contain at least a description of the specific acts upon which
the charges are based, as well as the times that these acts allegedly occurred, unless it is an exceptional
situation where the threat to prison security interests outweighs the prisoner’s interests. Spellmon-Rey
v. Lynaugh, 778 F. Supp. 338, 342–43 (E.D. Tex. 1991).
110. N.Y. Comp. Codes R. & Regs. tit. 7, § 251-3.1(c)(1)(2)(3) (1995); see also Howard v. Coughlin,
190 A.D.2d 1090, 1090, 593 N.Y.S.2d 707, 708–09 (4th Dept. 1993) (finding notice insufficient when it
provided the wrong date for when the alleged misconduct occurred); McCleary v. LeFevre, 98 A.D.2d
866, 868, 470 N.Y.S.2d 841, 843–44 (3d Dept. 1983) (finding notice was insufficient when it failed to
inform prisoners of facts upon which charges were based). But see Vogelsang v. Coombe, 105 A.D.2d
913, 914, 482 N.Y.S.2d 348, 350 (3d Dept. 1984) (referring to the disciplinary problem in question as
the “incident” was sufficient notice where notice contained references to four-day riot, rule violations,
and prisoner’s offensive conduct).
111. N.Y. Comp. Codes R. & Regs. tit. 7, § 254.2 (2004); see also Reyes v. Henderson, 121 Misc.
2d 970, 971–72, 469 N.Y.S.2d 520, 521 (Sup. Ct. Albany County 1983) (holding that Spanish-speaking
prisoner was denied procedural due process where he was given notice of the charges against him in
English only).
Prison staff should bring you a copy of the written charges or “ticket.” Since you may not
know exactly when the proceedings will be held, you should immediately begin preparing a
defense, as outlined below.
3. “Substitute Counsel” (Employee Assistant)
In Baxter v. Palmigiano,114 the Supreme Court held that prisoners do not have a right to
either retained or appointed counsel at disciplinary proceedings. The Wolff Court did,
however, recognize two circumstances in which you are entitled to a “counsel-substitute” (a
phrase referring either to a prison employee or a fellow prisoner who assists you in the
preparation of your case). First, the Court made an exception for illiterate prisoners, who
must be given assistance in preparing their cases. 115 Second, the Court stated that all
prisoners should be provided assistance where “the complexity of the issue makes it unlikely
that the prisoner will be able to collect and present the evidence necessary for an adequate
comprehension of the case.”116 The Court did not define “complexity.” Therefore, it is unclear
how complex the facts involved in the alleged violation must be before you can demand the
aid of an employee assistant. If you face some clear personal barrier to preparing your
defense (for example: illiteracy, language, mental illness, or restrictive confinement), your
claim for assistance will be stronger, and you should raise that fact with prison officials.
The New York regulations governing employee assistants are slightly more expansive
than the Wolff standard. The regulations guarantee an employee assistant for certain
prisoners, including
(1) non-English speaking prisoners;
(2) illiterate prisoners;
(3) prisoners who are deaf or hard-of-hearing (who may be provided with sign language
interpreters);
(4) prisoners who are charged with drug use as a result of urinalysis tests; and
(5) prisoners confined to a special housing unit (SHU) pending a superintendent’s
hearing.117
In the case of non-English speaking prisoners, a court held a prisoner who spoke only
Spanish was entitled to meet with a Spanish-speaking assistant at least twenty-four hours
before the disciplinary hearing. 118 In the case of segregated prisoners, a court ruled a
prisoner who is unable to adequately prepare his or her defense because he is confined in a
SHU, or has been transferred to another prison, has a due process right to assistance.119 In
such situations, correction officers have an obligation to perform investigatory tasks that the
prisoner would perform for himself were he able.120 However, note that assistants are only
required to answer questions you specifically ask, and to perform tasks you specifically
request.121 Finally, if you are entitled to an assistant, New York law requires your hearing
take place no less than twenty-four hours after your initial meeting with that assistant.122
114. Baxter v. Palmigiano, 425 U.S. 308, 315, 96 S. Ct. 1551, 1556–67, 47 L. Ed. 2d 810, 819–20
(1976).
117. N.Y. Comp. Codes R. & Regs. tit. 7, § 251-4.1(a) (1997).
118. Rivera v. Smith, 110 A.D.2d 1043, 1043–44, 489 N.Y.S.2d 131, 132 (4th Dept. 1985). But see
Valles v. Smith, 116 A.D.2d 1002, 1002, 498 N.Y.S.2d 623, 624 (4th Dept. 1986) (finding Spanish-
speaking prisoner not entitled to have employee assistant translate for him at disciplinary proceeding;
assistance from Spanish-speaking prisoner was enough).
119. See Eng v. Coughlin, 858 F.2d 889, 898 (2d Cir. 1988). Under Eng, an employee assistant,
who does nothing to assist a segregated prisoner, has failed to accord the prisoner his limited
constitutional due process right of assistance.
120. Eng v. Coughlin, 858 F.2d 889, 898 (2d Cir. 1988).
121. See Serrano v. Coughlin, 152 A.D.2d 790, 792–93, 543 N.Y.S.2d 571, 573 (3d Dept. 1989)
When you receive notice of the charges against you, you will be given a list of employees
who serve as employee assistants.123 You are entitled to choose an employee assistant from
the list, but you might not get your first choice. If you are given someone whom you do not
want as an employee assistant, inform that person that you object to the assignment.124 If at
the time of the hearing you are still not satisfied with your employee assistant, be sure to
inform the hearing officer of your objection. It is important to realize that your failure to
select an employee assistant from the available list may constitute a “waiver” of any right
you have to assistance (meaning you would be considered to have given up your right to
assistance).125
The employee assistant should assist you in preparing for the hearing by explaining the
charges, interviewing witnesses, and helping you obtain documentary evidence or written
statements.126 However, do not expect the employee assistant to do anything that you do not
specifically ask him or her to do.127 You must ask for assistance. If you fail to make an
affirmative request, you waive your right to assistance. For example, in Newman v.
Coughlin, the prisoner made a general request for assistance from the law library staff, but
did not specifically request that the employee assistant help him prepare his case.128 As a
result, the prisoner bore responsibility for his own lack of representation.
On the other hand, neither due process nor New York law requires that the assistant act
as your advocate the way a lawyer would, or even that the assistant be present at your
hearing.129 However, due process does require that your assigned assistant carry out basic,
reasonable, and non-disruptive requests.130 For example, one court held that an employee
assistant’s refusal to collect necessary and available evidence violated the prisoner’s due
process rights.131 Another court held that an employee assistant, who did not report back to
(holding that prisoner was not denied meaningful employee assistance because he did not specify the
documents he wanted produced).
123. N.Y. Comp. Codes R. & Regs. tit. 7, § 251-4.1(a) (1997); see also Jones v. Coughlin, 112 Misc.
2d 232, 234, 446 N.Y.S.2d 849, 850–51 (Sup. Ct. Albany County 1982) (finding that prisoner’s due
process rights was violated when prison designated employee assistant other than one prisoner had
selected, despite prisoner’s oral and written objections).
124. You may also write to the superintendent and request your original choice.
125. See Walker v. Coughlin, 202 A.D.2d 1034, 1034, 609 N.Y.S.2d 471, 471 (4th Dept. 1994)
(holding that prisoner waived his right to employee assistant by refusing to sign employee assistant
selection form).
126. N.Y. Comp. Codes R. & Regs. tit. 7, § 251-4.2 (1997).
127. See Horne v. Coughlin, 155 F.3d 26, 31 (2d Cir. 1998), amended by 191 F.3d 244 (2d Cir.
1999). In the case, the prisoner, who is mentally retarded, was sentenced to six months in the SHU and
six months recommended loss of good time. The prisoner argued that his employee assistant should not
have merely followed his instructions but should also have presented a defense. The court disagreed,
saying that the law did not support that demand and, in addition, held that six months in the SHU did
not constitute cruel and unusual punishment of a retarded person.
128. Newman v. Coughlin, 110 A.D.2d 981, 981, 488 N.Y.S.2d 273, 274 (3d Dept. 1985).
129. See Gunn v. Ward, 71 A.D. 2d 856, 856, 419 N.Y.S. 2d 182, 183 (2d Dept. 1981) (holding
failure of employee assistant to appear at superintendent’s proceeding violates neither New York law
nor a prisoner’s right to due process).
130. See Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993) (discussing the duties of employee
assistants and holding that (1) prisoner has no constitutional right of assistance per Wolff v. McDonnell
so that failure of assistant to call other prisoners involved in alleged violation did not violate prisoner’s
due process rights, and (2) assistant had no obligation to go beyond bounds of prisoner’s specific
instructions in interviewing prisoners and gathering evidence); see also Tumminia v. Coughlin, 100
A.D.2d 732, 732, 473 N.Y.S.2d 618, 619 (4th Dept. 1984) (finding that assistant’s failure to investigate
prisoner’s reasonable factual claim violates due process); Hilton v. Dalsheim, 81 A.D.2d 887, 888, 439
N.Y.S.2d 157, 158 (2d Dept. 1981) (finding that assistant’s failure to interview witnesses as requested
by prisoner violates due process).
131. See Giano v. Sullivan, 709 F. Supp. 1209, 1215 (S.D.N.Y. 1989) (holding that the prisoner
the prisoner with the results of his investigation and witness interviews, deprived the
prisoner of his right to defend himself.132
You may or may not want to give the employee assistant “your side of the story.” The
advantage to telling your story is that the employee assistant might be able to use this
information to help you exercise your limited right to find witnesses, as described in the next
Section. However, one disadvantage is that if the story you tell your employee assistant
differs from the testimony you give at your hearing, prison officials can hold this against you.
The discrepancy may damage your credibility and give prison officials an excuse to discredit
your testimony.
4. Witnesses
Wolff v. McDonnell recognized your limited constitutional right to call witnesses at
disciplinary hearings. 133 In Wolff, the Court stated that a prisoner in a disciplinary
proceeding “should be allowed to call witnesses and present documentary evidence in his
defense when permitting him to do so will not be unduly hazardous to institutional safety or
correctional goals.”134 In other words, you can call witnesses unless prison officials decide
that allowing you to do so would negatively impact either the safety of the prison or the
prison officials’ ability to operate the prison. Furthermore, prison officials are not required to
call every witness you request to testify for you. A prison official may exercise his “discretion
to keep the hearing within reasonable limits.”135 This has been interpreted to mean that the
official may decline to call witnesses whose testimony would be immaterial 136 or unduly
redundant.137
This qualified constitutional right to call witnesses was initially expanded and clarified
in Powell v. Ward, also known as Powell II. 138 In Powell II, the court stated that while
prisoners may not be able to call witnesses to testify in the prisoner’s presence at a hearing,
“witnesses must be allowed to be present at disciplinary proceedings, unless the appropriate
officials determine that their presence would jeopardize institutional safety or correctional
goals.”139 If it is determined that witnesses may not be present at the disciplinary hearing,
the witness may be interviewed and tape-recorded out of your presence. The tape or
transcript of the interview must be made available to you before or at the hearing, unless the
was denied his constitutional rights to assistance in marshaling evidence and presenting a defense in a
disciplinary hearing when his employee assistant proceeded with the hearing despite the prisoner’s
protest that the assistant refused to secure relevant documentary evidence).
132. See Brooks v. Scully, 132 Misc. 2d 517, 519, 504 N.Y.S.2d 387, 389 (Sup. Ct. Dutchess
County 1986) (holding that the failure of the employee assistant to inform the prisoner of investigation
results and interviews with witnesses deprived the prisoner of meaningful and effective assistance in
preparation for a disciplinary hearing).
135. Wolff v. McDonnell, 418 U.S. 539, 566, 94 S. Ct. 2963, 2980, 41 L. Ed. 2d 935, 956–57
(1974).
136. See Finney v. Coughlin, No. 00-0138, 2 F. App’x. 186, 191, 2001 U.S. App. LEXIS 1686, at
*11 (2d Cir. Feb. 2, 2001) (unpublished) (stating that a prison hearing officer may exercise his
“discretion to keep the hearing within reasonable limits” by declining to call immaterial witnesses to
testify).
137. See Russell v. Selsky, 35 F.3d 55, 59 (2d Cir. 1994) (concluding that summary judgment
was properly awarded, dismissing the claim that a disciplinary hearing officer wrongly deemed
testimony cumulative, because the officer had already heard testimony identical to that offered by
additional witnesses the officer declined to call).
138. Powell v. Ward, 487 F. Supp. 917 (S.D.N.Y. 1980), aff’d, 643 F.2d 924 (2d Cir. 1991).
139. Powell v. Ward, 487 F. Supp. 917, 929 (S.D.N.Y. 1980).
hearing officer decides that this also “would jeopardize institutional safety or correctional
goals.”140 In such a case, you must be given an explanation for the denial.141
Under New York regulations, the notice that you receive before the hearing must inform
you of your right to call witnesses.142 You may request a witness either by informing your
employee assistant or hearing officer before the hearing, or by informing your hearing officer
during the hearing.143 You have a right to request that your employee assistant interview
prisoner witnesses. If your employee assistant interviews witnesses outside of your presence,
you also have a right to receive a tape or transcript of the interview or an explanation of
their denial.144
If permission to call a witness is denied, you must receive a written statement from the
hearing officer that specifically states the reasons for the denial, including the specific threat
to institutional safety or correctional goals presented.145 Statements that give a conclusion
without an explanation, like “it does not meet with security procedure or correctional goals
for you to be present during those interviews,” have been found insufficient.146 Although the
explanation that a witness’s testimony is “redundant” (meaning it repeats evidence available
from other sources) can be a valid reason to deny you a witness, prison officials do not always
have unlimited discretion to decide that fact.147 On the other hand, courts do not require
these explanations to be detailed. Rather, the court “must accord due deference to the
decision of the [prison] administrator.”148 The court will uphold the prison official’s denial
even if the witness could have provided testimony that might have cleared the prisoner.149
140. Powell v. Ward, 487 F. Supp. 917, 929 (S.D.N.Y. 1980).

141. Powell v. Ward, 487 F. Supp. 917, 929 (S.D.N.Y. 1980); see also Ponte v. Real, 471 U.S. 491,
492, 105 S. Ct. 2192, 2193–94, 85 L. Ed. 2d 553, 556 (1985) (although due process requires that prison
officials state their reasons for refusing to call witnesses, such reasons do not have to be in writing or
made part of the administrative record).
142. N.Y. Comp. Codes R. & Regs. tit. 7, § 251-3.1(d)(2) (1995).
143. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.5(c) (2000); N.Y. Comp. Codes R. & Regs. tit. 7, §
254.5(c) (2004).
144. See Burke v. Coughlin, 97 A.D.2d 862, 863, 469 N.Y.S.2d 240, 242 (3d Dept. 1983) (stating
that New York State regulations give prisoners the right to have a chosen employee interview any
witnesses requested in investigating the prisoner’s reasonable factual claims and submit a written
report including witness statements).
145. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.5(a) (2000), N.Y. Comp. Codes R. & Regs. tit. 7, §
254.5(a) (2004); see also Moye v. Selsky, 826 F. Supp. 712, 716–17 (S.D.N.Y. 1993) (due process
demands that prison officials give prisoners explanation for exclusion of witnesses from disciplinary
hearing).
146. See People ex rel. Selcov v. Coughlin, 98 A.D.2d 733, 735, 469 N.Y.S.2d 148, 151 (2d Dept.
1983) (holding that without evidence that prisoner’s presence would create any threat to prison security
or correctional goals, prisoner’s due process rights were violated).
147. See Fox v. Coughlin, 893 F.2d 475, 477–78 (2d Cir. 1990) (holding that officials did not
deprive prisoner of clearly established statutory or constitutional rights where they called only some of
the witnesses he requested); Wong v. Coughlin, 137 A.D.2d 272, 274, 529 N.Y.S.2d 45, 46 (3d Dept.
1988) (removing disciplinary violation from prisoner’s record where hearing officer’s basis for refusing
to allow officer who had prepared misbehavior report to testify was based only on guessing or
predicting that his testimony would be redundant); Fox v. Dalsheim, 112 A.D.2d 368, 369, 491 N.Y.S.2d
820, 821 (2d Dept. 1985) (holding that hearing officer abused his discretion where he refused to call two
of the witnesses requested by prisoner due to “redundancy of the testimony”). In Fox v. Dalsheim, the
court said that “[a]lthough the hearing rules and regulations ... now permit exclusion of a witness’s
testimony when it is redundant or immaterial, this provision does not afford the hearing officer the
unlimited right to exclude testimony relevant to a prisoner’s defense.” Fox v. Dalsheim, 112 A.D.2d 368,
369, 491 N.Y.S.2d 820, 821 (2d Dept. 1985).
148. Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1107 (S.D.N.Y. 1995) (holding hearing officer’s
denial of request for gallery listing so prisoner could identify other possible witnesses did not violate
due process).
149. Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1107 (S.D.N.Y. 1995).
When prison officials base their decision to deny witnesses on security concerns, courts will
almost always uphold that determination.150
5. Confronting and Cross-Examining Witnesses
Even though you generally have the right to call witnesses on your behalf, the Supreme
Court in Wolff v. McDonnell held that you do not have a constitutionally guaranteed right to
confront and cross-examine the other side’s witnesses (ask them questions). The Court found
that such a right would create “considerable potential for havoc [problems] inside prison
walls.”151 One court interpreting Wolff described the security issues posed by confrontation
and cross-examination as being concerned with the likelihood of retaliation against adverse
witnesses and informants (those testifying unfavorably or against you), which often results
in death or injury, in addition to the “potential for breakdown in authority.”152 Due to the
prison’s strong interest in preserving safety, the right to confront and cross-examine adverse
witnesses is much more limited than the right to present witnesses who testify on your
behalf. Whether you will be allowed to confront and cross-examine witnesses is left up to the
prison officials.153 Prison officers are not required under the Due Process Clause to provide
the prisoner with a written report of the reasons for denying him the right to confront his
accusers or to cross-examine witnesses.154
In New York, courts have held prisoners do not have the right to be present when
adverse witnesses testify.155 But, prison officials must provide some objective evidence to
support a decision to interview witnesses outside your presence.156 They may also be required
to give you a tape or transcript of the testimony, if doing so does not undermine the prison’s
interest in safety. For example, in Martin v. Coughlin, a disciplinary ruling was dismissed
where the state refused to provide the prisoner with a tape or transcript of a witness’s
150. See, e.g., Laureano v. Kuhlmann, 75 N.Y.2d 141, 147–48, 550 N.E.2d 437, 440–41, 551
N.Y.S.2d 184, 187–88 (1990) (denial of right to call witness upheld where hearing officer informed
prisoner that victim of assault feared retaliation, and officer showed prisoner form where witness
indicated desire not to testify); Cortez v. Coughlin, 67 N.Y.2d 907, 909, 492 N.E.2d 1225, 1226, 501
N.Y.S.2d 809, 810 (1986) (exclusion of prisoner from his disciplinary hearing during prisoner testimony
upheld on the basis of institutional safety and disciplinary reports documenting violent behavior;
prisoner allowed to listen to taped testimony instead).
152. Smith v. Farley, 858 F. Supp. 806, 817 (N.D. Ind. 1994), aff’d, Smith v. Parke, 56 F.3d 67
(7th Cir. 1995) (finding violation of prisoner’s due process rights where he was not denied his request to
admit as evidence a letter that could potentially clear his name, without security reasons for the
denial).
153. See Sanchez v. Roth, 891 F. Supp. 452, 458 (N.D. Ill. 1995) (holding that where prisoner did
not follow proper procedure for requesting witnesses, prison officials’ refusal to allow witnesses to
testify at disciplinary proceeding did not violate prisoner’s due process rights).
154. See Ponte v. Real, 471 U.S. 491, 492, 105 S. Ct. 2192, 2193–94, 85 L. Ed. 2d 553, 556 (1985)
(holding that the superintendent was not constitutionally required to provide reasons in the
administrative record for refusing to allow respondent to call requested witnesses). But see Scarpa v.
Ponte, 638 F. Supp. 1019, 1023 (U.S.D.C. Mass. 1986) (distinguishing Ponte because in that case, prison
officials failing to provide reasons in the administrative record had an explanation related to safety or
correctional goals).
155. See Graham v. N.Y. State Dep’t of Corr. Servs., 178 A.D.2d 870, 870, 577 N.Y.S.2d 728, 729
(3d Dept. 1991) (holding that the prisoner did not have the right to be present during the testimony of a
witness called by the Hearing Officer because “the right to be present applies only when an inmate
calls a witness”); Honoret v. Coughlin, 160 A.D.2d 1093, 1094, 533 N.Y.S.2d 573, 574–75 (3d Dept.
1990) (dismissing the prisoner’s claim that his due process rights were violated when he was not
allowed to be present at the testimony of a witness called by the Hearing Officer).
156. See Burnell v. Smith, 122 Misc. 2d 342, 347, 471 N.Y.S.2d 493, 497 (Sup. Ct. Wyoming
County 1984) (removing disciplinary violation from prisoner’s record where no substantive reason was
given for refusal to allow prisoner to be present during witness’s testimony).
testimony without giving any reason for the denial.157 Also, if a hearing officer intends to
consider information that will be kept confidential from the prisoner, he must at least inform
the prisoner of that intention and give some reason for keeping the information
confidential. 158 Despite these limits, you can always ask the hearing officer to question
adverse witnesses for you. However, prison officials are not required to ensure informants
are telling the truth; the Due Process Clause does not usually require prison officials to
assess the reliability of confidential informants testifying during disciplinary hearings.
Prison officials are only required to judge the reliability of confidential informants in
situations where the prisoner has an established right to such a judgment. If your version of
the event differs from the witness’s version, point this difference out to the hearing officer
and comment on the evidence presented at the hearing.
6. “Impartial” Hearing Officer
According to Wolff v. McDonnell, you have the right to have an impartial (unbiased)
hearing officer preside over your disciplinary proceeding.159 The hearing officer does not have
to meet the strict standard of impartiality that applies to judges.160 But, the officer must not
be so biased against you as to create a “hazard of arbitrary decision making ... violative of
due process.”161 To prove bias, you must provide “evidence that the decision maker actually
prejudged the case or [had a] direct personal involvement in the underlying charge.”162 For
example, one court found a hearing officer’s refusal to consider introduced evidence to be
proof of possible bias.163 The court explained, “[W]here a hearing officer indicates on the
record that, without considering the evidence, he finds a prisoner’s factual defense
inconceivable, we cannot conclude that the prisoner had a full and fair opportunity to litigate
the issue.” 164 In another case, the court dismissed a disciplinary determination where a
hearing officer’s remarks and attitude (especially the remark, “Okay now. You have to
convince me that you’re not guilty”) suggested bias against the prisoner.165
157. Martin v. Coughlin, 139 A.D.2d 650, 651, 526 N.Y.S.2d 1018, 1018 (2d Dept. 1988).
158. See Boyd v. Coughlin, 105 A.D.2d 532, 533, 481 N.Y.S.2d 769, 770 (3d Dept. 1984) (holding
that “it is fundamental that the hearing officer must, at the time of the hearing, inform the inmate that
he will consider certain information which will remain confidential and articulate some reason for
keeping the information confidential”); Freeman v. Coughlin 138 A.D.2d 824, 826 (3d Dept. 1988)
(applying the Boyd rule to find the hearing officer’s decision to keep information confidential without
informing the prisoner was not a harmless error, resulting in a new hearing for the prisoner). But see
Laureano v. Kuhlman, 75 N.Y.2d 141, 148, 550 N.E.2d 437, 441, 551 N.Y.S.2d 184, 188 (1990) (“[A]
disciplinary determination cannot stand when a denial of the inmate’s request to call a witness, or to be
present when his witness testifies, is wholly unexplained, but will not be set aside if the record
discloses the basis for denial.”).
160. Moore v. Selsky, 900 F. Supp. 670, 676 (S.D.N.Y. 1995) (finding that a hearing officer may
be allowed to have a predetermined view that a scientific test for evidence is reliable, so long as the
hearing officer would be willing to consider impartially that he may be mistaken in his view).
161. Wolff v. McDonnell, 418 U.S. 539, 571, 94 S. Ct. 2963, 2982, 41 L. Ed. 2d 935, 959–60
(1974).
162. Wade v. Farley, 869 F. Supp. 1365, 1376 (N.D. Ind. 1994) (holding that although hearing
officer had been involved in prisoner’s previous disciplinary proceeding, he was impartial with respect
to present proceeding); see, e.g., Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) (noting that a prison
disciplinary hearing in which the result is arbitrarily and adversely predetermined violates a prisoner’s
right to due process).
163. See Colon v. Coughlin, 58 F.3d 865, 871 (2d Cir. 1995) (holding that where a hearing officer
“indicates on the record that, without considering the evidence, he finds a prisoner’s factual defense
inconceivable,” the prisoner did not have “a full and fair opportunity to litigate the issue”).
164. Colon v. Coughlin, 58 F.3d 865, 871 (2d Cir. 1995).
165. Tumminia v. Kuhlmann, 139 Misc. 2d 394, 397, 527 N.Y.S.2d 673, 675 (Sup. Ct. Sullivan
County 1988).
The New York regulations touch on the issue of impartiality, but they do not in any way
guarantee you an impartial hearing officer. There are different rules for disciplinary
hearings and for superintendent hearings. An officer of the rank of lieutenant or above may
preside over a disciplinary hearing.166 In a disciplinary hearing, the regulations prohibit the
appointment of a hearing officer who has (1) participated in the investigation; or (2) prepared
the misbehavior report.167 Generally, a superintendent’s hearing will be conducted by the
superintendent, deputy superintendent, captain, or commissioner’s hearing officer. In
superintendent hearings, the regulations prohibit the use of a hearing officer who: (1)
actually witnessed the event; (2) was directly involved in the incident; (3) is a review officer
who reviewed the misbehavior report; or (4) has investigated the incident. 168 But, please
note: the Superintendent may “in his discretion” permit other correctional facility employees
to act as hearing officers in a Superintendent or disciplinary hearing.169
If you feel your hearing officer is biased, you should think about making an objection.
You should also consider objecting if your hearing officer is closely connected to prison
security or known to have a strong dislike for prisoners. Remember that it is usually to your
advantage to make any possible objections at your hearing so that you create a strong
“record” for future appeals.
7. “Use” Immunity
Most violations of prison regulations are punished solely through disciplinary
proceedings within the prison. Sometimes a violation of a prison rule will also be a violation
of a criminal statute. To take an extreme example, stabbing a guard is certainly a severe
violation of prison regulations. More importantly, it is also a criminal offense for which a
prisoner can be tried and convicted in court.
A situation like the one described above raises special problems. You might feel
compelled to testify at the proceeding in order to avoid a potentially severe punishment. On
the other hand, you may worry that something you say at your hearing could incriminate you
in a later criminal trial.
To avoid this problem, prisoners often seek “use” immunity in disciplinary hearings.
“Use” immunity does not immunize you from prosecution, but it prevents any statements you
make at your disciplinary hearing from being used against you in such prosecution.
Immunity in criminal proceedings comes from the U.S. Constitution’s Fifth Amendment
privilege against self-incrimination. An individual accused of a crime has the right to remain
silent. Nonetheless, when the state demands that you testify, the state must grant “use”
immunity. If you choose not to testify in your disciplinary hearing and your silence is used as
evidence of your guilt, you must also be granted “use immunity.” If that was not the case, the
state would be punishing you for exercising your Fifth Amendment right.
The Supreme Court faced this dilemma in Baxter v. Palmigiano, 170 which involved a
prisoner facing disciplinary action for violations that were also crimes under state law. The
Baxter Court held that while a prisoner’s silence can be considered evidence of guilt in a
disciplinary proceeding,171 silence alone is not enough. Other evidence must be produced in
order to establish guilt.172

168. N.Y. Comp. Codes R. & Regs. tit. 7, § 254.1 (2004). See Part E of this Chapter for an
explanation of “superintendent’s,” “disciplinary,” and “violation” hearings, which are the three types of
hearings in New York State.
169. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.1(b) (2000); N.Y. Comp. Codes R. & Regs. tit. 7, §
254.1 (2004).
170. Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976).
171. Baxter v. Palmigiano, 425 U.S. 308, 317–18, 96 S. Ct. 1551, 1557–58, 47 L. Ed. 2d 810, 821
If a prisoner chooses to testify in cases where he is not required or compelled to testify,
according to Baxter, any statements he makes at disciplinary hearings can be used against
him in subsequent criminal proceedings. 173 Therefore, a prisoner does not have a
constitutional right to immunity in those cases. Where the prisoner must testify, however,
“use” immunity must be granted to protect his Fifth Amendment right to remain silent.174 In
reality, it is unlikely that after Baxter prison officials will compel a prisoner to testify since:
(1) adverse inferences may be drawn from a prisoner’s silence; and (2) the problem of
whether to grant immunity can be avoided if the official does not compel testimony.
New York State currently grants prisoners “use” immunity at all disciplinary
proceedings.175 You have the right to “use” immunity even if criminal charges have not been
filed against you. You must be notified of your right in “substantially” the following
language: “You are hereby advised that no statement made by you in response to the charge,
or information derived therefrom may be used against you in a criminal proceeding.”176 This
warning will appear in the notice of charges, which must be given to you at least twenty-four
hours before the proceeding. Because there are grave dangers associated with disciplinary
proceedings that could be followed by a criminal trial, you should consult with your criminal
attorney, if you have one, before you make any formal or informal statements in regard to the
events in question.
8. The Ruling and the Requirement of a Written Record
At the close of the proceeding, the hearing officer may, at his discretion, do one of several
things. He may affirm or dismiss charges, or he may affirm some charges and dismiss
others. 177 The only requirement is that some evidence support the hearing officer’s final
decision. This standard is very low. It does not require the hearing officer to produce
substantial evidence or a preponderance of evidence against you. Instead, if any evidence
exists at all, the court will uphold the hearing officer’s conclusion. The fact finder (here, the
hearing officer) is not required to make a decision solely upon the evidence presented at the
hearing. In Baxter v. Palmigiano,178 the Supreme Court explained that, in the unique prison
environment, facts may not come to light until after the formal hearing and should not be
excluded, since they may help officials understand the incident and tailor penalties to further
(1976).
172. Baxter v. Palmigiano, 425 U.S. 308, 317–18, 96 S. Ct. 1551, 1557–58, 47 L. Ed. 2d 810, 821
(1976).
173. Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S. Ct. 1551, 1557, 47 L. Ed. 2d 810, 820 (1976).
Please note that you can be compelled to testify at your prison disciplinary proceeding.
174. Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S. Ct. 1551, 1557, 47 L. Ed. 2d 810, 820 (1976).
“Use” immunity must be granted where a defendant is forced to give up his right to remain silent, but
immunity need not be granted where no right to remain silent exists. If you are incarcerated outside of
New York, you should research your state’s rules and regulations governing disciplinary proceedings to
find out whether you can get some form of immunity at your disciplinary proceeding. See Chapter 2 of
the JLM on how to conduct legal research.
175. N.Y. Comp. Codes R. & Regs. tit. 7, § 251-3.1(d)(1) (1995). New York City, on the other
hand, differs from New York state, such that prisoners in city jails are ordinarily not granted “use”
immunity. Interview with Kenneth Stephens, Esq., The Legal Aid Society, Prisoners’ Rights Project
(Dec. 1, 1999).
177. Superintendent, Mass. Correctional Inst., Walpole v. Hill, 472 U.S. 445, 455–56, 105 S. Ct.
2768, 2774, 86 L. Ed. 2d 356, 365 (1985) (stating that the due process standard that determines
whether the decision of a prison disciplinary board is justified, is whether there is any evidence in the
record that could support the board’s conclusion).
178. Baxter v. Palmigiano, 425 U.S. 308, 322 n.5, 96 S. Ct. 1551, 1560 n.5, 47 L. Ed. 2d 810, 824
n.5 (1976).
penal goals. The Court also clarified that the fact finder must provide a written statement of
the evidence that it relied on and the reasons for the disciplinary action taken.179
Often, the only or primary evidence against a prisoner is the misbehavior report itself.
New York’s regulations require that misbehavior reports present a detailed written account
of the alleged incident, so the report alone may provide enough evidence to support a
disciplinary ruling.180 In one case where reports merely restated that all of the prisoners in
the mess hall were part of a disturbance, without describing their specific misbehavior, the
evidence was found insufficient to support a disciplinary finding against them.181
With certain exceptions, Wolff v. McDonnell also guarantees your constitutional right to
receive, from the hearing officer, a written statement of the evidence relied upon, and a
statement of the reasons for the decision.182 This requirement prevents the hearing officer
from merely stating you were found guilty of a particular offense and the decision was based
on certain interviews and reports without providing enough detail. The hearing record must
include reasons for the decision, and copies of any reports relied on, and summaries of any
interviews conducted. 183 In addition, New York regulations provide you must receive the
written statement as soon as possible, and no later than twenty-four hours after the end of
the hearing.184
Constitutional and New York standards allow the hearing officer to exclude (keep out)
items of evidence from the written statement that, if presented, would threaten “personal or
institutional safety.” For example, in Laureano v. Kuhlmann, New York’s highest court ruled
a hearing officer did not have to disclose to the prisoner the details of a confidential
informant’s testimony or circumstances that might reveal his identity, where the officer
provided a revised summary of essential points of the testimony.185 If evidence has been
excluded, the written statement you receive informing you of the decision must explain
this.186
The written statement and the tape recording of the hearing will be central parts of your
disciplinary hearing “record.” This record is very important; the court will examine it if you
seek judicial review of an unfavorable disciplinary hearing decision in state or federal court.
179. Baxter v. Palmigiano, 425 U.S. 308, 322 n.5, 96 S. Ct. 1551, 1560 n.5, 47 L. Ed. 2d 810, 824
n.5 (1976).
180. See James v. Strack, 214 A.D.2d 674, 675, 625 N.Y.S.2d 265, 266 (2d Dept. 1995) (holding
that the misbehavior report was “sufficiently detailed, relevant and probative to constitute substantial
evidence supporting the Hearing Officer’s finding of guilt”); Nelson v. Coughlin, 209 A.D.2d 621, 621,
619 N.Y.S.2d 298, 299 (2d Dept. 1994) (holding misbehavior report provided substantial evidence that
prisoner violated rule prohibiting prisoners from making or possessing alcoholic beverages and that
officials were not required to chemically test beverage for presence of alcohol).
181. See Bryant v. Coughlin, 77 N.Y.2d 642, 649–50, 572 N.E.2d 23, 26–27, 569 N.Y.S.2d 582,
585–86 (1991) (concluding that misbehavior reports, which did not specify the particulars of prisoner
misconduct and only alleged a mass incident, were insufficient).
183. See McQueen v. Vincent, 53 A.D.2d 630, 631, 384 N.Y.S.2d 475, 476–77 (2d Dept. 1976)
(remanding case to determine whether due process requirements were met in light of incomplete
hearing record); see also People ex rel. Lloyd v. Smith, 115 A.D.2d 254, 255, 496 N.Y.S.2d 716, 717 (4th
Dept. 1985) (holding failure to include superintendent’s proceeding minutes in the record made
adequate review impossible, resulting in remand for review of minutes).
184. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.7(a)(5) (2007); N.Y. Comp. Codes R. & Regs. tit. 7,
§ 254.7(a)(5) (2007).
185. Laureano v. Kuhlmann, 550 N.E.2d 437, 441, 75 N.Y.2d 141,148, 551 N.Y.S.2d 184, 188
(1990).
E. New York Disciplinary Proceedings and Appeal Procedures
1. Types of Disciplinary Proceedings
New York regulations create a three-tier disciplinary system. Violation hearings, which
are used for minor offenses, make up the first tier. Disciplinary hearings, which are used for
serious offenses, make up the second tier. Finally, superintendent’s hearings, which are for
the most serious offenses, make up the third tier. The nature of the wrongdoing you are
accused of determines both the type of hearing that you face and the type of punishment you
can receive. Sandin v. Conner drastically affects New York’s three-tier system. Under that
case, prisoners are entitled to due process only when the punishment they receive constitutes
an “atypical and significant hardship ... in relation to the ordinary incidents of prison life.”187
In other words, if the court does not regard the punishment you are given as especially
severe, there is no requirement to hold a hearing beforehand. Whether a punishment is
severe is based on the specific facts of your case.188 The punishments imposed after violation
and disciplinary hearings, such as loss of privileges and placement in disciplinary
segregation, do not satisfy Sandin’s “atypical and significant hardship” test. Only the more
severe punishments imposed after superintendent’s hearings—loss of good-time credits or
segregated confinement for lengthy periods—can trigger due process protection under
Sandin.
Accordingly, New York is not constitutionally required to conduct violation and
disciplinary hearings at all. However, the regulations still provide for all three types of
hearings, and prison officials are required to follow their own rules.189 For example, if a
prison official decided to revoke your visiting privileges or to place you in a SHU for no
reason at all without giving you a hearing, you could file an appeal within the prison system.
In a case like the one above, however, you could not seek relief in federal court because
according to Sandin, you no longer have a constitutional right to be free from all arbitrary
and unfair punishment, only from “atypical and significant” punishment.190 It is still unclear
whether you could appeal your case successfully in a New York state court. New York must
follow the minimum due process rules set out in Sandin, which means it has to comply with
due process of law before it can subject a prisoner to an “atypical and significant hardship.”191
New York can choose to give prisoners more rights than federal law requires, but it cannot
provide fewer rights. Therefore, when reviewing the rest of this Section, bear in mind that if
prison officials violate these rules, the federal courts will not be able to remedy the situation
unless your case involves revocation of good-time credits or some similarly severe
punishment.
Under New York’s regulations, both disciplinary and superintendent’s hearings may
result in loss of one or more specified privileges for a specific period.192 Where the prisoner
187. Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed 2d 418, 430 (1995).
188. Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997) (“Sandin did not create a per se blanket rule
that disciplinary confinement may never implicate a liberty interest.”); Lee v. Coughlin, 26 F. Supp. 2d
615, 635 (S.D.N.Y. 1998) (arguing Sandin did not mean segregated confinement could never constitute
an atypical and significant hardship).
189. See Uzzell v. Scully, 893 F. Supp. 259, 263 n.10 (S.D.N.Y. 1995) (stating that, because
prison officials must adhere to their own rules, prisoners may administratively challenge their keeplock
confinement by raising procedural error claims).
190. See Cliff v. De Celle, 260 A.D.2d 812, 814, 687 N.Y.S.2d 834, 835 (3d Dept. 1999), app.
denied, 93 N.Y.2d 814, 719 N.E.2d 922, 697 N.Y.S.2d 561 (1999) (holding that because the maximum
penalty that could be imposed would be loss of privileges and/or confinement of no longer than 30 days,
the punishment is not “atypical or significant”).
191. Sandin v. Conner, 515 U.S. 472, 483–84, 115 S. Ct. 2293, 2300, 132 L. Ed 2d 418, 430
(1995).
192. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.7(a)(1)(ii) (2000) (period specified for loss of
has been involved in improper conduct related to correspondence or visiting privileges with a
particular person, a superintendent’s hearing may result in loss of those privileges with that
person. 193 Disciplinary hearings may not result in loss of correspondence privileges and
cannot lead to the loss of visiting privileges for more than thirty days. 194 Both types of
hearings may result in confinement in your cell (keeplock) or in a SHU, but disciplinary
hearings may only result in such confinement for up to thirty days. 195 Restitution (the
payment of money) may be required for loss or intentional damage to property at both
hearings.196 A superintendent’s hearing may result in a restricted diet197 and loss of a specific
period of good time.198 Both types of hearings may allow for a delay before any penalty is
imposed.199
The punishments that violation officers may impose after violation hearings are less
severe than the punishments listed above. If the violation officer finds you guilty of
committing an offense, he or she can order any two of the following penalties to be served
within a thirteen day period:200
(1) Loss of all or part of recreation (for example, game room, day room, television,
movies, yard, gym, special events) for up to thirteen days;201
(2) Loss of at most two of the following privileges: one commissary buy (excluding items
related to your health and sanitary needs), withholding of radio for up to thirteen
days, withholding of packages for up to thirteen days (excluding perishables that
cannot be returned);202
(3) The imposition of one work task per day, other than a regular work assignment, for a
maximum of seven days, to be performed on the prisoner’s housing unit or other
designated area; and203
(4) Counsel and/or reprimand.204
(5) The violation officer has discretion to suspend these punishments for thirteen
days.205
privileges as a result of disciplinary hearings is “up to 30 days”); N.Y. Comp. Codes R. & Regs. tit. 7, §
254.7(a)(1) (2007).
193. N.Y. Comp. Codes R. & Regs. tit. 7, § 254.7(a)(1)(ii) (2004).
194. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.7(a)(1)(ii) (2000). New York procedures for the
suspension of visitation rights are contained within a consent decree issued in Kozlowski v. Coughlin,
539 F. Supp. 852 (S.D.N.Y. 1982), den. of modif. aff’d, 871 F.2d 241 (2d Cir. 1989).
195. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.7(a)(1)(iii) (2000); N.Y. Comp. Codes R. & Regs.
tit. 7, § 254.7(a)(1)(iii) (2004).
196. N.Y. Comp. Codes R. & Regs. tit. 7, § 254.7(a)(1)(v) (2004); N.Y. Comp. Codes R. & Regs. tit.
7, § 253.7(a)(1)(iv) (1996). At disciplinary hearings, restitution is limited to $100.
197. N.Y. Comp. Codes R. & Regs. tit. 7, § 254.7(a)(1)(iv) (2004). The diet must at all times
contain a “sufficient quantity of wholesome and nutritious food.” N.Y. Comp. Codes R. & Regs. tit. 7, §
304.2(e) (2007). While there has not been litigation about this, it is possible that at some point, the diet
provided may be so unhealthy as to amount to “cruel and unusual punishment” in violation of the 8th
Amendment. For a discussion of the 8th Amendment, see Chapter 16 of the JLM, “42 U.S.C. § 1983 and
28 U.S.C. § 1331 to Obtain Relief From Violations of Federal Law.”
198. N.Y. Comp. Codes R. & Regs. tit. 7, § 254.7(a)(1)(vii) (2004).
199. N.Y. Comp. Codes R. & Regs. tit. 7, § 254.7(a)(4) (2004); N.Y. Comp. Codes R. & Regs. tit. 7,
§ 253.7(a)(4) (1996). The specified time period for suspensions is up to 180 days from a superintendent’s
hearing and up to 90 days from a disciplinary hearing.
201. N.Y. Comp. Codes R. & Regs. tit. 7, § 252.5(a)(1) (1997).
A review officer can order any one of the three types of hearings to be held (violation,
disciplinary, and superintendent’s hearings). The choice will depend on the seriousness of the
reported offense.206 Reports of prisoner misbehavior may come to the attention of the review
officer in the following way: if a guard, or any other prison employee, believes that you have
committed a violation that creates a “danger to life, health, security, or property,” a formal
report of your conduct (referred to by prisoners as a “ticket”) must be filed “as soon as
practicable” with the review officer.207 The staff person who observed the alleged violation (or
who got the facts) must report in writing the nature, date, time, and place of its
occurrence.208 An employee is not required to be absolutely certain or even have a reasonable
suspicion that a prisoner broke the rules before formal charges may be filed. Minor
infractions or other violations of rules and policies governing prisoner behavior “that do not
involve danger to life, health, security, or property” need not be reported.209 The misbehavior
report becomes the basis for the review of an officer’s choice of the type of hearing to be held.
An officer will place you in solitary confinement if he or she believes you represent an
“immediate threat to the safety, security or order of the facility, or an immediate danger to
other persons or to property.”210 The regulations state that you may not be confined to your
cell or elsewhere for more than seven days without a hearing.211 Such a hearing must be
completed within fourteen days, unless a delay is authorized.212 If you are placed in keeplock
or a SHU solely because of the charges against you, your hearing must begin within seven
days of being confined, unless special circumstances exist.213 An officer may also confine you
to your cell or room for your own protection, but you can only be confined for seventy-two
hours and, within that time period, you must be transferred to another housing unit,
scheduled for transfer to another facility, released from confinement, or placed in protective
custody.214
The validity of the rules stated above is questionable in light of Sandin v. Conner. A
federal court in New York has suggested that Sandin v. Conner undermines the validity of
New York regulations that afford prisoners liberty interests in remaining free from
administrative and disciplinary segregation.215 You may be able to assert rights under these
regulations within the prison system or possibly in state court, but you will not be able to
assert constitutional rights in federal court.
2. Important Exceptions at Violation Hearings
At violation hearings, you will not be entitled to all of the rights you have at disciplinary
or superintendent’s hearings. For example, before disciplinary and superintendent’s
206. N.Y. Comp. Codes R. & Regs. tit. 7, § 251-2.2(b) (2004).

208. N.Y. Comp. Codes R. & Regs. tit. 7, § 251-3.1(b), (c) (1995).
209. N.Y. Comp. Codes R. & Regs. tit. 7, § 251-1.5 (1995).
211. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 251-5.1(a)–(c) (1995).
213. See Gittens v. LeFevre, 891 F.2d 38, 42–43 (2d Cir. 1989) (holding that failure of New York
regulations to provide prisoners an adequate opportunity to be heard within a reasonable time of their
administrative confinement (more than a seven days wait was unreasonable) violates due process
requirements, but that officials had acted reasonably in reliance on New York regulations which were
unclear at that time). But see Scott v. Coughlin, 727 F. Supp. 806, 809–10 (W.D.N.Y. 1990) (holding
that prisoner’s due process rights were violated where he was confined to keeplock for 14 days without
a misbehavior report being issued or a disciplinary hearing being conducted).
215. See Rodriguez v. Phillips, 66 F.3d 470, 479–80 (2d Cir. 1995) (holding that prison officials’
belief that prisoner’s three–day administrative confinement, without opportunity to be heard, did not
violate prisoner’s 14th Amendment due process rights was reasonable).
hearings, you must receive written notice about the hearing, but violation hearings do not
require written notice. Therefore, you may not have enough time to prepare your defense.
However, once the misbehavior report is written against you, the violation hearing must be
held within seven days.216
The regulations grant you the right to be present at your violation hearing.217 This right
gives you a chance to defend yourself by orally explaining your version of the events to the
violation officer, presenting documentary evidence (for example, a time card showing your
presence at your work-station rather than at the scene of the alleged incident), or submitting
a written statement on your own behalf. 218 You do not, however, have the right to call
witnesses at violation hearings,219 which might make it difficult for you to prove your version
of the events. If you believe you have been accused of an offense you did not commit, request
the violation officer to investigate further before issuing a decision.
The differences among the three types of disciplinary proceedings can be confusing. To
simplify matters, the differences among the rights you have are illustrated in Figure I:
Disciplinary/Superintendent’s Hearing Violation Hearing
Written notice that a proceeding will be held at least Written notice of charges at hearing.221
twenty-four hours before hearing.220
Hearing must be completed within fourteen days after Hearing must be completed within 7 days after report.223
report.222
Limited right to substitute counsel.224 No right to substitute counsel.
Right to appear before the hearing officer.225 Right to appear before the violation officer.226
Limited right to call witnesses.227 No right to call witnesses.228
Right to “use” immunity. (Statements you make in Right to “use” immunity. (Statements you make in
response to a charge of misbehavior cannot be used response to a charge of misbehavior cannot be used
against you in criminal proceedings).229 against you in criminal proceedings).230
216. N.Y. Comp. Codes R. & Regs. tit. 7, § 251-5.1(c) (1995).

220. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.6(a) (2000) (rule governing disciplinary hearings);
N.Y. Comp. Codes R. & Regs. tit. 7, § 254.6(a)(1) (2004) (rule governing superintendent hearings); Wolff
v. McDonnell, 418 U.S. 539, 564, 94 S. Ct. 2963, 2979, 41 L. Ed. 2d 935, 956 (1974) (holding that notice
is only required for hearings where more rights are at stake such as a disciplinary or superintendent
hearing but not a violation hearing).
223. N.Y. Comp. Codes R. & Regs. tit. 7, § 251-5.1(c) (1995).
224. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.4 (2000) (rule governing disciplinary hearings);
N.Y. Comp. Codes R. & Regs. tit. 7, § 254.4 (2004) (rule governing superintendent hearings); Wolff v.
McDonnell, 418 U.S. 539, 570, 94 S. Ct. 2963, 2981–82, 41 L. Ed. 2d 935, 959 (1974) (holding that
prisoners do not have a right to an attorney but can collect documents and have a fellow prisoner assist
them when they are illiterate or unlikely to understand the charges against them so long as these
rights will not create a “risk of reprisal or undermine authority”).
225. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.6(b) (2000) (rule governing disciplinary hearings);
N.Y. Comp. Codes R. & Regs. tit. 7, § 254.6(a)(2) (2004) (rule governing superintendent hearings).
226. N.Y. Comp. Codes R. & Regs. tit. 7 § 252.3(a)(2) (1997).
227. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.5 (2000) (rule governing disciplinary hearings);
McDonnell, 418 U.S. 539, 566, 94 S. Ct. 2963, 2979–80, 41 L. Ed. 2d 935, 957 (1974) (holding that
impartiality does not require that the hearing officer not be a representative of the prison; it only
requires safeguards to ensure partiality such as rules requiring the hearing officer to be impartial).
Disciplinary/Superintendent’s Hearing Violation Hearing
officer.231
Right to an impartial hearing No declared right to an impartial violation officer.
Right to receive a copy of a written record of the Right to receive a copy of a written record of the
disposition.232 disposition.233
Disposition of hearing may be made part of prisoner’s Disposition of violation hearing not made part of
institutional records. prisoner’s institutional records.234
Figure I: Comparison of the Rights of Prisoners at Disciplinary or Superintendent’s
Hearings and Violation Hearings in New York235
Once you receive written charges, you know that a disciplinary proceeding will take place
in the near future. If you are in solitary confinement as a result of the charges, the
regulations require that the disciplinary or superintendent’s hearing begin within seven days
from the time you were first confined. 236 If you are not confined, the hearing must be
completed within fourteen days from the time the written charges were made against you.237
The Commissioner of Correctional Services or a person designated to act for the
Commissioner can, however, authorize a delay beyond these time limits.238 Such delays are
often authorized.
3. Appeal Procedures
In New York, prisoners have an absolute right to make an administrative appeal to
another prison official.239 You must pursue this administrative appeal process in order to
preserve your right to pursue further appeals in the courts (your right to judicial review).240
This means that in order to have a court hear your case at a later stage, you must make an
administrative appeal. Most other states also provide appeal procedures. If you are
incarcerated elsewhere, you should research the rules and regulations governing disciplinary
proceedings in your state. The appeal procedures differ for disciplinary hearings,
superintendent’s hearings, and violation hearings. That is why they are discussed
separately.
(a) Disciplinary Hearings
You can begin the review process by writing to the superintendent of your facility and
requesting that he or she review the decision made at your disciplinary hearing. You must

231. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.1(b) (2000) (rule governing disciplinary hearings);
McDonnell, 418 U.S. 539, 571, 94 S. Ct. 2963, 2982, 41 L. Ed. 2d 935, 959 (1974).
232 . N.Y. Comp. Codes R. & Regs. tit. 7, § 253.7(a)(5) (1996) (rule governing disciplinary
hearings); N.Y. Comp. Codes R. & Regs. tit. 7, § 254.7(a)(5) (2004) (rule governing superintendent
hearings); Wolff v. McDonnell, 418 U.S. 539, 564, 94 S. Ct. 2963, 2979, 41 L. Ed. 2d 935, 956 (1974).
235. See Part E(1) of this Chapter for more information on the different levels of disciplinary
proceedings.
236. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 251-5.1(a) (1995).
237. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 251-5.1(b) (1995).
238. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 251-5.1(a), 251-5.1(b) (1995).
239. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.8 (1996); N.Y. Comp. Codes R. & Regs. tit. 7, §
254.8 (2004) (rule governing superintendent hearings).
240. To institute a New York Article 78 proceeding or a federal § 1983 claim, you must first
exhaust your administrative appeal possibilities. For more information, see JLM Chapter 22, “How to
Challenge Administrative Decisions Using Article 78 of the New York Civil Practice Law and Rules,”
JLM Chapter 16, “42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief From Violations of Federal
Law,” and JLM Chapter 14 on the Prison Litigation Reform Act.
submit your request no later than seventy-two hours (three days) after you receive your
hearing disposition (the decision).241 If your written request is submitted after the seventy-
two hour deadline, you may lose your right to have your hearing reviewed.242 After receiving
your appeal, the superintendent or a person designated to act for the superintendent must
review your case and issue a decision within fifteen days.243
When appealing a disciplinary hearing, you should also consider writing the
superintendent. A superintendent has the power to reduce your penalty at any time an
imposed penalty is in effect.244
It is important to note if you appeal a disciplinary hearing, you could possibly face a
harsher penalty.245
(b) Superintendent’s Hearings
The process by which you may appeal a superintendent’s decision is similar to the appeal
procedure for disciplinary hearings discussed above. The major differences are (1) the person
you write to, (2) the number of days you have to submit your written appeal, and (3) an
appeal can never result in a harsher penalty.
After a superintendent’s hearing, you should submit your appeal in writing to the
Commissioner of Correctional Services, not to the superintendent.246 You have thirty days
after you receive the superintendent’s decision to submit your written request to have your
superintendent’s hearing reviewed.247 Address your appeal to:
Commissioner ___________________
New York State Department of Correctional Services
State Office Campus, Building 2
1220 Washington Avenue
The Commissioner or person designated to act for him or her must issue a decision
within sixty days.248
Another important consideration when appealing a superintendent hearing is that under
no circumstances can the appeal result in a harsher penalty.249
When appealing a superintendent’s hearing to the Commissioner, you should also
consider writing to the superintendent. A superintendent has the authority to reduce your
penalty at any time during which an imposed penalty is in effect. 250 Even if the
Commissioner decides not to reverse or modify the decision made at your superintendent’s
hearing, the superintendent can reduce your penalty. It may be particularly worthwhile to
write to your superintendent if he or she did not preside over your hearing.

242. See Lane v. Hanberry, 593 F.2d 648, 649 (5th Cir. 1979) (holding that constitutional due
process does not require that prisoner, when advised of his right to administrative appeal, also be
advised that if he chooses not to make an administrative appeal, he will not be allowed to challenge the
disciplinary hearing in a court of law).
245. See N.Y. Comp. Codes R. & Regs. tit. 7, § 253.8 (1996).
249. See N.Y. Comp. Codes R. & Regs. tit. 7, § 254.8 (2004).
(c) Violation Hearings
To appeal the decision in your violation hearing, you must write to your superintendent
and request that he or she review your case no later than twenty-four hours after you receive
notification of the decision.251 The superintendent or the person designated to act for the
superintendent must then issue a decision within seven days. 252 If you present strong
arguments in your appeal, the superintendent may reduce the penalty imposed at your
hearing.253
After a superintendent’s hearing, you may want to appeal an unfavorable decision to a
court of law.254 However, after Sandin v. Conner,255 it is not likely that you would be able to
successfully appeal an unfavorable decision from a violation or disciplinary hearing.
Furthermore, if the penalty imposed at your violation hearing is relatively minor, filing an
appeal may not be worth the trouble. Since an appeal creates more work for prison officials,
submitting an appeal may only annoy them. Moreover, violation hearings cannot be made
part of a prisoner’s institutional records.256 In any event, the minor infraction cannot be held
against you at a later date.
F. Administrative Segregation Proceedings
As with disciplinary confinement, for you to receive procedural protection in the context
of administrative segregation a court must find the laws or regulations applicable to your
prison create a protected liberty interest.257 In other words, unless your state has a law or
regulation that entitles you to avoid segregation from the general prison population, you do
not have due process rights to a formal hearing before being confined in administrative or
protective custody. Not all jurisdictions have found a protected liberty interest in the context
of administrative segregation. But, courts in the Second Circuit have found some state and
federal regulations regarding administrative segregation create a protected liberty
interest.258 This Part will first discuss the procedures officials in New York State must follow
and then those that federal prisons within the Second Circuit must follow before and during
your administrative detention.
The due process safeguards outlined above for disciplinary action do not apply to your
placement in administrative segregation. This means that the requirements of Wolff v.
McDonnell 259 do not apply to administrative segregation. The guiding case for basic

254. Remember that you must exhaust your administrative remedies before petitioning the
courts. You should review Chapter 22 of the JLM, “How to Challenge Administrative Decisions Using
Article 78 of the New York Civil Practice Law and Rules,” for more information on Article 78 appeals in
New York State court.
255. Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 123 L. Ed. 2d 418 (1995).
257. See Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 430
(1995) (holding that a prisoner has a liberty interest protected by the Constitution’s Due Process Clause
only when his administrative segregation reaches levels of atypical and significant hardship); Hewitt v.
Helms, 459 U.S. 460, 472, 103 S. Ct. 864, 871–72, 74 L. Ed. 2d 675, 688–89 (1983) (holding that the
proceeding involving an informal non-adversarial review of evidence provided to a prisoner who was
placed in administrative segregation satisfied the due process requirements for continued confinement).
258. See Tellier v. Fields, 280 F.3d 69, 83 (2d Cir. 2000) (holding that federal rule 28 C.F.R. §
541.22 “contains mandatory language that gives rise to” a liberty interest); Gonzalez v. Coughlin, 969
F. Supp. 256, 257–58 (S.D.N.Y. 1997) (concluding that New York State rules regarding administrative
confinement create a protected liberty interest); Taylor v. Rodriguez, 238 F.3d 188, 196 (2d Cir. 2001)
(concluding that Connecticut state regulations regarding administrative detention may give rise to a
protected liberty interest).
259. Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).
procedural requirements in the administrative segregation context is Hewitt v. Helms. 260
Hewitt concerned a prisoner who was placed in administrative segregation after a riot
occurred in a state prison. The following day, he was given notice of a misconduct charge
against him. After five days of confinement, a hearing committee reviewed the evidence
against him, including a report of his version of the events at issue. Although the committee
did not reach a decision about the prisoner’s guilt, the hearing committee decided that he
posed a threat to the safety of other prisoners and prison officials and that his confinement in
administrative segregation should be continued. The Supreme Court examined these events
and found that state law created a protected liberty interest in staying out of administrative
segregation. Even so, the Supreme Court concluded that the review process conducted by
prison officials did not violate the prisoner’s due process rights.
The Supreme Court established a standard for hearings to determine whether a prisoner
represents a security threat, or whether he should be confined to administrative segregation
pending an investigation into misconduct charges. The Court stated that an informal, non-
adversarial (not focused on the dispute or conflict) review of the evidence will satisfy the due
process requirements of the Fourteenth Amendment. Thus, for administrative segregation
hearings, the procedural safeguards you are entitled to are
(1) some notice of the charges against you;
(2) an opportunity to present your views orally or in writing to the prison officer who will
decide whether or not to transfer you to administrative segregation;
(3) an informal proceeding held within a reasonable time after your transfer to
administrative segregation; and
(4) periodic review of the charges and available evidence by the decision-maker.261
These are the minimum procedural requirements prison officials must follow. State or
federal regulations applicable to your prison may set out additional, specific guidelines.
New York State prisons may place you in administrative segregation only if prison
officials find that your presence in the general prison population poses a threat to the general
safety and security of the facility. 262 You are entitled to submit a written statement
responding to the charges against you. Prison officials may, in their discretion, let you make
your case in person. Although you are not entitled to be present at each review hearing, you
are entitled to a report of the results of the review hearings and an opportunity to respond to
those findings. 263 You are also entitled to have a committee review your status of
confinement in administrative segregation every sixty days.264 A three-member committee
consisting of a representative of the facility executive staff, a security supervisor, and a
member of the guidance and counseling staff will examine your institutional record and
prepare and submit a report to the superintendent.265 The report must state
(1) reasons why you were initially determined to be appropriate for administrative
segregation;
(2) information on your subsequent behavior and attitude; and
260. Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983).
261. See Hewitt v. Helms, 459 U.S. 460, 476–77, 103 S. Ct. 864, 874, 74 L. Ed. 2d 675, 691–92
(1983).
263. See Giano v. Kelly, No. 89-CV-727(C), 2000 U.S. Dist. LEXIS 9138, at *50–51 (W.D.N.Y.
May 16, 2000) (unpublished) (suggesting that to constitute sufficient notice and opportunity to respond
to charges, a prisoner should be informed of the dates and results of his reviews, how long he can expect
to be confined and what he might do to change his status, and should have a real opportunity to
present information in his defense that he was no longer a threat to the facility).
265. N.Y. Comp. Codes R. & Regs. tit. 7, § 301.4(d)(1) (2002).
(3) any other factors that favor keeping you in or releasing you from administrative
segregation.266
The law that applies to prisoners in federal prison is slightly different. Under federal
law, if you are placed in administrative detention in a federal prison, you are entitled to an
“Administrative Detention Order” detailing the reasons for administrative detention within
twenty-four hours of placement in a SHU.267 Officials must conduct an initial record review
to evaluate the segregation within three days of placement in a Special Housing Unit (SHU),
and a formal review after the first seven continuous days. After that, there must be periodic
informal hearings every seven days before a Segregation Review Official (SRO). If the
administrative detention lasts longer than thirty days, formal hearings are required every
thirty days.
Unlike in New York State, some formal hearings are required by federal laws for federal
prisons, meaning that you have the right to appear and present your opinion at those
hearings about your detention status. After the first thirty days, and every thirty days
afterwards, staff must interview you and do a psychiatric or psychological assessment for the
purpose of preparing written reports on how you are adjusting to the SHU and whether you
pose a threat to the facility. So long as the security of the prison is not compromised, you are
entitled to a copy of the written reports.268 This section of federal law also states that if the
reasons for your confinement no longer exist, you must be released from administrative
detention.269 However, courts have held that the warden’s original decision to place you in
administrative detention is discretionary, and courts will generally respect and uphold the
warden’s decision as long as certain procedural requirements are met. 270 Long-term
administrative detention may only be allowed where there are “exceptional circumstances,
ordinarily tied to security or complex investigative concerns.” 271 The need for longer
detention must be documented by the Segregation Review Official.272
For both federal and state prisons in the Second Circuit, the reasons for placing you in
confinement, and, upon periodic review, continuing your confinement in administrative
segregation, must be compelling.273 The reason given at a later review hearing may be the
same as the original reason, but it must be deemed compelling, and it must take into account
all the evidence available at the time of each review.274 Thus, if new, relevant information
arises after your initial hearing, the committee must consider that new evidence in
determining whether you still pose a threat to the safety or security of the prison. If a review
of all the then-available evidence does not support a finding that you pose such a threat,
prison officials may not keep you in administrative segregation.275 If the reason for your

267. 28 C.F.R. § 541.22(b) (2006).
268. 28 C.F.R. § 541.22(c)(1) (2006).
269. 28 C.F.R. § 541.22(c)(1) (2006).
270. See Tellier v. Fields, 280 F.3d 69, 82 (2d Cir. 2000) (stating that although a warden’s
decision to place a prisoner in administrative detention is discretionary, this discretion is not
“boundless and continuing”).
271. 28 C.F.R. § 541.22(c)(1) (2006).
272. 28 C.F.R. § 541.22(c)(1) (2006).
2000) (unpublished) (holding that confinement in administrative segregation must be based on a
compelling reason, and upon review the decision-maker must determine if that reason is still valid).
274. Giano v. Kelly, No. 89-CV-727(c), 2000 U.S. Dist. LEXIS 9138, at *48–49 (W.D.N.Y. May 16,
2000) (unpublished); see Hewitt v. Helms, 459 U.S. 460, 477, 103 S. Ct. 864, 874, 74 L. Ed. 2d 675, 692
(1983).
275. See Giano v. Kelly, No. 89-CV-727(c), 2000 U.S. Dist. LEXIS 9138, at *49 (W.D.N.Y. May 16,
2000) (unpublished) (noting periodic review hearings must consider all evidence available at the time of
the review hearing).
confinement in administrative segregation changes, you have the right to know the new
reason and to respond to it.276
There must be a record of those meetings showing the weekly review was not just a pro
forma exercise (only going through the motions), and there was actually “meaningful
consideration” of the reasons for the segregation status.277 In the case Giano v. Kelly, one
district court in New York found that the committee did not in fact conduct “meaningful”
reviews of a New York State prisoner’s segregation status and this violated the prisoner’s
due process rights. There were two main reasons for this finding. First, records of the
committee meetings did not show that there was deliberation on evidence available after he
was first confined. Second, the records of the reviews contained no conclusions reached by the
committee on the specific question of whether the prisoner continued to pose a threat to the
safety or security of the prison.278
Reviewing courts in general will not scrutinize the prison officials’ reasons but rather
will give great deference to those decisions. But, the court in Giano v. Kelly did conclude the
reason for the plaintiff’s initial confinement was no longer an adequate reason for his
continued confinement.279 The decision as to what constitutes a threat to the security of the
prison does not need to be based on any single determining factor, and there does not need to
be a finding that the prisoner committed some sort of misconduct. In making the decision,
the committee may consider the character of prisoners confined in the particular facility, as
well as recent and long-standing relations among prisoners and between prisoners and
guards.280
In Taylor v. Rodriguez, the Second Circuit addressed what constitutes meaningful review
for administrative segregation in the context of gang affiliation.281 In that case, a prisoner
confined to a Connecticut prison was placed in administrative segregation because of “recent
tension in B-Unit involving gang activity” and “statements by independent confidential
informants.”282 The prisoner’s request for specific factual allegations was denied. The Second
Circuit concluded that this notice was not enough to allow the prisoner to adequately prepare
his defense. This means that if there are allegations that you are currently involved in a
276. See Young Ah Kim v. Hurston, 182 F.3d 113, 119 (2d Cir. 1999) (holding that liability exists
for failure to inform a prisoner of the correct reason for removal from a temporary release program).
277. See Taylor v. Rodriguez, 238 F.3d 188, 193 (2d Cir. 2001) (stating that a hearing for
placement in administrative segregation “is not ‘meaningful’ if a prisoner is given inadequate
information about the basis of the charges against him”); Giano v. Kelly, No. 89-CV-727(C), 2000 U.S.
Dist. LEXIS 9138, at *49–55 (W.D.N.Y. May 16, 2000) (unpublished) (holding that an administrative
segregation committee did not give meaningful consideration to a prisoner’s confinement in part
because the prisoner was neither permitted to appear before nor submit information to the committee,
and did not regularly receive information regarding the committee’s recommendations); see also
Mathews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 32, 96 S. Ct. 893, 902 (1976) (establishing that
the kind of meaningful consideration that satisfies due process is not satisfied by a standard set of
procedures, but depends on the context in which the hearing is held).
2000) (unpublished) (where the prisoner was originally detained because he had been stabbed, but the
court concluded that since his attacker was now at a different facility, he could no longer pose a
security risk for that reason.)
280. See Giano v. Kelly, No. 89-CV-727(c), 2000 U.S. Dist. LEXIS 9138, at *49 (W.D.N.Y. May 16,
281. Taylor v. Rodriguez, 238 F.3d 188, 193–94 (2d Cir. 2001) (holding notice given to a prisoner
was too vague to allow him to prepare a defense, and a decision-maker must assess the reliability of a
confidential informant if relying on the informant’s testimony). See JLM Chapter 31, “Security
Classification and Gang Validation,” for more information.
282. Taylor v. Rodriguez, 238 F.3d 188, 193 (2d Cir. 2001).
gang, prison officials have to tell you the specific facts supporting those allegations. 283
Unclear statements or definitive statements of fact without evidence are not enough. The
court made clear in Taylor that prison officials do not have to reveal the identity of
confidential informants, or have those informants testify at the hearing, in order to give
sufficient notice of the charges. However, the prison officials are required to make an
independent assessment of a confidential informant’s credibility.284
In Taylor, the Second Circuit also found that the review of evidence at the prisoner’s
hearing did not meet due process requirements. To satisfy due process, “the relevant
question is whether there is any evidence in the record that could support the conclusion
reached by the disciplinary board.”285 The report of the hearing provided no details to support
the decision to segregate the prisoner in administrative housing. The report referred to
attached statements of confidential informants, but no such statements were actually
attached for review by the court. Furthermore, prison officials have to make an individual
assessment about an informant’s credibility,286 and the record did not show any findings on
that issue made around the time of the hearing. The only thing on record about reliability of
the informant was an official statement by a prison officer, and this was submitted two years
after the hearing. The court found that this official statement was not enough. The court held
that, without findings on the reliability of the informant, a decision to place a prisoner in
administrative detention cannot be based on “some evidence”287 if the prisoner does not have
adequate information about the basis of the charges against him. If the prisoner’s due
process right to a meaningful hearing is violated, his detention in administrative housing is
unlawful.
G. Conclusion
If prison officials have changed the conditions of your confinement for the worse, and you
believe they acted unfairly (for example, by not allowing you to present evidence on your
behalf), you may be able to bring a due process challenge in federal court. This will depend
on whether your state has made a law or regulation creating a protected liberty interest, and
whether the change in your confinement taking away that liberty is “atypical and
significant.” Even if the change in your confinement does not meet this standard, you still
may be able to challenge it through the prison administrative process or in state court.
Prison officials must follow their own rules, and you can challenge the change in your
confinement if these rules have been violated. In all cases, your first step is to go through
your prison’s administrative process. You should learn what steps you need to take to do so.
Sometimes, your prison must provide you help in bringing your case, but you must ask for
this help.
284. Taylor v. Rodriguez, 238 F.3d 188, 193–94 (2d Cir. 2001) (citing Giakoumelos v. Coughlin,
88 F.3d 56, 61–62 (2d Cir. 1996)) (reasoning that confidential informant’s identity in prison disciplinary
hearing need not be disclosed because the “requirements of prison security are unique”).
285. Superintendent v. Hill, 472 U.S. 445, 455–56, 105 S. Ct. 2768, 2774, 86 L. Ed. 2d 356, 365
(1985) (holding due process is satisfied if some evidence supports a prison disciplinary board’s decision
to reverse good-time credits).
286 . Giakoumelos v. Coughlin, 88 F.3d 56, 61 (2d Cir. 1996) (stating that a confidential
informant’s testimony is sufficient to support a prison disciplinary finding as long as there has been
some examination of the informant’s credibility); Russell v. Scully, 15 F.3d 219, 223 (2d Cir. 1993)
(holding that the prisoner had not been deprived of a protected liberty interest because he was only
subject to administrative confinement pending his hearing and appeal; as a result the question of
whether or not the prisoner had a clearly established right to an independent examination of the
credibility of confidential informants did not need to be decided).
Manual
Chapter 19:
Your Right to Communicate with
the Outside World

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 19
YOUR RIGHT TO COMMUNICATE WITH THE OUTSIDE WORLD∗

A. Introduction
Prison administrators often restrict your right to communicate with courts, attorneys,
family, friends, and the news media. They may also limit the types and sources of materials
that you may read. Prison authorities do not, however, have absolute power to limit your
right to communicate. The U.S. Constitution and state constitutions, and federal, state, and
city regulations limit prison authorities’ power to restrict your access to the outside world.
Upon imprisonment, you retain some constitutional rights, like portions of your First
Amendment protections of speech, press, and association.1 But, in prisons, these rights can
be limited under certain circumstances to accommodate the prison’s “legitimate penological
interests.”2
Part B of this Chapter discusses your rights to correspond with the general public
(friends, relatives, etc.). This Part first addresses the constitutional protections that apply to
all prisoners in the United States. It then outlines the protections that state and federal
regulations add to your right to correspond with the general public. This Chapter mainly
focuses on New York State and federal law. Although federal law is universally applied
within the United States, your own state’s law may be different than the New York laws
discussed here and might provide additional protections. See Chapter 2 of the JLM for
information on how to conduct thorough legal research.
Part C addresses your right to correspond with courts, public officials, and attorneys.
This kind of legal correspondence is often privileged, which means it receives greater
protection than correspondence with the general public. Part D discusses your right to
communicate over the Internet, both directly and indirectly (through third parties). Part E
provides a general outline of your right to receive publications such as magazines and books
and includes a discussion of your right to receive sexually explicit materials. Part F examines
your right to communicate with the news media, and Part G discusses your right to receive
visitors. Finally, Part H discusses telephone access.
The validity of a prison’s restrictions on all of these rights, with the exception of legal
mail and outgoing general correspondence, is determined by a four-part test: courts consider
whether (1) the regulation is rationally related to a legitimate goal of the prison, (2) there is
an alternative way for the prisoner or outside communicator to exercise the right even with
the restriction in place, (3) the burden on or cost to the prison if the right is accommodated is
too great, (4) there are available alternative procedures the prison could put in place.3 For
∗ This Chapter was revised by Kayla Stachniak based in part on previous versions by Jordan Kushner,
Jody Cummings, R. Anthony Joseph, Stephen M. Latimer, Andrew Cameron, Richard F. Storrow,
Patricia A. Sheehan, and Michael Sloyer. Special thanks to Mary Lynne Werlwas, Esq., and Gary
Muldoon, Esq., co-author of Handling a Criminal Case in New York (West 2001), for their valuable
comments.
1. U.S. Const. amend. I; Bell v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861, 1877, 60 L. Ed. 2d 447,
472 (1979). Courts generally avoid deciding to what extent rights survive incarceration and instead
determine whether the restriction is reasonable regardless of whether the right survives. See, e.g.,
Overton v. Bazzetta, 539 U.S. 126, 131–32, 123 S. Ct. 2162, 2167–68, 156 L. Ed. 2d 162, 169–70 (2003).
2. Thornburgh v. Abbott, 490 U.S. 401, 404, 109 S. Ct. 1874, 1877, 104 L. Ed. 2d 459, 467 (1989)
(citing Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64, 79 (1987)).
3. Turner v. Safley, 482 U.S. 78, 89–91, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64, 79–80 (1987). See
also Thornburgh v. Abbott, 490 U.S. 401, 414–19, 109 S. Ct. 1874, 1882–85, 104 L. Ed. 2d 459, 473–77
(1989) (applying Turner test to incoming mail); Overton v. Bazzetta, 539 U.S. 126, 132, 123 S. Ct. 2162,
2168, 156 L. Ed. 2d 162, 170 (2003) (applying Turner test to visitation restrictions); Beard v. Banks,
instance, prison officials may not arbitrarily restrict your right to communicate, but they
may legally do so in circumstances where exercising that right might endanger the security
or order of the prison, or the rehabilitation of prisoners. This Chapter refers to this test as
the Turner reasonableness standard.
Another important term that this Chapter will use is “discretion.” As you will learn,
although the courts will independently examine all four of the Turner factors, they often give
a great deal of weight to the prison officials’ own reasoning for the decision of whether or not
to restrict your right to communicate. Black’s Law Dictionary contains this definition for
“discretion”: “A public official’s power or right to act in certain circumstances according to
personal judgment and conscience, often in an official or representative capacity.” 4 This
means that the courts will allow the prison officials to decide whether or not to restrict your
right to communicate based on their understanding of the effect that the exercise of the
particular right would have on penological interests, so long as their decision does not violate
the Constitution. The reasoning is that prison officials understand the prison conditions
better than judges and are, therefore, better placed to determine how certain acts will affect
the prison.
The rights this Chapter describes are about the “conditions of your confinement.”
Because of this, if you believe your right to communicate has been improperly denied, you
must first raise the problem through your institution’s administrative grievance procedure, if
there is one, before you can file a federal claim. So, you must first try to protect your rights
through your institution’s administrative grievance procedure. See Chapter 15 of the JLM
for further information on inmate grievance procedures. If you are unsuccessful or do not
receive a satisfactory result through the inmate grievance procedure, you can bring a case
under a federal law, 42 U.S.C. § 1983, in federal or state court. You could choose instead to
file a tort action in state court (in the Court of Claims if you are in New York), or to file an
Article 78 petition in state court if you are in New York. More information on all of these
types of cases can be found in Chapter 5 (Choosing a Court and a Lawsuit), Chapter 14
(Prison Litigation Reform Act), Chapter 16 (42 U.S.C. § 1983 and Bivens Actions), Chapter
17 (Tort Actions), and Chapter 22 (Article 78) of the JLM.
If you decide to pursue a claim in federal court, you MUST read JLM Chapter 14 on the
Prison Litigation Reform Act (“PLRA”). Failure to follow PLRA requirements can lead,
among other things, to the loss of good time and right to bring future claims in federal court
without paying the full filing fee.
B. The Right to General (Non-Legal) Correspondence
If you are a state prisoner, your right to communicate with the outside world is protected
by the U.S. Constitution, and the constitution, statutes, and regulations of the state in which
you are imprisoned. If you are a federal prisoner, the U.S. Constitution, and federal statutes
and regulations protect your rights.
1. Your Federal Constitutional Protections
The First Amendment to the U.S. Constitution creates a minimum level of protection of
your right to communicate with the outside world. No government body may pass laws or
regulations falling below this level of protection. Some states may also provide more
protection of your right to communicate with the outside world, through state constitutions
and statutes. The following is a discussion of the U.S. Constitution’s minimum guarantees of
your right to communicate. While reading the information below, it is important to keep in
mind that courts distinguish between incoming and outgoing mail. Restrictions on incoming
548 U.S. 521, 126 S. Ct. 2572, 2578, 165 L. Ed. 2d 697, 705 (2006) (applying Turner test to denial of
publications and photographs).
mail are greater than on outgoing mail because incoming mail can pose a greater security
threat.
In Procunier v. Martinez,5 later partially overruled, the U.S. Supreme Court held that
arbitrary censorship of both incoming and outgoing general prison correspondence
(regulations preventing you from sending or receiving all or part of your mail) violated the
First Amendment right to free speech of both prisoners and their correspondents.6 The Court
held censorship of prison mail was allowed only to further certain substantial government
interests such as prison order, security, and rehabilitation.7 The Court also held that when
some censorship was justified, the censorship could not be greater than necessary to serve
valid government interests.8 This case applied to both incoming and outgoing mail.
Martinez was applied by lower state and federal courts when they reviewed acts of prison
censorship, and courts often, but not always, found such acts unconstitutional. 9 In 1989,
however, the Supreme Court in Thornburgh v. Abbott10 partially overruled Martinez. This
means that you must be very careful in relying on cases decided before 1989 as they may no
longer be good law.
In Abbott, the Court held the Martinez standard applies only to outgoing
correspondence—correspondence sent by a prisoner to someone outside the prison. For
incoming correspondence (correspondence received by a prisoner from the outside), a
different standard applies. This standard comes from Turner v. Safley, 11 and states
restrictions on incoming mail are valid if they are reasonably related to a legitimate
penological interest.12 Four factors must be considered in determining whether a limitation
on your incoming mail meets this standard: (1) the rational connection between the mail
restriction and the prison’s penological interest; (2) alternatives available to prisoners to
exercise their rights; (3) the burden of accommodating rights; and (4) the lack of alternatives
available to prisons in satisfying their interests.13 The reason the Court gave in Abbott for
treating incoming and outgoing mail differently was mail containing contraband that comes
into the prison is more of a security threat than is mail that leaves the prison.14
Although the Turner standard may appear to be similar to the Martinez standard, there
is a significant difference between the two. To satisfy the Turner standard (for incoming
correspondence), prison officials must simply show the regulation could potentially achieve a
legitimate goal. To meet the Martinez standard (for outgoing correspondence), officials must
5. Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974).
6. Procunier v. Martinez, 416 U.S. 396, 412, 94 S. Ct. 1800, 1811, 40 L. Ed. 2d 224, 239 (1974).
Note that the Supreme Court has severely limited the force of this requirement by refusing to interpret
it as imposing a “least restrictive means” test. This means that lower courts will not invalidate a
regulation simply because a less restrictive alternative is proposed. Thornburgh v. Abbott, 490 U.S.
401, 411, 109 S. Ct. 1874, 1880, 104 L. Ed. 2d 459, 471 (1989).
9. See McNamara v. Moody, 606 F.2d 621, 624 (5th Cir. 1979). In McNamara, the court held that
prison officials violated a prisoner’s constitutional rights by refusing to mail a letter from the prisoner
to his girlfriend in which the prisoner charged that the mail censoring officer, while reading mail,
engaged in masturbation and “had sex” with a cat. The court further noted that prison officials could
not justify their conduct on the grounds that to allow such letters would result in a breakdown in prison
security and discipline, or on the grounds that the letter was obscene or libelous.
10. Thornburgh v. Abbott, 490 U.S. 401, 413–14, 109 S. Ct. 1874, 1881–82, 104 L. Ed. 2d 459,
473 (1989).
(1989).
13. Turner v. Safley, 482 U.S. 78, 89–91, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64, 79–80 (1987).
14. Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S. Ct. 1874, 1881–82, 104 L. Ed. 2d 459, 473
(1989).
demonstrate that the restriction actually achieves an important goal. Thus, there are two
main differences between the two standards: (1) the purposes that restrictions on outgoing
mail are meant to serve must be important and not just legitimate; and (2) restrictions on
outgoing mail must be shown to be more effective than restrictions on incoming mail need to
be. As a result, it is much easier to convince a judge that restrictions on outgoing mail are
unconstitutional than it is for restrictions on incoming mail. The standards for incoming and
outgoing correspondence are explained further below with the help of examples to indicate
how courts have interpreted them.
(a) Outgoing Correspondence
Restrictions on outgoing, non-legal mail must further an important governmental
objective, and the restriction must be no greater than necessary. 15 Four important
restrictions on outgoing mail that the courts have generally upheld under this standard are
regulations (1) banning letter kiting (including mail to a third party in your letter to someone
else), 16 (2) setting postage limits, 17 (3) banning inmate-to-inmate correspondence, 18 and
(4) requiring approved correspondence lists.19
Under New York State regulations, when the prison authorities have a reason to suspect
that a prisoner is “kiting” mail through sealed general correspondence, they may open a
prisoner’s outgoing mail. 20 However, they must have proof that the officials reasonably
believed the prisoner was kiting mail.21 Receiving incoming kited mail is also prohibited,
though it is permissible for someone to send you the writing of a minor child within an
adult’s correspondence.22
Courts have also held that prison authorities are permitted to restrict the amount of
postage that you can spend on outgoing mail. 23 Similarly, courts have generally upheld
prison policies restricting receiving postage in the mail and providing free postage.24 These
restrictions relate to the legitimate penological interest of security because postage stamps
can be used as currency (and thus lead to increased theft and unregulated transactions) and
because drugs can be smuggled on stamps.25
Many prisons completely ban inmate-to-inmate correspondence, and these restrictions
have generally been upheld as reasonably relating to prison security. 26 As this situation
15. Procunier v. Martinez, 416 U.S. 396, 413–14, 94 S. Ct. 1800, 1811, 40 L. Ed. 2d 224, 240
(1974) (holding that restrictions on mail must satisfy this test); Thornburgh v. Abbott, 490 U.S. 401,
413, 109 S. Ct. 1874, 1881, 104 L. Ed. 2d 459, 473 (1989) (limiting the Martinez test to outgoing mail).
16. See, e.g., United States v. Felipe, 148 F.3d 101, 110 (2d Cir. 1998).
17. See, e.g., Davidson v. Mann, 129 F.3d 700, 702 (2d Cir. 1997).
18. See, e.g., Purnell v. Lord, 952 F.2d 679, 683 (2d Cir. 1992).
19. See, e.g., Palmigiano v. Travisono, 317 F. Supp. 776, 791 (D.R.I. 1970).
20. N.Y. Comp. Codes R. & Regs. tit. 7, § 720.3(p) (2007); see United States v. Felipe, 148 F.3d
101, 110 (2d Cir. 1998) (upholding restrictions on kiting).
21. See Ode v. Kelly, 159 A.D.2d 1000, 1000, 552 N.Y.S.2d 475, 476 (4th Dept. 1990) (finding
inspection of prisoner’s outgoing mail violated his rights where the superintendent had no reason to
suspect prisoner was kiting mail). But see Minigan v. Irvin, 977 F. Supp. 607, 609–10 (W.D.N.Y. 1997)
(permitting screening of prisoner’s outgoing mail).
22. State of New York, Department of Correctional Services, Handbook for Families and Friends
of New York State DOCS Inmates 5 (2007).
23. See Gittens v. Sullivan, 670 F. Supp. 119, 123 (S.D.N.Y. 1987) (finding $1.10 per week for
stamps and an additional advance of $36 for legal mailings satisfied the constitutional minimum for
access to the courts); see also Davidson v. Mann, 129 F.3d 700, 702 (2d Cir. 1997) (upholding limits on
prisoner’s access to stamps for non-legal mail).
24. See Johnson v. Goord, 445 F.3d 532, 534–35 (2d Cir. 2006).
25. Johnson v. Goord, 445 F.3d 532, 535 (2d Cir. 2006).
26 . See, e.g., Purnell v. Lord, 952 F.2d 679, 683 (2d Cir. 1992) (finding restriction on
correspondence between inmates at different facilities reasonably related to security interests); Farrell
involves both outgoing and incoming correspondence, it presents a slightly different case
from purely outgoing mail. But, because only the rights of prisoners and not those of the
general public are involved, the courts are generally not as concerned about the restriction of
rights. Inmate-to-inmate correspondence was the issue in Turner v. Safley, where the
Supreme Court announced the reasonable relation standard that is applied in all incoming
correspondence cases and even in many outgoing correspondence cases.27 In addition, courts
have also found restrictions barring correspondence between current and former inmates to
be constitutional because they are rationally related to security interests such as preventing
escapes and violent acts.28
Whether “approved correspondence lists” for outgoing non-legal mail are constitutional is
unclear. In Milburn v. McNiff,29 a New York court found unconstitutional a policy requiring
prisoners who wanted to communicate with people not on their “approved correspondence
lists” to submit a “request to correspond form” to the addressee. On the other hand, various
federal district courts have found such a regulation “a reasonable method of maintaining
prison security without undue restriction on the First Amendment rights of prisoners.”30
Such lists, of course, must pass Martinez and have only been upheld when a substantial
penological (prison) interest in security or rehabilitation is involved.31 In New York, state
courts might follow McNiff and prohibit the use of this type of list all together. But, in other
states or in federal court, the lists may be upheld, provided they are legitimately used to
further prison security or rehabilitation.32
In addition to the above, you generally must provide a return address on all outgoing
mail.33
Finally, courts do not allow prison officials to censor and discipline prisoners based on
statements in mail that are intended to insult prison personnel, even if such statements
would be prohibited if expressed verbally.34 Courts have also upheld regulations that call for
v. Peters, 951 F.2d 862, 863 (7th Cir. 1992) (finding preventing correspondence between inmates
reasonably related to security).
27. See generally Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987).
28. Nasir v. Morgan, 350 F.3d 366, 371–72 (3d Cir. 2003).
29. Milburn v. McNiff, 81 A.D.2d 587, 589, 437 N.Y.S.2d 445, 448 (2d Dept. 1981).
30. Palmigiano v. Travisono, 317 F. Supp. 776, 791 (D.R.I. 1970); see also George v. Smith, No.
05-C-403-C, 2005 U.S. Dist. LEXIS 16139, at *20 (D. Wis. Aug. 2, 2005) (unpublished) (“In the interest
of maintaining prison security, prison officials may lawfully limit an inmate to corresponding with
individuals on a pre-approved list.”). But see Collins v. Schoonfield, 344 F. Supp. 257, 276 (D. Md. 1972)
(criticizing the broad prohibition on reading inmate mail in Palmigiano v. Travisono); Guajardo v.
Estelle, 580 F.2d 748, 755 (5th Cir. 1978) (finding unconstitutional a policy limiting letters sent by
prisoners to family and an approved list of ten individuals because it is not essential to further
legitimate security interests and is often abused as applied); Finney v. Arkansas Bd. of Corr., 505 F.2d
194, 211–12 (8th Cir. 1974) (rejecting an approved correspondence list procedure because the
justifications of prospectively investigating potential visitors, universally prohibiting correspondence
with former inmates, and assuring that no unwanted mail was received by unapproved recipients were
not enough).
31. See Finney v. Arkansas Bd. of Corr., 505 F.2d 194, 211 (8th Cir. 1974) (finding an approved
correspondence list unconstitutional where the prison justified it as pre-screening potential visitors and
protecting those who might not want to receive mail from prisoners).
32. Cf. United States v. Felipe, 148 F.3d 101, 110–11 (2d Cir. 1998) (upholding as serving
security interests the unique, severe restrictions on mail and visitation to a court-approved list for gang
member convicted of racketeering).
33. See, e.g., 28 C.F.R. § 540.14(c)(1)(iv) (2007) (staff at a minimum- or low-security federal prison
may open the prisoner’s outgoing mail if the prisoner has not filled out the return address properly);
N.Y. Comp. Codes R. & Regs. tit. 7, § 720.3(i) (2005) (requiring New York State prisoners to include
their return addresses on outgoing mail).
34. Cases where prisoners are not certain their defamatory (insulting) comments will be read
should be treated differently than cases involving defamatory comments directed at prison officials. See
the routine inspection of all non-legal outgoing mail. 35 They have distinguished between
censorship and inspection for security reasons.36 One court has even upheld the censorship of
outgoing mail under the Martinez standard.37
When the regulation at issue involves both incoming and outgoing correspondence, courts
have applied the Turner38 standard.39 A few courts have even departed entirely from the
Martinez standard, instead applying the Turner reasonableness standard to outgoing mail as
well. In general, courts are increasingly deferring to prison officials’ reasons for placing
restrictions on outgoing correspondence.40
(b) Incoming Correspondence
Regarding the restriction of incoming correspondence (mail and publications sent to you),
the Court in Thornburgh v. Abbott held that the proper standard of review was the one
stated in Turner v. Safley.41 In Turner the Court held that “[w]here the regulations at issue
concern the entry of materials into the prison, ... a regulation that gives prison authorities
broad discretion is appropriate.”42 Under the Turner standard, restrictions are valid if they
Loggins v. Delo, 999 F.2d 364, 367 (8th Cir. 1993) (finding that prison official violated prisoner’s 1st
Amendment rights by reading a prisoner’s letter to his brother that commented about prison guards
where the letter did not raise a security risk and was not directed towards staff); Brooks v. Andolina,
826 F.2d 1266, 1268 (3d Cir. 1987) (finding no government interest in censorship); Hall v. Curran, 818
F.2d 1040, 1044–45 (2d Cir. 1987) (finding the district court should not have granted summary
judgment to prison administrator against a prisoner’s 1st Amendment claim for censorship of his
statements critical of prison administration). But see Leonard v. Nix, 55 F.3d 370, 376 (8th Cir. 1995)
(finding that prisoners cannot send letters as personal communication that are extremely offensive to
prison personnel if their purpose is only to defame (insult) prison personnel and not to communicate).
35. Bell-Bey v. Williams, 87 F.3d 832, 838 (6th Cir. 1996) (holding that a mail inspection
procedure did not violate a prisoner’s 1st Amendment rights because the procedure was limited to
protecting the legitimate government interest of managing scarce prison resources); Stow v. Grimaldi,
993 F.2d 1002, 1004 (1st Cir. 1993) (finding that inspection procedures served the legitimate
government interest of safety).
36. Altizer v. Deeds, 191 F.3d 540, 549 (4th Cir. 1999) (holding that inspection of prisoner’s mail
was not a constitutional violation since there is a substantial government interest in censoring
materials harmful to security).
37 . Martyr v. Mazur-Hart, 789 F. Supp. 1081, 1085–86 (D. Or. 1992) (allowing a mental
institution’s refusal to send letters written by a prisoner because the censorship furthered the
important governmental interest of rehabilitation; the writing hindered the prisoner’s progress).
38. Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987)
39. See Duamutef v. Hollins, 297 F.3d 108, 113 (2d Cir. 2002) (upholding mail watch on all
incoming and outgoing mail based on Turner standard as furthering the government interest of
security where inflammatory material had previously circulated through the mail); Sisneros v. Nix, 884
F. Supp. 1313, 1331–33 (S.D. Iowa 1995) (upholding under the Turner standard a regulation that
prohibited the delivery to or from a prisoner of letters written in a language other than English unless
that language was the only one a prisoner spoke); Martin v. Rison, 741 F. Supp. 1406, 1413, 1417 (N.D.
Cal. 1990) (upholding a regulation that prohibited prisoners from acting as reporters for newspapers
published outside the prison; although the regulation prohibited prisoners from sending their articles
outside the prison, because those articles found their way back into the prison when the newspapers
that published them were distributed to other prisoners, the court applied the Turner standard to the
regulation).
40. Altizer v. Deeds, 191 F.3d 540, 549 (4th Cir. 1999) (holding that the inspection of outgoing
mail was not a 1st Amendment violation under the Turner standard); Butti v. Unger, No. 04-5381, 2005
U.S. Dist. LEXIS 14408, at *9 (S.D.N.Y. Jan. 15, 2005) (unpublished) (citing Turner standard as basis
for surveillance of prisoner’s outgoing mail when officials were suspicious of prisoner’s creating fake
names to send mail to recipients other than those the letters addressed).
41. Thornburgh v. Abbott, 490 U.S. 401, 404, 109 S. Ct. 1874, 1877, 104 L. Ed. 2d 459, 467 (1989)
(citing Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261–62, 96 L. Ed. 2d 64, 79 (1987)).
(1989).
are reasonably related to a legitimate penological interest (for example, security, order, or
rehabilitation). This reasonably related standard is more general than the Martinez standard
and less protective of your right to communicate.
The Court has identified four factors for determining whether a restriction meets the
reasonably related standard. The first and most important factor is whether the regulation is
both neutral and rationally related to the alleged legitimate government interest. 43 This
factor can be broken down into three subparts:
(1) Whether the government interest or goal is legitimate;
(2) Whether the regulation is rationally related to that interest or goal; and
(3) Whether the regulation is neutral.
Regarding subpart (1), the government interest used to justify restrictions on mail is
usually either maintenance of prison security or screening for contraband. Courts almost
always hold these two interests to be legitimate. 44 Under the Turner standard, the
relationship between a mail restriction and the stated government interest does not need to
be very close. Prisons do not need to prove the restrictions will actually promote security or
screen contraband in all cases; they only need to convince the court that the restriction might
achieve these goals. Courts usually find this to be the case.45 Nevertheless, when courts
invalidate restrictions on mail, they usually do so because no rational relation exists between
the regulation and the government interest.46 Finally, regulations are considered neutral as
long as the government interest is unrelated to suppressing expression. In other words, as
long as the purpose of the restriction is something other than stopping expression, the
restriction will be considered neutral.47
The second factor of the reasonably related standard is whether the regulation leaves
open an alternate way for the prisoner to exercise the right asserted.48 Courts usually define
the “right” in question broadly, making it easier to state it can be exercised another way. For
example, in Thornburgh v. Abbott, where the regulation at issue prohibited publications
containing sexually explicit material, the court defined the right in question not as the right
to receive sexually explicit materials but simply as the right to “expression,” which it held
could be exercised through the many other publications that were not prohibited.49
(1989).
44. See, e.g., Pell v. Procunier, 417 U.S. 817, 823, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 502
(1974) (“[C]entral to all other corrections goals is the institutional consideration of internal security
within the corrections facilities themselves.”).
45. E.g., Waterman v. Farmer, 183 F.3d 208, 214–15 (3d Cir. 1999) (finding a regulation that
prohibited sex offenders from receiving sexually explicit publications to be rationally connected to the
interest of rehabilitation where a psychologist testified that such materials could hinder rehabilitation);
Avery v. Powell, 806 F. Supp. 7, 7–8 (D.N.H. 1992) (finding a regulation that prohibited prisoners from
receiving blank greeting cards from anyone other than the vendor to be rationally connected to the
interests of promoting security and screening for contraband; the court noted that cards are often
multipart, contained within envelopes, or decorated with metals or flammable substances, so cards
received from non-vendors would necessitate time-consuming searches).
46. See, e.g., Crofton v. Roe, 170 F.3d 957, 960 (9th Cir. 1999) (invalidating a regulation that
limited the publications prisoners can receive to those ordered and paid for directly by the prisoner
because the court found no rational relation between the regulation and the asserted interests of
screening for contraband, minimizing fire hazards, or preventing overcrowding).
47. See Thornburgh v. Abbott, 490 U.S. 401, 415–16, 109 S. Ct. 1874, 1882–83, 104 L. Ed. 2d 459,
474 (1989).
(1989).
(1989).
The third and fourth factors are usually interrelated. The third factor is the impact that
accommodating the right will have on other prisoners, guards, and prison resources, and the
fourth factor is whether there are any ready alternatives to the proposed regulation. 50
Because the accommodation of a right will usually require alternatives to the regulation,
these two factors are often combined. For example, accommodating a prisoner’s right to
receive blank greeting cards from non-vendors would require extensive searches of an
increased volume of incoming mail. Such searches may be considered both an unacceptable
impact of the accommodation of the right and an unacceptable alternative to the regulation
at issue.51
(c) “As Applied” versus “Facial” Challenges
Most cases discussed in this Chapter so far involve “facial” challenges—challenges to the
regulation as written. But, because many prison regulations are vague, it is often hard for
judges to object to them. In such cases, prisoners may instead bring an “as applied”
challenge. “As applied” challenges are brought when a prisoner objects to the way prison
officials apply a regulation to him, rather than to the regulation itself.
Nichols v. Nix52 and Lyon v. Grossheim53 are good examples of “as applied” challenges to
prison policies.54 In both cases, the regulation at issue simply gave the superintendent the
power to deny a prisoner any publication likely to be disruptive or to produce violence.
Because preventing disruptions and violence is always a legitimate goal, and because the
regulation only applies to publications that are likely to hinder these goals, the regulation
facially passed the Turner standard. Therefore, the court upheld both regulations as they
were written. But, the court held that prison officials applied the regulations in an
unconstitutional manner. In both cases, the court held that there was no evidence that the
publications at issue were likely to threaten prison security because other prisoners had
possessed similar publications without incident.55
If you think a prison policy is being applied in an unconstitutional way, you can
challenge it even though it may look, as written, like policies that courts have upheld in the
past.
(d) Procedural Safeguards
Note that several important procedural safeguards established by Procunier v.
Martinez56 must still be respected by prison officials. First, a prisoner should be notified if
prison officials return a letter addressed to him or if a letter by a prisoner is returned to the
(1989).
51. Avery v. Powell, 806 F. Supp. 7, 10–11 (D.N.H. 1992).
52. Nichols v. Nix, 810 F. Supp. 1448, 1467 (S.D. Iowa 1993) (striking down as applied a
regulation used to restrict publications that promoted racial segregation).
53. Lyon v. Grossheim, 803 F. Supp. 1538, 1555 (S.D. Iowa 1992) (invalidating an official action
denying prisoners access to “anti-Catholic” comic books also containing negative references to
homosexuality and the Soviet Union).
54. The cases were both decided in the Southern District of Iowa. Though they are therefore
binding only on prisons in that district, they provide good examples of as-applied challenges that you
can bring elsewhere.
55. Nichols v. Nix, 810 F. Supp. 1448, 1463 (S.D. Iowa 1993) (“[T]he record is ... devoid of evidence
of past inmate confrontations as a result of other inmates possessing or reading [such] publications.”);
Lyon v. Grossheim, 803 F. Supp. 1538, 1552–53 (S.D. Iowa 1992).
(1974). See Sheldon Krantz, The Law of Corrections and Prisoners’ Rights in a Nutshell § 17, at 142 (3d
ed. 1988).
prison. Second, the author of the returned letter should be given a reasonable opportunity to
protest the decision to restrict.57
2. State and Federal Protections of the Right to General (Non-Legal)
Correspondence
State and federal regulations may give you more rights than those the U.S. Constitution
provides; they cannot take away any rights guaranteed by the Constitution but can provide
more than the Constitution does. The following is a discussion of New York State and City
regulations, as well as federal regulations governing your right to communicate in writing
with the general public. Prisoners in other states must consult their state and local
regulations.58
(a) New York State and City Regulations
In New York, the specific regulations governing your right to communicate with the
outside world depend on the type of institution in which you are imprisoned. There are three
different sets of regulations. One set applies only to prisons run by the New York State
Department of Correctional Services (for example, Attica). The second applies to all city and
county prisons and jails (for example, Nassau County Jail), and the third applies only to New
York City prisons and jails (for example, Rikers Island). The Department of Correctional
Services issued the first set of regulations, the New York State Commission of Correction the
second, and the New York City Department of Correction and/or the Board of Correction the
third. If you are in a New York City jail, both the second and third sets of regulations apply
to you. If more than one set of regulations applies to you, courts will use the ones that give
you more protection.
New York State regulations, which apply to prisons the Department of Correctional
Services runs, provide additional protections to your right to communicate beyond the
minimum the Constitution requires. These regulations allow prisoners, with some
restrictions, to correspond with any person.59 State regulations only prohibit prisoners from
corresponding with people who have indicated they do not wish to receive mail from the
prisoner or with persons listed on a court order of protection.60 Furthermore, prisoners must
receive advance approval in order to correspond with unrelated minors, persons on parole or
probation, other New York prisoners, employees or former employees of the Department of
Correctional Services, and victims of the prisoner’s crime(s).61 State regulations also prohibit
prison officials from opening, inspecting, or reading outgoing correspondence (except for
oversized envelopes, parcels, and prisoner-to-prisoner correspondence) without written
authorization from the facility superintendent. 62 The superintendent cannot provide such
authorization unless there is a reason to believe that the correspondence violates the
department’s regulations or that it threatens the safety, security, or good order of the prison.
If authorization is given, the superintendent must set forth, in writing, the specific facts
justifying it. 63 With respect to incoming mail, New York State regulations require the
inspection of all such mail,64 but prohibit the reading of incoming correspondence (except for
prisoner-to-prisoner letters and prisoner business mail) unless there is evidence that the
(1974).
58. JLM Chapter 2, Introduction to Legal Research, will be helpful in conducting this research.
62. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 720.3(c)–(e) (2007).
mail contains plans for sending contraband in or out of the prison, plans for criminal activity,
or information that would create a danger to others or to the prison’s security and good
order. 65 The facility superintendent must provide written authorization to read incoming
correspondence and must specify why reading the mail is necessary.66 It is also important to
be aware of your facility’s specific restrictions on what can be sent through the mail; failing
to follow these rules can result in your mail not reaching you.67
The local county jail regulations also provide protections.68 These regulations provide
that you may correspond, with a few restrictions, with anyone you wish. Prison officials may
not impose restrictions based on the amount of mail sent or received, or based on the
language in which the correspondence is written. 69 Outgoing correspondence may not be
opened or read unless the chief administrative officer gives written approval based on a
“reasonable suspicion” that the correspondence threatens the security of the prison or of
another person. 70 Incoming correspondence may be opened outside the presence of the
prisoner-recipient to ensure the absence of contraband, but it may not be read without the
written approval of the chief administrative officer.71 Any information prison officials obtain
by opening your incoming correspondence without the superintendent’s authorization may
not be used in a disciplinary hearing against you.72
New York City has additional standards set out in the “Minimum Standards for New
York City Correctional Facilities.” 73 New York City prisoners are urged to familiarize
themselves with these standards. Find out if your prison library has a copy; if it does not, ask
the librarian to get one. Copies of “Minimum Standards” can be obtained by writing: City of
New York, Board of Correction, 51 Chambers Street, New York, NY 10013. The Board of
Correction approved changes to these standards in early 2008; these revisions are the first
since the Minimum Standards were enacted in 1978. 74 These changes, which have
implications for mail and telephone surveillance in New York City facilities, 75 went into
effect on June 16, 2008.76

66. N.Y. Comp. Codes R. & Regs. tit. 7, § 720.4(f) (2007).
67. Items prohibited in incoming correspondence include obscene, threatening, or fraudulent
materials, nude photographs, Polaroid pictures, postage stamps, and letters from others (kiting) except
minor children. There is also a five-page limit on incoming correspondence. N.Y. Comp. Codes R. &
Regs. tit. 7, §§ 720.4(c)–(d) (2008). See http://www.docs.state.ny.us/directives/4911.pdf for additional
restrictions on packages brought or sent to you in prison.
70. N.Y. Comp. Codes R. & Regs. tit. 9, §§ 7004.2 (f)–(g) (2008).
71. N.Y. Comp. Codes R. & Regs. tit. 9, §§ 7004.3 (a)–(b) (2008).
72. See Chavis. v. Goord, 265 A.D.2d 798, 798, 697 N.Y.S.2d 409, 410 (4th Dept. 1999) (reversing
a disciplinary decision because prison investigation relied on information obtained through
unauthorized review of prisoner’s mail).
73 . Codified at Chapter 1 of Title 40 of the Rules of the City of New York, available at
http://24.97.137.100/nyc/rcny/entered.htm (last visited Oct. 12, 2008).
74. See generally Coalition to Raise the Minimum Standards, http://www.nycjailreform.org/ (last
visited Oct. 12, 2008).
75. For instance, an amendment to § 1-10(h) allows correctional facilities to monitor prisoner
phone calls with prior notice but without a warrant (with the exception of calls to attorneys, physicians,
and like parties). An amendment to § 1-11(c)(6) and (e)(1) allows prison officials to read general
correspondence with a warden’s written order instead of only with a court order. An amendment to § 1-
11(a) allows curtailment of general correspondence privileges where reasonably necessary to protect
public safety or maintain prison security. See City of New York Board of Correction, Notice of Public
Hearing and Opportunity to Comment on Proposed Amendments to the Minimum Standards for New
York City Correctional Facilities, 4–5. See also http://www.nycjailreform.org/newrules.html (last visited
Oct. 12, 2008).
76 . See City of New York Department of Correction,
(b) Federal Regulations
If you are a federal prisoner (in a prison run by the Bureau of Prisons), you are subject to
mail regulations the Federal Bureau of Prisons has issued. Some rules concerning general
correspondence follow.
The warden of each prison has the authority to establish your rules of correspondence.77
The specific rules the warden develops must be communicated to you in writing upon his
arrival at the prison.78 Prison authorities may open and read your mail if they determine
doing so is necessary to maintain security or monitor a specific problem.79 They may not read
mail that is “special” or “privileged,” although they may open it (in your presence only) to
ensure that there is no contraband in the envelope.80 “Special” or “privileged” mail includes
mail from attorneys, law enforcement officers, courts, and public officials. Regulations
governing privileged mail are discussed further in Part C of this Chapter.
Prison officials may not open and read mail you are sending from a minimum- or low-
security prison unless they have “reason to believe [the mail] would interfere with the
orderly running [of the prison], that it would be threatening to the recipient, or that it would
facilitate criminal activity.”81 In medium- and high-security institutions, prison officials may
read all mail other than “special mail.”82
Federal prisons must supply you with paper and envelopes at no cost, but you must pay
for stamps. If you cannot afford postage, the warden must provide stamps for a reasonable
number of letters per month.83
For more information and details about the federal regulations, you should consult the
relevant regulations themselves. They can be found in the Code of Federal Regulations, 28
C.F.R. § 540.
3. A Note on Foreign-Language Materials
The ability of prisons to restrict correspondence in foreign languages remains unclear.
Some courts have found that regulations prohibiting prisoners from writing and receiving
letters in languages that cannot be understood by prison officials are permissible as
reasonably related to the legitimate prison interest of security.84 On the other hand, some
courts have held that a complete ban on all foreign-language correspondence is not rational.85
Additionally, some courts have found the exclusion of foreign-language publications
http://www.nyc.gov/html/doc/html/home/home.shtml (last visited June 28, 2008).

77. 28 C.F.R. § 540.10 (2007).
78. 28 C.F.R. § 540.12(b) (2007).
79. 28 C.F.R. §§ 540.12, 540.14 (2007).
80. 28 C.F.R. § 540.12 (2007).
81. 28 C.F.R. § 540.14 (c)(1)(i) (2007). Prison authorities can also read this mail if you are on a
restricted correspondence list, if the mail is being sent to another prisoner, or if the return address on
the envelope is incomplete. 28 C.F.R. §§ 540.14 (c)(1)(ii)–(iv) (2007).
82. 28 C.F.R. § 540.14(c)(2) (2007).
83. 28 C.F.R. §§ 540.21(b), (d) (2007).
84. See, e.g., Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024, 1026–27 (8th Cir. 2004) (finding
acceptable a regulation that prohibited inmates from writing letters in Spanish). See also Sisneros v.
Nix, 884 F. Supp. 1313, 1331–33 (S.D. Iowa 1995) (upholding a regulation that prohibited the delivery
of letters to or from a prisoner written in a language other than English unless that language was the
only one spoken by a prisoner), aff’d in part and rev’d in part on other grounds, 95 F.3d 749, 750 (8th
Cir. 1996); Nelson v. Woodford, No. C 04-03684 CRB (PR), 2006 U.S. Dist. LEXIS 11120, at *25–30
(N.D. Cal. Mar. 2, 2006) (stating that a ban on foreign-language publications was rationally related to
the security goal of preventing coded communication by gangs), aff’d, 249 Fed. Appx. 529, 530 (9th Cir.
2007).
85. Thongvanh v. Thalacker, 17 F.3d 256, 259 (8th Cir. 1994) (holding that since the prison could
have secured free translation services, the ban on a Lao prisoner’s correspondence was not rational).
unreasonable under this standard.86 By statute in New York State, prison officials may not
impose restrictions based on the language in which the mail is written.87 Make sure to check
statutes, regulations, and court decisions in your state to find out what the law is.
C. Legal Correspondence with Courts, Public Officials, and Attorneys:
Privileged Correspondence
Procunier v. Martinez88 and Thornburgh v. Abbott,89 two important cases discussed in
Part B(1) of this Chapter, do not distinguish between legal and non-legal correspondence. As
a result, both kinds of mail generally receive the same level of First Amendment protection
under those cases. However, legal mail—correspondence with courts, public officials, and
attorneys—receives heightened protection because censorship of this mail implicates two
other important concerns: your right of meaningful access to the courts and the attorney-
client privilege. This Section discusses each of these sources of protection separately. Mail to
and from attorneys, courts, paralegals, and legal organizations is treated as privileged and
receives heightened protection (for instance, this mail cannot usually be censored). Mail to
and from other public officials and agencies is also usually treated as privileged and given
more protection than regular mail.
1. First Amendment Protections of Martinez and Abbott
Some courts have held that legal mail is entitled to a higher degree of First Amendment
protection than other mail and that “prison policies or practices which interfere with legal
mail on a regular basis ... must be supported by a legitimate penological interest other than
mere general security concerns which permit interference with regular mail.”90 Even when
this analysis is not applied, courts generally give legal mail more consideration than non-
legal mail in evaluating restrictions.91
Correspondence from your attorney is “incoming mail,” and so restrictions on it are
evaluated under the Turner standard. 92 Restrictions on privileged incoming mail do not
violate the First Amendment if the restrictions are reasonably related to a legitimate need to
manage the prison or carry out your penalty. In Wolff v. McDonnell,93 the U.S. Supreme
Court held a state can require your lawyer to clearly mark her letters as coming from an
attorney, and can require that her address be written on the envelope if the letters are to
receive special treatment,94 and finally, can require your lawyer to identify herself to prison
officials before correspondence with the prisoner begins.95 Wolff seems to imply that prison
86. See, e.g., Kikimura v. Turner, 28 F.3d 592, 598–600 (7th Cir. 1994) (invalidating a complete
ban on foreign-language materials).
89. Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989).
90. Cancel v. Goord, No. 00 CIV 2042 LMM, 2001 U.S. Dist. LEXIS 3440, at *17 (S.D.N.Y. Mar.
91. Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (“In balancing the competing interests
implicated in restrictions on prison mail, courts have consistently afforded greater protection to legal
mail than to non-legal mail....”); Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir. 2003) (“[W]hen the
incoming mail is “legal mail,” we have heightened concern with allowing prison officials unfettered
discretion to open and read an inmate's mail because a prison's security needs do not automatically
trump a prisoner's First Amendment right to receive mail, especially correspondence that impacts upon
or has import for the prisoner's legal rights, the attorney-client privilege, or the right of access to the
courts.”).
473–77 (1989).
93. Wolff v. McDonnell, 418 U.S. 539, 576, 94 S. Ct. 2963, 2984–85, 41 L. Ed. 2d 935, 963 (1974).
94. Wolff v. McDonnell, 418 U.S. 539, 576, 94 S. Ct. 2963, 2984–85, 41 L. Ed. 2d 935, 963 (1974).
95. Wolff v. McDonnell, 418 U.S. 539, 576–77, 94 S. Ct. 2963, 2985, 41 L. Ed. 2d 935, 963 (1974).
officials cannot read or censor correspondence with your attorney if there is no suspicion that
the correspondence is illegal, but this is not entirely clear. 96 According to Wolff, a
requirement that letters from an attorney to a prisoner be opened by prison officials only in
the presence of the prisoner may be more than what the Constitution demands. 97 Many
courts, however, have since ruled that the prisoner must be present if the prison is opening
his letters, or that the prisoner at least be given the opportunity to request such a
safeguard.98
Prisons cannot restrict correspondence sent to attorneys unless the restriction furthers
an important or substantial governmental interest.99 Some courts have found that outgoing
legal correspondence does not present the same security threat as non-legal correspondence,
and so there is minimal government interest in restricting it.100 Letters to some government
agencies, elected officials, and legal assistance and civil liberties groups enjoy the same
protection as mail addressed to your attorney.101 Also, the government has a duty to provide
indigent prisoners with stationery and a reasonable amount of postage for legal mail.102
96. See Wolff v. McDonnell, 418 U.S. 539, 577, 94 S. Ct. 2963, 2985, 41 L. Ed. 2d 925, 963 (1974)
(“As to the ability to open the mail in the presence of inmates, this could in no way constitute
censorship, since the mail would not be read. Neither could it chill such communications, since the
inmate's presence insures that prison officials will not read the mail.”).
97. Wolff v. McDonnell, 418 U.S. 539, 577, 94 S. Ct. 2963, 2985, 41 L. Ed. 2d 935, 963 (1974); see
also Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir. 1993) (holding “that the violation of the prison
regulation requiring that a prisoner be present when his incoming legal mail is opened and inspected is
not a violation of a prisoner's constitutional rights”).
98. See Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir. 2003) (reaffirming that an opt-in policy,
where a prisoner had to request being present when legal mail was opened, is constitutional so long as
the prisoner is given written notice of it); Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir. 1974) (per
curiam) (holding that because “prison officials in inspecting incoming mail outside the presence of an
inmate are provided with an opportunity to obtain advanced warning of potential litigation which
might involve the prison and, more significantly, could become privy to stratagems being formulated
between attorney and client with regard to pending litigation,” the prisoner is entitled to be present
during the opening of legal mail addressed to him). Later cases with similar holdings to Bach include
Powells v. Minnehaha County Sheriff Dep’t, 198 F.3d 711, 712 (8th Cir. 1999); Fontroy v. Beard, 485 F.
Supp. 2d 592, 593, 601 (E.D. Pa. 2007) (finding that a Pennsylvania policy allowing prison staff to open
incoming legal mail outside prisoners’ presence is unconstitutional); and Kensu v. Haigh, 87 F.3d 172,
174 (6th Cir. 1996) (holding that a prisoner’s right to be present during opening of his legal mail
extends to hand-delivered correspondence as well as correspondence received through the U.S. Postal
Service). But see John v. New York City Dep't of Corr., 183 F. Supp. 2d 619, 627–29 (S.D.N.Y. 2002)
(dismissing prisoner’s claim for denial of access to courts when prison officials opened mail outside his
presence because he failed to prove either that the officials acted “deliberately and maliciously” in doing
so or that he suffered any injury).
100. See Cancel v. Goord, No. 00 Civ. 2042 (LMM), 2001 U.S. Dist. LEXIS 3440, at *17 (S.D.N.Y.
Mar. 21, 2001) (unpublished) (finding that without more than general security interests, interference
with outgoing legal mail is unconstitutional) (citing Davidson v. Scully, 694 F.2d 50, 53 (2d Cir. 1982);
Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976); Palmigiano v. Travisono, 317 F. Supp. 776 (D.R.I.
1970)).
101 . See Davidson v. Scully, 694 F.2d 50, 53–54 (2d Cir. 1982) (striking down regulation
restricting outgoing mail to government agencies because “[i]f prison officials are able to deny inmates
free access to public officials and agencies, the fundamental right [of access to the courts] is restricted
just as surely as if the government denied prisoners access to traditional legal materials. In many cases
an inmate's claim might be substantially furthered by information or aid available through government
agencies”). But see O'Keefe v. Van Boening, 82 F.3d 322, 323 (9th Cir. 1996) (upholding regulation
treating certain mail to state agencies as non-legal); Jackson v. Mowery, 743 F. Supp. 600, 606 (D. Ind.
1990) (“[T]he legal mail protected by the Constitution extends only to safeguard communications
between an inmate and his attorney, and [defendant] has no basis for his claim of interference with
‘legal mail’ to and from his family and friends.”).
102. See Bounds v. Smith, 430 U.S. 817, 824–25, 97 S. Ct. 1491, 1496, 52 L. Ed. 2d 72, 81 (1977)
(stating that it is “indisputable that indigent inmates must be provided at state expense with paper and
2. Your Right to Meaningful Access to the Courts and Assistance of
Counsel
You have a constitutional right to meaningful court access and assistance of counsel.103
In Davidson v. Scully, one court held restrictions on a prisoner’s legal mail can violate this
right.104 For example, courts have stated that allowing prison officials to read mail to courts
or between attorneys and prisoners can prevent prisoners from bringing abuses to the
attention of courts because they fear retaliation. 105 Thus, even if your First Amendment
claim fails because the restriction at issue is related to an important government objective,
you can still challenge the restriction if it prevents you from having meaningful court access.
However, these claims will not likely succeed unless you also prove that there was some
actual harm to your ability to assert a legal claim.106 Some courts have also required that the
pen to draft legal documents with notary services to authenticate them, and with stamps to mail
them”). But see Gaines v. Lane, 790 F.2d 1299, 1308 (7th Cir. 1986) (citing Bach v. Coughlin, 508 F.2d
303, 307 (7th Cir. 1974)) (explaining that while prisoners have a right to access the courts, they are not
entitled to unlimited free postage, and prison officials can balance prisoners’ rights to use the mails
against budgetary concerns); Chandler v. Coughlin, 763 F.2d 110, 114 (2d Cir. 1985) (finding that state
is not required to provide indigent prisoners unlimited free postage, but only a “reasonably adequate”
amount of postage for access to the courts); Gittens v. Sullivan, 670 F.Supp. 119, 123 (S.D.N.Y. 1987)
(finding that “$1.10 per week for stamps and an additional advance of $36.00 for legal mailings satisfies
the constitutional minimum for access to the courts”), aff’d, 848 F.2d 389 (2d Cir. 1988). Even though
this right has been cut back somewhat, the Court has clearly held that a state violates prisoners’
fundamental constitutional rights of access to the courts by failing to provide them with adequate legal
library facilities. The right of access to the courts requires that prison officials assist prisoners in the
preparation and filing of meaningful legal papers by providing law libraries and adequate assistance
from persons trained in the law. Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d
72, 83 (1977).
103. See Bounds v. Smith, 430 U.S. 817, 821–23, 97 S. Ct. 1491, 1494–95, 52 L. Ed. 2d 72, 78–80
(1977) (reviewing the history of Supreme Court decisions that have established a right of access to the
courts and the assistance of counsel). But see Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180,
135 L. Ed. 2d 606, 618 (1996) (prisoner must prove that lack of necessary legal assistance or library
actually hindered case). See Chapter 12 and Chapter 9, Part H of the JLM for a full discussion of the
right to effective assistance of counsel.
104. Davidson v. Scully, 694 F.2d 50, 53 (2d Cir. 1982) (holding that prison officials who did not
allow a prisoner to mail sealed letters to the Army Board for Corrections of Military Records, the
Commanding Officer, United States Army Reserve Components Personnel Center, the Judge Advocate
General, and the American Civil Liberties Union violated prisoner’s right to meaningful access to the
courts).
105. See Taylor v. Sterrett, 532 F.2d 462, 476 (5th Cir. 1976); Martin v. Brewer, 830 F.2d 76, 78–
79 (7th Cir. 1987) (distinguishing incoming from outgoing mail to the courts on this ground).
106. See Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 618 (1996)
(holding the prisoner must prove his prison’s law library or legal assistance program was lacking in a
way actually hindering his efforts to pursue a legal claim); Bourdon v. Loughren, 386 F.3d 88, 98–99
(2d Cir. 2004) (holding appointment of counsel to a prisoner was sufficient to satisfy the prisoner's right
of access to the courts; the attorney's performance did not have to be “effective” as long as it did not
prevent the prisoner from pursuing a particular legal claim); DeLeon v. Doe, 361 F.3d 93, 94 (2d Cir.
2004) (dismissing prisoner’s claim for denial of court access when prison officials caused delays to his
legal mail); Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir. 1997) (holding interference with mail, if it
reaches its intended destination, is insufficient to show actual injury); Taylor v. Coughlin, 29 F.3d 39,
39 (2d. Cir. 1994) (per curiam) (holding prison’s failure to supply prisoners with adequate typewriters
did not cause any injury; prisoners were able to access the courts through handwritten documents);
Jones v. Smith, 784 F.2d 149, 152 (2d Cir. 1986) (holding 30-day deprivation of access to prison law
library during confinement in Special Housing Unit was insufficient to claim lack of meaningful access
to courts); Richardson v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988) (holding that the loss of outgoing
court documents was not a sufficient injury because the error was noted in time to allow the plaintiff to
re-file the documents); Jermosen v. Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995) (holding that the
confiscation of a tape mailed to a prisoner did not qualify as a sufficient injury because the prisoner had
access to the tape when preparing his civil action, and at the time the tape was taken, the prisoner’s
interference be “deliberate and malicious.”107 In other words, they require that the prison
authorities have intentionally interfered with a prisoner’s legal mail with the purpose of
denying him access to the courts. Many courts, however, do not mention this additional
requirement.108
3. Attorney-Client Privilege
For communications with your attorney, you have the additional shield of the attorney-
client privilege.109 This privilege allows you to refuse to disclose, and to prevent any other
person from disclosing, confidential communications between you and your attorney. The
protection that it provides is limited in two ways. First, because the privilege only protects
you against disclosure of your legal correspondence, it may only be used to challenge the
reading of your legal mail, not the inspection of it.110 However, even though prisons may
declare temporary emergencies requiring them to open your mail, they may not continue to
justify mail opening by stating that the “emergency” is indefinite. 111 Second, there are
exceptions to the kinds of communication that are protected by the privilege. For the
attorney-client privilege to apply, you must intend for the communication to remain
confidential. 112 In other words, if you disclose information to someone other than your
attorney, this information will no longer be considered “privileged.” Disclosure to
representatives of the attorney, such as his or her secretary or student clerk, however, is
considered the same as communication with the attorney and is covered under the
privilege. 113 An exception is that you cannot claim the attorney-client privilege if the
case had already been settled). But see Key v. Artuz, No. 95 CV 0392 (HB), 1995 U.S. Dist. LEXIS
13201, at *5–6 (S.D.N.Y. Sept. 13, 1995) (unpublished) (holding that a prison’s mishandling of legal
mail that resulted in the prisoner missing a court-imposed deadline was a sufficient showing of injury).
107. Smith v. O’Connor, 901 F. Supp. 644, 649 (S.D.N.Y. 1995) (holding that although corrections
officials destroyed a prisoner’s personal property, including his legal papers, the prisoner failed to show
prejudice and thus failed to state a claim that he was denied access to the courts); Herrera v. Scully,
815 F. Supp. 713, 723–24 (S.D.N.Y. 1993) (holding that prison officials did not act in an “intentional
and deliberate manner to deprive [the prisoner] of his constitutional rights by preventing his legal mail
from arriving at court in a timely manner”).
108. Key v. Artuz, No. 95 CV 0392 (HB), 1995 U.S. Dist. LEXIS 13201, at *7 (S.D.N.Y. Sept. 13,
1995) (unpublished) (denying defendant motion to dismiss where interference caused prisoner to miss
court-imposed deadline).
109. Statute generally sets forth this privilege. In New York, the relevant statute can be found at
N.Y. C.P.L.R. 4503.1 (McKinney 2007).
110. Frye v. Henderson, 474 F.2d 1263, 1264 (5th Cir. 1973) (per curiam) (stating opening mail
to check for contraband is legitimate); People v. Poe, 193 Cal. Rptr. 2d 479, 481, 145 Cal. App. 3d 574,
578 (Cal. Ct. App. 1983) (citing Wolff v. McDonnell, 418 U.S. 539, 577, 94 S. Ct. 2963, 2985, 41 L. Ed.
2d 935, 963 (1974)). Some courts have even held prison officials can open mail from a court outside your
presence, since court documents are public records and therefore not subject to the same protections.
See Martin v. Brewer, 830 F.2d 76, 78–79 (7th Cir. 1987) (incoming court mail is not privileged and
does not involve the same concerns about retaliation for filing a lawsuit as outgoing mail from a
prisoner to a judge); Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996) (finding incoming mail from a
court not “legal mail”).
111. See Jones v. Brown, 461 F.3d 353, 362–63 (3d Cir. 2006) (finding that though a risk of
anthrax terrorism might have justified temporarily opening prisoner mail after September 11, 2001,
there was no rational basis for continuing this policy more than three years later).
112. United States v. Robinson, 121 F.3d 971, 976 (5th Cir. 1997) (that a meeting between a
prisoner and his attorney “take[s] place away from public view” is not enough to support that the
prisoner intended the communication between them to be confidential); Colton v. United States, 306
F.2d 633, 638 (2d Cir. 1962); Priest v. Hennessy, 51 N.Y.2d 62, 68–69, 409 N.E.2d 983, 986, 431
N.Y.S.2d 511, 514 (1980).
113. See N.Y. C.P.L.R. 4503(a)(1) (2006).
communication furthers future wrongdoing.114 It does not matter if your communications
with your lawyer are written or oral; both are equally privileged.115
4. Legal Correspondence and State Regulations
The following is a discussion of additional New York rules governing legal mail
restrictions. Prisoners in other states must consult their state and local regulations. The
New York Department of Correctional Services regulations state incoming legal mail should
be opened and examined only in the presence of the prisoner and will not be read by prison
authorities without written superintendent authorization.116 Outgoing privileged mail may
not be opened, inspected, or read without written superintendent authorization. The
regulations applying to city and county jails in New York have essentially the same
provisions, except they additionally state mail with attorneys may not be read without a
search warrant.117
The standards applicable to jails in New York City have recently been changed and now
distinguish between privileged and non-privileged mail. Your privileged incoming mail
cannot be opened except in your presence or pursuant to a search warrant, and your
privileged outgoing correspondence can only be opened or read pursuant to a search
warrant.118
5. Legal Correspondence and Federal Regulations
Privileged mail is referred to as “special mail” in the federal regulations governing the
Federal Bureau of Prisons.119 This includes mail from state and federal courts, attorneys, the
President and Vice-President, governors, members of the U.S. Congress, embassies and
consulates, federal law enforcement officers, and the Department of Justice (excluding the
Bureau of Prisons, but including U.S. Attorneys).120 Mail from any of these sources should be
marked as follows on the envelope: “Special Mail—Open only in the presence of the
inmate.”121 Prison authorities may still open these letters to ensure there is no contraband
and to confirm the enclosed letter does in fact qualify as “special mail.” But, they may not
read the letter. If the envelope is not marked as “Special Mail,” the correspondence will be
treated as general correspondence. 122 Mail from attorneys must be marked as described
above and must indicate the attorney’s name and the fact that he or she is an attorney.123
For more information, see the relevant federal regulations.124
As a practical matter, whether you are a state or federal prisoner, you should clearly
label envelopes of privileged correspondence: “Privileged Correspondence (Special Mail)—Do
Not Open Except in the Presence of Intended Inmate-Recipient.” You may also want to suggest
your lawyer staple shut all mail sent to you. This will let you know whether your mail had
114. In re Associated Homeowners & Businessmen’s Org., Inc., 87 Misc. 2d 67, 68, 385 N.Y.S.2d
449, 450 (Sup. Ct. N.Y. County 1976).
115. LeLong v. Siebrecht, 196 A.D. 74, 76, 187 N.Y.S. 150, 150 (2d Dept. 1921).
117. N.Y. Comp. Codes R. & Regs. tit. 9, § 7004.4 (2007). Note that this section of the regulations
distinguishes legal privileged correspondence from general privileged correspondence.
118. Minimum Standards for New York City Correctional Facilities 1-11(c)–(e), available at
http://www.nyc.gov/html/boc/downloads/pdf/minimum_standards.pdf. The amendments became
effective June 16, 2008.
119. 28 C.F.R. § 540.12 (2007).
120. 28 C.F.R. § 540.12(b) (2007).
121. 28 C.F.R. § 540.12(b) (2007).
122. 28 C.F.R. § 540.18(b) (2007).
123. 28 C.F.R. § 540.19(b) (2007).
124. 28 C.F.R. § 540 (2007).
been opened and read when you were not present, since you would be able to see where the
staple was pulled out of the envelope.
D. Internet Communication
The right of a prisoner to access the Internet, whether directly or indirectly, is a
relatively new subject, since the worldwide web has only recently become common in day-to-
day life. Therefore, there are not many cases testing to what extent a prisoner has a right to
communicate through the Internet. However, the Turner standard clearly applies to cases
involving Internet communication.125
Most, if not all, states ban prisoners from direct, unsupervised access to the Internet.126
Federal legislation prevents prisoners from access without official supervision. 127 Though
this statute has not yet been tested in court, it will likely be upheld because it is narrowly
tailored (does not ban access, just requires supervision) to a valid prison interest (security).
Some states allow certain prisoners to access the Internet under supervision for educational
and vocational courses. Similarly, the Federal Bureau of Prisons is piloting a program called
The Trust Fund Limited Inmate Computer System (TRULINCS), through which prisoners
can send electronic messages to families and attorneys without actually accessing the
Internet.128 You should look into the regulations of your own state to find out its specific
restrictions and allowances.
Prisoners commonly access the Internet indirectly, using third parties for assistance. For
instance, a prisoner might write a regular letter to a third party describing the information
he wants posted on the Internet or that he wants sent in an e-mail. The third party would
then post the information or send the e-mail, and afterwards would print any Internet
response and mail it to the prisoner.129 Though it would seem this access should be governed
by the same rules that regulate mail, some states have begun to regulate this type of indirect
Internet communication in a much stricter way. For instance, Ohio prevents any access,
direct or indirect, except for that related to educational programs.130 These statutes have not
yet been tested in the courts. But, the Ninth Circuit recently invalidated a California policy
prohibiting prisoners from receiving by mail any material downloaded from the Internet. 131
The court, applying the Turner standard, found no logical relationship between the
regulation and the legitimate concerns of security and of increased workload for the
mailroom.132 It is important to note there have not yet been enough cases on this matter to
determine exactly how various courts will handle the issue of Internet communication.
125. See Part A of this Chapter for an explanation of the Turner standard.
126. See Titia A. Holtz, Note, Reaching Out from Behind Bars: The Constitutionality of Laws
Barring Prisoners from the Internet, 67 Brook. L. Rev. 855, 859 (2002).
127. Protection of Children from Sexual Predators Act of 1998, Title VIII, sec. 801, Pub. L. No.
105-314, 112 Stat. 2974, 2990 (1998) (withholding federal funding from any federal program that allows
prisoners unsupervised access to the Internet). This statue was enacted in response to a specific case in
which a prisoner who had been granted access to participate in online classes instead used his
unsupervised time to download child pornography.
128. BOP: TRULINCS Frequently Asked Questions,
http://www.bop.gov/inmate_programs/trulincs_faq.jsp (last visited July 26, 2008) (discussing the
Bureau of Prisons’ e-mail program).
129. At least one court has held prisoners cannot be punished if third parties post information on
the Internet for them. See Canadian Coalition Against the Death Penalty v. Ryan, 269 F. Supp. 2d
1199, 1201, 1203 (D. Ariz. 2003).
130. Ohio Rev. Code Ann. § 5145.31C(1).
131. Clement v. Cal. Dep't of Corr., 364 F.3d 1148, 1152 (9th Cir. 2004).
132. Clement v. Cal. Dep't of Corr., 364 F.3d 1148, 1152 (9th Cir. 2004).
E. Receipt and Possession of Publications
The same standards that govern censorship of incoming mail apply to your right to
receive and possess books, magazines, and other reading material. Prior to 1989, Procunier v.
Martinez133 held that a publication could not be prohibited unless officials could show that
the particular publication constituted a threat to prison security or order or would negatively
affect a prisoner’s rehabilitation.134
But, in 1989, in Thornburgh v. Abbott, the U.S. Supreme Court replaced the Martinez
standard with a standard easier for prison officials to meet: the Turner standard.135 Lower
federal and state court decisions that invalidated restrictions under the Martinez standard
almost surely do not reflect current law, so you probably cannot cite to them in any court
papers. This means that you cannot rely on cases decided before 1989. See the
discussion of Martinez and Abbott in Part B of this Chapter.
1. General Standards for Receiving Publications
You have a First Amendment right to receive publications, and a publisher has a First
Amendment right to send you publications. But, restrictions of this right are valid if
reasonably related to a legitimate prison interest (the Turner standard).136 The Supreme
Court has noted deference should be paid to the “informed discretion of correction
officials.”137 This means it will be relatively easy for officials to restrict access to publications,
but censorship is not allowed just because the publication’s content is unpopular or
offensive.138
Most courts, applying the Turner standard, have upheld restrictions on receiving
incoming publications. Generally, they have held such restrictions are rationally related to
the legitimate governmental interests of security, 139 screening contraband, 140 preventing
fire,141 and promoting rehabilitation.142 In Frost v. Symington, a federal appeals court upheld
regulations withholding sexually explicit magazines from prisoners. 143 In Malik v.
(1989).
(1989) (quoting Turner v. Safley, 482 U.S. 78, 90, 107 S. Ct. 2254, 2263, 96 L. Ed. 2d 64, 80 (1982)).
474 (1989).
139. Malik v. Coughlin, 154 A.D.2d 135, 137–38, 552 N.Y.S.2d 182, 184 (3d Dept. 1990) (holding
that the inflammatory accusations contained in the publication would have incited disobedience).
140. See, e.g., Skelton v. Pri-Cor, 963 F.2d 100, 103 (6th Cir. 1991) (holding because hardback
books can be used to smuggle contraband, a ban on such books was valid). But see Prison Legal News v.
Lehman, 397 F.3d 692, 700 (9th Cir. 2005) (finding no rational relation between preventing contraband
and banning bulk mailings and catalogs).
141. Morrison v. Hall, 261 F.3d 896, 902 (9th Cir. 2001) (holding that reducing fire hazards is a
legitimate government interest but banning bulk mailings does not rationally serve that interest). Cf.
Prison Legal News v. Lehman, 397 F.3d 692, 700 (9th Cir. 2005) (finding that banning catalogs and
bulk mailings is not rationally related to decreasing the risk of fire, since limitations already exist on
the number of possessions in prisoners’ cells).
142. See, e.g., Waterman v. Farmer, 183 F.3d 208, 217–18 (3d Cir. 1999) (holding that a state
statute prohibiting pornographic materials for prisoners had a rational relationship to rehabilitation);
Dawson v. Scurr, 986 F.2d 257, 260 (8th Cir. 1993) (holding that the risk of exposure of psychologically
unfit prisoners to sexually explicit materials would interfere with their rehabilitation).
143. Frost v. Symington, 197 F.3d 348, 357–358 (9th Cir. 1999) (finding regulation promotes
security interests).
Coughlin,144 a New York state court, citing Abbott, allowed censorship of an incoming article
in which the author made critical and exaggerated allegations concerning prison medical
personnel. The censored article alleged correctional facilities used prisoners as guinea pigs
for drug testing.145 The court held the censorship did not violate the prisoner’s right to free
speech, despite the fact that the article was read at two other prisons without any
disruptions.146 The withholding of publications that contain racist statements has also been
upheld by federal courts relying on Abbott. 147 Prison officials can probably ban the
distribution of an internal prisoners’ newsletter as contrary to prison security if it contains
similar forbidden content. However, as one court held in Epps v. Smith,148 a prison cannot
ban distribution of an outside newsletter that does not contain prohibited content (in this
case, a self-described “revolutionary prisoners’ newspaper” published in California and
distributed in a New York penitentiary). The court there relied heavily on the rights of those
outside the prison to air their political views.149
Occasionally, courts will invalidate restrictions on publications because they bear no
rational relationship to the asserted government interest. In Crofton v. Roe, 150 the court
found a regulation limiting the publications that a prisoner can receive to those he ordered
and paid for directly bore no relationship to the interest of screening for contraband. In
Spellman v. Hopper, 151 the court found no rational relationship between the government
interests of security and fire prevention, and a restriction that prohibited prisoners in
administrative segregation (as opposed to in disciplinary segregation) from receiving any
subscriptions. Similarly, in Aiello v. Litscher,152 the court held a restriction on publications
that contained any nudity could be invalidated as too broad because the restriction included
scientific texts and works of art.153
A common restriction imposed by prisons is the “publishers-only” rule, which permits
“inmates to receive newspapers, magazines, and books from publishers or book clubs only.”154
The Supreme Court in Bell v. Wolfish155 held that if your prison adopts a “publishers-only”
rule for hardcover books, you have no right to receive publications directly from friends or
family, as the rule might be necessary to ensure prison security by preventing contraband
smuggling. Bell only dealt with hardcover books, so how far its reasoning can extend is
unclear. Lower courts have extended the “publishers-only” rule to other publications like
magazines and soft-cover books because courts accept the argument by prison officials that
144. Malik v. Coughlin, 154 A.D.2d 135, 552 N.Y.S.2d 182 (3d Dept 1990).
145. Malik v. Coughlin, 154 A.D.2d 135, 136, 552 N.Y.S.2d 182, 183 (3d Dept 1990).
146. Malik v. Coughlin, 154 A.D.2d 135, 138–39, 552 N.Y.S.2d 182, 184 (3d Dept 1990).
147. See, e.g., Thomas v. U.S. Sec’y of Def., 730 F. Supp. 362, 364–65 (D. Kan. 1990); Chriceol v.
Phillips, 169 F.3d 313, 315–17 (5th Cir. 1999); Winburn v. Bologna, 979 F. Supp. 531, 534–35 (W.D.
Mich. 1997).
148. Epps v. Smith, 112 Misc. 2d 724, 447 N.Y.S.2d 577 (Sup. Ct. Wyoming County 1981).
149. See Epps v. Smith, 112 Misc. 2d 724, 728–29, 447 N.Y.S.2d 577, 580–81 (Sup. Ct. Wyoming
County 1981). But see Nasir v. Morgan, 350 F.3d 366, 375–76 (3d Cir. 2003) (upholding ban on
correspondence between prisoners and former prisoners under Turner balancing test, despite 1st
Amendment interests of the non-prisoner).
150. Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999).
151. Spellman v. Hopper, 95 F. Supp. 2d 1267, 1282 (M.D. Ala. 1999) (distinguishing from cases
upholding subscription bans for prisoners in disciplinary segregation, since their lack of access to
publications could provide a disincentive to commit infractions).
152. Aiello v. Litscher, 104 F. Supp. 2d 1068, 1082 (W.D. Wis. 2000).
153. But see Mauro v. Arpaio, 188 F.3d 1054, 1060 n.4 (9th Cir. 1999) (upholding restriction on
sexually explicit materials, even if it includes art and science texts, as not unconstitutionally
overbroad).
154. See, e.g., Ward v. Washtenaw County Sheriff’s Dep’t, 881 F.2d 325, 326 (6th Cir. 1989).
155. Bell v. Wolfish, 441 U.S. 520, 550–52, 99 S. Ct. 1861, 1880–81, 60 L. Ed. 2d 447, 476–77
(1979).
requiring prisoners to receive such materials directly from the publisher is a minor
inconvenience, compared to the greater inconvenience of searching all materials not sent in
factory-sealed packages.156 But, courts have found some restrictions on your ability to receive
publications are not rational and have struck them down. For example, one circuit court has
stated prisons may not require books ordered from approved vendors to have special shipping
labels. 157 Also, some courts have held prisons cannot place certain restrictions on bulk
mail.158 In a recent California case, a federal court held that a policy of not allowing a vendor
from sending free, religious materials was not rational.159 Finally, banning gift subscriptions
may not be rational.160
In addition, bans on certain publications, beyond sexually explicit ones, can be found
reasonably related to rehabilitation interests. In Beard v. Banks, the Supreme Court upheld
a Pennsylvania regulation denying all newspapers and magazines to prisoners held in
segregation and temporarily classified as particularly dangerous or unmanageable. 161
Applying the Turner test, the Court found that such a restriction was reasonably related to
the prison’s interest in promoting good behavior.162 It was important in this case that the
prisoners’ placement in segregation was not permanent, and that they could earn back their
privilege to possess publications. 163 One of the Supreme Court justices, Justice Stevens,
dissented (disagreed with the outcome) in this case, however, as he felt the rationale of
rehabilitation was too broad and could theoretically be applied to the taking away of any
right or privilege in prison.164 As this case is relatively recent, it is important to note that
there is some disagreement on the issue, even within the Supreme Court.
You cannot be punished for having literature that is prohibited if it is prohibited by an
unconstitutional or illegal rule. If you are punished for having this literature, Chapter 18 of
the JLM, “Your Rights at Prison Disciplinary Proceedings,” should help you understand your
rights during prison disciplinary proceedings.
Finally, you should remember state law, and state and federal regulations, might give
you additional protections regarding access to literature. For instance, federal regulations
allow prisoners in minimum- and low-security facilities to receive soft-cover books from any
156 . See Avery v. Powell, 806 F. Supp. 7, 11 (D.N.H. 1992) (finding a prison regulation
prohibiting prisoners from receiving blank greeting cards, unless sent from a vendor, was reasonably
related to a legitimate interest in maintaining prison security, as greeting cards received from non-
vendors would necessitate time-consuming searches for contraband).
157. Ashker v. Cal. Dep’t of Corr., 350 F.3d 917, 924 (9th Cir. 2003).
158. Morrison v. Hall, 261 F.3d 896, 905 (9th Cir. 2001) (holding prison cannot ban prisoners from
receiving subscriptions sent by bulk, third, or fourth class mail); Prison Legal News v. Lehman, 397
F.3d 692, 701 (9th Cir. 2005) (finding prison may not prohibit prisoners from receiving non-subscription
bulk mail and catalogs).
159. Jesus Christ Prison Ministry v. Cal. Dep’t of Corr., 456 F. Supp. 2d 1188, 1201–02 (E.D. Cal.
2006).
160. Prison Legal News v. Werholtz, No. 02-4054-MLB, 2007 U.S. Dist. LEXIS 73629, at *13 (D.
Kan. Oct. 1, 2007) (finding a Kansas policy of banning gift subscriptions was not rational and therefore
unconstitutional).
161. Beard v. Banks, 548 U.S. 521, 525, 126 S. Ct. 2572, 2576–77, 165 L. Ed. 2d 697, 702–03
(2006).
162. Beard v. Banks, 548 U.S. 521, 533, 126 S. Ct. 2572, 2580, 165 L. Ed. 2d 697, 707 (2006)
(“[W]ithholding such privileges ‘is a proper and even necessary management technique to induce
compliance with the rules of inmate behavior, especially for high-security prisoners who have few other
privileges to lose.’” (citing Overton v. Bazzetta, 539 U.S. 126, 134, 123 S. Ct. 2162, 2168–69, 156 L. Ed.
2d 162, 171 (2003)).
163. Beard v. Banks, 548 U.S. 521, 532, 126 S. Ct. 2572, 2579–80, 165 L. Ed. 2d 697, 707 (2006).
164. Beard v. Banks, 548 U.S. 521, 547–48, 126 S. Ct. 2572, 2588–89, 165 L. Ed. 2d 697, 716–17
(2006) (Stevens, J., dissenting).
source, though they can receive hardcover books only from publishers. 165 Prisoners in
medium- or high-security facilities must receive all books from publishers.166 In addition,
facility administrators have the ability to reject publications if they contain content, like
depictions of violence and sexually explicit material (discussed in more detail below), that
would be a security risk.167 So, you should research additional regulations or laws that might
apply to you.
2. Receiving Sexually Explicit Materials
Some regulations specifically prohibit sexually explicit materials. Courts have upheld
such regulations based on two different government interests: (1) promoting rehabilitation
and (2) protecting prison security. In Ballance v. Virginia, the court upheld the confiscation
of photographs of partially nude children from a convicted pedophile, reasoning that “due ...
to the prison’s interest in rehabilitating this disease,” prison officials acted reasonably in
confiscating the photographs.168 Similarly, in Dawson v. Scurr,169 the court held restrictions
on sexually explicit materials were justified because exposure of psychologically unfit
prisoners to such materials would interfere with their rehabilitation.
The Thornburgh v. Abbott170 rule gives prison officials discretion to ban sexually explicit
material if officials reasonably believe the material poses a threat to prison order. The reason
for giving officials discretion is these materials may encourage violence by identifying a
particular prisoner as homosexual, which might invite violence toward him, 171 or by
encouraging violence through depicting it.172 At least one federal circuit has held a ban on
sexually explicit material is reasonable for preventing sexual harassment of female staff.173
But, some courts have struck down blanket bans on sexually explicit material and instead
require the prison to show that giving a specific publication to prisoners will harm their
rehabilitation.174
Even if the prison decides to ban sexually explicit materials, some courts have held both
the prisoner and also the publisher are entitled to notice of the ban and an opportunity to
respond.175 The reason for granting notice to publishers is they have a First Amendment
right to communicate with individual prisoners if they so choose.176 Additionally, at least one
165. 28 C.F.R. § 540.71(a) (2007).

166. 28 C.F.R. § 540.71(a) (2007).
167. For a complete explanation of content that can amount to a security risk, see 28 C.F.R. §
540.71(b) (2007).
168. Ballance v. Virginia, 130 F. Supp. 2d 754, 760 (W.D. Va. 2000).
169. Dawson v. Scurr, 986 F.2d 257, 261–62 (8th Cir. 1993).
171. Thornburgh v. Abbott, 490 U.S. 401, 412–13, 109 S. Ct. 1874, 1881, 104 L. Ed. 2d 459, 472–
73 (1989).
(1989).
173. Mauro v. Arpaio, 188 F.3d 1054, 1059–60 (9th Cir. 1999).
174. See Ramirez v. Pugh, 379 F.3d 122, 129 (3d Cir. 2004) (finding that “the connection between
the [restrictive statute] and the government’s rehabilitative interest” is not “obvious upon consideration
of the entire federal inmate population, including those prisoners not incarcerated for sex-related
crimes”); Guajardo v. Estelle, 580 F.2d 748, 762 (5th Cir. 1978) (“Before delivery of a publication may
be refused, prison administrators must review the particular issue of the publication in question and
make a specific, factual determination that the publication is detrimental to prisoner rehabilitation
because it would encourage deviate, criminal sexual behavior.”).
175. Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004) (finding that publishers as well as
prisoners have a right to be notified when inmate subscribers are prohibited from receiving the
publishers’ publications); Montcalm Publ’g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir. 1996) (same).
176. Montcalm Publ’g Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996).
court has held that prisoners have a right to appeal censorship decisions to someone other
than the official who ordered the censorship.177
In Thornburgh v. Abbott, one of the regulations at issue allowed the warden to ban
homosexually explicit material depicting the same gender as the prison population.178 The
Supreme Court found the rule valid. In doing so, the Court upheld the regulation allowing
the warden to permit heterosexual material and reject homosexual material. The regulation
also directed non-explicit homosexual material to be permitted. 179 The Court reasoned,
“[P]risoners may observe particular material in the possession of a fellow prisoner, draw
inferences about their fellow [prisoner]’s ... sexual orientation ... and cause disorder by acting
accordingly ... [I]t is essential that prison officials be given broad discretion to prevent such
disorder.”180
“Disorder” presumably means sexual or violent assault. The Court did not explain why
explicitly homosexual material will cause disorder or violence. Others have offered at least
two theories: identification and cueing. The identification theory holds that possession of
explicit homosexual material will identify that prisoner as gay and make that prisoner a
target for assault.181 The cueing theory reasons dissemination of such material in prison will
“lead inmates to believe that homosexual activity is condoned there.”182
What this means for the prisoner wishing to receive sexually explicit homosexual
material is unclear because the discretion given to officials in Thornburgh v. Abbott may
result in many different decisions and regulations.183 At least one court has stated in dicta
(language not critical to the case’s holding and therefore not binding on later courts) that
because exposure of one’s sexual identity in a maximum-security prison is more likely to lead
to assault by others than in a minimum-security facility, prison security concerns are more
legitimate in a maximum-security facility. 184 Such reasoning could mean that incoming
177. Krug v. Lutz, 329 F.3d 692, 699–700 (9th Cir. 2003).
178. The Program Statement No. 5266.5, which added to the regulation at issue, 28 C.F.R. §
540.71(b)(7) (2007), allowed the warden to reject the following types of sexually explicit material: (1)
homosexual (of the same sex as the prison population), (2) sado-masochistic, (3) bestial, or (4) involving
children. Thornburgh v. Abbott, 490 U.S. 401, 405 n.6, 109 S. Ct. 1874, 1877 n.6, 104 L. Ed. 2d 459, 468
n.6 (1989).
179. Thornburgh v. Abbott, 490 U.S. 401, 405 n.6, 109 S. Ct. 1874, 1877 n.6, 104 L. Ed. 2d 459,
468 n.6 (1989) (citing Program Statement supplementing 28 C.F.R. § 540.71(b)(7) (2007)).
73 (1989) (emphasis added).
181. Clair A. Cripe & Ira Kirschbaum, Prisons as Censors, in Prisoners and the Law 3–14 (Ira P.
Robbins, ed. 2005).
182. Clair A. Cripe & Ira Kirschbaum, Prisons as Censors, in Prisoners and the Law 3–14 (Ira P.
Robbins, ed. 2005).
475 n.15 (1989) (noting that “the exercise of discretion called for by these regulations may produce
seeming ‘inconsistencies,’” but that this does not necessarily mean “arbitrariness or irrationality”).
Compare Inosencio v. Johnson, 547 F. Supp. 130, 135–36 (E.D. Mich. 1982), aff’d sub nom. Brown v.
Johnson, 743 F.2d 408 (6th Cir. 1984) (holding the prohibition of a homosexual worship service to be
constitutional based on the reasoning that prisoners attending such services would be exposing
themselves to attacks from other prisoners) with Lipp v. Procunier, 395 F. Supp. 871, 877–78 (N.D. Cal.
1975) (holding the prohibition of homosexual worship services to be a possible violation of prisoners’ 1st
Amendment right to religious freedom and requiring prison officials to present findings of fact that
clearly supported their assertion that such a service would present a danger to the prison population).
The Second Circuit has not considered the issue of sexually explicit homosexual materials in prisons,
but it has upheld a regulation banning prisoners from keeping sexually explicit photos of their wives
and girlfriends on the grounds that such photos create violence among prisoners due to their personal
nature. Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). Presumably the court would extend this
holding to sexually explicit photos of gay partners as well.
184. See Inosencio v. Johnson, 547 F. Supp. 130, 135 (E.D. Mich. 1982), aff’d sub nom. Brown v.
Johnson, 743 F.2d 408 (6th Cir. 1984) (approvingly citing testimony by the director of the California
sexually explicit homosexual material may be denied at maximum-security, but not at
minimum-security, facilities.
As a general rule, gay and lesbian prisoners may seek to obtain non-sexually explicit
homosexual material through the mail. Federal regulations seem to allow the wholesale
admission of these materials into the federal prison environment. 185 State prisoners who
desire such material, however, may encounter the same arguments used by prison officials to
ban sexually explicit homosexual materials. For instance, one court reasoned by an
identification theory in Harper v. Wallingford186 to find that a prisoner’s First Amendment
rights were not violated when non-explicit mail promoting consensual sexual relationships
between adult men and juvenile males was withheld from him. The court found legitimate
the prison officials’ concern that the material, when seen by other prisoners, would make the
prisoner a target as a homosexual and would thus make him vulnerable to assault. However,
because one of the main arguments used by prison officials to legitimize their security
interests in these restrictions is one of identification, such arguments might fail to persuade
courts where it is clear that the prisoner is already known to be gay.187 For more information
on gay, lesbian, bisexual, and transgender issues, see JLM Chapter 30.
Courts have also upheld restrictions on explicit heterosexual materials, 188 including
sexually explicit photographs of prisoners’ wives or girlfriends.189 While these restrictions are
almost always found to be constitutional, a few courts have scrutinized such regulations
much more closely. In Aiello v. Litscher,190 the court held a regulation banning all written or
visual materials containing nudity or sexual behavior was too vague because it would also
ban important works of art and literature. It noted that a jury could find that the prohibition
of such works is not reasonably related to legitimate penological interests. It also concluded
that there was no evidence that such materials threaten security or rehabilitation.191
F. Access to the News Media
You may want to publicize your case by attracting the media’s attention. The Supreme
Court has held a reasonable and effective means of communication between prisoners and
the media must exist.192 But, prisons have a legitimate security interest in limiting access to
outside visitors, including the press.193 The court noted limiting or prohibiting face-to-face
Department of Corrections that there was good reason to deny prisoners the ability to attend
homosexual church service in a maximum-security prison while allowing those in a medium-security
facility to attend).
185. See Thornburgh v. Abbott, 490 U.S. 401, 404, 109 S. Ct. 1874, 1877, 104 L. Ed. 2d 459, 467
(1989) (noting that publications must be “detrimental to the security, good order, or discipline of the
institution or facilitate criminal activity” before their access can be restricted).
186. Harper v. Wallingford, 877 F.2d 728, 733 (9th Cir. 1989).
187. See Espinoza v. Wilson, 814 F.2d 1093, 1098–99 (6th Cir. 1987) (finding protecting the
sexual identity of the prisoners was not a valid reason for restricting access to homosexual publications
since the prisoners were already open about being gay but finding in favor of the warden because he
stated other legitimate reasons for restricting access).
188. Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999) (upholding restrictions on explicit
heterosexual materials as reasonably related to the goal of preventing sexual harassment of female
prison guards).
189. Giano v. Senkowski, 54 F.3d 1050, 1055–56 (2d Cir. 1995) (holding the regulation was
rationally related to the prevention of prisoner violence. The court pointed out that other avenues are
available for reinforcing emotional bonds, such as non-nude photographs or romantic letters, and for
satisfying the right to graphic sexual imagery, such as commercially produced erotica or sexually
graphic letters).
190. Aiello v. Litscher, 104 F. Supp 2d 1068 (W.D. Wis. 2000).
191. Aiello v. Litscher, 104 F. Supp 2d 1068, 1079–81 (W.D. Wis. 2000).
192. Pell v. Procunier, 417 U.S. 817, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974).
193. Pell v. Procunier, 417 U.S. 817, 826, 94 S. Ct. 2800, 2806, 41 L. Ed. 2d 495, 503–04 (1974);
interviews with the press does not violate the First Amendment as long as prisoners can still
communicate with the press through writing or those allowed to visit. But, in a recent case, a
court held prison officials had failed to provide a rational basis for their blanket policy
banning federal death row prisoners from giving face-to-face interviews and allowed a
prisoner’s suit to go forward.194 In Houchins v. KQED, the Supreme Court repeated that
freedom of the press does not grant the media special access to prisons.195 As such, physical
access by the news media (through visitation, tours, photographs, etc.) can be restricted just
as physical access by the public based on security interests can.
Federal regulations governing prisoners held by the Federal Bureau of Prisons provide
that media correspondence be treated as if it were privileged.196 The rules discussed in Part
C of this Chapter for privileged correspondence therefore apply to letters to and from the
media for those prisoners. But, a prisoner may not receive pay for any correspondence with
the media, act as a reporter, or publish under a byline.197 This restriction on publishing
under a byline was recently successfully challenged in a federal district court in Jordan v.
Pugh.198 The court found the absolute restriction was too broad for the stated interest of
maintaining prison security, especially considering prisoners were allowed other publishing
opportunities.199 As this is a recent development, you should watch to see if other courts
agree.
The warden of a federal prison has a duty to provide information to the media about
certain events that take place in the prison. These include deaths, inside escapes, and
institutional emergencies. 200 The warden must also provide basic information about a
prisoner that is a matter of public record if it is requested by the media, unless the
information is confidential.201
G. Visitation
Convicted prisoners’ constitutional rights to visitation may be severely restricted,
although pretrial detainees are almost certainly allowed reasonable visitation rights,202 since
lack of access to visitors like attorneys can infringe the right to due process and counsel.203 In
see also Saxbe v. Washington Post Co., 417 U.S. 843, 850, 94 S. Ct. 2811, 2815, 41 L. Ed. 2d 514, 519–20
(1974) (Pell’s companion case).
194. Hammer v. Ashcroft, 512 F.3d 961, 968–69 (7th Cir. 2008) (finding the defendants’ offered
reasons were unacceptable excuses and therefore denying summary judgment and allowing the
prisoner to proceed with his 1st Amendment claim), vacated and reh’g en banc granted, Hammer v.
Ashcroft, No. 06-1750, 2008 U.S. App. LEXIS 18436, at *1 (7th Cir. Aug. 19, 2008). Because this case
was in the process of being litigated when the JLM went to press, you should make sure to check your
library for updates before citing it.
195. Houchins v. KQED, 438 U.S. 1, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978).
196. 28 C.F.R. § 540.2(c) (2007).
197. 28 C.F.R. § 540.20(b) (2007).
198. Jordan v. Pugh, 504 F. Supp. 2d 1109 (D. Colo. 2007).
199. Jordan v. Pugh, 504 F. Supp. 2d 1109, 1124–26 (D. Colo. 2007) (reaching the same outcome
under both the Turner and Martinez standards).
200. 28 C.F.R. § 540.65(a) (2007).
201. 28 C.F.R. § 540.65(b) (2007).
202. See Jones v. Diamond, 594 F.2d 997, 1013–14 (5th Cir. 1979), on reh’g, 636 F.2d 1364; see
also Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 465, 109 S. Ct. 1904, 1911, 104 L. Ed. 2d 506, 518
(1989) (holding that state regulations setting forth categories of visitors who might be excluded from
visitation did not implicate a prisoner’s liberty interest in receiving visitors under the Due Process
Clause of the 14th Amendment).
203. See Procunier v. Martinez, 416 U.S. 396, 419, 94 S. Ct. 1800, 1814, 40 L. Ed. 2d 224, 243
(1974) (“[I]nmates must have a reasonable opportunity to seek and receive the assistance of attorneys.
Regulations and practices that unjustifiably obstruct the availability of professional representation or
other aspects of the right of access to the courts are invalid.”).
Overton v. Bazzetta, the Supreme Court did not state the scope of a prisoner’s constitutional
right to freedom of association, instead finding that a regulation restricting visits was
reasonably related to the penological interest of security and therefore not a violation of the
prisoner’s constitutional rights.204 Regardless of the type of prisoner, visitation rights may be
restricted for considerations of institutional administration, security, and rehabilitation.205
Prison officials may regulate the time, place, and manner of visits, 206 though such
regulations, at least regarding pretrial detainees, must be reasonable.207 Prison officials may
also restrict some of the rights of visitors. 208 The Turner reasonableness standard also
applies to visitation, and so courts can invalidate unreasonable restrictions.209 Contact visits
are not constitutionally required for pretrial detainees or for prisoners.210
The decision as to who may visit is largely up to prison officials’ discretion. Visit lists are
lawful and often used.211 In Overton, for instance, the Supreme Court upheld a regulation
requiring an approved visitor list as reasonably related to security interests.212 Courts have
also upheld rules restricting visits to those who have a personal or professional relationship
with the prisoner and rules denying visits by ex-convicts 213 and parties suspected of
smuggling contraband.214 The Supreme Court upheld similar regulations in Overton.215 Visits
by immediate family will generally receive greater protection. In addition, regulations
204. Overton v. Bazzetta, 539 U.S. 126, 131–32, 123 S. Ct. 2162, 2167, 156 L. Ed. 2d 162, 170
(2003) (“We need not attempt to explore or define the asserted right of association at any length or
determine the extent to which it survives incarceration because the challenged regulations bear a
rational relation to legitimate penological interests. This suffices to sustain the regulation in
question.”).
205. See Overton v. Bazzetta, 539 U.S. 126, 129, 123 S. Ct. 2162, 2166, 156 L. Ed. 2d 162, 168
(2003) (finding that rehabilitation, maintenance of basic order, and prevention of violence are
legitimate objectives of the correctional system); Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800,
2804, 41 L. Ed. 2d 495, 501 (1974) (finding that a prisoner retains 1st Amendment rights that are not
inconsistent with legitimate penological objectives).
206. See Martin v. Tyson, 845 F.2d 1451, 1455–56 (7th Cir. 1988) (holding that legitimate safety
concerns and other practical constraints justified restrictions imposed on pretrial detainees).
207. See Martin v. Tyson, 845 F.2d 1451, 1458 (7th Cir. 1988) (per curiam) (upholding policy
limiting pre-trial detainee's telephone access to every other day).
208. See Gray v. Bruce, 26 Fed. Appx. 819, 823–24 (10th Cir. 2001) (holding that subjecting a
prisoner’s wife to an “ion spectrometer test,” which tests for the presence of illegal drugs, was not a per
se violation of her 4th Amendment privacy rights; however, the court ultimately held that she had
stated enough facts to show that the particular search method applied to her could be unconstitutional
because of its unreliability).
209. Overton v. Bazzetta, 539 U.S. 126, 132, 123 S. Ct. 2162, 2168, 156 L. Ed. 2d 162, 170 (2003)
(applying Turner test to Michigan regulations restricting visits).
210. See Block v. Rutherford, 468 U.S. 576, 589, 104 S. Ct. 3227, 3234, 82 L. Ed. 2d 438, 449
(1984) (holding contact visits are a privilege, not a right).
211. See Pell v. Procunier, 417 U.S. 817, 826–28, 94 S. Ct. 2800, 2806–07, 41 L. Ed. 2d 495, 503–
05 (1974) (holding that placing restrictions on visitations is lawful).
212. Overton v. Bazzetta, 539 U.S. 126, 129, 123 S. Ct. 2162, 2166 156 L. Ed. 2d 162, 168 (2003).
213. See Farmer v. Loving, 392 F. Supp. 27, 31 (W.D. Va. 1975) (allowing ban on visitation by ex-
prisoners).
214. See Robinson v. Palmer, 841 F.2d 1151, 1156–57 (D.C. Cir. 1988) (finding a ban on visits by
prisoner’s wife, who was caught smuggling marijuana into prison, was justified by prison’s interest in
preventing drug smuggling and because prisoner had other ways to communicate with his wife);
Thorne v. Jones, 765 F.2d 1270, 1275 (5th Cir. 985) (finding a ban on visits from prisoner’s mother, who
was suspected of smuggling drugs and refused to submit to a strip search, was justified by security
interests); Rowland v. Wolff, 336 F. Supp. 257, 260 (Neb. 1971) (holding the interest of the state in
preventing the introduction of lethal weapons outweighs a prisoner’s interest in being visited by his
sisters).
215. Overton v. Bazzetta, 539 U.S. 126, 133–34, 123 S. Ct. 2162, 2168, 156 L. Ed. 2d 162, 171
(2003).
restricting the visits of minor children who are not closely related to the prisoner are
routinely upheld as reasonably related to interests both in prison security and in protecting
the children.216
Visitation restrictions have also been found to be reasonably related to rehabilitation
interests. In these cases, the restrictions usually take away visitation privileges from
prisoners who have broken institutional rules. In Overton, the Supreme Court found a
Michigan regulation that prevented prisoners with two substance abuse disciplinary
violations from receiving visitors (except legal and religious) was reasonably related to prison
interests in rehabilitation.217 But, it was important in this case that the visitation ban was
not permanent but could be reinstated for good behavior, and that the prisoners had other
ways to communicate with the persons not allowed to visit.218 A federal court in New York
similarly held a prisoner’s suspension from the Family Reunion Program did not violate the
Constitution.219 If the regulation in your case differs from in these cases (for example, if it is
permanent), you may be able to challenge it in court. But, be careful of filing a claim that
might be dismissed with prejudice, since it would become a strike under the Prison Litigation
Reform Act (“PLRA”).220 JLM Chapter 14 has more information on the PLRA.
Gay and lesbian prisoners desiring visitation from their partners should note the case
Doe v. Sparks.221 There, a lesbian prisoner challenged officials’ refusal to allow visits from
her lover. Prison rules only permitted visits between heterosexual prisoners and their
opposite sex partners. The court found the visitation policy, supposedly established to meet
security and disciplinary needs, had a rational relationship to those needs, but other prison
policies undercut this rational relationship. 222 Thus, the court held the policy
unconstitutional. In its opinion, the court found the connection between the prison policy and
the asserted goals of security and discipline “so remote as to be arbitrary.”223 Whitmire v.
Arizona224 is another helpful decision for gay and lesbian couples. There, the court reversed a
decision dismissing a gay couple’s equal protection challenge to an Arizona policy prohibiting
same-sex kissing and hugging but allowing heterosexuals to embrace during visits, finding
this policy was not rationally related to prison safety.225
Because Turner reasonableness governs visitation, the availability of other means of
communicating with those who cannot visit is important.226 For instance, prisoners can still
communicate through telephone calls and letters with those restricted from visiting.227 In
216. Overton v. Bazzetta, 539 U.S. 126, 133, 123 S. Ct. 2162, 2168, 156 L. Ed. 2d 162, 170–71
(2003). See also Wirsching v. Colorado, 360 F.3d 1191, 1199–1200 (10th Cir. 2004) (upholding rule
barring sex-offender prisoner from visits with his minor daughter as reasonably related to interests in
both rehabilitation and protecting the child).
217. Overton v. Bazzetta, 539 U.S. 126, 134, 123 S. Ct. 2162, 2168–69, 156 L. Ed. 2d 162, 171–72
(2003).
218. Overton v. Bazzetta, 539 U.S. 126, 134, 135, 123 S. Ct. 2162, 2168–69, 156 L. Ed. 2d 162,
171–72 (2003).
219. See Giano v. Goord, 9 F. Supp. 2d 235, 241 (W.D.N.Y. 1998) (holding that prisoner has no
right to visitation even if removal from the program was based on a faulty urine test).
220. Giano v. Goord, 9 F. Supp. 2d 235, 242 (W.D.N.Y. 1998).
221. Doe v. Sparks, 733 F. Supp. 227 (W.D. Pa. 1990).
222. Doe v. Sparks, 733 F. Supp. 227, 233 (W.D. Pa. 1990). Policies limiting the freedoms of gay
prisoners often focus, in the case of the prison’s security interests, on the danger of the gay prisoner
being identified as such and thus becoming a target for sexual or non-sexual assault. As for the prison’s
disciplinary interests, the usual rationale is the prison runs the risk of appearing to condone gay
relations in prison if it does not limit some of these prisoners’ freedoms.
223. Doe v. Sparks, 733 F. Supp. 227, 234 (W.D. Pa. 1990).
224. Whitmire v. Arizona, 298 F.3d 1134, (9th Cir. 2002).
225. Whitmire v. Arizona, 298 F.3d 1134, 1135–37 (9th Cir. 2002).
227. See, e.g., Overton v. Bazzetta, 539 U.S. 126, 135, 123 S. Ct. 2162, 2169, 156 L. Ed. 2d 162,
addition, Turner says courts should consider the burden of accommodating rights, like
security and personnel costs of allowing many visitors. 228
Keep in mind that federal, state, and local regulations may give you additional visitation
rights that courts have not found constitutionally mandated. Prisoners in facilities run by
the New York Department of Correctional Services should consult the Family Handbook for
visitation restrictions. Most visitors do not need special permission, but the Superintendent
must approve in advance in writing visitors under parole or probation, with past or pending
criminal histories, or who are also Department employees or volunteers. 229 The
Superintendent also has the power to deny visitation as necessary for security or other
interests.230
H. Using Telephones
While some courts have held prisoners have a First Amendment right to telephone
access,231 some refuse to hold prisoners have such a right.232 Even courts recognizing a right
to telephone access say the right can be severely limited.233 Restrictions on phone use are
also governed by Turner reasonableness. While courts point to prison security as a valid
reason for restricting phone use,234 they also reason that other ways of communicating, like
letter-writing and visits, limit the need for telephones. 235 So, unless telephone access is
eliminated entirely or impedes attorney representation,236 courts usually uphold phone use
restrictions.
172 (2003) (finding prisoners have other means of communication and noting these alternatives need
not be ideal, just available).
228. See, e.g., Overton v. Bazzetta, 539 U.S. 126, 135, 123 S. Ct. 2162, 2169, 156 L. Ed. 2d 162,
172 (2003) (finding that accommodating visitation would have a significant negative impact on
financial resources and visitor safety).
229 . State of New York, Department of Correctional Services, Handbook for Families and
Friends of New York State DOCS Inmates, 8 (2007).
230 . State of New York, Department of Correctional Services, Handbook for Families and
Friends of New York State DOCS Inmates, 9 (2007).
231. Johnson v. California, 207 F.3d 650, 656 (9th Cir. 1999); Keenan v. Hall, 83 F.3d 1083, 1092
(9th Cir. 1996); Strandberg v. Helena, 791 F.2d 744, 747 (9th Cir. 1986); Johnson v. Galli, 596 F. Supp.
135, 138 (D.C. Nev. 1984); Moore v. Janing, 427 F. Supp. 567, 576 (D.C. Neb. 1976); Carter v.
O'Sullivan, 924 F. Supp. 903, 909 (C.D. Ill. 1996); see also Walton v. N.Y. State Dep’t of Corr. Servs., 18
Misc. 3d 775, 849 N.Y.S.2d 395 (Sup. Ct. Albany County 2007) (on remand from New York Court of
Appeals, dismissing claim that rates under a contract between DOCS and MCI violated families’ and
others’ rights under New York constitution). Many good decisions involve pretrial detainees’ phone
access rights. See Johnson-El v. Schoemehl, 878 F.2d 1043, 1051–52 (8th Cir. 1989) (finding a policy
limiting pretrial detainees to one call to their lawyers every two weeks “patently inadequate” to secure
assistance of counsel); Johnson v. Brelje, 701 F.2d 1201, 1207–08 (7th Cir. 1983) (finding limiting
pretrial detainee to two 10-minute calls a week and no incoming calls violated right to court access).
Check if your state has enacted laws granting prisoners rights to phone access.
232. United States v. Footman, 215 F.3d 145, 155 (1st Cir. 2000); Pitsley v. Ricks, No. 96-CV-
372 (NAM/DRH), 1999 U.S. Dist. LEXIS 21612, at *10 (N.D.N.Y. Sept. 3, 1999) (unpublished).
233. See, e.g., Carter v. O'Sullivan, 924 F. Supp. 903, 909 (C.D. Ill. 1996).
234. United States v. Felipe, 148 F.3d 101, 110 (2d Cir. 1998); Gilday v. Dubois, 124 F.3d 277,
293–94 (1st Cir. 1997); Carter v. O’Sullivan, 924 F. Supp. 903, 909 (C.D. Ill. 1996); Wooden v. Norris,
637 F. Supp. 543, 555 (M.D. Tenn. 1986); Hutchings v. Corum, 501 F. Supp. 1276, 1296 (W.D. Mo.
1980).
235. United States v. Lentz, 419 F. Supp. 2d 820, 835–36 (E.D. Va. 2005); Bellamy v. McMickens,
692 F. Supp. 205, 214 (S.D.N.Y. 1988); Pino v. Dalsheim, 558 F. Supp. 673, 675 (S.D.N.Y. 1983);
Wooden v. Norris, 637 F. Supp. 543, 554 (M.D. Tenn. 1986).
236. Johnson-El v. Schoemehl, 878 F.2d 1043, 1051–52 (8th Cir. 1989) (finding a policy limiting
pretrial detainees to one call to their attorney every two weeks “patently inadequate” to secure
assistance of counsel); McClendon v. City of Albuquerque, 272 F.Supp.2d 1250, 1258 (D.N.M. 2003)
(finding restrictions including a ban on attorney visits and a five-minute limit on attorney phone calls
In Johnson v. California, 237 the court said prisoners were not entitled to a specific
telephone rate and found it valid to charge prisoners higher rates than non-prisoners. In
Shoot v. Roop,238 the court upheld a rule requiring all calls to be operator-assisted and collect
(preventing prisoners from calling toll-free numbers). In Washington v. Reno,239 the court
upheld a regulation restricting calls to persons on an approved list. Courts have also upheld
restrictions on the number of calls prisoners can make.240
Many courts have held prisons must provide for unmonitored phone calls between a
prisoner and his attorney, so long as it is arranged in advance. 241 Without advance
arrangement, these calls can be monitored like any other call. Call monitoring in the absence
of other arrangements does not violate prisoners’ Fourth Amendment privacy rights for two
reasons. First, there is no reasonable expectation of privacy in outbound calls from prison.242
Second, prisoners are considered to have consented to monitoring when they receive notice of
the surveillance, either by signs near the telephones or informational handbooks.243 Courts
also note prisoners have the alternative of corresponding with their lawyers confidentially
through the mail.244
I. Conclusion
Limitations on your right to communicate with the outside world, as discussed in this
Chapter, may be among the most frustrating restrictions you have to face. In most
circumstances, prison authorities have great discretion to restrict your right to communicate
based on the way they think the exercise of your right affects penological interests. If you feel
the discretion prison officials exercise is not reasonably related to a legitimate prison
interest, and as such violates your constitutional rights, you may want to challenge the
restriction or its application to you, but you should be careful that your claim does not appear
frivolous.245
“would ‘unjustifiably obstruct the availability of professional representation’”).

237. Johnson v. California, 207 F.3d 650, 656 (9th Cir. 1999), rev’d on other grounds, Johnson v.
California, 543 U.S. 499 (2005).
238. Shoot v. Roop, No. 92-35532, 1993 U.S. App. LEXIS 5890, at *5–6 (9th Cir. Mar. 16, 1993)
(unpublished); see also Carter v. O'Sullivan, 924 F. Supp. 903, 906 (C.D. Ill. 1996) (upholding collect
call system requiring prisoner to provide officials with a list of up to 30 individuals the prisoner wished
to call); Moore v. Janing, 427 F. Supp. 567, 576–77 (D. Neb. 1976) (upholding a rule limiting a prisoner
to three five-minute calls per week during stated hours).
239. Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994). See also Pope v. Hightower, 101
F.3d 1382, 1385 (11th Cir. 1996) (upholding a restriction limiting number of persons a prisoner can call
to ten).
240. Robbins v. South, 595 F. Supp. 785, 789 (D. Mont. 1984) (upholding a restriction of one call
per week); Moore v. Janing, 427 F. Supp. 567, 576–77 (D. Neb. 1976) (upholding a restriction of three
five-minute calls per week).
241. See Tucker v. Randall, 948 F.2d 388, 391 (7th Cir. 1991) (“[O]fficials may tape a prisoner's
telephone conversations with an attorney only if such taping does not substantially affect the … right
to confer with counsel.”); Martin v. Tyson, 845 F.2d 1451, 1458 (5th Cir. 1988) (allowing unmonitored
line for legal and monitored for other calls).
242. United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir. 1996).
243. United States v. Workman, 80 F.3d 688, 693–94 (2d Cir. 1996); see also United States v.
Verdin-Garcia, 516 F.3d 884, 894 (10th Cir. 2008) (“A prisoner's voluntarily made choice ... to use a
telephone he knows may be monitored implies his consent to be monitored.”).
244. United States v. Felipe, 148 F.3d 101, 110–11 (2d Cir. 1998); Gilday v. Dubois, 124 F.3d
277, 294 (1st Cir. 1997); see also Carter v. O’Sullivan, 924 F. Supp. 903, 909 (C.D. Ill. 1996) (finding
that denying attorney calls would violate 6th Amendment rights).
245. The Prison Litigation Reform Act (PLRA) has a “three strikes” provision requiring prisoners
to pay court costs if three of their suits have been dismissed as frivolous (wasteful) or as failing to state
a claim. So, proceed carefully, using this chapter as a guide to successful and unsuccessful suits. For
more information on the PLRA, see Chapter 14.
Manual
Chapter 20:
Using Article 440 of the New York
Criminal Procedure Law to Attack
Your Unfair Conviction or Illegal
Sentence

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 20
USING ARTICLE 440 OF THE NEW YORK CRIMINAL PROCEDURE

LAW TO ATTACK YOUR UNFAIR CONVICTION OR ILLEGAL
SENTENCE*
A. Introduction
If you have been convicted in a New York state court, it may be possible to have your
conviction overturned. Under certain circumstances (such as the discovery of new evidence or
when important evidence wasn’t included at your trial) you may ask the trial court to either
vacate (cancel) the judgment or set aside your sentence. You can make this request in a
motion1 brought under Article 440 of the New York Criminal Procedure Law.2 Part B of this
Chapter explains what Article 440 motions are, the grounds upon which you may make an
Article 440 motion, and the circumstances under which a court will consider your Article 440
motion. Part C explains how to make an Article 440 motion. Part D describes what usually
happens after you make an Article 440 motion. Part E details the kinds of favorable decisions
possible through an Article 440 motion. Part F explains how to appeal a court’s denial of your
Article 440 motion. Part G summarizes important things to think about when making an
Article 440 motion. Finally, Appendix B to this Chapter contains forms for filing Article 440
motions.
If you have been convicted in another state court (besides New York), see Appendix A for
a list of similar post-conviction relief statutes from other states.
B. When to Use Article 440
1. What Is an Article 440 Motion?
An Article 440 motion challenges the legality of your conviction or sentence.3 If your
Article 440 motion succeeds, you will receive a new trial or a new sentence. An Article 440
motion is not an appeal4 and is not a substitute for an appeal or second appeal.5 In an appeal,
you request a higher court (i.e., the appellate division or a court of appeals) to review errors
of the trial court. In a traditional appeal, you may only raise issues appearing in the trial
record. The following list describes information included within your trial record. This
information is part of a traditional appeal and is not usually included in an Article 440
motion:
(1) The complaint and the indictment;
* This Chapter was revised by Geoffrey Gordon based on previous versions by Melissa Elstein, Maia P.
Sloss, members of the 1977 Columbia Human Rights Law Review, Terry Dixon, and Joe Pellican.
Special thanks to Harold Ferguson at the Legal Aid Society for his helpful comments.
1. A motion is a request to a court or judge asking for a ruling or order in your favor.
2. The laws pertaining to Article 440 motions can be found in §§ 440.10–440.60 of the New York
Criminal Procedure Law.
3. Other ways of attacking your conviction include filing a state or federal writ of habeas corpus.
Please see Chapter 13, “Federal Habeas Corpus,” and Chapter 21, “State Habeas Corpus,” of the JLM,
which describe the federal writ of habeas corpus and the state writ of habeas corpus, respectively. Both
of these writs can be used to obtain post-conviction relief for state and federal constitutional violations.
4. For more on how to appeal your conviction, see JLM Chapter 9, “Appealing Your Conviction or
Sentence.”
5. See People v. Harris, 109 A.D.2d 351, 353, 491 N.Y.S.2d 678, 682 (2d Dept. 1985) (explaining
that an Article 440 motion is designed to inform the court of facts not reflected in the record and not
known at the time of judgment that would undermine the judgment as a matter of law).
(2) The minutes of any hearing to suppress evidence (a hearing to exclude evidence
resulting from an illegal search or seizure) and other hearings; and
(3) The report of the formal proceedings in the trial court. This includes:
(a) the pleadings and motions made by both sides;
(b) the minutes of a guilty plea if you made one;
(c) the minutes of the trial court, including objections made by both sides and court
rulings;
(d) the charges to the jury, if it was a jury trial;
(e) the minutes of the arraignment and the sentencing;
(f) the minutes of any adjournment; and
(g) any trial testimony and evidence such as documents, photographs, reports, etc.
An Article 440 motion allows you to inform the trial court of facts that cannot be raised
on appeal because they were not in the trial record,6 since facts presented for the first time
on appeal cannot be considered by an appellate court.7 There are two types of Article 440
motions: a “motion to vacate judgment” and a “motion to set aside sentence.”
A motion to vacate, or cancel, a judgment is provided for in Section 440.10 of the New
York Criminal Procedure Law. This motion challenges the fairness and/or legality of your
conviction. It allows you to attack your conviction by stating that the trial court acted
improperly when it found you guilty. If this motion is granted, you receive a new trial or
appeal.
The second kind of motion, a motion to set aside your sentence, is based on Section
440.20 of the New York Criminal Procedure Law. This motion enables you to attack your
sentence. In this motion you cannot challenge your guilt; rather, you argue that the
punishment is too harsh for the crime. For example, you can challenge your sentence if it
exceeds the maximum sentence allowed by the law.
Article 440 was created to partially replace the remedy of coram nobis, although some
courts may still refer to an Article 440 motion as a writ of coram nobis. 8 Though a writ of
coram nobis is not available in situations covered by Article 440,9 it may still be brought in
situations in which an Article 440 motion is unavailable. For example, a coram nobis motion,
not an Article 440 motion, should be used to raise a claim of ineffective assistance of
appellate counsel.10
6. See People v. Bell, 161 A.D.2d 772, 772–73, 556 N.Y.S.2d 118, 119 (2d Dept. 1990) (holding
that direct appeal cannot be had for matters based outside of the record); People v. Piparo, 134 A.D.2d
295, 295, 520 N.Y.S.2d 621, 622 (2d Dept. 1987) (stating that facts not contained in the record are not
reviewable on direct appeal).
7. However, in a death penalty case, an Article 440 motion is heard directly by the Court of
Appeals (New York’s highest court). N.Y. Ct. App. R. 510.4.
8. See People v. Crimmins, 38 N.Y.2d 407, 414, 343 N.E.2d 719, 724, 381 N.Y.S.2d 1, 6 (1975)
(stating that “motion to vacate judgment” was formerly known as “coram nobis”); People v. Donovan,
107 A.D.2d 433, 443, 487 N.Y.S.2d 345, 352 (2d Dept. 1985) (stating that CPL 440.10 represents the
codification of common law postjudgment coram nobis proceedings); People v. Lyon, 143 Misc. 2d 690,
692, 541 N.Y.S.2d 702, 704 (Suffolk County Ct. 1989) (referring to CPL 440.10 as a postjudgment writ
of coram nobis).
9. See People v. Perez, 162 Misc. 2d 750, 763, 616 N.Y.S.2d 928, 937 (1994) (holding that writ of
coram nobis is unavailable where an Article 440 motion is applicable).
10. See People v. Bachert, 69 N.Y.2d 593, 600, 509 N.E.2d 318, 323, 516 N.Y.S.2d 623, 628 (1987)
(stating that a claim of ineffective assistance of appellate counsel is covered by a writ of coram nobis
and not an Article 440 motion). If you file a coram nobis motion on the basis that you received
ineffective assistance of appellate counsel or that you were wrongfully deprived of counsel on appeal,
and the Appellate Division denies your motion, you may be able to appeal the denial to the Court of
Appeals. However, the denial of your coram nobis motion must have occurred on or after November 1,
2002, and you must first be granted a certificate of leave to appeal by either a judge of the Court of
Appeals or a justice of the Appellate Division department that denied your motion.
Article 440 was also created to replace the remedy of state habeas corpus, which
challenges the government’s right to keep you in prison by inquiring into the legality of your
confinement. State habeas corpus is still available for New York state prisoners in some
situations, but courts generally require you to make an Article 440 motion instead (most
frequently, state habeas can still be used to challenge parole and bail decisions). The remedy
for a habeas corpus violation is immediate release from custody. Under an Article 440
motion, the relief granted is not immediate release but rather a new trial, appeal, or
sentence.11
2. What You Can Complain About In an Article 440 Motion
(a) Motion to Vacate Judgment
Article 440.10 lists eight wrongs that you may complain about in a motion to vacate
judgment.12 These eight wrongs are as follows.
(1) The trial court lacked “jurisdiction” to decide your case.13
(2) The judge or prosecutor (or a person representing one of them) used fraud, false
statements (“misrepresentation”), or physical or undue psychological pressure
(“duress”) to secure your conviction.14 You cannot simply claim, however, that the
judge or district attorney used fraud or misrepresentation.15 As with every Article
440 motion, you must support your claim with specific facts in the form of an
affidavit and, if possible, witnesses.16
(3) At trial, the prosecutor introduced (or the judge allowed in) important (“material”)
evidence the prosecutor (or judge) knew was false at the time of trial.17 Again, you
cannot just state the judge or district attorney knew certain facts were false; you
must show they knew the facts to be false.18
(4) The prosecutor introduced important (“material”) evidence that was obtained in
violation of your rights under the U.S. or New York State Constitutions.19
(5) You could not understand or participate in the trial because you suffered from a
mental disability of some kind.20 For instance, in one case, a prisoner claimed in his
Article 440 motion that he did not remember or understand his plea or the
sentencing proceedings. In support of his motion, the prisoner noted that he had been
diagnosed after the judgment as suffering from psychosis associated with brain
11. See JLM Chapter 21, “State Habeas Corpus.”

12. N.Y. Crim. Proc. Law §§ 440.10(1)(a)–(h) (McKinney 2005).
13. N.Y. Crim. Proc. Law § 440.10(1)(a) (McKinney 2005). For an explanation of jurisdiction, see
Chapter 2 of the JLM, “Introduction to Legal Research.”
15. See People v. Gates, 168 A.D.2d 995, 996, 564 N.Y.S.2d 938, 938 (4th Dept. 1990) (finding
that unsupported claim of fraud is not enough to overturn a conviction).
16. See People v. Session, 34 N.Y.2d 254, 255, 313 N.E.2d 728, 729, 357 N.Y.S.2d 409, 410 (1974)
(finding that affidavits from co-defendants stating that assistant district attorney had threatened them
with increased charges if they testified on behalf of defendant were insufficient to require hearing on
Article 440 motion since affidavits did not contain nature of any testimony co-defendants could offer).
17. N.Y. Crim. Proc. Law § 440.10(1)(c) (McKinney 2005).
18. See People v. Brown, 56 N.Y.2d 242, 246–47, 436 N.E.2d 1295, 1297, 451 N.Y.S.2d 693, 695
(1982) (upholding trial court’s denial of defendant’s motion to vacate judgment because defendant’s
motion papers did not contain any evidence demonstrating that prosecution was aware of witness’s
false testimony).
19 . N.Y. Crim. Proc. Law § 440.10(1)(d) (McKinney 2005). For more information on such
violations, see JLM Chapter 13, “Federal Habeas Corpus”, which lists possible violations of the U.S.
Constitution, and Chapter 21, “State Habeas Corpus,” which lists possible violations of New York
State’s Constitution. Be aware you may not be able to raise these constitutional violations if you raised
them unsuccessfully on appeal. See Part B(3) of this Part of this Chapter.
20. N.Y. Crim. Proc. Law § 440.10(1)(e) (McKinney 2005).
trauma. In light of this fact, the court held that there should be a hearing on the
prisoner’s motion to vacate the conviction for manslaughter.21
(6) The record of your case failed to include improper (“prejudicial”) conduct that
occurred at your trial and that would have led an appellate court to reverse the
judgment against you if the appellate court could have learned of the conduct from
the record.22 Such conduct includes the prosecutor’s failure to supply you with Brady
material, which is any evidence in the prosecutor’s possession or knowledge that is
favorable to the defense and material to guilt or punishment.23 This material is often
referred to as “exculpatory” evidence. To have a conviction overturned based upon the
failure to produce Brady material there must be a reasonable probability that the
evidence would have affected the ultimate outcome of the trial. However, if your
defense counsel made a specific request for the evidence in question, there need only
be a reasonable possibility that disclosure would have changed the outcome.24 The
reasonable probability test is harder to satisfy than the reasonable possibility test.
Under the reasonable probability test, the undisclosed evidence receives no more
weight than it would have been given had it been introduced at trial. Thus, the trial
court reviewing an Article 440 motion must determine how the evidence would have
affected the jury’s deliberations. On the other hand, the reasonable possibility test
focuses on the evidence withheld, and the court must determine whether the failure
to disclose it may have contributed to the verdict. Additionally, the evidence in both
cases must be admissible in court. For example, polygraph (lie detector) test results
suggesting that a witness lied are of no use since they are inadmissible as evidence.25
Brady material may also include evidence in the possession of other law enforcement
agencies involved in your prosecution (for example, FBI Crime Lab notes). However,
if an out-of-state agency refuses to turn over materials, the prosecution cannot be
held responsible for failure to disclose.26
(7) You have uncovered new evidence since your trial you could not have discovered
before or during your trial. To succeed on this ground, you must show that the
evidence (a) will probably change the result in your case if a new trial is granted; (b)
was discovered since the trial; (c) could not have been discovered before the trial by
the exercise of due diligence; (d) is “material” to the issue of your guilt; and (e) does
21. People v. Fixter, 79 A.D.2d 861, 861, 434 N.Y.S.2d 484, 485 (4th Dept. 1980).
22. N.Y. Crim. Proc. Law § 440.10(1)(f) (McKinney 2005); see People v. Cleveland, 132 A.D.2d
921, 921, 518 N.Y.S.2d 477, 478 (4th Dept. 1987) (finding that defendant’s claim that district attorney
had previously represented him on other charges and was therefore disqualified from prosecuting him
could be raised in an Article 440 motion since conduct claimed to be improper and prejudicial did not
appear in record).
23. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215, 218 (1963)
(holding that the suppression of evidence by the prosecution denied petitioner due process); see also
People v. Vilardi 76 N.Y.2d 67, 77–78, 555 N.E.2d 915, 920–21, 556 N.Y.S.2d 518, 523–24 (1990)
(ordering retrial on arson charges, because prosecution withheld material and exculpatory evidence
from defense; showing “reasonable possibility” that failure to disclose favorable evidence contributed to
verdict is the appropriate standard under New York State constitutional law).
24. See People v. Bond, 95 N.Y.2d 840, 843, 735 N.E.2d 1279, 1281, 713 N.Y.S.2d 514, 516 (2000)
(vacating second degree murder conviction because reasonable possibility existed that result would
have been different if prosecutor had disclosed, in response to a specific Brady request, key witness’s
denial of having seen shooting).
25. See People v. Scott, 88 N.Y.2d 888, 891, 667 N.E.2d 923, 924, 644 N.Y.S.2d 913, 915 (1996)
(finding failure to produce scratch sheet alluding to polygraph examination of witness not grounds for
vacating conviction in part because polygraph results would have been inadmissible as evidence).
26. See People v. Santorelli, 95 N.Y.2d 412, 421–22, 741 N.E.2d 493, 497–98, 718 N.Y.S.2d 696,
700–01 (2000) (refusing to vacate conviction based upon prosecutor’s failure to provide reports from a
parallel FBI investigation where the FBI was unwilling to turn over the reports to the prosecutor).
not simply duplicate or contradict other evidence.27 Furthermore, if you would like to
make an Article 440 motion on the grounds of newly-discovered evidence, you must
make the motion within a reasonable time after you find the new evidence. But you
can only make an Article 440 motion on the basis of newly discovered evidence if you
were found guilty after a full trial; if you pled guilty, you cannot make an Article 440
motion on the basis of newly discovered evidence.28
(8) Your conviction was obtained in violation of your constitutional rights.29 Chapter 13,
“Federal Habeas Corpus,” of the JLM provides a long list of possible violations of
your rights under the U.S. Constitution. You may raise any of these violations in
your Article 440 motion as long as they are applicable to your case and your motion
satisfies the conditions described in Section 3 of this Part.30 For example, if you fail to
present your constitutional attack in your direct appeal of your conviction, you will
later be foreclosed from making an Article 440 motion based on that constitutional
claim, unless your claim falls into one of the exceptions described in Section 3 of this
Part of this Chapter.31
In addition to federal constitutional violations, you may also raise violations of your
rights under New York State’s Constitution in an Article 440 motion. These rights are
generally very similar to your federal constitutional rights. For example, the law under both
constitutions forbids attorneys from purposefully discriminating against people by race or
gender in selecting a jury.32 This claim could therefore be raised as a violation of your rights
under the New York State Constitution, as well under the U.S. Constitution.
You should be aware that some of your rights under the New York State Constitution are
broader than the same rights under the U.S. Constitution. For example, the New York State
Constitution provides you with greater protection against unreasonable police searches than
the U.S. Constitution.33 The New York State Constitution also provides you with greater
protection against a court imposing a longer sentence upon you after a successful appeal.34 In
addition, the New York State Constitution requires a prosecutor to supply you with a wider
27. N.Y. Crim. Proc. Law § 440.10(1)(g) (McKinney 2005); see People v. Latella, 112 A.D.2d 321,
322, 491 N.Y.S.2d 771, 772–73 (2d Dept. 1985) (setting standards for newly discovered evidence);
People v. Sherman, 83 Misc. 2d 563, 565, 372 N.Y.S.2d 546, 548–49 (Sup. Ct. N.Y. County 1975)
(holding indictment of police officer who testified at trial and investigation of judge who signed search
warrant not enough to grant Article 440 motion).
28. See People v. Latella, 112 A.D.2d 321, 322, 491 N.Y.S.2d 771, 772–73 (2d Dept. 1985)
(holding that guilty plea forecloses Article 440 motion); People v. Sherman, 83 Misc. 2d 563, 565, 372
N.Y.S.2d 546, 548 (Sup. Ct. N.Y. County1975) (“There was no verdict after trial here. The defendant
pleaded guilty before trial. Thus, on its face, defendant’s pleading requires a denial of this motion.”).
29. N.Y. Crim. Proc. Law § 440.10(1)(h) (McKinney 2005).
30. As noted in JLM Chapter 13, “Federal Habeas Corpus,” raising a federal constitutional
violation in an Article 440 motion is often necessary to satisfy exhaustion, required to raise the
violation in a petition for federal habeas corpus.
31. See People v. Skinner, 154 A.D.2d 216, 221, 552 N.Y.S.2d 932, 934–35 (1st Dept. 1990)
(holding that failure to raise an issue on appeal when defendant had knowledge to do so forecloses an
Article 440 motion).
32 . See generally People v. Kern, 75 N.Y.2d 638, 649–53, 554 N.E.2d 1235, 1241–43, 555
N.Y.S.2d 647, 653–55 (1990) (discussing the New York State Constitution ban on racial discrimination
in jury selection). See also Batson v. Kentucky, 476 U.S. 79, 84–98, 106 S. Ct. 1712, 1716–1724, 90 L.
Ed. 2d 69, 79–89 (1986) (discussing the Federal Constitutional ban on racial discrimination in juries).
33. See People v. Dunn, 77 N.Y.2d 19, 25, 564 N.E.2d 1054, 1058, 563 N.Y.S.2d 388, 392 (1990)
(finding that police use of a specially trained narcotics detection dog to conduct “canine sniff” outside
defendant’s apartment is a search under New York Constitution).
34. See People v. Van Pelt, 76 N.Y.2d 156, 161–62, 556 N.E.2d 423, 425–26, 556 N.Y.S.2d 984,
986–87 (1990) (finding that a sentence following retrial that was for a longer period than the sentence
from the first trial was presumed to be vindictive and must be set aside, even if the second trial judge
was different from the first trial judge).
category of evidence than the U.S. Constitution requires.35 Finally, your right to a lawyer is
broader under the New York State Constitution than the U.S. Constitution.36
Because you may have greater rights under the New York Constitution than the U.S.
Constitution, be sure to include claims of state constitutional violations in your Article 440
motion. Indeed, it is a good idea when claiming a violation of a specific federal constitutional
provision (for example, the Fourth Amendment’s prohibition against unreasonable searches
and seizures) to cite the equivalent state constitutional provision (which, in this example,
would be Article I, Section 12 of New York’s Constitution).
Another example of state and federal constitutional violations that can be raised in an
Article 440 motion is ineffective assistance of counsel; in other words, you had a lawyer, but
he or she did not represent you effectively at trial. You should be aware though, that it is
firmly established in New York that a claim of ineffective assistance of counsel may not be
based solely upon your lawyer’s unsuccessful use of a certain trial strategy even if that
strategy was offensive, outrageous,37 daring, or innovative.38 In addition, it is not enough to
simply claim that your lawyer was ineffective. You must identify the specific acts or
omissions of counsel that you believe were so ineffective that you were in essence deprived of
your right to counsel. Then, you must also show that this deficiency of counsel prejudiced
your defense to such an extent that the trial result is unreliable.39 For example, an error by
35. See People v. Vilardi, 76 N.Y.2d 67, 77, 555 N.E.2d 915, 920, 556 N.Y.S.2d 518, 523 (1990)
(holding where the prosecutor was made aware by a specific discovery request that defendant
considered exculpatory material important to the defense, standard of materiality is “reasonable
possibility” that failure to disclose the material contributed to the verdict). But see People v. Lesiuk,
161 A.D.2d 21, 25, 560 N.Y.S.2d 711, 713 (3d Dept. 1990) (stating that standard is “reasonable
probability” where the prosecution has tried hard to produce a missing exculpatory police informant),
aff’d 81 N.Y.2d 485, 617 N.E.2d 1047, 600 N.Y.S.2d 931 (1993). A reasonable probability test is harder
to satisfy than the reasonable possibility test. The difference between the tests is under the reasonable
probability test, the undisclosed evidence receives no more weight than it would have been given had it
been introduced at trial. Thus, the trial court reviewing an Article 440 motion must determine how that
evidence would have affected the jury’s deliberations. On the other hand, the reasonable possibility test
focuses on the evidence withheld and the court must determine whether the failure to disclose it
possibly contributed to the verdict. See People v. Vilardi, 76 N.Y.2d 67, 77, 555 N.E.2d 915, 920, 556
N.Y.S.2d 518, 523 (1990); People v. Lesiuk, 161 A.D.2d 21, 25, 560 N.Y.S.2d 711, 713 (3d Dept. 1990).
36. See People v. Velasquez, 68 N.Y.2d 533, 536, 503 N.E.2d 481, 483, 510 N.Y.S.2d 833, 835
(1986) (“In this state the right to counsel, both as to the time of its attachment and as to its waiver, is
broader than the protection afforded under Federal law.”); People v. Hobson, 39 N.Y.2d 479, 483–84,
348 N.E.2d 894, 897, 384 N.Y.S.2d 419, 422 (1976) (detailing New York case law that extended
protections for the defendant under the State Constitution beyond those guaranteed by the Federal
Constitution).
37. See People v. Sullivan, 153 A.D.2d 223, 226–27, 550 N.Y.S.2d 358, 359–60 (2d Dept. 1990)
(holding that defense attorney’s reference to victims as “skells,” “pimps,” or “junkies” was not
ineffective counsel because it must, in the absence of any proof to the contrary, be presumed to have
been devised as part of a trial strategy).
38. See People v. Baldi, 54 N.Y.2d 137, 151–52, 429 N.E.2d 400, 407–08, 444 N.Y.S.2d 893, 900–
01 (1981) (holding that defense attorney’s strategy of testifying at his client’s trial in an attempt to
present an insanity defense was not ineffective assistance even though the attorney did not pursue a
claim of innocence).
39. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984) (stating you must first specify the error made by counsel and then show that the error
prejudiced your defense to such an extent that it affected the result of the trial). However, New York
has retained the Baldi standard in preference to the federal Strickland standard in evaluating claims
of ineffective assistance of trial counsel. People v. Stultz, 2 N.Y.3d 277, 282, 810 N.E.2d 883, 886, 778
N.Y.S.2d 431, 434 (2004) (stating that the appropriate standard for effective assistance of counsel is the
same meaningful representation standard as People v. Baldi). In New York, you are entitled to
“meaningful representation.” People v. Baldi, 54 N.Y.2d 137, 147, 429 N.E.2d 400, 405, 444 N.Y.S.2d
893, 898 (1981) (“So long as the evidence, the law, and the circumstances of a particular case, viewed in
totality and as of the time of the representation, reveal that the attorney provided meaningful
counsel, even if professionally unreasonable, does not warrant setting aside the judgment if
the error had no effect on the judgment. However, if you can show that your attorney had a
conflict of interest while representing you and that this conflict made the attorney’s
performance worse, prejudice will be presumed by the courts.40 Your attorney would have
had a conflict of interest if your attorney had a work-related reason or a substantial personal
reason to give you less than a full effort. One possible reason would be if your attorney,
without telling you or the judge, also represented a witness who testified against you.41
(b) Motion to Set Aside Sentence
Unlike the Article 440.10 motion to challenge your conviction (discussed above), an
Article 440.20 motion allows you to attack your sentence if it is unauthorized, illegally
imposed, or in some other way invalid.42 A sentence is unauthorized if the sentence exceeds
the maximum length of time allowed by law.43 For example, third degree burglary, a Class D
felony, 44 carries a maximum sentence of seven years if you are a first or second felony
offender.45 Thus, you could make an Article 440 motion to attack a sentence of seven years
and one day for third degree burglary if you are a first or second felony offender. However,
you could not attack a sentence of seven years. Although this sentence may seem long or
excessive in comparison to sentences that other defendants have received for the same crime,
the Penal Law authorizes a seven-year sentence. 46 You cannot raise a claim that your
sentence was too harsh or excessive under this motion as long as the sentence was
authorized.47
representation, the constitutional requirement will have been met.”). However, “meaningful
representation” does not mean perfect representation. People v. Ford, 86 N.Y.2d 397, 404, 657 N.E.2d
265, 268, 633 N.Y.S.2d 270, 273 (1995) (quoting People v. Modica, 64 N.Y.2d 828, 829, 476 N.E.2d 330,
331, 486 N.Y.S.2d 931, 932 (1985)) (stating meaningful representation does not mean perfect
representation).
40. See Cuyler v. Sullivan, 446 U.S. 335, 349—50, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333, 347
(1980) (stating that a defendant who shows that a conflict of interest actually affected the adequacy of
his representation need not demonstrate prejudice); see also Winkler v. Keane, 812 F. Supp 426, 431
(S.D.N.Y. 1993) (finding that existence of a contingency fee arrangement between defendant and his
attorney does not amount to a per se claim of ineffective assistance of counsel); People v. Wandell, 75
N.Y.2d 951, 952, 554 N.E.2d 1274, 1275, 555 N.Y.S.2d 686, 687 (1990) (stating that attorney must
inform client and trial court of conflicting interests so that court may conduct a record inquiry to
determine whether client understands the implications of the conflict); People v. Gomberg, 38 N.Y.2d
307, 314–16, 342 N.E.2d 550, 555, 379 N.Y.S. 2d 769, 776–77 (1975) (holding that trial judge’s inquiry
into possible conflict of interest between defendants and their counsel, and defendants’ opportunity to
retain separate counsel, fulfilled obligation to protect defendants’ rights).
41 . See JLM Chapter 12, “Appealing Your Conviction Based on Ineffective Assistance of
Counsel.”
43. See People v. Fuller, 119 A.D.2d 692, 692, 501 N.Y.S.2d 116, 116 (2d Dept. 1986) (vacating
sentence longer than length of time imposable for the crime committed).
44. N.Y. Penal Law § 140.20 (McKinney 1999). The N.Y. Penal Law describes and classifies every
felony. In order to determine whether your sentence was authorized by law, find out what class of
felony you were convicted of by looking up your offense in the Penal Law. Burglary and related
offenses, for example, are defined in § 140.20 through § 140.35 of the Penal Law. Then, consult § 70.00
of the Penal Law, which specifies the maximum and minimum terms of sentence which can be imposed
for the various classes of felonies.
46. See People v. Baraka, 109 Misc. 2d 271, 273, 439 N.Y.S.2d 827, 830 (N.Y. County Crim. Ct.
1981) (holding that the court deciding an Article 440 motion has no authority to disturb a sentence that
conforms to the Penal Law).
47. N.Y. Crim. Proc. Law § 440.20 and Practice Commentary (McKinney 2005). See Chapter 9 of
the JLM, “Appealing Your Conviction or Sentence,” for more information on appeals.
In addition to the unauthorized sentence described above, there may be other grounds
that you can raise in an Article 440 motion to set your sentence aside as illegal. Some of
these grounds include:
(1) Due process errors in the sentencing procedures; 48
(2) The sentencing court disregarded your “right of allocution” which means that the
judge failed to ask you at your sentencing if you wished to address the court on your
own behalf;49
(3) The sentencing court disregarded your right to be present at sentencing;50
(4) The court violated your First Amendment right of free association by, for example,
considering at sentencing your membership in a racist organization where this
membership was not relevant to any of the issues at your trial;51
(5) The court sentenced you as a second- or third-time offender, but the prior conviction
was obtained in violation of your constitutional rights or was in some other way
invalid.52 For example, you may challenge the constitutional validity of the prior
48. See People v. Bellamy, 160 A.D.2d 886, 887–88, 554 N.Y.S.2d 320, 321 (2d Dept. 1990)
(vacating the sentence and finding that, while judge had authority to vacate a previously-imposed
minimum permissible sentence, defendant’s right to due process was violated when judge thereafter
imposed maximum permissible sentence, without offering any justification for doing so).
49. N.Y. Crim. Proc. Law § 380.50(1) (McKinney 2005) gives you the right to make such a
statement. To have your sentence set aside on this ground, you must show that, had your right been
honored, you would have said or revealed something that would have required the court to conduct
further inquiry before sentencing you. See People v. St. Claire, 99 A.D.2d 982, 982, 473 N.Y.S.2d 19, 20
(1st Dept. 1984) (stating that violation of right to allocution should be raised in Article 440.20 motion);
People v. Quiles, 72 A.D.2d 610, 610, 421 N.Y.S.2d 119, 119–20 (2d Dept. 1979) (defendant at
sentencing indicated possibility that his intoxication at time of robbery had negated his criminal intent,
and if this were so, issue of whether he had knowingly waived this potential defense to the crime must
be examined by the court); People ex rel. Boddingham v. LaVallee, 50 A.D.2d 692, 692, 375 N.Y.S.2d
477, 478 (3d Dept. 1975) (holding that defendant who was denied right of allocution is entitled only to
resentencing and not release from incarceration).
50. N.Y. Crim. Proc. Law § 380.40 (McKinney 2005) gives you the right to be present at
sentencing and at resentencing. See People v. Brown, 155 A.D.2d 608, 608, 547 N.Y.S.2d 664, 664 (2d
Dept. 1989) (defendant’s absence at resentencing denied his statutory right). You may waive this right
if you are being charged with a misdemeanor or petty offense, in which case a court may sentence you
in your absence. N.Y. Crim. Proc. Law § 380.40(2). To succeed on an Article 440 motion based on a
denial of this right, you must show that had you been present, you would have said something that
would have obligated the court to investigate your case further. However, your right to be present may
have been forfeited by your actions if you were removed from the courtroom due to misbehavior. See
People v. Herrera, 160 A.D.2d 416, 416, 554 N.Y.S.2d 30, 30–31 (1st Dept. 1990) (based on defendant’s
behavior “it is clear that defendant voluntarily absented himself from the sentencing proceedings,
thereby waiving such right.”). You may also have forfeited your right to be present if you failed to
appear after being advised that sentence would be pronounced in your absence. See People v. Griffin,
135 A.D.2d 730, 731, 522 N.Y.S.2d 632, 634 (2d Dept. 1987) (holding that defendant waived his right to
be present at his predicate felony hearing and sentencing by not appearing even though he knew when
he refused to attend that the hearing court would proceed in his absence). Finally, if you willfully failed
to appear in order to frustrate the sentencing process, your right to be present may have been forfeited
by your actions. See People v. Corley, 67 N.Y.2d 105, 110, 491 N.E.2d 1090, 1092, 500 N.Y.S.2d 633, 635
(1986) (affirming sentence imposed in defendant’s absence where “defendant willfully absented himself
from the court for the purpose of frustrating the sentencing process”).
51. See Dawson v. Delaware, 503 U.S. 159, 160, 112 S. Ct. 1093, 1095, 117 L. Ed. 2d 309, 314
(1992) (holding that admitting evidence at the capital sentencing proceeding of defendant’s membership
in racist gang was error where that evidence was not relevant to any issue in the punishment phase).
52. See People v. Simmons, 143 A.D.2d 153, 154, 531 N.Y.S.2d 928, 928–29 (2d Dept. 1988)
(finding that defendant’s prior conviction for buying, receiving, and concealing stolen property under
Alabama statute that did not specify monetary value for stolen property did not qualify as a predicate
felony for purposes of second felony offender status as the New York statute required proof that the
value of the stolen property exceeded $250). If no objection was at the time the prosecution identified to
you the prior felony to be used for sentencing enhancement, an appeals court will not review this
convictions or the decision to count them as predicates (prior convictions). Perhaps
the most common error in this area is the use of out-of-state convictions as predicate
felonies. Your out-of-state conviction will only count as a felony if your criminal
conduct would have been a felony under New York law. The crime must be a felony,
punishable by more than one year imprisonment in both states.53 For example, if you
were convicted of promoting prostitution by soliciting persons to patronize a
prostitute in New Jersey, where it is a felony, your conviction cannot be used as a
predicate felony in New York since the equivalent New York crime, promoting
prostitution in the fourth degree, is a misdemeanor;54
(6) The court erroneously imposed consecutive sentences (one sentence running after
another) when you should have been sentenced to concurrent sentences (two
sentences running at the same time).55 In general, consecutive sentences cannot be
imposed where (1) a single act constitutes two or more offenses, or (2) a single act
constitutes one offense and is a material element of another.56 For example, if you
committed armed robbery, you can be charged with the crimes of robbery and
weapons possession. However, you cannot be sentenced consecutively for these
crimes as they were part of the same act.
(7) Remember, a motion under Section 440.20 deals solely with your sentence and has no
effect on your underlying conviction. If your motion is granted, the court will vacate
your sentence and resentence you in accordance with the law.57
(c) Request for DNA Testing
In a relatively new section of Article 440, a defendant may request in his or her 440
motion that a forensic DNA test be done on evidence introduced at trial.58 The court will
order that a test be done if it determines that the following requirements are met
(1) Your 440 motion requests the performance of a forensic test on specific evidence,
which is clearly identified;
sentencing issue. See People v. Sullivan, 153 A.D.2d 223, 232–33, 550 N.Y.S.2d 358, 364 (2d Dept. 1990)
(“When the defendant fails to raise an objection, and when, as a result, the legality of the sentence
cannot be determined by this court upon the information contained in the appellate record, review as a
matter of law should be denied.”). If no objection was made due to mutual mistake, the appellate court
can still reverse if the use of the predicate (or prior) felony was clear error (meaning that it was
apparent on the record). See People v. Eason, 168 Misc. 2d 44, 46-47, 641 N.Y.S.2d 1018, 1020 (Sup. Ct.
Queens County 1996) (setting aside sentence where error regarding existence of predicate felony
constituted mutual mistake as to effect of certain dates, and was clear on the record; prior felony had
not yet been sentenced so was not available as a predicate); see also N.Y. Crim. Proc. Law §§
400.15(7)(b), 400.16, 400.20(6), & 400.21(7)(b) (McKinney 2005).
53. N.Y. Penal Law § 70.06(1)(b)(i) (McKinney 2004 & Supp. 2007) (“The conviction must have
been in this state of a felony, or in any other jurisdiction of an offense for which a sentence to a term of
imprisonment in excess of one year or a sentence of death was authorized and is authorized in this
state …”).
54. People v. Johnson, 127 A.D.2d 1003, 1003, 513 N.Y.S.2d 60, 60 (4th Dept. 1987) (holding New
Jersey felony conviction for promoting prostitution did not constitute felony for New York sentencing
purposes because crime would have been misdemeanor in New York).
55. See People v. Riggins, 164 A.D.2d 797, 797, 559 N.Y.S.2d 535, 536 (1st Dept. 1990) (finding
that Court had no authority to change concurrent sentences to consecutive ones on its own without
being asked by either side).
56. See N.Y. Penal Law § 70.25(2) (McKinney 2004 & Supp. 2007); People v. Jeanty, 268 A.D.2d
675, 679–81, 702 N.Y.S.2d 194, 200–01 (3d Dept. 2000) (holding that the lower court erred in making
sentence for robbery in the first degree and burglary in the first degree consecutive to felony murder
sentence because the conduct constituting the robbery and burglary offense could have been a material
element of the felony murder; however, the court also held that aggregate sentence of 75 years to life
was proper).
57. N.Y. Crim. Proc. Law § 440.20(4) and Practice Commentary (McKinney 2005).
58. N.Y. Crim. Proc. Law § 440.30(1-a) (McKinney 2005).
(2) The evidence upon which you are requesting a DNA test was obtained in connection
with the trial which resulted in your conviction; and
(3) There is a “reasonable probability” that if the results of a DNA test had been
admitted at the trial, the verdict would have been more favorable to you.59
The third requirement is probably the most important one. The court will not order a
DNA test if it believes there is no “reasonable probability” the verdict would have been
different even if you are right about whatever you are trying to prove with the DNA test.60
For more information on DNA testing see Chapter 11 of the JLM, “Using Post-Conviction
DNA Testing To Attack Your Conviction or Sentence.”
3. When You Can Get Relief Under Article 440
There are strict requirements as to when you may make a motion to vacate judgment
under Section 440.10. In contrast, the requirements for making a motion to set aside a
sentence under Section 440.20 are more relaxed. The requirements for making each type of
motion are discussed separately below.
a. When You Are Not Entitled to Move to Vacate a Judgment
Under Section 440.10
There are four circumstances in which the court must deny your motion to vacate your
judgment under Section 440.10.61 These four circumstances are as follows.
i. You cannot make a Section 440.10 motion if your claim was raised on appeal and the
court denied your complaint on the merits (in other words, when the appellate court
found that your legal arguments could not overcome your guilty conviction).62 There
is an exception to this rule that applies when the law has changed after your appeal
was decided and the courts have agreed to apply the new law “retroactively” (in other
words, when courts apply a new law to cases which have been tried, decided, or
appealed before the change in the law).63 The Court of Appeals will only grant “full
retroactivity” to new laws whose purpose is to preserve the fact-finding process from
unreliably obtained information relating directly and substantially to a defendant’s
guilt or innocence. Full retroactivity means you can raise the new law in a post-
conviction proceeding, such as an Article 440 motion, in order to attack a conviction
that was handed down and appealed before the new law came into effect. However,
full retroactivity has been applied very rarely in New York.64 The courts decide
59. N.Y. Crim. Proc. Law § 440.30(1-a) (McKinney 2005). See n. 35 of this Chapter for an
explanation of “reasonable probability.”
60. N.Y. Crim. Proc. Law § 440.30(1-a) (McKinney 2005); see also People v. Tookes, 167 Misc. 2d
601, 605–06, 639 N.Y.S.2d 913, 916 (Sup. Ct. N.Y. County 1996) (finding no reasonable probability
where: (1) there was no case for mistaken identity, (2) there was clear evidence of rape, (3) defendant
failed earlier to pursue an enzyme analysis, and (4) a showing that defendant’s DNA did not match the
crime scene sample would not likely have resulted in a “verdict more favorable to the defendant”). See
n. 35 of this Chapter for an explanation of “reasonable probability.”
61. N.Y. Crim. Proc. Law §§ 440.10(2)(a)–(d) (McKinney 2005).
62. N.Y. Crim. Proc. Law § 440.10(2)(a) (McKinney 2005); see, e.g., People v. Skinner, 154 A.D.2d
216, 221, 552 N.Y.S.2d 932, 934 (1st Dept. 1990) (arguments raised and rejected on the merits on direct
appeal may not be raised in an Article 440 motion).
64. See People v. Laffman, 161 A.D.2d 111, 112–13, 554 N.Y.S.2d 840, 841 (1st Dept. 1990)
(vacating the judgment and remanding for a new trial where the defendant was shown to the victim
handcuffed and alone with one other suspect in the police station for identification. The station house
identification procedures were found to be improper in a subsequent case which applied retroactively to
these cases). But see People v. Pepper, 53 N.Y.2d 213, 222, 423 N.E.2d 366, 370, 440 N.Y.S.2d 889, 893
(1981) (finding the defendant was not entitled to retroactive application of a court decision that held
that once an indictment or complaint has been filed, a defendant cannot waive his constitutional right
whether a new rule should apply retroactively after considering the following three
factors:
(a) the new rule’s purpose;
(b) the extent of the reliance on the old rule (in other words, were there a great
number of cases and, as a result, a large number of defendants convicted and
incarcerated under the old rule); and
(c) the effect on the administration of justice in applying the new rule retroactively
(in other words, if the reliance on the old rule has been very great, applying the
new rule retroactively would result in so many overrulings and retrials that it
would over-burden the criminal courts). In such a situation, the courts are
unwilling to apply the new rule retroactively.65
(2) You cannot make a Section 440.10 motion on the basis of an error that you may still
raise in an appeal of your conviction or that you have raised in an appeal that is
pending (in other words, the appeals court has not yet handed down a decision).66
Remember, Article 440 is not a substitute for an appeal. However, you may complain
in a Section 440.10 motion about an error without first appealing the error, if the
record of your trial does not contain sufficient facts to allow an appeals court to
review the error.67 For example, if you have found new evidence that was not
available at the time of the trial, and therefore was not included in the record, you
may bring a Section 440.10 motion directly.68 But be very careful about deciding to
appeal a decision on an Article 440 motion without first bringing a direct appeal. The
sufficiency of the record will be decided by the reviewing court. If the court finds that
the record was sufficient for direct appeal, the 440 motion will be dismissed and if
to counsel unless in presence of counsel); People v. Douglas, 205 A.D.2d 280, 292, 617 N.Y.S.2d 733, 740
(1st Dept. 1994) (stating the Ryan decision, which held that defendant’s knowledge of drug weight was
to be proved by the prosecution, will not be applied retroactively); People v. Byrdsong, 161 Misc. 2d 232,
235, 613 N.Y.S.2d 543, 544–45 (Sup. Ct. Queens County 1994) (limiting retroactivity to only direct
appeals and not to post-conviction hearings of a decision, holding that defendants generally had the
right to be present during Sandoval hearings to determine whether the prosecution should be
permitted to raise prior convictions and bad acts on cross-examination of the defendant applies
retroactively, but only to direct appeals and not to post-conviction motions); People v. Alvarez, 151
Misc. 2d 697, 701, 573 N.Y.S.2d 592, 594–95 (Sup. Ct. Kings County 1991) (stating that the Van Pelt
decision, which held that a presumption of vindictiveness applies where a second sentence is higher
after retrial than the original sentence, will not be applied retroactively).
65. See People v. Mitchell, 80 N.Y.2d 519, 528–29, 606 N.E.2d 1381, 1386, 591 N.Y.S.2d 990, 995
(1992) (applying a new state statutory right prospectively and not retroactively because it violated this
three-pronged test: (1) the court held that the new rule’s purpose would not be hindered by prospective
application, (2) the courts had substantially relied on the old rule, and (3) and retroactive application
would substantially burden the justice system); People v. Perez, 162 Misc. 2d 750, 762–63, 616
N.Y.S.2d 928, 936 (Sup. Ct. Kings County 1994) (observing as dicta that a certain new rule would not
apply retroactively, even though retroactive application would further the new rule’s purpose, because
retroactivity would violate the second and third prongs of this three-pronged test due to past
substantial reliance and the potential for future substantial burden on the administration of justice).
66. N.Y. Crim. Proc. Law § 440.10(2)(b) (McKinney 2005); see People v. Cooks, 67 N.Y.2d 100,
104, 491 N.E.2d 676, 678, 500 N.Y.S.2d 503, 505 (1986) (holding that if the record is sufficient for
review of the issue on direct appeal, the issue cannot be collaterally reviewed in an Article 440 motion);
People v. Griffin, 115 A.D.2d 902, 904, 496 N.Y.S.2d 799, 801 (3d Dept. 1985) (denying the defendant’s
Article 440 motion because judgment was already on appeal to the Appellate Division and defendant
failed to demonstrate the existence of pertinent, new evidence not in the record). See generally Part B
of this Chapter for a definition of the “record.”
67. N.Y. Crim. Proc. Law § 440.10(2)(b) (McKinney 2005). See generally Chapter 9 of the JLM,
“Appealing Your Conviction or Sentence,” for a full discussion of how to appeal your sentence and/or
conviction.
68. N.Y. Crim. Proc. Law § 440.10(1)(g) (McKinney 2005).
you did not file or pursue a direct appeal, it may be too late to do so.69 Sometimes
there may be doubt as to whether there are sufficient facts in the record from which
an appeals court must decide. In such a case, you should be careful to perfect and file
a timely direct appeal and not to rely only on an Article 440 motion.
(3) If you failed to raise an error on appeal, either because you did not include the error
in your appeal or because you simply did not appeal your conviction at all, you cannot
raise that error in an Article 440 motion unless you have a good excuse for not raising
the issue on appeal.70 One example of a good excuse would be where the error was
overlooked due to ineffective assistance of counsel. (But if you believe your lawyer
was ineffective because your lawyer did not tell you of your right to appeal, you must
make a motion instead under N.Y. Crim. Proc. Law Section 460.30.) Another good
excuse is where an appeal seemed useless due to the state of the law at the time, but
the law changed later and courts applied the new law retroactively, and because of
those changes, if your trial had occurred today, it would be considered fundamentally
unfair.71
(4) The judge must deny your Section 440.10 motion if it is based on an issue that
involves only the validity of your sentence, rather than your conviction.72 You must
complain about your sentence in a motion to set aside your sentence under N.Y.
Crim. Proc. Law Section 440.20, not Section 440.10.
b. When You May File a Motion to Vacate Judgment Under
Section 440.10
While a judge must deny your Section 440.10 motion in the four circumstances listed
above, there are other circumstances in which a judge may deny, but is not required to deny,
your Section 440.10 motion.73 These circumstances are as follows.
i. You did not preserve the issue for review on appeal. An issue is not preserved for
review on appeal if you failed to object to errors that occurred during trial, or failed to
request a particular instruction or ruling on an issue, or failed to make facts that
would support your claim, which would have been discovered through due diligence
appear in the record, or in some way failed to make sure that an issue would appear
in the trial record.74 The following are examples of some of the issues you may raise
69. See People v. Cooks, 67 N.Y.2d 100, 104, 491 N.E.2d 676, 678, 500 N.Y.S.2d 503, 505 (1986)
(holding that if the defendant could have the raised issue on direct appeal, the judge must dismiss the
Article 440 motion); N.Y. Crim. Proc. Law § 440.10 and Practice Commentaries (McKinney 2005).
70. N.Y. Crim. Proc. Law § 440.10(2)(c) (McKinney 2005); see, e.g., People v. Skinner, 154 A.D.2d
216, 221, 552 N.Y.S.2d 932, 934–35 (1st Dept. 1990) (holding that the defendant’s failure to present his
constitutional attack in his direct appeal foreclosed any consideration of it in an Article 440 motion);
People v. Cunningham, 104 Misc. 2d 298, 304, 428 N.Y.S.2d 183, 188 (Sup. Ct. Bronx County 1980)
(holding that a court must deny an Article 440 motion where a defendant could have but did not raise
the issue on direct appeal, despite a subsequent retroactively effective change in the law regarding that
issue).
71. N.Y. Crim. Proc. Law §§ 440.10(2)(a), (3)(b), and Practice Commentaries (McKinney 2005).
72. N.Y. Crim. Proc. Law § 440.10(2)(d) (McKinney 2005).
73. N.Y. Crim. Proc. Law §§ 440.10 (3)(a)–(c) (McKinney 2005). Although the court may deny the
motion under any of the circumstances specified, in the interest of justice and for good cause shown, it
can use its discretion to grant the motion and vacate the judgment.
74. N.Y. Crim. Proc. Law § 440.10(3)(a) (McKinney 2005); see People v. Green, 177 A.D.2d 856,
857, 576 N.Y.S.2d 625, 626 (3d Dept. 1991) (holding that court properly denied § 440.10 motion where
defendant could have challenged the prosecutor’s use of peremptory challenges to eliminate black
jurors at trial, but did not, [440.10 issue was unrelated to separate appeal based on police information
issue]); People v. Nuness, 151 A.D.2d 987, 988, 542 N.Y.S.2d 76, 77 (4th Dept. 1989) (holding that
because defendant did not object at trial to prosecutor’s failure to turn over police notes or request a
hearing to determine the existence of the notes, the issue was not preserved for appeal and could not be
in an Article 440 motion even though the issues were not preserved for review on
appeal.
(a) You may complain that you received ineffective assistance of counsel at trial. The
New York Court of Appeals believes that an Article 440 motion is usually better
suited than an appeal for an ineffective assistance of counsel claim because
details of your lawyer’s performance at trial are not usually obvious from the trial
record.75 However, if the trial record does contain facts that would allow an
appellate court to review a claim of ineffective assistance of counsel, you must
raise the claim on direct appeal.76
(b) A court may also grant a hearing on an issue in your motion if you could not have
raised the issue at trial because, at that time, you could not have discovered the
relevant facts.77 For example, in one Article 440 motion, a defendant complained
that the prosecutor had not revealed an agreement to recommend a more lenient
sentence for a prosecution witness in exchange for the witness’ testimony against
the defendant. The trial court denied the motion on the ground that the
defendant could have raised this issue at trial and the intermediate appellate
court affirmed the trial court’s order. But the Court of Appeals disagreed, finding
that the defendant could not have known of or discovered the agreement at the
time of trial and, therefore, could not have raised the issue at trial.78
(c) If you did not alert the trial court to prejudicial or harmful newspaper publicity
about your case and, as a result, this negative publicity was not included in the
record for the appeals court to review, a judge may decide to deny a Section
440.10 motion which raises this issue.
(2) A trial court has discretion to either entertain or reject a second motion to vacate the
judgment as long as (1) the issue was not decided on direct appeal and (2) it was
included in your first Article 440 motion.79 Again, there is an exception to this rule if
the law has changed since your earlier motion and the change has been ruled to
apply retroactively.80
raised in a § 440.10 proceeding); People v. Craft, 123 A.D.2d 481, 482, 506 N.Y.S.2d 492, 493 (3d Dept.
1986) (holding that the shackling of the defendant in the presence of the jury was not a basis for a §
440.10 motion because defendant did not object at trial nor request an instruction to the jury to
disregard the shackling); People v. Donovon, 107 A.D.2d 433, 443–44, 487 N.Y.S.2d 345, 352–53 (2d
Dept. 1985) (holding that because the defendant did not claim at trial that his confession was obtained
in violation of his right to counsel, the defendant could not raise this issue for the first time in a
§ 440.10 motion). As explained in Chapter 9 of the JLM, “Appealing Your Conviction or Sentence,” you
or your lawyer must protest errors that occur at trial when they happen in order to ensure that these
errors will be reviewed on appeal.
75. See People v. Brown, 45 N.Y.2d 852, 853–54, 382 N.E.2d 1149, 1149–50, 410 N.Y.S.2d 287,
287 (1978) (observing that often the record does not provide enough information for appeal on
effectiveness of counsel, so Article 440 motion is usually a better method for ineffectiveness of counsel
claims); see also N.Y. Crim. Proc. Law § 440.10(3)(a) (McKinney 2005).
76. See People v. Gonzalez, 158 A.D.2d 615, 615, 551 N.Y.S.2d 586, 587 (2d Dept. 1990) (denying
Article 440 motion because ineffectiveness of counsel claims were based on matters in the record, so
they should have been raised on direct appeal rather than in an Article 440 motion).
77. See People v. Qualls, 70 N.Y.2d 863, 865–66, 517 N.E.2d 1346, 1347, 523 N.Y.S.2d 460, 461–
62 (1987) (finding defendant could not have discovered with due diligence evidence of prosecutorial
misconduct based on the prosecutor’s misrepresentation of the substance of its cooperation agreement
with a witness and its knowing use of perjured testimony, and thus was entitled to a hearing on his
Article 440 motion).
78. See People v. Qualls, 70 N.Y.2d 863, 865–66, 517 N.E.2d 1346, 1347, 523 N.Y.S.2d 460, 461–
62 (1987).
79. N.Y. Crim. Proc. Law § 440.10(3)(b) and Practice Commentary (McKinney 2005).
80. N.Y. Crim. Proc. Law § 440.10(3)(b) and Practice Commentary (McKinney 2005).
(3) The third situation where a trial court has discretion to grant or reject your motion is
when you could have raised this issue in a previous Section 440.10 motion, but failed
to do so. Unless you can demonstrate good cause for failing to include the issue in
your prior motion, the court will deny your second motion. 81 It is important,
therefore, that you include all possible grounds for complaint when drawing up your
Section 440.10 motion since you may not be able to raise any claims you leave out in
another Article 440 motion.
(c ) Alleging Omission of Rosario Materials
Rosario material is any recorded statement of a prosecution witness (including police

officers) possessed by the police or prosecution that relates to the subject matter of the
witness’ trial testimony. By law, the prosecutor must provide you with statements that relate
to the witness’ testimony at your trial.82 If the prosecutor neglects to do so, and a court finds
that there is a reasonable possibility that the failure to disclose materially contributed to a
verdict against you, the court will reverse your conviction on appeal.83 Likewise, if you raise
the issue of omitted Rosario materials in an Article 440 motion, the court will reverse your
conviction only if you can prove the omission was not “harmless error” (in other words, that
the omission prejudiced your defense).84 If you raise this claim for the first time in an Article
440 motion, you must demonstrate there was a reasonable possibility that the failure to
disclose these statements contributed to the verdict against you.85
Furthermore, it is unlikely that a court will reverse your conviction on this ground if the
material withheld by the prosecution duplicates material in the record,86 or if the prosecution
81. N.Y. Crim. Proc. Law § 440.10(3)(c) and Practice Commentary (McKinney 2005).
82. N.Y. Crim. Proc. Law § 240.45(1)(a) (McKinney 2005). See People v. Rosario, 9 N.Y.2d 286,
289, 173 N.E.2d 881, 883–84, 213 N.Y.S.2d 448, 450–51 (1961) (finding that trial court should have
turned over to defense counsel, on their request, statements given before trial by prosecution witnesses
relating to their trial testimony, so that defense counsel could have used statements on cross-
examination).
83. See N.Y. Crim. Proc. Law § 240.75 (McKinney 2005) (abrogating previous rule that failure to
turn over Rosario material was per se (nearly automatic) reversible error); People v. Sorbello, 285
A.D.2d 88, 95–96, 729 N.Y.S.2d 747, 753 (2d Dept. 2001) (holding that § 240.75, which replaced the old
per se reversible error rule that applied when a Rosario violation was found with a standard of
harmless error, must apply retroactively to all cases that were being prosecuted or appealed as of its
February 1, 2001 effective date).
84. See People v. Jackson, 78 N.Y.2d 638, 641, 585 N.E.2d 795, 797, 578 N.Y.S.2d 483, 485 (1991)
(stating that motion for post-conviction relief brought after direct appeal has been completed will only
be successful if defendant can prove both improper conduct by prosecutor and prejudice to the defense);
People v. Machado, 90 N.Y.2d 187, 192, 681 N.E.2d 409, 412, 659 N.Y.S.2d 242, 245 (1997) (holding
that in an Article 440 motion, defendant/movant must prove that the failure to turn over Rosario
material prejudiced the outcome of the defendant’s case, even if an appeal is pending at the time the
Article 440 motion is filed).
85. See People v. Nikollaj, 155 Misc. 2d 642, 649, 589 N.Y.S.2d 1013, 1018 (Sup. Ct. Queens
County 1992) (granting defendant new trial because prosecution’s withholding of Rosario materials
prejudiced defendant’s case, and a reasonable probability existed that the violations contributed to the
verdict); People v. Machado, 90 N.Y.2d 187, 192, 681 N.E.2d 409, 412, 659 N.Y.S.2d 242, 245 (1997)
(stating that defendant/movant must prove the omission prejudiced his case and contributed to the
verdict against him; conviction will not be automatically reversed regardless of whether defendant’s
direct appeal is still pending or completed); People v. Vilardi, 76 N.Y.2d 67, 77–78, 555 N.E.2d 915,
920–21, 556 N.Y.S.2d 518, 523–24 (1990) (explaining that the standard for determining whether an
omission of Rosario material was prejudicial is whether there was a “reasonable possibility” that
prejudice resulted).
86. See People v. Cortez, 184 A.D.2d 571, 573, 584 N.Y.S.2d 609, 611 (2d Dept. 1992) (finding
that conviction need not be reversed if material withheld by prosecution is duplicative of other evidence
contained in the record); People v. Ray, 140 A.D.2d 380, 382–83, 527 N.Y.S.2d 864, 866 (2d Dept. 1988)
merely delayed in producing the material. 87 However, courts construe “duplication” very
narrowly. Unless the excluded material appears in the record in nearly identical form, the
court will probably not reject your claim on the grounds that the Rosario material that was
not disclosed was duplicative.88
(d) When You May File a Motion to Set Aside a Sentence under
Section 440.20
Like a motion to vacate a judgment under Section 440.10, you do not have to wait until
you have appealed your conviction to make a motion to vacate your sentence under Section
440.20. You can make this motion any time after your sentencing.89 But, if you challenged
your sentence when you appealed your conviction and lost, you cannot challenge your
sentence again through a Section 440.20 motion.90 There is an exception to this rule that
applies if the law has changed since your appeal and the new law is made retroactive.91 In
addition, the judge may deny your motion if the issue was decided in a previous Section
440.20 motion or a similar non-appeal proceeding, such as a habeas corpus motion. The court
may grant a motion, however, if it is in the interest of justice and good cause is shown.92
C. How to File an Article 440 Motion
a. Preparing Your Motion Documents
Appendix B of this Chapter contains forms to help you prepare an Article 440 motion.
Whether you are making a motion to vacate a judgment or set aside your sentence, you will
need at least two documents. The first document is a “Notice of Motion.” It informs the court
that you are challenging your conviction and/or sentence and also states the basis for your
challenge. The notes following the sample Notice of Motion in Appendix B tell you how to fill
out a Notice of Motion.
The second document is an “affidavit.” This is a statement of facts made by someone with
firsthand knowledge of the facts. You, a witness at your trial, or someone else who knows
facts that will convince the court your conviction or sentence was improper can prepare and
swear to an affidavit. Appendix B of this Chapter provides a sample affidavit written as
though you (the defendant) made the affidavit.93
To write an effective affidavit, you must do more than make general claims such as “I
was deprived of my constitutional right to counsel” or “the officer had no probable cause to
(stating that prosecution must prove that the undisclosed statements are indeed duplicative).
87. See People v. Blagrove, 183 A.D.2d 837, 837, 584 N.Y.S.2d 86, 87 (2d Dept. 1992) (stating
that prosecution’s delay in turning over material relating to a prosecution witness’ testimony will only
result in a reversal if the defense was “substantially prejudiced” by the delay; and finding no delay
where prosecution turned over Rosario material to the defense prior to the testimony of the witness to
which the material pertained).
88. See People v. Young, 79 N.Y.2d 365, 370–71, 591 N.E.2d 1163, 1166–67, 582 N.Y.S.2d 977,
980–81 (1992) (finding that two documents cannot be duplicative if there are variations or
inconsistencies between them, including omissions; exception to automatic reversal rule for duplicate
material should be read very narrowly to apply when material is in fact a duplication of material in the
record).
89. N.Y. Crim. Proc. Law § 440.20(1) and Practice Commentary (McKinney 2005 & Supp. 2007).
90 . N.Y. Crim. Proc. Law § 440.20(2) (McKinney 2005 & Supp. 2007); see, e.g., People v.
Chapman, 115 A.D.2d 911, 911, 496 N.Y.S.2d 588, 588 (3d Dept. 1985) (finding that appeal to set aside
sentence bars the Article 440 motion).
91. N.Y. Crim. Proc. Law § 440.20(3) (McKinney 2005 & Supp. 2007). A court will review a claim
that you raised in a previous Article 440 motion if the law has changed since your appeal and the new
law applies to cases decided before the change.
92. N.Y. Crim Proc. Law § 440.20(3) (McKinney 2005 & Supp. 2007).
93. A witness affidavit would look almost the same as the defendant’s affidavit, except that the
witness must identify himself and explain why he is aware of the facts to which he is swearing.
arrest me.” If either of these claims is the basis for your motion, you must detail the specific
circumstances under which you were denied counsel or state in a clear and detailed manner
what led to your arrest. For example, if you requested a lawyer at trial and the judge told
you that you were not entitled to a lawyer, you should include in your affidavit the name of
the judge, the exact words he or she used (if you can remember them), the date (or
approximate date) that the statement was made, and the names of any witnesses who heard
the judge (or representative) make the statement.
If a judge thinks that there is no reasonable possibility that the facts stated in your
affidavit are true, he or she will deny your motion.94 Therefore, you should be as detailed and
precise about the facts of your story as possible. In addition, if any witnesses are available,
you should have them write affidavits that support your story. You should also be careful to
include all of the possible grounds or issues on which you could bring an Article 440 motion.95
If you leave one out, a court will probably not allow you to raise the ground in a later
motion.96
You must swear in the presence of a notary that the facts stated in your affidavit are
true.97 If the prison officials refuse to provide you with a notary, you should sign in your own
name at the bottom of the form. You should also ask a friend to watch (witness) you sign the
affidavit and have the friend sign his or her own name under the line that reads “sworn to
before me” at the end of the affidavit. Finally, you should write an explanation under the
signature of the friend who witnessed your signature regarding the fact that the prison
officials refused to provide a notary. Appendix A of JLM Chapter 17 contains a “sample
verification” (A-2) that can be filled out by a friend.
2. When and Where to File
(a) When to File
While there is no statute of limitations (time limit) for making an Article 440 motion,98 a
court may not grant your motion if you wait too long after your sentencing to make your
motion.99 For example, one court denied a Section 440.10 motion that was made three years
after the defendant’s conviction because the defendant could not explain why he could not
have discovered the facts underlying his claim earlier. 100 Furthermore, Article 440 itself
requires you to make a motion based on the ground of newly discovered evidence within a
reasonable time after you discover the new evidence.101
94. See People v. Selikoff, 35 N.Y.2d 227, 244, 318 N.E.2d 784, 795, 360 N.Y.S.2d 623, 638 (1974)
(denying motion based on incredible and unsubstantiated claim that trial judge, deceased at time of
motion, had made an off-the-record sentencing promise to defendant). But see People v. Seminara, 58
A.D.2d 841, 843, 396 N.Y.S.2d 472, 475 (2d Dept. 1977) (granting motion for hearing where defendant
claimed that judge’s law secretary made probation promise to defendant and claim was supported by
affidavit from his trial attorney).
96. N.Y. Crim. Proc. Law § 440.10(3)(c) (McKinney 2005 & Supp. 2007).
98. See People v. Corso, 40 N.Y.2d 578, 580, 357 N.E.2d 357, 359, 388 N.Y.S.2d 886, 889 (1976)
(holding that there is no time limit on § 440.10 claims).
99. See People v. Wilson, 81 Misc. 2d 739, 740, 365 N.Y.S.2d 961, 962–63 (Sup. Ct. Nassau
County 1975) (denying motion to vacate judgment, and finding that fact that defendant waited almost
five years to complain of his conviction was a “significant factor”); People v. Byrdsong, 161 Misc. 2d 232,
236, 613 N.Y.S.2d 543, 545 (Sup. Ct. Queens County 1994) (declaring that a post-conviction motion
filed nine years after trial and seven years after appeals was, in the interest of finality, a time period
too great to continue further litigation).
100. See People v. Friedgood, 58 N.Y.2d 467, 470–71, 448 N.E.2d 1317, 1319, 462 N.Y.S.2d 406,
408 (1983).
101. N.Y. Crim. Proc. Law § 440.10(1)(g) (McKinney 2005 & Supp. 2007).
(b) Where to File
An Article 440 motion must be brought in the trial court where you were convicted. It
cannot be brought in the court of another county where you happen to be imprisoned. To file
your motion, mail your Notice of Motion, your affidavit(s), and all supporting documents to
the clerk of the court in which you were convicted.102 See Appendix II of the JLM for the
addresses of the supreme courts for each county in New York State. You must also send a
copy of your papers to the district attorney of the county in which you were convicted. See
Appendix III in the back of the JLM for a list of the addresses of the district attorneys’ offices
for each county in New York.
3. How to Get Help From a Lawyer
You do not have a right to a lawyer to help you prepare your Article 440 motion. But, if
the court decides to hold a hearing based on your motion and affidavits and you request a
lawyer, the court may assign one.103 You should request a lawyer because he or she can
usually help present a better case.
To request a lawyer, you need to file “poor person’s papers.” Poor person’s papers state
that you would like a lawyer, but are unable to pay for one. These papers also allow you to
request that the clerk of court serve the district attorney with all of your papers and thereby
relieve you of having to serve the papers yourself. Poor person’s papers are also known as a
request to proceed in forma pauperis. Chapter 9, “Appealing Your Conviction or Sentence,” of
the JLM describes poor person’s papers in more detail and also contains sample poor
person’s papers. You may use the same papers in Appendix B, Chapter 9 of the JLM (but do
not tear them out of the book) if you:
(1) Replace all references to “Appeal” with “Motion to Vacate Judgment” or “Motion to
Set Aside Sentence,” whichever is applicable;
(2) Delete all references to “Appellate Division” and “Judicial Department” (make sure
that “Supreme Court” still appears); and
(3) Make sure that the county in which you were convicted is included wherever there is
a reference to the Supreme Court.
D. What to Expect After You Have Filed Your Article 440 Motion
Once you have filed your motion, the district attorney will ordinarily file an answer to
your motion with the judge who received your motion. The district attorney must also send
you or your lawyer a copy of the answer.104 The answer will usually deny some or all of the
allegations in your motion and supporting papers.
After reviewing the facts and arguments set forth in your motion and supporting
affidavits, and in the district attorney’s answer, the judge may grant or deny your motion, or
hold a hearing. If your papers state a legal ground for vacating the judgment or setting aside
your sentence, and the facts in support of that ground are not disputed, the judge will grant
your motion. 105 If your papers do not state a legal ground for vacating the judgment or
102. If your trial was moved to a different county (for example, to avoid pretrial publicity), you
should send your motion to the court in the county where you were indicted. See People v. Klein, 96
Misc. 2d 564, 566, 409 N.Y.S.2d 374, 375–76 (Sup. Ct. Suffolk County 1978) (holding the appropriate
venue for a hearing in the nature of coram nobis would be in the county of the indictment, rather than
the county to which the case was transferred for the purpose of trial).
103. See N.Y. County Law § 722(4) (McKinney 2004 & Supp. 2007); People ex rel. Anderson v.
Warden, 68 Misc. 2d 463, 470, 325 N.Y.S.2d 829, 837 (Sup. Ct. Bronx County 1971) (“Assignment of
counsel other than for an evidentiary hearing is discretionary in both habeas corpus and Article 440
proceedings.”).
setting aside your sentence, or lack facts to support a legal ground, the judge will deny your
motion.106 The judge will also deny your motion without a hearing if:
(1) The facts you use to support your motion are not supported by sworn statements
(affidavits);
(2) A fact necessary to support your motion is clearly shown to be false by documentary
proof; or
(3) A fact necessary to support your motion is contradicted by the record from your trial
or is made solely by you and unsupported by other evidence, and there is no
reasonable possibility the allegations are true.107
Otherwise, the judge must grant a hearing on your motion.108 Whether the court grants you a
hearing or not, the court must state for the official record what facts it found to be true, how
it viewed the law, and why it decided the way it did.109
If the judge decides to hold a hearing, you have the right to attend this hearing, although
you may waive (decide not to use) this right.110 Since at your hearing you will bear the
burden of proof, meaning you will have the responsibility of proving that your claims are
true,111 it is not recommended that you waive the right to appear. To meet your burden of
proof, you must persuade the judge that the facts of your story are true by a “preponderance
of the evidence,” which means that the facts are more likely than not to be true.112 To state
your responsibility more simply, you must convince the judge that the evidence supporting
your claim outweighs the evidence against your claim.
Even if the hearing convinces the court that the facts stated in your motion and affidavit
are true, the court will not automatically grant your motion. The facts that you use must also
persuade the judge that your conviction or sentence was unfair.113 Part B of this Chapter
explains what kinds of acts by the judge or prosecutor may make a trial unfair for the
purposes of Article 440.
106. N.Y. Crim. Proc. Law § 440.30(4) (McKinney 2005); see, e.g., People v. Risalek, 172 A.D.2d
870, 870, 568 N.Y.S.2d 172, 174 (3d Dept. 1991) (denying motion where defendant’s allegations of fraud
and coercion were contradicted by transcripts and other allegations in motion were not supported by
affidavits or other evidence and defendant failed to preserve the objection to the plea he knowingly
entered into); People v. Portalatin, 132 A.D.2d 581, 582, 517 N.Y.S.2d 301, 302 (2d Dept. 1987) (denying
hearing because allegations of prosecutorial misconduct were “not preserved” or without merit); People
v. Batts, 96 A.D.2d 842, 842–43, 465 N.Y.S.2d 600, 601 (2d Dept. 1983) (denying motion for failure to
set forth sufficient grounds to justify hearing).
108. N.Y. Crim. Proc. Law § 440.30(5) (McKinney 2005); see, e.g., People v. Ferreras, 70 N.Y.2d
630, 631, 512 N.E.2d 301, 302, 518 N.Y.S.2d 780, 781 (1987) (finding that defendant who submitted
personal affidavit supporting claim of ineffective counsel due to conflict of interest was entitled to
hearing on motion).
111. N.Y. Crim. Proc. Law § 440.30(6) (McKinney 2005). In contrast, at your trial the prosecutor
bore the burden of proof; he or she had to prove you guilty beyond a reasonable doubt.
112. N.Y. Crim. Proc. Law § 440.30(6) (McKinney 2005); see, e.g., People v. Richard, 156 A.D.2d
270, 548 N.Y.S.2d 659, 660 (1st Dept. 1989) (denying defendant’s Article 440 motion because claims
were not supported by the required preponderance of evidence).
113. See, e.g., People v. Lehrman, 155 A.D.2d 693, 693, 548 N.Y.S.2d 260, 261 (2d Dept. 1989)
(finding defendant failed to demonstrate that jury misconduct impaired his right to trial); People v.
Rhodes, 92 A.D.2d 744, 745, 461 N.Y.S.2d 81, 83 (4th Dept. 1983) (stating to prevail on Article 440
motion based on claim of juror misconduct, defendant must not only prove misconduct by a
preponderance of the evidence, but also show that the misconduct created a substantial risk of
prejudice); People v. Dean, 125 A.D.2d 948, 949, 510 N.Y.S.2d 41, 41 (4th Dept. 1986) (denying Article
440 motion because defendant could have raised issue on appeal and defendant failed to show denial of
due process).
E. What Relief the Court Can Provide Under Article 440
1. Motion to Vacate Judgment
In deciding on an Article 440.10 motion, the court has several choices:
(1) As noted above, even if the court finds that the facts you have stated are true, the
court may deny your motion if the court does not find that your conviction was
unfair;114
(2) The court may grant your Article 440.10 motion to vacate judgment and dismiss the
indictment or charge against you, entitling you to be released from prison, or to be
more likely to receive a new trial;115 or
(3) If your motion raises new evidence, the judge may vacate the judgment and order a
new trial,116 or she may reduce your conviction to one for a lesser included offense,
provided the district attorney agrees.117
2. Motion to Set Aside Sentence
If the judge decides to grant your motion to set aside your sentence under Section 440.20,
he or she will not change your underlying conviction. The court must resentence you in
accordance with the New York Penal Code’s guidelines and limits for sentences.
F. How to Appeal if Your Article 440 Motion Is Denied
You do not have the automatic right to appeal a denial of your Article 440 motion to an
intermediate appellate court (in New York, this is the Appellate Division). 118 To appeal,
therefore, you must request leave (permission) from a judge of the intermediate appellate
court to which you want to appeal.119 You must request permission within thirty days after
you receive a copy of the court’s order denying your Article 440 motion.120 If the judge of the
appellate court grants you permission to appeal, you will receive a certificate indicating that
you may appeal.121 In order to apply for a certificate, you must also check the appropriate
appellate division rules for the department where the intermediate appellate court you are
114. See, e.g., People v. Lehrman, 155 A.D.2d 693, 693, 548 N.Y.S.2d 260, 261 (2d Dept. 1989)
(finding defendant failed to demonstrate that jury misconduct impaired his right to trial); People v.
Rhodes, 92 A.D.2d 744, 745, 461 N.Y.S.2d 81, 83 (4th Dept. 1983) (stating to prevail on Article 440
motion based on claim of juror misconduct, defendant must not only prove misconduct by a
preponderance of the evidence, but also show that the misconduct created a substantial risk of
prejudice); People v. Dean, 125 A.D.2d 948, 949, 510 N.Y.S.2d 41, 41 (4th Dept. 1986) (denying Article
440 motion because defendant could have raised issue on appeal and defendant failed to show denial of
due process).
117. N.Y. Crim. Proc. Law § 440.10(5)(b) (McKinney 2005); see People v. Reyes, 92 A.D.2d 776,
777, 459 N.Y.S.2d 614, 614 (1st Dept. 1983) (reducing defendant’s sentence of robbery in first degree to
robbery in second degree after evidence showed gun was a toy pistol). See Chapter 9 of the JLM,
“Appealing Your Conviction or Sentence,” for a detailed explanation and example of lesser included
offense.
118. N.Y. Crim. Proc. Law § 450.15 (McKinney 2005); see People v. Farrell, 85 N.Y.2d 60, 70, 647
N.E.2d 762, 768, 623 N.Y.S.2d 550, 556 (1995). However, you do have the right to appeal an order that
sets aside your sentence after the district attorney makes an Article 440 motion under § 440.40 for the
purpose of seeking a longer sentence against you. N.Y. Crim. Proc. Law § 450.10(4) (McKinney 2005).
119. N.Y. Crim. Proc. Law § 460.15 (McKinney 2005). Assuming you were convicted in a New
York supreme court and, thus, made your Article 440 motion there, you would appeal from a denial of
your Article 440 motion to the appellate division of the department in which you were convicted. [See n.
122 for a listing of the counties included in each department.]
appealing to is located.122 Within fifteen days after you receive this certificate, you must file
the certificate and a notice of appeal in the court that denied your Article 440 motion.123 You
must also serve the certificate and notice of appeal upon the district attorney of the county
where your trial court is located.124 Once you have completed these steps, you have “taken”
your appeal.125
You should be aware that judges seldom grant permission to appeal from denials of
Article 440 motions. Nonetheless, it is essential that you seek leave to appeal from a denial of
your Article 440 motion. As noted in Chapter 13 of the JLM, “Federal Habeas Corpus”, such
an appeal is absolutely necessary to satisfy the exhaustion requirements for raising a claim
in a federal habeas corpus petition.
If a judge of the intermediate court denies you permission to appeal, the appeals process
ends at that stage and cannot be pursued further.126 (Note, however, that you may still be
able to raise your claim in a federal habeas corpus petition as described in Chapter 13,
“Federal Habeas Corpus”, of the JLM.) If you do receive permission to appeal and the
appellate court then denies your appeal, you may appeal the denial to the New York Court of
Appeals, the state’s highest court.127 To do so, you must request permission to appeal from a
judge of the Court of Appeals.128 You must make your request within thirty days after the
intermediate appellate court hands down the denial you are trying to appeal.129 Again, if you
are granted permission to appeal, you will be issued a certificate indicating you have
permission to appeal. Upon issuance of the certificate, your appeal is “taken.”130
In addition, the district attorney has the right to appeal an Article 440 motion that sets
aside either your conviction or your sentence.
G. Conclusion
If you have already appealed your case and lost, you cannot raise any issue already
decided by the appellate court in the course of your appeal. However, if your appeal is still
pending, you can make an Article 440 motion. You can then make a motion to consolidate
(combine) the appeal and the 440 motion in the interests of judicial economy. If you
consolidate, the range of factual matter the court may examine will be expanded in the
122. N.Y. Crim. Proc. Law § 460.15(2) (McKinney 2005). These rules are located in N.Y. Comp.
Codes R. & Regs. tit. 22, § 600.8(d) (for the 1st Dept.), § 670.6(b) (for the 2d Dept.), § 800.3 (for the 3d
Dept.), and 1000.13(o) (for the 4th Dept.). The 1st Department includes the counties of the Bronx and
New York. The 2nd Department includes the counties of Dutchess, Kings, Nassau, Orange, Putnam,
Queens, Richmond, Rockland, Suffolk, and Westchester. The 3rd Department includes the counties of
Albany, Broome, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin,
Fulton, Greene, Hamilton, Madison, Montgomery, Otsego, Rensselaer, St. Lawrence, Saratoga,
Schenectady, Schoharie, Schuler, Sullivan Tioga, Tompkins, Ulster, Warren, and Washington. The 4th
Department includes the counties of Allegany, Cattaraugus, Cayuga, Chautauqua, Erie, Genesee,
Herkimer, Jefferson, Lewis, Livingston, Monroe, Niagara, Oneida, Onondaga, Ontario, Orleans,
Oswego, Seneca, Steuben, Wayne, Wyoming, and Yates.
123 . N.Y. Crim. Proc. Law § 460.10(4)(b) (McKinney 2005). See Chapter 9 of the JLM,
“Appealing Your Conviction or Sentence,” for a definition of a notice of appeal and a description of the
appeals process, generally, and also for a sample notice of appeal from a denial of an Article 440
motion.
125. See Chapter 9 of the JLM, “Appealing Your Conviction or Sentence,” to see what steps may
still be necessary to legally perfect your appeal.
128. You may also seek permission from an appellate division judge if the appellate division
denied your motion. See Chapter 9 of the JLM, “Appealing Your Conviction or Sentence.”
129. N.Y. Crim. Proc. Law §§ 460.10(5)(a), 460.20 (McKinney 2005).
130. N.Y. Crim. Proc. Law § 460.10(5)(b) (McKinney 2005). Again, however, you must still
perfect your appeal. See Chapter 9 of the JLM, “Appealing Your Conviction or Sentence.”
appeal, and all of the errors presented together may more convincingly persuade the court
that your trial was unfair.
Remember, you must prove that the facts stated in your motion and affidavit are true
and that they state a legal ground that is serious enough to require a court to grant your
motion. If you are claiming that the court made a mistake during the trial, you must show
that the mistake affected your chance of being found innocent, or that the mistake was so
serious that defendants must be protected from this type of mistake, even if the mistake may
not have affected your verdict. If you could have raised a claim in an earlier Article 440
motion, or if you have already made an Article 440 motion on the same ground(s) and lost, a
court will probably deny your present motion.
If you plead guilty at your trial, you will have a harder time succeeding on a motion to
vacate judgment.
APPENDIX A
STATE POST-CONVICTION RELIEF STATUTES

Alabama ALA. CODE § 15-21-1 et seq.
Alaska ALASKA STAT. § 12.75.010 et seq.
Arizona ARIZ. R. CRIM. P. 32; ARIZ. REV. STAT. § 13-4121 et seq.
Arkansas ARK. R. CRIM. P. 37; ARK. CODE ANN. § 16-112-101 et seq.
California CAL. PENAL CODE § 1473 et seq.
Colorado COLO. R. CRIM. P. 35; COLO. REV. STAT. § 13-45-101 et seq.
Connecticut CONN. GEN. STAT. ANN. § 52-466 et seq.
Delaware DEL. SUP. CT. CRIM. R. 35; DEL. CODE ANN. tit. 10, § 6901 et seq.
D.C. D.C. CODE § 23-110; D.C. CODE § 16-1901 et seq.
Florida FLA. R. CRIM. P. 3.850
Georgia GA. CODE ANN. § 9-14-1 et seq.
Hawaii HAW. REV. STAT. § 660-3 et seq.
Idaho IDAHO CODE ANN. § 19-4901 et seq.
Illinois 725 ILL. COMP. STAT. 5/122-1 et seq.
Indiana IND. CODE ANN. § 34-25.5-1-1 et seq.; IND. R. P. FOR POST-CONVICTION REMEDIES R. PC 1.
Iowa IOWA CODE ANN. § 663A.1 et seq.
Kansas KAN. STAT. ANN. § 60-1501 et seq.
Kentucky KY. R. CRIM. P. 11.42; KY. REV. STAT. ANN. § 419.020 et seq.
Louisiana LA. CODE CRIM. PROC. ANN. art. 924 et seq.
Maine ME. REV. STAT. ANN. tit. 15, § 2121 et seq.
ME. REV. STAT. ANN. tit. 14, § 5501 et seq.
Maryland MD. CODE ANN., CRIM. PROC. §7-101 et seq.
MD. CODE ANN. CTS. & JUD. PROC. § 3-701 et seq.
Massachusetts MASS. R. CRIM. P. 30; MASS. GEN. LAWS ch. 276, § 19
Michigan MICH. COMP. LAWS ANN. § 600.4301 et seq.
Minnesota MINN. STAT. ANN. § 590.01 et seq.
Mississippi MISS. CODE ANN. § 99-39-1 et seq.
Missouri MO. S. CT. R. CRIM. P. 29.12-15; MO. ANN. STAT. § 548.101.
Montana MONT. CODE ANN. § 46-21-101 et seq.; MONT. CODE ANN. § 46-22-101.
MONT. CODE ANN. § 46-22-101 et seq.
Nebraska NEB. REV. STAT. § 29-3001 et seq.
Nevada NEV. REV. STAT. § 34-350 et seq.
New Hampshire N.H. REV. STAT. ANN. § 534:1 et seq.
New Jersey N.J. STAT. ANN. § 2A:67-1 et seq.
New Mexico N.M. STAT. ANN. § 31-11-6
North Carolina N.C. GEN. STAT. 15A-1411 et seq.; N.C. GEN. STAT. 17-1 et seq.
North Dakota N.D. CENT. CODE § 32-22-01 et seq.
Ohio OHIO REV. CODE ANN. § 2953.21 et seq.
Oklahoma OKLA. STAT. ANN. tit. 22, § 1080 et seq.
Oregon OR. REV. STAT. § 138.510 et seq.
Pennsylvania 42 PA. CONS. STAT. ANN. § 6501 et seq.
Rhode Island R.I. GEN. LAWS § 10-9.1-1 et seq.; R.I. GEN. LAWS § 10-9-3 et seq.
South Carolina S.C. CODE ANN. § 17-27-10 et seq.
South Dakota S.D. CODIFIED LAWS § 21-27-1 et seq.
Tennessee TENN. CODE ANN. § 40-9-119 et seq.
Texas TEX. CRIM. P. CODE ANN. art. 11.01 et seq.
Utah UTAH CODE ANN. § 78-35A-101 et seq.
Vermont VT. STAT. ANN. tit. 13, § 7131 et seq.
Virginia VA. CODE ANN. § 8.01-654 et seq.
Washington WASH. REV. CODE ANN. § 7.36.010 et seq.
West Virginia W. VA. CODE § 53-4A-1 et seq.
Wisconsin WIS. STAT. ANN. § 974.06 et seq.
Wyoming WYO. STAT. ANN. § 7-14-101 et seq.; WYO. STAT. ANN. § 1-27-101 et seq.
APPENDIX B
SAMPLE ARTICLE 440 MOTIONS AND SUPPORTING PAPERS

B-1. Sample Notice of Motion by Defendant to Vacate Judgment
B-2. Sample Defendant’s Affidavit in Support of Motion to Vacate Judgment
B-3. Sample Notice of Motion by Defendant to Set Aside Sentence
B-4. Sample Defendant’s Affidavit in Support of Motion to Set Aside Sentence
DO NOT TEAR THESE FORMS OUT OF THE JLM. Copy them on your own paper and
fill them out according to the facts of your particular case. The endnotes following the sample
documents tell you how to fill in the necessary information. Remember, your affidavit is a
sworn statement; you can be punished if you intentionally include any statements that you
know are false. Change the wording of the forms, if necessary, so that all the statements
apply to your case. You must sign your affidavit in the presence of a notary public.
No poor person’s papers (in forma pauperis) have been included in these forms. Section
C(3) of this Chapter tells you how to use poor person’s papers to obtain a lawyer in an Article
440 proceeding. Sample poor person’s papers may be found in Chapter 9 of the JLM.
Appendix II at the end of the JLM lists the addresses and jurisdictions of the New York
state courts to which these papers should be addressed.
B-1. Sample Notice of Motion by Defendant to Vacate Judgment

COUNTY OF _______________________________________ i
X
:
Plaintiffs, : NOTICE OF MOTION
: TO VACATE JUDGMENT
:
ii
- against - : Indictment No.
:
,iii :
:
Defendant. :
X
PLEASE TAKE NOTICE that upon the annexed affidavit of ______________________,iv

duly sworn to the day of , ,v (and documents attached thereto) and upon
the accusatory instrument and ,vi and all proceedings previously held herein,
defendant will move this Court at Criminal Term, Part _____vii thereof, at the Courthouse
located at ,viii on the day of , at a.m., ix or as soon
thereafter as counsel may be heard, for:
An order pursuant to Criminal Procedure Law § 440.10(__) x vacating the judgment
entered against the above-named defendant on the day of , , xi on the
following grounds:xii
1.
2.
[if applicable, include:] An order pursuant to N.Y. Crim. Proc. Law § 440.30(1-a),
directing that forensic Deoxyribonucleic Acid (DNA) testing be performed on evidence
specified in the annexed affidavit;
An order, pursuant to N.Y. Crim. Proc. Law § 440.30(5), to produce the defendant at any
hearing to be conducted for the purpose of determining this motion; and
Such other and further relief as the Court may deem just and proper.
Dated:
_________________, , _____xiii
_________________________xiv
_________________________xv
Defendant, pro se.xvi

To:
District Attorney of
____ County,
______________, New Yorkxvii
B-2. Sample Defendant’s Affidavit in Support of Motion to Vacate
Judgment

COUNTY OF _____________________________________ xviii
X
:
Plaintiffs, : AFFIDAVIT
:
:
xix
:
,xx :
:
Defendant. :
X
State of New York )

County of xxi ) ss.:
,xxii being duly sworn, deposes and says:
1. I am the defendant in the above-entitled proceeding. I make this affidavit in support
of a motion, pursuant to section 440.10, subdivision ,xxiii to vacate the judgment of
conviction herein, upon the ground that
.xxiv
2. I was indicted for .xxv At the arraignment I entered a plea of “not
guilty” and posted bail in the amount of $ . xxvi I was tried in this court before
Hon. Judge xxvii on , . xxviii The case was submitted
to a jury, which rendered a verdict of guilty. xxix
3. On , ,xxx I was sentenced to .xxxi

4. The evidence adduced at my trial may be summarized as follows:
.xxxii
5.
.xxxiii
6. [If applicable, include:] Among the evidence gathered by the State in its investigation
of the crime and admitted at my trial [or] but not admitted at my trial was
, which contains Deoxyribonucleic Acid (DNA). DNA testing of
is relevant to proof of guilt in that . My conviction
occurred prior to January 1, 1996, to wit, on , .xxxiv
7. The ground(s) for relief raised upon this motion has (have) not previously been
determined on the merits upon a prior motion or proceeding in a court of this state, or upon
an appeal from the judgment, or upon a prior motion or proceeding in a federal court.xxxv
WHEREFORE, I respectfully request that my conviction be vacated on the ground that
,xxxvi and that this Court grant such other and further
relief as it may deem just and proper [or if applicable:] WHEREFORE, I respectfully request
an Order of this Court pursuant to N.Y. Crim. Proc. Law § 440.30(1-a), directing that forensic
Deoxyribonucleic Acid (DNA) testing be conducted upon .xxxvii
xxxviii
xxxix
Sworn to before me this:

day of , 20
xl
NOTARY PUBLIC
B-3. Sample Notice of Motion by Defendant to Set Aside Sentence

COUNTY OF ______________________________________ xli
X
:
Plaintiffs, : NOTICE OF MOTION
: TO SET ASIDE SENTENCE
:
xlii
:
,xliii :
:
Defendant. :
X
PLEASE TAKE NOTICE that upon the annexed affidavit of , xliv
sworn to the day of , 20 , (and documents attached thereto) and upon the
xlv
accusatory instrument and all other papers filed and proceedings had herein, defendant will
move this Court, Part xlvi thereof, at the Courthouse located at , xlvii on
the day of , 20 , at a.m., xlviii or as soon thereafter as counsel may be
heard, for:
(1) an order, pursuant to Criminal Procedure Law, section 440.20, setting aside the
sentence heretofore imposed upon the above-named defendant on the day of ,
;xlix or, in the alternative, ordering a hearing to determine whether such sentence
should be set aside on the ground(s) that:
reasons],l
(2) An order, pursuant to Crim. Proc. Law § 440.30(5), to produce the defendant at any
hearing conducted to determine this motion; and
(3) Such other and further relief as the Court may deem just and proper.
PLEASE TAKE FURTHER NOTICE that answering affidavits, if any, are to be served
upon the undersigned at least li days prior to the return of this motion.
Dated:
lii
liii
Defendant, pro se.

To:
District Attorney of
____ County,
______________, New York liv
B-4. Sample Defendant’s Affidavit in Support of Motion to Set
Aside Sentence

lv
COUNTY OF ______________________________________
X
:
Plaintiffs, : AFFIDAVIT
:
:
lvi
:
,lvii :
:
Defendant. :
X
State of New York )

County of lviii) ss.:
, being duly sworn, deposes and says:

lix
1. I am the defendant in the above-entitled proceeding. I make this affidavit in support

of a motion, pursuant to section 440.20 to set aside the sentence herein, upon the ground that
.lx
2. I was indicted for .lxi At the arraignment I entered a plea of “not
guilty” and posted bail in the amount of $ .lxii I was tried in this court before Hon.
Judge lxiii on , .lxiv
3. After a trial held on
lxv , , I was found guilty of count(s)
lxvi lxvii of
the indictment charging in the degree, a Class
felony.lxviii Bail was revoked and I was held in the , located at
, ,lxix New York, until the sentencing for my conviction
held on , lxx before Hon. Judge lxxi in Criminal
Term Part of the lxxii County Supreme Court.
4. I was sentenced to a term of imprisonment at

Correction Facility, ,lxxiii New York.
5. .lxxiv
6. .lxxv
7. The ground(s) for relief described by this affidavit has (have) not previously been
determined on the merits upon a prior motion or proceeding in a court of this state other
than an appeal from the judgment, or upon a prior motion or proceeding in a federal
court.lxxvi
WHEREFORE, I respectfully request that this Court enter an order, pursuant to section
440.20 of the Criminal Procedure Law, setting aside the sentence imposed upon me and
resentencing me in accordance with law, and granting such other and further relief as the
Court may deem just and proper.
lxxvii
Sworn to before me this:

day of , 20
lxxviii
NOTARY PUBLIC
Fill in the blanks indicated in the sample documents as follows:
i. Fill in the name of the county in which the court hearing your motion is located.
ii. Fill in your indictment number.
iii. Fill in your name.
iv. Since you should submit an affidavit with your motion, you should fill your name in here. Also, if you
are submitting affidavits of other people who have taken part in your case, their names should be filled
in, and the word “affidavit” changed to “affidavits.”
v. Fill in the date or dates on which you or others signed your affidavits: day, month, year.
vi. Describe briefly other documents, if any, that you are attaching because they will help you make your
case to the court. For example, you can mention a transcript of your trial.
vii. Fill in the “Part” number of the court, if you know it.
viii. Fill in the address of the court.
ix. Fill in the date on which the hearing will be held.
x. Fill in the subsection of § 440.10 that corresponds to the ground upon which you are making your
motion. See Section B(2) of this Chapter.
xi. Fill in the day, month, and year on which the judgment of conviction was entered against you.
xii. List the reasons why you think the court should vacate the judgment against you. See Section B(2) of
this Chapter.
xiii. Fill in the city, state, and date on which you signed this notice.
xiv. Sign your name here.
xv. Fill in your complete mailing address here.
xvi. Pro se means that you are acting as your own legal representative (without a lawyer).
xvii. Fill in the name of the district attorney, and the county and town in which he or she is located.
xviii. Fill in the name of the county in which the court hearing your motion is located.
xix. Fill in your indictment number.
xx. Fill in your name.
xxi. Fill in the name of the county in which you are signing this affidavit.
xxii. Your name, in capital letters.
xxiii. Fill in the subsection of § 440.10 that corresponds to the ground upon which you are making your
motion. See Section B(2) of this Chapter.
xxiv. List briefly the ground that corresponds to the subsection of N.Y. Crim. Proc. Law § 440.10 provided
above. See Section B(2) of this Chapter for a list of grounds.
xxv. Fill in the name of the offense for which you were indicted.
xxvi. Fill in the amount of bail you posted.
xxvii. Fill in the trial judge’s name.
xxviii. Fill in the date or dates including the day, month, and year on which your trial took place.
xxix. If you did not have a jury trial, simply indicate that the judge found you guilty.
xxx. Fill in the day, month, and year on which judgment was given in your case.
xxxi. Fill in the sentence ordered in your case.
xxxii. Summarize the evidence that the prosecution relied upon and that the jury was allowed to consider.
xxxiii. Summarize the facts which support the reasons you set out in numbers 1 through 8, above, for
challenging your conviction.
xxxiv. Fill in the evidence, if any, containing DNA samples; how that evidence proves your innocence; and the
date, prior to January 1, 1996, that your conviction occurred, if applicable.
xxxv. If you have previously raised the issues on which you are basing this motion, you should change this
paragraph to reflect that fact. If the law has changed since you previously litigated the issues, you should
state this.
xxxvi. Briefly state the reasons for your motion.
xxxvii. Fill in the evidence upon which you want DNA testing performed.
xxxviii. Sign your name, in the presence of a notary public, and print your complete mailing address below your
signature. If your prison will not give you access to a notary, see Appendix A, Endnote 102 to Chapter
16 of the JLM.
xxxix. Fill in your complete mailing address here.
xl. The notary will sign and fill in the date here after seeing you sign the document.
xli. Fill in the name of the county in which the court hearing your motion is located.
xlii. Fill in your indictment number.
xliii. Fill in your name.
xliv. Since you should submit an affidavit with your motion, your name should be filled in here. Also, if you
are submitting affidavits of other people who took part in the case, their names should be filled in, and
the word “affidavit” changed to “affidavits.”
xlv. Fill in the date you signed your affidavit.
xlvi. Enter the number of the court part, if you know it.
xlvii. Enter the address and city of the court hearing your motion.
xlviii. Enter the date and time of your hearing.
xlix. Enter the day, month, and year on which you were sentenced.
l. Give the reasons your sentence should be set aside. See Section B(2) of this Chapter. The three grounds
are (a) sentence unauthorized; (b) sentence illegally imposed; or (c) sentence invalid otherwise, as a
matter of law. If you can raise more than one ground, you should include all that apply.
li. Fill in the amount of notice you feel is necessary, considering the length of time you will need to
develop arguments to answer their affidavit.
lii. Enter the city and state, and the date on which you are signing this notice.
liii. Sign your name and print your complete mailing address underneath.
liv. Enter the name of the district attorney, followed by his or her county and address.
lv. Fill in the name of the county in which the court hearing your motion is located.
lvi. Fill in your indictment number.
lvii. Fill in your name.
lviii. Fill in the name of the county in which you are signing this affidavit.
lix. Your name, in capital letters.
lx. List briefly the reasons why you think the court should vacate the sentence against you. See Section B(2)
of this Chapter for a list of possible reasons.
lxi. Fill in the name of the offense for which you were indicted.
lxii. Fill in the amount of bail you posted.
lxiii. Fill in the trial judge’s name.
lxiv. Fill in the date or dates, including day, month, and year on which your trial took place.
lxv. If you pled guilty, leave out this first sentence in paragraph 3. Instead, write: “I entered a plea of guilty
to (give the name of the crime), a Class (give the class of the felony: A, B, C, etc.) felony.”
lxvi. If you had a trial, fill in the date or dates, including the day, month, and year of the trial.
lxvii. If you had a trial, fill in the numbers of the counts of the indictment of which you were convicted.
lxviii. If you had a trial, fill in the names, degrees (if any), and classes of the offenses of which you were
convicted.
lxix. Give the name and address of the facility where you were held while you were waiting to be sentenced.
lxx. Fill in the date, including the day, month, and year of your sentencing.
lxxi. Fill in the name of the judge who sentenced you.
lxxii. Enter the county and part number of the court that sentenced you.
lxxiii. Enter the terms of the sentence that you received and the name and address of the facility in which you
are to serve your sentence.
lxxiv. Indicate whether or not an appeal has been taken in your case. If so, give the name of the court, the date
and the name of the judge who heard your appeal.
lxxv. Give the reasons why you think your sentence is illegal. See Section B(2) of this Chapter for a list of
possible reasons.
lxxvi. If you have previously raised the issues on which you are basing this motion, you should change this
paragraph to reflect the previous court proceedings. If the law has changed since you previously litigated
the issues, you should state this.
lxxvii. Sign your name, in the presence of a notary public, and print your complete mailing address below your
signature.
lxxviii. The notary will sign and fill in the date here after seeing you sign the document.
Manual
Chapter 21:
State Habeas Corpus: Florida,
New York, and Texas

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 21
STATE HABEAS CORPUS: FLORIDA, NEW YORK, AND TEXAS*

A. Introduction
This Chapter discusses the writ of habeas corpus for three states: Florida, New York, and
Texas.1 The rules about habeas corpus in Florida, New York, and Texas are often similar.
This Introduction will give you a short overview of habeas corpus. Part B has specific
information about Florida petitions, Part C has specific information about New York
petitions, and Part D has specific information about Texas petitions. These Parts offer
important information, including how, where, and when to file your petition. If you live in a
state other than Florida, New York, or Texas and wish to file a habeas corpus petition in
state court, the laws may differ in important ways from the ones described below. 2 You
should be sure to check the laws in your own state before filing a state habeas petition.3
a. What is a Writ of Habeas Corpus?
When you file a petition for a writ of habeas corpus, you are asking a judge for a hearing
to determine whether your incarceration is lawful. This hearing is not another trial. Instead
of deciding whether you were guilty or not, the judge will evaluate the fairness of the
procedure used to convict and sentence you. To get a writ of habeas corpus, you must file a
petition for a civil (not criminal) proceeding in either state or federal court. A prisoner filing
a habeas corpus petition is often referred to as a “petitioner” or “relator.” This chapter will
cover filing a petition in state, not federal, court. To learn more about federal habeas corpus,
you should read JLM, Chapter 13, “Federal Habeas Corpus.”
b. Requirements for Habeas Relief
There are four requirements you must fulfill in order to get state habeas relief:
(1) you must be in custody;
(2) you must be entitled to immediate release if your petition is successful;
(3) you must be a state prisoner; and
(4) there must be no other way to get the relief you want.
i. Custody
Custody means you must be confined by the state in some way. Therefore, usually you
cannot challenge a sentence you have not yet begun to serve. In Florida, Texas, and New
York, you may apply for habeas corpus if you are in jail or prison. However, whether you may
apply for habeas corpus if you are on parole, released on a bond, or released on your own
recognizance4 (“ROR”), depends on which state convicted you. See Parts A(3)(c), C(2)(c) and
* This Chapter was revised by Alison Wright, based in part on previous versions by Renate Lunn and
Jennifer Morrison.
1. “Habeas corpus” is often shortened to “habeas.” Also, “petition for a writ of habeas corpus” is
sometimes shortened to “petition for habeas corpus.”
2. See JLM, Chapter 20, “Using Article 440 of the New York Criminal Procedural Law to Attack
Your Conviction or Illegal Sentence,” for a list of statutes for state post-conviction relief in other states.
JLM, Chapter 2, “Introduction to Legal Research” can help you to conduct further research on the laws
in your state.
3. If you are incarcerated in a federal prison, you cannot file for state habeas corpus; you must
file a petition for federal habeas corpus. See JLM, Chapter 13 for more information about federal
habeas corpus.
4. Released on your own recognizance (often shortened to ”ROR’d” or simply “ROR”) means that
the court has released you because you have given a written promise to appear at your next court date.
D(2)(c) of this Chapter for more information about habeas corpus petitions if you are on
probation or parole.
ii. Immediate Release
Florida,5 New York,6 and Texas7 courts will usually refuse to consider your habeas corpus
petition unless a successful petition will result in your immediate release. In other words, if
you are serving time for several convictions, you may not petition for a writ of habeas corpus
to challenge only one conviction or sentence, since you will remain imprisoned for the other
convictions regardless of the outcome of your petition.8
You may be able to petition for habeas corpus even though it will not result in your
immediate release if you complain about a specific aspect of your incarceration. For example,
if you are incarcerated at the wrong facility or your bail was set too high, you may petition
for a writ. Though you will not be released when your petition is granted, you will be
transferred to the correct facility or your bail will be lowered.
iii. State Prisoner
If you are a federal prisoner, state habeas corpus relief is not available to you.9 See JLM,
Chapter 13, “Federal Habeas Corpus,” for help with applying for a habeas writ in federal
5. See North v. State, 217 So. 2d 608, 609 (Fla. Dist. Ct. App. 1st Dist. 1969) (denying petition for
writ of habeas corpus when defendant was no longer in custody). See also Schmunk v. State ex rel
Sandstrom, 353 So. 2d 907, 907 (Fla. Dist. Ct. App. 4th Dist. 1977) (denying petition when defendant
was fined for a traffic violation, but never in custody).
6. See People ex rel. Daniels v. Beaver, 303 A.D.2d 1025, 1025, 757 N.Y.S.2d 195, 195 (4th Dept.
2003) (holding that trial court properly dismissed habeas petition where, even if petitioner had been
denied the right to appear before the Parole Board, he would not have been entitled to immediate
release); People ex rel. Chaikin v. Warden, 63 N.Y.2d 120, 125, 470 N.E.2d 146, 148, 480 N.Y.S.2d 719,
721 (1984) (“[H]abeas corpus generally will lie only where the defendant would become entitled to his
immediate release upon the writ being sustained.”); People ex rel. Kaplan v. Comm’r of Corr., 60 N.Y.2d
648, 649, 454 N.E.2d 1309, 1309, 467 N.Y.S.2d 566, 566 (1983) (denying writ of habeas corpus because
only remedy to which petitioner was entitled would be a new trial or new appeal, not immediate
release). See also People ex rel. DeFlumer v. Strack, 212 A.D.2d 555, 555, 623 N.Y.S.2d 1, 1 (2d Dept.
1995) (denying habeas petition where petitioner challenged several conditions of his conditional
release); People ex rel. Travis v. Coombe, 219 A.D.2d 881, 881, 632 N.Y.S.2d 340, 340 (4th Dept. 1995)
(denying habeas petition where conditions for conditional release were not met and petitioner was
therefore not entitled to immediate release even if the writ was sustained).
7. See Ex parte Alt, 958 S.W.2d 948, 952 (Tex. Ct. App. 3d Dist. 1998) (holding that if granting
habeas petition would not entitle relator to immediate discharge, writ would not be heard); Ex
parte Johnson, 311 S.W.2d 861, 862, 166 Tex. Crim. 108, 109 (Tex. Crim. App. 1958) (denying habeas
petition because, even if relator’s contentions could be sustained, he would not be entitled to immediate
release).
8. In Florida, see Alderman v. State, 188 So. 2d 803, 804 (Fla. 1966) (denying writ of habeas
corpus when relator was legally incarcerated on concurrent sentence); Gorman v. Cochran, 127 So. 2d
667, 667–668 (Fla. 1961) (denying writ of habeas corpus to relator who was attacking future sentences
he had not yet begun to serve).
In New York, see People ex rel. Brown v. New York State Div. of Parole, 70 N.Y.2d 391, 398, 516
N.E.2d 194, 197, 521 N.Y.S.2d 657, 660 (1987) (denying writ of habeas corpus because “relator, in
addition to being held on the parole violation, is being held on unrelated pending criminal charges.
Because success on the merits in this proceeding would not entitle him to immediate release from
custody, the remedy of habeas corpus is unavailable.”).
In Texas, see Ex parte Padgett, 230 S.W.2d 813, 814 (Tex. Crim. App. 1950) (holding prisoner
confined under two different sentences, only one challenged in his habeas petition, was not entitled to
discharge on a writ of habeas corpus).
9. In Florida, see Simmons v. State, 579 So. 2d 874, 874 (Fla. Dist. Ct. App. 1st Dist. 1991)
(holding that the state circuit court is without power to issue a writ of habeas corpus for a prisoner who
is not in the custody of the state).
In New York, see N.Y. C.P.L.R. 7002(a) (McKinney 1998 & Supp. 2006); N.Y. C.P.L.R. 7002(c)(3)
court. More importantly, if you are a state prisoner, you must submit your petition in the
state where you are incarcerated.10
iv. No Other Options
You may not petition the court for a writ of habeas corpus if there are other ways to get
the relief you seek. Other procedures include appeal, administrative procedures, and
grievance procedures. If you have not yet finished your appeal or are in the middle of a
grievance hearing, you should not file a habeas petition until you are done with those other
procedures. When you appeal, you are asking the court to reconsider the decision of the lower
court. When you file a habeas petition, on the other hand, you are asking the court to
consider whether the conviction and sentencing procedure was fair. You should read JLM,
Chapter 15, “Inmate Grievance Procedures,” for more information about prisoner grievance
proceedings and JLM Chapter 9, “Appealing Your Conviction or Sentence,” for a discussion of
an appeal. Each state has its own exceptions to and standards for the general rule that other
procedures must not be available.
c. What You Can Complain About in Your Habeas Petition
(a) Before Trial11
If you are incarcerated before your trial (“detained”), you may be able to claim one of the
following grounds for habeas relief: improper extradition, excessive bail, or delay. In Florida,
you can also challenge a search warrant or probable cause. In Texas, you can also claim
double jeopardy. These grounds are discussed in detail in the Florida (Part B) and Texas
(Part D) sections of this Chapter.
(i) Extradition
An extradition is a warrant for arrest demanding that the arrested person be returned to
and tried in the state issuing the warrant. If you were arrested in Florida, New York, or
Texas on an extradition warrant from another state, you may contest extradition to that
state by petitioning the court in the state in which you are in custody for a writ of habeas
corpus.12 But, the Supreme Court has held that in such circumstances the state court may
(McKinney 1998 & Supp. 2006) (“The petition … shall state … that a court or judge of the United
States does not have exclusive jurisdiction to order [the petitioner] released.”).
In Texas, see Tex. Code Crim. Proc. Ann. art. 11.63 (Vernon 2005) (prohibiting state habeas corpus
relief to prisoner held under federal authority); see also Ex parte Di Van Nguyen, 31 S.W.3d 815, 816
(Tex. Crim. App. 2000) (denying habeas corpus relief to a petitioner in Immigration and Naturalization
Service (INS) custody, stating that only a federal court could issue of writ of habeas corpus to
petitioner).
10. In New York, see People ex rel. Warren v. People, 171 A.D.2d 768, 768, 567 N.Y.S.2d 321, 321
(2d Dept. 1991) (dismissing federal prisoner’s habeas corpus petition because the petitioner was
incarcerated outside of New York).
In Texas, see Ex parte Rodriguez, 169 Tex. Crim. 367, 367–368, 334 S.W.2d 294, 294 (Tex. Crim.
App. 1960) (holding that relator must apply for habeas corpus relief first to the judge of the trial court).
In Florida, see Dugger v. Jackson, 598 So. 2d 280, 282, 17 Fla. L. Weekly 1264, 1266 (Fla. Dist. Ct.
App. 1st Dist. 1992) (vacating lower court’s grant of habeas corpus writ because the state of conviction,
South Carolina, had not given its authority for the Florida court to hear such claim; the relator had to
apply for relief from South Carolina).
11. For more information generally on your rights before trial, see the JLM Chapter on “The
Rights of Pretrial Detainees,” which is available online at http://hrlr.razummedia.com/index_jlm.php or
by writing to our office at: Columbia Human Rights Law Review, Attn: Jailhouse Lawyer’s Manual, 435
West 116th Street, New York, NY 10027.
12. For example, if you are arrested in Florida on an extradition warrant from Georgia, you
could contest your extradition to Georgia using the Florida state habeas corpus procedures.
only consider the following issues: whether the documents from the demanding state13 are in
order, whether you are a fugitive, whether you have been charged with a crime in the
demanding state, and whether you are the person named in the extradition warrant.14
You may challenge the extradition warrant on the following two grounds: (1) if you can
prove by conclusive evidence that you were not in the demanding state at the time the crime
was committed,15 or (2) if you have been held longer than allowed by the laws of the state in
which you are held.
(ii) Bail
You are not constitutionally entitled to bail, but if you are granted bail, it must not be
excessive. Florida, New York, and Texas all permit you to ask for habeas relief if you have
been denied bail, or if the bail was excessive.16 Each state, however, has different criteria for
13. The demanding state is the state that requested the arrest and the state to which the
prisoner will be extradited (sent) for prosecution. The state in which the prisoner is being held is known
as the asylum state.
14. See Michigan v. Doran, 439 U.S. 282, 289, 99 S. Ct. 530, 535, 58 L Ed.2d 521, 527 (1978) (“[A]
court considering release on habeas corpus can do no more than decide (a) whether the extradition
documents on their face are in order; (b) whether the petitioner has been charged with a crime in the
demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d)
whether the petitioner is a fugitive.”); State v. Luster, 596 So. 2d 454, 456, 17 Fla. L. Weekly 206, (Fla.
1992) (adopting Michigan v. Doran in Florida); Ex parte Potter, 21 S.W.3d 290, 299 (Tex. Crim. App.
2000) (applying Michigan v. Doran to Texas); People ex rel. Coster v. Andrews, 104 Misc. 2d 506, 512,
428 N.Y.S. 2d 594, 597–98 (Sup. Ct. Broome County 1980) (applying Michigan v. Doran to New York).
In New York, see also People v. Culwell, 163 Misc. 2d 576, 579-80, 621 N.Y.S.2d 490, 492 (Sup. Ct.
Schoharie County 1995) (granting writ of habeas corpus and finding that petitioner was not a fugitive
where demanding state failed to comply with N.Y. Crim. Proc. Law § 570.16 (McKinney Supp. 2002),
which required proof that petitioner either committed crime in demanding state or did acts in New
York which would constitute crime in demanding state).
15. In Florida, this ties into the other factors. If you were not in the demanding state at the time
of the incident then you are also not a fugitive from justice. See Galloway v. Josey, 507 So. 2d 590, 594,
12 Fla. L. Weekly 182, 182 (Fla. 1987) (granting habeas petition and holding that once a petitioner
comes forward with clear and convincing evidence to rebut the presumption that he was a fugitive, the
burden shifts to the state to produce competent evidence discrediting the prisoner’s proof to such a
degree that it ceases to be clear and convincing). See also State v. Cox, 306 So. 2d 156, 159, (Fla. Dist.
Ct. App. 2d Dist. 1974) (“[T]he question of whether an accused is a fugitive from justice asks nothing
more than whether he was bodily present in the demanding state at the time of the offense and
thereafter departed from that state.”); State ex rel. Smith v. Clark, 33 So. 2d 721, 722, 160 Fla. 113, 114
(1948) (denying habeas petition where record determined that petitioner was in the state at the time of
the commission of the robbery); Trent v. McLeod, 179 So. 906, 907, 131 Fla. 617, 618–619 (1938)
(denying habeas petition where nothing in the record supported petitioner’s claim that he was not in
the demanding state); State ex rel. Stringer v. Quigg, 107 So. 409, 412, 91 Fla. 197, 203 (1926) (holding
that the court must consider, among other things, whether the warrant shows that he was in the
demanding state at the time that the offense was committed); Kuney v. State, 102 So. 547, 549, 88 Fla.
354, 358 (1924) (reversing lower court because it did not consider whether petitioner was in the
demanding state at the time of the alleged offense).
In New York, see People ex rel. Friedman v. Comm’r of New York City Dept. of Corr., 66 A.D.2d
689, 690, 411 N.Y.S.2d 267, 268–69 (1st Dept. 1978) (holding that failure to specify when crime was
committed deprived petitioner of the right to prove that he was out of the state at the time). But see
People ex rel. Pata v. Lindemann, 75 A.D.2d 654, 655, 427 N.Y.S.2d 445, 446 (2d Dept. 1980) (denying
habeas petition and holding that where the indictment charged crimes of a continuing nature which
allegedly took place throughout the entire period covered by the indictment, it was up to the accused to
prove his absence from the demanding state throughout the entire period).
In Texas, see Ex parte Sutton, 455 S.W.2d 274, 276 (Tex. Crim. App. 1970) (holding burden of proof
is on the person arrested on an extradition warrant to establish he was not in demanding state when
the alleged offense was committed).
16. In Florida, see Fla. Stat. Ann. § 3.850(a) (West 2006). In New York, see N.Y. C.P.L.R.
7010(b) (McKinney 1998). In Texas, see Tex. Code Crim. Proc. Ann. art. 11.24 (Vernon 2005).
determining when bail is excessive. So, make sure to read the state-specific Parts of this
Chapter and research your state’s laws.
(iii) Delay
You may file for habeas corpus if you have been incarcerated without formal charges filed
against you for a period of time longer than the maximum your state allows. There are two
types of formal charges. The first is called an “information.” This is a formal charging
document. An information may be filed by a prosecutor without a grand jury. In New York,
prosecutors usually charge misdemeanors using an information. The second type of formal
charge is an “indictment,” which a grand jury issues.
(b) After Your Conviction
If you are incarcerated after your conviction, you may be able to claim one of the
following grounds for habeas relief:
(1) confinement beyond sentence or calculation of sentence;
(2) violation of fundamental constitutional or statutory rights;
(3) new or void law;
(4) ineffective assistance of counsel; or
(5) discovery of new evidence.
In New York, you can also file on the grounds of unreasonable delay17 or violation of the
conditions of your sentence.18 In Texas, you can challenge the entry of a defective guilty
plea.19 Each state has a different approach. For more information on grounds for habeas
petitions in particular states, see Parts B, C, and D.
(c) While You Are On Probation or Parole
You can also file a habeas corpus petition if your parole or probation is withdrawn. No
matter which state you are in, you have the right to a probable cause hearing to determine
whether you violated the conditions of your parole.20 You must be given notice of this hearing
and you have the right to appear, speak on your own behalf, present witnesses, and cross-
examine witnesses testifying against you. This hearing is to determine whether you will be
held in custody until the decision on whether to revoke your parole is issued. You also have
the right to a final revocation hearing “within a reasonable time” after you have been taken
into custody.21 For more information about parole see JLM, Chapter 35, “Getting Out Early:
Conditional and Early Release,” and JLM, Chapter 36, “Parole.”
17. See People ex rel. Anderson v. Warden, New York City Corr. Inst. for Men, 68 Misc. 2d 463,
468, 325 N.Y.S.2d 829, 835 (Sup. Ct. Bronx County 1971) (“[I]f there is an unreasonable delay in the
disposition of an article 440 motion, the defendant can, perhaps, properly bring a writ of habeas
corpus.”). See also See People ex rel. Lee v. Smith, 58 A.D.2d 987, 987, 397 N.Y.S.2d 266, 267 (4th Dept.
1977) (granting a hearing on the merits of relator’s habeas corpus petition, even though an appeal was
pending, because the relator’s appeal had been pending for more than four years). You should read Part
C(2)(b)(vi) for more information about “unreasonable delay” habeas grounds in New York.
18. See People ex rel. Brown v. Johnston, 9 N.Y.2d 482, 485, 174 N.E.2d 725, 726, 215 N.Y.S.2d
44, 45 (1961) (“[I]t seems quite obvious that any further restraint in excess of that permitted by the
judgment or constitutional guarantees should be subject to inquiry.”). You should read Part C(2)(b)(vii)
for more information about “violation of the conditions of your sentence” habeas grounds in New York.
19. See Ex parte Taylor, 522 S.W.2d 479, 480 (Tex. Crim. App. 1975) (holding that habeas
would be proper remedy where judge failed to properly inform petitioner of consequences of the plea,
assuming petitioner could show prejudice). You should read Part D(2)(b)(vi) for more information about
“defective guilty plea” habeas grounds in Texas.
20. Morrissey v. Brewer, 408 U.S. 471, 485, 92 S. Ct. 2593, 2602, 33 L. Ed. 2d 484, 496-97 (1972).
Since this is a Supreme Court case, it applies to all states.
21. Morrissey v. Brewer, 408 U.S. 471, 488, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484, 498 (1972).
In Florida, you may challenge errors in parole revocation proceedings and orders of the
Florida Probation and Parole Commission by petitioning for a writ of habeas corpus.22 You
may file a habeas petition to challenge the Parole Commission’s determinations of
presumptive parole release dates.23 If you are incarcerated after your presumptive release
date, you may petition for a habeas corpus writ.24
Petitions for habeas corpus relief can also be brought in connection with parole
revocation hearings in New York25 and Texas.26
(d) Jurisdiction
Another possible ground for habeas relief—but one almost always rejected—is the court
that imprisoned you did not have “jurisdiction,” or the power to hear and decide a case. In a
criminal case, a court must have two types of jurisdiction: (1) personal jurisdiction (the power
to judge you, the defendant); and (2) subject matter jurisdiction (the power to judge the
offense with which you were charged). If the court that imprisoned you did not have either of
these types of jurisdiction, you can petition for habeas corpus.27
(i) Personal Jurisdiction
A court has personal jurisdiction when you go to or are taken to court and appear before
the judge.28 Since you almost certainly appeared before a court either at the trial leading to
your conviction or at your arraignment (if you have not yet gone to trial), you will rarely be
able to petition for habeas corpus on the ground that the court lacked personal jurisdiction.
22. See State v. Sampson, 297 So. 2d 120, 121-22 (Fla. Dist. Ct. App. 4th 1974) (finding that
habeas corpus is the proper method for challenging order of the Florida Parole and Probation
Commission); State ex rel. Wainwright v. Holley, 234 So. 2d 409, 410 (Fla. Dist. Ct. App. 2d Dist. 1970)
(holding that the proper way to challenge error in post-conviction proceedings such as parole revocation
is through habeas corpus); see also Jackson v. Mayo, 73 So. 2d 881, 882–883 , (Fla. 1954) (granting
relief where no evidence was offered authorizing revocation of parole); Beal v. Mayo, 70 So. 2d 367, 369
(Fla. 1954) (affirming that where there is a complete absence of any adjudication at all, the judgment
and sentence will be subject to being set aside on habeas corpus); Sellers v. Bridges, 15 So. 2d 293, 295,
153 Fla. 586, 590–591 (1943) (holding whether prisoner inexcusably violated conditions of pardon or
parole was proper for habeas inquiry).
23. See Williams v. Florida Parole Comm'n, 625 So. 2d 926, 934, 18 Fla. L. Weekly 2258 (Fla. 1st
Dist. Ct. App. 1993) (finding that the proper remedy to challenge presumptive release date is habeas
corpus).
24. See Jenrette v. Wainwright, 410 So. 2d 575, 577–578 (Fla. Dist. Ct. App. 1982) (ruling that
prisoner whose presumptive parole release date has passed is entitled to immediate release on habeas
corpus).
25. Read Part C(2)(c) for more information about bringing a petition for habeas corpus in
connection with your parole revocation hearing in New York.
26. Ex parte Snow, 899 S.W.2d 201, 202–203 (Tex. Crim. App. 1995) (granting relief to relator
who was denied a parole revocation hearing when his parole was curtailed after he was convicted of
another offense that occurred before the first conviction). Read Part D(2)(c) for more information about
bringing a petition for habeas corpus in connection with your parole revocation hearing in Texas.
27. Ex parte Livingston, 156 So. 612, 618, 116 Fla. 640, 654 (1934) (“Want of jurisdiction over
person or subject matter is always ground for relief on habeas corpus.”).
28. See Frisbie v. Collins, 342 U.S. 519, 522–523, 72 S. Ct. 509, 511–512, 96 L. Ed. 541, 545–546
(1952) (denying petitioner’s application for habeas corpus even though he was brought into the court’s
jurisdiction by forcible abduction).
In New York, see People ex rel. Ortiz v. Warden, 119 A.D.2d 526, 528, 501 N.Y.S.2d 667, 668 (1st
Dept. 1986) (dismissing petition for habeas corpus, and, by applying two U.S. Supreme Court cases to
New York, ruling that even though New York authorities did not provide the proper papers for
extradition, court has personal jurisdiction if petitioner is present in court).
(ii) Subject Matter Jurisdiction
Subject matter jurisdiction is the court’s power to decide cases involving the type of
offense with which you were charged. The court only has proper subject matter jurisdiction if
the right kind of indictment or information has been issued. Because indictments and
informations grant jurisdiction, you may petition the court for habeas relief at any time
before or after conviction29 if the indictment against you is defective.30 An indictment can be
defective in many ways, but to get habeas relief it must be so wrong it fails to charge you
with a crime. 31 What constitutes a defective indictment varies from state to state. For
instance, a defective indictment might not list all of the elements of the crime, or it might
charge you with something not against the law, or it might have been issued after the statute
of limitations for the offense has run. If the court finds the indictment is defective, it will be
voided and you will be entitled to immediate release for that charge. But, the prosecutor may
try to re-indict you for the same offense, using an indictment that is not defective.
B. Florida
This Part explains some of the basic rules for filing a habeas corpus petition in Florida.
29. In Florida, see Ex parte Livingston, 116 Fla. 640, 654, 156 So. 612, 618 (1934) (holding that a
faulty indictment may be grounds to overturn a conviction and may be challenged at any time). In New
York, see People ex rel. Morris v. Skinner 67 Misc. 2d 221, 323 N.Y.S.2d 905, 909 (Sup. Ct. Monroe
County 1971) (granting habeas relief where information failed to charge petitioner with a crime); 64
N.Y. Jur. 2d, Habeas Corpus § 44 (2001 & Supp. 2006). In Texas, see Ex parte McClain, 623 S.W.2d 140
(Tex. Crim. App. 1981) (finding that defective indictment can be attacked for the first time on post-
conviction petition for writ of habeas corpus).
30. In Florida, see Farrior v. State ex rel. Compton, 13 So. 2d 147, 147, 152 Fla. 754, 756 (1943)
(finding that habeas is proper remedy for indictment that fails to allege a crime); see also Locklin v.
Pridgeon, 30 So. 2d 102, 103 158 Fla. 737, 739 (1947) (finding that “the sufficiency of the indictment
may be challenged in habeas corpus proceedings when it totally fails to charge an offense under any
valid law;” granting a writ of habeas corpus where the statute under which he was convicted was too
indefinite and uncertain to comply with due process requirements); Ex parte Wilson, 14 So. 2d 846, 846,
153 Fla. 459, 460 (1943) (remanding with instructions where verdict purporting to find petitioner guilty
of criminal offense was defective and judgment pronounced by trial court was imperfect); House v.
State, 172 So. 734, 735, 127 Fla. 145, 150 (1937) (holding that where a prisoner brought a habeas
corpus challenge because his verdict was imperfect in that it did not contain a proper adjudication of
the crime as defined in the statute, he should be sent back to the trial court for a proper adjudication);
Martin v. State, 166 So. 467, 467, 123 Fla. 143, 144–145 (1936) (holding that petitioner could raise
issue of defective information on post-conviction petition for writ of habeas corpus).
In New York, see People ex rel. Gray v. Tekben, 86 A.D.2d 176, 180, 449 N.Y.S.2d 276, 276(2d Dept.
1982) (granting habeas corpus where the indictment charging assault in second degree only conferred
jurisdiction to enter judgment on such crime or lesser included offenses, and petitioner was convicted of
another offense, which was neither included in the indictment nor a lesser included offense of assault),
aff’d, 57 N.Y.2d 651, 493 N.E.2d 875, 454 N.Y.S.2d 66 (1982).
In Texas, see Ex parte Jones, 542 S.W.2d 179, 180 (Tex. Crim. App. 1976) (granting habeas petition
because indictment was fatally defective); Ex parte Lewis, 544 S.W.2d 430, 431 (Tex. Crim. App. 1976);
Ex parte Garcia, 544 S.W.2d 432, 433 (Tex. Crim. App. 1976).
31. In Florida, see Ex parte Stirrup, 19 So. 2d 712, 713, 155 Fla. 173, 175 (Fla. 1944) (holding
habeas will not secure release where the indictment was merely defective in its allegations); see also
Peterson v. Mayo, 65 So. 2d 48, 48 (Fla. 1953) (“Defects in an information are not subject to attack in a
habeas corpus proceeding unless the defects are of such magnitude that the information utterly fails to
charge any crime or offense under the laws of the State of Florida.”).
In Texas, see Ex parte Pullin, 608 S.W.2d 935, 935, (Tex. Crim. App. 1980) (reversing where
information failed to allege culpable mental state).
1. Requirements
The Florida writ of habeas corpus rules can be found in Rule 3.850 of the Florida Rules of
Criminal Procedure32 and in state law 79.01.33 In Florida, habeas petitions in the appellate
courts are generally limited to claims of ineffective assistance of counsel.34 For most post-
conviction relief (challenges to your conviction, sentence, or confinement), you must file a
Rule 3.850 motion. Although the Rule 3.850 motion asks for relief similar to a habeas
petition, you should be sure to follow its own specific pleading requirements. Prisoners facing
the death penalty in Florida must follow a different procedure.35
(a) Custody
If you are on parole or probation you are eligible for habeas corpus.36 However, if you
have been released on bond37 or ROR,38 you may not file a petition for writ of habeas corpus
in Florida.
(b) Immediate Release
You must be entitled to immediate release upon the success of your habeas claim.
(c) State Prisoner
In Florida, if you were convicted in another state, but sent to prison in Florida, the state
that convicted you (the sending state) must hear your habeas corpus petition.39
(d) No Other Options
If you are appealing administrative action taken against you by the Florida State
Department of Corrections or complaining about the conditions of your confinement, you
must use administrative procedures first. Rule 33-103 of the Florida Administrative Code
describes the administrative procedures available to you.40 Your petition for habeas corpus
will not be granted unless you have followed these procedures.41 In Florida, you may lose
32. Fla. Stat. Ann. § 3.850 (West 2006).

33. Fla. Stat. Ann. § 79.01 (West 2004).
34. See JLM, Chapter 12, “Ineffective Assistance of Counsel,” for more information on these
types of claims.
35. See Fla. Stat. Ann. § 3.851 (West 2006) (setting out collateral relief procedures after a death
sentence has been imposed and affirmed on direct appeal).
36. See State v. Bolyea, 520 So. 2d 562, 563–564, 13 Fla. L. Weekly 117, 117 (Fla. 1988) (holding
that a petitioner on probation is in custody); Sellers v. Bridges, 15 So. 2d 293, 295–296, 153 Fla. 586,
590–591 (1943) (holding that parole is sufficient restraint on freedom to consider relator in custody).
37. See State ex rel. Curley v. Gatlin, 5 So. 2d 54, 54, 149 Fla. 1, 1 (1941) (holding that prisoner
released on an appearance bond is not entitled to habeas relief).
38. See Sandstrom v. Kolski, 305 So. 2d 75, 76 (Fla. Dist. Ct. App. 3rd Dist. 1974) (refusing to
entertain petition for habeas corpus when relator not in custody because released after promising to
appear in court at designated time).
39. See Dugger v. Jackson, 598 So. 2d 280, 282, 17 Fla. L. Weekly 1264 (Fla. Dist. Ct. App. 1st
Dist. 1992) (vacating lower court’s grant of writ of habeas corpus because the state of conviction, South
Carolina, had not given its authority for the Florida court to hear such claim; the relator was ordered to
apply for relief from South Carolina).
40. Fla. Admin. Code Ann. R. 33–103 (1998).
41. See Seccia v. Wainwright, 517 So. 2d 80, 81, 12 Fla. L. Weekly 2886 (Fla. Dist. Ct. App. 1st
Dist. 1987) (dismissing prisoner’s habeas claim of being improperly put in administrative confinement
where petitioner failed to exhaust administrative remedies); Sutton v. Strickland, 485 So. 2d 25, 25–26,
11 Fla. L. Weekly 675 (Fla. Dist. Ct. App. 1st Dist. 1986) (dismissing prisoner’s petition for writ of
habeas corpus on the ground that he failed to exhaust inmate grievance procedures); Griggs v.
Wainwright, 473 So. 2d 49, 49–50, 10 Fla. L. Weekly 1844 (Fla. Dist. Ct. App. 1st Dist. 1985) (holding
that “[p]rior to seeking extraordinary relief by way of habeas corpus, a petitioner challenging his
your right to habeas relief on an issue if you file a habeas petition before exhausting
administrative procedures.42 Florida courts will also refuse to consider your habeas petition if
you could have raised an issue on appeal but did not.43
(a) Before Trial
(i) Extradition
In Florida, you may be held for a maximum of thirty days before extradition.44 So, if you
have been held for over thirty days awaiting extradition to another state, you may bring a
habeas corpus petition in Florida.
(ii) Bail
You may ask for habeas relief on the ground that you were denied bail45 or that your bail
is excessive.46 Some courts require petitioners to prove they have tried to make bail, and will
not consider a habeas petition if the evidence indicates that you could not post bail in any
amount.47 If the court finds in your favor, it may grant or lower your bail. If you have already
administrative confinement status must first exhaust his administrative remedies.”).

42. See Comer v. Fla. Parole & Prob. Comm’n, 388 So. 2d 1341, 1341 (Fla. Dist. Ct. App. 1st Dist.
1980) (holding that the failure to exhaust all available administrative remedies may procedurally bar
relief by writ of habeas corpus).
43. See Hardwick v. Dugger, 648 So. 2d 100, 105, 19 Fla. L. Weekly 433 (Fla. 1994) (finding
habeas corpus is not an available remedy where errors of law either were or could have been raised on
direct appeal); see also Mills v. Dugger, 574 So. 2d 63, 65, 15 Fla. L. Weekly 589 (Fla. 1990) (finding
that alleging ineffective counsel will not allow relator to raise issues that should have been raised on
appeal), reh’g denied (Feb. 28, 1991); T.L.W. v. Soud, 645 So. 2d 1101, 1105, 19 Fla. L. Weekly 2520,
(Fla. Dist. Ct. App. 1st Dist. 1994) (stating that arguments concerning whether the detention of relators
satisfies a statute should have been addressed to trial courts or in a motion for post-conviction relief).
44. See Hill v. Roberts, 359 So. 2d 911, 913 (Fla. Dist. Ct. App. 2d Dist. 1978) (finding prisoner
entitled to discharge on a habeas writ where he was available for extradition for more than 30 days and
demanding state took no action to receive him); see also Fla. Stat. Ann. § 941.15 (West Supp. 2006)
(setting statutory maximum of 30 days).
45. See Bennett v. State, 118 So. 18, 18, 1896 Fla. 237, 238 (1928) (finding that cause of action
for person seeking bail is habeas corpus); see also Bradwell v. McClure, 488 So. 2d 566, 567, 11 Fla. L.
Weekly 978 (Fla. Dist. Ct. App. 1st Dist. 1986) (granting habeas and ordering trial court to set a
reasonable bail for petitioner).
46. See Nicholas v. Cochran, 673 So. 2d 882, 883, 21 Fla. L. Weekly 989, 989 (Fla. Dist. Ct. App.
4th Dist. 1996) (granting writ after finding that trial court’s large increase of bail upon discovering that
petitioner possessed more assets than the court had been aware of did not comply with the purposes of
bail, which are to ensure the appearance of defendant at subsequent proceedings and to protect the
community against unreasonable danger from the defendant); Rawls v. State, 540 So. 2d 946, 947, 14
Fla. L. Weekly 935, 935 (Fla. Dist. Ct. App. 5th Dist. 1989) (finding that writ of habeas corpus is
available when petitioner can show trial court has set bail at an unreasonable amount and that bond
schedules do not justify excessive bail). In order to discourage the profits from the sale of drugs being
used to post bail, under Fla. Stat. Ann. § 903.046(2)(h) (West 2001 & Supp. 2007), courts may consider
the street value of drugs when setting bail on drug-related offenses. See Alvarez v. Crowder, 645 So. 2d
63, 63–64, 19 Fla. L. Weekly 2363, 2363 (Fla. Dist. Ct. App. 4th Dist. 1994) (citing Fla. Stat. Ann. §
903.046 (1993) (noting that criteria that should be taken into consideration in evaluating the amount of
bail include: “nature of the offense and applicable penalty, family ties, length of residence in the
community, employment history, financial resources, the defendant’s prior criminal record, risk of
flight, danger to the community and street value of any drugs involved”). But see Sikes v. McMillian,
564 So. 2d 1206, 1208, 15 Fla. L. Weekly 1949, 1949 (Fla. Dist. Ct. App. 1st Dist. 1990) (finding Fla.
Stat. Ann. § 903.046(2)(h) (West 2001 & Supp. 2007) does not support court increasing bail when
defendant is charged with purchasing and not selling drugs).
47. See Ex parte Smith, 193 So. 431, 431–432, 141 Fla. 434, 434–435 (1940) (holding that
reduction of bail will not be considered on habeas petition where the record indicates that petitioner
been convicted, the court will consider your request moot and will not review any petition
requesting bail because you cannot get bail after you are convicted.
(iii) Delay
If no formal charges are filed against you within twenty-one days, you are entitled to
release on a writ of habeas corpus.48 If you are released or charged before the court rules on
your habeas petition, your petition becomes moot and the court will not consider it.49 You
may also petition the court for a writ of habeas corpus if you request a preliminary hearing
and are not granted one in a timely manner.
(iv) Search Warrant and Probable Cause
If you were arrested pursuant to a search warrant, you may file a pretrial petition for
writ of habeas corpus challenging the validity of the search warrant. 50 You may also
challenge your arrest on the ground that there is no probable cause to believe that you
committed the crime with which you are charged.51 Probable cause is a very low threshold
and courts are not likely to grant habeas relief on this ground.52 When deciding your petition,
the court will not evaluate conflicting testimony in order to make determinations of fact.53
The court will leave this for trial.
i. Confinement Beyond Sentence
You are also entitled to a writ of habeas corpus if your sentence is void. A court will
consider a sentence void if it is completely different than what the law requires, for example,
if the judgment fails to state an offense, does not clearly adjudicate the defendant’s guilt, or
lists a charge not on the indictment.54 Courts have not used this argument recently.
would not have been able to make bail in any amount, but without prejudice to renew petition if
petitioner becomes able to make bail).
48. See Fla. R. Crim. P. 3.133(b) (West 2007); see also Beicke v. Boone, 527 So. 2d 273, 275, 13
Fla. L. Weekly 1410, 1410 (Fla. Dist. Ct. App. 1st Dist. 1988) (finding that state’s failure to file charges
within 21 days of arrest and that state’s failure to present evidence at the required adversary hearing
entitles defendant to release on his own recognizance on any charges resulting from the criminal
episode for which he was arrested).
49. See Bowens v. Tyson, 578 So. 2d 696, 697, 16 Fla. L. Weekly 270, 270 (Fla. 1991) (holding
that the filing of charges after the statutory deadline does not mandate automatic release on habeas
corpus claim).
50 . See State ex rel. Wilson v. Quigg, 17 So. 2d 697, 698–703, 154 Fla. 349–358 (1944)
(considering search warrant’s validity on appeal from a habeas corpus proceeding, where defendant
was held in part based on the warrant).
51. See State ex rel. Hanks v. Goodman, 253 So. 2d 129, 130 (Fla. 1971) (stating defendant has
remedy through habeas corpus if there is no probable cause to hold him); Jefferson v. Sweat, 76 So. 2d
494, 501 (Fla. 1954) (finding habeas corpus is proper remedy for testing validity of detention warrant);
Pierce v. Mims, 418 So. 2d 273, 273 (Fla. Dist. Ct. App. 2d Dist. 1982) (finding no probable cause when
the only evidence at preliminary hearing was hearsay).
52. Alabama v. White, 496 U.S. 325, 330, 110 S. Ct 2412, 2416, 110 L. Ed. 301, 308 (1990)
(“probable cause means ‘a fair probability that contraband or evidence of a crime will be found’”)
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
53. See State ex rel. Price v. Stone, 175 So. 229, 231, 128 Fla. 637, 641 (Fla. 1937) (denying
motion to appoint special commissioner to take testimony because “while on habeas corpus the court
will examine the legal sufficiency of the alleged facts to make out a crime, it will not determine the
probative force of conflicting or controverted testimony upon which the charge is based.”).
54. See Anglin v. Mayo, 88 So. 2d 918, 921–922 (Fla. 1956) (granting writ of habeas corpus when
defendant was sentenced using an outdated statute and the sentence prescribed by the revised statute
was shorter); Anderson v. Chapman, 146 So. 675, 677, 109 Fla. 54, 57–58 (1933) (“[I]f the vice of a
sentence is not merely that it is defective, but is of an entirely different character from that authorized
ii. Fundamental Rights
You may petition the court for a writ of habeas corpus to challenge a violation of your
fundamental constitutional rights. Though there is no comprehensive list of rights Florida
courts have declared “fundamental,” courts have consistently allowed petitioners to claim
certain rights in habeas petitions. These include the right to a trial by jury,55 the right to due
process,56 the double jeopardy right not to be convicted twice of the same charge,57 the right
to appeal,58 and the right to a speedy trial.59 The right to be free from cruel and unusual
punishment may also be claimed. That is, you may challenge your prison conditions by
alleging they are so unbearable as to constitute cruel and unusual punishment.60
iii. New or Void Law
You may also petition the court on the ground that the statute under which you were
prosecuted is unconstitutional.61 It is very rare for courts to find a statute unconstitutional. If
by law, it is generally held that such sentence is void, and that the prisoner will be discharged on
habeas corpus.”); see also Dean v. State, 476 So. 2d 318, 319, 10 Fla. L. Weekly 2331 (Fla. Dist. Ct. App.
2d Dist. 1985) (reversing sentences of youthful offender that exceeded maximums specified in Youthful
Offender Act); R. J. K. v. State, 375 So. 2d 871, 871 (Fla. Dist. Ct. App. 1st Dist. 1979) (granting writ to
juvenile because a “trial court cannot commit a juvenile for a specific period of time”); State ex rel.
Saunders v. Boyer, 166 So. 2d 694, 696–97 (Fla. Dist. Ct. App. 2d Dist. 1964) (remanding case for
resentencing because the sentence of one-year hard labor for contempt was void due to statutory
limitations). But see Dixon v. Mayo, 168 So. 800, 800–801, 124 Fla. 485, 487 (Fla. Div. B 1936) (denial of
writ of habeas corpus when court found relator’s argument—that the language of the judgment
appeared to find him guilty of a charge different than the one on the indictment—to be “not tenable”).
55. See Sneed v. Mayo, 66 So. 2d 865, 869–870, 874 (Fla. 1953) (holding that habeas corpus is
proper to review allegation that petitioner was denied right to trial by jury). To raise this issue in a
habeas petition you must have been denied your right to a jury trial. If you were offered a jury trial and
turned it down, then you expressly waived your right to a jury trial and may not petition the court for
habeas on this issue.
56. See Sneed v. Mayo, 69 So. 2d 653, 655 (Fla. 1954) (despite non-compliance with state statute,
court denied writ because constitutional requirement of due process was met); Lightfoot v. Wainwright,
369 So. 2d 110, 111 (Fla. Dist. Ct. App. 1st Dist. 1979) (finding that a person who has been denied right
to due process is entitled to habeas relief).
57. See Deal v. Mayo, 76 So. 2d 275, 276 (Fla. 1954) (holding that habeas corpus review is proper
to test whether petitioner was subject to double jeopardy at trial).
58. See Myrick v. Wainwright, 243 So. 2d 179, 180 (Fla. Dist. Ct. App. 2d Dist. 1971) (considering
and denying habeas petition because the official court record conclusively established petitioner had
been advised of his right to appeal his conviction and sentence); Dennis v. Wainwright, 243 So. 2d 181,
182 (Fla. Dist. Ct. App. 2d Dist. 1971), opinion supplemented on other grounds, 247 So. 2d 88 (Fla. Dist.
Ct. App. 2d Dist. 1971) (finding that to raise denial of right to appeal because of untimely filing,
petitioner must prove that the frustration of right to appeal was due to state action and not to
petitioner’s negligence).
59. See Pena v. Schultz, 245 So. 2d 49, 50 (Fla. 1971) (finding habeas is proper to determine
whether speedy trial right was denied); Griswold v. State, 82 So. 44, 48, 77 Fla. 505, 515–517 (1919)
(holding absent any showing continuance was granted without good cause, the court presumed one
continuance did not violate the accused’s speedy trial right). This issue would best be brought before
trial. It is very unlikely the court will grant relief on this issue after conviction.
60. See Graham v. Vann, 394 So.2d 176, 177 (Fla. Dist. Ct. App. 1st Dist. 1981) (affirming writ
where petitioners sought relief from prison conditions that “daily imperil their lives and safety” even
though a federal case challenging inadequate medical care was pending). Prison conditions may also be
challenged using 42 U.S.C. § 1983; see JLM, Chapter 16 for more information.
61. See Sandstrom v. Leader, 370 So. 2d 3, 5 (Fla. 1979) (“a writ of habeas corpus may be utilized
by an accused to challenge the constitutionality of a statutory provision under which he is charged”);
State ex rel. Matthews v. Culver, 114 So. 2d 796, 796 (Fla. 1959) (holding petitioner was being
unlawfully detained because he was convicted and sentenced under a statute that was later declared
unconstitutional and therefore he must be released); Coleman v. State ex rel. Jackson, 193 So. 84, 85,
140 Fla. 772, 774 (1939) (holding habeas corpus is the proper vehicle where the charge made does not
the statute you were prosecuted under is declared unconstitutional, you are entitled to
immediate release via a habeas writ.
iv. Ineffective Counsel
You have the right to effective assistance of counsel to help you with your appeal. You
may petition the court for a writ of habeas corpus if you are indigent, requested counsel on
appeal, and were denied that right.62 If you did not make your need for counsel known, the
court is not likely to consider your petition. You may also petition the court for habeas relief
because your counsel was ineffective. 63 Proving ineffective assistance of counsel is very
difficult. The court will only consider whether the attorney’s mistakes were so great they
were grossly outside the range of acceptable performance and hindered your appeal to the
extent that they undermined its result.64 You must show there is a good chance that if your
counsel had not made these mistakes, the outcome on appeal would have been different.65
You may not use a habeas corpus proceeding to allege ineffective assistance of counsel at
trial.; That issue may only be raised on appeal.66
constitute a crime under the laws of Florida because the statute under which the charge being made is
unconstitutional); La Tour v. Stone, 190 So. 704, 710–711, 139 Fla. 681 (1939) (stating the right to
attack an information by writ of habeas corpus is limited, and habeas corpus proceeding is proper
vehicle when the offense charged does not constitute a crime under the laws of the State because the
statue invoked in unconstitutional); Roberts v. Schumacher, 173 So. 827, 827, 127 Fla. 461, 462 (1937)
(noting habeas corpus is appropriate relief when the statute under which offense was charged is
invalid); State ex rel. Dixon v. Cochran, 114 So. 2d 228, 229 (Fla. Dist. Ct. App. 2d Dist. 1959) (noting
“habeas corpus proceeding is proper vehicle when statute invoked was held invalid by State Supreme
Court”).
62. See Baggett v. Wainwright, 229 So. 2d 239, 241–242 (Fla. 1969) (holding prisoners have a
constitutional right to counsel for purposes of direct appeal and the state’s failure to grant counsel
entitles prisoner to habeas relief to enforce that right, provided prisoner makes his need for counsel
known). For more information on ineffective assistance of counsel claims, see JLM, Chapter 12,
“Appealing Your Conviction Based on Ineffective Assistance of Counsel.”
63. See Owen v. Crosby, 854 So. 2d 182, 188, 28 Fla. L. Weekly 615, 615 (Fla. 2003) (holding that
petition for writ of habeas corpus is proper method to raise claims of ineffective assistance of appellate
counsel); Groover v. Singletary, 656 So. 2d 424, 425, 20 Fla. L. Weekly 151, 151 (Fla. 1995) (denying
habeas petition because all claims had been raised in prior proceedings and were found to be
procedurally barred or without merit and therefore appellate counsel was not ineffective for failing to
raise them); Nerey v. State, 634 So. 2d 206, 206–207, 19 Fla. L. Weekly 661 (Fla. Dist. Ct. App. 3d Dist.
1994) (denying habeas petition on grounds that appellate counsel was not ineffective because counsel
could reasonably have concluded that involuntary Miranda rights waiver argument would not prevail).
64. See Rogers v. Singletary, 698 So. 2d 1178, 1180–1181, 21 Fla. L. Weekly 503, 22 Fla. L.
Weekly 561 (Fla. 1996) (applying Pope v. Wainwright, 496 So. 2d 798, 11 Fla. L. Weekly 533 (Fla. 1986)
and denying writ of habeas corpus where court found that relator did knowingly and intelligently waive
the right to counsel for his appeal); Pope v. Wainwright, 496 So. 2d 798, 800, 11 Fla. L. Weekly 533
(Fla. 1986) (limiting determinations of ineffective appellate counsel to “first, whether the alleged
omission are of such magnitude as to constitute a serious error or substantial deficiency falling
measurably outside the range of professionally acceptable performance and, second, whether the
deficiency in performance compromised the appellate process to such a degree as to undermine
confidence in the correctness of the result” (citing Johnson v. Wainwright, 463 So. 2d 207, 209, 10 Fla.
L. Weekly 85 (Fla. 1985)); Jackson v. Dugger, 580 So. 2d 161, 162, 16 Fla. L. Weekly 327 (Fla. Dist. Ct.
App. 4th Dist. 1991) (granting petition for habeas corpus where counsel was determined to be defective
due to his failure to raise an issue on appeal that counsel for relator’s co-defendant raised, causing co-
defendant’s conviction to be reversed).
65. For more information on ineffective assistance of counsel claims, see Chapter 12 of the JLM,
“Appealing Your Conviction Based on Ineffective Assistance of Counsel.”
66. See Breedlove v. Singletary, 595 So. 2d 8, 10, 17 Fla. L. Weekly 67 (Fla. 1992) (“Claims of
trial counsel’s effectiveness are not cognizable in habeas corpus proceedings.”).
v. New Evidence
If there is newly discovered evidence in your case, you may petition the court for a writ of
habeas corpus. However the evidence must be very strong.67 It must be so strong that, if
admitted, it would probably produce an acquittal on retrial.68 In addition, you must be able to
prove that the information was not known by you or your attorney and could not have been
discovered by you or your attorney at time of trial.69 You may also file for a habeas petition if
you can show that the prosecutor failed to turn over exculpatory evidence (evidence that
would have been likely to support your innocence).70 To establish a claim that the prosecutor
failed to turn over such evidence, you must be able to show that:
(1) The state possessed evidence favorable to you;
(2) You did not possess nor could have obtained such evidence with reasonable effort;
(3) The prosecution suppressed the evidence; and
(4) There is a reasonable probability the case would have come out differently if the
evidence had been disclosed.71
(c) Probation or Parole
Florida courts have held that habeas corpus is the correct procedure by which you can
challenge errors in parole revocation proceedings and orders of the Florida Probation and
67. DNA evidence may be such an example. See JLM, Chapter 11, “Using Post-Conviction DNA
Testing to Attack Your Conviction or Sentence.”
68. See Jones v. State, 591 So. 2d 911, 915, 16 Fla. L. Weekly 745 (Fla. 1991) (stating that “the
newly discovered evidence must be of such a nature that it would probably produce an acquittal on
retrial”); see also Davis v. State, 736 So. 2d 1156, 1159, 24 Fla. L. Weekly 260, 260 (Fla. 1999) (denying
post-conviction relief motion because petitioner’s allegations regarding expert witness testimony were
speculative and thus not newly discovered evidence); Williamson v. Dugger, 651 So. 2d 84, 89, 19 Fla.
L. Weekly 582, 582 (Fla. 1994) (denying habeas corpus petition because new affidavits petitioner
offered to impeach a witness’s credibility were not likely to lead to an acquittal on retrial).
69. See Jones v. State, 591 So. 2d 911, 916, 16 Fla. L. Weekly 745, 745 ( Fla. 1991) (holding newly
discovered information must have been unknown at time of trial and could not have been discovered
through reasonable diligence); see also Steinhorst v. State, 695 So. 2d 1245, 1247–1248, 22 Fla. L.
Weekly 335, 335 ( Fla. 1997) (affirming the denial of defendant’s habeas motion because due diligence
could have uncovered files relating to the fact that defendant’s judge recused himself on a co-
defendant’s case, which defendant attempted to offer as newly discovered evidence); Correll v. State,
698 So. 2d 522, 523–524, 22 Fla. L. Weekly 188 (Fla. 1997) (denying petitioner’s post-conviction relief
because the evidence on an expert witness’s education offered to impeach the witness could have been
discovered at trial).
70. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–1197, 10 L. Ed. 2d 215, 218
(1963) (holding that “suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution”); see also Kyles v. Whitley, 514 U.S. 419, 421-22, 115 S. Ct.
1555, 1560, 131 L. Ed. 2d 490, 498 (1995) (applying Brady and reversing the denial of a habeas corpus
petition because the state failed to disclose evidence favorable to the petitioner); Brown v. Wainwright,
785 F.2d 1457, 1458 (11th Cir. 1986) (reversing petitioner’s conviction because the prosecution
knowingly allowed false testimony to be introduced and exploited in its case).
71. Downs v. State, 740 So. 2d 506, 513–517, 24 Fla. L. Weekly 231 (Fla. 1999) (denying motion
for post-conviction relief because appellant’s contentions that appellee had, among other things,
withheld exculpatory evidence and that appellant had received ineffective assistance of counsel were
meritless); Mills v. State, 684 So. 2d 801, 806, 21 Fla. L. Weekly 527 (Fla. 1996) (denying motion for
successive petition where defendant failed to produce statements or evidence to show that further
proceedings would have changed court’s conclusion of guilt); Scott v. State, 657 So. 2d 1129, 1132, 20
Fla. L. Weekly 133 (Fla. 1995) (reversing trial court’s decision and remanding for evidentiary hearing
on issue of possible Brady violations raised by defendant’s motion, but denying habeas petition as
procedurally barred); Hildwin v. Dugger, 654 So. 2d 107, 110–111, 20 Fla. L. Weekly 39 (Fla. 1995)
(denying habeas petition but vacating and remanding for new sentencing before a jury because
counsel’s errors had deprived petitioner of a reliable penalty phase).
Parole Commission. 72 You may also file a habeas petition to challenge the Parole
Commission’s determinations of presumptive parole release dates, 73 or if you are
incarcerated after your presumptive release date.74
(d) Subject Matter Jurisdiction
In Florida, courts will ordinarily find that as long as an indictment or information does
not completely fail to charge an offense, it provides the accused with enough information to
construct a defense and protects him from future prosecution for the same act. Therefore,
courts will not generally find such indictments or informations void or defective.75
3. How to File Your Petition
d. When to File
First make sure you are not eligible to bring a Rule 3.850 motion. Florida courts will
refuse to issue a writ of habeas corpus if you can pursue your claim through another action,
like a Rule 3.850 motion.76
If you are facing the death penalty, your petition for a writ of habeas corpus must be filed
at the same time as the initial brief filed on your behalf in the appeal of the circuit court’s
order on a motion to vacate, set aside, or correct a sentence.77
e. Where to File
Where you file depends upon the stage of your criminal case. If you have not been
convicted yet, or are filing a petition related to a probation violation, you must petition the
circuit court judge presiding over your case.78 But, if the Supreme Court has affirmed your
72. See State v. Sampson, 297 So. 2d 120, 121-22 (Fla. Dist. Ct. App. 4th Dist. 1974) (finding that
habeas corpus is the proper method for challenging order of the Florida Parole and Probation
Commission); State ex rel. Wainwright v. Holley, 234 So. 2d 409, 410 (Fla. Dist. Ct. App. 2d Dist. 1970)
(holding that the proper way to challenge error in post-conviction proceedings such as parole revocation
is through habeas corpus); see also Jackson v. Mayo, 73 So. 2d 881, 882–883 (Fla. 1954) (granting relief
where no evidence was offered authorizing revocation of parole); Beal v. Mayo, 70 So. 2d 367, 369 (Fla.
1954) (affirming that where there is a complete absence of any adjudication at all, the judgment and
sentence will be subject to being set aside on habeas corpus); Sellers v. Bridges, 15 So. 2d 293, 295, 153
Fla. 586, 590–591 (1943) (holding whether prisoner inexcusably violated conditions of pardon or parole
was proper for habeas inquiry).
73. See Williams v. Florida Parole Comm'n, 625 So. 2d 926, 934, 18 Fla. L. Weekly 2258 (Fla.
Dist. Ct. App. 1st Dist. 1993) (finding that the proper remedy to challenge presumptive release date is
habeas corpus).
74. See Jenrette v. Wainwright, 410 So. 2d 575, 577–578 (Fla. Dist. Ct. App. 1982) (ruling that
prisoner whose presumptive parole release date has passed is entitled to immediate release on habeas
corpus).
75. See Sweat v. Pettis, 158 Fla. 104, 106 27 So. 2d 827, 828 (Fla. 1946) (holding where an
information could not be said to wholly fail to state a violation of the law, a habeas petition was not the
proper way to challenge it; petitioner should have brought a motion to quash); State ex rel. Miller v.
Coleman, 130 Fla. 537, 544, 178 So. 157, 160 (Fla. 1938) (holding an information that “informs
defendant of the nature of the accusation against him, which does not wholly fail to charge an offense
and which enables defendant to prepare his defense and protects him from subsequent prosecution for
the same offense, will not on habeas corpus be held so fatally defective as to render conviction and
commitment … void.”); Taylor v. Chapman, 173 So. 2d 143, 146, 127 Fla. 401, 407–408 (1937) (refusing
to grant a writ where the information sufficient claimed intent and overt acts that would have resulted
in commission of the crime).
76. Fla. Stat. Ann. § 3.850(h) (West 2006).
77. Fla. Stat. Ann. §3.851(d)(3) (West 2006).
78. Fla. Stat. Ann. § 79.01 (West 2004); see also Newkirk v. Jenne, 754 So. 2d 61, 62, 25 Fla. L.
Weekly 518 (Fla. Dist. Ct. App. 2000) (finding that where petitioner was being detained in relation to a
probation violation, the circuit court judge presiding over her case had full authority to order her
conviction, you must file your petition with the Supreme Court.79 If you originally file with
the circuit court, and the circuit court denies your petition, then you may file another
petition with the Supreme Court.80 In general, you should file the petition in the jurisdiction
in which you are incarcerated, but if you are raising an issue that should have been raised on
direct appeal (like ineffective counsel), you should file in the court where the original
sentence was imposed.81
f. What to Include in Your Petition
Because the writ of habeas corpus is such a unique right, the courts in Florida may grant
applications for writs that do not comply with statutory requirements. For example, an
attorney may make a telephone call to a judge to apply for a writ,82 or a judge may decide
informal letters from a prisoner provide sufficient grounds for issuing the writ.83 But, it is
always better to comply with statutory requirements if you can, basing your argument on
enough detailed, factual allegations to make a case that on its face shows you are entitled to
be released.84 The statutory requirements for your application for a writ include
release).
79. See Kinsey v. Davis, 19 So. 2d 323, 325 154 Fla. 889, 892 (1944) (holding that where the
petitioner’s conviction had been affirmed by the Supreme Court, his habeas petition should have been
made to the Supreme Court because the circuit court could not grant a writ).
80. See Deeb v. Gandy, 148 So. 540, 541 110 Fla. 283, 284 (Fla. 1933) (holding that petitioner
was entitled to bail after the circuit court held that he should be remanded without bail).
81. Fla. Stat. Ann. § 79.01 (West 2004); see also Collins v. State, 859 So. 2d 1244, 1245, 28 Fla. L.
Weekly 2628, 2628 (Fla. 2003) (stating that when petitioner attacks the validity of conviction by raising
issues relating to the trial or to the propriety of the plea, jurisdiction lies with the trial court that
imposed the sentence); McLeroy v. State, 704 So. 2d 151, 152, 22 Fla. L. Weekly 2718, 2718 (Fla. Dist.
Ct. App. 5th Dist. 1997) (denying a petition for writ of habeas corpus alleging ineffective assistance of
counsel because the prisoner improperly filed in the jurisdiction where he was incarcerated rather than
where the original sentence was imposed).
82. See Jamason v. State, 455 So. 2d 380, 381, 9 Fla. L. Weekly 330, 330 (Fla. 1983) (upholding
an oral writ of habeas corpus which was issued in response to an oral application by the client’s
attorney over the telephone).
83. See Sneed v. Mayo, 66 So. 2d 865, 868 (Fla. 1953) (finding although the application for a writ
was an informal letter not conforming to statutory requirements, the communication was sufficient);
McKay v. Jenkins, 405 So. 2d 287, 288 (Fla. Dist. Ct. App. 1981) (construing appellant’s informal letter
to the court as a petition for a writ).
84. See Sims v. Dugger, 519 So. 2d 1080, 1082, 13 Fla. L. Weekly 292 (Fla. Dist. Ct. App. 1st
Dist. 1988) (reversing dismissal of a petition for habeas corpus because the petition contained detailed
factual allegations); Brown v. Wainwright, 498 So. 2d 679, 679 11 Fla. L. Weekly 2626 (Fla. Dist. Ct.
App. 1st Dist. 1986) (denying a petition for habeas in part because the petition failed to include any
arguments in support of the allegations); DeAngelo v. Strickland, 426 So. 2d 1264, 1264 (Fla. Dist. Ct.
App. 1st Dist. 1983) (affirming the denial of a prisoner’s petition for a writ of habeas corpus because the
prisoner was not entitled to the relief he sought and he failed to make a prima facie case since he did
not claim that he was illegally imprisoned); Bennington v. Thornton, 370 So. 2d 856, 857 (Fla. Dist. Ct.
App. 4th Dist. 1979) (denying a prisoner’s petition for a writ of habeas corpus because he failed to show
that the trial court abused its discretion in denying him bail or failing to hold a hearing as soon as was
possible); Bagley v. Brierton, 362 So. 2d 1048, 1049 (Fla. Dist. Ct. App. 1st Dist. 1978) (affirming the
trial court’s denial of a prisoner’s habeas petition in which he claimed he was denied adequate medical
care because even if the allegations were true, he would not be entitled to relief); Smith v. State, 176
So. 2d 383, 384 (Fla. Dist. Ct. App. 3d Dist. 1965) (affirming the trial court’s denial of a prisoner’s
habeas petition because the petition did not contain factual allegations to support its conclusions);
Sneed v. Mayo, 66 So. 2d 865, 869–870 (Fla. 1953) (stating that a habeas petition must contain at least
“some good faith suggestion of illegal detention”); Sullivan v. State ex rel. McCrory, 49 So. 2d 794, 796
(Fla. 1951) (noting that a habeas petition should be dismissed if the petition does not make a case that
on its face shows that the petitioner should be released from custody); Herring v. State, 132 Fla. 658,
659, 181 So. 892, 892 (1938) (denying a habeas petition since the prisoner did not claim unlawful
detention).
(1) The facts upon which you rely for relief;
(2) A request for a writ of habeas corpus; and
(3) An optional argument in support of the petition with citations of authority.85
While you do not need to present all the evidence of your wrongful detention, 86 you
should attach to your petition copies of the warrant, process, or proceeding that is causing
you to be detained.87 You should also state that you have exhausted all the administrative
remedies available to you.88
g. How to File
After you have created your petition for habeas corpus including all the items outlined in
Section (B)(3)(c) above, “What to Include in Your Petition,” you should send your petition and
any supporting documents to the court specified above in Section (B)(3)(b), “Where to File.”
4. Your Right to Counsel for Your Petition
The U.S. Supreme Court has held you have no federal constitutional right to counsel in
state habeas corpus proceedings.89 In Florida, you have no right to appointed counsel in a
habeas proceeding.90 A public defender may represent you, but there is no requirement that
one be appointed to you.91 But, if you are applying for a writ because you are about to be
extradited, you are entitled to be provided with an attorney.92
5. What to Expect After You File
In Florida, the court must issue a writ of habeas corpus if your petition states
allegations, which, if true, would entitle you to release.93 When the court issues the writ, it
85. Fla. R. Civ. P. 1.630.

86. See Johnson v. Lindsey, 89 Fla. 143, 148, 103 So. 419, 421 (1925) (stating that a habeas
petition does not need to include all of the evidence necessary to establish that the detention is
wrongful).
87. See Cooper v. Lipscomb, 122 So. 5, 5, 97 Fla. 668, 670 (1929) (stating a habeas petition should
include a copy of the warrant where the petitioner was arrested and held by the sheriff pursuant to the
warrant); Johnson v. Lindsey, 103 So. 419, 421, 89 Fla. 143, 148 (1925) (stating that if a petitioner
claims that he is unlawfully detained because the processes or proceedings under which he is being
held are invalid, then the habeas petition should include copies of such proceedings or processes); see
also Simons v. State, 555 So. 2d 960, 961, 15 Fla. L. Weekly 253, 253 (Fla. Dist. Ct. App. 1st Dist. 1990)
(denying a petition for writ of habeas corpus, in which the petitioner claimed he was being deprived of
his right to a pretrial release due to his inability to afford bond, because the petition did not include a
copy of the order or a transcript of the hearing from the lower court on bond reduction); McNamara v.
Cook, 336 So. 2d 677, 679 (Fla. Dist. Ct. App. 4th Dist. 1976) (finding a habeas petition insufficient
because it did not include documentary evidence).
88. Moore v. Dugger, 613 So. 2d 571, 572, 18 Fla. L. Weekly 499, 499 (Fla. 1st Dist. Ct. App.
1993) (finding a petition for writ insufficient because it did not allege petitioner had exhausted
89. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993, 95 L. Ed. 2d 539, 545
(1987) (“[T]he right to appointed counsel extends to the first appeal of right and no further.”).
90. See Coffee v. Wainwright, 172 So. 2d 851, 853 (Fla. Dist. Ct. App. 1st Dist. 1965) (finding
because post-conviction habeas corpus proceedings are civil, not criminal, “there is no absolute right to
assistance of a lawyer”).
91. See Fla. Parole & Probation Comm’n v. Alby, 400 So. 2d 864, 864 (Fl. Dist. Ct. App. 4th Dist.
1981) (denying motion to prevent public defender from representing an appellee in habeas corpus
proceedings).
92. See Bentzel v. State, 585 So. 2d 1118, 1119–1120, 16 Fla. L. Weekly 2410, 2410 (Fla. Dist. Ct.
App. 1st Dist. 1991) (finding that a prisoner has a statutory right to counsel at a habeas corpus
proceeding challenging extradition).
93. Guess v. Barton, 599 So. 2d 770, 771, 17 Fla. L. Weekly 1427, 1427 (Fla. Dist. Ct. App. 1st
Dist. 1992) (finding that “for purposes of appellate review, [the court] must assume that the allegations
of appellant’s habeas petition are true”); Roy v. Dugger, 592 So. 2d 1235, 1236, 17 Fla. L. Weekly 386,
establishes a date for the person who has you in custody to return you to the court.94 The
respondent (whoever has you in custody) may provide a response, also called a return.95 The
response includes the respondent’s arguments for keeping you in custody. If the respondent
does not return you to court by the scheduled date, he must pay you $300.96 You have a right
to provide a reply to a response within twenty days of receiving it.97 If the response does not
address a fact you allege in your petition, you do not need to prove that fact in your reply.98
In your reply you may, if necessary, allege material facts not stated in your petition.99
The court may decide to hold a hearing to evaluate the facts you allege in your petition.
This hearing is usually held after a return is filed, but the court may also decide to hold a
hearing before issuing the writ.100 You have the right to a hearing if your petition is “facially
sufficient,” which means that if everything on your petition were true, you would be entitled
to a writ.101 In Florida, hearings are informal, and if a witness is unable to attend, he may
provide an affidavit instead.102
Once the hearing is completed, the court may release you, remand you to custody, or
release you on bail.103 Though there are no fees for applying for a writ, you may be ordered to
pay the cost of the proceedings if the writ is not granted.104
6. Your Right to Appeal
You may appeal the denial of your application for a writ of habeas corpus to the state
supreme court. Filing the petition in the appellate court will be treated as a notice of appeal
as long as you raise the same issues you raised in circuit court.105 However, you also should
usually file a notice of appeal.
386 (Fla. Dist. Ct. App. 1st Dist. 1992) (reversing summary denial of the lower court on the ground that
if the prisoner’s allegations were true, they could establish that the department had failed to comply
with due process, a failure that could establish a violation of due process or the protection against cruel
and unusual punishment).
94. Fla. Stat. Ann. § 79.04(2) (West 2004).
95. Fla. R. App. P. 9.100(j).
96. Fla. Stat. Ann. § 79.05(1) (West 2004).
97. Fla. R. App. P. 9.100(k).
98. See State ex rel. Libtz v. Coleman, 149 Fla. 28, 30, 5 So. 2d 60, 61 (Fla. 1941) (holding that
undenied allegations in a petition for writ of habeas corpus are taken as true).
99. See Sneed v. Mayo, 66 So. 2d 865, 870 (Fla. 1953) (stating that, in his reply, petitioner “may
allege facts not appearing in the petition”); see also Bard v. Wolson, 687 So. 2d 254, 255, 21 Fla. L.
Weekly 2565, 2565 (Fla. Dist. Ct. App. 1st Dist. 1996) (reversing order denying petition for writ because
appellant was not given opportunity to reply to response); Matera v. Buchanan, 192 So. 2d 18, 20 (Fla.
Dist. Ct. App. 3d Dist. 1966) (finding after respondent has filed a return, petitioner may “allege facts
not appearing in the petition or return that may be material in the case…”).
100. See Turiano v. Butterworth, 416 So. 2d 1261, 1263 (Fla. Dist. Ct. App. 4th Dist. 1982)
(finding that trial court did not err in holding an evidentiary hearing before issuing a writ of habeas
corpus).
101. Seibert v. Dugger, 595 So. 2d 1083, 1084 17 Fla. L. Weekly 784, 784 (Fla. Dist. Ct. App. 1st
Dist. 1992) (holding the dismissal of a petition for writ of habeas corpus without a hearing is error
when the prisoner makes specific allegations which, if true, would establish that the department of
corrections has failed to comply with its own rules).
102. Fla. Stat. Ann. § 79.07 (West 2004).
103. Fla. Stat. Ann. § 79.08 (West 2004).
104. See Beasley v. Cahoon, 109 Fla. 106, 126, 147 So. 288, 295 (1933) (finding a petitioner can
be required to pay costs in a habeas case).
105. See Garner v. Wainwright, 454 So. 2d 28, 28 (Fla. Dist. Ct. App. 1st Dist. 1984) (treating
filing of same habeas petition as a notice of appeal since filed with the appellate court within 30 days,
as the appellate rules required).
C. New York
This Part explains some of the basic rules for filing a habeas corpus petition in New
York.
a. Requirements
The New York habeas corpus rules can be found in Article 70 of New York Civil Practice
Law and Rules, also known as N.Y. C.P.L.R. 7001–7012 (McKinney 1998). The New York
State Legislature has restricted the use of the writ of habeas corpus. For most post-
conviction relief (challenges to your conviction or sentence), you must file an Article 440
motion, not a petition for a habeas corpus writ.106
i. Custody
If you have been released on parole, on probation, on conditional release, ROR, or you are
free on bail, a New York court cannot grant a writ of habeas corpus.107
ii. Immediate Release
You must be entitled to immediate release if your habeas petition is successful.
iii. State Prisoner
You must be a prisoner in New York.
iv. No Other Options
A New York court will not grant your petition for a writ of habeas corpus if there are
other procedures available, unless there are exceptional circumstances of “practicality and
necessity.” 108 In other words, you must have a very good reason for filing a petition for
habeas corpus instead of appealing your conviction, filing an Article 78 petition, or filing an
Article 440 motion, whichever would otherwise be appropriate.109 See Section 2(b)(ii) below
for more information about what might constitute exceptional circumstances of practicality
and necessity. To find out more about how to challenge your conviction or sentence using
Article 440, see JLM, Chapter 20, “Using Article 440 of the New York Criminal Procedural
Law to Attack Your Unfair Conviction or Illegal Sentence,” and, for a description of how to
106. See JLM, Chapter 20, “Using Article 440 of the New York Criminal Procedure Law to
Attack Your Unfair Conviction or Illegal Sentence,” for more information on filing an Article 440
motion.
107. See People ex rel. Doty v. Kreuger, 26 N.Y.2d 881, 882, 258 N.E.2d 215, 215, 309 N.Y.S.2d
932, 932 (1970) (probation); People ex rel. Nunez v. New York State Bd. of Parole, 182 A.D.2d 998, 998,
585 N.Y.S.2d 716, 716 (3d Dept. 1992) (parole); People ex rel. Birt v. Grenis, 76 A.D.2d 872, 872, 428
N.Y.S.2d 494, 494 (2d Dept. 1980) (conditional release); People ex rel. Doyle v. Fischer, 159 A.D.2d 208,
208, 551 N.Y.S.2d 830, 830 (1st Dept. 1990) (ROR); Bayless v. Wandel, 119 Misc. 2d 82, 84, 462
N.Y.S.2d 396, 398 (Sup. Ct. Fulton County 1983) (free on bail).
108. People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262, 220 N.E.2d 653, 655, 273 N.Y.S.2d 897,
900 (1966) (ruling that habeas corpus is not the preferred means of vindicating fundamental
constitutional or statutory rights and that departure from traditional orderly proceedings, such as
appeal, should be permitted only when dictated by reason of “practicality and necessity”).
109. See People ex rel. Wise v. Scully, 163 A.D.2d 444, 444, 570 N.Y.S.2d 1018, 1018 (2d Dept.
1990) (holding that the court cannot review errors already considered on a direct appeal); People ex rel.
Sanchez v. Hoke, 132 A.D.2d 861, 862, 518 N.Y.S.2d 69, 70 (3d Dept. 1987) (declining to grant habeas
relief where petitioner had direct appeal pending and had raised the same issues in an unsuccessful
application for post-conviction relief under Article 440); People ex rel. Proctor v. Henderson, 74 A.D.2d
718, 719, 425 N.Y.S.2d 680, 680 (4th Dept. 1980) (holding that habeas corpus will not lie where the
issue had already been decided in an earlier Article 440 motion, but suggesting that the prisoner could
bring another Article 440 motion seeking the same relief).
appeal administrative decisions using Article 78, see JLM, Chapter 22, “How to Challenge
Administrative Decisions Using Article 78 of the New York Civil Practice Laws and Rules.”
(a) Before Trial

(i) Extradition
You may be held in custody in New York for a maximum of ninety days before you are
extradited. After the first thirty days of custody, New York may file an extension for sixty
additional days of custody.110 Therefore, you may be eligible for a writ of habeas corpus if you
have been held in custody in New York for over ninety days or if you have been held for more
than thirty days and the state of New York has not applied for an extension.
(ii) Bail
If, in denying or setting your bail, the court did not follow New York’s statutory
guidelines, violated constitutional provisions forbidding excessive bail (for example, bail was
set too high), or denied bail arbitrarily (for example, the court did not give a reason for why
bail was not set) you have grounds for a habeas petition.111 New York Criminal Procedure
Law section 510.30(2)(a) lists factors that a court must use to determine the amount, if any,
of your bail.112 If a court bases its bail determination on a factor not included in the statute,
or ignores one or more of the factors, you may challenge the court’s action by petitioning for
habeas corpus. 113 Normally, when deciding a habeas corpus petition, the court can only
review the record that was before the court that set bail. In other words, in making its
decision about granting the writ of habeas corpus, the court can only look at the facts and
110. See People ex rel. Linaris v. Weizenecker, 89 Misc.2d 814,816, 392 N.Y.S.2d 813, 815 (Sup.
Ct. Putnam County 1977) (granting writ of habeas corpus where petitioner had been held beyond 90-
day period without warrant even though other charges were pending against him in New York); see
also N.Y. Crim. Proc. Law §§ 570.36, 570.40 (McKinney 1995).
111. See People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 499, 255 N.E.2d 552, 554, 307 N.Y.S.2d
207, 209B10 (1969) (holding that in a habeas corpus proceeding, the court can review a bail decision if
the decision appears to be excessive or arbitrary according to constitutional or statutory standards); see,
e.g., People ex rel. Gutierrez v. Jacobson, 219 A.D.2d 740, 740, 632 N.Y.S.2d 466, 466 (2d Dept. 1995)
(writ denied) (dismissing habeas petition on finding that lower court’s determination was not an
improvident exercise of discretion and did not violate constitutional or statutory standards); People ex
rel. Hunt v. Warden of Rikers Island Corr. Facility, 161 A.D.2d 475, 476, 555 N.Y.S.2d 742, 742 (1st
Dept. 1990) (writ denied) (dismissing habeas petition on basis that the lower court did not abuse
discretion in denial of bail); see also N.Y. C.P.L.R. 7010(b) (McKinney 1998).
112. These factors are character, reputation, habits, and mental condition; employment and
financial resources; ties to family and community and length of residence in community; criminal
record; juvenile record; previous failure to show up in court; the likelihood of conviction or the merit of
any pending appeal; and the sentence that may be imposed. N.Y. Crim. Proc. Law § 510.30(2)(a)
(McKinney 1995).
113. See People ex rel. Bryce v. Infante, 144 A.D.2d 898, 899, 535 N.Y.S.2d 215, 216 (3d Dept.
1988) (overturning denial of bail on basis of defendant’s suicidal tendencies); People ex rel. Ryan v.
Infante, 108 A.D.2d 987, 988, 485 N.Y.S.2d 852, 853B54 (3d Dept. 1985) (finding that the absence of a
codefendant should not be a factor in setting bail unless a defendant has assisted the codefendent in
bail jumping); People ex rel. Bauer v. McGreevy, 147 Misc. 2d 213, 216, 555 N.Y.S.2d 581, 583 (Sup. Ct.
Rensselaer County 1990) (overturning denial of bail solely to protect the community from possible
future criminal conduct by the defendant); Becher ex rel. Vadakin v. Dunston, 142 Misc. 2d 103, 104,
536 N.Y.S.2d 396, 397 (Sup. Ct. Rensselaer County 1988) (overturning denial of bail without
conducting a hearing and on the ground that the defendant disobeyed a subpoena to testify before the
grand jury); People ex rel. Glass v. McGreevy, 134 Misc.2d 1085, 1086, 514 N.Y.S.2d 622, 623 (Sup. Ct.
Rensselaer County 1987) (overturning imposition of negative AIDS test as a condition for release on
bail).
evidence that were presented at the bail hearing itself.114 If you can show that bail was set
too high, the court can grant a writ of habeas corpus reducing the amount, but it will not
release you. 115 If you have already been tried and convicted, the court will dismiss your
habeas petition as moot or irrelevant because bail no longer matters once you have been
convicted.116
(iii) Delay
If you were arrested without a warrant, have been detained for longer than twenty-four
hours, and have not yet been arraigned, you may petition for a writ of habeas corpus.117 At
your arraignment, you should receive a complaint. If you are charged with a misdemeanor,
the District Attorney’s office has five days (not counting Sunday) to replace the complaint
with an information.118 If you have been arrested for a felony, the District Attorney’s office
has five or six days (depending on whether you were incarcerated over a weekend or during a
holiday) 119 either to file an indictment against you by a grand jury vote or to file an
information. Even if these requirements are not followed, your application for habeas relief
may be denied if: (1) the delay is a result of your own actions; (2) the District Attorney
already filed a certification that an indictment has been voted; (3) a grand jury filed an
indictment or a direction to file an information; or (4) a court finds good cause for the
delay.120
You may also petition for a writ of habeas corpus if you are being denied your right to a
speedy trial under subdivision (2) of New York’s speedy trial statute.121 This statute applies
to individuals who are incarcerated and have an information or indictment filed against
them but whose cases have not yet gone to trial.122 If the court grants your petition, you will
114. See People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 232B33, 397 N.E.2d 745, 422
N.Y.S.2d 55 (1979) (holding that, absent extraordinary circumstances, new evidence relevant to bail
determination should be submitted to the bail-fixing court, not to a habeas court).
115. N.Y. C.P.L.R. 7010(b) (McKinney 1998) (“If the person detained has been admitted to bail
but the amount fixed is so excessive as to constitute an abuse of discretion, and he is not ordered
discharged, the court shall direct a final judgment reducing bail to a proper amount.”). For example, if
you were indicted for selling heroin on two different occasions for amounts totaling $19,000, and you
have a wife and son with whom you had been living in the community, the court may find that bail set
at $150,000 is excessive. People ex rel. Mordkofsky v. Stancari, 93 A.D.2d 826, 827, 460 N.Y.S.2d 830,
832 (2d Dept. 1983).
116. See Kassebaum v. al-Rahman, 212 A.D.2d 482, 483, 624 N.Y.S.2d 803, 803 (1st Dept. 1995)
(denying habeas petition for failure to set reasonable bail, finding the decision moot because petitioner
had been tried and convicted).
117. See People ex rel. Maxian v. Brown, 77 N.Y.2d 422, 426–427, 570 N.E.2d 223, 225, 568
N.Y.S.2d 575, 577 (1991) (granting habeas and holding a delay of arraignment of more than 24 hours is
presumptively unnecessary and, without reason, violates N.Y. Crim. Proc. Law 140.20(1)); see also N.Y.
Crim. Proc. Law § 140.20(1) (McKinney 2004).
118. See N.Y. Crim. Proc. Law § 170.70 (McKinney 2007); People ex rel. Alvarez v. Warden,
Bronx House of Det., 178 Misc. 2d 254, 256, 680 N.Y.S.2d 153, 154–155 (Sup. Ct. Bronx County 1998)
(granting the petition for a writ of habeas corpus and ordering the petitioner released because of the
failure to file an information against the petitioner within five days); see also People ex rel. Neufeld v.
McMickens, 70 N.Y.2d 763, 764–765, 514 N.E.2d 1368, 1368, 520 N.Y.S.2d 744, 744 (1987) (stating that
five-day period includes first day of custody unless first day preceded arraignment or was a Sunday).
119. See People ex rel. Barna v. Malcolm, 85 A.D.2d 313, 316–317, 448 N.Y.S.2d 176, 178–179
(1st Dept. 1982) (finding 72-hour period may be extended if it expires upon a Saturday, Sunday, or
public holiday, or if there is “good cause”).
122. N.Y. Crim. Proc. Law. § 30.30 (McKinney 2003 & Supp. 2007). You may only petition for a
writ of habeas corpus to challenge a violation of subdivision (2), and not subdivision (1), of § 30.30.
Under subdivision (2), a defendant charged with a felony cannot be held in custody before going to trial
for longer than 90 days; a defendant charged with a misdemeanor where the punishment for the
have the right to “be released on bail or on [your] own recognizance upon such conditions as
may be just and reasonable.”123 If your trial has started, you can no longer bring a habeas
corpus petition on this ground. Instead, you should raise the issue on direct appeal.124
(i) Confinement Beyond Sentence
You may petition for habeas corpus relief if you have already served your sentence and
are still being detained, whether due to clerical error, office delay, or miscalculation of jail or
prison time, such that you are entitled to immediate release.125
Other than the administrative mistakes listed above, which, if corrected, would result in
your release, you may not file for a writ of habeas corpus to contest your sentence. For
example, if you are serving time for several convictions, you may not petition for a writ of
habeas corpus to challenge only one of these convictions or sentences, since you will remain
imprisoned under the other convictions, as explained in Part A(2)(b) of this Chapter. Also, if
you were improperly given a consecutive sentence instead of a concurrent sentence or you
were incorrectly sentenced as a predicate or persistent felon instead of a first-time offender,
you cannot petition for a writ of habeas corpus to fix this mistake because it would not result
in your immediate release.126 Rather, you must raise such issues in a direct appeal or an
Article 440 motion.
misdemeanor is longer than three months of incarceration cannot be held in custody before going to
trial for longer than 30 days; a defendant charged with a misdemeanor where the punishment for the
misdemeanor is less than three months of incarceration cannot be held before going to trial for longer
than 15 days; and a defendant charged with only a violation cannot be held in custody before going to
trial for longer than five days. See People ex rel. Chakwin v. Warden, 63 N.Y.2d 120, 126, 470 N.E.2d
146, 149, 480 N.Y.S.2d 719, 722 (1984) (finding that delay of 91 days, after excluding delay due to
defendant’s motions, exceeds statutory limit of 90 days, and requires release of defendant). Note that
you must file a motion for release in order to have a habeas claim to challenge the violation of your
right to a speedy trial. People ex rel. Bullock v. Barry, 2002 N.Y. Slip. Op. 50463U, *3–4, 2002 N.Y.
Misc. LEXIS 1525, **4–5 (Sup. Ct. N.Y. County 2002) (unpublished).
124. See Kassebaum v. Al-Rahman, 212 A.D.2d 482, 483, 624 N.Y.S.2d 573, 573 (1st Dept. 1995)
(affirming denial of habeas petition on speedy trial grounds because petition was brought after trial
had commenced); see also People ex rel. McDonald v. Warden, 34 N.Y.2d 554, 554, 310 N.E.2d 537, 537,
354 N.Y.S.2d 939, 939 (1974) (finding that once criminal action is brought to trial, habeas petition
based on denial of right to speedy trial should be denied); People ex rel. Meurer v. Bentley, 202 A.D.2d
1042, 1043, 609 N.Y.S.2d 466, 467 (4th Dept. 1994) (finding that appeal from denial of habeas petition
was rendered moot by commencement of trial).
125. See People ex rel. Henderson v. Casscles, 66 Misc. 2d 492, 495, 320 N.Y.S.2d 99, 104 (Sup.
Ct. Westchester County 1971) (noting that although habeas petition would be appropriate where
petitioner was entitled to immediate release, petitioner should use Article 78 motion if he seeks only to
re-compute jail time).
126. See People ex rel. Sims v. Senkowski, 226 A.D.2d 800, 801, 640 N.Y.S.2d 820, 820–821 (3d
Dept. 1996) (denying habeas petition and ruling that petitioner claiming that he should not have been
sentenced as a persistent felon should raise this argument on direct appeal or file an Article 440
motion); People ex rel. McGourty v. Senkowski, 213 A.D.2d 954, 954, 624 N.Y.S.2d 308, 308 (3d Dept.
1995) (dismissing habeas petition where petitioner claimed that he was improperly sentenced as a
persistent felon because, if successful, petitioner would be entitled to resentencing, not immediate
release); People ex rel. Hampton v. Scully, 166 A.D.2d 734, 734–735, 561 N.Y.S.2d 482, 483 (2d Dept.
1990) (denial of habeas petitions because re-calculation of sentence would not result in immediate
release; an Article 78 proceeding would be more appropriate to force a re-calculation of the sentence);
People ex rel. World v. Jones, 88 A.D.2d 1096, 1096, 453 N.Y.S.2d 60, 61 (3d Dept. 1982) (ruling that
appeal or Article 440 motion is appropriate proceeding where habeas relief would not affect an
immediate release of petitioner from custody). But see People ex rel. Colan v. La Vallee, 14 N.Y.2d 83,
86B87, 198 N.E.2d 240, 241, 248 N.Y.S.2d 853, 855 (1964) (holding in a habeas corpus proceeding
violating section 335-b of the Code of Criminal Procedure, as it read in 1960, which required the court
(ii) Fundamental Rights
Some cases suggest that New York courts will not require you to use other available
procedures if you are claiming a violation of a fundamental constitutional or statutory
right.127 However, courts have been reluctant to hold that a violation of a fundamental right
alone can serve as a basis for a writ of habeas corpus; generally, courts will only bypass
traditional proceedings, such as appeal, where “practicality and necessity” require it.128 Some
cases go so far as to state that habeas corpus may not be used to collaterally attack a
judgment on constitutional grounds.129
(iii) New or Void Law
You may also petition the court on the ground that the statute under which you were
prosecuted is unconstitutional. 130 It is very rare for courts to declare a statute
unconstitutional. If the statute you were prosecuted under is declared unconstitutional, you
are entitled to immediate release on a petition for a writ of habeas corpus. New York may
to inform the defendant upon his arraignment and before acceptance of his plea that his previous
conviction of a crime would enhance his punishment, renders his conviction invalid, and ordering the
defendant’s re-arraignment and re-pleading).
127. See Roberts v. County Court of Wyoming County, 39 A.D.2d 246, 253, 333 N.Y.S.2d 882, 890
(4th Dept. 1972) (“[W]hile some form of alternative relief, such as coram nobis [codified in Article 440 of
the C.P.L.R.], might also have been available to the relator in the present case, this should not foreclose
the relator from proceeding by way of habeas corpus.”); People ex rel. Rohrlich v. Follette, 20 N.Y.2d
297, 299–300, 229 N.E.2d 419, 420, 282 N.Y.S.2d 729, 730–731 (1967) (finding that habeas corpus is an
appropriate proceeding to test the claim that the relator has been deprived of a fundamental
constitutional or statutory right in a criminal prosecution, in this case, right to a trial by jury). Note
that these are old cases and courts have become increasingly reluctant to review habeas corpus
petitions if other procedures are available. For a list of constitutional and statutory rights in criminal
cases, see JLM, Chapter 9, “Appealing Your Conviction or Sentence.” For more information on other
forms of alternative relief, such as Article 440 motions and coram nobis, see JLM, Chapter 20, “Using
Article 440 of the New York Criminal Procedure Law to Attack Your Unfair Conviction or Illegal
Sentence.”
128. People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262, 220 N.E.2d 653, 655, 273 N.Y.S.2d 897,
900 (1966) (ruling that habeas corpus is not the preferred means of vindicating fundamental
constitutional or statutory rights and that departure from traditional orderly proceedings, such as
appeal, should be permitted only when dictated by reason of “practicality and necessity.”); see also
People ex rel. Murphy v. Leonardo, 179 A.D.2d 848, 848–849, 578 N.Y.S.2d 426, 427 (3d Dept. 1992)
(holding that constitutional double jeopardy claim is not enough to support writ of habeas corpus when
same claim also pending on appeal); People ex rel. Hall v. LeFevre, 92 A.D.2d 956, 957, 460 N.Y.S.2d
640, 641 (3d Dept. 1983) (holding that the “facts of this case do not demonstrate a violation of
petitioner’s fundamental constitutional rights so egregious as to compel a departure from traditional
orderly procedure.”); People ex rel. Sales v. LeFevre, 93 A.D.2d 945, 946, 463 N.Y.S.2d 58, 59 (3d Dept.
1983) (habeas corpus may not be utilized to collaterally attack the judgment on constitutional
grounds—in this case, the right of confrontation—and facts of case do not compel departure from
traditional orderly procedure); People ex rel. Russell v. LeFevre, 59 A.D.2d 588, 588, 397 N.Y.S.2d 27,
28 (3d Dept. 1977) (dismissing habeas corpus petition alleging violation of constitutional right because
habeas is not proper remedy for attacking the judgment of conviction and noting the petitioner should
have filed an Article 440 motion).
129. See People ex rel. Sales v. LeFevre, 93 A.D.2d 945, 946, 463 N.Y.S.2d 58, 59 (3d Dept. 1983)
(holding that habeas corpus may not be utilized to collaterally attack the judgment on constitutional
grounds—in this case, the right of confrontation—and facts of case do not compel departure from
traditional orderly procedure); People ex rel. Russell v. LeFevre, A.D.2d 588, 588, 397 N.Y.S.2d 27, 28
(3d Dept. 1977) (dismissing habeas corpus petition alleging violation of constitutional right because
habeas is not proper remedy for attacking the judgment of conviction and noting the petitioner should
have filed an Article 440 motion).
130. See People ex rel. Haines v. Hunt, 242 N.Y.S. 105, 107–108, 229 A.D. 419, 420–422 (3d Dept.
1930) (holding that habeas corpus is proper remedy for relator convicted under unconstitutional
statute).
also grant writs of habeas corpus when the law has changed, and the law used to convict you
has been declared void. Finally, a court may grant a writ of habeas corpus if your claim
involves the “violation of a fundamental constitutional right, which was not clearly
recognized nor fully articulated” by the Court of Appeals until after all appeals of your
conviction have been completed.131
(iv) Ineffective Counsel
In New York, you cannot use habeas corpus proceedings to claim ineffective assistance of
counsel.132 This is because the remedy would be a new trial and not release from custody.
Filing an Article 440.10 motion would be the appropriate cause of action.133
(v) New Evidence
In New York, if you wish to raise the issue of new evidence, you must file an Article 440
motion.134 See JLM, Chapter 20, “Using Article 440 of the New York Criminal Procedure
Law to Attack Your Unfair Conviction or Illegal Sentence” for more information on how to do
this.
(vi) Unreasonable Delay
A court may grant a writ of habeas corpus if there has been an “unreasonable delay” in
the disposition of an Article 440 motion 135 or if your appeal has been pending for an
unusually long time.136
131. See People ex rel. Rodriguez v. Harris, 84 A.D.2d 769, 770, 443 N.Y.S.2d 784, 785 (2d Dept.
1981). In Rodriguez, the petitioner filed for a writ of habeas corpus alleging a violation of the
petitioner’s right to counsel based on a Court of Appeals decision, People v. Rogers, 48 N.Y.2d 167, 422
N.Y.S.2d 18, 397 N.E.2d 709 (1979). The Rodriguez court upheld the lower court’s dismissal of the writ,
ruling that the Rogers decision (prohibiting police interrogation of defendant, in absence of counsel, on
matters related or unrelated to pending charges for which defendant is already represented by counsel)
could not be given retroactive application to petitioner’s criminal case. People ex rel. Rodriguez v.
Harris, 84 A.D.2d 769, 770, 443 N.Y.S.2d 784, 785 (2d Dept. 1981). Note that the court denied the
petition in Rodriguez on narrow grounds. The Court of Appeals had previously held in People v. Pepper,
53 N.Y.2d 213, 221, 423 N.E.2d 366, 369, 440 N.Y.S.2d 889, 892 (1981), that in cases involving a
defendant’s right to counsel in pretrial encounters, retroactive application of a change in decisional law
is limited to those cases still on direct review at the time the change in law occurred. See also People ex
rel. Gallo v. Warden, 32 A.D.2d 1051, 1052, 303 N.Y.S.2d 752, 753 (2d Dept. 1969) (holding that habeas
corpus proceeding was proper for reviewing propriety of imposition of consecutive sentence where the
petition was based upon decisions rendered after petitioner’s appeal).
132. For more information about ineffective assistance of counsel claims, see JLM, Chapter 12,
“Appealing Your Conviction Based on Ineffective Assistance of Counsel.” See also Application of Jones,
34 Misc. 2d 564, 565, 227 N.Y.S.2d 1002, 1004 (Sup. Ct. Special Term New York County 1962)
(denying habeas petition because relator was represented by counsel and further adding habeas is “not
the proper remedy for testing the requirements of due process or whether relator was properly
represented by assigned counsel”).
133. See People v. Martin, 52 A.D.2d 988, 989, 383 N.Y.S.2d 425, 428 (3d Dept. 1976) (holding
that “in the absence of a record concerning adequacy of representation” an article 440 proceeding is the
correct place to bring a motion regarding ineffectiveness of counsel); People ex rel. Hall v. LeFevre, 460
N.Y.S. 2d 640, 641, 92 A.D.2d 956, 957 (3d Dept. 1983) (holding that issues of inadequacy of counsel
must proceed using a 440 motion). For more information on filing Article 440.10 motions, see JLM,
Chapter 20, “Using Article 440 of the New York Criminal Procedure Law to Attack Your Unfair
Conviction or Illegal Sentence.”
134. See People v. Taylor, 246 A.D.2d 410, 411, 668 N.Y.S.2d 583, 584 (1st Dept. 1998) (holding
that the power to set aside a verdict on the grounds of new evidence is derived from N.Y. Crim. Proc.
Law § 440.10(1)(g) and listing the six criteria that new evidence must meet).
135. See People ex rel. Anderson v. Warden, New York City Corr. Inst. for Men, 68 Misc. 2d 463,
468, 325 N.Y.S.2d 829, 835 (Sup. Ct. Bronx County 1971) (“[I]f there is an unreasonable delay in the
disposition of an article 440 motion, the defendant can, perhaps, properly bring a writ of habeas
corpus.”).
In addition, you may petition for habeas corpus if waiting for the appeal of your
conviction will cause you to face a longer prison term.137 In one case, a prisoner petitioned for
habeas corpus on the grounds that he was wrongfully imprisoned in New York. The
prisoner’s commitment order indicated that he should be imprisoned in Alabama, where he
had earlier escaped from prison. The court granted the writ of habeas corpus even though an
appeal that raised the issue of wrongful imprisonment was pending, because the appeal was
not due to be heard by the court until later in the year, and none of the time that the
prisoner served in New York would count against his Alabama sentence.138
(vii) Violations of the Conditions of Your Sentence (New York
Only)
You may also petition for a writ of habeas corpus if the conditions of your imprisonment
are worse than the conditions authorized by your judgment of conviction or by the New York
and U.S. Constitutions.139 For example, you may petition for habeas corpus on the grounds
that:
(1) You are being denied the rehabilitation, care, or treatment required by your
sentence;140
(2) You were arbitrarily and illegally transferred to an institution for the criminally
insane;141
(3) You have been found not guilty because of mental illness142 and are being held at an
institution for the criminally insane, but you have not received a hearing or
proceeding to evaluate your mental health as required by New York Criminal
Procedure Law Section 330.20;143
136. See People ex rel. Lee v. Smith, 58 A.D.2d 987, 987, 397 N.Y.S.2d 266, 267 (4th Dept. 1977)
(granting a hearing on the merits of relator’s habeas corpus petition, even though an appeal was
pending, because the relator’s appeal had been pending for more than four years).
137. See State ex rel. Harbin v. Wilmot, 104 Misc. 2d 272, 275, 428 N.Y.S.2d 152, 154B55 (Sup.
Ct. Chemung County 1980) (finding the prisoner’s current place of incarceration resulted in a longer
term of imprisonment).
138. See State ex rel. Harbin v. Wilmot, 104 Misc. 2d 272, 275, 428 N.Y.S.2d 152, 154B55 (Sup.
Ct. Chemung County 1980) (finding the prisoner’s current place of incarceration resulted in a longer
term of imprisonment).
44, 45 (1961) (“[I]t seems quite obvious that any further restraint in excess of that permitted by the
judgment or constitutional guarantees should be subject to inquiry.”).
140. See People ex rel. Smith v. La Vallee, 29 A.D.2d 248, 250, 287 N.Y.S.2d 601,604 (4th Dept.
1968) (petitioner with an indeterminate sentence entitled to psychiatric treatment and examination).
44, 45 (1961) (holding that lower court wrongly refused to consider petition for habeas corpus that
challenged the transfer of a convicted rapist from a prison to a mental hospital).
142. This is also known as “not guilty by reason of insanity.”
143. See People ex rel. Thorpe v. Von Holden, 63 N.Y.2d 546, 555, 473 N.E.2d 14, 18, 483
N.Y.S.2d 662, 666 (1984) (finding habeas is proper proceeding for testing whether petitioner may
remain in custody when Department of Mental Health Commissioner has failed to comply with time,
notice, and hearing requirements for statutory retention order).
If your petition is granted for this reason, the court will order your release or your transfer to a non-
secure facility, unless there is evidence of a dangerous mental disorder. If the court has ordered your
release, the State Commissioner of Mental Health or the of Mental Retardation and Developmental
Disabilities may, however, apply to the court to have you remain at the institution. This application
may be granted if it is immediately filed and processed. See State ex rel. Henry L. v. Hawes, 174 Misc.
2d 929, 933, 667 N.Y.S.2d 212, 216 (N.Y. Cty. Ct. 1997) (granting petitioner’s habeas writ and ordering
petitioner immediately transferred to non-secure facility because order of confinement had expired and
no application for order’s extension had been made in violation of N.Y. Crim. Proc. Law § 330.20).
(4) You have been found not guilty because of mental illness and are being held at an
institution for the criminally insane, but are no longer suffering from mental illness
and are thus entitled to release, or are no longer dangerous and are thus entitled to
transfer to a non-secure facility as required by New York Criminal Procedure Law
Section 330.20;144
(5) You are held in a different prison than the one on the sentencing court’s commitment
order;145 or
(6) You were transferred to solitary confinement as a result of unconstitutional
discrimination.146
Wardens and the Department of Correctional Services have wide discretion in
determining the conditions of your incarceration, and few forms of punishment inside the
prison violate your constitutional rights or the conditions of your sentence.147
(i) Preliminary Revocation Hearings

When the Department of Correctional Services tries to revoke your parole, you are
entitled to a hearing. You may petition for habeas corpus if your preliminary parole
revocation hearing was not conducted in accordance with the law. You are entitled to the
following:
(1) Notice in writing of the charges against you within three days of the execution of the
warrant for your retaking and temporary detention, or within five days of the
execution of the warrant if you are detained in another state and were not there
through an out-of-state parolee supervision agreement;148
144. See McGraw v. Wack, 220 A.D.2d 291, 292, 632 N.Y.S.2d 135, 136 (1st Dept. 1995) (finding
that writ of habeas corpus is proper proceeding for petitioner to seek transfer to non-secure facility or
release); People ex rel. Schreiner v. Tekben, 160 Misc. 2d 724, 727, 611 N.Y.S.2d 734, 736 (Sup. Ct.
Orange County 1994) (holding that the habeas corpus proceeding was an appropriate mechanism for
transfer from a secure psychiatric facility to a non-secure facility), aff’d sub nom. People ex rel. Richard
S. v. Tekben, 219 A.D.2d 609, 610, 631 N.Y.S.2d 524, 524 (2d Dept. 1995) (finding that habeas petition
is proper mechanism to seek transfer from a secure to a non-secure facility).
145. See State ex rel. Harbin v. Wilmot, 104 Misc. 2d 272, 274, 428 N.Y.S.2d 152, 154 (N.Y. Sup.
Ct. 1980) (holding that a prisoner was illegally imprisoned within New York State when he was held in
a prison in New York rather than the Alabama prison that was specified on his commitment order by
the sentencing court).
146. See People ex rel. Rockey v. Krueger, 62 Misc. 2d 135, 136, 306 N.Y.S.2d 359, 360 (Sup. Ct.
Nassau County 1969) (finding placement of Muslim prisoner in solitary confinement because he would
not shave his beard for religious reasons was unconstitutional discrimination, and ordered release of
prisoner from solitary confinement); see also JLM, Chapter 16, “Using 42 U.S.C. § 1983 and 28 U.S.C. §
1331 to Obtain Relief from Violations of Federal Law,” JLM, Chapter 18, “Your Rights at Prison
Disciplinary Proceedings,” and JLM, Chapter 27, “Religious Freedom in Prison.”
147. See, e.g., People ex rel. France v. Coughlin, 99 A.D.2d 599, 471 N.Y.S.2d 695 (3d Dept. 1984)
(denying habeas petition because administrative segregation of prisoner was well within terms of
confinement ordinarily contemplated by prison sentence, petitioner made no showing that confinement
violated his constitutional rights, and petitioner failed to comply with statutory requirements); People
ex rel. Jacobson v. Warden of Brooklyn House of Det., 77 A.D.2d 937, 431 N.Y.S.2d 114 (2d Dept. 1980)
(upholding warden’s denial of contact visits with person who allegedly helped in an earlier escape on
grounds that such restriction is outside the scope of habeas corpus relief).
148. N.Y. Exec. Law § 259-i(3)(c)(iii) (McKinney 2005). Even if you are not given notice of your
parole violation within three days of your hearing, that is not reason enough to grant a petition for
habeas corpus. You must also show that the lack of notice somehow hurt your ability to prepare for the
hearing. See People ex rel. Williams v. Walsh, 241 A.D.2d 979, 661 N.Y.S.2d 371 (4th Dept. 1997)
(finding defendant not entitled to restoration of parole or dismissal of parole violation warrant based on
one day delay in serving statutory notice and failure to comply with three day notice rule where the
(2) A hearing conducted within fifteen days after the warrant has been executed, as
required by New York Executive Law Section 259-i(3)(c)(i);149
(3) Evidence introduced at your preliminary parole revocation hearing sufficient to
provide probable cause150 to believe that you had violated a condition of your
parole;151 and
(4) To appear and speak on your own behalf, present witnesses, or cross-examine
witnesses (question the witnesses against you).152
Any denial of the above requirements may be grounds for a habeas petition in New York.
Note that you are not entitled to a preliminary parole revocation hearing if you were
convicted of a new crime.153
preliminary hearing was held in a timely manner, defendant did not request adjournment to prepare
for the hearing or contend that he lacked adequate notice of basis for parole violation, and did not
contend that he was prejudiced by the one day delay); see also People ex rel. Walker v. New York State
Bd. of Parole, 98 A.D.2d 33, 33–34, 469 N.Y.S.2d 780, 781 (2d Dept. 1983) (finding judicial intervention
not appropriate until final revocation hearing conducted, where final hearing has been scheduled
within 90 day period).
149. N.Y. Exec. Law § 259-i(3)(c)(i) (McKinney 2005); see also People ex rel. Richman v. Warden,
Bronx House of Detention, 122 Misc. 2d 957, 958, 472 N.Y.S.2d 291, 292 (Sup. Ct. Bronx County 1984)
(ruling that the only appropriate remedy for violation of parolee’s due process rights by failing to afford
him proper preliminary parole revocation hearing within 15 days of service of notice of parole violation
is vacating the warrant and reinstatement to parole).
The court may, however, find that the delay is not the state’s fault and dismiss the habeas corpus
petition. See People ex rel. Hampton v. Warden, Rikers Island Corr. Facility, 211 A.D.2d 566, 621
N.Y.S.2d 580 (1st Dept. 1995) (dismissing habeas petition where timely hearing was postponed a few
days due to closure of courthouse during snowstorm and then rescheduled to allow probationer to
attend). In addition, the law does not require that the hearing be completed within 15 days.
Finally, a court may find that you have waived your right to a timely hearing. See People ex rel.
Miller v. Walters, 60 N.Y.2d 899, 901, 458 N.E.2d 1251, 1252, 470 N.Y.S.2d 574, 575 (1983) (denying
petition because petitioner waived preliminary hearing and thereby waived right to challenge board’s
failure to afford him a timely preliminary hearing). However, the waiver must be clearly made or else it
will be invalid and parolee will be entitled to a timely hearing. See People ex rel. Melendez v. Warden of
Rikers Island Corr. Facility, 214 A.D.2d 301, 302, 624 N.Y.S.2d 580, 581 (1st Dept. 1995) (ruling that
the parolee does not waive his right to a timely hearing where the state does not prove that the waiver
was clearly made, and ordering that petitioner be reinstated to parole).
150. “Probable cause” in this case means reasonable cause, or reasonable grounds for believing,
based on existing facts, that you have violated your parole.
151. N.Y. Exec. Law § 259-i(3)(c)(vi) (McKinney 2005); see also People ex rel. Davis v. New York
State Div. of Parole, 149 Misc. 2d 741, 744, 566 N.Y.S.2d 469, 471 (Sup. Ct. Westchester County 1991)
(ruling that there was not probable cause to believe that the parolee violated a condition of his parole in
an important respect where the parolee failed, during 50 minute lunch break, to notify parole officer of
arrest that occurred 95 hours earlier despite requirement that officer be notified immediately); People
ex rel. Glenn v. Bantum, 132 Misc. 2d 676, 678, 505 N.Y.S.2d 359, 361 (Sup. Ct. Bronx County 1986)
(holding there was no legal evidence presented at preliminary hearing to support probable cause
finding relator was in possession of drugs where sole evidence was hearsay testimony of parole officer’s
conversations with arresting officer, and parole officer was unable to testify that substances in question
were recovered from relator).
152. See People ex rel. Deyver by Weinstein v. Travis, 172 Misc. 2d 83, 85, 657 N.Y.S.2d 306
(Sup. Ct. Erie County 1997) (granting petitioner’s habeas petition and finding that, to preserve
petitioner’s statutory right to effective cross-examination, petitioner was entitled to production of
parole officer’s notes, upon which parole officer had relied in testifying at hearing,).
153. See N.Y. Exec. Law § 259-i(3)(c)(i) (McKinney 2005); People ex rel. Felder v. Warden of
Queens House of Det. for Men, 173 Misc. 2d 1029, 1030, 662 N.Y.S.2d 729,731 (Sup. Ct. Queens County
1997) (ruling that parolee was not entitled to preliminary parole hearing on his violation where he had
been convicted of a felony while released on parole).
(ii) Final Parole Revocation Hearings
You may petition for habeas corpus if your final parole revocation hearing was not
conducted in accordance with the law. You are entitled to the following:
(1) A hearing that was conducted within ninety days of the probable cause hearing; 154
(2) Representation by a lawyer at the hearing;155
(3) Written notice of the date, place, and time of the hearing given to you and your
attorney at least fourteen days prior to the scheduled hearing date;156
(4) An opportunity to confront and cross-examine witnesses against you, unless there
was good cause for witnesses not to attend the hearing (as determined by the hearing
officer);157 and
(5) Proof of your parole violation by a preponderance of the evidence.158
154. N.Y. Exec. Law § 259-i(3)(f)(i) (McKinney 2005); see People ex rel. Ford v. LaPaglia, 176
Misc. 2d 912, 914, 674 N.Y.S.2d 565, 566 (County Ct. Ulster County 1998) (ruling that statutory “90-
day time limit must be adhered to strictly, absent any of the statutory exceptions”); People ex rel.
Brown v. New York State Div. of Parole, 70 N.Y.2d 391, 402, 516 N.E.2d 194, 200, 521 N.Y.S.2d 657,
663 (1987) (vacating parole violation warrant and dismissing parole violation proceeding where
revocation hearing was not held within 90 days).
However, the court may find that the hearing was timely if the delay was due to the parolee. See
People ex rel. McAllister v. Leonardo, 182 A.D.2d 1031, 1033, 583 N.Y.S.2d 540, 542 (3d Dept. 1992)
(ruling final parole revocation hearing was timely, even though held more than 90 days after probable
cause determination, since delay resulted when no attorney was present for petitioner at timely
scheduled date and petitioner requested representation, and additional delay was at request of
petitioner’s counsel). If you were incarcerated out of state, the court may also find that your hearing
was timely even if it was held after 90 days from the probable cause determination. See N.Y. Exec. Law
§ 259-i(3)(a)(iv) (McKinney 2005) (“Where the alleged violator is detained in another state … the
warrant will not be deemed to be executed until the alleged violator is detained exclusively on the . . .
[parole] warrant.”); People ex rel. Johnson v. Warden, Manhattan House of Det., 178 A.D.2d 331, 579
N.Y.S.2d (1st Dept. 1991) (ruling defendant’s final revocation hearing was not untimely, particularly as
he was never detained “exclusively” on basis of parole revocation warrant).
155. N.Y. Exec. Law, § 259-i(3)(f)(v) (McKinney 2005); see also People ex rel. Brown v. Smith, 115
A.D.2d. 255, 496 N.Y.S.2d 123 (4th Dept. 1985) (holding that a parolee has the right to counsel upon a
final parole revocation hearing). You can give up or waive this right if you state that you do not want or
need counsel. See People ex rel. Martinez v. Walters, 99 A.D.2d 476, 470 N.Y.S.2d 56 (2d Dept. 1984)
(finding that prisoner had waived his right to counsel at his revocation hearing because the decision
was knowing, intelligent, and voluntary; finding that the right to counsel may be waived in the absence
of counsel); People ex rel. Perez v. Warden, 139 A.D.2d 477, 478, 527 N.Y.S.2d 233, 234 (1st Dept. 1988)
(holding parolee’s waiver of counsel ineffective as the hearing officer failed to conduct sufficient inquiry
to reasonably assure that parolee appreciated dangers and disadvantages of waiving right to counsel).
156. N.Y. Exec. Law, § 259-i(3)(f)(iii) (McKinney 2005); see also People ex rel. Rivera v. New York
State Div. of Parole, 83 A.D.2d 918, 919, 442 N.Y.S.2d 511 (3d Dept. 1981) (granting petitioner new
final parole revocation hearing because notice of time and date of hearing was mailed five days before
the hearing in violation of state law, which requires 14 days’ notice). Note that an adjournment
[postponement] of the final parole revocation hearing does not require a new fourteen-day notice to
parolee. See People ex rel. Crooks v. New York State Bd. of Parole, 194 A.D.2d 376, 598 N.Y.S.2d 263
(1st Dept. 1993).
157. N.Y. Exec. Law § 259-i(3)(f)(iv)B(v) (McKinney 2005); see also People ex rel. McGee v.
Walters, 62 N.Y.2d 317, 319, 465 N.E.2d 342, 343, 476 N.Y.S.2d 803, 804 (1984) (ruling that a parolee’s
right to confront adverse witnesses at parole revocation hearings should not be “underestimated or
ignored” but that “a hearing examiner may, nevertheless, upon a specific finding of good cause, permit
the introduction of adverse hearsay statements without affording the parolee an opportunity to
confront the declarant”); see also People ex rel. Martin v. Warden, Ossining Corr. Facility, 133 A.D.2d
134, 135, 518 N.Y.S.2d 669, 670 (2d Dept. 1987) (ruling that good cause existed for dispensing with
production of New Jersey parole officer who was supervising petitioner’s parole and not allowing
confrontation at parole hearing where state of New Jersey had an established and firm policy of
refusing to allow its supervising parole officers to travel to other states for parole revocation hearings,
and petitioner refused to submit interrogatories to New Jersey officer).
Any denial of the above requirements may be grounds for a habeas petition. You may
also petition if: (1) you were denied your fundamental constitutional right to be present at
the hearing;159 or (2) you requested a local parole revocation hearing, and your request was
denied.160
Note that you are not entitled to a final parole revocation hearing if your parole was
revoked because of a new felony conviction.161 You may not petition for a writ of habeas
corpus for the above reasons if you would remain imprisoned for other convictions.162
158. N.Y. Exec. Law § 259-i(3)(f)(viii) (McKinney 2005); see also People ex rel. Saafir v. Mantello,
163 A.D.2d 824, 825, 558 N.Y.S.2d 356, 357 (4th Dept. 1990) (ruling that uncertified report of parolee’s
drug tests was insufficient to demonstrate violation of parole by a preponderance of the evidence). You
will waive this ground if you do not raise it in your habeas petition. In other words, if you do not state
in your habeas petition that your parole violation was unproven, you cannot complain about it at a later
time. People ex rel. McWhinney v. Smith, 219 A.D.2d 879, 632 N.Y.S.2d 40 (4th Dept. 1995). Also
remember that even if you do not think that there is enough evidence for your parole to be revoked, you
must wait until after the final revocation hearing before you file your habeas petition. See People ex rel.
Wallace v. New York State Bd. of Parole, 111 A.D.2d 940, 941, 491 N.Y.S.2d 50, 51 (2d Dept. 1985)
(dismissing the petition because it was filed before the final revocation hearing).
159. See People ex rel. Johnson v. New York State Bd. of Parole, 98 A.D.2d 949, 470 N.Y.S.2d 62
(4th Dept. 1983) (reinstating petition for habeas alleging that final parole revocation hearing was held
without petitioner present); In re Schwartz v. Warden, New York State Corr. Facility at Ossining, 82
A.D.2d 870, 871, 440 N.Y.S.2d 270, 272 (2d Dept. 1981) (finding that parolee, who invoked his right to
counsel and who refused to attend revocation hearing due to inability of his attorney to attend the
hearing, did not waive his right to appear; thus, it was error for hearing officer to conduct the hearing
without parolee). Note, however, that a court may find that you have waived this right. If you are called
to a hearing you must appear even if you have applied for an adjournment, otherwise you have waived
your appearance. See, e.g., People ex rel. Rodriguez v. Warden, 163 A.D.2d 206, 207, 558 N.Y.S.2d 59
(1st Dept. 1990) (holding that prisoner knowingly and intelligently waived his right to be present at
final parole revocation hearing by persistently refusing to appear despite repeated efforts by Division of
Parole to produce him); People ex rel. McFadden v. New York State Div. of Parole, 79 A.D.2d 952, 955,
435 N.Y.S.2d 589, 592 (1st Dept. 1981) (petitioner who failed to appear on three occasions at a parole
revocation hearing waived the right to be present).
160. N.Y. Exec. Law § 259-i(3)(e)(i) (McKinney 2005) (“If the alleged violator requests a local
revocation hearing, he shall be given a revocation hearing reasonably near the place of the alleged
violation or arrest if he has not been conviction of a crime committed while under supervision.”); see
People ex rel. Campolito v. Portuondo, 248 A.D.2d 768, 769, 669 N.Y.S.2d 726, 727 (3d Dept. 1998)
(finding that where a prisoner had not requested a local parole revocation hearing, he was not entitled
to one); People ex rel. Madison v. Sullivan, 142 A.D.2d 621, 530 N.Y.S.2d 43 ( 2d Dept. 1988) (finding
that where neither prisoner nor his counsel had requested a local parole revocation hearing, the New
York State Board of Parole was not required to arrange one for him).
161. See N.Y. Exec. Law § 259-i(3)(d)(iii) (McKinney 2005); see also People ex rel. Ward v. Russi,
219 A.D.2d 862, 632 N.Y.S.2d 45 (4th Dept. 1995) (holding relator not entitled to parole revocation
hearing where violation was due to a new felony conviction); O’Quinn v. New York State Bd. of Parole,
132 Misc. 2d 92, 94, 503 N.Y.S.2d 483, 485 (Sup. Ct. N.Y. County 1986) (noting statute barring right to
final revocation hearing where parolee has been convicted of felony while on parole does not violate due
process).
162. See People ex rel. Cook v. Mantello, 136 A.D.2d 891, 525 N.Y.S.2d 79 (4th Dept. 1988)
(dismissing habeas petition challenging the timeliness of petitioner’s parole revocation hearing because
the petitioner was incarcerated as the result of an unrelated conviction and would not be eligible for
immediate release from custody should he have succeeded on merits of habeas proceeding); People ex
rel. Linares v. Dalsheim, 107 A.D.2d 728, 728, 484 N.Y.S.2d 89, 90 (2d Dept. 1985) (noting that habeas
corpus was not available since petitioner was incarcerated due to a subsequent felony conviction and
would not have been entitled to immediate release).
You may, however, bring an Article 78 proceeding to challenge Parole Board decisions even if you
will remain incarcerated for other convictions. See People ex rel. Mack v. Reid, 113 A.D.2d 962, 963, 494
N.Y.S.2d 25, 26–27 (2d Dept. 1985) (stating that petitioner who had raised the issue of untimeliness
before Parole Board should bring Article 78 proceeding after Board decides against him). Be aware that
a four-month statute of limitations applies to Article 78 petitions. See, e.g., Soto v. N.Y. State Bd. of
Parole, 107 A.D.2d 693, 694, 484 N.Y.S.2d 49, 50 (2d Dept. 1985) (dismissing Article 78 petition filed
(d) Subject Matter Jurisdiction
In New York, supreme and county courts have jurisdiction to try felonies.163 District, city,
town, and village courts have jurisdiction over misdemeanors.164 If you are convicted by a
court that does not have authority to try your offense, you may petition for habeas corpus.165
As stated above, a court may also lack subject matter jurisdiction if the allegations made in
your indictment are in some way insufficient.
This issue should normally be raised on appeal or in an Article 440 motion; but, provided
that you give a compelling reason why the court should depart from regular procedure you
may petition for habeas corpus if:
(1) An indictment or information was not filed against you;166
(2) Your indictment failed to state facts that made up every necessary element, or part,
of your crime, and the court was entirely stripped of jurisdiction as a result;167 or
(3) The court convicted you of a crime not included in the indictment (this does not
include lesser included offenses of the offenses168 charged in your indictment). You
may waive this claim, however, if you fail to object to the submission of the offense at
your trial.169
three years after the parole revocation hearing because it violated four-month statute of limitations for
Article 78 proceedings). See Chapter 22 of the JLM for a discussion of Article 78 proceedings.
163. Felonies are offenses that are punishable by a prison term of more than one year. N.Y.
Penal Law § 10.00(5) (McKinney 1998).
164. Misdemeanors are offenses punishable by fine and/or a brief jail sentence of more than 15
days, but less than a year. N.Y. Penal Law § 10.00(4) (McKinney 1998).
165. See Clifford v. Krueger, 59 Misc. 2d 87, 93, 297 N.Y.S.2d 990, 997 (Sup. Ct. Nassau County
1969) (granting petitioner’s writ of habeas corpus, finding the conviction illegal because the crime of
which he was convicted was an offense over which Family Court had exclusive original jurisdiction, and
transferring the matter to Family Court).
166. See People ex rel. Battista v. Christian, 249 N.Y. 314, 321, 164 N.E. 111, 113 (1928)
(granting habeas corpus petition because there was no presentment or indictment of a grand jury).
Note that an indictment no longer has to be filed for every crime; the prosecutor may file an
information instead. In November 1973, the New York Constitution was amended to provide an
exception to the indictment requirement where the accused is charged with an offense that is not
punishable by death or life imprisonment. (N.Y. Const. art. I, § 6). This amendment is explained in
People v. Trueluck, 88 N.Y.2d 546, 548, 670 N.E.2d 977, 978, 647 N.Y.S.2d 476, 477 (1996) (noting that
a defendant may waive an indictment and consent to be prosecuted by a superior court information
where: (1) the local criminal court has held the defendant for the action of a Grand Jury; (2) the
defendant is not charged with a class A felony, and (3) the District Attorney consents to the waiver of
indictment) (quoting N.Y. Crim. Proc. Law § 195.10(1) (McKinney 2007).
167. For example, if your indictment for 1st degree murder fails to describe acts that showed
that you intended to kill another person, the court does not have jurisdiction to convict you of 1st
degree murder, because intent to kill is a necessary element of 1st degree murder. However, the court
does have jurisdiction to convict you of 2nd degree murder, since intent is not a necessary element of
2nd degree murder. Therefore, in this case, you can challenge your conviction of 1st degree murder but
you cannot challenge your conviction of 2nd degree murder in a petition for habeas corpus. See People
ex rel. Williams v. La Vallee, 30 A.D.2d 1034, 294 N.Y.S.2d 824 (4th Dept. 1968) (noting that
indictment did not allege the 1st degree murder elements of premeditation or depraved mind, but this
did not strip the court of jurisdiction because the allegations were sufficient to support a charge of 2nd
degree murder); People ex rel. Wysokowski v. Conboy, 19 A.D.2d 663, 664, 241 N.Y.S.2d 245, 236 (3d
Dept. 1963) (denying habeas corpus petition because simplified form of indictment that omitted certain
facts did not deprive court of jurisdiction).
168. See JLM, Chapter 9, “Appealing Your Conviction or Sentence,” for an explanation of lesser
included offense.
169. For example, if your indictment charged you with murder, but the judge announced that he
or she also would consider whether you were guilty of robbery (which is not a lesser included offense
within the crime of murder), and you were subsequently convicted of robbery, you may challenge your
conviction only if you objected at your trial to the judge’s intention to consider robbery. See People ex
In New York, you may also petition for a writ of habeas corpus to challenge the court’s
subject matter jurisdiction with respect to the validity of your conviction. A court will review
your petition regardless of whether you raised it on appeal only if the issue is very important
and will invalidate your conviction if the habeas petition is decided in your favor.170 In one
case, for example, a prisoner petitioned for habeas corpus on the ground that attempted
escape could not serve as the basis for a felony murder conviction because attempted escape
was only classified as a misdemeanor, not a felony.171 Though the prisoner had not raised
this issue in a second appeal from his conviction (he did raise it in his first appeal), the court
granted a writ of habeas corpus because of the importance of the issue and its impact upon
the validity of the conviction and sentence for murder. The court believed that the issue
needed to be resolved and noted that it would have to reverse the prisoner’s murder
conviction if the court resolved the issue in the prisoner’s favor.172
(a) When to File

In New York, before you file your petition, make sure you cannot bring any of these
proceedings:
(1) Appeal (see JLM, Chapter 9, “Appealing Your Conviction or Sentence”);
(2) Article 440 (see JLM, Chapter 20, “Using Article 440 of the New York Criminal
Procedure Law to Attack Your Unfair Conviction or Illegal Sentence”); or
(3) Article 78 (see JLM, Chapter 22, “How to Challenge Administrative Decisions Using
Article 78 of the New York Civil Practice Law and Rules”).
(b) Where to File
In New York, you may petition any of the following courts or judges for a writ of habeas
corpus:
(1) The supreme court in the judicial district in which you are imprisoned;
(2) The appellate division of the department in which you are imprisoned;
(3) Any justice of the supreme court; or
(4) A county judge within the county in which you are imprisoned, or a county judge
from an adjoining county, if no judge within the county can or will issue a writ.173
rel. Tanner v. Vincent, 44 A.D.2d 170, 173–74, 354 N.Y.S.2d 145, 148 (2d Dept. 1974) (denying habeas
petition where petitioner failed to raise objection on appeal to robbery conviction where petitioner had
been indicted for common law murder, felony murder, and possession of a weapon, but convicted of
robbery, which is not a lesser included offense within the crime of felony murder).
170. See People ex rel. Culhane v. Sullivan, 139 A.D.2d 315, 317–318, 531 N.Y.S.2d 287, 288 (2d
Dept. 1988)(refusing to grant a writ of habeas corpus where the information included sufficient
averments of intent and overt acts which would have resulted in the commission of the crime under
state law).
171. Felony murder is a rule of criminal law which holds a defendant responsible for any killing
that occurred during the commission of a felony.
172. See People ex rel. Culhane v. Sullivan, 139 A.D.2d 315, 317, 531 N.Y.S.2d 287, 288 (2d Dept.
1988) (refusing to grant a writ of habeas corpus where the information included sufficient averments of
intent and overt acts which would have resulted in the commission of the crime under state law);
People ex rel. Bartlam v. Murphy, 9 N.Y.2d 550, 553–554, 175 N.E.2d 336, 337–338, 215 N.Y.S.2d 753,
755B56 (1961) (ruling in favor of relator in habeas corpus petition and ordering hearing on whether
relator was denied right to be present when jury received further instructions, which is an issue
essential to the court’s jurisdiction to proceed with trial). But see People ex rel. Lupo v. Fay, 13 N.Y.2d
253, 257, 196 N.E.2d 56, 58–59, 246 N.Y.S.2d 399, 402 (1963) (denying writ of habeas corpus and
holding that the defendant’s absence when counsel made a motion to discharge jury did not affect any
substantial rights).
173. N.Y. C.P.L.R. 7002(b)(1)B(5) (McKinney 1998). Note that if you are being held in a New York
(c) What to Include in Your Petition
The habeas corpus petition you submit should include the following information:
(1) The name of your prison and of the warden or official imprisoning you, if you know
their names;
(2) A copy of the mandate by which you are detained or an explanation of why you could
not obtain a copy of the mandate;174
(3) The reason you are imprisoned, to the best of your knowledge;
(4) An explanation of why your imprisonment is illegal;175
(5) The result of any appeal from the trial court’s judgment, or a statement that you did
not take an appeal, if that is the case;
(6) The date, result, and name of the court or judge to whom you previously petitioned
for a writ, plus a statement of any new facts in your current petition that you did not
raise in earlier petitions. If you have not petitioned for a writ of habeas corpus before,
state this fact in your petition;176 and
(7) The facts that authorize the judge to act, if the petition is made to a county judge
outside of the county where you are detained.
This is not a complete list. You should consult New York Civil Practice Law and Rules
7002(c) for other information that you must include in your habeas corpus petition. If you do
not include the required information, a court will dismiss your petition, unless you can show
some convincing reason why you could not include the required information.177 One reason,
for example, might be that you were deprived of legal material and writing instruments.178
City detention center, you may also file with any justice of the supreme court of the county in which
your charge is pending, in addition to the above-listed options. For example, an inmate being held on
Rikers Island in the Bronx may file a writ of habeas corpus with a justice of the Supreme Court in New
York County (Manhattan) if he has a charge pending there.
174. A mandate is a written order of the court directing the warden to enforce the sentence
against you. N.Y. Gen. Constr. Law § 28-a (McKinney 2003). Under N.Y. Pub. Off. Law § 89 (McKinney
2001), the superintendent or warden of your prison should make the mandate available to you upon
your written request.
175. You should support your claim that your imprisonment is illegal with as many facts as
possible. If you merely state that your imprisonment is illegal without detailing why, a court will
probably dismiss your petition. See People ex rel. Boyd v. LeFevre, 92 A.D.2d 1042, 1042, 461 N.Y.S.2d
667, 667 (3d Dept. 1983) (upholding dismissal of habeas corpus petition where the petition contained
only bare, conclusory assertions that defendant’s rights were violated without any facts alleged to
support such claims.
176. If you fail to detail prior applications for a writ of habeas corpus, the court may dismiss your
petition. See People ex rel. Christianson v. Berry, 165 A.D.2d 961, 962, 561 N.Y.S.2d 848, 849 (3d Dept.
1990) (denying petitioner’s application for writ of habeas corpus because it was fatally defective where,
among other things, it failed to indicate petitioner’s previous applications for habeas corpus relief). If
you have already petitioned for habeas corpus unsuccessfully and your current petition does not contain
any new grounds for relief, a court will only issue a writ in the extremely rare circumstances when the
”ends of justice” require it. N.Y. C.P.L.R. 7003(b) (McKinney 1998); see People ex rel. Taylor v. Jones,
171 A.D.2d 906, 906, 566 N.Y.S.2d 779, 780 (3d Dept. 1991) (denying petitioner’s application for writ of
habeas corpus because it failed to indicate his previous applications for such relief).
177. See Matter of Tullis v. Kelly, 154 A.D.2d 926, 926, 547 N.Y.S.2d 259, 259 (4th Dept. 1989)
(dismissing habeas petition because it failed to comply with procedural requirements of N.Y. C.P.L.R.
7002(c)); People ex rel. Kagan v. La Vallee, 49 A.D.2d 986, 986, 374 N.Y.S.2d 408, 408 (3d Dept. 1975)
(affirming dismissal of habeas petition where application did not comply with provisions of
N.Y.C.P.L.R. 7002(c) and was therefore insufficient on its face).
178. See People ex rel. La Rocca v. Conboy, 40 A.D.2d 736, 736, 336 N.Y.S.2d 724, 725 (3d Dept.
1972) (noting that “deficiencies in the petition might be overlooked where compelling reasons appeared
from the papers,” such as deprivation of legal material and writing material).
You do not have to enclose a copy of a writ of habeas corpus with your petition. However,
you may want to include a copy of the writ, because this may allow the court to issue the writ
sooner. If you do enclose a writ, fill in whatever information you can provide.
(d) How to File
Write out and then type a petition and a writ. Sign the petition in the presence of a
notary public, who will put his seal on the papers. By “notarizing” the petition, you are
swearing that all statements in the document are true.179 Send the documents to the court
specified above in Section 2, “Where to File.” Appendix II of the JLM provides the addresses
for New York courts.
The U.S. Supreme Court has held you have no federal constitutional right to counsel in
state habeas corpus proceedings.180 But, New York state law may provide you the right to
counsel. If you are indigent and incapable of obtaining your own lawyer, you often have a
right to a court-appointed lawyer for a hearing on your habeas petition, provided you request
that the court appoint a lawyer.181 To do so, you must complete poor person’s papers (known
as proceeding in forma pauperis). JLM, Chapter 22, “How to Challenge Administrative
Decisions Using Article 78 of the New York Civil Practice Law and Rules,” contains sample
poor person’s papers in its Appendix A for use in obtaining a lawyer for an Article 78
proceeding. You may use the same forms to obtain a lawyer for a habeas corpus proceeding if
you: (1) substitute “Article 70” wherever the forms say “Article 78;”(2) delete any references
to the Attorney General; and (3) substitute “writ of habeas corpus” wherever the papers read
“order to show cause” or “verified petition.”
You may also use poor person’s papers to request a reduction or waiver of the filing fees.
You should read Part D of JLM, Chapter 22 on Article 78 for a detailed description of filing
fees. It explains that sentenced prisoners likely must pay at least a portion of the filing fees
to proceed with their claims.182
If you have not been sentenced (for example, are filing a habeas petition to challenge
excessive bail), you should still be able to receive a full filing fee waiver if you are indigent
under New York law.183 To request a waiver of filing fees, you should replace all references to
N.Y. C.P.L.R. 1101(f) in the poor person’s papers with N.Y. C.P.L.R. 1101(d) and make sure
the papers request a waiver, not a reduction, of the filing fees.
A court will not issue a writ of habeas corpus if (1) it appears from your petition that
your claim is plainly without merit184 or (2) your petition does not contain any claim that was
179. Notarizing your petition satisfies the “verification” requirement. N.Y. C.P.L.R. 7002(c)
(McKinney 1998).
180. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993, 95 L. Ed. 2d 539, 545
181. See People ex rel. Brock v. La Vallee, 42 A.D.2d 629, 629–630, 344 N.Y.S.2d 513, 515 (3d
Dept. 1973) (holding that at any hearing in connection with a habeas petition filed by an indigent
prisoner seeking to be released from custody, the prisoner shall be entitled, upon request, to the
assignment of counsel to represent him at such hearing); see also People ex rel. Ferguson v. Campbell,
186 A.D.2d 319, 587 N.Y.S.2d 798, 799 (3d Dept. 1992) (noting court did not abuse discretion by not
appointing counsel because petitioner indicated that he did not want legal representation).
182. N.Y. C.P.L.R. 1101(f) (McKinney 1998 & Supp. 2007).
184. Your petition must state one of the valid grounds for relief supported by factual allegations.
If your petition does not contain both the grounds for relief and supporting facts, then it will be
dismissed.
not already decided against you in a previous petition.185 However, if the court believes that
your claim may have some merit, the court will issue you a writ.186
After the court issues the writ, you must “serve” (deliver) the writ and a copy of your
petition upon the warden.187 Upon being served with the writ and your petition, the warden
must respond to the claims made in your petition within twenty-four hours.188 The warden’s
response is known as the “return of the writ.”189 The warden must provide you with a copy of
the return. 190 You have the right to make a reply to the return in order to deny any
statements in the return or to state additional facts that support your claim.191
The writ may specify a time and place for a hearing to which the warden must take you
to determine whether you are being imprisoned illegally. If the writ orders a hearing, you
must inform the District Attorney of both the county in which you are imprisoned and the
county in which you were convicted of the date and time of the hearing, in writing, at least
eight days prior to the hearing.192 Appendix III of the JLM provides the addresses of all of
the District Attorneys in New York. At the hearing, the court will consider your petition, the
return, and your reply to the return. You will be allowed to produce evidence to support your
claim and to cross-examine any witnesses against you.193
If the judge hands down a judgment refusing to issue a writ of habeas corpus or denying
your claim after a hearing or return of the writ, you may appeal the judgment to an
intermediate appellate court.194 In New York, this court is called the Appellate Division and
is divided into four different Departments.195
D. Texas
This Part explains some of the basic rules for filing a habeas corpus petition in Texas.
1. Requirements
The Texas writ of habeas corpus rules can be found in Chapter 11 of the Texas Code of
Criminal Procedure, also known as Tex. Code Crim. Proc. Ann. art. 11.01.65 (Vernon 2005).
If you are facing the death penalty in Texas, the procedure for filing for a writ is different.
185. N.Y. C.P.L.R. 7003(a)B(b) (McKinney 1998). See also People ex rel. Sanchez v. Hoke, 132
A.D.2d 861, 518 N.Y.S.2d 69 (3d Dept. 1987) (dismissing habeas petition without a hearing where the
petition raised no new matter that had not already been raised and resolved against the petitioner).
186. N.Y. C P.L.R. 7003(a) (McKinney 1998).
187. N.Y. C.P.L.R. 7005 (McKinney 1998).
188. N.Y. C.P.L.R. 7006(a); N.Y. C.P.L.R. 7008(a) (McKinney 1998).
190. See Vincent C. Alexander, Practice Commentaries, N.Y. C.P.L.R. 7008 (McKinney 1998).
192. N.Y. C.P.L.R. 7009(a)(3) (McKinney 1998). If you file a poor person’s papers, which is also
known as proceeding in forma pauperis, a court officer will inform the District Attorney for you.
193. See People ex rel. Cole v. Johnston, 22 A.D.2d 893, 255 N.Y.S.2d 388 (2d Dept. 1964)
(finding fact that petitioner was not allowed to produce evidence in his behalf or to cross-examine the
only witness against him to be reversible error).
194. N.Y. C.P.L.R. 7011 (McKinney 1998). The rules that govern civil appeals, rather than
criminal appeals, govern habeas corpus proceedings because habeas corpus is considered a civil remedy.
195. See JLM, Chapter 2, “An Introduction to Legal Research,” for a description of New York
courts.
(a) Custody
If you have been released on parole, probation, bail, bond, or ROR, you are still eligible
for a writ of habeas corpus.196 You may also be entitled to a writ of habeas corpus for a prior
conviction that has future consequences. For example, if you have a prior misdemeanor
conviction of driving while intoxicated, future convictions of the same offense will be felonies.
Therefore, even if you are not in confinement for the misdemeanor conviction you may be
entitled to a writ of habeas corpus because that conviction has “collateral legal consequences”
affecting future convictions.197
(b) Immediate Release
You must be entitled to immediate release if your habeas petition is successful.
(c) State Prisoner
You must be a prisoner in Texas.
(d) No Other Options
In Texas there is an exception to the rule that you must have exhausted all other
procedures. When your petition involves constitutional rights, such as the right against
double jeopardy or the right to due process, you may petition regardless of whether you have
exhausted other avenues for relief. Since these rights can never be waived or lost,198 you can
include these issues in a habeas petition even if you did not include them in your appeal. In
addition, some issues, such as bail and conditions of confinement, cannot be addressed on
appeal and should be first raised in a habeas petition. If you wish to make a claim about
credit for time served in Texas, you should follow the procedures set out in Texas
Government Code Annotated Section 501.0081(a) (Vernon 2004).
196. See Ex parte Elliott, 746 S.W.2d 762, 763 (Tex. Crim. App. 1988) (citing Tex. Code Crim.
Proc. Ann. art. 42.18, § 8(a) to establish that prisoners on parole are in the legal custody of the state
and may use habeas corpus to challenge their conviction); Ex parte Ormsby, 676 S.W.2d 130, 132 (Tex.
Crim. App. 1984) (holding state habeas statute applies to people who are in any way restrained in their
personal liberty); Ex parte Robinson, 641 S.W.2d. 552, 553 (Tex. Crim. App. 1982) (holding that habeas
corpus may be used to challenge bond); Ex parte Gray, 564 S.W.2d. 713, 714 (Tex. Crim. App. 1978)
(noting that “the proper method for challenging the denial or excessiveness of bail, whether prior to
trial or after conviction, is by habeas corpus”); Ex parte Mallares, 953 S.W.2d 759, 761 (Tex. App. 3d
Dist. 1997) (stating that the conditions of bond restrain personal liberty); Ex parte Clark, 813 S.W.2d
696, 697 (Tex. App. 1st Dist. 1991) (holding habeas corpus proper relief for persons subject to
restrictions of ROR bond).
197. See Ex parte Burt, 499 S.W.2d 109 (Tex. Crim. App. 1973) (granting writ of habeas corpus to
petitioner who, without the benefit of counsel, had pleaded guilty to a misdemeanor charge of driving
while intoxicated. The misdemeanor conviction caused the two following convictions for the same
offense to be felonies).
198. See Ex parte McCain, 67 S.W.3d 204, 207 (Tex. Crim. App. 2002) (holding “[a] writ of habeas
corpus is available only for relief from jurisdictional defects and violations of constitutional or
fundamental rights.”); Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994) (affirming that
post-conviction writs of habeas corpus are reserved for cases where there is a denial of constitutional or
fundamental rights or a problem with trial court jurisdiction).
(a) Before Trial

(i) Extradition
In Texas, if you are arrested based on an indictment from another state, a magistrate
may either commit you or hold you to bail for up to ninety days.199 As in New York, the Texas
court may hold you for a maximum of thirty days and after the time specified in the warrant
or bond expires the court may either discharge you or recommit you for a period of up to sixty
days.200 In Texas, once you are arrested on a warrant from another state you will appear
before a Texas judge where you will be informed of the charges against you and your right to
counsel. If you wish to challenge the legality of your arrest, the court should provide you with
Areasonable time” to apply for a writ of habeas corpus.201
(ii) Bail
In Texas, you may apply for a writ of habeas corpus if you believe your bail is
excessive. 202 Guidelines for setting bail are described in the Texas Code of Criminal
Procedure Article 17.15: “The bail shall be sufficiently high to give reasonable assurance that
the undertaking will be complied with … [but] the power to require bail is not to be so used
as to make it an instrument of oppression.” When setting bail the court may consider the
nature and circumstances of the alleged offense and the ability of the defendant to make bail.
You can also apply for bail if your case is on appeal.203 That is, you can request a writ of
habeas corpus, and if the writ is granted you will be provided a bail hearing.
(iii) Delay
You may petition for a writ if you have been in custody for 180 days but no indictment or
information has been issued. 204 You may not assert your right to a speedy trial with a
pretrial habeas petition.205
(iv) Double Jeopardy
You cannot be prosecuted for the same crime more than once. If you are arrested for
something you have already been tried for or served time on, on the other hand, you may file
a petition for writ of habeas corpus claiming double jeopardy.206 In Florida and New York,
199. Tex. Code Crim. Proc. Ann. art. 51.05 (Vernon 2006).
200. Tex. Code Crim. Proc. Ann. art. 51.13(15), 51.13(17) (Vernon 2006).
201. Tex. Code Crim. Proc. Ann. art. 51.13(10) (Vernon 2006).
202 . See Green v. State, 872 S.W.2d 717, 722 (Tex. Crim. App. 1994) (finding that “the
traditional method of attacking excessive bail is by application for writ of habeas corpus.”); Ex parte
Meador, 248 S.W. 348, 93 Tex. Crim. 450 (Tex. Crim. App. 1923) (granting a writ of habeas corpus
when bail was set too high).
203. See Ex parte Jackson, 602 S.W.2d 535 (Tex. Crim. App. 1980) (finding that defendant
appealing a conviction with a sentence of less than 15 years was denied due process when he was
denied a bail hearing).
204. See Tex. Code Crim. Proc. Ann. art. 32.01 (Vernon 2004); Nix v. State, 882 S.W.2d 474 (Tex.
Ct. App. 1st Dist. 1994) (finding that habeas corpus was proper remedy for petitioner, who was not
indicted within the proper statutory time period, and dismissing her case with prejudice).
205. See Weise v. State, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001) (holding that applicant may
not use a pretrial habeas motion to assert his constitutional rights to a speedy trial because this issue
is better addressed by a post-conviction appeal); Smith v. Gohmert, 962 S.W.2d 590, 593 (Tex. Crim.
App. 1998) (determining that habeas corpus is an “extraordinary remedy,” and that where petitioner
has an adequate remedy at law for his speedy trial complaints, he is not entitled to habeas corpus
relief).
206. See Stephens v. State, 806 S.W.2d 812, 814 (Tex. Crim. App. 1990) (noting that a “pretrial
you may use a habeas corpus petition to challenge double jeopardy only after you have been
convicted.
(i) Confinement Beyond Sentence
You are entitled to a writ of habeas corpus if your sentence is defective.207 The court will
consider a sentence defective if it is neither definite nor certain,208 or if it falls outside the
maximum or minimum sentence allowed by law.209 You are also entitled to a writ of habeas
corpus if you are still in prison, but have already completed your sentence or if you have
already completed the maximum punishment that could be assessed for the offense for which
you were sentenced.210 You may not petition the court for a writ of habeas corpus on the
grounds of excessive sentence until you have completed the minimum time for the offense of
which you have been convicted. As explained in Part A(2)(b) of this Chapter, this is because
you must be eligible for immediate release.
You may use a habeas petition to challenge enhancement of your sentence. Enhancement
refers to the increased time given to habitual offenders. To challenge enhancement, you must
prove that the current conviction or one of the earlier convictions used for enhancement was
void.211 You may challenge the current and earlier convictions on any of the grounds listed in
this Chapter. For instance, you may petition the court for a writ of habeas corpus on the
ground that your sentence should not have been enhanced because the indictment on which
your earlier conviction was based was defective.212
(ii) Fundamental Rights
In Texas, a habeas petition may be used to challenge violations of constitutional rights.213
In Texas, the constitutional rights covered include the right to a jury trial,214 due process,
writ of habeas corpus is an appropriate remedy to review a double jeopardy claim.”).

207. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (holding that a sentence
issued which was outside the legal range of punishment was unauthorized and illegal, and that a
defendant could “obtain relief from an unauthorized sentence on direct appeal or by a writ of habeas
corpus”); Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 1979) (holding that habeas corpus relief
was appropriate in a felony case where the jury had imposed a punishment, unauthorized by law, of
confinement without a recommendation of probation and a fine with recommendation of probation).
208. Ex parte East, 225 S.W.2d 833, 833, 154 Tex. Crim. 123, 123 (Tex. Crim. App. 1950) (finding
that a sentence of “confinement in the state penitentiary for a term of not less than five years, nor more
than his natural life” is void because it is neither definite nor certain).
209. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (holding that a sentence
which was outside the legal range of punishment was unauthorized and illegal, and that a defendant
could “obtain relief from an unauthorized sentence on direct appeal or by a writ of habeas corpus”).
210. See Ex parte Morgan, 412 S.W.2d 657, 659 (Tex. Crim. App. 1967) (granting writ of habeas
corpus when petitioner served more than the maximum punishment that could be assessed against
him).
211. See Hernandez v. State, 530 S.W.2d 563, 567 (Tex. Crim. App. 1975) (finding that the
validity of a prior conviction used for enhancement was properly the subject of post-conviction attack).
212. See Ex parte Patterson, 969 S.W.2d 16, 19–20 (Tex. Crim. App. 1998) (holding that an
indictment using a void conviction for enhancement is void, but error must be preserved by objection at
time of trial or when entering plea for later conviction), overruling Ex parte Nivens, 619 S.W.2d 184
(Tex. Crim. App. 1981).
213. See Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994) (holding that petition of
writ of habeas corpus is a method by which one can challenge denial of constitutional rights).
214. See Ex parte Lyles, 891 S.W.2d 960, 961–962 (Tex. Crim. App. 1995) (finding that right to
jury trial is fundamental and that denial of right to jury trial is a matter for habeas corpus review).
and the right against double jeopardy. You can also use a habeas petition to challenge
suppression of evidence215 and violations of the presumption of innocence.216
(iii) New or Void Law
You may also petition the court on the grounds that the statute under which you were
prosecuted is unconstitutional. 217 It is very rare for courts to declare a statute
unconstitutional. If the statute you were prosecuted under is declared unconstitutional, you
are entitled to immediate release on a petition for writ of habeas corpus. Texas may grant
writs of habeas corpus when there has been a change in the law, and the law that was used
to convict you has been declared void. A court may also grant a writ if a newly enacted or
newly decided law is intended to apply retroactively.218
(iv) Ineffective Assistance of Counsel
In Texas, you are entitled to have counsel at any criminal proceeding that affects a
substantial right.219 If you are indigent and you requested and were denied counsel for a
preliminary hearing, plea proceeding, trial,220 parole revocation,221 or appellate proceeding222
215. See Easton v. State, 920 S.W.2d 747, 750 (Tex. App. 1st Dist. 1996) (ruling that the proper
remedy for a person to complain of suppressed evidence is to file a post-conviction writ of habeas
corpus); see also Ex parte Lewis, 587 S.W.2d 697, 701 (Tex. Crim. App. 1979) (granting habeas corpus
relief because there was clear harm done to the defendant when favorable evidence was not revealed by
the state). Under Lewis, the court will likely require you to show that the harm caused by the
suppression is clear.
216. See Ex parte Clark, 545 S.W.2d 175, 177 (Tex. Crim. App. 1977) (holding that violation of
prisoner’s rights regarding presumption of innocence were violated when potential members of the jury
saw the prisoner in jail clothes and shackled to another prisoner).
217. See Weise v. State, 55 S.W.3d 617, 620–621 (Tex. Crim. App. 2001) (denying pretrial habeas
corpus petition because relator alleged that the statute was unconstitutional as applied, not
unconstitutional on its face; had relator alleged that the statute was unconstitutional on its face,
habeas corpus hearing would have been appropriate); Ex parte Chernosky, 217 S.W.2d 673, 674, 153
Tex. Crim. 52, 54 (Tex. Crim. App. 1949) (finding a vague statute violates due process and upholding
habeas corpus as a means of challenging an unconstitutionally vague statute).
218. See Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994) (granting writ of habeas
corpus because criminal appeals court had recently overruled its previous ruling on issue in this case
when this case was on appeal).
219. See Ex parte Lemay, 525 S.W.2d 1, 2 (Tex. Crim. App. 1975) (finding the right to have
representation at all proceedings that affect substantial right of the accused to be retroactive). For
more information on ineffective assistance of counsel claims, see JLM, Chapter 12, “Appealing Your
Conviction Based on Ineffective Assistance of Counsel.”
220. See Ex parte Hope, 374 S.W.2d 441, 442 (Tex. Crim. App. 1964) (ruling indigent defendant
whose request for counsel was denied was entitled to writ of habeas corpus); see also Ex parte Parsons,
374 S.W.2d 442, 443 (Tex. Crim. App. 1964) (granting indigent petitioner a habeas writ because his
request for counsel was refused by the trial court).
221. Ex parte Guzman, 551 S.W.2d 387, 388 (Tex. Crim. App. 1977) (finding order revoking
parole void where petitioner was not represented by counsel at parole revocation hearing). See (c) below
of this section for more discussion of parole hearings in Texas.
222. See Ex parte Gaines, 455 S.W.2d 210, 211 (Tex. Crim. App. 1970) (holding a conviction
cannot stand where a petitioner’s counsel refused to represent him on appeal but filed no notice or
motion to withdraw with the court, so defendant did not have counsel for appeal); Ex parte Beck, 621
S.W.2d 810, 811 (Tex. Crim. App. 1981) (granting habeas corpus relief to a petitioner who was indigent
and requested counsel for his appeal but was not given counsel, and who could not file an out of time
appeal because the court reporter’s records were lost or destroyed). In each of these cases the petitioner
was denied his right to appeal because he was not provided counsel. If you petition the court for a writ
of habeas corpus on the ground that you did not have an attorney to represent you on your appeal and
the court finds for you then it will probably appoint counsel and grant you an out-of-time appeal. If
court transcripts and other records are unavailable, the court may grant you a new trial. The court will
probably not find in your favor if you cannot prove that you asked for and were denied counsel.
you may petition the court for a habeas writ. If you have been sentenced to death, you also
have a right to counsel to assist you in filing your writ of habeas corpus.223 Also, you have the
right to effective counsel. If your claim can be made on the basis of the record alone (e.g.,
failure to object), then it should be brought on direct appeal. Ineffective assistance of counsel
claims that require information not contained in the record should be brought in a habeas
petition. An example of evidence not in the record would be your attorney’s failure to put on
or interview an alibi witness.
(v) New Evidence
In Texas, you may apply for a writ of habeas corpus if new evidence has been discovered
that could exonerate you. You must prove four things about the new evidence:
(1) The evidence was unknown to you at the time of the trial;
(2) The evidence was not unknown to you because of your lack of diligence;
(3) The evidence is admissible; and
(4) You must demonstrate “by clear and convincing evidence that no reasonable juror
would have convicted [you] in light of the new evidence.”224
To be granted a habeas petition on the grounds that evidence was suppressed, you must
show by a “preponderance of evidence” that the error contributed to your conviction or
punishment.225
(vi) Entry of a Defective Guilty Plea
In rare cases the court will grant a writ of habeas corpus to withdraw a guilty plea. If you
can prove that the judge did not tell you the consequences of your plea and that as a
consequence you were prejudiced or injured, you may petition the court for writ of habeas
corpus.226 As stated earlier in this Chapter, you may also petition if you were not represented
by an attorney during plea proceedings.
In Texas you have a right to a hearing when your parole or probation is revoked as a
result of a new conviction. 227 You must file a motion to request a hearing when your
probation is being revoked. After you file your motion, you must be provided with a hearing
223. Tex. Code Crim. Proc. Ann. art. 11.071(2)(a) (Vernon 2005 & Supp. 2007). Right to habeas
counsel for those sentenced to death is a statutory, not constitutional, right; thus, one cannot raise
ineffectiveness of habeas counsel in a subsequent habeas petition. Counsel provided for a habeas
petitioner in a capital case must be competent at the time of appointment, but there is no constitutional
right to competent counsel in the investigation and preparation of the habeas petition. Ex parte Graves,
70 S.W.3d 103, 114 (Tex. Crim. App. 2002) (rejecting the notion that appointment of “competent
counsel” means counsel appointed must render constitutionally effective assistance in the particular
case).
224. See State v. Nkwocha, 31 S.W.3d 817, 820 (Tex. App. 2000) (quoting Ex parte Elizondo 947
S.W.2d 202, 209 (Tex. Crim. App. 1996) to modify standard for proving new evidence under Tex. Crim.
Proc. Code Ann. art. 40.001 for applying for a writ of habeas corpus); see also Moore v. State, 882
S.W.2d 844, 849 (Tex. Crim. App. 1994) (listing four criteria that new evidence must meet for a new
trial to be granted under Tex. Code Crim. Proc. Ann. art. 40.03(6)).
225. Ex Parte Fierro, 934 S.W.2d 370, 373–374, 65 USLW 2272 (Tex. Crim. App. 1996) (denying
habeas writ when relator was unable to demonstrate the prosecutor’s knowing use of perjured
testimony contributed to his conviction).
226. See Ex parte Taylor, 522 S.W.2d 479, 480 (Tex. Crim. App. 1975) (holding habeas would be
proper remedy where judge failed to properly inform petitioner of consequences of the plea, assuming
petitioner could show prejudice).
227. Ex parte Snow, 899 S.W.2d 201, 202–203 (Tex. Crim. App. 1995) (granting relief to relator
denied a parole revocation hearing when his parole was curtailed after he was convicted of another
offense that occurred before the first conviction).
within twenty days.228 If you do not receive such a hearing, you may file a petition of habeas
corpus. You have the right to have notice of the hearing and to be heard at the hearing.229
Once your parole is revoked you may challenge the parole board’s decision by filing a motion
to re-open. You must file the motion to re-open within forty-five days of the parole board’s
decision.230 You may not file a petition for a writ of habeas corpus until after you have filed a
motion to re-open.
(d) Jurisdiction
(i) Personal Jurisdiction
If you were a minor when the alleged offense occurred, you have a right to an examining
hearing before you can be prosecuted as an adult. An examining hearing is one in which the
court decides whether to treat you as an adult or as a juvenile. If you were not granted an
examining hearing or were not allowed counsel at your hearing, you may petition for writ of
habeas corpus on personal jurisdiction grounds.231 If you waived your right to an examining
hearing, you may not raise this issue on appeal.
(ii) Subject Matter Jurisdiction
In Texas, the presentment of an indictment confers jurisdiction on the trial court.232 This
means that the charging instrument will still constitute an indictment, and the court will
still have jurisdiction even if it omits or misstates an essential element of the crime. 233
Defects such as the omission of an element of the crime from the information are considered
merely “substance” defects. Substance defects must be objected to pre-trial and on appeal in
order for you to raise the issue in your habeas petition. 234 If you do not object to any
substance defect in an indictment or information before trial, the court will consider you to
have waived your right to challenge it on appeal or in your habeas petition.235 Substance
defects that you can raise in your habeas petition, if you objected to them pretrial, are: an
228. See Tex. Code Crim. Proc. Ann. art. 42.12 § 21(b) (Vernon 2006 & Supp. 2007). But see
Wilson v. State, 645 S.W.2d 932, 933 (Tex. App. 1983) (holding that twenty day statutory time period
was not triggered where appellant failed to file a written request for a hearing).
229. See Ex parte Maceyra, 690 S.W.2d 572, 576 (Tex. Crim. App. 1983) (granting relief to relator
who was incarcerated on a parole violation without notice of or the opportunity to appear at the parole
revocation hearing).
230. Tex. Admin. Code tit. 37 § 145.54 (West 2002).
231. See Ex parte Ytuarte, 579 S.W.2d 210, 211 (Tex. Crim. App. 1979) (holding that where the
juvenile prisoner had not been given an examining trial, and had not waived his right to have one, but
was nevertheless tried as an adult, his indictment, judgment, and conviction were void); Ex parte
Juarez, 579 S.W.2d 211, 212 (Tex. Crim. App. 1979) (holding that petitioner was entitled to habeas
relief where he was a juvenile who had been certified as an adult and had not been granted an
examining trial and had not waived his right to an examining hearing); Ex parte Hunter, 581 S.W.2d
182, 183 (Tex. Crim. App. 1979) (holding that convicting court did not have jurisdiction in case where
juvenile petitioner was not granted his right to an examining trial and did not waive that right).
232. Tx. Const. art. V, § 12.
233. See Struder v. State, 804 S.W.2d 263, 272 (Tex. Crim. App. 1990) (“[A]n indictment (or
information) is still an indictment (or information), at least as contemplated by Art. V, § 12, though it
be flawed by matters of substance such as the absence of an element.”); Rodriguez v. State, 799 S.W.2d
301, 303 (Tex. Crim. App. 1990).
234. See Struder v. State, 804 S.W. 2d 263, 273 (Tex. Crim. App. 1990) (holding that where
petitioner failed to make any pretrial objection to the substance error in the information, he waived his
right to challenge it on habeas review); Rodriguez v. State, 799 S.W.2d 301, 303 (Tex. Crim. App. 1990)
(finding that petitioner waived his right to challenge substance defect in the information where he
failed to make a pretrial objection to it).
235. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005).
indictment’s failure to list all of the elements of the crime, 236 an indictment’s failure to
charge the necessary mental state as required by law, 237 or an indictment’s issuance after
the statute of limitations for the offense has already run. 238 If the court finds that the
indictment was defective, it will be voided and you will be entitled to immediate release for
that charge. However, you may be re-indicted for the same offense.
(a) When to File
In Texas, make sure that you have exhausted your appeals. In some instances, if you
delay in seeking habeas corpus relief, it may prejudice the credibility of your claim.239
(b) Where to File
If you are currently being held on a misdemeanor charge or conviction in Texas, you may
apply to the county court that heard or is hearing your case, or to a district court.240 If you
are filing a petition based upon your felony charge or conviction, then you must file in the
district court that convicted you.241 If your conviction is not yet final, then you should pursue
relief in your trial court.242 Claims regarding parole revocation hearings should be filed in the
court and county in which you were convicted of the original offense.243 For example, if you
were convicted of a crime in Fort Worth and then paroled to El Paso, you should file a habeas
petition concerning your parole revocation in Fort Worth. Cite the case number of the crime
for which you were convicted. Though you should make every effort to file your petition in
236. See Ex parte McClain, 623 S.W.2d 140, 141 (Tex. Crim. App. 1981) (stating indictment that
fails to allege all elements of the offense charged is void and can be challenged by petition for writ of
habeas corpus, but finding indictment in this case alleged all elements of the offense); see also Ex parte
Seaton, 580 S.W.2d 593, 594 (Tex. Crim. App. 1979) (granting the writ of habeas corpus where the
indictment was fatally defective because it did not allege all of the elements of the offense).
237. See Ex parte Pullin, 608 S.W.2d 935, 936 (Tex. Crim. App. 1980) (holding that where a
necessary culpable mental state is not alleged in an indictment or information, such pleading is
rendered void).
238. See Ex parte Dickerson, 549 S.W.2d 202, 203 (Tex. Crim. App. 1977) (finding that where
pleading, on its face, indicates that prosecution for the offense charged is barred by statute of
limitations the complaint, information, or indictment is fundamentally defective and can be challenged
by way of petition for writ of habeas corpus).
239. Ex parte Young, 479 S.W.2d 45, 46 (Tex. Crim. App. 1972) (commenting, “while we do not
desire to make an absolute rule concerning habeas corpus petitioners who do not assert their legal
remedies promptly, we nevertheless feel that in some instances, a petitioner's delay in seeking relief
can prejudice the credibility of his claim”); see also Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim.
App. 1999) (holding delay alone was an insufficient ground to deny defendant’s application for habeas
relief, although the delay affected the credibility of applicant’s claim). The Texas Court of Criminal
Appeals has commented that a “requirement that claims for relief be asserted within a specified period
of time” would be “arbitrary and probably unconstitutional.” Ex parte Galvan, 770 S.W.2d 822, 824
(Tex. Crim. App. 1989).
240. See Ex parte Jamail, 904 S.W.2d 862, 867 (Tex. App. 1st Dist. 1995) (affirming trial court’s
denial of habeas relief); Ex parte Williams, 786 S.W.2d 781, 782 (Tex. App. 1st Dist. 1990) (finding that
both the county court and the district court could grant habeas relief where the defendant was
convicted by the county court).
241. Tex. Code Crim. Proc. Ann. art. 11.07 § 3(b) (Vernon 2005).
242. Tex. Code Crim. Proc. Ann. art. 11.07 § 2 (Vernon 2005); Ex parte Martell, 901 S.W.2d 754,
754 (Tex. App. 4th Dist. 1995) (finding appellant properly filed a habeas petition in the trial court in
which he was convicted because he was serving a probated felony sentence and thus his conviction was
not final).
243. See Ex parte Evans, 964 S.W.2d 643, 647 (Tex. Crim. App. 1998) (finding that applicant
correctly filed writ application in the trial court where he was convicted).
the proper court, the court may not dismiss your petition if you file in the wrong court. The
court will instruct the district clerk to transfer the writ to the proper jurisdiction.244
(c) What to Include in Your Petition
Generally a petition for a writ of habeas corpus must include your name and must state
that you are illegally restrained of your liberty. The petition must identify by name,
designation, or description the person restraining you, and it should pray (ask) that the writ
of habeas corpus be issued. For felony convictions, Texas has recently created a detailed form
that you must use.245
(d) How to File
After you fill out the form, you must swear to the petition by signing it. You must also
attach a copy of the order restraining you. Send the documents to the court specified in (b) of
this section, “Where to File.”
The U.S. Supreme Court has held that you have no federal constitutional right to be
provided counsel in state habeas corpus proceedings.246 Generally, in Texas, you do not have
a right to appointed counsel to assist you with your habeas application.247 However, if you
are applying for relief because you are about to be extradited, you do have the right to
counsel.248
After you file your application with the court that convicted you, the clerk of the court
will send a copy of your application to an attorney representing the state. The state has
fifteen days to respond to your application. The court clerk must send you a copy of any
response the state makes or motion the state files.249 The convicting court then has twenty
days to determine whether there are any issues of material fact that need to be decided. If
there are, the court may order depositions, affidavits, or a hearing. Once the findings of fact
have been made, the convicting court will recommend findings and conclusions. These
findings and conclusions are sent to the Court of Criminal Appeals which makes the final
decision whether to grant the writ of habeas corpus.250
According to the Texas code, the court should issue the writ “without delay,” and will
only refuse to issue the writ if it is apparent that you are entitled to Ano relief whatsoever.”251
The court will only decide this if your petition is “utterly without merit.” 252 If the judge
244. See Ex parte Alexander, 861 S.W.2d 921, 922–23 (Tex. Crim. App. 1993) (holding a petition
for habeas writ not filed in the convicting court must be remanded with instructions to transfer the writ
to the court of conviction).
245. Tex. R. App. P. 73.1. You may get a free copy of the text of Rule 73.1 and this form by
writing to the clerk of the court that convicted you.
246. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993, 95 L. Ed. 2d 539
247. Ex parte Davis, 947 S.W.2d 216, 229 (Tex. Crim. App. 1996) (finding no provisions in the
U.S. Constitution or the Texas Constitution guaranteeing indigent applicants for habeas corpus the
right to counsel).
248. Ex parte Mines 26 S.W.3d 910, 914 (Tex. Crim. App. 2000); Ex parte Turner, 410 S.W.2d
639, 641 (Tex. Crim. App. 1967) (interpreting Tex. Code Crim. Proc. Ann. art. 51.13 § 10 as providing a
statutory right to counsel when applying for habeas corpus under Texas Uniform Criminal Extradition
Act).
249. Tex. Code Crim. Proc. Ann. art. 11.07(7) (Vernon. 2005 & Supp. 2007).
250. Tex. Code Crim. Proc. Ann. art. 11.07(5) (Vernon 2005).
251. Tex Code Crim. Proc. Ann. art. 11.15 (Vernon 2005).
252. Lofton v. State, 777 S.W.2d 96, 97 (Tex. Crim. App. 1989).
decides to issue a writ, it will be addressed to the person who has you under restraint. The
writ will name the person and fix a time and place for you to be “returned” before the court.
The person upon whom the writ is served (usually the person who is alleged to have you
in custody) may make a response stating whether they still have you under restraint, and if
not, where you have been transferred to and under what circumstances.253 This response is
the substantive return. The court may review it and decide whether to grant relief. The court
will first determine whether they have subject matter jurisdiction, 254 which means
determining whether they have jurisdiction to hear your complaint. For example, a county
judge would not have subject matter jurisdiction over felony charges. This is why it is
important that you file your application with the appropriate court. The court to which you
apply, the Court of Criminal Appeals, or both may decide to have a hearing on the merits.
This is a formal hearing where you may present witnesses and make opening and closing
arguments. 255 After the hearing, the Court of Criminal Appeals will decide whether to
remand you to prior custody, to allow you to post bail,256 or to release you.
Under some circumstances, you may appeal if the judge refuses to grant your application
for a writ of habeas corpus. You may only appeal if the state refuses to grant you a writ after
considering the merits of the case. 257 If the judge refuses to consider the merits of your
petition, then you may not appeal. The appeal should be directed to the Court of Criminal
Appeals.258 If you wish to appeal, you must file a notice of appeal within ten days of the
court’s decision.259
E. Conclusion
You must meet certain elements in your petition for a writ of habeas corpus to be
granted. These include custody (confinement by the state), entitlement to immediate release,
imprisonment by the state, and lack of other available procedures, including administrative
and grievance procedures. Your petition can complain about a variety of issues post-
conviction, parole or probation revocation, or jurisdiction. Remember that the details of this
process vary from state to state. You should research the rules in the state where you are
imprisoned before petitioning for a writ of state habeas corpus.
256. If you have not been convicted, and the court determines that the indictment or information
is void, the court may find that there is probable cause to hold you to bail. Tex. Code Crim. Proc. Ann.
art. 11.45 (Vernon 2001).
257. See Enriquez v. State, 2003 Tex. App. LEXIS 9899 (Tex. App. 13th Dist. 2003) (unpublished)
(stating that “if the trial court reaches the merits of the habeas corpus application, its ruling is
appealable”); Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991) (finding the writ
appealable when the judge did not hold an evidentiary hearing but addressed the merits of the
contentions of the petitioner in his decision); Ex parte Noe, 646 S.W.2d 230, 231 (Tex. Crim. App. 1983)
(holding that there is no jurisdiction for appeal when no notice of appeal is given).
258. Tex. R. App. P. 44.1.
259. See Ex parte Weston 556 S.W.2d 347, 349 (Tex. Crim. App. 1977) (dismissing appeal of
denial of habeas because the notice of appeal was filed after the ten-day period).
Manual
Chapter 22:
How To Challenge Administrative
Decisions Using Article 78 of the
New York Civil Practice Law and
Rules

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 22
HOW TO CHALLENGE ADMINISTRATIVE DECISIONS USING

ARTICLE 78 OF THE NEW YORK CIVIL PRACTICE LAW AND RULES∗
A. Introduction
This Chapter is about a New York State law that provides a procedure for you to
challenge decisions that were made by a New York State official or administrative body. It is
called Article 78 because it can be found starting at section 7801 of the New York Civil
Practice Law and Rules. 1 This Chapter explains when and how to bring an Article 78
proceeding. There are very strict rules and time limits when bringing an Article 78
proceeding, so read the requirements carefully.
Part B of this Chapter explains what you can complain about in an Article 78 petition.
Part C describes when you can obtain relief under Article 78. Part D explains the procedure
for filing an Article 78 petition. Part E describes how to bring an Article 78 proceeding, and
the Appendix has a sample Article 78 petition and supporting papers.
Article 78 is New York State law, and does not apply in other states. Some other states
have similar laws to review decisions of officials and administrative agencies. But, if you are
in another state, you will have to research what your state’s law is and how it differs from
New York’s Article 78.
1. What Is an Article 78 Proceeding?
In an Article 78 proceeding, you ask a state court to review a decision or action of a New
York State official or administrative agency, such as a prison official or the Board of Parole,
which you believe was unlawful. You can use Article 78, for example, to attack the state’s
calculation of your good time, a decision to place you in solitary confinement, or a decision to
deny you parole. In addition to claiming a violation of a law or regulation in an Article 78
petition, you must also explain in what way the action or inaction you are challenging caused
you injury. For example, if you have been denied parole, your injury would be that you were
suffering a longer incarceration. If you were not given a fair disciplinary hearing, your injury
would be the punishment you received and the record of your alleged violation. If you were
wrongfully denied medication, your injury would be pain or sickness.
But, you cannot challenge your conviction and sentence in an Article 78 proceeding
because those are judicial decisions (made by a court), as opposed to administrative
decisions.2 For information on challenging convictions and sentences, see JLM Chapter 9
∗ This Chapter was revised by Kristin Jamberdino and written by Sami Farhad, based in part on
previous versions by Nicholas Corson, Robert Linn, Joseph Noga, and Erik Schryve. Special thanks to
Laura Johnson of The Legal Aid Society, Criminal Defense Division and Ken Stephens of The Legal Aid
Society, Prisoners’ Rights Project for their valuable comments. The most recent version of this Chapter
was revised in 2004 and is based largely on a publication by The Legal Aid Society, Prisoners’ Rights
Project, entitled, “How to Litigate an Article 78 Proceeding.” You may obtain this document by
contacting The Legal Aid Society, Prisoners’ Rights Project, at 199 Water Street, 6th Floor, New York,
NY 10038 (tel. (212) 577-3530). The Section on appealing an Article 78 petition is based largely on a
publication by Prisoners’ Legal Services of New York, entitled “Appealing an Article 78 Proceeding.”
1. N.Y. C.P.L.R. 7801 (McKinney 1994 & Supp. 2006). The standard way of citing this statute,
which you may use when you are writing a legal paper and do not want to write constantly “New York
Civil Practice Law and Rules,” is: N.Y. C.P.L.R. 7801 (the number indicates the section or Rule to
which you are referring). Article 78 can be found in 7801 to 7806 of the N.Y. C.P.L.R. You should also
look at 401 to 411 of the N.Y. C.P.L.R., which describe some of the rules for “special proceedings,”
because Article 78 is a type of special proceeding.
2. N.Y. C.P.L.R. 7801(2) (McKinney 1994 & Supp. 2007). Article 78 may also be used to prevent a
(“Appealing Your Conviction or Sentence”); JLM Chapter 20 (“Using Article 440 of the New
York Criminal Procedure to Attack Your Unfair Conviction or Illegal Sentence”); JLM
Chapter 13 (“Federal Habeas Corpus”); and JLM Chapter 21 (“State Habeas Corpus”).
You start an Article 78 proceeding by filing a petition. Therefore, throughout the
proceeding you are referred to as the “petitioner.” Your petition will name the agency or
official whose decision you are challenging as the “respondent” (you can name more than one
respondent), and will state why you are complaining about the decision and what you would
like the court to do about it. After the agency or official files its “answer” responding to the
claims you make in your petition, you can file another document called the “reply.”3
2. Who Hears Article 78 Proceedings?
Article 78 petitions are heard by New York Supreme Courts,4 which are the trial courts
in New York. 5 Some Article 78 cases that begin in a supreme court will eventually be
transferred by that court to the appellate division (the next highest court) if they involve a
question of “substantial evidence.”6 Generally, a question of “substantial evidence” means the
original decision you are asking the court to review was not supported by enough evidence.
This will be explained in greater detail in Part B(3).
After the judge reads the papers that you and the administrative agency have submitted,
he or she will make a decision.7 Although Article 78 permits the judge to hold a hearing, this
is extremely rare. As a result, prisoners who file Article 78 actions almost never actually
appear in court. It is very likely that the judge will make his or her decision based upon the
papers that you and the respondent (government agency or official) file.
You should note that the law gives agencies a great deal of discretion (freedom to use
their own judgment). This means a judge needs a very good reason to overturn an
administrative decision, and that you (as the person challenging the administrative action)
will lose when it is a close call.
3. What Can You Ask the Court to Do in an Article 78
Proceeding?
When you prepare your Article 78 petition, you may ask the court to grant the following
kinds of relief (relief is what the court does for you or what it gives to you):
(1) Order the state official or agency to perform a duty that is required by law;
(2) Order the state official or agency not to act beyond its authority or violate the law; or
(3) Overrule a decision made by the officer or agency, or order it to reconsider the
decision because (a) the decision was obviously incorrect or unreasonable; (b) it was
based upon an error of law; or (c) it was based upon insufficient evidence.8
You should be aware that in Article 78 proceedings, money damages generally will not be
awarded. The law states that money damages will only be awarded in Article 78 proceedings
judge from hearing a case if he or she has no authority to hear it. See Schumer v. Holtzman, 60 N.Y.2d
46, 51, 454 N.E.2d 522, 524, 467 N.Y.S.2d 182, 184 (1983) (holding that a request for prohibition under
Article 78 is only appropriate if you are asking the court to prevent an official to act beyond his or her
authority).
4. N.Y. C.P.L.R. 7804(b) (McKinney 1994 & Supp. 2007).
5. For a list of the addresses of the supreme courts in each county, see Appendix II at the end of
the JLM.
6. N.Y. C.P.L.R. 7804(g) (McKinney 1994 & Supp. 2007).
if they are “incidental” (related) to the main claim.9 Courts will only grant stays (“delay”) in
unusual circumstances.10
There are some kinds of relief you can ask the court to give you even before it hears your
Article 78 petition. You may ask the court to “stay” (delay) the official or agency from taking
further action until your Article 78 petition has been heard and decided by the court.11 For
example, if you are challenging a decision that would result in you being placed in maximum
security or being transferred to another institution, the court might order the official or
agency to leave you where you are until the court has made its decision.
B. What You Can Complain About Under Article 78
In an Article 78 proceeding, you can raise only certain specific complaints about the state
agency or official’s action or failure to act. They can include the following:
(1) Whether the agency or official failed to do something the law requires;12
(2) Whether the agency or official has done something, is doing something, or is about to
do something that is beyond its lawful authority (“jurisdiction”);13
(3) Whether the agency or official made a decision that was unreasonable and irrational
or violated lawful procedure;14 or
(4) Whether the agency or official made a decision at a hearing not based on substantial
evidence.15
The examples provided above are only meant to give you an idea of what an Article 78
action can be used to challenge; other possibilities exist. Remember, Article 78 may be used
to complain about any administrative decision, as long as the requirements for Article 78
review are met. You can also make more than one claim. If you make more than one claim in
the same Article 78 proceeding, you may want to distinguish procedural claims from other
types of claims. If you can show an agency has failed to follow its own procedures, you may be
successful in your Article 78 proceeding. You might challenge a parole decision or sentence
calculation, or the action of a Work Assignment Committee or Time Allowance Committee. It
may also be helpful to read N.Y. Civil Practice Law and Rules, Section 7803 (to see what the
law says you can use Article 78 to challenge), and the annotated version of New York Civil
Practice Law and Rules, Section 7803 in McKinney’s16, which lists the decisions of Article 78
cases, including prisoners’ cases.17
9. N.Y. C.P.L.R. 7806 (McKinney 1994 & Supp. 2007). 7806 states that “any restitution or
damages granted to the petitioner must be incidental to the primary relief sought by the petitioner.”
N.Y. C.P.L.R. 7806 (McKinney 1994 & Supp. 2003). See Gross v. Perales, 72 N.Y.2d 231, 236, 527
N.E.2d 1205, 1207, 532 N.Y.S.2d 68, 70–71 (1988) (holding claim for damages was incidental where
damages are required under a statute once petitioner won his or her Article 78 claim; “[w]hether the
essential nature of the claim is to recover money, or whether the monetary relief is incidental to the
primary claim, is dependent upon the facts and issues presented in the particular case”); David D.
Siegel, New York Practice 984–85 (4th ed. West 2005); N.Y. C.P.L.R. 7806, Practice Commentaries
10. You have to show that you will suffer immediate and serious harm if the stay is not granted.
The court will only grant a stay if it decides that the harm you face is greater than the “cost” of
granting the stay. See N.Y. C.P.L.R. 7805, Practice Commentaries (McKinney 1994 & Supp. 2007).
12. N.Y. C.P.L.R. 7803(1) (McKinney 1994 & Supp. 2007).
16. See JLM Chapter 2, “Introduction to Legal Research,” Section (C)(2)(c)(4) for an explanation
of McKinney’s.
In the documents you file with the court, you do not need to identify which type of claim
or claims (also called “action” or “actions”) you are filing. You simply need to state that it is
an Article 78 action.18 Of course, the more detailed your petition is, the easier it will be for
the court to understand the reasons you seek legal relief. The following Sections address the
different types of claims that are allowed in Article 78 proceedings.
1. Compel Required Action (Mandamus to Compel)
The first type of action you can bring occurs when an official has failed to do something
that is required by law. This action is called a “mandamus to compel.” When you bring this
type of action, you are basically asking the court to make the official perform an act that is
his duty to perform.19 In this type of action, the duty to be performed must be required by the
law and must not be discretionary (left to the judgment of the official).20 This type of Article
78 proceeding is very important because it can force officials to follow the regulations that
protect your rights in prison. For example, you can bring an Article 78 proceeding to
challenge improper restrictions on your mail;21 to correct inaccurate disciplinary records;22 or
to make the State Board of Parole act on your application for parole when the Board has
ignored it and is required to act on it.23 You also can bring an Article 78 proceeding to make
the Board of Parole give you the reasons why your parole was denied.24 Note that in this last
18. David D. Siegel, New York Practice 956 (4th ed. West 2005).
19. See Gore v. Corwin, 185 Misc. 2d 825, 826, 714 N.Y.S.2d 427, 428 (Sup. Ct. Ulster County
2000) (“Mandamus is a proceeding to compel a public body or officer to act in accordance with the
law.”).
20. See Citywide Factors, Inc. v. N.Y. City Sch. Const. Auth., 228 A.D.2d. 499, 500, 644 N.Y.S.2d
62, 63 (2d Dept. 1996) (“Mandamus relief is appropriate only where the right to relief is clear, and the
duty sought to be compelled is the performance of an act which is required by law and involves no
exercise of discretion.”).
21 . See Hicks v. Russi, 219 A.D.2d 851, 851, 632 N.Y.S.2d 341, 342–33 (4th Dept. 1995)
(reversing lower court’s dismissal of prisoner’s Article 78 petition and holding that prison officials could
not prevent prisoner from advertising or selling his book to other prisoners by mail and replying to mail
orders). But see Raqiyb v. Goord, 28 A.D.3d 892, 893, 813 N.Y.S.2d 251, 253 (3d Dept. 2006) (refusing
prisoner’s claim that regulation of his correspondence with his incarcerated nephew and opening of
prisoner’s outbound mail with insufficient postage was improper).
22. See Hilton v. Dalsheim, 81 A.D.2d 887, 887–88, 439 N.Y.S.2d 157, 157–59 (2d Dept. 1981)
(granting prisoner’s Article 78 motion to compel the removal from his disciplinary record an alleged
disciplinary infraction where he was not provided assistance in investigating the claim made against
him and the hearing officer did not interview witnesses, both required by regulations, and because he
was not given a written statement from the hearing officer outlining the evidence she relied upon and
the reason for the actions she took, which violated the prisoner’s due process rights). For a mixed
petition for mandamus to review and to compel, see McDermott v. Coughlin, 135 Misc. 2d 659, 661, 664,
516 N.Y.S.2d 834, 836, 838 (Sup. Ct. Chenung County 1987) (granting Article 78 to void decision that a
prisoner had violated disciplinary rules when those rules were not yet filed at the time of the
underlying incident, restoring petitioner’s privileges and good behavior allowances, and expunging
references to the disciplinary action from his record).
23. See Hines v. State Bd. of Parole, 267 A.D. 99, 101, 44 N.Y.S.2d 655, 656–57 (3d Dept. 1943)
(noting that an application for a mandamus to compel was the proper remedy to force the State Board
of Parole to take action on prisoner’s application for parole); see also Utica Cheese v. Barber, 49 N.Y.2d
1028, 1030, 406 N.E.2d 1342, 1343, 429 N.Y.S.2d 405, 406 (1980) (granting an Article 78 claim to force
an agency to hold a hearing, as required by law, to decide petitioner’s application for a license); see also
Vulpis v. Dep’t of Corr., 154 Misc. 2d 625, 625–29, 585 N.Y.S.2d 954, 954–56 (Sup. Ct. Kings County
1992) (court granted prisoner’s mandamus to compel Department of Corrections to process his
application for parole and ensure his release where Department did not follow applicable New York
Correction Law).
24. See Van Luven v. Henderson, 52 A.D.2d 1042, 1042, 384 N.Y.S.2d 898, 899 (4th Dept. 1976)
(noting that an Article 78 proceeding is the proper remedy when the Board of Parole fails to comply
with its duty to give prisoners notice of reasons for denial of parole); see also People ex rel. Cender v.
Henderson, 51 A.D.2d 683, 683, 378 N.Y.S.2d 205, 206 (4th Dept. 1976) (holding that an Article 78
type of proceeding, the remedy provided by the court would be to order the Board of Parole to
decide your parole application,25 or to make the Board give you the reasons for denying your
parole.26 The court would not order a certain result or decision, since this would be up to the
discretion of the Board.27 (To challenge a discretionary decision, see the second and third
types of proceedings described below.) Another example of this type of proceeding would be
claiming that you are entitled to credit against the length of your sentence for time you spent
in custody.28 In such a case you would be asking the court to order the agency (if you are in a
New York State prison, this would be the Department of Correctional Services) to recalculate
your sentence.29
When you bring this type of proceeding, if possible, you should state in your petition the
law, regulation, or case you believe states the official’s duty. If you seek relief because the
agency did not follow proper procedures, you should try to connect the mistakes to the
agency’s decision(s). If you do not show this connection, the court might rule the failure to
follow appropriate procedures was only “harmless error” (meaning the agency decision would
have been the same even if it had followed proper procedures).
2. Review of Discretionary Administrative Decision—”Arbitrary
and Capricious” Standard (Mandamus to Review)
A second type of action under Article 78 is a claim that asks the court to review a
discretionary administrative decision or action (as opposed to the failure of an official to do
something required by law, explained above in Part B(1)) because you claim it was
unlawfully made without a reason. The law calls such decisions and actions “arbitrary and
capricious.” 30 An arbitrary and capricious decision or action is one taken “without sound
basis in reason and . . . without regard to the facts.”31
proceeding is the proper remedy to force the Board of Parole to provide a prisoner with the reasons why
his parole was denied).
25. See Vulpis v. Dep’t of Corr., 154 Misc. 2d 625, 629, 585 N.Y.S.2d 954, 956 (Sup. Ct. Kings
County 1992) (ordering Department of Correction to release prisoner who had been denied parole after
approving his temporary release or to process his application with “all due speed” if additional
approvals were needed for his release).
26. See Van Luven v. Henderson, 52 A.D.2d 1042, 1042, 384 N.Y.S.2d 898, 898–99 (4th Dept.
1976) (ordering Board to notify prisoner of reasons for denying him parole).
27 . Hines v. State Bd. of Parole, 181 Misc. 280, 282, 46 N.Y.S.2d 569, 570–71 (Sup. Ct.
Westchester County 1943) aff’d, 267 A.D. 881, 46 N.Y.S.2d 572 (2d Dept. 1944) (“[T]he authority to
release on parole has been confined to the Board of Parole and not to the courts. Parole cannot be
compelled by a mandatory order.”).
28. See People v. Pugh, 51 A.D.2d 1047, 1048, 381 N.Y.S.2d 417, 419 (2d Dept. 1976) (noting that
an Article 78 proceeding is the proper course by which a defendant can obtain credit against his
sentence for time spent in custody prior to sentencing); see also People v. Searor, 163 A.D.2d 824, 824,
559 N.Y.S.2d 840, 840–41 (4th Dept. 1990) (noting that an Article 78 proceeding is the proper way to
challenge the prison authorities’ calculation of jail time credit); People v. Blake, 39 A.D.2d 587, 587, 331
N.Y.S.2d 851, 852 (2d Dept. 1972) (noting that if the Department of Correctional Services miscalculated
defendant’s jail term, his proper remedy would be an Article 78 proceeding); People v. Person, 256
A.D.2d 1232, 1233, 685 N.Y.S.2d 367, 368 (4th Dept. 1998) (noting that an Article 78 proceeding to
review the prison authorities’ calculation of defendant’s jail time credit is the appropriate procedural
vehicle for raising that contention).
29. See, e.g., Maccio v. Goord, 194 Misc. 2d 805, 808, 756 N.Y.S.2d 412, 414–15 (Sup. Ct. Albany
County 2003) (granting in part prisoner’s Article 78 petition and directing the Department of
Correctional Services to credit him with jail time served); Grier v. Flood, 84 Misc. 2d 4, 8, 375 N.Y.S.2d
506, 509 (Sup. Ct. Nassau County 1975) (granting prisoner’s Article 78 petition and directing the
Department of Correctional Services to credit him with jail time served).
30. Pell v. Bd. of Educ., 34 N.Y.2d 222, 231, 313 N.E.2d 321, 325, 356 N.Y.S.2d 833, 839 (1974)
(discussing standards of judicial review of administrative agencies).
31. Pell v. Bd. of Educ., 34 N.Y.2d 222, 231, 313 N.E.2d 321, 325, 356 N.Y.S.2d 833, 839 (1974).
The arbitrary and capricious standard can be used to challenge decisions made by agency
officials. It can be used, for example, to challenge a disciplinary decision that was made
without following the procedures required by law.32 If an agency harmed you by violating its
own legally-required procedures in making an administrative decision, you can argue that
such an action is arbitrary and capricious.33
Keep in mind that generally courts believe that administrative officials are in the best
position to make decisions regarding prisoners. Thus, it is very difficult to prove that an
agency or official acted “arbitrarily or capriciously” in making a decision that is left up to
their judgment. The court will not substitute its own judgment for that of the official, 34
unless you can show that the decision was so irrational as to require that it be overturned.
Examples of decisions that could be challenged as arbitrary under this type of Article 78
proceeding would include most day-to-day prison decisions, such as decisions regarding
furlough and temporary release, 35 appearances at disciplinary proceedings, 36 access to
evidence, 37 visitation rights, mail access, and transfers. As to this last example, the
32. See Proctor v. Goord, 10 Misc. 3d 229, 232–32, 801 N.Y.S.2d 517, 519–20 (Sup. Ct. Albany
County 2005) (holding that the Department of Corrections’ failure to eliminate from a prisoner’s inmate
record an “unusual incident report” for an alleged violation that the prisoner was later found not to
have committed was “arbitrary and capricious”).
33. See People ex rel. Furde v. N.Y. City Dep’t of Corr., 9 Misc. 3d 268, 274, 796 N.Y.S.2d 891,
896 (Sup. Ct. Bronx County 2005) (“Where an agency promulgates rules and extends greater due
process rights than may be required by the Federal Constitution, it is without question that state law
mandates that the agency follow its own rules…. To do otherwise is to act arbitrarily and
capriciously.”); see, e.g., Liner v. Miles, 133 A.D.2d 962, 520 N.Y.S.2d 470 (3d Dept. 1987) (granting
Article 78 petition to review Commissioner of Correctional Services determination that prisoner
violated disciplinary rule and finding that determination was not supported by substantial evidence);
Nesbitt v. Goord, 12 Misc. 3d 702, 705–06, 813 N.Y.S.2d 897, 900 (Sup. Ct. Albany County 2006)
(requiring the Department of Correctional Services to follow its own rules in reviewing requests to
award Temporary Work Release after prisoner filed Article 78 petition); People ex rel. Furde v. N.Y.
City Dep’t of Corr., 9 Misc.3d 268, 273–74, 796 N.Y.S.2d 891, 895 (Sup. Ct. Bronx County 2005)
(holding that the Department of Corrections acted arbitrarily and capriciously in confining a pretrial
detainee to his cell for 23 hours a day, and ordering that detainee be released into general prison
population); Martinez v. Baker, 180 Misc. 2d 334, 336, 688 N.Y.S.2d 877, 987 (Sup. Ct. Albany County
1999) (finding that the Department of Correctional Services acted arbitrarily and capriciously in
denying Spanish-speaking prisoner participation in a family reunion program where he failed to
participate in an alcohol and substance abuse program because he did not have access to a bilingual
program or a translator for the existing program).
34. See Bd. of Visitors-Marcy Psychiatric Ctr. v. Coughlin, 60 N.Y.2d 14, 20, 453 N.E.2d 1085,
1088, 466 N.Y.S.2d 668, 671 (1983) (noting that the standard of judicial review of a determination by
Commissioner of Department of Correctional Services is not whether the court would come to the same
determination itself but instead whether the determination was irrational, arbitrary, or capricious).
35. See Lopez v. Coughlin, 139 Misc. 2d 851, 853, 529 N.Y.S.2d 247, 249 (Sup. Ct. Albany County
1988) (holding that the Department of Correctional Services’ decision to disapprove an application of
prisoner with AIDS for participation in a temporary release program was not rationally related to
Department’s interest in prisoner’s health).
36. See Boodro v. Coughlin, 142 A.D.2d 820, 822, 530 N.Y.S.2d 337, 340 (3d Dept. 1988) (holding
that the Hearing Officer acted arbitrarily and capriciously in excluding prisoner from his disciplinary
hearing). But see Grant v. Senkowski, 146 A.D.2d 948, 950, 537 N.Y.S.2d 323, 325 (3d Dept. 1989)
(holding that the Article 78 petition was properly dismissed, as ejecting the prisoner from a disciplinary
hearing was not arbitrary or capricious since the ejection was due to prisoner’s misbehavior and
occurred only after warnings).
37. See Coleman v. Coombe, 65 N.Y.2d 777, 780, 482 N.E.2d 562, 562, 492 N.Y.S.2d 944, 944
(1985) (holding that where prison regulations allowed prisoner to call witnesses on his behalf in
disciplinary proceedings, and calling witness did not jeopardize safety or correction goals, prisoner was
entitled to call his brother as a witness to give testimony in mitigation of penalty to be imposed); see
also Wilson v. Coughlin, 186 A.D.2d 1090, 1090–91, 590 N.Y.S.2d 798, 798 (4th Dept. 1992) (granting a
prisoner’s request to annul an official’s determination in a disciplinary hearing because the prisoner
had not been allowed to offer evidence of mitigating circumstances, which is a relevant factor in prison
opportunity to review transfers is very limited, because the Commissioner of Corrections is
given “almost unbridled authority to transfer inmates from one facility to another.” 38
Challenges to transfers, however, have been upheld where: (1) a prisoner’s request for an
appropriate transfer for medical reasons is unreasonably denied;39 (2) a prisoner requires
rehabilitative treatment that has been completely withheld;40 and (3) a member of an inmate
grievance committee, who represents other prisoners and abides by the rules of the
institution, is transferred without a hearing or compelling emergency.41
Challenges based on a claim that the administrative agency abused its discretion by
giving a punishment that is too severe can also be made by filing an Article 78 petition
because such punishments are usually the result of administrative hearings. These petitions,
which claim an “abuse of discretion . . . as to the measure or mode of penalty or discipline
imposed,” must meet a very high legal standard. 42 Thus, such actions are very rarely
successful. The court will only set aside an administrative agency’s punishment or
disciplinary measures if they are “so disproportionate to the offense, in the light of all the
circumstances, as to be shocking to one’s sense of fairness.”43
You should also remember the “arbitrary and capricious” standard applies to the reasons
that the agency or official gave at the time it made its decision. If the agency’s original
reasons are arbitrary and capricious, the court may reject other new justifications later
offered by the agency in the Article 78 proceeding.44
3. Review of Hearing Board Decision—”Substantial Evidence
Test” (Certiorari to Review)
A third type of Article 78 proceeding is a claim stating that the court should review a
decision made by a hearing board because the determination made at the hearing was not
supported by substantial evidence. In these cases, you challenge decisions that were made in
hearings or in other formal, court-like settings. If you believe the evidence produced at the
disciplinary hearings).
38. Johnson v. Ward, 64 A.D.2d 186, 188, 409 N.Y.S.2d 670, 672 (3d Dept. 1978); see also N.Y.
Correct. Law § 23 (McKinney 2003). But see Salahuddin v. Coughlin, 202 A.D.2d 835, 836, 609 N.Y.S.2d
105, 106 (3d Dept. 1994) (noting that the broad authority to transfer does not permit transfers that are
made for the purpose of denying a prisoner a constitutional right or in retaliation for the exercise of
such a right).
39. See Barnett v. Metz, 55 A.D.2d 997, 997–98, 390 N.Y.S.2d 701, 701–02 (3d Dept. 1977)
(holding that while decisions about transfers between institutions are generally left to the
administration, where a prisoner could show that the prison arbitrarily abused this discretion by
failing to consider medical evidence, the decision could be challenged through Article 78).
40. See People ex rel. Ceschini v. Warden, 30 A.D.2d 649, 649, 291 N.Y.S.2d 200, 201–202 (1st
Dept. 1968) (holding that where a person sentenced to an institution for rehabilitation claims that he is
being deprived of any rehabilitative treatment, the court should inquire into that allegation).
41. See Johnson v. Ward, 64 A.D.2d 186, 189–90, 409 N.Y.S.2d 670, 673 (3d Dept. 1978) (holding
that an inmate member of the Inmate Grievance Resolution Committee may not be transferred to
another facility without a prior hearing unless the member’s presence or conduct creates an emergency
and transfer is immediately necessary to protect the facility or its personnel, in which event, the
hearing on his transfer shall be held as soon as practicable at the receiving facility).
42. See, e.g., Regan v. Coughlin, 86 A.D.2d 913, 913, 448 N.Y.S.2d 258, 259 (3d Dept. 1982)
(concluding that punishment of 60 days of keeplock, loss of commissary privileges and 30 days of good
time, and 80 days of restricted visits was not disproportionate for prisoner who threw a handkerchief to
a visitor in the visiting room, because the penalty was not so disproportionate as to be “shocking to [the
court’s] sense of fairness”).
43. Pell v. Bd. of Educ., 34 N.Y.2d 222, 233, 313 N.E.2d 321, 326, 356 N.Y.S.2d 833, 841 (1974)
(quoting Stoltz v. Bd. of Regents, 4 A.D.2d 361, 364, 165 N.Y.S.2d 179, 182 (3d Dept. 1957)).
44. See Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Serv., 77 N.Y.2d 753, 759, 573
N.E.2d 562, 565, 570 N.Y.S.2d 474, 479 (1991) (holding that the reasons the agency later offered for
dismissal of employee could not be used because its original dismissal was arbitrary and capricious).
hearing was inadequate to support the decision, you can use an Article 78 proceeding to ask
a court to review the decision. A court can review the record (transcript and other
documents) from the hearing to see whether it supports the decision. Any sort of disciplinary
hearing or parole board decision that is based on submission of evidence and a record can be
challenged in this type of action if the evidence produced was inadequate to support the
decision.45 By bringing this type of claim, you are asking the court to review the record on
which the agency or official based the decision.
The standard used by the court in reviewing Article 78 challenges to administrative
decisions made after administrative hearings is the “substantial evidence test.” This means
that the court will look to see if there was enough evidence in the record for the
administrative official to decide as he did. It does not mean that the court will ask whether
the official made the right decision.
Once again, the court will not substitute its judgment for that of the agency, but if there
were mistakes or errors in the evidence against you, the court may overturn the decision.
“Substantial” does not mean most of the evidence supports the decision made by the
administrative agency. It means there must be enough evidence so that a reasonable person
could make the same decision the agency made.
For example, some prisoners have successfully challenged disciplinary decisions where
the correctional officer’s misbehavior reports relied on at the hearing were based on hearsay,
which means that they did not contain first-hand knowledge.46 If the only evidence against
you is based on reports of people who were not present or did not actually see you, the court
may find this hearsay evidence insufficient to support a finding of misconduct.
Many prisoners also try to challenge disciplinary decisions that are based on reports by
informants. Courts recognize the importance of protecting the confidentiality of informants,
and will uphold determinations even where the prisoner has not been allowed to see or to
cross-examine the informants. In a decision by the highest court of New York, a prisoner
tried to challenge a disciplinary hearing decision by arguing that the hearing officer should
be required to interview the informants personally in order to determine their credibility.47
The court held that although a hearing officer must determine the informants’ credibility, a
face-to-face interview is not necessary to make this determination.48 Recently, prisoners have
successfully challenged hearing decisions by arguing that the reports written by corrections
officers of informants’ statements were not detailed enough for the hearing officer to
determine the credibility of the informants.49
45. See JLM Chapter 18 for an explanation of disciplinary proceedings and JLM Chapter 36 for
an explanation of parole.
46. See Rodriguez v. Coughlin, 176 A.D.2d 1234, 1234, 577 N.Y.S.2d 190, 191 (4th Dept. 1991)
(finding that misbehavior reports did not provide substantial evidence to support findings that prisoner
was guilty because they did not show that correctional officers who signed them had personal
knowledge of facts recited therein); see also Deresky v. Scully, 156 A.D.2d 362, 363, 548 N.Y.S.2d 318,
319 (2d Dept. 1989) (finding that the prison’s conclusion that the prisoner started the fire in the cell of
another prisoner was not sufficiently supported by evidence where the only evidence of guilt was
hearsay testimony of officer who was not present, and the prisoner offered credible testimony that
contradicted such hearsay).
47. Abdur-Raheem v. Mann, 85 N.Y.2d 113, 118, 647 N.E.2d 1266, 1269, 623 N.Y.S.2d 758, 761
(1995).
48. Abdur-Raheem v. Mann, 85 N.Y.2d 113, 121, 647 N.E.2d 1266, 1271, 623 N.Y.S.2d 758, 763
(1995).
49. Milland v. Goord, 264 A.D.2d 846, 846–47, 698 N.Y.S.2d 245, 246 (2d Dept. 1999) (holding
that the “testimony of the correction officer who interviewed the confidential informants was not
sufficiently detailed and specific to enable the Hearing Officer to independently assess the credibility
and reliability of the informants”). See also Agosto v. Goord, 264 A.D.2d 840, 698 N.Y.S.2d 244 (2d
Dept. 1999) (holding that a determination must be annulled because “testimony of the correction officer
who interviewed the confidential informants was not sufficiently detailed and specific to enable the
Another example of prisoners’ challenges of hearing decisions is in the area of drug
violations.50 Article 78 proceedings challenging the reliability or accuracy of evidence relied
on in drug tests have occasionally been successful.51
Also, in at least one case, a prisoner successfully challenged a determination that he had
been in possession of a weapon by pointing out that the evidence on the record was
insufficient to support the decision.52 In that case, the court ruled that there was not enough
evidence to show that a weapon found in a cell belonged to a prisoner who had just been
transferred to that cell.53
If you bring a substantial evidence claim, the state supreme court will first try to see if
the case can be resolved on any other grounds, such as failure to comply with the statute of
limitations (the time limit after the event occurred in which you must bring your claim; see
discussion below in Part C(3)). If the case cannot be resolved on these other grounds, then
Hearing Officer to independently assess the credibility and the reliability of the informants”). But see
Medina v. Goord, 253 A.D.2d 973, 973, 678 N.Y.S.2d 919, 919 (3d Dept. 1998) (upholding the hearing
officer’s determination as supported “by sufficiently detailed information from which [the hearing
officer] could independently assess [the informants’] reliability”); Valentin v. Goord, 259 A.D.2d 911,
912, 687 N.Y.S.2d 208 (3d Dept. 1999) (same holding as Medina).
50. See Venegas v. Irvin, 249 A.D.2d 982, 982, 672 N.Y.S.2d 200, 201 (4th Dept. 1998) (holding
that misbehavior report that stated that the correction officer saw the prisoner throw a marijuana
cigarette on the floor, and the fact that the cigarette later tested positive for marijuana, were
substantial evidence of drug possession by the prisoner despite there being an issue as to when the
cigarette was tested); see also Rollison v. Scully, 181 A.D.2d 734, 735, 580 N.Y.S.2d 480, 480 (2d Dept.
1992) (Department of Corrections failed to produce substantial evidence that prisoner’s wife had
brought cocaine to the correctional facility because the Department had not introduced documents into
evidence as required by regulations).
51. See Wisniewski v. Smith, 133 A.D.2d 541, 541, 519 N.Y.S.2d 908, 909 (4th Dept. 1987)
(holding that correctional facility superintendent’s determination that individual violated institutional
rule by using marijuana was not supported by substantial evidence where reliability of tests upon
which the finding was based was not established on the record); see also Kalish v. Keane, 256 A.D.2d
343, 344, 681 N.Y.S.2d 336, 337 (2d Dept. 1998) (finding that there was no substantial evidence for
drug violation by prisoner where prisoner produced evidence that he was on prescription medication
that could produce false positive drug tests, hearing officer consulted with a representative of
manufacturer of a different urine test than the one used by the prison, and representative did not know
whether the medication at issue could cause a false positive test result); Kincaide v. Coughlin, 86
A.D.2d 893, 893, 447 N.Y.S.2d 521, 522 (2d Dept. 1982) (finding that the decision in superintendent’s
proceeding regarding prisoner’s possession of marijuana was not supported by substantial evidence
where test evidence was received without laying a foundation to show the nature of the test and the
procedures utilized). But see Holmes v. Coughlin, 182 A.D.2d 1121, 1121–22, 583 N.Y.S.2d 703, 704 (4th
Dept. 1992) (upholding superintendent’s determination that the prisoner used illegal drugs as
sufficiently supported by two positive Syva EMIT Drug Detection System Tests, and commenting on
the tests’ scientific reliability and validity).
52. Varela v. Coughlin, 203 A.D.2d 630, 631–32, 610 N.Y.S.2d 103, 104 (3d Dept. 1994). But see
Patterson v. Senkowski, 204 A.D.2d 831, 832–33, 612 N.Y.S.2d 84, 85 (3d Dept. 1994) (finding that
written misbehavior report by officer who searched prisoner’s clothes was sufficient evidence to support
finding by superintendent that the prisoner possessed weapon, and that the prisoner’s claim that the
jacket was not his merely created issue of credibility for the hearing officer); Swindell v. Coughlin, 215
A.D.2d 855, 855, 626 N.Y.S.2d 329, 329 (3d Dept. 1995) (concluding that evidence of six ball bearings
discovered in prisoner’s cell hidden in a dental floss container substantially supported determination
that prisoner was guilty of possessing contraband classified as a weapon; prisoner’s claim that he found
the ball bearings during his work detail and was waiting to turn them over to his supervisor was not
supported by the supervisor, and was not enough to raise a doubt as to the sufficiency of the evidence
supporting the decision).
53. Varela v. Coughlin, 203 A.D.2d 630, 631, 610 N.Y.S.2d 103, 103–04 (3d Dept. 1994). But see
Torres v. Coughlin, 213 A.D.2d 861, 861, 624 N.Y.S.2d 67, 68 (3d Dept. 1995) (distinguishing Varela
and holding that there was sufficient evidence that a prisoner possessed a weapon when the prisoner
had been in the facility for twenty days and had been in the living area where the weapon was found
for eight days).
the court will refer it to the appellate court (called the appellate division).54 One result of this
is that it will take longer before your case is decided.
4. Challenge Legal Authority for State Action (Prohibition)
The fourth type of Article 78 proceeding arises when you challenge the state’s action as
having gone beyond its lawful authority. In this type of proceeding you are asking the court
to stop an official from acting beyond his authority or jurisdiction. This type of case is
difficult to prove, and rarely successful in court. Nevertheless, if you feel that an official is
going to act in a way that will injure you, and the official is not allowed by law to act in that
way, this type of Article 78 proceeding is the way to prevent the action.55
C. When You Can Obtain Relief Under Article 78
There are three important limitations on the use of Article 78 with which you must be
familiar, or your case may be dismissed. They are described below.
a. You May Only Challenge Administrative Decisions
Article 78 may only be used to challenge administrative determinations of a New York
state officer or agency. It generally cannot be used to challenge the decisions of a judge or
court, such as criminal convictions or criminal sentences. However, it can be used to
challenge several types of other actions by judges. Article 78 may be used to challenge a
punishment a court gives for contempt of court.56 It can also be used where the judge has
made a decision that exceeded his authority (this is called prohibition—see Part B(4)), or to
challenge a judge’s failure to act (called mandamus—see Part B(1)).
b. You Must Exhaust All Administrative Remedies
The administrative determination you challenge must be final. 57 This means that a
decision-maker must have come to a definitive decision that has caused you an actual injury
of some sort. There have been many cases dealing with the question of what decisions are
considered final. If possible, you should read the Practice Commentary and Notes of
Decisions of Section 217 of N.Y. C.P.L.R. to see how courts have decided the issue.
In addition to being final, there must be no way for you to appeal the decision any further
within the administrative agency.58 If it is possible for you to appeal the decision to a higher
state officer, you must do so before seeking Article 78 relief. In other words, you must go
through every normally available step in the administrative process. This is called
“exhaustion of remedies.” If you have failed to follow the normal administrative procedure to
the fullest extent possible, the court may refuse to hear your Article 78 petition. 59 This
54. N.Y. C.P.L.R. 7804(g) (McKinney 1994).

55. See Schumer v. Holtzman, 60 N.Y.2d 46, 51, 454 N.E.2d 522, 524, 467 N.Y.S.2d 182, 184
(1983) (holding that a request for prohibition under Article 78 is only appropriate if you are asking the
court to prevent an official from acting beyond his or her authority).
56. See Loeber v. Teresi, 256 A.D.2d 747, 748–49, 681 N.Y.S.2d 416, 418 (3d Dept. 1998) (holding
that an Article 78 petition can be used to challenge a judge’s summary contempt order). A summary
contempt order is one in which there is “no right to an evidentiary hearing, the right to counsel, or the
opportunity for adjournment to prepare a defense” and may only be given when the actions giving rise
to the contempt order take place in the “immediate view and presence” of the judge and the action
disrupts the court proceeding. Williams v. Cornelius, 76 N.Y.2d 542, 546, 563, N.E.2d 15, 17, 561
N.Y.S.2d 701, 703 (1990).
57. N.Y. C.P.L.R. 7801(1) (McKinney 1994).
58. See Essex County v. Zagata, 91 N.Y.2d 447, 453, 695 N.E.2d 232, 235, 672 N.Y.S.2d 281, 284
(1998) (holding under New York Civil Practice Law and Rules 7801, an agency determination is final
when: (1) the agency’s position is definitive; (2) the position inflicts actual injury; and (3) no further
agency action can remove or lessen the injury).
59. See Alamin v. N.Y. State Dep’t of Corr. Services, 241 A.D.2d 586, 587, 660 N.Y.S.2d 746, 747
means that it is important to be aware of the ways in which you can challenge or appeal the
decisions of prison officials within the prison or corrections system.60 You should be aware
that many administrative appeals require you to act quickly. A Superintendent’s Hearing
decision, for example, must be appealed to the Commissioner within 30 days.61 If you fail to
meet this deadline, you may be prevented from bringing an Article 78 petition on the same
claim. There are time limits at each level of administrative appeal. If you do not receive a
response by the time limit, you can proceed to the next level of appeal. 62 For more
information on Inmate Grievance Procedures, see JLM Chapter 15.
There are a few exceptions to the general rule requiring exhaustion of administrative
remedies, but keep in mind that these exceptions are rarely invoked by the court and
normally should not be relied upon. The first exception is in cases where an appeal would
have no chance of success. In Martin v. Ambach, 63 the court observed that the finality
requirement of N.Y. C.P.L.R. 7801(1) may be disregarded if the pursuit of an administrative
remedy “reasonably appears to be futile.”64 Note that courts will almost never find that an
appeal “reasonably appears to be futile.”65
A second exception to the exhaustion requirement, also pointed out by the court in
Martin v. Ambach, may arise when a non-final order will result in irreparable harm in the
absence of judicial intervention.66 Thus, if a decision will take effect before you can appeal it,
you can file a motion under Article 78 to ask the court to intervene to prevent the harm. This
could include a transfer out of your facility or a decision of a disciplinary hearing board,
which might take effect before you have a chance to appeal. Additionally, in a case that was
not brought by a prisoner, a court has ruled that exhaustion is not required if someone is
seeking medical benefits to which he is entitled under state and federal law because it
“creates an unnecessary hardship” on “poor, needy individuals.”67
(3d Dept. 1997) (requiring petitioner to exhaust administrative remedies before initiating an Article 78
petition); McCloud v. Coughlin, 102 A.D.2d 854, 854, 476 N.Y.S.2d 630, 631 (2d Dept. 1984) (dismissing
Article 78 petition because petitioner had not appealed superintendent’s disciplinary ruling to the
Commissioner of the Department of Correctional Services).
60. See Farinaro v. Leonardo, 143 A.D.2d 492, 492–93, 532 N.Y.S.2d 601, 602 (3d Dept. 1988)
(holding that a prisoner who was informed of the proper administrative procedure to challenge decision
of prison officials to withhold martial arts catalog from him and did not follow them had failed to
exhaust administrative remedies, and could not obtain judicial relief).
61. N.Y. Comp. Codes R & Regs. tit. 7, § 254.8 (2007).
62. See, e.g., State of New York, Department of Correctional Services, Directive No. 4040 § VI(G)
(Aug. 22, 2003); N.Y. Comp. Codes R. & Regs. tit. 9, § 8006.4(c) (2003) (if you appeal a parole decision
and the appeal unit does not issue its findings within four months of receiving your appeal, you are
considered to have exhausted your administrative remedies and may bring your appeal to the courts).
63. Martin v. Ambach, 85 A.D.2d 869, 446 N.Y.S.2d 468 (3d Dept. 1981), aff’d, 57 N.Y.2d 1001,
443, N.E.2d 953, 457 N.Y.S.2d 478 (1982).
64. Martin v. Ambach, 85 A.D.2d 869, 870, 446 N.Y.S.2d 468, 470 (3d Dept. 1981) (noting that
the lower court had relied upon such reasoning) (noting that the lower court had relied upon such
reasoning).
65. See Martin v. Ambach, 85 A.D.2d 869, 871, 446 N.Y.S.2d 468, 470 (3d Dept. 1981) (stating
that this should be the exception rather than the rule, occurring only when necessary to avoid
irreparable harm. See also Practice Commentary to N.Y. C.P.L.R. 7801(7) (McKinney 1994) (stating
that the three exceptions lie in the court’s discretion and “are rarely invoked in the context of Article 78
review”).
66. Martin v. Ambach, 85 A.D.2d 869, 871, 446 N.Y.S.2d 468, 470 (3d Dept. 1981).
67. See Lutsky v. Shuart, 74 Misc.2d 436, 438, 342 N.Y.S.2d 709, 712 (Sup. Ct. Nassau County
1973), aff’d, 43 A.D.2d 1016, 351 N.Y.S.2d 946 (2d Dept. 1974) (holding that welfare recipient seeking
medical benefits does not have to exhaust administrative remedies before bringing an Article 78
petition); see also Valdes v. Kirby, 92 Misc.2d 367, 371, 399 N.Y.S.2d 972, 974–75 (Sup. Ct. Suffolk
County 1977) (holding exhaustion not required for petitioner seeking housing shelter allowance and
facing possible eviction).
The third exception is in cases where the agency’s action is challenged as beyond its
powers. In Dineen v. Borghard, 68 the court held that the exhaustion rule “need not be
followed when an agency’s action is alleged to be unconstitutional or wholly beyond its
powers.” 69 This means that if your Article 78 petition claims that a prison official acted
unconstitutionally in depriving you of some protected right, it is possible that a court may
find that you do not need to have first exhausted all of your administrative appeals. This
exception is a limited one and, as one court has pointed out, “[t]he mere assertion that a
constitutional right is involved will not excuse the failure to pursue established
administrative remedies that can provide the requested relief.”70 For example, in Levine v.
Board of Education, a court rejected a teacher’s claim that the exhaustion requirement did
not apply due to constitutional violations. The court held that the exception to the exhaustion
requirement did not apply when the claims were based on factual issues that the agency
could review because the necessary factual record first had to be established.71
Thus, it is possible that a court will allow an Article 78 motion to proceed without
exhaustion of all the administrative remedies when petitioner can demonstrate: (1) futility of
the administrative remedy, (2) irreparable harm in absence of prompt judicial intervention,
or (3) unconstitutional action. Remember that these exceptions are rarely recognized, and it
is safest to pursue all possible appeals within the agency or prison system before filing an
Article 78 proceeding in court.
c. Your Article 78 Petition Must Be Filed Within Four Months
After the Administrative Decision Becomes Final
Your Article 78 petition must be filed with the court within four months of the date that
the administrative determination that you want to challenge becomes final. 72 This four-
month period is called the “statute of limitations.” As soon as you have exhausted your
administrative appeals, you should get to work on writing and filing your petition.
Remember, you must file the petition before the four-month time limit is up. If you wait
longer than four months from the time when the decision you are challenging became final
and binding upon you, the court will dismiss your petition. Part D(8) explains how you can
file and serve your petition.
To find out the deadline for filing your papers, you must first determine when the
decision you are complaining about became final. A decision becomes final when it has an
actual impact upon you. Thus, the statute of limitations will usually run from the date when
you receive notice of the determination that you are challenging. Keep in mind that you must
exhaust your administrative remedies (as discussed above in Part C(2)). This means that if
you receive notice of a determination, which you then appeal to the next administrative level,
the statute of limitations will not begin to run until you receive final notice from the highest
possible administrative authority. Sometimes the authority may not notify you; if the
designated time has passed, you can assume your appeal has been denied.73
68. Dineen v. Borghard, 100 A.D.2d 547, 473 N.Y.S.2d 247 (2d Dept. 1984).
69. Dineen v. Borghard, 100 A.D.2d 547, 548–49, 473 N.Y.S.2d 247, 248–49 (2d Dept. 1984)
(holding plaintiff was not required to pursue an administrative remedy since he was alleging violations
of his statutory and constitutional rights).
70. Levine v. Bd. of Educ. of N.Y., 186 A.D.2d 743, 744, 589 N.Y.S.2d 181, 183 (2d Dept. 1992).
71. Levine v. Bd. of Educ. of N.Y., 186 A.D.2d 743, 744, 589 N.Y.S.2d 181, 183 (2d Dept. 1992);
see also Timber Ridge Homes v. State, 223 A.D.2d. 635, 636, 637 N.Y.S.2d 179, 180 (2d Dept. 1996)
(holding that constitutional challenge that depends on the facts cannot be brought until the factual
record is developed by the agency).
72. N.Y. C.P.L.R. 217(1) (McKinney 2003).
73. See, e.g., N.Y. Comp. Codes R. & Regs. tit. 9, § 8006.4(c) (2006) (if you appeal a parole
decision and the appeal unit does not issue its findings within four months of receiving your appeal, you
are considered to have exhausted your administrative remedies and may bring your appeal to the
If you apply for a rehearing (rather than another appeal) by the highest agency or prison
board, the courts will not extend the statute of limitations period to cover this rehearing
application period unless the law entitles you to a rehearing.74 Thus, unless a rehearing is
required by law, you should treat the notice of the final appeal decision as the time when the
four-month statute of limitations period begins. The law on statutes of limitations is
complicated. If you are confused about when you need to file your papers, it is a good idea to
plan on filing them within four months of the date you receive the order or decision about
which you are complaining.75
Following service, be sure to send “proof of service” to the court clerk. Proof of service
should include an affidavit of service, which states that the papers were served on the
Attorney General, the Attorney General’s Office, and the respondents.
D. Procedures for Filing an Article 78 Petition
In the past few years, New York State has changed its civil procedure law (the law that
tells you when, where, and how to file claims). Even though the new rules are similar to the
Federal Rules of Civil Procedure, there are significant differences. Even if you are familiar
with the Federal Rules, you should still review New York’s rules carefully.76
The Appendix of this Chapter contains examples of the legal papers that you must file
with the court in order to use Article 78. This Chapter provides the essential information
that you will need to use these examples. Do not tear the papers out of the book. Copy the
printed language on your own paper, fill in the blanks, and replace any italicized words with
the facts that apply to your case. The court might reject your papers if you tear them out of
this book.
Under the current law, you need to send to the county supreme court clerk, the
respondents, and the Attorney General an original and one copy of each of the following
(each of these is explained below):
(1) A Notice of Petition or an Order to Show Cause;
(2) A Verified Petition;
(3) All exhibits and supporting affidavits attached to the petition;
(4) Either the full filing fee or a reduced fee with an affidavit that supports your claim
that you are too poor to pay the full filing fee.77 The full filing fee is $190.78 Caution:
If you fail to enclose either the fee, or the poor person’s motion and affidavit, you will
not get an index number. Without the index number, you cannot proceed with your
claim;
(5) A “Request for Judicial Intervention” (“RJI”);79 and
courts).
74. See De Milio v. Borghard, 55 N.Y.2d 216, 220, 433 N.E.2d 506, 507–08, 448 N.Y.S.2d 441,
442–43 (1982) (holding that the four-month statute of limitations in an Article 78 action brought by a
government employee to challenge his discharge (firing) from work begins to run on the termination
date of his employment and not on the later date when his request for reconsideration of discharge was
denied); see also Loughlin v. Ross, 208 A.D.2d 631, 631, 618 N.Y.S.2d 231, 232 (2d Dept. 1994) (finding
that in an Article 78 proceeding to review Commissioner’s determination following disciplinary hearing,
the statute of limitations began to run when the determination sustaining the disciplinary charges
against the prisoner was affirmed on administrative appeal; the attempt by the petitioner to secure a
reconsideration of the determination did not extend the statute of limitations).
75. N.Y. C.P.L.R. 7801: 7 Practice Commentary (McKinney 1994).
76. If you are going to look through the procedure code yourself, remember the rules for actions
are made applicable to special proceedings such as Article 78 proceedings through the definitional
section of N.Y. C.P.L.R. 105(b), unless another section provides otherwise.
77. N.Y. C.P.L.R. 1101 (McKinney 1997 & Supp. 2007); N.Y. C.P.L.R. 8018 (McKinney Supp.
2007).
79. N.Y. Comp. Codes R. & Regs. tit. 22, § 202.6 (2006). See Appendix A of this Chapter for a
(6) A “Request for an Index Number.”
If possible, you should try to keep a copy of all papers that you file during the Article 78
proceeding.
1. Starting the Proceeding
You begin an Article 78 proceeding by filing either a Notice of Petition or an Order to
Show Cause, supporting affidavit(s), a Verified Petition, the filing fee, the Request for
Judicial Intervention, and the Request for an Index Number.80
“Filing” in an Article 78 proceeding means delivery of the Verified Petition to the court
clerk with the required fee.81
You should file your Article 78 in the supreme court for the county in which the
administrative decision you are challenging was made, the county where the administrative
appeal was decided, or the county in which the respondent has his main office (usually
Albany County). 82 This rule applies even if you have been transferred or released. See
Appendix II at the end of the JLM for a list of the addresses of the supreme courts for the
various counties.
By filing, you begin the proceeding and “interpose” the claim for statute of limitations
purposes. This means that if you filed within the statute of limitations, the respondent
cannot later get the action dismissed on the grounds that it took too long for you to file
successfully. You must file within four months of the time the decision that you are
challenging becomes final.
However, the real benefits of this initial filing are not great. Your case can still be
dismissed unless service is completed and proof of service is filed within four months and
fifteen days after you receive the challenged decision. Do not be lulled into a false sense of
security because you have filed within the statute of limitations. There are still strict time
limits that require you to complete the entire process very quickly. However, filing your
petition will get you an index number.
2. Order to Show Cause or Notice of Petition
Since you are in prison, unless you can get someone else (like a friend, relative, or a
private service) to assist you with service, you should commence the proceedings with an
Order to Show Cause. An Order to Show Cause is an order signed by the judge directing that
a petition be heard immediately or sooner than the twenty days that is normally the
minimum time. It is used in situations where there is a need for an immediate hearing
instead of a Notice of Petition. Often an Order to Show Cause not only requires an expedited
hearing but “stays” (stops) the threatened official action until the claim is heard.
In the Order to Show Cause, you should ask the court to allow you to serve the
respondents and the Attorney General by mail. Be sure to specifically include a request to
the judge to allow service by mail. In the affidavit attached to your Order to Show Cause, you
should explain why you need an Order to Show Cause. The reasons can be because you are in
prison and cannot carry out personal service, or that the situation that your Article 78
petition is trying to prevent is likely to happen in the next twenty days. For example, if you
are scheduled to be removed from a work release program in less than twenty days, you may
want to use an Order to Show Cause to try to prevent this from happening. See the example
of an “Order to Show Cause” in Appendix A of this Chapter.
sample of a Request for Judicial Intervention.

80 . N.Y. C.P.L.R. 203(c) (McKinney 2003), 304 (McKinney 2001 and Supp. 2004), 8018
(McKinney 1981 and Supp. 2007).
81. N.Y. C.P.L.R. 304 (McKinney 2001 and Supp. 2007).
Alternatively, you can file a Notice of Petition. The Notice of Petition includes the name
of the respondents, the nature of your claim, and the date and place of the hearing where you
want your petition heard. A Notice of Petition must be personally served on the respondents,
and the Attorney General’s Office or the case may be dismissed. Unlike an Order to Show
Cause, if you file a Notice of Petition, you must serve it at least twenty days before the date
you name as the date of the hearing.83 Note that if you must serve by mail, you must file an
Order to Show Cause, not a Notice of Petition.
You should attach a copy of your petition to the Order to Show Cause or Notice of
Petition. The petition should contain a written statement explaining the facts and your
reasons for requesting the relief you seek. See the example of a “Notice of Petition” in
Appendix A to this Chapter.
(a) The Return Date
If you file an Order to Show Cause, the court will set the return date. This is the date on
which the case will be heard by the court. The return date will be on the signed order, which
the court will mail to you.
An Order to Show Cause can speed up the hearing date so that it may occur in a few
days, rather than the usual twenty days for a Notice of Petition. You can pick a date for the
hearing in the order that you send to the court. You should pick a date that will be a week or
two from the date on which you think the court will receive your papers. If the court cannot
schedule a hearing on that day, the court clerk will cross out the date that you selected and
write another one on the order. The clerk will let you know if this has occurred.
In your Order to Show Cause, you must indicate the date by which you will mail or
deliver (“serve”) copies of the papers to the respondent, and the appropriate Attorney
General’s office. You should give the respondent two to three weeks between the date on
which he receives the papers and the date that you set for the court appearance. You should
take into account the time that it will take for the papers to go through the mail after you
send them out.
If you file a Notice of Petition, you must specify the return date. Under the N.Y. Civil
Practice Law and Rules, the return date must be at least twenty days after the date on which
the respondent has been served.84 Thus, you should choose a date that is more than twenty
days from the date by which you will have served the respondents. If the court wants to hear
your Article 78 action on another day, it can change the date. The court should notify you if it
changes the return date. Your Notice of Petition can be dismissed if you do not provide a
return date.85
(a) The Respondents
You should name as the respondent the official or agency whose action (or inaction) you
are challenging. In addition to the official’s name, you should also include his or her official
title. By including the title, you can prevent your case from being dismissed if the official who
committed the violation changes jobs. Otherwise, you would need to substitute the name of
83. N.Y. C.P.L.R. 7804(c) (McKinney 1994). You should send your papers to the Attorney General
by sending it to the address of the assistant attorney general in the county in which the court sits. Your
prison library should have the address; otherwise, you should write to the Court Clerk.
84. N.Y. C.P.L.R. 7804(c) (McKinney 1994).
85. See Vetrone v. Mackin, 216 A.D.2d 839, 840–41, 628 N.Y.S.2d 866, 867 (3d Dept. 1995)
(holding that the Notice of Petition is null and void if it does not specify a return date at the time of
filing and at the time of service on the respondent); Grover v. Wing, 246 A.D.2d 813, 814, 667 N.Y.S.2d
785, 786 (3d Dept. 1998) (determining that a petition was an Article 78 claim, and that failure to serve
defendants with a notice of petition or order to show cause without a proper return date merited
dismissal).
the new official. 86 If your case involves prison records, you may want to name the
Commissioner of the Department of Correctional Services (“DOCS”) as a respondent.
The more people whom you list as respondents, the more people there are who you have
to serve with the documents. Thus, it is generally wise only to list the officials immediately
involved and the Commissioner of the Department of Correctional Services. For example, in
disciplinary cases, it is usually enough to name the Commissioner of the Department of
Correctional Services, the superintendent of the facility where the hearing was held, or the
state director of disciplinary programs (the person responsible for reviewing administrative
appeals).
(b) Stay
If you request, and the judge grants, a “stay” against the respondent, this means that the
official’s or agency’s decision does not take effect until after your petition has been heard.87 If,
for example, you are challenging a decision to place you in solitary confinement, you might
ask the judge for an order that you not be placed there while you are waiting for a decision
on your petition. Without a stay, your time in solitary might be up before the judge decides
your petition, and the only thing you could then accomplish would be to have the decision
expunged (removed) from your records. If you want a stay, you must ask for it in the Order to
Show Cause that you send to the court, like the sample order at the end of this Chapter.
3. Article 78 Petition
The heart of your Article 78 papers is the petition. The petition identifies the parties,
explains the basis for “venue” in a particular county, and states the facts of your case, your
legal claims, and the relief you are asking the court to give you. “Relief” simply means what
you are asking the judge to do. You should submit an affidavit (your sworn statement or
another person’s) to support the facts in the petition. You can also attach copies of documents
relating to your case.
Be sure that you think carefully in advance and make the strongest arguments possible
when you draft your petition. For example, if the Board of Parole has done something illegal
or irregular in your case, emphasize that the action is illegal, or that it is unfair for the
Board to treat you differently from the other prisoners. Also, if there are standard procedures
or regulations that you know were not followed in your case, you should point this out. If you
claim that the agency did not follow its procedures, you should also claim that the decision it
reached may be wrong because of this.
4. Verification of Petition
Your petition must also include a “verification”—a short statement in which you swear to
the truth of the statements in your petition. It must include the statement that what is
alleged in your petition “is true … except as to those matters alleged on information and
belief and that as to those matters [insert your name] believe them to be true.”88 You should
use this exact language and sign your petition in front of a notary . You can find a sample
verification in the Appendix at the end of this Chapter.
5. Discovery—Use of the “Notice to Admit”
An Article 78 proceeding usually does not involve discovery. Formal discovery tools, such
as depositions (interviews of people) and interrogatories (written questions submitted to
86. N.Y. C.P.L.R. 1019 (McKinney 1997).

87. N.Y. C.P.L.R. 7805 (McKinney 1994). Section 7805 states: “On the motion of any party or on
its own initiative, the court may stay further proceedings, or the enforcement of any determination
under review…”.
people who may have relevant information), can only be used if the court gives you
permission. If the court finds there are issues of fact to be resolved, it may grant you
permission to carry out discovery. An example of an issue of fact is a dispute over whether
someone was present at the administrative hearing. See JLM Chapter 8, “Obtaining
Information to Prepare Your Case: The Process of Discovery,” for more information on
discovery.
The one form of discovery that you can use without first seeking permission from the
court is the “Notice to Admit.” This can be used only if the respondent is an individual, not
the state. You can use a Notice to Admit to ask the respondent to admit:
(1) The genuineness of any paper or document,
(2) The correctness or accuracy of a photograph, or
(3) The truth of any matters of fact about which you believe there can be no dispute and
which are within the knowledge of the respondent or can easily be found by him on
reasonable inquiry.89
The Notice to Admit is particularly useful in cases where you are making factual
allegations, or where no transcript of the administrative proceedings exists. The Notice to
Admit should be a separate document. This document should be a list of questions. Each
question should be divided into short parts answerable with yes or no. Do not write long
questions with many parts because then the respondent could say no, even though most or
part of the question was true. Also, be sure to list and number your questions. You should
send these questions to the respondent, the Attorney General’s Office, and the court with
your petition.
6. Fees
Before December 1999, prisoners could file for poor person status (in forma pauperis) in
New York State courts and, if eligible, did not have to pay filing fees for claims made in state
court. In 1999 the State Legislature made changes to the New York Civil Practice Law and
Rules requiring that prisoners pay filing fees whenever they bring claims in state courts.90 The
only exception is for prisoners bringing Article 78 petitions in relation to jail time credit. If
you are filing this kind of Article 78 petition, you do not have to pay a filing fee.91 Thus, even
if you or someone you know has previously filed an Article 78 proceeding without paying a
filing fee, or if you have looked at a prior edition of the JLM that reflects the old law, you
now will most likely be required to pay a filing fee in order to begin your Article 78 proceeding
and receive your index number.92
Prisoners are eligible for a reduced filing fee, which may be between fifteen and fifty
dollars93 (the full filing fee is $190).94 In order to get the reduced filing fee, you must submit
89. N.Y. C.P.L.R. 3123 (a) (McKinney 2005) (the notice to admit may be served at any time after
service of the answer, but not later than 20 days before trial).
90. The new fee requirements can be found in N.Y. C.P.L.R. 1101(f) (McKinney 1997 & Supp.
2006). However, 1101(f) is set to expire in September 2009. If 1101(f) is not extended beyond this time,
the correct place to look for fee requirements after September 2007 will be 1101(d).
91. N.Y. C.P.L.R. § 1101(f)(5) (McKinney 1997 & Supp. 2006).
92. Gomez v. Evangelista, 290 A.D.2d 351, 352, 736 N.Y.S.2d 365, 366 (1st Dept. 2002) (holding
that the requirement that prisoners pay a non-waivable fee of at least $15, while other non-prisoners
can get their fees completely waived, does not violate the Equal Protection Clause of the 14th
Amendment, and is therefore constitutional). See also Berrian v. Selsky, 306 A.D.2d 771, 772, 763
N.Y.S.2d 111, 114 (3d Dept. 2003) (holding that the fee requirement for an Article 78 challenge “is
rationally related to the legitimate governmental interest of deterring frivolous prisoner litigation”);
Bonez v. McGinnis, 305 A.D.2d 814, 815, 758 N.Y.S.2d 543, 544 (3d Dept. 2003) (holding the same).
93. N.Y. C.P.L.R. 1101(f)(2) (McKinney 1997 & Supp. 2006).
94. N.Y. C.P.L.R. 8018(a) (McKinney 1981 & Supp. 2006). In addition, $125 may be charged if a
trial or inquest (hearing) is scheduled. This is called a “Request for Judicial Intervention” fee. N.Y.
an affidavit to the court stating why you cannot afford the full filing fee and ask for a
reduced filing fee.95 Since this is a new law, it is not yet clear how the courts will decide when
a prisoner qualifies for a lower fee. Thus, if you are unable to pay the full filing fee, you
should include in your affidavit for the reduced filing fee as much detailed information as
possible about your financial situation. For example, you should tell the court in your
affidavit if you cannot work because you are medically or mentally ill, because you are in
protective custody due to danger, or because no jobs are offered. Also, explain any
outstanding obligations you have, especially court-ordered obligations such as child support
or restitution. See Appendix A for a sample affidavit to request a reduced filing fee. If the
court denies your request for the reduced filing fee, it will notify you. You will then have 120
days to pay the full fee ($190), or else your case will be dismissed.96 Please note that if you
win your case, the court will refund any filing fee that you have paid.
In the affidavit, you must provide the name and mailing address of the facility where you
are currently confined as well as all other facilities in which you have been confined during
the last six months. 97 The court will then get a copy of your inmate trust fund account
statement for the six months before you filed the affidavit.98 If the court decides that you
cannot afford to pay the full filing fee, it may allow you to pay a reduced filing fee that is no
less than fifteen and no more than fifty dollars.99 The court will then require you to pay an
initial part of the reduced filing fee that you can reasonably afford.100 Only in exceptional
circumstances may the court decide that you do not have to pay this initial filing fee.101 The
rest of the reduced filing fee (the difference between the total amount of the reduced filing fee
and the amount paid as the initial part of the filing fee) will be collected by your facility.102
This means that if you are a state prisoner, the Department of Correctional Services will
collect a portion of your weekly wages and outside receipts until the reduced filing fee is fully
paid.
7. The Index Number and Filing Date
The court will tell you your index number after you file the documents listed in Part E(2)
below. Once the court tells you the index number, you must write it on the top of all
documents that you serve to the respondent or submit to the court. 103 If you serve your
Notice of Petition or Order to Show Cause and Verified Petition without an index number or
filing date (for example, because filing has not occurred), the paper has no legal weight. The
court will act as if you never did anything. However, the court might allow you to amend
C.P.L.R. 8020 (a) (McKinney 1981 & Supp. 2006).

95. N.Y. C.P.L.R. 1101(d) (McKinney 1997 & Supp. 2006), 1999 N.Y. Laws 412 Pt. D. § 1
(McKinney 2000).
98. If you have been incarcerated in the same facility for six months before you filed the
affidavit, the court will get a copy of your inmate trust fund account from the prison superintendent of
your facility. If you have been confined for less than six months at that facility at the time your file
your affidavit, the court will either (1) get an inmate trust fund account statement for the last six
months from the Central Office of the Department of Correctional Services in Albany if you are a state
prisoner who was transferred from another state correctional facility; or (2) get an inmate trust fund
statement from a federal or local correctional facility if you were transferred from such a facility. N.Y.
C.P.L.R. 1101(f)(1) (McKinney 1997 & Supp. 2006).
101. However, please note that the statute states that “in no event shall an inmate be prohibited
from proceeding for the reason that the inmate has no assets and no means by which to pay the initial
partial filing fee.” N.Y. C.P.L.R. 1101(f)(2)(ii) (McKinney 1997 & Supp. 2006).
your petition if you purchased the index number but forgot to put it on your other
documents.104 On the other hand, the court might dismiss the entire proceeding. You could
still refile, but only after obtaining a new index number by either filing a new poor person’s
motion or paying the fee again. If you must refile, you should be aware of statute of
limitations concerns. See Part C(3) above for a discussion of statute of limitations.
8. Serving the Respondents and the Attorney General
“Serving” means giving the respondents and the Attorney General’s Office a copy of every
document and exhibit that you sent to the court clerk. Remember that for Article 78
proceedings, you must serve both the official (person or people) or agency you have named
AND the correct office of the New York State Attorney General. Unless the court directs
otherwise, the Attorney General must be served by personal service and the official or agency
by personal service or certified mail, return receipt requested, with “URGENT LEGAL
MAIL” written on the front of the envelope in capital letters.
You may not serve the respondents until you receive an index number from the court.
You must write the index number and the court’s designated date of filing (which you can
find in the information that the clerk sends you) on the first page of every item that you send
to the respondents. You must also tell the Attorney General the name of the judge and the
date of the hearing if available. You should include the date of the hearing and the name of
the judge on every paper that you send to the respondent if the court clerk sends you this
information.
You must be careful to “serve” (deliver or mail) your petition to the official or agency you
have named as respondent and to the New York State Attorney General.105 (The Attorney
General will represent the state in the proceeding.)
If you are using an Order to Show Cause, the respondents must receive these items
before the time specified by the court in the Order to Show Cause. If you are using a Notice of
Petition, the respondents must receive these items at least twenty days before the court
date.106 A Verified Petition, supporting affidavits, and either an Order to Show Cause or a
Notice of Petition must be served within four months and fifteen days after you receive the
decision.107 It is important to serve papers far enough ahead so that there is time to complete
the proof of service requirement, which also must be completed in four months and fifteen
days.108 You must serve the Attorney General by personal service unless you get special
permission to do otherwise.109 You can get this special permission by making a request for it
in your Order to Show Cause. If you are serving a state agency, you can serve either the chief
executive officer or a person assigned by him to receive service, by personal service or by
sending the documents by certified mail, return receipt requested, with “URGENT LEGAL
MAIL” written on the front in capital letters.110 Service is not complete until the certified
mail is received by the agency to which it is sent.

107. N.Y. C.P.L.R. 306-b (McKinney 2001 & Supp. 2006) (effectively sets time limit for service);
N.Y. C.P.L.R. 7804(c) (McKinney 1994) (stating that Notice of Petition, petition and supporting
affidavits all need to be served); see Long Island Citizens Campaign, Inc. v. County of Nassau, 165
A.D.2d 52, 55, 565 N.Y.S.2d 852, 855 (2d Dept. 1991) (holding that the petition must be served along
with the Notice of Petition or Order to Show Cause).
108. N.Y. C.P.L.R. 306-b (McKinney 2001 & Supp. 2004 & Supp. 2006).
109. N.Y. C.P.L.R. 307(1) (McKinney 2001); see Lowrance v. Coughlin, 190 A.D.2d 915, 915, 593
N.Y.S.2d 597, 598 (3d Dept. 1993) (holding that without a court order, personal jurisdiction may not be
obtained over an Attorney General by serving him or her via mail).
As a prisoner, you may have a great deal of trouble accomplishing service. The two most
common means of service are personal service and mail. 111 Each poses problems for
prisoners.
(a) Personal Service
Personal service means someone (the “server”) actually approaches, identifies, and
personally hands a person the paperwork. The server then describes and swears in an
affidavit to exactly what she did, and this affidavit is turned over to the court to demonstrate
proof of service. A prisoner could serve the agency personally either by asking someone on
the outside to hand over the paperwork, or by employing a professional service agency (which
can be expensive).
(b) Service by Mail
Service by mail is permitted in many situations, but not when dealing with the
government. One such case is serving the Attorney General, and if you are not able to
personally serve the Attorney General, you should include an Order to Show Cause
requesting authorization to serve by mail in the material that you originally send the
court.112 If you cannot serve the state agency by registered mail, return receipt requested,
you should also include an Order to Show Cause asking to serve the state agency in an
alternative manner. In the Order to Show Cause, you should specifically explain the process
you must go through at your institution to mail the documents so that the court will
authorize that particular process. If there are any other difficulties in serving process that
make it very difficult or impossible to accomplish in the prescribed time, tell the court now
and ask for additional time.113 In the past, courts have allowed prisoners to use the mail
services available to them. In fact, they sometimes give prisoners special permission to use
the mail to serve the Attorney General, who normally must be served by personal service.114
It is absolutely imperative that you ask the court clerk about serving process, and describe
the process for mailing at your institution. Write a note that asks the clerk to provide specific
instructions on exactly what you have to do to serve.
111. Electronic means and overnight delivery service have also become possibilities in some
circumstances. See N.Y. C.P.L.R. 2103(b) (McKinney 1997 & Supp. 2006).
112. Onorato v. Scully, 170 A.D.2d 803, 803, 566 N.Y.S.2d 408, 409 (3d Dept. 1991) (noting that
“service by mail, absent issuance of an order to show cause authorizing service by mail in lieu of
personal service, is jurisdictionally defective” (quoting In re Dello v. Selsky, 135 A.D.2d 994, 995, 522
N.Y.S.2d 716, 717 (3d Dept. 1987))). See Appendix A at the end of this Chapter for a general example of
an Order to Show Cause. Model your request on the example.
113. The main problem is that, like so many words that seem clear, “mailing” has a specific legal
definition under New York’s Civil Practice Law and Rules:
“Mailing” means the deposit of a paper enclosed in a first class postpaid wrapper, addressed to
the address designated by a person for that purpose or, if none is designated, at that person’s
last known address, in a post office or official depository under the exclusive care and custody of
the United States Postal Service within the state….
N.Y. C.P.L.R. 2103(f)(1) (McKinney 1997 & Supp. 2007) (emphasis added). A prisoner generally does
not have access to a depository under the exclusive care of the United States Postal Service and,
therefore, cannot “mail” within the meaning of the statute. However, as noted above, courts commonly
allow prisoners to serve by mail.
114. See Onorato v. Scully, 170 A.D.2d 803, 805, 566 N.Y.S.2d 408, 409 (3d Dept. 1991) (finding,
in certain circumstances, a court may treat a prisoner’s letter as an application to permit alternative
service even where there is no order to show cause authorizing service by mail); In re Hanson v.
Coughlin, 103 A.D.2d 949, 949, 479 N.Y.S.2d 767, 768 (3d Dept. 1984) (interpreting prisoner’s attempt
to mail petition as an application for an order permitting alternative service, and remitting the case to
the trial court such that the prisoner could submit an order to show cause).
(c) Service by Filing
A final possibility is to ask if you can serve by filing pursuant to N.Y. Civil Practice Law
and Rules 2103(d).115 This rule is basically a catchall provision that says if no other means
are available, service can be fulfilled by filing the documents you need to serve as if the
service documents were papers that needed to be filed. This means that you would mail them
to the court clerk. Just being in prison is not enough to trigger this provision. You would
have to state a compelling reason why you could not serve in any other manner.
9. Proof of Service
“Proof of Service” is evidence for the court that you have notified respondents that you
are suing them. It is a form that you send the court stating that you served process. If
someone else has served personally for you, that person must provide you with an “affidavit
of service,” which is an affidavit explaining the time, date and circumstances surrounding
the event. Some professionals may have a certificate that they send to you. If you serve by
mail, you may have to sign an affidavit saying that you mailed it, or you may have to include
a copy of the receipt from certified mail. Another possibility, if you are allowed to use regular
mail, is to send the court a receipt signed by the respondent, indicating that respondent
received the package. This is called an acknowledgment. Whatever proof of service you have,
you should submit it to the court.
10. The “Answer” by the Government and Your “Reply”
The document that the administrative official or agency files with the court in opposition
to your petition is called the “answer.” The answer is a document that replies to each point in
your petition by admitting, denying, or claiming lack of knowledge about it. With the answer,
the respondent can also submit any affidavits or other documents to the court. The
respondent is required to serve you with a copy of his answer as well as all attached
documentary evidence no later than five days before the hearing date.116
When you receive the answer, you should read it carefully to see what arguments the
government is making in response to your claim. Usually, the Attorney General’s Office,
rather than the respondent(s), writes the answer. If the respondent fails to file an answer
within the allowed time, you can ask the court to rule in your favor. If the respondent has
added allegations that were not included in your petition, if you want to challenge the
accuracy of the transcript or other documents submitted by the respondent, or if the
respondent has made a claim against you (a “counterclaim”), then you can submit an
additional document to the court. Your response to the “answer” is called a “reply.” If you do
not submit a reply to new facts alleged by the respondent in his answer, the court can view
those facts as if you have admitted they are true.117 You must serve the respondent with your
reply at least one day before the hearing.
If you are seeking review of a discretionary decision made by an official or agency after a
hearing, the respondent is required to submit a copy of the transcript of the hearing to the
court with its answer. While the respondent is not required to serve you with a copy of the
transcript, several courts have ruled against respondents who failed to provide the courts
with administrative hearings transcripts.118

116. N.Y. C.P.L.R. 7804(c), (e) (McKinney 1994 & Supp. 2007).
118. See Gittens v. Sullivan, 151 A.D.2d 481, 481, 542 N.Y.S.2d 272, 273 (2d Dept. 1989)
(ordering respondent to produce transcript of disciplinary hearing; if no transcript existed, agency’s
determination had to be voided and a new administrative hearing conducted); Arnot-Ogden Memorial
Hosp. v. Axelrod, 95 A.D.2d 947, 949, 463 N.Y.S.2d 927, 930 (3d Dept. 1983) (holding that default
judgment was proper, as respondent had repeatedly failed to produce transcript as ordered by the
E. How to Bring an Article 78 Proceeding
To bring an Article 78 proceeding, you must complete the following steps before the
deadlines:
(1) File the items listed below with the clerk of the court in which you are bringing the
proceeding;
(2) “Serve” the respondent and the Attorney General’s Office; and
(3) File “proof of service” with the court during the appropriate time period.
a. Deadlines
Four-month deadline for filing in court (step 1 above): You must file with the court within
the statute of limitations period. If you do not, you will automatically lose your case.
Remember, you cannot serve the respondent (step 2) until you receive an index number,
which the court sends you after you have completed step 1. Plan your time accordingly.
Deadline for service and filing proof of service (steps 2 and 3 above): You must serve both
the respondent(s) and the Attorney General and file “proof of service” with the appropriate
court within four months and fifteen days after you receive the decision you are challenging.
It will take some time to file proof of service, so remember to leave enough time after service
to get this accomplished.
Example: If you receive a decision on December 1, 1995, you must file your appeal with
the appropriate court before April 1, 1996. You must serve the respondents and the Attorney
General’s Office and file proof of service with the court before April 15, 1996.
b. Procedure
i. Filing with the Court
As mentioned above, you need to send to the county supreme court clerk one original and
one copy of each of the following:
(1) A Notice of Petition or an Order to Show Cause;
(2) A Verified Petition;
(3) All exhibits and supporting affidavits attached to the petition;
(4) Either the full filing fee or an affidavit that supports your claim that you are too poor
to pay the full filing fee. See discussion in Part D(6) above. If the court approves your
request, it will charge you between fifteen and fifty dollars;
(5) ***Caution: If you fail to enclose either the full fee, or the reduced fee and the poor
person’s motion and affidavit, you will not get an index number. Without the index
number, you cannot proceed with your claim.
(6) A “Request for Judicial Intervention” (“RJI”). Different courts apply different rules on
these, so check with your court clerk to make sure you have complied with the RJI
rules for your court;119 and
(7) A “Request for an Index Number.”
Mail these items to the correct court clerk and wait for an index number. After you
receive the number, serve the respondents and Attorney General with the proper paperwork.
You can make the copies by hand.
ii. Serving the Respondents and the Attorney General’s Office
If you are using an Order to Show Cause, the respondents must receive these items
before the time specified in the Order. If you are using a Notice of Petition, the respondents
must receive the items at least twenty days before the court date. NOTE: if you are
court).
119. N.Y. Comp. Codes. R. & Regs. tit. 22, § 202.6 (2000).
permitted to serve papers by mail, you must add five days to the deadline. So, you would
mail your papers at least twenty-five days before the court date.120
(c) Proof of Service
It is important that proof of service on each respondent and the Attorney General be filed
on time. Without a timely filing, the court will dismiss your case.
(d) Refiling Your Petition
If your case is dismissed because you did not file proof of service on time, you have fifteen
days from the date of dismissal to refile your petition and serve the respondents and the
Attorney General. Be aware that not only will you have to pay the filing fee again, but you
will also have to repeat the entire process.
c. How To Get Help From a Lawyer
Courts have the power, under section 1102(a) of the N.Y. Civil Practice Law and Rules, to
appoint a lawyer for you, but they do not have to.121 Include a request for a court-appointed
attorney in your request for a fee reduction or waiver. You can also contact the agencies in
JLM Appendix IV to see if they know a lawyer who will represent you for free. You should
also read JLM Chapter 4, “How to Find a Lawyer.”
d. The Judgment
The court’s decision about your Article 78 petition is called a judgment. The court has the
power to render any judgment that it feels is appropriate. It can modify the decision of the
administrative body, cancel it, make an entirely different decision, or send the case back to
the administrative agency for a new hearing or decision (this is called a remand to the
administrative agency).122
F. How to Appeal Your Article 78 Decision
If you lose your Article 78 proceeding and wish to appeal to the Appellate Division of the
New York Supreme Court, professional legal help is important.123 You can request that the
appellate division assign you an attorney. Appealing an Article 78 decision is much more
complicated than filing a petition in supreme court.124 If you are thinking of appealing, you
must serve a “Notice of Appeal” upon the New York State Attorney General and file the
Notice with the court within thirty days of the entry of judgment denying your Article 78
petition.125 Note that you must file the Notice of Appeal with the supreme court that decided
your case, not with the appellate division. You should serve the Notice of Appeal first, and
then file the Notice with proof of service. If you do not serve and file the notice of appeal
within thirty days of the denial of your petition, the denial will be final and you will not be
allowed to appeal it with or without a lawyer.
120. See N.Y. C.P.L.R. 2103 (b)(2) (McKinney 1997 & Supp. 2006).
121. See N.Y. C.P.L.R. 1102(a) (McKinney 1997 & Supp. 2007).
123. See JLM Chapter 4 and Appendix IV of the JLM for information on finding help from a
lawyer.
124. See, e.g., N.Y. C.P.L.R. 5513, 5515, 5516, 5519, 5525, 5528 and 5701(b)(c) (McKinney 1995 &
Supp. 2007).
125. N.Y. C.P.L.R. 5513, 5515 (McKinney 1995 & Supp. 2006). The notice of appeal is a simple
form that is easy to prepare yourself. You can adapt the sample criminal notice of appeal found in JLM
Chapter 9; simply include your own case caption, your name and the respondent’s name, the proper
party titles (for example, “petitioner” and “respondent”), and state that the notice of appeal is filed
pursuant to N.Y. C.P.L.R. 5513 (McKinney 1995 & Supp. 2007).
If you win in supreme court on your own, and the respondent files an appeal to the
appellate division, you should petition the appellate division as soon as possible to appoint a
lawyer for you on appeal. See the sample requests at the end of this Chapter. The respondent
can get an automatic stay of the decision pending the outcome of the appeal.126 This means
the supreme court decision in your favor will not go into effect until the appeal has been
decided. You can then move to have the court vacate (dismiss) the stay.
11. Where to Appeal
The Appellate Division of the New York Supreme Court has four departments. Each of
these departments covers a different portion of New York State. Your appeal will take place
in the department of the Appellate Division that contains the county where your Article 78
petition was decided against you.127 Each of the four departments can have specific rules
about the time limits and process of filing and proceeding on an Article 78 appeal, so you
must be sure to find out what, if any, specific documents or actions are required by your
department for each step of your appeals process.128
12. Filing a Notice of Appeal (“Taking the Appeal”)
Your first step in appealing an Article 78 decision is serving a Notice of Appeal on the
Attorney General and filing the Notice of Appeal with the Clerk of the county where your
judgment was decided, with proof of service upon the Attorney General.
In your notice, you must explain five important things:
(1) The decision that you are appealing;
(2) Which judge made the decision;
(3) The date on which the decision was made;
(4) What date the judgment was filed with the County Clerk; and
(5) What parts of the decision you want to appeal (you can appeal part of or the whole
decision).
A filing fee of $315 may be required to file your notice, but you can request a reduced fee
if you are unable to pay in full.129 (You may serve your Notice of Appeal to the court and the
Attorney General by mail; see Part D(8) above for information on serving documents.)
Remember, you must serve and file the notice of appeal within thirty days of your petition’s
denial, or the decision will be final and you cannot appeal.130
126. N.Y. C.P.L.R. 5519(a)(1) (McKinney 1995 & Supp. 2007).

127. The four departments are as follows: 1st Department—Bronx, New York (Manhattan); 2nd
Department—Brooklyn, Dutchess, Kings (Brooklyn), Nassau, Orange, Putnam, Queens, Richmond,
Rockland, Suffolk, Westchester; 3rd Department—Albany, Broome, Chemung, Chenango, Clinton,
Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Madison, Montgomery,
Otsego, Rensselaer, St. Lawrence, Saratoga, Schenectady, Schoharie, Schuyler, Sullivan, Tioga,
Tompkins, Ulster, Warren, Washington; 4th Department—Allegany, Cattaraugus, Cayuga,
Chautauqua, Erie, Genesee, Herkimer, Jefferson, Lewis, Livingston, Monroe, Niagara, Oneida,
Onondaga, Ontario, Orleans, Oswego, Seneca, Steuben, Wayne, Wyoming, Yates.
128. You can find this information by looking up your court and department rules in McKinney’s
New York Rules of Court (2007). The relevant parts of the rules are as follows: N.Y. Ct. Rules Part 600
(1st Department); Part 670 (2nd Department); Part 800 (3rd Department); Part 1000 (4th Department).
129. N.Y. C.P.L.R. 8022(b) (McKinney 1981 & Supp. 2007). See N.Y. C.P.L.R. 1101(f) (McKinney
1997 & Supp. 2007) (will expire on Sept. 1, 2009) and Section D(6) of this chapter (above) for more
information about requesting a reduced filing fee. The rules are different for each department. For
example, the 4th Department has an entire section on Poor Persons. N.Y. Ct. Rules § 1000.14
(McKinney 2007).
130. N.Y. C.P.L.R. 5513, 5515 (McKinney 1995 & Supp. 2007).
13. Putting Together Your Record
In order for your appeal to go forward, you will need a record of your case so far. The
record will include all of the information that has been filed in your case, except for any
briefs that were filed. A record will likely have your original Article 78 petition, the answer
from the Attorney General, your reply, if any, the exhibits for both parties, and all decisions
and judgments made by the court that heard your case. It may also contain the transcript of
the proceedings. You will also need to add a statement including the following information:
(1) the index number of your case; (2) the full names of the original parties and any change in
parties; (3) the court and county in which the proceeding began; (4) the date the proceeding
started and the dates when you served your pleadings; (5) a brief description of what you are
trying to do (appeal the decision in your case) and why; (6) whether the appeal is from a
judgment, an order, or both, the dates of whatever judgments or orders you are appealing
from, and the name of the judge who made the decision; and (7) a statement about which
method of appeal you are using, either a full-record appeal or an original record appeal
(which means you will not have to put together the record for your case yourself).131
Each of the four departments has different rules about what needs to be in the record for
an appeal.132 Generally, you should follow these two steps. First, assemble all documents
listed above. Then, request the Appellate Court to subpoena your record from the lower
court. (Though not all Appellate Courts are willing simply to obtain original records from the
lower court, the Court will usually do this for a pro se prisoner with poor person status.)
Otherwise, you can read and follow the court rules for the department you are in.
14. Writing Your Brief
To proceed with your appeal you will also have to write a brief, a document including all
the legal reasons the court should not have decided against you in your Article 78 petition.
You must be as specific as possible about your reasons, and should cite the statutes,
regulations and cases supporting your decision. You must also be specific about why the
judge made the wrong decision in your case. Your brief will likely need to contain a cover
page with information about your case (such as the case name, docket number, lower court,
and appellate court) as well as your name and address.133 You will need to send the same
number of copies of this brief to the court and the Attorney General as you are required to
send of the record.
15. “Perfecting the Appeal”: Submitting All Necessary Documents
To proceed in your appeal, you must do what is called “perfecting the appeal,” which
means submitting every document required by the court in which you are appealing,
including record and brief, and any other document your department requires. Each
department has a time limit within which to complete this.134

132. See McKinney’s New York Rules of Court for each department’s particular rules: N.Y. Ct.
Rules § 600.10 (McKinney 2007) (1st Department rules on the required form and content of your
record), N.Y. Ct. Rules §§ 670.9, 670.10.1 (McKinney 2007) (2nd Department rules on records), N.Y. Ct.
Rules § 800.5 (McKinney 2006) (3rd Department rules on records), and N.Y. Ct. Rules § 1000.4
(McKinney 2006) (4th Department rules on records).
133. For information and requirements for your brief, see McKinney’s New York Rules of Court
for each department: N.Y. Ct. Rules § 600.10 (McKinney 2007) (1st Dept.); N.Y. Ct. Rules §§ 670.10,
670.10.3 (McKinney 2007) (2d Dept.); N.Y. Ct. Rules § 800.8 (McKinney 2006) (3d Dept.); N.Y. Ct. Rules
§ 1000.4 (McKinney 2007) (4th Dept.).
134. For example, in the 1st Department, you must have all documents filed within nine months
of the date of your notice of appeal. N.Y. Ct. Rules § 600.11(a)(3) McKinney 2007). In the 2nd
Department, the time limit is six months. N.Y. Ct. Rules § 670.8(e) (McKinney 2007). Both the 3rd and
4th Departments have a 60-day time limit. N.Y. Ct. Rules § 800.14(b) (McKinney 2006) and N.Y. Ct.
16. The Reply to Your Appeal
Once your brief is filed, the court will tell you when your case will be heard. When the
court requires the Attorney General to file a brief on your case, you may file a reply brief,
usually within a few days of receiving the Attorney General’s brief.135 You only need to file a
reply brief if there are any issues raised by the Attorney General’s brief that your first brief
did not cover, or to show why the arguments and cases used by the Attorney General are
weaker than your own. You do not need to restate the points you raised in your original brief.
Some weeks after you have filed your reply brief, the court will inform you of its decision.
G. Conclusion
Article 78 is available to appeal decisions by state officials or agencies, but not courts,
and only when you have exhausted other remedies. Since Article 78 petitions are your last
chance to challenge administrative decisions, pay attention to Part A’s requirements and
Part D’s procedures for filing or appealing a petition. Remember, you can only challenge
decisions or actions you think are illegal, not just unfair. If you are unsure what type of
petition is available, read Part B’s possible complaints and actions, and Part C’s limits on
what you can challenge. Appendix A’s sample forms and instructions will help you prepare a
petition.
Rules § 1000.12(a) (McKinney 2006).

135. In the 1st Department, you have nine days to reply from the day you are served with the
Attorney General’s brief. N.Y. Ct. Rules § 600.11(c) (McKinney 2006). In the 2nd, 3rd, and 4th
Departments, you have 10 days from when the Attorney General serves the brief to reply. N.Y. Ct.
Rules §§ 670.8(c)(3), 800.9 (c), 1000.2(e) (McKinney 2006).
APPENDIX A
SAMPLE ARTICLE 78 PETITIONS AND SUPPORTING PAPERS
This appendix contains the following materials:
A-1. Order to Show Cause

A-2. Affidavit in Support of Order to Show Cause
A-3. Notice of Petition
A-4. Article 78 Petition
A-5. Verification of Petition
A-6. Request for Judicial Intervention (“RJI”)
A-7. Application for an Index Number
A-8. Affidavit in Support of Request for Reduction/Waiver of Fees
Part D of this Chapter explains what each of these papers is and how to use them, and
you should read them carefully before proceeding. DO NOT TEAR THESE FORMS OUT OF
THE JLM. You must copy them on your own paper, inserting the facts and language that
apply to your case. You should type your papers if possible, or neatly handwrite them. You
should use 8½ by 11 inch paper. Do not include the bracketed or italicized material in your
papers. This material is included simply as an example of the type of information that you
should include from your own case. The endnotes following the sample documents tell you
how to fill in the necessary information.
If you need to know the name or address of the court to which you should send these
papers, read this Chapter and then look in Appendix II at the end of the JLM. Appendix II
lists the addresses of the New York state courts. For an introduction to the court system and
the legal process, see JLM Chapter 5, “Choosing a Court and a Lawsuit.”
A-1. ORDER TO SHOW CAUSE
At a Term of the Supreme Court of the State of New York, held in and for the County of
on the th day of , 20 .i
Present: Hon. , Justiceii

COUNTY OF iii
X
In the Matter of the Application of :
:
,iv :
Petitioner, :
: ORDER TO SHOW CAUSE
- against - :
: Index No. v
,vi :
Respondent, :
:
For a Judgment Pursuant to Article 78 :
of the Civil Practice Law and Rules :
X
Upon the annexed affidavit in support of an Order to Show Cause of

,vii verified on the th day of , 20 ,viii the Verified Petition,ix and
x sworn to on th day of , 20 , it is
xi
ORDERED that respondent xii show cause at a Term of this Court,
to be held in the County of xiii on the th day of , 20

,xiv or as soon thereafter as counsel may be heard, why a judgment should not be
made and entered in this matter pursuant to Article 78 of the Civil Practice Law and Rules:
VACATING and setting aside Respondent’s determination of [June 15, 2000] [assigning
petitioner to 120 days confinement in the Special Housing Unit (solitary confinement,
“SHU”)] because [the underlying Superintendent’s Hearing is null and void];xv
DIRECTING Respondent to [expunge all entries of said Superintendent’s Hearing and
the resulting disposition thereof from all of petitioner’s records and restore petitioner in all
respects to the status he enjoyed prior to the commencement of said Superintendent’s
Hearing];xvi
GRANTING such other and further relief as the Court may deem just and proper. It is
further
ORDERED that pending the hearing of this special proceeding and pursuant to section
7805 of the N.Y. Civil Practice Law and Rules, Respondent and all other officers, employees,
agents, attorneys and persons working in active concert or participation with Respondent are
stayed and prohibited from taking action related to or enforcing Respondent’s determination
of , 20 .xvii It is further
ORDERED that service of a copy of this order, together with the papers upon which it is
granted, upon both the Respondent xviii and the Attorney General, by mail,
on or before , 20 ,xix shall be deemed sufficient.

ENTER:
xx
JUSTICE OF THE SUPREME COURT

A-2. AFFIDAVIT IN SUPPORT OF ORDER TO SHOW CAUSE
COUNTY OF xxi
X
:
,xxii : AFFIDAVIT IN
Petitioner, : SUPPORT OF ORDER
: TO SHOW CAUSE
- against - :
: Index No. xxiii
,xxiv :
Respondent, :
:
X
STATE OF NEW YORK )
COUNTY OF xxv ss: )
I, ,xxvi being duly sworn, depose and say:

1. I am the petitioner in the above-entitled proceeding.
2. I make this affidavit in support of my annexed application for an Order to Show
Cause to prosecute the attached petition pursuant to Article 78 of the Civil Practice Law and
Rules which challenges .xxvii
3.
xxviii
4. Petitioner seeks to proceed by Order to Show Cause rather than by Notice of Petition
because .xxix
5. Petitioner, being incarcerated, also cannot effect personal service of the within
papers and respectfully requests that timely service by mail be deemed sufficient.
6. Petitioner designates xxx County as the place of venue.
7. No previous application for the relief requested herein has been made.xxxi
8. I have moved by the annexed affidavit for a reduction/waiver of the filing fees.xxxii
WHEREFORE, petitioner respectfully requests that this Court enter an order directing
Respondent to show cause why a judgment should not be made and entered pursuant to
Article 78 of the Civil Practice Law and Rules xxxiii and granting such other and further relief
as the Court may deem just and proper.
_____________________xxxiv
_____________________xxxv
th day of , 20
_____________________xxxvi
NOTARY PUBLIC
A-3. NOTICE OF PETITION
COUNTY OF xxxvii
X
:
,xxxviii :
Petitioner, :
: NOTICE OF PETITION
- against - :
: Index No. xxxix
,xl :
Respondent, :
:
X
To :xli
PLEASE TAKE NOTICE that upon the annexed petition of
,xlii verified the [18th day of July, 2000],xliii and the annexed affidavit of [Roberta A.
Smith],xliv sworn to on the [18th day of July, 2000],xlv petitioner will apply to this Court on
the [18th day of August, 2000], xlvi or as soon thereafter as counsel may be heard, for a
judgment granting the relief requested in the annexed Petition.
PLEASE TAKE FURTHER NOTICE that you must serve a verified answer, any
supporting affidavits and documents, and a certified transcript of the record of the
proceeding at least five days before this application is made.xlvii
Petitioner designates County as the place of trial. The basis of
venue is xlviii
xlix
[Sign your name]
[Print your name]

Dated: , 20
A-4. ARTICLE 78 PETITION
COUNTY OF l
X
:
, li :
Petitioner, :
: PETITION
- against - :
: Index No. lii
,liii :
Respondent, :
:
X
To THE SUPREME COURT OF THE STATE OF NEW YORK FOR

COUNTY:
The petition of ,liv complaining of the Respondent
, respectfully alleges:
lv
1. Petitioner lvi is an inmate at ,lvii

, New York.
lviii
2. Respondent [Ronald R. Roe, Superintendent of Ossining Correctional Facility, is

petitioner’s legal custodian and is charged with the overall supervision and administration of
Ossining].lix
3. This petition challenges [disciplinary action taken on June 15, 2000], when respondent,
[pursuant to a Superintendent’s Hearing,] had determined to [place him in the Special
Housing Unit (“SHU,” solitary confinement) for a period of 120 days].lx
4. The within proceeding is brought pursuant to C.P.L.R. Article 78 to challenge the
final determination of , dated .lxi
5. [On June 9, 2000, while confined to a private room/cell in the infirmary at Ossining
Correctional Facility, petitioner began to feel claustrophobic and believed he was suffering
from an asthmatic episode.]lxii
6. [Corrections Officers Smith and Brown were called to the infirmary to restrain
petitioner so that he could be given an injection to subdue him.]
7. [Petitioner was in an agitated state because he believed that he was going to be given
a dose of anti-psychotic medication.]
8. [Once the officers arrived, they ordered petitioner to stand to the side of the room. He
did not comply with this order.]
9. [Once the officers were in petitioner’s room, he raised his hands and spoke to the
officers to indicate that he did not want to receive medication. The officers reported, however,
that when petitioner raised his hands, his fists were clenched.]
10. [The officers then grabbed petitioner and held him while the nurse administered an
injection. Then they escorted petitioner to the Mental Health Unit where he was placed in a
special observation cell (“dry cell”).]
11. [On June 10, 2000, while in the observation cell, petitioner was served with a
misbehavior report, charging him with violation of the following inmate rules: 100.11
(attempted assault) and 106.10 (refusing a direct order). A copy of the misbehavior report is
attached as Exhibit 1.]
12. [The Superintendent’s Hearing was commenced on June 15, 2000, while petitioner
was still confined in the Mental Health Unit. Petitioner pleaded not guilty to the charges.]
13. [The hearing officer read into the record reports written by Correction Officers Smith
and Brown. Neither report alleged that petitioner had attempted to assault either of the
officers. (Copies of these reports are attached as Exhibits 2 and 3.)]
14. [The hearing officer then found petitioner guilty of both charges and imposed a
penalty of 120 days confinement in the SHU, finding that the mere raising of hands with
fists clenched constituted an attempt to assault.]
15. [Petitioner did not attempt to strike either officer, however. Neither officer’s report
indicated otherwise. The reports stated in a conclusory fashion that petitioner “raised his
fists in an attempt to strike” the officers. Without further clarification, this statement is
insufficient to conclude that petitioner attempted to assault either officer. Petitioner was not
given an opportunity to present witnesses on his behalf.]
16. [Furthermore, the hearing officer made no inquiry into petitioner’s mental state at
the time of the incident or at the time of the hearing, even though the incident arose because
the staff had decided petitioner was out of control and would have to be medicated by force,
and even though petitioner was housed in the Mental Health Unit at the time of the hearing.
Petitioner’s mental state affected his responsibility for his actions and his ability to proceed
at the hearing.]
17. Respondent’s determination was [arbitrary, capricious, and an abuse of discretion]
because [the hearing was held at a time when petitioner was incompetent to proceed on his
own behalf, petitioner had no opportunity to present witnesses on his behalf, and respondent
failed to determine petitioner’s mental state. Because petitioner had suffered a
claustrophobic attack and sudden involuntary medication, he cannot be held responsible for
refusing the direct order.]lxiii
18. [No previous application has been made for the requested relief.]lxiv
WHEREFORE, petitioner respectfully requests that judgment be entered pursuant to
Article 78 of the Civil Practice Law and Rules:
[1. VACATING and setting aside Respondent’s determination of June 15, 2000,
assigning petitioner to 120 days confinement in the Special Housing Unit (solitary
confinement, “SHU”) because the underlying Superintendent’s Hearing is null and void;
2. DIRECTING Respondent to expunge all entries of said Superintendent’s Hearing
and the resulting disposition thereof from all of petitioner’s records and restore petitioner in
all respects to the status he enjoyed prior to the commencement of said Superintendent’s
Hearing;
3. GRANTING such other and further relief as the Court may deem just and proper.]lxv
_________________________lxvi
[your name]
Petitioner, pro se.lxvii
Dated:
lxviii
A-5. VERIFICATION OF PETITION
VERIFICATIONlxix
STATE OF NEW YORK )
COUNTY OF lxx ss.: )
,lxxi being duly sworn, deposes and says that deponent is the petitioner in the
above-encaptioned proceeding, that [he/she] has read the foregoing petition and knows the
contents thereof, that the same is true to deponent’s own knowledge, except as to matters
therein stated upon information and belief, which matters deponent believes to be true.
lxxii
day of , 20
NOTARY PUBLIC lxxiii
A-6. REQUEST FOR JUDICIAL INTERVENTION

REQUEST FOR JUDICIAL INTERVENTION
Index No. lxxiv
Supreme Court lxxv County
Date Purchased
PLAINTIFF(S):lxxvi
IAS entry date:
Judge Assigned:
DEFENDANTS(S):lxxvii
RJI Date:
———————————————————————————————————————-
NATURE OF JUDICIAL INTERVENTION:
[]lxxviii Order to Show Cause
(Clerk enter return date )lxxix
[]lxxx Notice of Petition (return )lxxxi
NATURE OF ACTION OR PROCEEDING
SPECIAL PROCEEDINGS
[] Art. 78
Is this proceeding against a:
[Yes/No] Municipality: lxxxii[Yes/No] Public Authority: lxxxiii
[Yes/No] Does this proceeding seek equitable relief? lxxxiv
[Yes/No] Does this proceeding seek recovery for personal injury?lxxxv

[Yes/No] Does this proceeding seek recovery for property damage?lxxxvi
Estimated time period for case to be ready for trial: 0-12 months
Attorney for Plaintiff(s):
Namelxxxvii Address Phone
Attorney for Defendant(s):
Namelxxxviii Address Phone
RELATED CASES:
Titlelxxxix Index Number Court Nature of Relationship
I affirm under penalty of perjury that, to my knowledge, other than as noted above, there
are and have been no related actions or proceedings, nor has a request for judicial
intervention previously been filed in this proceeding.
Dated: xc
(Signature)
(Print Name)
A-7. APPLICATION FOR AN INDEX NUMBER
INDEX
NUMBER xci
Application for INDEX NUMBER

pursuant to section 8018, New York Civil Practice Law & Rules
Title of Action: ARTICLE 78xcii
[David Smith
v.
William Jones, Commissioner of the Department of Correctional Services]
Name and address of Attorney for Plaintiff or Petitioner Telephone No.xciii (PRO SE)
Name and address of Attorney for Defendant or Respondent Telephone No.xciv
A. Nature of Special Proceeding Article 78 Proceeding
B. Application for Index Number filed by: Plaintiff Defendant
C. Was a previous Third Party Action filed? Yes No
COMPLETE Do Not Detach THIS STUB

Supreme Court,xcv County
xcvi
v.
xcvii INDEX NUMBER:xcviii
A-8. AFFIDAVIT IN SUPPORT OF REQUEST FOR
REDUCTION/WAIVER OF FEES
COUNTY OF xcix
X
: Affidavit in Support of
,c : Application for Fee
Petitioner, : Reduction/Waiver Pursuant to
: N.Y.C.P.L.R. 1101(f)
- against - :
: Index No. ci
,cii :
Respondent, :
:
X
I, ,ciii being duly sworn, hereby declare as follows:
1. I am the petitioner in the above-entitled proceeding, I am an inmate in a state

correctional facility [place of incarceration: ]civ, and I submit this affidavit
in support of my application for a reduction of the filing fees pursuant to N.Y. C.P.L.R.
1101(f) (and that an attorney be assigned to represent me).cv
2. I currently receive income from the following sources, exclusive of correctional facility
wages: .
3. I own the following valuable property (other than miscellaneous personal property):
[List property:] [Value:]
4. I have no savings, property, assets, or income other than as set forth herein.
5. I am unable to pay the filing fee necessary to prosecute this proceeding.
6. No other person who is able to pay the filing fee has a beneficial interest in the result
of this proceeding.
7. The facts of my case are described in my claim and other papers filed with the court.
8. I have made no prior request for this relief in this case.
(signature)
Sworn to before me
this ____ day of , 20 .
______________ cvi
NOTARY PUBLIC AUTHORIZATION
I, ,cvii inmate number , cviii request and

authorize the agency holding me in custody to send to the Clerk of the Court certified copies
of the correctional facility trust fund account statement (or the institutional equivalent) for
the past six months.
I further request and authorize the agency holding me in custody to deduct the filing fee
from my correctional facility trust fund account (or the institutional equivalent) and to
disburse those amounts as instructed by the Court. This authorization is furnished in
connection with the above entitled case and shall apply to any agency into whose custody I
may be transferred.
I UNDERSTAND THAT I MAY HAVE TO PAY THE ENTIRE FEE IF THE COURT
DENIES MY REQUEST FOR A FEE REDUCTION. MOREOVER, I UNDERSTAND THAT
THE FEE DETERMINED BY THE COURT WILL BE PAID IN INSTALLMENTS BY
AUTOMATIC DEDUCTIONS FROM MY CORRECTIONAL FACILITY TRUST FUND
ACCOUNT EVEN IF MY CASE IS DISMISSED.
cix
(signature)
Fill in the forms shown in Appendix A as follows.
i. Name of the county in which the case will be filed, in all capital letters. When filling in county
names, note that each borough of New York City is a county of New York State, but some of them have
different names: Manhattan is New York County; Brooklyn is Kings County; and Staten Island is
Richmond County. See N.Y. C.P.L.R. 506(b) (McKinney 1994 & Supp. 1999). The court clerk will fill in
the date.
ii. The clerk or judge will fill this in. You should leave this blank.
iii. Name of the county the court is in, in capital letters.
iv. Your name in capital letters.
v. Leave blank.
vi. Name, in all capital letters, of the officer or agency whose determination you are attacking (the
respondent). In most cases, prisoners will name the superintendent of the prison. You may name more
than one respondent; if you do, do not forget to change the wording in your papers to refer consistently
to all the respondents.
vii. Your name.
viii. Here, you should give the date the petition was approved/verified. See Appendix A-4 for a
sample petition and Appendix A-5 for a sample verification.
ix. A sample petition is contained in Appendix A-4.
x. Insert any other papers you are submitting with this Order.
xi. The date you signed and notarized your documents.
xii. Print or type in all capital letters the name of the respondent.
xiii. County in which you are filing the petition.
xiv. Leave this blank. The judge will fill in the information about the date.
xv. Do not copy the bracketed material. You should briefly explain in your own words exactly what
the respondent did to you and why you think it was incorrect.
xvi. Again, do not copy the bracketed language. Explain in your own words what you want the
court to do for you.
xvii. This paragraph is the “stay” described in Part D. The “stay” will be in effect until the hearing
date. The date you insert here is the date of the administrative decision you disagree with and want the
court to reverse. Until the court decides your case, this order will prevent the respondent from
enforcing the administrative decision you are challenging.
xviii. Respondent’s name.
xix. Leave this blank. The judge will fill in the date.
xx. Leave this blank. The judge will sign on the line.
xxi. Name of the county the court is in, in capital letters.
xxii.Your name in capital letters.
xxiii. Leave blank.
xxiv. Name, in all capital letters, of the officer or agency whose determination you are
attacking (the respondent). In most cases, prisoners will name the superintendent of the prison. You
may name more than one respondent; if you do, do not forget to change the wording in your papers to
refer consistently to all the respondents.
xxv. Name of the county in which you are making this affidavit.
xxvi. Your name.
xxvii. Write in the decision you are complaining about and the date of the decision.
xxviii. This paragraph should state the relevant facts and why the decision you disagree with
is wrong. It should explain the statement of the claims you made in the Order to Show Cause. If there
are many issues, organize your statements and arguments into several paragraphs, each dealing with a
separate issue. Remember: this is a sworn statement, and it is a crime to include anything you know is
a lie. If you want to include a statement you think is true, but you are not completely sure about it, you
can say that you are making the statement “upon information and belief.”
xxix. This paragraph should state why you are using an Order to Show Cause instead of a
Notice of Petition. (See Part D(2) on the difference between an Order to Show Cause and Notice of
Petition and the requirements for proceeding by Order to Show Cause.) You should be sure to explain:
(1) why a hearing is needed as soon as possible, but within 20 days (for example, you may be worried
about being placed in solitary confinement before 20 days are up); and (2) why a stay is needed (for
example, you do not want to wrongfully be placed in solitary confinement before you have a chance for
the court review your case).
The reasons for these requests may be similar (as they are in the examples above), but you should
explain them both. It is a good practice to argue that you will be “irreparably injured” if the court does
not grant a stay and a speedy hearing—this means that you will be hurt in a way that the court will
not be able to fix later if the officer’s or agency’s decision takes effect before you have had a chance to
contest it in the hearing.
xxx. Name of the county in which you are filing.
xxxi. Make sure you include this statement only if this is the first time you have asked for a
review of the decision. If you have applied for similar relief, explain why it was inadequate or why
changed circumstances have caused you to bring this action.
xxxii. Include this statement if you are attaching an application to request for a reduction or
waiver of fees. See Appendix A-8, Affidavit in Support of Request for Reduction/Waiver of Fees.
xxxiii. This paragraph basically states what you would like the court to do for you. You
should copy the language of the paragraphs numbered 1 and 2 of the Order to Show Cause. See
Appendix A-1. You can write them out as part of this sentence without separating them into
paragraphs.
xxxiv. Sign your name here in the presence of a notary public.
xxxv. Print or type your name and address.
xxxvi. This is where the notary public notarizes the affidavit by signing it and fixing his or
her official seal to it. If you have difficulty obtaining the services of a notary public, you should have
another prisoner witness your signature. (Use this technique only as a last resort.) If another prisoner
is your witness, you should add at the bottom of the affidavit:
I declare that I have not been able to have this [affidavit] notarized
according to law because [explain here your efforts to get the affidavit
notarized]. I therefore declare under penalty of perjury that all of the
statements made in this [affidavit] are true to my own knowledge,
and I pray leave of the Court to allow this [affidavit] to be filed
without notarization.
[Your signature]
xxxvii. Name of the county the court is in, in capital letters.
xxxviii. Your name in capital letters.
xxxix. Leave blank.
xl. Name, in all capital letters, of the officer or agency whose determination you are attacking (the
xli. Respondent’s name in capital letters.
xlii. Your name.
xliii. Give the date you sign your petition.
xliv.List each affidavit (sworn statement) included in your papers. You can, for example, ask
witnesses to the facts of your case to make affidavits to strengthen your petition.
xlv. This is the date on which the witness signed the affidavit.
xlvi.Set a court date far enough ahead so that the respondent will have 20 days notice by the time
he or she receives the Notice of Petition and petition.
xlvii. The respondent is required to submit a certified transcript (written record) of any
administrative hearing that was held. If you are seeking review of an official’s or agency’s failure to act
or perform an administrative duty, then there will be no transcript, so do not include the demand for
one.
xlviii. Here you should write in the name of the county that the court is in. You should also
briefly explain why you chose this court. Generally all you need to say is you are filing in this county
because the decision you are challenging was made in this county. “Venue” simply refers to the location
of the court. See N.Y. C.P.L.R. 506(b) (McKinney 2003).
xlix. Sign here and print your name clearly underneath.
l. Name of the county the court is in, in capital letters.
li. Your name in capital letters.
lii. Leave blank.
liii. Name, in all capital letters, of the officer or agency whose determination you are attacking (the
liv. Your name in capital letters.
lv. Respondent’s name(s) in capital letters.
lvi. Your name.
lvii. Name of prison in which you are incarcerated.
lviii. Address of prison.
lix. Do not copy the bracketed words. Write the respondent’s name and state his or her, or its
duties that resulted in the decision or action you are challenging. If the respondent is the Board of
Parole, for example, you could state that the New York State Board of Parole is responsible for deciding
whether or not to parole a prisoner.
lx. Again, do not copy the bracketed words. You should give the date when you were told about
the decision that you are complaining of and briefly describe the decision. If you are requesting that the
court order the respondent to do something required by law, you should explain that the respondent
has not performed its duty.
lxi. In this paragraph, you should state how your administrative remedies have been exhausted.
lxii. Again, do not copy the bracketed words. State what happened in your own words, and be sure
to include all of the facts the court might think are important. Then state why you think the decision
was incorrectly made. If you know of a specific law that applies, you should include it in your
statement. This section will usually run for several paragraphs; separate each issue or argument into
different paragraphs to make your petition more understandable.
The sample facts and argument in this and following paragraphs have been shortened for reasons
of space and clarity. You will want to go into more detail than is given here.
lxiii. Here you should state the particular legal mistake that the respondent made in
making the determination that you are challenging. Refer to Part B of this Chapter for a description of
the basic legal reasons why decisions may be challenged in an Article 78 proceeding. They are
That the respondent failed or refused to perform a duty required by law (this would include constitutional
violations and violations of Department of Correctional Services regulations);
That the respondent exceeded his or her legal authority;
That the respondent’s determination was arbitrary, capricious, or an abuse of discretion; or
That the respondent’s determination was not supported by substantial evidence.
You can change these words to fit your case’s facts, as long as your complaint falls within one of the Part B categories.
lxiv.In this line, you should state whether you have or you have not filed a previous challenge to
the administrative determination that you want the court to review.
lxv. Here you should state what you want the court to do to correct the respondent’s mistake. Be
sure to request the court to declare the determination that you are challenging void (without legal
force). You should also specifically request what needs to be done to set the situation right and undo the
mistake, or prevent it from taking effect. For example, you could request that the court issue an order
“DIRECTING respondent to restore petitioner’s good-time credit,” “ENJOINING (prohibiting)
Respondent from transferring petitioner to any other facility” (if your transfer has not yet taken place),
etc.
lxvi.Sign your name here and print your name underneath.
lxvii. “Pro se” means that you are appearing by yourself, without a lawyer.
lxviii. Write the date when you are signing the papers, followed by your complete mailing
address. You must also include a verification, a sample of which follows.
lxix.A verification is a brief affidavit in which you swear to the truth of the statements you make in
a legal paper, such as an Article 78 petition. Your petition will not be accepted without a verification.
lxx. Name of the county in which the affidavit is signed, in capital letters.
lxxi.Your name.
lxxii. Sign your name here in the presence of a notary public.
lxxiii. This is where the notary public notarizes the affidavit by signing it and fixing his or
her official seal to it. If you have difficulty obtaining the services of a notary public, you should have
another prisoner witness your signature. (Use this technique only as a last resort.) If another prisoner
is your witness, you should add at the bottom of the affidavit:
I declare that I have not been able to have this [verification]
notarized according to law because [explain here your efforts to get
the verification notarized]. I therefore declare under penalty of
perjury that all of the statements made in this [verification] are true
to my own knowledge, and I pray leave of the Court to allow this
[verification] to be filed without notarization.
[Your signature]
lxxiv. The court will fill in this blank.
lxxv. Write the name of the county where you are bringing the action.
lxxvi. Write your name.
lxxvii. Write the name of the respondents.
lxxviii. If you are filing an Order to Show Cause, check this box.
lxxix. If you are filing an Order to Show Cause, write the date you suggest the case be
heard.
lxxx. If you are filing a Notice of Petition, check this box.
lxxxi. If you are filing a Notice of Petition, write the date you suggest the case be heard.
lxxxii. Write “no” unless you are suing a city.
lxxxiii. Write “yes” if you are suing any public officials or government agencies.
lxxxiv. Write “yes” if you are seeking to prevent an agency or official from acting in a way
which is harmful to you.
lxxxv. Write “yes” if you want to recover for injuries suffered by you.
lxxxvi. Write “yes” if you want to recover for property damage. If not, write “no.”
lxxxvii. Write your name and address.
lxxxviii. Write the name and address of the respondents.
lxxxix. If you have previously brought an Article 78 proceeding that is related to the Article
78 proceeding you are currently bringing, write the title, index number, court and nature of
relationship of that proceeding.
xc. Write the date.
xci. Leave this box empty. Do not write in a number.
xcii. Write the name of your action.
xciii. Write your name and address.
xciv. Write the name and address of the respondent.
xcv. Write the name of the county in which you are bringing the action.
xcvi. Write your name as the petitioner.
xcvii. Write the name and official title of the respondent or respondents.
xcviii. Leave this blank. Do not write a number.
xcix. Name of the county the court is in, in capital letters.
c. Your name in capital letters.
ci. Leave blank.
cii. Name, in all capital letters, of the officer or agency whose determination you are attacking (the
ciii. Your name.
civ. Name and address of your correctional facility.
cv. Include this part of the sentence if you would like to request that a lawyer represent you.
cvi. This is where the notary public notarizes the affidavit by signing it and fixing his or her official
seal to it. If you have difficulty obtaining the services of a notary public, you should have another
prisoner witness your signature. (Use this technique only as a last resort.) If another prisoner is your
witness, you should add at the bottom of the affidavit:
I declare that I have not been able to have this [affidavit] notarized
according to law because [explain here your efforts to get the affidavit
notarized]. I therefore declare under penalty of perjury that all of the
statements made in this [affidavit] are true to my own knowledge,
and I pray leave of the Court to allow this [affidavit] to be filed
without notarization.
[Your signature].
cvii. Your name.
cviii. Your inmate number.
cix. Your signature. By signing this section, you give permission for your facility to send the Court
copies of your trust fund account statement. You also authorize the facility to withdraw the filing fee
from your account and to send it to the Court. The entire filing fee will be withdrawn automatically
from your account even if your case is dismissed.
Manual
Chapter 23:
Your Right to Adequate
Medical Care

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 23
YOUR RIGHT TO ADEQUATE MEDICAL CARE*

A. Introduction
The U.S. Constitution requires prison officials to provide all state and federal prisoners
and pretrial detainees (people in prison waiting for trial) with adequate medical care.1 If you
think your right to medical care might have been violated, this Chapter will help you
determine whether you have a legal claim for which you can get relief.
Part B of this Chapter explains your right to medical care under the federal Constitution
and state law. Part C gives specific examples of health care categories for which you might
have rights to medical care (diagnosed conditions, elective procedures, psychiatric care,
exposure to second-hand smoke, and dental care). Part D is about special medical issues for
women prisoners, including the right to basic medical and gynecological care, abortions, and
accommodations for pregnant women. Part E talks about your right to receive information
about your medical treatment before being treated and your right to keep your medical
information confidential in prison. Part F explains the possible ways to seek relief in state
and federal courts if your rights have been violated.
This Chapter will focus on federal law and some New York State laws. If you are a state
prisoner, your right to adequate medical care might also be protected by your state’s
statutes, regulations, and tort law. 2 The New York Correction Law 3 and the Official
Compilation of Codes, Rules, and Regulations of the State of New York explain the right to
adequate medical care if you are a New York State prisoner. If you are in prison in another
state, be sure to research the law in that state.
The rights of prisoners with mental illnesses, infectious diseases, or disabilities present
special issues not included in this Chapter. For more information about the rights of
prisoners with mental health concerns, see Chapter 29 of the JLM, “Special Issues for
Prisoners with Mental Illness.” For more information about the rights of prisoners with
infectious diseases (and the rights of prisoners to avoid exposure to infectious diseases), see
Chapter 26 of the JLM, “Infectious Diseases: AIDS, Hepatitis, and Tuberculosis in Prisons.”
For more information on the rights of prisoners with disabilities, see Chapter 28 of the JLM,
“Rights of Prisoners with Disabilities.”
It is important that you speak up about any medical issue that you might have. If you
end up going to court to pursue your right to adequate medical care, a judge will ask for
evidence that you tried to obtain medical care through various channels within the prison
first. To prove a claim of exhaustion (meaning that you tried administrative remedies before
* This Chapter was revised by Priya Cariappa, based in part on previous versions by Erin LaFarge,
Leah Threatte, Helen Respass, Pamela Addison, Susan Kraham, Gail Huggins, Erik Moulding-
Johnson, Emmanuella Souffrant, and Richard F. Storrow. This Chapter was generally informed by
John Boston’s very helpful “Overview of Prisoners’ Rights” (Updated for Second Circuit, Staff Attorneys
Orientation, September 26, 2006). Special thanks to Milton Zelermyer of the Prisoners’ Rights Project
of the Legal Aid Society for his helpful comments.
1. See Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291, 293 (1926) (“It is but just that the
public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care
for himself.”).
2. As a state prisoner, you may bring a suit under either state law or federal law. See Part F(1) of
this Chapter for a discussion of your options.
3. N.Y. Correct. Law § 45(3) (McKinney 2003 & Supp. 2006) (detailing the responsibilities of the
Commission of Corrections, including the duty to “visit, inspect and appraise the management of
correctional facilities with specific attention to matters such as safety, security, health of inmates,
sanitary conditions” and other things that affect a prisoner’s well-being).
going to court) you must pursue the grievance procedure of the prison system. If you bring a
claim of deliberate indifference, recording any requests for care or complaints made to guards
and medical care professionals can help lay the groundwork for your claim. It will allow you
to show subjective awareness by the defendants (prisons or prison guards) of your medical
problems. The requirements for proving a defendant’s personal involvement are more
complicated. Be sure to make the administration officials around you aware of your health
concerns as soon as they arise, and document any attempts made through the proper
channels to receive your desired medical care.
If, after reading this chapter, you think you are not receiving adequate medical care, you
should first try to protect your rights through the “administrative grievance procedures” that
your prison has set up for grievances (complaints). Courts are likely to dismiss your case if
you do not exhaust (use) all of the options available through your institution first.4 To learn
more about the inmate grievance procedure and exhaustion requirement, see Chapter 15 of
the JLM, “Inmate Grievance Procedures.” If you are unsuccessful or do not receive a
favorable result through the inmate grievance procedure, you can then either bring a case
under Section 1983 of Title 42 of the United States Code (42 U.S.C. § 1983), file a tort action
in state court (or in the New York Court of Claims if you are in New York), or file an Article
78 petition in state court if you are in New York. More information on all of these types of
cases can be found in Chapter 5 of the JLM, “Choosing a Court & a Lawsuit,” Chapter 14 of
the JLM, “The Prison Litigation Reform Act,” Chapter 16 of the JLM, “Using 42 U.S.C. §
1983 and 28 U.S.C. § 1331 to Obtain Relief From Violations of Federal Law,” Chapter 17 of
the JLM, “The State’s Duty to Protect You and Your Property: Tort Actions,” and Chapter 22
of the JLM, “How to Challenge Administrative Decisions Using Article 78 of the New York
Civil Practice Law and Rules.”
If you decide to pursue any claim in federal court, you MUST read Chapter 14 of the
JLM on the Prison Litigation Reform Act (“PLRA”). You should also be aware of the
consequences of filing lawsuits that are deemed frivolous or malicious under Section 1932 of
Title 28 of the United States Code (28 U.S.C. § 1932).5
B. Source of the Right to Adequate Medical Care
1. Constitutional Law
The Eighth Amendment of the Constitution protects prisoners from “cruel and unusual
punishment.”6 The U.S. Supreme Court has decided that failing to provide medical care to
prisoners violates this amendment.7 In 1976, the Court explained in Estelle v. Gamble that
4. Porter v. Nussle, 534 U.S. 516, 520, 122 S. Ct. 983, 985–86, 152 L. Ed. 2d 12, 19 (2002)
(finding all complaints about conditions and incidents in a correctional facility must first be taken
through the administrative remedy procedure available at the facility before being brought to court);
see also Booth v. Churner, 532 U.S. 731, 738–39, 121 S. Ct. 1819, 1824, 149 L. Ed. 2d 958, 965 (2001)
(finding that it is mandatory to bring civil rights claims through the correctional institution’s
administrative procedures before bringing the claim to the court); Anderson v. XYZ Corr. Health Serv.,
407 F.3d 674, 681 (4th Cir. 2005) (finding that prison officials can use as an affirmative defense the fact
that a prisoner failed to exhaust his administrative remedies). Regardless of whether your complaint is
about one incident, many incidents, or an ongoing condition, the court will not hear your complaint
before you have used the inmate grievance procedure if your prison’s grievance procedure provides a
remedy for your problem and you have not used it.
5. 28 U.S.C. § 1932 (2006) states, in part, that for any civil action brought by a prisoner, the
court may revoke earned good-time credit if the court finds that “the claim was filed for a malicious
purpose.”
6. U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.”).
7. Estelle v. Gamble, 429 U.S. 97, 104–05, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 260 (1976) (“We
therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment. This is true whether
“deliberate indifference”—purposely ignoring the “serious medical needs” of prisoners—
amounts to “cruel and unusual punishment” forbidden by the Eighth Amendment.8
In addition, the Supreme Court ruled that claims for a violation of the right to medical
care have an objective component and a subjective component. A prisoner must first prove
that the harm was “sufficiently serious” (the objective component).9 A prisoner must also
show that the prison official responsible for the harm knew and ignored “an excessive risk to
the inmate[’s] health or safety” (the subjective component). 10 Since deciding Estelle, the
courts have tried to clarify the meaning of “serious medical need” and “deliberate
indifference.”11 This Chapter explains each standard separately below.
Note that the Constitution does not guarantee comfortable prisons; prison conditions
may be “restrictive and even harsh.”12 However, the medical care you receive should meet an
acceptable standard of treatment and care in terms of modern medicine and technology and
current beliefs about human decency.13
the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison
guards in intentionally denying or delaying access to medical care or intentionally interfering with the
treatment once prescribed.”).
8. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 260 (1976) (citing
Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925, 49 L. Ed. 2d 859, 874 (1976)). In Estelle, a
prisoner injured his back during his prison work assignment. Although the medical treatments the
prisoner received showed that in his particular case the officials were not purposefully ignoring his
medical needs, evidence of “deliberate indifference” may represent “cruel and unusual punishment” in
other cases.
9. Wilson v. Seiter, 501 U.S. 294, 303–04, 111 S. Ct. 2321, 2326–27, 115 L. Ed. 2d 271, 282–83
(1991) (holding that a prisoner can bring an 8th Amendment claim by applying the deliberate
indifference standard to a condition of confinement that denies an obvious human need, such as “food,
warmth or exercise,” and proving that a prison official was deliberately indifferent to that “identifiable
human need”).
10. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811, 825 (1994).
11. The Second Circuit defined a serious medical need as “a condition of urgency, one that may
produce death, degeneration, or extreme pain.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)
(quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)). However, in Brock it
specifically rejected the notion that “only ‘extreme pain’ or a degenerative condition” meets the legal
standard since “the Eighth Amendment forbids not only deprivations of medical care that produce
physical torture and lingering death, but also less serious denials which cause or perpetuate pain.”
Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (quoting Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.
1977)). More recently, the court in dictum repeated the “death, degeneration, or extreme pain” formula.
Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005). However, the Brock holding would still seem to be
the law of the Circuit. See also Berry v. City of Muskogee, 900 F.2d 1489, 1495–96 (10th Cir. 1990)
(holding that deliberate indifference requires more than negligence, but less than intentional and
malicious infliction of injury); Anderson v. City of Atlanta, 778 F.2d 678, 686 (11th Cir. 1985) (finding
that a policy of inadequate staffing of medical personnel may raise question of deliberate indifference);
Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982) (stating that serious deficiencies in prison’s
medical care, including failure to provide the opportunity to make a sick call or to voice medical
concerns, meets the standard of deliberate indifference); Woodall v. Foti, 648 F.2d 268, 272 (5th Cir.
1981) (determining deliberate indifference by weighing seriousness of prisoner’s mental illness and
length of incarceration against availability and expense of psychiatric care).
12. Rhodes v. Chapman, 452 U.S. 337, 347–49, 101 S. Ct. 2392, 2399–400, 69 L. Ed. 2d 59, 69–70
(1981) (stating that placing two prisoners in a cell does not deprive prisoners of essential human needs
or inflict needless pain such that the 8th Amendment would be violated).
13. Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251, 259 (1976) (“Thus,
we have held repugnant to the Eighth Amendment punishments which are incompatible with ‘the
evolving standards of decency that mark the progress of a maturing society.’” (citing Trop v. Dulles, 356
U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630, 642 (1958))).
(a) The Objective Component (“Sufficiently Serious”)
To meet the objective component, you must show that you suffered a “sufficiently serious”
injury from failing to receive medical treatment and that prison officials were deliberately
indifferent to your own “serious medical need.” Courts define “serious medical need” as “one
that has been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity of a doctor’s attention.”14 To
decide if a medical need is “serious,” some, but not all, of the factors the Second Circuit
(which governs New York, Connecticut, and Vermont) looks at are
(1) whether a reasonable doctor or patient would perceive the medical need in question
as “important and worthy of comment or treatment”;
(2) whether the medical condition significantly affects daily activities; and
(3) “the existence of chronic and substantial pain.”15
The Prison Litigation Reform Act (“PLRA”) only considers harm to be sufficiently serious
if it is in the form of a physical injury.16 For example, in one case a patient with HIV was
denied his medication for several days. 17 His illness was clearly serious, but it was
determined that missing a few days of medication caused him no additional harm. However,
if the medical condition you suffer from is extremely painful, simply being left to endure the
pain without medical attention or care could be considered “sufficiently serious” harm. For
example, in Hemmings v. Gorczyk, a prisoner suffered a ruptured tendon during a basketball
game, but prison medical staff diagnosed it as a sprain and refused for two months to send
him to a specially trained doctor.18 The Second Circuit found that his condition was painful
enough to satisfy the objective portion of the “deliberate indifference” standard. The general
trend seems to be that the courts will consider injuries to be serious only if they significantly
change a prisoner’s quality of life. The Second Circuit has held that the denial of care has to
be objectively serious enough to create “a condition of urgency,” that is, a situation where
death, permanent injury, or extreme pain appears likely or has occurred.19 Other circuits
have similarly high requirements for what counts as a serious injury or denial of care.20
14. Brown v. Johnson, 387 F.3d 1344, 1350–52 (11th Cir. 2004) (holding HIV and hepatitis were
serious needs); see also Carnell v. Grimm, 872 F. Supp. 746, 755 (D. Haw. 1994) (“A ‘serious’ medical
need exists if the failure to treat the need could result in further significant injury or ‘unnecessary and
wanton infliction of pain.’” (quoting Estelle v. Gamble 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d
251, 260 (1976))), appeal dismissed in part, aff’d in part, 74 F.3d 977 (9th Cir. 1996).
15. Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). The Second Circuit defined a serious
medical need as “a condition of urgency, one that may produce death, degeneration, or extreme pain.”
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir.
1990) (Pratt, J., dissenting)). However, in Brock, the court specifically rejected the notion that “only
‘extreme pain’ or a degenerative condition” meets the legal standard, since “the Eighth Amendment
forbids not only deprivations of medical care that produce physical torture and lingering death, but also
less serious denials which cause or perpetuate pain.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003).
More recently, the court in dictum repeated the “death, degeneration, or extreme pain” formula.
Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005). However, the Brock holding would still seem to be
the law of the Circuit.
16. See Chapter 14 of the JLM for more information on the limits the PLRA imposes on your
ability to bring a lawsuit while in prison.
17. Smith v. Carpenter, 316 F.3d 178, 181 (2d Cir. 2003).
18. Hemmings v. Gorczyk, 134 F.3d 104, 109 (2d Cir. 1998).
19. See Brock v. Wright, 315 F.3d 158, 163–64 (2d Cir. 2003) (finding that failing to adequately
examine painful swollen tissue from a knife cut could constitute deliberate indifference); Williams v.
Vincent, 508 F.2d 541, 544 (2d Cir. 1974) (finding that deliberate indifference was exhibited when a
portion of a prisoner’s ear had been cut off during a fight and prison officials merely stitched a stump of
the prisoner’s ear instead of attempting to suture the severed portion back on); see also Salahuddin v.
Goord, 467 F.3d 263, 280 (2d Cir. 2006) (defining sufficiently serious as “whether ‘a reasonable doctor
or patient would find it important and worthy of comment,’ whether the condition ‘significantly affects
Recent medical care decisions have emphasized pain21 and disability when evaluating
medical need.22 Drug or alcohol withdrawal is a serious medical need.23 Transsexualism or
gender identity disorder (“GID”) has also been recognized as a serious medical need in some
cases.24 There might also be a “serious cumulative effect from the repeated denial of care” for
minor problems.25 Where medical treatment is delayed, courts look at whether the effects of
the delay or interruption—not the underlying medical condition—are objectively serious
enough to present an Eighth Amendment question.26 Whether a medical need is “serious”
should be determined on a case-by-case basis and not only by a prison’s “serious need list.”27
an individual’s daily activities,’ and whether it causes ‘chronic and substantial pain’” (quoting Chance
v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998))).
20. The Ninth Circuit held in Hunt v. Dental Dep’t, 865 F.2d 198, 200–01 (9th Cir. 1989) that
failure to put an inmate who lost his dentures on a soft food diet could be sufficient to state a claim of
deliberate medical indifference. In Weeks v. Chaboudy, 984 F.2d 185, 187 (6th Cir. 1993), the Sixth
Circuit held that refusal to admit a paraplegic prisoner into an infirmary where he could use his
wheelchair constituted deliberate indifference.
21. Numerous courts have cited pain in finding medical needs to be serious. See, e.g., Blackmore
v. Kalamazoo County, 390 F.3d 890, 899–900 (6th Cir. 2004) (holding two-day delay in treatment of
appendicitis represented a serious medical condition even though the appendix did not rupture); Spruill
v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (holding a back condition causing pain so serious it caused
prisoner to fall down sufficiently pleaded a serious need); Farrow v. West, 320 F.3d 1235, 1244–45 (11th
Cir. 2003) (holding that pain, bleeding, and swollen gums of a prisoner who needed dentures helped
show serious medical need); Boretti v. Wiscomb, 930 F.2d 1150, 1154–55 (6th Cir. 1991) (holding
needless pain that does not lead to permanent injury is still actionable); Moreland v. Wharton, 899 F.2d
1168, 1170 (11th Cir. 1989) (finding that an allegation of a “significant and uncomfortable health
problem” was a serious need); Johnson-El v. Schoemehl, 878 F.2d 1043, 1055 (8th Cir. 1989) (holding
that delay in medical care for a condition that is “painful in nature” is actionable).
22. Miller v. King, 384 F.3d 1248, 1261 (11th Cir. 2004) (holding that paraplegia with inability to
control passing urine is a serious medical need), vacated and superseded on other grounds, 449 F.3d
1149 (11th Cir. 2006); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (finding that loss of vision may
not be “pain” but it is “suffering”); Johnson v. Bowers, 884 F.2d 1053, 1056 (8th Cir. 1989) (determining
that prison must provide treatment when a “substantial disability” exists); Monmouth County Corr.
Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (finding that medical need is serious if it
imposes a “life-long handicap or permanent loss”).
23. Morrison v. Washington County, 700 F.2d 678, 681 (11th Cir.1983) (finding that acute
alcohol withdrawal can constitute a serious medical need); Kelley v. County of Wayne, 325 F. Supp. 2d
788, 791–92 (E.D. Mich. 2004) (determining that heroin withdrawal is a serious medical need).
24. See, e.g., Praylor v. Tex. Dep’t of Crim. Justice, 430 F.3d 1208, 1209 (5th Cir. 2005) (per
curiam) (assuming, without deciding, that transsexualism is a serious medical need); Cuoco v.
Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000) (finding that federal prison officials who were in position to
intervene to prevent denial of estrogen to a transgendered individual but instead treated her with
deliberate indifference could be liable for due process violations). Note, however, that courts differ over
the extent of prison officials’ obligations in these cases. See Praylor v. Tex. Dep’t of Crim. Justice, 430
F.3d 1208, 1209 (5th Cir. 2005) (per curiam) (determining that denial of hormone therapy was not
deliberate indifference under the circumstances); De’Lonta v. Angelone, 330 F.3d 630, 635 (4th Cir.
2003) (finding prisoner with GID was entitled to treatment for compulsion to self-mutilate after her
hormone treatment was stopped); Maggert v. Hanks, 131 F.3d 670, 671–72 (7th Cir. 1997) (stating in
dictum that prison officials need not provide hormonal and surgical procedures to “cure” GID); Kosilek
v. Maloney, 221 F. Supp. 2d 156, 193 (D. Mass. 2002) (finding that a blanket policy against beginning
hormone therapy while in prison is unconstitutional and that treatment decisions must instead be
based on an “individualized medical evaluation”).
25. Jones v. Evans, 544 F. Supp. 769, 775 n.4 (N.D. Ga. 1982) (finding that confiscating a
prisoner’s medically prescribed back brace might have serious enough effects to constitute an 8th
Amendment violation).
26. Kikumura v. Osagie, 461 F.3d 1269, 1292, 1295–96 (10th Cir. 2006) (holding delay must be
shown to have caused “substantial harm,” including pain suffered while awaiting treatment); Spann v.
Roper, 453 F.3d 1007, 1008–09 (8th Cir. 2006) (holding a jury could find a three-hour delay in
addressing a medication overdose was objectively sufficiently serious).
27. Martin v. DeBruyn, 880 F. Supp. 610, 614 (N.D. Ind. 1995) (holding that because “[c]ourts
Prisons are not allowed to have a rigid list of serious medical needs without allowing some
flexibility in individual prisoner evaluations.28 In addition, a treatment considered “elective”
by a hospital or prison may still be a “serious medical need.”29
(b) The Subjective Component (“Knew of and Disregarded a Risk”)
In addition to proving that an injury is sufficiently serious, a prisoner bringing an Eighth
Amendment medical claim must also prove that prison officials purposely allowed him to go
without necessary help. While an x-ray can prove objectively that your leg was broken, what
happened in the official’s head when deciding what to do about your leg (in other words, his
subjective state of mind) is impossible for a court to know for sure. This Subsection tries to
explain the subjective standard and give examples that may help you form an idea of the
types of situations that have and have not been found to meet this standard.
As the Court held in Farmer v. Brennan, an official cannot be found liable for an Eighth
Amendment violation unless two things happen. First, the official has to know the facts that
could have shown or proven that a prisoner’s health was in danger. Second, after the official
is aware of the threat to a prisoner’s health, the official must actually believe that the
prisoner’s health is in danger.30 Since Farmer v. Brennan, courts have struggled to determine
exactly how much knowledge a prison official must have in order to meet the standard. In
general, the standard is very high, as you will see from the cases mentioned in this
Subsection.
2. Courts Defer to Prison Health Official’s Medical Judgment
It can be difficult to win a deliberate indifference medical care claim when the prisoner
and the prison officials have different opinions over what medical treatment is best for the
prisoner. For example, a prison doctor might give a prisoner X medication for his medical
condition, but the prisoner believes Y medication is better. As long as both X and Y
medications are approved for treating the prisoner’s disease, the prisoner will probably not
win in court because the court will defer to the doctor’s professional medical judgment that X
was best for the prisoner.
A difference in opinion over medical treatment, or even an error in medical judgment, is
not likely actionable.31 But that does not mean that you can never challenge a prison doctor’s
decisions; “a medical professional’s erroneous treatment decision can lead to deliberate
indifference liability if the decision was made in the absence of professional judgment.”32 The
prison health official must actually use legitimate medical judgment.
determine what constitutes a serious medical need on a case-by-case basis,” prisoner’s ulcers were
“serious” even though prison directive did not include ulcers in a list of serious medical needs).
28. Martin v. DeBruyn, 880 F.Supp. 610, 616 (N.D. Ind. 1995) (finding that it was a “problem …
that … the [prison] appears to have established an inelastic list of conditions which it considers ‘serious
medical needs,’ while the definition of such a need is necessarily elastic”).
29. Johnson v. Bowers, 884 F.2d 1053, 1056 (8th Cir. 1989) (holding that a hospital’s “gratuitous
classification” of a surgery as “elective” does not remove prison’s duty “to promptly provide necessary
medical treatment”).
(“[T]he official must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.”).
31. See Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir. 1999) (holding that physician's failure to
discover ulcer earlier, to read nurses' notes indicating inmate's incontinence or mobility problems, and
to follow-up to ensure that his orders were carried out were at most negligence, not deliberate
indifference); Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999) (upholding denial of
protease inhibitor since other appropriate treatment for HIV-positive prisoner was provided).
32. Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006); see also Greeno v. Daley, 414 F.3d
645, 654 (7th Cir. 2005) (finding that medical staff’s “obdurate refusal” to change prisoner’s treatment
despite his reports that his medication was not working and his condition was worsening could
Under the deliberate indifference standard, courts defer to the prison health official’s
medical judgment regarding treatment for the particular patient. Prison officials may rely
upon their own medical authorities instead of the prisoner’s civilian physician.33 While a
general prison medical policy might be fine for most prisoners, forcing some prisoners to
follow that medical policy might constitute deliberate indifference to those particular
prisoners’ medical conditions. For example, the Second Circuit recently held that a statewide
prison medical policy that denied Hepatitis C treatment to prisoners with any substance
abuse problems within the past two years might lead to deliberate indifference if applied to a
particular prisoner. The prison followed the policy despite “the unanimous, express, and
repeated recommendations of plaintiff’s treating physicians, including prison physicians,” to
depart from the policy in the plaintiff’s case.34
3. Common Types of Deliberate Indifference
Listed below are some common situations in which courts have found prison medical
staff to be deliberately indifferent, and not just exercising differences of professional opinion.
They include
(1) Ignoring obvious conditions;
(2) Failing to provide treatment for diagnosed conditions;
(3) Failing to investigate enough to make an informed judgment;
(4) Delaying treatment;
(5) Interfering with access to treatment;
(6) Making medical decisions based on non-medical factors; and
(7) Making a “medical” judgment so bad it’s not medical.
(a) Ignoring Obvious Conditions
A prisoner can meet the subjective standard if he proves that a prison official should
have been aware of a serious and substantial risk to his health because the problem was so
obvious. Even if the guard did not notice the risk (injury, disease, physical condition, etc.),
the officer can be held liable if the risk to the prisoner was very obvious. Thus, in Brice v.
Virginia Beach Correction Center, the court found a prison guard may have ignored a serious
and substantial risk (and thus may have been deliberately indifferent) when a prisoner
received no medical care after a fight, even though the prisoner’s mouth was bleeding and he
complained of horrible pain.35 In Phelps v. Kapnolas, the court said that a prison official
disregarded an obvious risk by putting a prisoner in solitary confinement with little food
when the official should have known such a small amount would cause pain and distress.36
In Phillips v. Roane County, Tenn., the Sixth Circuit ruled that correctional officers at
the Roane County Jail, as well as a doctor and paramedic who worked at the facility, were
constitute deliberate indifference); McElligott v. Foley, 182 F.3d 1248, 1256–57 (11th Cir. 1999) (finding
that failure to inquire further into and treat severe pain, along with repeated delays in seeing the
patient, could be deliberate indifference); Hunt v. Uphoff, 199 F.3d 1220, 1223–24 (10th Cir. 1999)
(finding allegations that one doctor denied insulin prescribed by another doctor and that medically
recommended procedures were not performed are more than differences of medical opinion).
33. Vaughan v. Lacey, 49 F.3d 1344, 1345–46 (8th Cir. 1995) (holding that prison authorities can
rely on their own physicians rather than the prisoner’s civilian treating physician as long as it involves
a difference of medical opinion).
34. Johnson v. Wright, 412 F.3d 398, 406 (2d Cir. 2005). The prisoner had had a single urine
scan that was positive for marijuana during the relevant two-year period. The court extended the
holding “that a deliberate indifference claim can lie where prison officials deliberately ignore the
medical recommendations of a prisoner’s treating physicians.” Johnson v. Wright, 412 F.3d 398, 404 (2d
Cir. 2005) (citing Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987)).
35. Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 103–05 (4th Cir. 1995).
36. Phelps v. Kapnolas, 308 F.3d 180, 186–87 (2d Cir. 2002).
liable for the death of a female prisoner. Medical examiners testified that the prisoner died
from untreated diabetes. According to the court, prison authorities were aware of her
deteriorating condition during the two weeks before her death, as she complained of
vomiting, chest pain, fatigue, nausea, and constipation. Their failure to take her to a hospital
was considered “deliberate indifference” to her medical needs.37
The risk to the prisoner must be very obvious because courts frequently find that the
prison official is not liable when he did not have sufficient knowledge of a prisoner’s
condition. In Reeves v. Collins, prison guards were not liable when they forced a prisoner to
work, even after he warned them he had a previous back injury, was doubled over, and
complained of excessive pain.38 He was later taken to the infirmary and diagnosed with a
double hernia. The court decided that the guards had not disregarded a substantial risk
because even if the guards had checked the prisoner’s medical records, which they did not,
the records did not include a history of hernias (due to a mistake in the records).
In Sanderfer v. Nichols, a prison doctor was not liable for her failure to treat a patient’s
hypertension, causing him to have a fatal heart attack.39 Although the plaintiff’s medical
records included a history of hypertension, the doctor was not liable because the plaintiff
complained only of bronchitis when he met with the doctor. The prisoner never told the
doctor that hypertension was a problem for him, and his blood pressure later was checked on
three occasions and was normal. This means that it is very important that you speak up and
tell prison officials about your health problems.
(b) Failure to Provide Treatment for Diagnosed Conditions
The easiest way to meet the subjective standard is to offer proof that a prison doctor
diagnosed you with a serious medical condition and prescribed treatment for you, but you
never received that treatment. In Hudson v. McHugh, the prisoner was transferred from a
halfway house to a county jail but was not given his medicine.40 After eleven days without it,
despite repeated requests to the jail’s medical personnel, he had a seizure. The Seventh
Circuit held that this was the most obvious kind of case in which a prisoner could raise a
claim: “[T]his is the prototypical case of deliberate indifference, an inmate with a potentially
serious problem repeatedly requesting medical aid, receiving none, and then suffering a
serious injury.”41 It is important to note that not only was the prisoner denied his medicine,
but he also requested it several times before he became dangerously ill. If you are making an
inadequate medical care claim, you should tell the court about your requests for medical
treatment to show that officials knew of your needs.
(c) Failing to Investigate Enough to Make an Informed Judgment
Courts are more likely to respect the opinions of prison medical staff who have made
“informed” medical judgments or decisions. But, the court may find an informed judgment
was not made, allowing for an Eighth Amendment claim.42 A judgment may not be informed
37. Phillips v. Roane County, Tenn., 534 F.3d 531, 539–40 (2008).
38. Reeves v. Collins, 27 F.3d 174, 176–77 (5th Cir. 1994).
39. Sanderfer v. Nichols, 62 F.3d 151, 155 (6th Cir. 1995) (finding that even though the doctor
probably should have checked the prisoner’s medical records, her failure to do so was at most
negligence, not deliberate indifference).
40. Hudson v. McHugh, 148 F.3d 859, 861 (7th Cir. 1998).
41. Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998); see also Erickson v. Pardus, 127 S. Ct.
2197, 2199, 167 L. Ed. 2d 1081, 1084 (2007) (holding relief can be sought for wrongful refusal to treat
prisoner’s hepatitis C).
42. Tillery v. Owens, 719 F. Supp. 1256, 1308 (W.D. Pa. 1989) aff’d, 907 F.2d 418 (3d Cir. 1990)
(holding that if an informed judgment has not been made, the court may find an 8th Amendment
claim). The 8th Amendment protects you from cruel and unusual punishment. U.S. Const. amend. VIII
(“[N]or [shall] cruel and unusual punishments [be] inflicted.”).
if, in response to a prisoner complaining of a medical problem, prison officials do not properly
treat the prisoner, 43 investigate the cause of the prisoner’s medical condition, 44 order
diagnostic tests,45 send the prisoner to a specialist,46 or consult the prisoner’s medical records
before stopping medication. 47 An “uninformed” decision may be found to be “deliberately
indifferent.”
(d) Delay in Treatment
The subjective standard can be met by proving that a delay of treatment caused serious
consequences. Delay in treatment is sometimes an issue of professional opinion—your
medical problem is not so serious that you need to see a doctor immediately—but some
delays are very serious and may prove deliberate indifference. If you are suffering from an
injury that prison officials know about, but you have to wait a very long time before getting
medical treatment, you may be able to bring a claim. You will have to allege that the prison
officials knew of, and ignored, a serious risk to your health. In particular, denial of or delay
in access to medical personnel, 48 or in their providing treatment, 49 can be deliberate
indifference. In determining whether or not a delay constitutes deliberate indifference, two
factors are taken into account:
(1) the seriousness of the prisoner’s medical need;50 and
43. McElligott v. Foley, 182 F.3d 1248, 1252, 1256–57 (11th Cir. 1999) (finding that failure to
inquire about and treat plaintiff’s severe pain, and repeated delays in doctor’s seeing the patient, could
be deliberate indifference).
44. Liscio v. Warren, 901 F.2d 274, 276–77 (2d Cir. 1990) (finding deliberate indifference where
doctor failed to inquire into the cause of a detainee’s delirium that continued over the course of three
days and thus failed to diagnose alcohol withdrawal).
45 . See Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (finding that doctor could be
deliberately indifferent for refusing to send prisoner to a specialist or order an endoscopy despite the
prisoner’s complaints of severe pain and that doctor could not rely on lack of “objective evidence” since
often there is no objective evidence of pain); Miltier v. Beorn, 896 F.2d 848, 853 (4th Cir. 1990) (finding
deliberate indifference where doctor failed to perform tests for cardiac disease in patient with
symptoms that called for such tests).
46. See Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (finding that a doctor could be
deliberately indifferent for refusing to send a prisoner to a specialist or to order an endoscopy despite
the prisoner’s complaints of severe pain, and noting that the doctor could not rely on lack of “objective
evidence” since often there is no objective evidence of pain).
47. See Steele v. Shah, 87 F.3d 1266, 1270 (11th Cir. 1996) (denying summary judgment to
prison doctor who discontinued psychiatric medication for a prisoner the doctor knew was at risk for
suicide based on a cursory interview without reviewing medical records).
48. See Estate of Carter v. City of Detroit, 408 F.3d 305, 310, 312–13 (6th Cir. 2005) (finding that
official who knew prisoner was exhibiting “the classic symptoms of a heart attack” and did not arrange
transportation to a hospital could be found deliberately indifferent); Johnson v. Karnes, 398 F.3d 868,
875–76 (6th Cir. 2005) (finding that prison doctor’s failure to schedule surgery for severed tendons
despite emergency room instruction to return prisoner in three to seven days could constitute
deliberate indifference); McElligott v. Foley, 182 F.3d 1248, 1256–57 (11th Cir. 1999) (finding that
repeated delays in doctor’s seeing a patient with constant severe pain could constitute deliberate
indifference); Murphy v. Walker, 51 F.3d 714, 719 (7th Cir. 1995) (holding that a two-month failure to
get prisoner with head injury to a doctor stated a claim); Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir.
2003) (holding that delay of provision of HIV medicine to an HIV-positive prisoner could state an 8th
Amendment claim).
49. Spann v. Roper, 453 F.3d 1007, 1008–09 (8th Cir. 2006) (finding that a nurse could be
deliberately indifferent for leaving a prisoner in his cell for three hours although she knew he had
taken an overdose of mental health medications intended for another); McKenna v. Wright, 386 F.3d
432, 437 (2d Cir. 2004) (holding an extended delay in starting Hepatitis C treatment constituted a valid
claim).
50. See Kikumura v. Osagie, 461 F.3d 1269, 1292 (10th Cir. 2006) (explaining delay must be
shown to have caused “substantial harm,” including pain suffered while awaiting treatment); Weyant v.
State, 101 F.3d 845, 856–57 (2d Cir. 1996) (finding delay of hours in getting medical attention for a
(2) whether the delay was objectively serious enough to present an Eighth Amendment
question.51
Remember that a valid reason for having to wait for non-emergency medical treatment
might exist. For example, if no prison official who can properly take care of your non-
emergency medical needs is on duty, waiting until a properly trained person can come to
examine and treat you is probably best.
Security concerns may also justify denying your request for a particular medical
treatment. For instance, in Schmidt v. Odell, the court rejected the plaintiff’s claim that
failure to provide him with a wheelchair was a constitutional violation. The court found that
having a wheelchair among the jail’s population could pose a legitimate security risk. The
court concluded that this was sufficient to show that the refusal to provide a wheelchair did
not alone violate the Eighth Amendment. However, the court noted that the prison’s delay in
providing a shower chair “appears to have resulted not only in the unnecessary infliction of
pain, but also in needless indignity that a jury could find was inconsistent with the Eighth
Amendment.”52
Even when there is no apparent reason for delay in treatment, a court might not find
that officials acted with deliberate indifference if the delay does not cause a great deal of
harm. In Smith v. Carpenter, the court said that it was proper for a jury to consider the fact
that a prisoner did not suffer any bad effects after officials refused to give him treatment for
his HIV-related illness for periods of five and seven days; the jury found no deliberate
indifference.53 In Jolly v. Badgett, the prisoner had epilepsy, a condition that causes seizures
and high blood pressure. He took medication to prevent the life-threatening consequences of
this disease, but officials refused to allow the prisoner to leave his cell to get water to take
his medication until two hours after his prescribed time. The court found that officials did
not act with deliberate indifference without evidence that the officials knew the delay would
have a dangerous effect.54
In general, if there is a legitimate reason for a delay in your treatment, or if you cannot
prove officials knew that treatment needed to be given to you immediately, you will have a
hard time meeting the subjective standard that a prison official knew of and ignored a
substantial risk to your health.
(e) Interference with Access to Treatment
You can also meet the subjective standard of deliberate indifference by showing that
prison officials interfered with your ability to obtain treatment. Prison guards and/or prison
medical staff can prevent prisoners from accessing treatment in many different ways,
including:
(1) Denying you access to medical specialists who are qualified to address your health
problem;55
diabetic in insulin shock could be deliberate indifference).

51. Spann v. Roper, 453 F.3d 1007, 1008–09 (8th Cir. 2006) (finding that a jury could find a
three-hour delay in addressing a medication overdose was objectively sufficiently serious). But see
Smith v. Carpenter, 316 F.3d 178, 186–89 (2d Cir. 2003) (determining that brief interruptions of HIV
medications, with no discernible adverse effects, did not present serious medical needs).
52. Schmidt v. Odell, 64 F. Supp. 2d 1014, 1029–1031 (D. Kan. 1999); see also Vines v. Buchler,
decision reported at 101 F.3d 110, 110 (7th Cir. 1996), opinion reported in full at No. 96-1677, 1996 U.S.
App. LEXIS 28693, at *3–5 (7th Cir. Oct. 31, 1996) (explaining that a prisoner who was denied his back
brace for seven weeks and required to perform work on a sod-laying crew did not show that prison
officials were deliberately indifferent to his medical condition because the back brace was prohibited for
security reasons and the prisoner received ongoing medical treatment for his back condition).
53. Smith v. Carpenter, 316 F.3d 178, 185–89 (2d Cir. 2003).
54. Jolly v. Badgett, 144 F.3d 573, 573 (8th Cir. 1998).
55. Mata v. Saiz, 427 F.3d 745, 756–59 (10th Cir. 2005) (finding nurse’s failure to perform
(2) Allowing you to see a specialist but then refusing to carry out the specialist’s
recommendations (or those of a specialist who directed treatment before the prisoner
was incarcerated);56 or
(3) Refusing to carry out or simply ignoring medical orders.57
For example, in Brown v. Coleman, the court found deliberate indifference because
although the prison medical staff repeatedly recommended surgery for a prisoner, officials
with no medical training ignored the recommendations.58 In Martinez v. Mancusi, the court
found that the prisoner could bring a claim against prison officials who had used force to
remove him from a hospital where he was recovering from leg surgery.59 Prison officials
ignored the doctor’s instructions that the prisoner could not walk and removed the prisoner,
who was partially paralyzed, without the doctor’s permission. This caused the surgery to be
unsuccessful. The prisoner was also denied the pain medication his surgeon prescribed him
and thus was left in constant pain. In Woodall v. Foti, a prisoner with suicidal tendencies
had received treatment for manic depression before being incarcerated. 60 The prisoner’s
diagnosis was confirmed by the prison doctor. The prisoner claimed his condition worsened
when he was denied treatment by the sheriff, who placed him in solitary confinement. On
appeal, the court found that if these facts were true, the sheriff’s actions could meet the
subjective standard because of an interference with access to treatment.
Refusing to treat a prisoner unless the prisoner complies with an official’s order can be
considered deliberate indifference. In Harrison v. Barkley, a prison dentist refused to fix the
prisoner’s cavity unless the prisoner allowed the dentist to pull another one of the prisoner’s
teeth because the policy of the prison was to pull teeth that were in such poor condition.
“gatekeeper” role by referring patient to a practitioner for symptoms of cardiac emergency could be
deliberate indifference); Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (finding refusal to refer
prisoner to a specialist or order an endoscopy for two years despite intense abdominal pain could be
deliberate indifference); Hartsfield v. Colburn, 371 F.3d 454, 457–58 (8th Cir. 2004) (holding that six
weeks’ delay in sending prisoner to a dentist that resulted in infection and loss of teeth raised an 8th
Amendment claim); LeMarbe v. Wisneski, 266 F.3d 429, 440 (6th Cir. 2001) (determining that failure to
make timely referral to a specialist or tell the patient to seek one out was deliberate indifference);
Mandel v. Doe, 888 F.2d 783, 789–95 (11th Cir. 1989) (affirming an award of damages where
physician’s assistant failed to diagnose a broken hip, refused to order an x-ray, and prevented the
prisoner from seeing a doctor).
56. See Gil v. Reed, 381 F.3d 649, 664 (7th Cir. 2004) (“[P]rescribing on three occasions the very
medication the specialist warned against … while simultaneously cancelling the two of the three
prescribed laxatives gives rise to a genuine issue of material fact about [the prison doctor’s] state of
mind.”); Miller v. Schoenen, 75 F.3d 1305, 1311 (8th Cir. 1996) (finding that not providing medical care
that an outside doctor and outside hospitals said was needed supported a deliberate indifference claim);
Starbeck v. Linn County Jail, 871 F. Supp. 1129, 1145–47 (N.D. Iowa 1994) (explaining that when
outside doctors had recommended surgery, prison officials who failed to provide the surgery must
present evidence why they did not follow the outside doctors’ recommendations).
57. Estelle v. Gamble, 429 U.S. 97, 104–05, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 260–61 (1976)
(holding that “intentionally interfering with the treatment once prescribed” can constitute an 8th
Amendment claim); see Lawson v. Dallas County, 286 F.3d 257, 263 (5th Cir. 2002) (affirming disregard
for follow-up care instructions for paraplegic could be deliberate indifference); Koehl v. Dalsheim, 85
F.3d 86, 88 (2d Cir. 1996) (holding denial of prescription eyeglasses enough to allege deliberate
indifference); Erickson v. Holloway, 77 F.3d 1078, 1080–81 (8th Cir. 1996) (finding officer’s refusal of
emergency room doctor’s request to admit the prisoner and take x-rays could show deliberate
indifference); Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (finding nurse’s failure to
perform prescribed dressing change raises “a genuine issue” for trial); McCorkle v. Walker, 871 F.
Supp. 555, 558 (N.D.N.Y. 1995) (finding the allegation that prison officials failed to obey a medical
order to house asthmatic prisoner on a lower tier was sufficient to state a claim).
58. Brown v. Coleman, decision reported at 60 F.3d 837, 837 (10th Cir. 1995), opinion reported in
full at No. 94-7183, 1995 U.S. App. LEXIS 16928, at *4–5 (10th Cir. Jul. 12, 1995) (unpublished).
59. Martinez v. Mancusi, 443 F.2d 921, 924 (2d Cir. 1970).
60. Woodall v. Foti, 648 F.2d 268, 271 (5th Cir. 1981).
Although the tooth was rotten, the prisoner did not want it removed because it was not
painful and he only had a few teeth left.61 The court said that in a situation like this one, the
dentist’s actions constituted deliberate indifference. Similarly, in Benter v. Peck, a district
court in Iowa found that doctors treating prisoners have a responsibility to provide the
medical care that they need. 62 In that case, the doctor allowed the prison to withhold
eyeglasses from a prisoner who could not function without them in order to force him to pay
for the glasses. The court held that withholding the prescription glasses from the prisoner
rose to the standard of deliberate indifference.
(f) Making Medical Decisions Based on Non-Medical Factors
If the prison health staff is making medical decisions about you based on non-medical
factors, you may be able to claim deliberate indifference.63 Prisons should not decide what
medical treatment you get based on factors like their own lack of staff64 or interpreters,65 the
prison’s budgetary restrictions, 66 because you are about to be released, 67 or because they
want to punish you.68 In particular, “systemic deficiencies in staffing, facilities, or procedures
[which] make unnecessary suffering inevitable” may support a finding of deliberate
indifference.69 In other words, problems that are universal and part of the prison system (its
staffing, facilities, or policies that cause suffering) can still be causes of actions even though
you are not the only one hurt. Interestingly, a San Francisco judge refused to send a
convicted robber to jail citing the poor medical care the man would receive and equating a
prison sentence to a death sentence.70 This was an unusual situation, however, but the case
law may help you develop a claim about systemic deficiencies.
61. Harrison v. Barkley, 219 F.3d 132, 138 (2d Cir. 2000).
62. Benter v. Peck, 825 F. Supp. 1411, 1417 (S.D. Iowa 1993).
63. See Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004) (withholding a dental referral for
prisoner’s behavioral problems could be deliberate indifference); Ancata v. Prison Health Servs., Inc.,
769 F.2d 700, 704 (11th Cir. 1985) (finding prison’s refusal to provide specialty consultations without a
court order was deliberate indifference).
64. Casey v. Lewis, 834 F. Supp. 1477, 1547–48 (D. Ariz. 1993) (finding that withholding
treatment for lack of staff might be deliberate indifference if it results in substantial harm).
65. Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995) (explaining that failure to
provide a translator for medical encounters can constitute deliberate indifference).
66. Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) (holding that budgetary restrictions could
not justify deliberate indifference to a prisoner’s serious medical needs); Starbeck v. Linn County Jail,
871 F. Supp. 1129, 1146 (N.D. Iowa 1994) (determining that evidence that surgery recommended by
outside doctors was not performed because the county did not want to pay for it could establish
deliberate indifference).
67. McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004) (holding that allegation that prisoner
was “denied urgently needed treatment for a serious disease because he might be released within
twelve months of starting the treatment” stated a deliberate indifference claim).
68. Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004) (finding that withholding of a dental
referral for prisoner’s behavioral problems raised a factual issue as to deliberate indifference).
69. Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977) (citing Bishop v. Stoneman, 508 F.2d 1224,
1226 (2d Cir. 1974)); see also Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (“In institutional
level challenges to prison health care … systemic deficiencies can provide the basis for a finding of
deliberate indifference.”); DeGidio v. Pung, 920 F.2d 525, 529 (8th Cir. 1990) (holding that lack of
“adequate organization and control in the administration of health services” could constitute an 8th
Amendment violation); see also Marcotte v. Monroe Corr. Complex, 394 F. Supp. 2d 1289, 1298 (W.D.
Wash. 2005) (explaining that failure to remedy known deficient infirmary nursing procedures and other
health department citations was deliberate indifference).
70. Andy Furillo, Ill. Man’s Prison Term Blocked, S.F. Judge Cites Findings of Poor Medical
Care, Says Move from Local Jail Could Equal a Death Sentence, Sacramento Bee, Mar. 20, 2007, at A3.
(g) “Medical” Judgment So Bad It’s Not Medical
You also can claim deliberate indifference if you believe your prison’s health staff is
making medical decisions that are so incompetent or inadequate that no trained health
professional would ever make that decision. For example, in 2004, a California court granted
a preliminary injunction ordering a prison to provide immediate medical treatment to a
prisoner and to arrange for a medical evaluation of the prisoner’s eligibility for a liver
transplant. Prison officials had refused to allow the evaluation, and the prisoner would die
without a transplant. The court held the prisoner might win his deliberate indifference claim
because the prison offered no alternative treatment that would save the prisoner’s life.71 The
court noted that:
In order to prevail on a claim involving choices between alternative
courses of treatment, a prisoner must show that the course of
treatment the doctors chose was medically unacceptable in light of the
circumstances and that they chose this course in conscious disregard
of an excessive risk to plaintiff’s health.72
A “medically unacceptable” treatment may be “an easier and less efficacious treatment”73
or simply no treatment at all. Showing that prison health staff failed to follow professional
medical standards or prison medical care procedures can help you make this deliberate
indifference claim. These standards or protocols can serve as evidence that the prison official
knew of the risk posed by particular symptoms or conditions and deliberately ignored that
risk.74
4. Medical Negligence
(a) Medical Negligence Is Not Unconstitutional
You cannot win a federal constitutional claim of deliberate indifference by alleging only
that prison medical staff acted negligently, no matter how often or repeatedly they were
negligent. (However, you still may be able to make a state tort claim of negligence, which is
described in the next Subsection.) “Negligence” is when you fail to exercise care to protect
someone at risk in a situation in which a “reasonable person” would exercise care.75 Medical
negligence is often called “medical malpractice.” Again, “the Eighth Amendment does not
protect prisoners from medical malpractice.”76
71. Rosado v. Alameida, 349 F. Supp. 2d 1340, 1346 (S.D. Cal. 2004).
72. Rosado v. Alameida, 349 F. Supp. 2d 1340, 1344–45 (S.D. Cal. 2004) (emphasis added).
73. Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974) (refusing prisoner’s request to reattach
his ear and instead only sewing up the stump constitutes indifference); see also McElligott v. Foley, 182
F.3d 1248, 1256–57 (11th Cir. 1999) (determining that medical staff’s failure to examine and treat
patient’s severe pain, and repeated delays in doctor’s seeing the patient, could support a finding of
74. Mata v. Saiz, 427 F.3d 745, 757–58 (10th Cir. 2005) (explaining that violation of prison
medical protocols was circumstantial evidence that the nurse “knew of a substantial risk of serious
harm”).
75. See Black’s Law Dictionary 1061 (8th ed. 2004) (defining negligence as the “[t]he failure to
exercise the standard of care that a reasonably prudent person would have exercised in a similar
situation”).
76. Rosado v. Alameida, 349 F. Supp. 2d 1340, 1344–45 (S.D. Cal. 2004) (emphasis added). This
proposition was suggested earlier by Estelle v. Gamble, 429 U.S. 97, 105–06, 97 S. Ct. 285, 290–91, 50
L. Ed. 2d 251, 260–61 (1976). But note that a finding of medical malpractice does not prevent a finding
of deliberate indifference. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
At one time, negligence was grounds for liability.77 After Farmer v. Brennan, however,
mere negligence—even repeated negligence—cannot by itself constitute deliberate
indifference.78 Thus, in a class action suit brought by prisoners in Ohio, the court held if the
prisoners could only prove the prison doctor was repeatedly negligent in his treatment, but
not that he was “subjectively aware of a substantial risk of serious harm,” then the prisoners
had not stated an Eighth Amendment claim.79 Even if it is possible that an official’s action
led to the death of a prisoner, negligence alone is not enough to bring a federal constitutional
claim. 80 Repeated acts of negligence can be evidence that a prison official is ignoring a
substantial risk, but acts of negligence by themselves, without any other claim, cannot count
as deliberate indifference.81
77. For example, in Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977), the court held that “while a
single instance of medical care denied or delayed, viewed in isolation, may appear to be the product of
mere negligence, repeated examples of such treatment [indicate] a deliberate indifference by prison
authorities.” There are also three post-Farmer cases finding that systemic negligence can indicate
deliberate indifference. Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (observing that in class
action suits, “deliberate indifference to inmates' health needs may be shown [either] by proving
repeated examples of negligent acts which disclose a pattern of conduct by the prison medical staff … or
by proving there are such systemic and gross deficiencies in staffing, facilities, equipment, or
procedures that the inmate population is effectively denied access to adequate medical care”); Harris v.
Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (noting that although mere “incidents of negligence or
malpractice do not rise to the level of constitutional violations … systemic deficiencies can provide the
basis for a finding of deliberate indifference”); Onishea v. Hopper, 126 F.3d 1323 (11th Cir. 1997),
vacated and reh’g en banc granted, 133 F.3d 1377 (11th Cir. 1998), aff’d, 171 F.3d 1289 (11th Cir. 1999)
(en banc); DeGidio v. Pung, 920 F.2d 525, 533 (8th Cir. 1990) (holding that a “consistent pattern of
reckless or negligent conduct” establishes deliberate indifference). See section B(3)(f), “Making Medical
Decisions Based on Non-Medical Factors.”
78. Farmer v. Brennan, 511 U.S. 825, 835–37, 114 S. Ct. 1970, 1977–79, 128 L. Ed. 2d 811, 824–
25 (1994) (holding deliberate indifference does not include negligence, even repeated acts of negligence
and to prove deliberate indifference, a prisoner must show the prison official actually knew about a
“substantial risk of serious harm”). This proposition was suggested earlier by Estelle v. Gamble, 429
U.S. 97, 105–106, 97 S. Ct. 285, 290–291, 50 L. Ed. 2d 251, 260–261 (1976).
79. Brooks v. Celeste, 39 F.3d 125, 129 (6th Cir. 1994) (making a clear distinction between the
doctor being “merely repeatedly negligent” and acting with “deliberate indifference”); see also
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (“Deliberate indifference requires more than
negligence. … [A] prison official does not act in a deliberately indifferent manner unless that official
‘knows of and disregards an excessive risk to inmate health or safety.’”).
80. Howard v. Calhoun County, 148 F. Supp. 2d 883, 889–90 (W.D. Mich. 2001) (concluding that
although it was possible that the official was negligent in the way she handled the collapse of a
prisoner who then died of a heart attack, negligence alone did not meet the standard of deliberate
indifference).
81 . Judge Posner offers an extensive discussion of the difference in Sellers v. Henman,
explaining, “It is vital to keep negligence and deliberate indifference apart. It may be ... that repeated
acts of negligence are some evidence of deliberate indifference.” Thus, “the more negligent acts [prison
officials] commit in a circumscribed interval, the likelier it is that they know they are creating some
risk, and if the negligence is sufficiently widespread relative to the prison population[,] the cumulative
risk to an individual prisoner may be excessive.” Despite this, “the presence of multiple acts of
negligence is merely evidentiary [and offers some evidence to support a claim]; it is not an alternative
theory of liability.” Sellers v. Henman, 41 F.3d 1100, 1102–03 (7th Cir. 1994); see also Brooks v.
Celeste, 39 F.3d 125, 128 (6th Cir. 1994) (“[O]ne way to prove that an official acted with deliberate
indifference is to show that he repeatedly acted in a certain manner. In such cases, the repeated acts,
viewed singly and in isolation, would appear to be mere negligence; however, viewed together and as a
pattern, the acts show … that each act was committed with deliberate indifference.”).
(b) State Law Negligence Claims Are Possible
If you believe that you were injured because prison medical staff acted negligently, you
cannot make an Eighth Amendment deliberate indifference claim, but you can make a
negligence claim under state law. To prove negligence under state law, it is first necessary to
prove that the defendant (your prison) owed a duty of care to you, and second, to prove that
this duty was “breached,” meaning that the prison was responsible for some aspect of your
well-being, and did not honor its responsibility. 82 The issue in this case is whether the
medical practitioner did what a reasonable health professional would do in the same
circumstances.
You can find many of the duties a prison owes its prisoners listed in state statutes. Thus,
a New York plaintiff could use the state corrections law to prove that New York prisons have
a duty to “provide reasonable and adequate medical care to the prisoners.”83 State case law
also provides clear definitions of what duties a prison owes its prisoners. In New York, in
order to prove a medical malpractice claim, the prisoner must prove a departure from
accepted practice and that the departure from accepted practice was the proximate cause of
the injury. To prove “proximate cause,” you must show that the injury would not have
occurred without the departure from accepted practice. The court of claims also recognizes
medical negligence as a cause of action. A state may be liable for ministerial neglect if
employees fail to comply with the prison’s own administrative procedures for providing
medical care to inmates.84 If you want to make a state tort claim of medical negligence or
medical malpractice, see Chapter 17 of the JLM, “The State’s Duty to Protect You and Your
Property: Tort Actions,” to learn how to do so. You should note there is a difference between
medical negligence and medical malpractice claims. A medical malpractice claim means a
person believes it was a medical practitioner’s fault for their injury. Medical negligence
claims means a person had a prior injury or medical problem that was not treated or was not
treated with proper care.
C. Specific Health Care Rights
This Part covers some areas for which you may have rights to medical care or treatment
and includes examples of cases that might be useful to you. If you have specific questions
about the rights of prisoners with mental illnesses or infectious diseases, make sure you also
look at Chapter 29 of the JLM, “Special Issues for Prisoners with Mental Illness,” and
Chapter 26 of the JLM, “Infectious Diseases: AIDS, Hepatitis, and Tuberculosis in Prisons.”
If you need to learn more about disability discrimination, see Chapter 28 of the JLM, “Rights
of Prisoners with Disabilities.”
1. Treatment for Diagnosed Conditions
To decide whether or not you have a claim for lack of treatment for diagnosed medical
illnesses and conditions, there are several things you must consider. As discussed above,
your claim must meet both the objective and subjective tests of “deliberate indifference.”
82. See Part B(2) of Chapter 17 of the JLM, “The State’s Duty to Protect You and Your Property:
Tort Actions,” to learn more about negligence and negligence-based torts.
83. N.Y. Correct. Law § 70(2)(c) (McKinney 2003) (stating that correctional facilities will be used
with due regard to the “health and safety of every person in the custody of the department”); N.Y.
Correct. Law § 23(2) (McKinney 2003) (permitting transfer of prisoners to outside hospital facilities for
medical care); see also Rivers v. State, 159 A.D.2d 788, 789, 552 N.Y.S.2d 189, 189 (3d Dept. 1990)
(noting that state has a duty to provide reasonable and adequate medical care to prisoners); La Rocca v.
Dalsheim, 120 Misc. 2d 697, 708, 467 N.Y.S.2d 302, 310 (Sup. Ct. Dutchess County 1983) (clarifying
that the state has a duty to “provide a safe and humane place of confinement for its inmates”).
84. Kagan v. State, 221 A.D.2d 7, 10, 646 N.Y.S.2d 336, 338 (2d Dept. 1996) (finding that the
prison’s breach of protocols governing medical standards caused plaintiff to lose her hearing and
constituted ministerial neglect).
First, you must prove that the prison official knew of and ignored the risk to you. Second, you
must prove that the medical condition was “sufficiently serious,” that is, serious enough to be
a danger to your health or well-being.
In the following examples, courts found that diagnosed medical conditions were
sufficiently serious. In Montalvo v. Koehler, the court found that a failure to provide shower
and sleeping facilities to a paraplegic prisoner confined to a wheelchair met the standard
because it posed the risk of serious bodily injury to the prisoner.85 Also, in Koehl v. Dalsheim,
the court found that prison officials were deliberately indifferent when they confiscated a
prisoner’s eyeglasses. 86 The double vision, headaches, and severe pain that the prisoner
experienced without his eyeglasses were sufficiently serious. Failure to treat a serious hip
condition requiring surgery,87 an infected and impacted wisdom tooth,88 and a hernia89 have
all been found to meet the sufficiently serious standard.
The following are examples of harm that the courts did not consider to be sufficiently
serious. In Holmes v. Fell, the court held that a prisoner’s allergic reaction to a tuberculosis
test, which caused swelling and a scar on the prisoner’s arm, did not meet the sufficiently
serious standard.90 In fact, simple exposure to tuberculosis does not meet the standard when
there is no reason to believe that the prisoner will actually catch the disease.91 In McGann v.
Coombe, the court held that prison officials were not deliberately indifferent when they
refused to provide orthopedic footwear for the arthritis and gout in a prisoner’s feet, but
instead prescribed medication for the condition that was causing the foot problems. 92 In
addition, the Eighth Amendment is not violated when prison officials refuse to treat penile
warts93 or an old injury that has healed but still causes pain.94
2. Elective Procedures
Generally, you will not be able to win on a claim that prison officials violated your Eighth
Amendment rights based on their refusal to perform an elective procedure on you. 95 An
85. Montalvo v. Koehler, No. 90 Civ.5218, 1993 U.S. Dist. LEXIS 11785, at *4 (S.D.N.Y. Aug. 24,
1993) (unpublished). Note, however, that the prisoner lost his case because he failed to meet the
subjective standard for deliberate indifference.
86. Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996).
87. Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir. 1994).
88. Boyd v. Knox, 47 F.3d 966, 968–69 (8th Cir. 1995) (explaining that not all dental work meets
the sufficiently serious standard, but in this case, prisoner’s mouth was so infected that “he could
barely open it” and “pus regularly oozed from the infection”).
89. Brown v. Coleman, decision reported at 60 F.3d 837, 837 (10th Cir. 1995), opinion reported in
full at No. 94-7183, 1995 U.S. App. LEXIS 16928, at *4–5 (10th Cir. Jul. 12, 1995) (unpublished).
90. Holmes v. Fell, 856 F. Supp. 181, 183 (S.D.N.Y. 1994).
91. McCorkle v. Walker, 871 F. Supp. 555, 558 (N.D.N.Y. 1995) (noting that prisoner “has not
suffered” and was “unlikely … to suffer, an active case of TB” because he had received preventive
medication after exposure).
92. McGann v. Coombe, decision reported at 131 F.3d 131, 131 (2d Cir. 1997), opinion reported in
full at No. 97-2139, 1997 WL 738569, at *2 (2d Cir. Nov. 21, 1997) (unpublished).
93. Stubbs v. Wilkinson, decision reported at 52 F.3d 326, 326 (6th Cir. 1995), opinion reported in
full at No. 94-3620, 1995 U.S. App. LEXIS 9471, at *6 (6th Cir. Apr. 20, 1995) (unpublished).
94. Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995) (finding that although prisoner’s
work boots hurt his ankle, his medical report identified an “Old Ankle Injury” that doctors did not
expect to produce very much pain, and x-rays proved that the bone was not broken or deformed and
therefore the injury was not sufficiently serious).
95. See Victoria W. v. Larpenter, 205 F. Supp. 2d 580, 601 (E.D. La. 2002) (holding that a “non-
therapeutic abortion sought due to financial and emotional reasons” rather than medical necessity is
not a “serious medical need” for 8th Amendment purposes); Grundy v. Norris, No. 01-1855, 2001 U.S.
App. LEXIS 23716, at *2–3 (8th Cir. Nov. 2, 2001) (per curiam) (unpublished) (holding prison officials
were not deliberately indifferent in delaying surgery for prisoner’s injured shoulder in part because
medical evidence showed the surgery was elective).
elective procedure is an optional procedure that you would benefit from but that is not
immediately necessary for your survival or relative well-being. Remember that the Supreme
Court has held the Constitution does not promise comfortable prisons and that conditions
may be “restrictive and even harsh.”96
However, prison officials may not call a necessary procedure “elective” just to avoid
having to provide it.97 Furthermore, if your condition gives you continual pain or discomfort
for a long period of time, you may be able to bring a claim that your condition is sufficiently
serious to warrant an elective procedure, even though the condition may not require
immediate attention. Lengthy delays in providing prisoners with elective surgery for certain
medical conditions can be unacceptable. 98 Courts seem to recognize that there are some
situations that, while not serious enough to be considered emergencies, are too serious to be
considered elective; but, you may have to get a court order before you are allowed to be
treated in such a situation.99
3. Exposure to Second-Hand Smoke
Prisoners have the right to be free from exposure to excessive second-hand smoke.100
Courts used to reject prisoners’ claims of cruel and unusual punishment through exposure to
environmental tobacco smoke (“ETS”) because plaintiffs had not yet suffered serious
injuries.101 However, in Helling v. McKinney, the Supreme Court rejected the argument that
“only deliberate indifference to current serious health problems of inmates is actionable
under the Eighth Amendment” by comparing forced exposure to ETS to live electrical wires
or communicable diseases. 102 The Court concluded that prison officials may violate the
Eighth Amendment prohibition against cruel and unusual punishment if they, with
deliberate indifference, expose prisoners to high levels of ETS.
To satisfy the objective component of the Eighth Amendment under Helling, you will
have to show you are exposed to ETS levels that “pose an unreasonable risk of serious
damage to [your] future health” in a way that violates contemporary standards of decency.103
96. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59, 69 (1981).
97 . Johnson v. Bowers, 884 F.2d 1053, 1056 (8th Cir. 1989) (“The hospital’s gratuitous
classification of [the prisoner’s] surgery as ‘elective’ … does not abrogate the prison’s duty, or power, to
promptly provide necessary medical treatment for prisoners.”); Baker v. Blanchette, 186 F. Supp. 2d
100, 105 n.4 (D. Conn. 2001) (stating that although prisoner could wait to have surgery, merely
classifying the surgery as elective does not abolish the prison’s duty to provide treatment for a serious
medical need); Delker v. Maass, 843 F. Supp. 1390, 1399 (D. Or. 1994) (holding that prison officials may
not simply characterize a surgery as elective in order to avoid performing the procedure).
98. See Johnson v. Bowers, 884 F.2d 1053, 1056 (8th Cir. 1989) (holding that a prisoner who had
to wait nine years for elective arm surgery had suffered a constitutional violation); West v. Keve, 541 F.
Supp. 534, 539–40 (D. Del. 1982) (finding that a 17-month delay between recommendation and
performance of elective surgery was unacceptable, but that defendants were not ultimately liable since
their actions were in good faith).
99. Victoria W. v. Larpenter, 369 F.3d 475, 485 (5th Cir. 2004) (upholding policy of requiring
prisoners to obtain a court order to receive an elective medical procedure because the policy was
“reasonably related to a legitimate penological interest”). Note this case involved seeking an abortion,
which has its own case law—see Section D(2) below.
100. Helling v. McKinney, 509 U.S. 25, 35, 113 S. Ct. 2475, 2482, 125 L. Ed. 2d 22, 33 (1993).
101. See Grant v. Coughlin, No. 91 Civ. 3433 (RWS), 1992 U.S. Dist. LEXIS 8003, at *9 (S.D.N.Y.
June 9, 1992) (unpublished) (explaining that throat and lung irritation and a risk of serious medical
harm do not meet the serious medical requirement necessary for an 8th Amendment violation).
102. Helling v. McKinney, 509 U.S. 25, 33–34, 113 S. Ct. 2475, 2480–81, 125 L. Ed. 2d 22, 31–32
(1993) (emphasis added).
(1993) (finding that a prisoner, whose cellmate smoked five packs of cigarettes a day, stated an 8th
Amendment deliberate indifference cause of action against prison officials by alleging they “exposed
him to levels of ETS that pose an unreasonable risk of serious damage to his future health”). Note that
To obtain an injunction against further ETS exposure, you do not need an actual physical
injury to show an Eighth Amendment violation.104
Note that claiming prison officials are deliberately indifferent to the risk of future harm
is different from claiming deliberate indifference to current harm.105 You can claim that ETS
exposure affects your current health, but you have to prove you have a serious medical need
made worse by the exposure. 106 In Talal v. White, the Sixth Circuit found the Eighth
Amendment’s objective component was violated when a prison forced a non-smoking prisoner
with a serious medical need to share a cell with a prisoner who smoked, but only after the
plaintiff had documented that he suffered from ETS allergy, sinus problems, and dizziness
and that the prison medical staff had recommended that he have a non-smoking cell
partner.107 Note that whether your prison has adopted a smoking policy and how that policy
is administered is relevant to the subjective standard of deliberate indifference.108
4. Other Environmental Health and Safety Cases
Other environmental and safety conditions have been found to violate the Eighth
Amendment. Inadequate ventilation and deprivation of outdoor exercise has been found to be
a violation of the Eighth Amendment. 109 In addition, excessive heat, 110 excessive cold, 111
Helling provides for injunctive relief, not monetary damages. See also Fontroy v. Owens, 150 F.3d 239,
244 (3d Cir. 1998) (holding that no damages are available “for emotional distress allegedly caused by
exposure to asbestos without proof of physical injury”).
104. Shepherd v. Hogan, No. 04-4047-pr, 2006 U.S. App. LEXIS 12477, at *4 (2d Cir. 2006)
(unpublished) (finding that future risk can be enough to constitute a substantial risk of serious harm,
even if no symptoms are currently present); Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir. 2003) (“[A]n
Eighth Amendment claim may be based on … exposing an inmate to an unreasonable risk of future
harm and ... actual physical injury is not necessary in order to demonstrate an Eighth Amendment
violation.”).
105. Lehn v. Holmes, No. 99-919-GPM, 2005 U.S. Dist. LEXIS 22653, at *11–12 (S.D. Ill. Sept.
28, 2005) (noting that prisoner’s current symptoms, headaches, and burning eyes would be insufficient
to meet the objective standard in a claim for current injury but are sufficient in a claim for future
harm).
106. Goffman v. Gross, 59 F.3d 668, 671–72 (7th Cir. 1995) (finding that prison officials were not
deliberately indifferent when they refused to give a prisoner a non-smoking cellmate because the
prisoner had not shown a serious medical condition made worse by exposure to second-hand smoke—
even though he only had one lung because of lung cancer); Grant v. Coughlin, No. 91 Civ. 3433 (RWS),
1992 U.S. Dist. LEXIS 8003, at *9 (S.D.N.Y. June 9, 1992) (unpublished) (holding that irritation of the
throat and lungs caused by ETS was not a serious medical condition).
107. Talal v. White, 403 F.3d 423, 427–28 (6th Cir. 2005). But see Henderson v. Sheahan, 196
F.3d 839, 846 (7th Cir. 1999) (finding that plaintiff had not shown a serious medical need where he
alleged the “relatively minor” injuries of “breathing problems, chest pains, dizziness, sinus problems,
headaches and a loss of energy”).
(1993) (holding that a prisoner whose cellmate smoked five packs of cigarettes per day could have a
cognizable claim under the 8th Amendment and that the subjective element of the claim (deliberate
indifference) should be evaluated in light of prison policies on smoking); see Shepherd v. Hogan, No. 04-
4047-pr, 2006 U.S. App. LEXIS 12477, at *4 (2d Cir. 2006) (unpublished) (holding that a prisoner
sharing a room with a chain smoker for a month, a situation that was inappropriate even under prison
procedures and which the prison grievance committee condemned, was sufficient grounds for a
reasonable jury to find a constitutional violation).
109. Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (finding it to be cruel and unusual
punishment to deprive a prisoner of outdoor exercise for six months).
110. Gates v. Cook, 376 F.3d 323, 334 (5th Cir. 2004) (determining that the probability of heat-
related illness is high enough to state an 8th Amendment claim).
111. Gaston v. Coughlin, 249 F.3d 156, 164–65 (2d Cir. 2001) (finding exposure to freezing and
sub-zero temperatures due to a broken window sufficient to claim an 8th Amendment violation);
Palmer v. Johnson, 193 F.3d 346, 352–53 (5th Cir. 1999) (finding confinement outdoors overnight
sufficient for a constitutional violation); Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997) (holding
polluted water, 112 toxic or noxious fumes, 113 exposure to sewage, 114 lack of fire safety, 115
inadequate food or unsanitary food service,116 inadequate lighting or constant lighting, 117
exposure to insects, rodents and other vermin,118 exposure to asbestos119 and exposure to the
extreme behavior of severely mentally ill prisoners120 have all be found to violate a prisoner’s
Eighth Amendment rights.
5. A Prisoner’s Right to Psychiatric Care
This Section gives you a short summary of your right to psychiatric (mental health) care,
including your right to refuse treatment. For more information, you should read Chapter 29
of the JLM, “Special Issues for Prisoners with Mental Illness.”
You have the same right to mental health care as physical health care. Most courts
recognize that there is no difference between a prisoner’s right to physical treatment and a
prisoner’s right to mental health treatment. 121 Your right to mental health care may,
however, only include treatment that is necessary and will not cost an unreasonable amount
of money or take an unreasonable amount of time.122 However, some courts have held that an
that prison officials’ deliberate indifference to cold temperatures in prisoner’s cell and the inadequacy of
prisoner’s bedding to protect him raises an 8th Amendment claim).
112. Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989) (holding that an allegation of polluted
drinking water was not a frivolous claim); Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992)
(finding that black worms in drinking water could constitute a claim).
113. Johnson-El v. Schoemehl, 878 F.2d 1043, 1054–55 (8th Cir. 1989) (finding that pesticides
sprayed into housing units states an 8th Amendment claim); Cody v. Hillard, 599 F. Supp. 1025, 1032
(D.S.D. 1984) (finding that inadequate ventilation of toxic fumes in inmate workplaces raises an 8th
Amendment claim), aff'd in part and rev'd in part on other grounds, 830 F.2d 912 (8th Cir. 1987) (en
banc). But see Givens v. Jones, 900 F.2d 1229, 1234 (8th Cir. 1990) (finding no 8th Amendment
violation where prisoner suffered migraine headaches as a result of noise and fumes during three week
long housing unit renovation).
114. DeSpain v. Uphoff, 264 F.3d 965, 977 (10th Cir. 2001) (finding that exposure to flooding and
human waste states an 8th Amendment claim); McCord v. Maggio, 927 F.2d 844, 847 (5th Cir. 1991)
(finding that backup of sewage states an 8th Amendment claim).
115. Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985) (holding that substandard fire
prevention and safety hazards violate the 8th Amendment).
116. Phelps v. Kanoplas, 308 F.3d 180, 185–87 (2d Cir. 2002) (finding nutritionally inadequate
diet, when prison officials should have known such a diet would cause pain, is an 8th Amendment
violation).
117. Gates v. Cook, 376 F.3d 323, 334–35 (5th Cir. 2004) (finding that inadequate lighting raises
an 8th Amendment claim); Keenan v. Hall, 83 F.3d 1083, 1090–91, (9th Cir. 1996) (finding that
constant illumination raises an 8th Amendment claim).
118. Gates v. Cook, 376 F.3d 323, 334–35 (5th Cir. 2004) (finding that mosquito infestation in
combination with filthy cells and too much heat raises an 8th Amendment claim); Gaston v. Coughlin,
249 F.3d 156, 166 (2d Cir. 2001) (finding that mice constantly entering cell, combined with freezing
temperatures and intermittent exposure to sewage water, raised an 8th Amendment claim).
119. Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990) (finding exposure to asbestos
actionable). But see McNeil v. Lane, 16 F.3d 123, 125 (7th Cir. 1994) (holding that exposure to
"moderate levels of asbestos" did not violate the 8th Amendment).
120. Gates v. Cook, 376 F.3d 323, 343 (5th Cir. 2004) (noting that exposure to the constant
screaming and feces-smearing of mentally ill prisoners “contributes to the problems of uncleanliness
and sleep deprivation, and by extension mental health problems, for the other inmates”).
121. See Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977) (denying the existence of an
underlying distinction between the right to treatment for mental and physical ills); see also Inmates of
the Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir. 1979) (holding that seriously mentally
ill prisoners have a right to adequate treatment and that psychiatric/psychological treatment should be
held to the same standard as medical treatment for physical ills).
122. Bowring v. Godwin, 551 F.2d 44, 47–48 (4th Cir. 1977) (creating a three-part test for the
provision of mental health services: (1) the prisoner’s symptoms must evidence a serious disease or
injury; (2) such a disease or injury must be curable or able to be substantially alleviated; and (3) there
increased level of care is necessary for mental health patients, requiring, for example, a
minimum number of acute-care and intermediate-care beds and specialized physicians and
clinicians on staff at all times. In 2007, a California court issued a remedial order to ensure
adequate resources were provided to inmates with mental disorders.123 In response, the state
plans to build a new 44,000-square-foot, 50-bed mental health crisis facility at the California
Men’s Colony.
If you believe your right to mental health care has been violated, you can make an
Eighth Amendment claim of deliberate indifference against prison officials. For example, the
relatives of a Georgia prisoner who had committed suicide sued the state for deliberate
indifference.124 The prisoner had a history of mental illness and took anti-depressants, but
the prison psychiatrist stopped his medications. When a prison official learned the prisoner
was thinking about suicide, the official did not do anything. The court found that these
events could be considered deliberate indifference to the prisoner’s health in violation of the
Eighth Amendment. Similarly, in Waldrop v. Evans, the court found a prisoner had a clearly
established right to be given his psychotropic medication if denial of medication would result
in extremely poor mental health.125
(a) Right to Refuse Psychiatric Treatment
You also have a limited right to refuse mental health treatment. In Washington v.
Harper, the Supreme Court used a “rational-basis test”126 to decide if a prison could require a
convicted prisoner to undergo psychiatric treatment. The Court held that if a government’s
action is mainly about prison administration issues and is reasonably related to legitimate
prison interests, then the action is proper. “[G]iven the requirements of the prison
environment, the Due Process Clause permits the State to treat a prison inmate who has a
serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to
himself or others and the treatment is in the inmate’s medical interest.”127
If you refuse to take the prescription drugs that the prison doctor gives you for mental
illness, the prison must go through certain procedures before forcing you to take the
medication. Specifically, the Constitution’s Due Process Clause demands are met by:
[A] medical finding, that a mental disorder exists which is likely to
cause harm if not treated ... [and] that the medication must first be
prescribed by a psychiatrist, and then approved by a reviewing
psychiatrist, [which] ensures that the treatment in question will be
ordered only if it is in the prisoner’s medical interest.128
In other words, before an institution can give you medication against your will, a psychiatrist
must prescribe medication, and a second psychiatrist should approve the decision that (1)
you need the medication and (2) your mental disorder is likely to be dangerous if untreated.
is potential for substantial harm to the prisoner by reason of delay or denial of care).
123. Coleman v. Schwartzenegger, No. CIV S-90-0520, 2007 U.S. Dist. LEXIS 40586, at *11–13
(E.D. Cal. May 23, 2007) (unpublished).
124. Greason v. Kemp, 891 F.2d 829, 834 (11th Cir. 1990) (holding that grossly indifferent
psychiatric care could be a violation of the 8th Amendment where prisoner subsequently committed
suicide).
125. Waldrop v. Evans, 871 F.2d 1030, 1033–34 (11th Cir. 1989).
126. The “rational-basis test” means that the prison’s action must be reasonably related to a
legitimate government goal. Black’s Law Dictionary 592 (3d pocket ed. 2006).
127. Washington v. Harper, 494 U.S. 210, 227, 110 S. Ct. 1028, 1039–40, 108 L. Ed. 2d 178, 201–
02 (1990) (emphasis added).
128. Washington v. Harper, 494 U.S. 210, 222, 110 S. Ct. 1028, 1037, 108 L. Ed. 2d 178, 198
(1990). Note that the Due Process Clause does not require these exact steps, although these steps are
adequate to satisfy due process.
In Washington v. Harper, the court held the state’s policy of medicating unwilling
patients was constitutional because it met these requirements. 129 In Washington, the
decision to administer drugs against the patient’s will had to be made by a committee
including a neutral psychiatrist and a neutral psychologist, neither of whom were currently
treating the prisoner. The prison superintendent could accept or reject the committee’s
decision, and the prisoner had the option to ask a court to review the committee’s decision.130
You are also entitled to certain due process protections, including a hearing, before
prison authorities can transfer you to a psychiatric hospital. 131 In Vitek v. Jones, the
Supreme Court held it unconstitutional to require transfer to behavior modification
treatment without a legitimate reason.132
In addition, you should be aware that different psychiatric programs are used to treat
prisoners convicted of sex offenses. Courts remain divided over whether a hearing is required
when prison officials seek to classify a prisoner who has not been convicted of a sex offense as
a sex offender when there is the possibility of then withholding parole because the prisoner
did not complete a therapeutic program.133 See Chapter 32 of the JLM for more information
on mandatory sex offender programs.
6. Right to Dental Care
The right to adequate medical care has been extended to include dental care in some
cases.134 The Second Circuit has held that “[a] cognizable claim regarding inadequate dental
care, like one involving medical care, can be based on various factors, such as the pain
suffered by the plaintiff, ... the deterioration of the teeth due to a lack of treatment, ... or the
inability to engage in normal activities.”135 Recently, as a result of a federal class action
lawsuit, the California Department of Corrections and Rehabilitation (“CDCR”) agreed to
provide dental care for all prisoners as set forth in a new Dental Policies and Procedures
manual and an Implementation Plan.136
(1990).
(1990).
131. Vitek v. Jones, 445 U.S. 480, 494, 100 S. Ct. 1254, 1264, 63 L. Ed. 2d 552, 566 (1980)
(determining that before a prisoner is transferred to a mental facility, he should receive written notice,
legal counsel, a hearing before an independent decisionmaker with the opportunity to present and
confront witnesses, and a written decision).
132. Vitek v. Jones, 445 U.S. 480, 493–94, 100 S. Ct. 1254, 1264, 63 L. Ed. 2d 552, 565 (1980); see
also Clonce v. Richardson, 379 F. Supp. 338, 348–50 (W.D. Mo. 1974) (finding that defendant is entitled
to a pre-transfer hearing before being moved to a behavior modification treatment program).
133. Compare Neal v. Shimoda, 131 F.3d 818, 831 (9th Cir. 1997) (requiring a hearing when
classifying a prisoner as a sex offender if that prisoner has not been convicted of a sex offense) with
Grennier v. Frank, 453 F.3d 442, 445–46 (7th Cir. 2006) (finding that the “sex offender” label alone
does not require a hearing).
134. See, e.g., Board v. Farnham, 394 F.3d 469, 480–82 (7th Cir. 2005) (finding that breaking off
teeth rather than extracting them and denial of toothpaste for protracted periods support an 8th
Amendment claim); Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004) (finding that six weeks’
delay in seeing a dentist, resulting in infection and loss of teeth, raised an 8th Amendment claim);
Farrow v. West, 320 F.3d 1235, 1244–47 (11th Cir. 2003) (holding that prisoner with only two lower
teeth who suffered pain, continual bleeding, swollen gums, and weight loss had a serious medical need,
and that a delay of 18 months before prisoner received dentures raised a factual issue concerning
deliberate indifference); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995) (finding that a three-week delay
in dental care, coupled with knowledge of the prisoner’s suffering, can support a finding of “deliberate
indifference”).
135. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
136. Perez v. Tilton, 2006 No. C 05-05241 JSW, 2006 U.S. Dist. LEXIS 63318, at *2 (N.D. Cal.
Like inadequate medical care, dental care is also governed by the deliberate
indifference/serious needs analysis.137 To prove an Eighth Amendment claim of inadequate
dental care, you have to show both deliberate indifference, like in other inadequate medical
care claims,138 and that the denial caused you “substantial harm.”139
In practice, courts often note that there is a difference between preventive dental care,
such as cleanings or fluoride treatments, and dental emergencies, such as cavities. In Dean v.
Coughlin, the court held that prisoners had raised an Eighth Amendment claim against
prison officials for refusing to give the prisoner serious dental treatments such as fillings and
crowns.140 However, the court also found that prisoners had no right to preventive care.141 If
you are interested in preventive care, it is constitutional for prisons to require that you pay
for such care yourself.142
But note that limiting care to pulling teeth that could be saved is unconstitutional.143
Remember that a claim of inadequate dental care must meet both the subjective and the
objective standard in order to pass the “deliberate indifference” test. In Chance v. Armstrong,
the court held that if the institution decided to pull the prisoner’s teeth instead of repair
them only because this option was cheaper, then the prisoner met the “deliberate
indifference” standard because the action resulted in great pain for six months, the inability
to chew properly, and the loss of teeth.144
137. See, e.g., Board v. Farnham, 394 F.3d 469, 481–82 (7th Cir. 2005) (finding that there was
deliberate indifference when a prisoner asked for dental supplies fifteen times and was repeatedly
ignored); Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004) (holding that extreme pain and
swelling caused by infected teeth would have been obvious to a layperson and thus submission of
verifying medical evidence was unnecessary); Farrow v. West, 320 F.3d 1235, 1244–47 (11th Cir. 2003)
(finding that some medical conditions are so grave, that even a few hours’ delay in treatment could
constitute deliberate indifference); Harrison v. Barkley, 219 F.3d 132, 137–39 (2d Cir. 2000) (finding
that refusal to treat prisoner’s tooth cavity led to a sufficiently serious need as it was a degenerative
condition that could cause acute infections and pain).
138. See Clifton v. Robinson, 500 F. Supp. 30, 35 (E.D. Pa. 1980) (holding that since prisoner
claiming denial of dental care did not allege “substantial harm,” claim failed to show “deliberate
indifference”).
139. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (holding that a three-month
delay in replacing dentures caused gum disease and possibly weight loss, constituting substantial
harm).
140. Dean v. Coughlin, 623 F. Supp. 392, 404 (S.D.N.Y. 1985).
141. Dean v. Coughlin, 623 F. Supp. 392, 404 (S.D.N.Y. 1985). Specifically the court held: “[A]
prisoner is entitled to treatment only for conditions that cause pain, discomfort, or threat to good
health, not treatment to ward off such conditions.” With regard to preventative dentistry, the court
noted that “[a]lthough [it] would probably save the clinic time in the long run, the Constitution does not
require wise dentistry, only dentistry which responds to inmates’ pain and discomfort.” Dean v.
Coughlin, 623 F. Supp. 392, 404 (S.D.N.Y. 1985); see also Grubbs v. Bradley, 552 F. Supp. 1052, 1129
(M.D. Tenn. 1982) (holding that delay of a prisoner’s access to routine and preventive dental care is not
“deliberate indifference”).
142. See Hogan v. Russ, 890 F. Supp. 146, 149 (N.D.N.Y. 1995) (“Defendants did not deny
plaintiff the ability to obtain specialized medical attention [with a periodontist]. They merely stated
that it was not prison policy to pay for such specialized care and that such care would be made
available to plaintiff at his own expense.”); Taylor v. Garbutt, 185 F.3d 869, 869 (9th Cir. 1999) (finding
that prison regulation requiring a co-payment for prisoner-initiated dental services does not violate the
8th Amendment).
143. Dean v. Coughlin, 623 F. Supp. 392, 405 (S.D.N.Y. 1985); see also Chance v. Armstrong, 143
F.3d 698, 703–04 (2d Cir. 1998) (finding that allegation that dentists proposed extraction rather than
saving teeth for financial reasons stated an 8th Amendment claim).
144. Chance v. Armstrong, 143 F.3d 698, 703–04 (2d Cir. 1998).
D. Medical Care for Female Prisoners
1. Accessing Medical Care
Like male prisoners, female prisoners have a constitutional right under the Eighth
Amendment to adequate medical care.145 Female prisoners should read this entire Chapter,
not only this Part, to understand prison health care rights. This Part of the Chapter only
explains special medical issues and procedures for women, like gynecological examinations,
abortion, and pregnancy.
Though state and federal laws guarantee you a right to the medical services described in
this Part,146 prisons do not always provide these services. So, it is important that you know
your rights. You should consult your institution’s regulations regarding medical care as well
as federal and state law. For New York, the regulations about prison health care are found in
Part 7651 of Title 9 (Executive) of the Codes, Rules and Regulations.147 If your institution or
the corrections department in your state does not have such regulations, you should find out
if your institution has a health care manual or your state’s corrections department has an
operations manual. For example, the New York State Department of Correctional Services
Division of Health Services issues a Health Services Policy Manual. In Texas, each
correctional facility must have a written Health Services Plan describing procedures for
regularly scheduled sick calls, emergency services, long-term care, and other medical
services. 148 In California, health care provisions are found in Chapter Nine of the
Department Operations Manual of the California Department of Corrections.149
Many female prisoners have an increased risk of chronic health problems, such as HIV,
hepatitis, asthma, gynecological diseases, nutrition problems, and convulsive seizure
disorders. 150 Federal law requires all federal prisoners to receive a medical examination
within twenty-four hours after arriving in prison. 151 You should be tested for sexually
transmitted diseases (“STDs”) and tuberculosis (“TB”) during this exam. Some courts have
ruled that certain state prisons must also perform these tests. 152 Many states have TB
screening plans, which require screening of prisoners in facilities of certain sizes or after a
145. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 260 (1976) (holding
that deliberate indifference to the serious medical needs of prisoners constitutes the “necessary and
wanton infliction of pain” proscribed by the 8th Amendment).
146 . See 28 C.F.R. § 522.20 (2007) (explaining that federal prisons must conduct health
screenings on new prisoners); 28 C.F.R. § 549.10 (2007) (mandating that federal prisons manage and
treat infectious disease); N.Y. Correct. Law § 137(6)(b)–(d) (McKinney 2003) (directing that prisoners in
solitary confinement must have a health check at least once per day).
147. N.Y. Comp. Codes R. & Regs. tit. 9, §§ 7651.1–7651.33 (1993).
148. 37 Tex. Admin. Code § 273.2 (1994).
149. Cal. Dep’t of Corr., Department Operations Manual, ch. 9, available at
http://www.cdcr.ca.gov/Regulations/Adult_Operations/DOM_TOC.html (last visited Oct. 6, 2008).
150. See Amnesty Int’l, Not Part of My Sentence: Violations of the Human Rights of Women in
Custody (1999), available at http://www.amnesty.org/en/library/info/AMR51/019/1999/en; see also
Amnesty Int’l USA, Abuse of Women in Custody: Sexual Misconduct and the Shackling of Pregnant
Women available at
http://www.amnestyusa.org/Womens_Human_Rights/Abuse_of_Women_in_Custody/page.do?id=110828
8&n1=3&n2=39&n3=720 (last visited Oct. 6, 2008).
151. See 28 C.F.R. § 522.21 (2007) (requiring Bureau of Prisons staff to screen all newly arrived
prisoners to ensure that federal health, safety, and security standards are met).
152. See, e.g., Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981) (noting that lack of screening
for infectious diseases resulted in serious threat to prisoners’ well-being); Feliciano v. Gonzalez, 13 F.
Supp. 2d 151, 208 (D.P.R. 1998) (holding that failure to screen incoming prisoners for infectious
diseases including TB is unconstitutional); Inmates of Occoquan v. Barry, 717 F. Supp. 854, 867
(D.D.C. 1989) (holding lack of syphilis and TB testing to be one of the systemic failures showing
prisoner has been held for a certain period of time. 153 Read Chapter 26 of the JLM,
“Infectious Diseases: AIDS, Hepatitis, and Tuberculosis in Prison,” for more information.
While prisons have a duty to perform these exams, many female prisoners do not receive a
medical exam after being admitted.154 After this first examination, you should be able to
receive check-ups and diagnostic tests, but, again, some prisons do not follow the law.155
2. Abortion
According to Roe v. Wade, every woman has the right, as part of her right to privacy, to
decide whether to have an abortion or to go forward with a pregnancy.156 However, states are
allowed to place restrictions or limitations on a woman’s right to an abortion, like requiring
parental consent for minors, as long as they do not place an “undue burden” on a woman’s
right to choose.157 Courts decide what kind of obstacles might count as an “undue burden.”
For federal prisoners, federal regulations require that female prisoners are offered
medical, religious, and social counseling prior to making a decision regarding an abortion.158
A prisoner should be allowed to make the final decision herself.159 Once a prisoner receives
counseling and notifies the prison in writing that she has decided to have an abortion, the
prison must arrange for the abortion.160
If you are a state prisoner, your rights will mostly depend on the abortion laws in your
state. In the State of New York, abortions are allowed if a doctor has a “reasonable belief that
[the abortion] is necessary to preserve [your] life” or the abortion occurs in the first “twenty-
four weeks ... of [the] pregnancy.”161
Under the current law, it is not completely clear whether prisons are allowed to impose
additional restrictions on a prisoner’s right to get an abortion, or whether the prisoner has
the same rights as any other woman in the state. You should first look at your state code or
prison regulations. Some states, like California and New York, have codes that say that
female prisoners have the same right to an abortion as any other woman in the state.162 A
prison is not required to pay for a prisoner’s abortion, but if you request an abortion and are
entitled to one under state law, then a prison official is required to transport you to a
clinic.163
153. See, e.g., 37 Tex. Admin. Code § 273.7 (West 2006).

154. See Amnesty Int’l, Not Part of My Sentence: Violations of the Human Rights of Women in
Custody (1999), available at http://www.amnesty.org/en/library/info/AMR51/019/1999/en.
155. See Women Prisoners v. District of Columbia, 968 F.Supp. 744, 747 (D.D.C. 1997) (holding
that female prisoners had a right to diagnostic evaluations similar to those provided for men).
156. Roe v. Wade, 410 U.S. 113, 153–54, 93 S. Ct. 705, 727, 35 L. Ed. 2d 147, 177–78 (1973).
157. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 876–77, 112
S. Ct. 2791, 2820–21, 120 L. Ed. 2d. 674, 714 (1992) (explaining the sort of restrictions that could
constitute an “undue burden”).
158. 28 C.F.R. § 551.23(a)–(c) (2007).
159. 28 C.F.R. § 551.23(a) (2007).
160. 28 C.F.R. § 551.23(c) (2007).
161. N.Y. Penal Law § 125.05(3) (McKinney 2004).
162. Cal. Penal Code § 4028 (West 2000); N.Y. Comp. Codes R. & Regs. tit. 14, § 27.6(c) (1997).
163. See Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 341, 351–52 (3d Cir.
1987) (finding that providing transportation and funding for a non-therapeutic abortion does “not
burden ‘the use of the prison's limited resources’" and “certainly imposes no greater burdens than
already exist under the County's accepted responsibility to provide all pregnant inmates with proper
pre- and post-natal care”). But see Victoria W. v. Larpenter, 369 F.3d 475, 487 (5th Cir. 2004) (deeming
a prison policy, which required court orders before allowing prisoners seeking elective medical
procedures to leave the prison, “rationally connected to the legitimate penological objectives served”).
Restricting elective abortions for prisoners is not a violation of the Eighth Amendment.164
But courts have deemed such restrictions unconstitutional as a violation of the Fourteenth
Amendment.165 Because the right to have an abortion is a constitutional right, any prison
policy that restricts that right must be “reasonably related to legitimate penological
interests.” 166 Few courts have ruled on the issue of whether prisons may treat female
prisoners differently than other women in the state when it comes to the right to get an
abortion. In Monmouth County Correctional Institutional Inmates v. Lanzaro, the Third
Circuit held that female prisoners have the same right to an abortion as non-prisoner women
in the same state. 167 Requiring a woman to get a court-ordered release for an elective
abortion was an undue burden on her constitutionally-protected right to have an abortion, as
well as a violation of her Eighth Amendment right to medical treatment. The court classified
an elective abortion as a “serious medical need” where denial or undue delay in providing the
procedure could render the prisoner’s condition “irreparable.” 168 In Roe v. Crawford, the
Eighth Circuit considered the constitutionality of a Missouri Department of Corrections
(“MDC”) policy prohibiting transportation of pregnant prisoners off-site for elective, non-
therapeutic abortions. The Court found that the MDC policy was unconstitutional, and that
women prisoners do not lose their right to abortion care once incarcerated.169 However, in a
different case, the Fifth Circuit upheld a prison policy requiring prisoners to get a court order
for abortions because the policy was implemented reasonably and was “rationally connected
to the legitimate penological objectives [prison security] served.”170
Note that if you ask for an abortion but never get one because of prison officials’
negligence, you probably do not have a constitutional claim. In Bryant v. Maffucci, for
example, a pretrial detainee requested an abortion, but because of administrative
inefficiency and unreasonable delays by prison officials the abortion was scheduled too late to
be performed.171 The court found that the prison officials were not deliberately indifferent,
only negligent, so their conduct was not in violation of the Eighth Amendment.172 Similarly,
in Gibson v. Matthews, the Sixth Circuit found that prison officials were merely negligent
when they incorrectly estimated the due date of a pregnant prisoner and thus denied her
access to abortion facilities.173
164. Roe v. Crawford, 514 F.3d 789, 801 (8th Cir. 2008) (“[A]n elective, non-therapeutic abortion
does not constitute a serious medical need, and a prison institution's refusal to provide an inmate with
access to an elective, non-therapeutic abortion does not rise to the level of deliberate indifference to
constitute an Eighth Amendment violation.”).
165. Roe v. Crawford, 514 F.3d 789, 801 (8th Circ. 2008).
167. Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 343–49 (3d Cir. 1987)
(holding abortion restrictions were not justified by state’s interest in childbirth because this interest
does not further rehabilitation, security, or deterrence).
168. Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 343–49 (3d Cir. 1987).
169. Roe v. Crawford, 514 F.3d 789, 801 (8th Cir. 2008).
170. Victoria W. v. Larpenter, 369 F.3d 475, 487 (5th Cir. 2004).
171. Bryant v. Maffucci, 923 F.2d 979, 980–81 (2d Cir. 1991) (citing N.Y. Penal Law § 125.05(3)
(McKinney 2004).
172. Bryant v. Maffucci, 923 F.2d 979, 986 (2d Cir. 1991) (holding that negligent failure to
provide an abortion did not violate detainee’s rights); see also Gibson v. Matthews, 926 F.2d 532, 536–
37 (6th Cir. 1991) (finding prison officials who did not facilitate prisoner’s request for abortion were at
most negligent and not deliberately indifferent).
173. Gibson v. Matthews, 926 F.2d 532, 536–37 (6th Cir. 1991).
3. Pregnancy
A woman prisoner’s treatment during pregnancy is important. 174 Prisons should (but
might not) have policies and procedures regarding risk assessment and treatment of
pregnant prisoners, diet and nutrition, prenatal care, and counseling.175
In New York State, a pregnant prisoner has a right to “comprehensive prenatal care ...
which shall include, but is not limited to, regular medical examinations, advice on
appropriate levels of activity and safety precautions, nutritional guidance, and HIV
education.”176 Shortly before the prisoner is about to give birth, she should be moved from the
jail or prison to some other location “a reasonable time before the anticipated birth of [her]
child,” and provided with “comfortable accommodations, maintenance and medical care.”177
She will be returned to the prison or jail “as soon after the birth of her child as the state of
her health will permit.”178 In California, a pregnant prisoner in a local detention facility has
a right to receive necessary medical services from the physician of her choice, but she must
pay for any private doctors. 179 California has recently amended its state regulations
concerning pregnant prisoners. These rules provide for routine physical examinations as well
as mandatory nutritional guidelines to be followed by prison facilities when caring for
pregnant inmates.180 In particular, the use of leg and waist restraints is subject to stringent
requirements.
In a recent federal case in Wisconsin, a woman prisoner charged prison nurses with
violating her Eighth Amendment rights by failing to bring her to the hospital when she was
in labor. The prisoner gave birth in her prison cell while changing her clothes.181 The court
denied summary judgment and held that a reasonable jury could conclude that the nurses
had shown “deliberate indifference” toward the pregnant prisoner because the nurses ignored
the prisoner’s request to go to the hospital and they “only examined [her] through the small
tray slot in the cell door, rather than conducting a more comprehensive exam.”182
Pregnant prisoners have also had some success in lawsuits alleging negligence against
prisons. One court found a prison liable for the wrongful death of a premature baby born to a
prisoner because the prison was negligent. Prison officials did not follow the prison’s
procedures, failed to diagnose the labor despite complaints of bleeding and abdominal pain,
and did not bring the prisoner to a hospital until it may have been too late to prevent the
birth.183
Shackling pregnant prisoners in labor is unfortunately still common. 184 Twenty-three
state departments of corrections and the Federal Bureau of Prisons allow the use of
174. Books can help you learn to care for yourself while pregnant. One good resource is What To
Expect When You’re Expecting by Arlene Eisenberg, Heidi E. Murkoff, and Sandy Hathaway. If you do
not have access to any books like this one, consult a medical professional at your institution regarding
questions you might have about your pregnancy. You can also find information online at websites like
“What to Expect,” available at http://www.whattoexpect.com (last visited Oct. 4, 2008).
175. Nat’l Comm’n on Corr. Health Care, Women’s Health Care in Correctional Settings (2005),
available at http://www.ncchc.org/resources/statements/womenshealth2005.html.
179. Cal. Penal Code § 4023.6 (West 2000).
180. Cal. Penal Code §§ 3030, 3050, 3268.2, 3355, 3355.1 (West 2000) (amended Mar. 5, 2008).
181. Doe v. Gustavus, 294 F. Supp. 2d 1003, 1007 (E.D. Wis. 2003).
182. Doe v. Gustavus, 294 F. Supp. 2d 1003, 1009 (E.D. Wis. 2003).
183. Calloway v. City of New Orleans, 524 So. 2d 182, 187 (La. Ct. App. 1988).
184. Adam Liptak, Prisons Often Shackle Pregnant Inmates in Labor, N.Y. Times, Mar. 2, 2006,
available at
http://www.nytimes.com/2006/03/02/national/02shackles.html?ex=1298955600&en=afd1d2d6614d34d6
&ei=5088 (last visited Oct. 4, 2008).
restraints during labor. California has recently banned shackling prisoners by the wrists or
ankles during labor, delivery, and recovery. New York does not use restraints on prisoners
during delivery. Twenty-four state departments of corrections station an officer in the
delivery room while a prisoner is in labor. In addition, thirty-eight states and the Federal
Bureau of Prisons have policies that allow them to use restraints on pregnant women in the
third trimester.185 One court has struck down a practice of shackling women in their third
trimester with legal shackles, handcuffs, a belly chain, and a “black box.” The court held
these practices violated the Eighth Amendment; leg shackles provide sufficient security and
these must be removed during labor and shortly thereafter. 186 The Eighth Circuit has
recently ruled, however, that prison corrections officers did not violate a female prisoner’s
rights when they shackled her after she went into labor. 187 According to the court, the
restraints did not “rise to [a] level of unnecessary and wanton infliction of pain.” 188 The
prisoner was not shackled as she gave birth but was again placed in restraints after delivery.
E. Your Right to Informed Consent and Medical Privacy
1. Informed Consent
Before you are treated, you should ask your doctor or other prison health staff what to
expect from a medical procedure and its risks and alternatives. Depending on your state, you
may have both a statutory and constitutional right to this information. “Informed consent”
means that before you agreed to your particular medical treatment, your doctor told you the
purpose of the procedure, its possible side effects, and other possible treatments.189
In New York, if you did not agree to the medical procedure or were never fully told of the
treatment’s risks and alternatives, you can bring a state law claim against your doctor or
other prison officials for lack of informed consent.190 To prove that you did not give your
informed consent in violation of state law, you will have to show (1) that your doctor did not
tell you about the risks of the treatment and the alternative treatments available; (2) that a
reasonable patient in your position would not have agreed to the treatment if he had been
fully informed; and (3) that the lack of consent caused your injury.191 You must have been
injured as a result of lack of informed consent in order to have such a claim succeed.
You may also be able to bring a similar constitutional claim. In Pabon v. Wright, the
Second Circuit held that prisoners’ constitutionally protected liberty interest in refusing
medical treatment under the Fourteenth Amendment includes the related “right to such
information as a reasonable patient would deem necessary to make an informed decision
regarding medical treatment.”192 In order to succeed on this claim, you must meet a different
185. Amnesty Int’l USA, Abuse of Women in Custody: Sexual Misconduct and the Shackling of
Pregnant Women available at
http://www.amnestyusa.org/Womens_Human_Rights/Abuse_of_Women_in_Custody/page.do?id=110828
8&n1=3&n2=39&n3=720 (last visited Oct. 4, 2008).
186. Women Prisoners v. District of Columbia, 877 F.Supp. 634, 668–69 (D.D.C 1994), vacated in
part and remanded, 93 F.3d 910, 920–23 (D.C. Cir. 1996); see also Women Prisoners v. District of
Columbia, 968 F. Supp. 744 (D.D.C. 1997) (describing settlement after appellate proceedings).
187. Nelson v. Corr. Med. Servs., 533 F.3d 958, 963 (8th Cir. 2008).
188. Nelson v. Corr. Med. Servs., 533 F.3d 958, 963 (8th Cir. 2008).
189. To learn more about informed consent issues for prisoners with mental illness, see Part C(1)
of Chapter 29 of the JLM, “Special Issues for Prisoners with Mental Illness.”
190. N.Y. Pub. Health Law § 2805(d) (McKinney 2007).
191. Foote v. Rajadhyax, 268 A.D.2d 745, 745, 702 N.Y.S.2d 153, 154 (3d Dept. 2000) (granting
prisoner a new trial to show that she had not consented to a root canal).
192. Pabon v. Wright, 459 F.3d 241, 246 (2d Cir. 2006) (finding a constitutionally protected
interest, but affirming the grant of summary judgment to prison officials because of qualified
immunity); see White v. Napoleon, 897 F.2d 103, 113 (3d Cir. 1990) (“Prisoners have a right [under the
14th Amendment] to such information as is reasonably necessary to make an informed decision to
test. Specifically, you will have to show (1) that government officials failed to provide you
with the kind of information that a reasonable patient would need to make an informed
decision; (2) that you would have refused the medical treatment if you had been so informed;
and (3) that the officials failed to provide you with information with deliberate indifference to
your right to refuse medical treatment.193 However, a prison official can still forcibly give you
medical treatment even if you do not consent as long as the official reasonably determines
that it “furthers a legitimate penological purpose.”194
2. Medical Privacy
Prisoners have constitutional privacy rights protecting their medical information. 195
Prisoners are entitled to confidentiality of information about their medical condition and
treatment196 and about their choice to refuse medical treatment.197 But like all prisoners’
rights, prisoners’ privacy rights are limited by the needs of prison administration and depend
on the circumstances.198
The courts have “long recognized the general right to privacy in one’s medical
information: ‘There can be no question that ... medical records, which may contain intimate
facts of a personal nature, are well within the ambit of materials entitled to privacy
protection.’” 199 The Third Circuit has held that prisoners have a Fourteenth Amendment
privacy interest in their medical information because it is among those rights that “are not
inconsistent with their status as prisoners or with the legitimate penological objectives of the
corrections system.”200 Similarly, in Powell v. Schriver, the Second Circuit held that prisoners
accept or reject proposed treatment.”); see also Benson v. Terhune, 304 F.3d 874, 884–85 (9th Cir. 2002)
(explaining that the recognition of the right to medical information is a “reasonable application of
Supreme Court precedent”).
193. Pabon v. Wright, 459 F.3d 241, 246 (2d Cir. 2006).
194. Pabon v. Wright, 459 F.3d 241, 246 (2d Cir. 2006).
195. Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999) (“[T]he right to confidentiality includes
the right to protection regarding information about the state of one’s health … [because] … there are
few matters that are quite so personal as the status of one’s health, and few matters the dissemination
of which one would prefer to maintain greater control over.”); see Hunnicutt v. Armstrong, No. 04-1565-
pr, 2005 U.S. App. LEXIS 22220, at *3–4 (2d Cir. Oct. 13, 2005) (unpublished) (finding that prisoner
stated a constitutional privacy claim where prisoner alleged prison publicly discussed his mental health
issues in front of other prisoners and “allowed non-health staff access to [prisoners’] confidential health
records”).
196. Doe v. Delie, 257 F.3d 309, 315–17 (3d Cir. 2001) (noting that a right to privacy in medical
information extends to prescription medications and is “particularly strong” for HIV status); Powell v.
Schriver, 175 F.3d 107, 111 (2d Cir. 1999) (finding a right to privacy in transsexuality); see O’Connor v.
Pierson, 426 F.3d 187, 201 (2d Cir. 2005) (“Medical information in general, and information about a
person’s psychiatric health and substance-abuse history in particular, is information of the most
intimate kind.”); Hunnicutt v. Armstrong, No. 04-1565-pr, 2005 U.S. App. LEXIS 22220, at *2–4 (2d
Cir. Oct. 13, 2005) (unpublished) (finding an allegation that a prisoner’s mental health consultations
occurring on a housing unit within other prisoners’ hearing stated a constitutional privacy claim).
197. White v. Napoleon, 897 F.2d 103, 113 (3d Cir. 1990) (holding that a prisoner who was
allergic to penicillin had the right to refuse treatment when a doctor would not disclose whether the
proposed treatment contained penicillin); see Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261,
278, 110 S. Ct. 2841, 2851, 111 L. Ed. 2d 224, 242 (1990) (finding a general right to refuse medical
treatment by relying on previous holdings regarding prisoners’ right to refuse psychotropic medications
and prisoners’ liberty interest in avoiding transfer to a mental hospital and unwanted behavior
modification treatment).
198. See generally Hudson v. Palmer, 468 U.S. 517, 527, 104 S. Ct. 3194, 3200, 82 L. Ed. 2d 393,
403 (1984) (explaining that prisoners do not retain a right of privacy in their prison cells protecting
them against unreasonable searches because otherwise it would be impossible to run the prison).
199. Doe v. Delie, 257 F.3d 309, 315 (3d Cir. 2001) (quoting United States v. Westinghouse Elec.
Corp., 638 F.2d 570, 577 (3d Cir. 1980)).
200. Doe v. Delie, 257 F.3d 309, 315–17 (3d Cir. 2001) (quoting Pell v. Procunier, 417 U.S. 817,
do have a constitutional right to keep previously undisclosed medical information
confidential as long as the disclosure “is not reasonably related to a legitimate penological
interest.”201
In 1996, Congress passed the Health Insurance Portability and Accountability Act
(“HIPAA”), which contains significant protection for prisoners’ medical privacy rights. Under
the final HIPAA Privacy rule, identifiable health information pertaining to “inmates” has
been deemed “protected health information,” called “PHI.” 202 A hospital providing prison
health care may disclose PHI to a “correctional institution” or a law enforcement official
having lawful custody of an prisoner only if the correctional institution or law enforcement
official represents that disclosing such protected health information is necessary for: (1) the
provision of health care to such individuals; (2) the health and safety of such individual or
other prisoners; (3) the health and safety of officers, employees, or others at the correctional
institution; (4) the health and safety of such individuals and officers or other persons
responsible for the transport of prisoners or their transfer from one institution, facility, or
setting to another; (5) the health and safety of law enforcement on the premises of the
correctional institution; or (6) the administration and maintenance of the safety, security,
and good order of the correctional institution.203
A prison hospital’s disclosure is permitted to entities outside the hospital if the
correctional institution or law enforcement official represents that the protected health
information is necessary for any of the purposes listed above. Furthermore, a prison hospital
may reasonably rely upon any such representations from public officials regarding the health
of a prisoner. However, when a prisoner is released from custody—including probation,
parole, and supervised release—that person is no longer categorized as an “inmate,” and
these permitted use and disclosure provisions no longer apply.204
You should also note that some courts have held prison officials liable for disclosing a
prisoner’s confidential medical information, not because they violated the prisoner’s privacy
rights but because by disclosing the information the officials put the prisoner in danger. In
Anderson v. Romero, for example, the court indicated that prison employees would violate a
prisoner’s Eighth Amendment rights if, “knowing that an inmate identified as HIV positive
was a likely target of violence by other inmates yet indifferent to his fate, [they] gratuitously
revealed his HIV status to other inmates and a violent attack upon him ensued.”205
F. Actions You Can Bring When You Are Denied Medical Care
Now that you know your rights, it is important to be able to enforce them. This Part
describes the actions you can bring when your right to adequate medical care is violated.
Remember that in almost every instance, your case will be helped by attempting to go
822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 501 (1974)).

201. Powell v. Schriver, 175 F.3d 107, 112–13 (2d Cir. 1999) (emphasis added) (holding that “the
gratuitous disclosure of a [prisoner’s] confidential medical information as humor or gossip” is not
reasonably related to penological interests and violates the prisoner’s constitutional right to privacy).
The court noted that “disclosure of an inmate’s HIV-positive status could further legitimate penological
interests” when, for example, a prison needs to segregate HIV-positive prisoners or when prison
officials need “to warn prison officials and inmates who otherwise may be exposed to contagion.”
202. U.S. Dep’t of Health and Human Servs., Section-by-Section Description of Rule Provisions,
available at http://www.hhs.gov/ocr/part2.html (last visited Oct. 3, 2008) (“We have removed the
exception for individually identifiable health information of inmates of correctional facilities and
detainees in detention facilities. Individually identifiable health information about inmates is protected
health information under the final rule.” (emphasis added)).
203. 45 C.F.R. §164.512(k)(5)(i) (2007).
204. 45 C.F.R. §164.512(k)(5)(iii) (2007) (stating that there is “no application [of this section]
after release [from custody]”).
205. Anderson v. Romero, 72 F.3d 518, 523 (7th Cir. 1995).
through your institution’s complaint process. For more information on doing so, see Chapter
15 of the JLM: “Inmate Grievance Procedures.”
1. Remedies for State Prisoners
(a) 42 U.S.C. § 1983 Actions
Section 1983 is a federal statute that allows you to enforce federal constitutional rights.
When your right to adequate medical care is violated by persons acting under state authority
(for example, prison guards, doctors, and/or administrators), you may use Section 1983 to
bring a suit in federal court. For a discussion of Section 1983 actions, see Chapter 16 of the
JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of
Federal Law.”
(b) Tort Actions
As discussed in Part B of this Chapter, the federal constitutional standard established by
Wilson and Farmer cannot be proven by claiming only negligence. 206 If the facts of your case
are not enough to prove a constitutional violation, but only show negligence, you may want to
consider bringing a tort action against state officials instead of a constitutional claim. See
Chapter 17 of the JLM, “The State’s Duty to Protect You and Your Property: Tort Actions,” to
learn how to do so.
To succeed on a negligence claim you must prove three things:
(1) “Duty of Care”—that the defendants had a duty to care for you;
(2) “Breach of Duty”—that the defendants failed to meet that duty; and
(3) “Injury”—that you were injured as a result of that failure.207
There are several ways to prove that the prison has a duty of care for you. First, as
discussed above, Estelle v. Gamble held that prison officials have a duty to provide adequate
medical care.208 Second, a state statute may declare, or require, a prison’s duty of care. Many
states have statutes that require prison officials to provide adequate medical care. For
example, in New York, Section 70(2)(c) of the New York State Correction Law directs
Department of Correctional Services officials to maintain and operate correctional facilities
“with due regard to ... the health and safety of every person in the custody of the
Department.”209 There are also common law claims of medical malpractice and negligence
actions that you may bring.
The most common method of proving that a defendant breached a duty is to have an
expert provide testimony that the defendant did not use the usually accepted procedures. For
example, in Stanback v. State, the plaintiff’s expert testified that an x-ray of plaintiff’s knee
would have revealed his torn ligament. Yet, prison doctors only offered ace bandages, braces,
and painkillers and did not x-ray the knee for over three and one-half years. 210 Expert
testimony is not always necessary. In Rivers v. State, the court stated that “[a] medical
expert’s testimony is not required where a lay person, relying on common knowledge and
206. See Sanderfer v. Nichols, 62 F.3d 151, 155 (6th Cir. 1995) (finding that a failure to check
medical records that contained a history of hypertension amounts to “negligence at most,” even though
plaintiff died because medication worsened his hypertension and led to a heart attack).
207. Brown v. Sheridan, 894 F. Supp. 66, 69–72 (N.D.N.Y. 1995) (finding that prison officials
were not negligent for failing to treat a prisoner’s broken leg because the prisoner would not cooperate
with medical care, appeared to move easily, and did not tell officials of his injury).
208. Estelle v. Gamble, 429 U.S. 97, 103–06, 97 S. Ct. 285, 290–92, 50 L. Ed. 2d 251, 259–61
(1976). Note that the Court finds that a cognizable claim for breach of this duty must include
allegations of “acts of omission” sufficiently harmful to constitute deliberate indifferences to serious
medical needs.
209. N.Y. Correct. Law § 70(2)(c) (McKinney 2003 & Supp. 2006).
210. Stanback v. State, 163 A.D.2d 298, 298–99, 557 N.Y.S.2d 433, 433–34 (2d Dept. 1990).
experience, can find that the harm would not have occurred in the absence of negligence.”211
In other words, if an ordinary person could have used common sense to find out that
negligence must have occurred, you do not need an expert witness. Thus, no expert testimony
was necessary in Rivers to prove that a doctor was negligent when he performed a hernia
operation on a prisoner’s right side, even though the patient required the operation on his
left side and the hernia was visible on the left side.212 As previously noted in Part B of this
Chapter, there are differences between medical malpractice and medical negligence claims.
The need for an expert is linked to this distinction: if you do decide to file a medical
malpractice claim, you may need an expert witness to support your claim that a reasonable
medical practitioner would not have caused the injury you claim was caused.
Finally, you must prove that the breach of duty was the direct cause of your injury. This
element is not ordinarily difficult to prove, but if you interfere with your treatment in any
way, you may fail to prove direct causation. For example, in Brown v. Sheridan, the plaintiff
lost his case when the defendant showed that he was “particularly uncooperative” and so
angry and violent that medical personnel could not enter his cell.213 Also, in Marchione v.
State, the plaintiff did not succeed on a negligence claim when he was given medication for
hypertension, which caused him to become permanently impotent.214 Medical experts proved
that the impotence would occur if not treated within eight hours after the onset of symptoms.
Although the prisoner noticed the symptoms by ten o’clock in the morning, he did not
indicate his situation was an emergency and delayed making a specific report of his
symptoms until the evening.215
An advantage to filing a state tort claim is that you only need to establish negligence, a
lower standard than deliberate indifference. A disadvantage to filing a state tort claim is that
you can only get money damages, while Section 1983 provides both declaratory relief
(meaning a judgment that is binding on both parties in the present and the future) and
injunctive relief (meaning a court order that prohibits or commands action to undo some
wrong or injury) in addition to money damages. Furthermore, a negligence action may only
be filed in state court while a Section 1983 claim can be filed in either federal or state court.
(c) Article 78 Proceedings in New York State
In New York, there is a legal procedure called an Article 78 proceeding that allows you to
challenge a decision made by a state official.216 If you are denied medical care, you can bring
a complaint under Article 78 to require the prison to provide that care. In an Article 78
proceeding, you can recover only limited money damages.217 To be successful, you must be
able to show that the prison authorities were deliberately indifferent to your serious medical
needs. 218 The statute of limitations requires that the proceeding be brought within four
211. Rivers v. State, 142 Misc. 2d 563, 567, 537 N.Y.S.2d 968, 971 (N.Y. Ct. Cl. 1989), rev’d on
other grounds, 159 A.D.2d 788, 552 N.Y.S.2d 189 (3d Dept. 1990).
212. Rivers v. State, 142 Misc. 2d 563, 567, 537 N.Y.S.2d 968, 971 (N.Y. Ct. Cl. 1989), rev’d on
other grounds, 159 A.D.2d 788, 552 N.Y.S.2d 189 (3d Dept. 1990).
213. Brown v. Sheridan, 894 F. Supp. 66, 72 (N.D.N.Y. 1995).
214. Marchione v. State, 194 A.D.2d 851, 855, 598 N.Y.S.2d 592, 594–95 (3d Dept. 1993).
215. Marchione v. State, 194 A.D.2d 851, 855, 598 N.Y.S.2d 592, 595 (3d Dept. 1993).
216. N.Y. C.P.L.R. 7801 (McKinney 1994).
217. Money damages are limited to those “incidental to the primary relief sought,” and must be
such “as [the plaintiff] might otherwise recover on the same set of facts in a separate action … in the
supreme court against the same body or officer in its or his official capacity.” N.Y. C.P.L.R. 7806
(McKinney 1994).
218. Moore v. Leonardo, 185 A.D.2d 489, 490, 586 N.Y.S.2d 37, 37–38 (3d Dept. 1992) (finding
prisoner failed to show deliberate indifference when facility’s medical staff met with prisoner 23 times
and gave treatment); DeFlumer v. Dalsheim, 122 A.D.2d 872, 873, 505 N.Y.S.2d 919, 920 (2d Dept.
1986) (finding prisoner did not meet standard when he complained officials gave him plastic frame
months of the denial.219 Administrative remedies must be exhausted before beginning an
Article 78 proceeding. See Chapter 22 of the JLM for more information on Article 78
proceedings in New York, “How to Challenge Administrative Decisions Using Article 78 of
the New York Civil Practice Law and Rules.”
2. Remedies for Federal Prisoners
(a) Bivens Actions Under 28 U.S.C. § 1331
A Bivens action is the federal prisoner’s equivalent to a state prisoner’s Section 1983
action.220 In a Bivens action, you must prove that the doctor or official showed deliberate
indifference to your serious medical needs. For more on Bivens actions, see Chapter 16 of the
JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of
Federal Law.”
(b) Federal Tort Claims Act
Under the Federal Tort Claims Act (“FTCA”),221 you can obtain relief if the prison doctor
or official was negligent.222 In other words, you can sue the federal government something a
government employee did or failed to do while working for the government harmed you.223
Courts look to see whether the behavior would be a tort in the state where the alleged
behavior occurred. If it is a tort in that state, you can sue the U.S.
If the injury was caused by intentional behavior, however, a claim cannot be brought
under the FTCA.224 For example, an allegation of assault and battery (considered purposeful
behavior under the law) could not be brought as an FTCA claim. If the act or omission that
caused your injury arose from a discretionary duty, you cannot sue under the FTCA.
If you do meet FTCA suit requirements, you must bring it against the United States, not
the federal employees who caused your injury. If you name employees as defendants, the
court will dismiss your suit.225
glasses instead of metal frame ones); Bryant v. Brunelle, 284 A.D.2d 936, 936, 726 N.Y.S.2d 315, 315–
16 (4th Dept. 2001) (finding prison officials were not deliberately indifferent for refusing to provide
prisoner with orthopedic shoes and inserts and for granting an exam by a different podiatrist than
requested).
219. N.Y. C.P.L.R. 217(1) (McKinney 2003).
220. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct.
1999, 29 L. Ed. 2d 619 (1971); see also Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 988, 152 L.
Ed. 2d 12, 21 (2002) (holding that prisoner wishing to bring a Bivens suit must try administrative
remedies first).
221. 28 U.S.C. §§ 1346(b), 2671–80 (2000).
222. United States v. Muniz, 374 U.S. 150, 163–64, 83 S. Ct. 1850, 1858, 10 L. Ed. 2d 805, 815–
16 (1963) (allowing suit under the FTCA based on prisoner’s claim that the negligence of prison
employees was responsible for the delay in diagnosis and removal of the tumor which caused prisoner’s
blindness); Clay v. Martin, 509 F.2d 109, 114 (2d Cir. 1975) (permitting action under the FTCA for
alleged negligence in medical experimentation on prisoner); Cain v. United States, 643 F. Supp. 175,
181 (S.D.N.Y. 1986) (denying U.S. government’s motion to dismiss suit alleging syphilis
experimentation on prisoner without his consent).
223. For the FTCA, conduct is within the scope of “employment” where there is a “reasonable
connection between the act and the agent’s duties” and where “the act is ‘not manifestly or palpably
beyond the [agent’s] authority’.” Yalkut v. Gemignani, 873 F.2d 31, 34 (2d Cir. 1989) (quoting Niert v.
Overby, 816 F.2d 1464, 1466 (10th Cir. 1987)).
224. You can bring a Bivens action for intentional torts. You may also bring a state tort claim.
See JLM Chapter 17, “The State’s Duty to Protect You and Your Property: Tort Actions,” for more
information about state tort claims.
225. See Lee v. Carlson, 645 F. Supp. 1430, 1434 (S.D.N.Y. 1986) (dismissing FTCA claim where
prisoner alleged liability against 13 defendants in their individual capacities because, under the FTCA,
the federal government is the only party the prisoner can sue).
(c) Choosing Between a Bivens Suit and an FTCA Action
If you are a federal prisoner, you may have the choice of bringing either a Bivens suit or
an FTCA claim. While it is easier to bring a successful FTCA action because it allows suit for
mere medical malpractice, there are several advantages to bringing a Bivens action not
available under the FTCA. First, while you cannot bring an FTCA action for an intentional
tort, you can bring a claim for an intentional tort in a Bivens suit against an individual.
Second, under the FTCA you can only sue the federal government, while in a Bivens action
you can sue the individuals who mistreated you. Third, under the FTCA you can only receive
compensatory damages (money equal to the cost of repairing or compensating the actual
injury you suffered), while in a Bivens suit you may receive punitive damages (extra money
awarded as a penalty against the wrongdoer). Fourth, in an FTCA action, you cannot later
sue the individuals who injured you, but in a Bivens action, if you are unable to collect on the
judgment against the individual employees, you can bring a suit against the government.
Finally, a judge hears an FTCA suit, but a jury hears a Bivens suit.
If your injury occurred because of a violation of your constitutional rights and also from a
tort, you can bring both an FTCA and a Bivens action. If you do not wish to bring both, you
can choose between them.
G. Conclusion
The Constitution and state law protect your right to adequate medical care. Part B
explained what you need to prove to show you have been denied adequate medical care in
violation of the Eighth Amendment. 226 You must show that you suffered serious harm
because you failed to receive medical treatment (the objective test),227 and that the prison
official who denied you treatment was deliberately indifferent to “an excessive risk to [your]
health or safety” (the subjective test). 228 Part C talked about how courts treat certain
common prisoner health complaints. Part D explained specific health rights for female
prisoners. Part E explained your right to receive information before you are treated and your
right to keep your medical records confidential. Part F talked about the different ways you
can go to court if your rights have been violated. Because this Chapter focused on federal and
New York State law, you will need to research the law in your own state if you are in a
prison outside of New York. Also, read Chapters 26, 28, and 29 of the JLM for more
information on your rights with respect to infectious diseases, disabilities, and mental
illness.
If you believe you are not receiving adequate medical care, the first step is to assert your
rights through your institution’s grievance procedure. If your problem is not addressed, you
will have preserved your right to bring a later suit in court. You can only bring your claim in
federal court, or state court in New York (an Article 78 proceeding), after you are
unsuccessful or do not receive a favorable result through the inmate grievance procedure.
Read Chapter 15 of the JLM to learn about Inmate Grievance Procedures.
226. Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).
227. Wilson v. Seiter, 501 U.S. 294, 304–05, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d 271, 283 (1991).
Manual
Chapter 24:
Your Right To Be Free from
Assault by Prison Guards and
Other Prisoners

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 24
YOUR RIGHT TO BE FREE FROM ASSAULT

BY PRISON GUARDS AND OTHER PRISONERS*
A. Introduction
The United States Constitution and state laws protect prisoners from certain acts of
violence and harassment, including attacks, rapes, and other forms of assault. If you believe
you have been subject to this type of abuse, this Chapter can help you figure out what legal
options are available to you. Part B of this Chapter will help you figure out what legal rights
you have against specific types of physical and sexual assaults. For example, Part B(3)
provides information about harassment by prison officials. Part B(4) explains legal
protections against sexual assault and rape. Part B(6) outlines special issues for gay,
homosexual, and/or effeminate prisoners. Part C explains how you can protect these rights.
Before getting started with your research, keep in mind that there are two types of laws
that protect your rights in prison: (1) federal constitutional law and (2) state law. Federal
constitutional law comes from the United States Constitution. The Constitution protects
prisoners from certain assaults. The most important protections against assault are the
Fifth, Eighth, and Fourteenth Amendments. This Chapter will explain each of these in more
detail and help you figure out if your rights under these Amendments have been violated.
For example, the Chapter will help you figure out if prison officials have violated your Eighth
Amendment right to be free from cruel and unusual punishment in prison.1 For a full list of
the Constitution’s amendments, see Part A of Chapter 16 of the JLM.
In explaining these constitutional rights, this Chapter will describe cases the U.S.
Supreme Court has decided. These cases will apply to you no matter where you are
imprisoned. This Chapter will also describe cases courts called “circuit courts of appeals”
have decided. Unlike Supreme Court cases, these circuit court cases do not apply everywhere
in the country; instead, circuit cases are binding (mandatory) only in the particular group of
states that make up the circuit. Therefore, before reading further, you may want to first
figure out which circuit your state is in. For instance, if you are in New York State, you are
in the Second Circuit. Once you know what circuit you are in, you can use the cases from that
circuit to understand and make an argument based on federal constitutional law. You can
also use cases from other circuits to help support your argument, but a court will not be
required to follow these cases. If you are confused, you should read Chapter 2 of the JLM,
“Introduction to Legal Research,” which describes all of this in more detail.
In addition to federal constitutional law, this Chapter describes New York State law.
This means if you are in a prison outside New York, although you can use this Chapter to
understand federal constitutional law and how state laws work in general, you will need to
research the specific laws of your state.
To summarize: if have been assaulted while in prison, you may be able to make a (1)
federal constitutional law claim (that is, a claim that your constitutional rights have been
violated) and/or (2) a state law claim (that is, a claim that a state law has been violated). The
specific state law claim that you bring will depend on the state where you are imprisoned.
* This Chapter was written by Anya Emerson based on previous versions by Sara Manaugh, Jennifer
Parkinson, Hannah Breshin Otero, Aric Wu, Sara Pikofsky, and Tami Parker. Special thanks to John
Boston of The Legal Aid Society, Prisoners’ Rights Project for his valuable comments.
1. The 8th Amendment states that “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.
Regardless of where you are imprisoned, you must bring a civil law claim. This means
you cannot bring criminal charges against your attacker, since only the government can
bring charges under criminal law.2 Note, though, you do not have to wait for the government
to criminally charge your attacker. If you have been assaulted and you want to sue your
attacker in court, you can bring a civil suit even if the government decides not to criminally
charge your attacker.
State civil law includes many different areas of law. The area of state civil law applying
to prison assaults is called “tort law.”3 Specifically, an assault is considered an “intentional
tort”—which means a wrongful act one person does to another. Tort law has developed in
each state as a part of the “common law” (judicial decisions of cases) rather than statutory
law (laws made by legislatures). This means that if you want to sue your attacker based on
state law, you will need to read the cases by state courts to understand the laws that will
apply to your case. In some states, the common law of torts has been “codified,” meaning that
the state legislature has organized the judicial case law on torts into legislative statutes.4
You should check to see whether tort law has been codified in your state. If it has, you can
find the definition of “assault” in the state statute. Tort law has not been codified in New
York State. If you are confused about tort law, you should read Chapter 17 of the JLM, “The
State’s Duty to Protect You and Your Property: Tort Actions.”
If you determine your rights have been violated under federal constitutional or state law,
before you can go to court, you will first need to follow the “administrative grievance
procedures” your prison has set up. This process is explained in Chapter 15 of the JLM,
“Inmate Grievance Procedures.” If the grievance system does not help you, or if it does not
help you enough, you can then file a suit in court. If you go to court, you must choose what
court to go to and what type of lawsuit to bring. You can (1) bring an action under Section
1983 of Title 42 of the United States Code (42 U.S.C. §5 1983) in state or federal court, (2)
file a tort action in state court (in the New York Court of Claims6 if you are in New York), or
2. See Lewis v. Gallivan, 315 F. Supp. 2d 313, 316 (W.D.N.Y. 2004) (dismissing prisoner’s § 1983
complaint that the county sheriff and district attorney had failed to investigate and criminally prosecute
two corrections officers for threatening him: “[T]he law is well settled that no private citizen has a
constitutional right to bring a criminal complaint against another individual” and “[t]here is … no
constitutional right to an investigation by government officials” (quoting Stone v. Dep’t of Investigation of
N.Y., No. 91 Civ. 2471, 1992 U.S. Dist. Lexis 1120, at *7 (S.D.N.Y. Feb. 4, 1992)).
3. Note that if you are a prisoner in a federal institution, you will need to sue for simple tort
violations using the Federal Tort Claims Act (“FTCA”). The FTCA is a law that allows you to sue the
federal government for negligent or harmful actions by its employees. Without the FTCA, you could not
sue the federal government in tort because the federal government would be “immune” from this kind
of suit. It is important to note that “[u]nder the FTCA, courts apply the law of the state where the
accident occurred.” Robinson v. U.S. Bureau of Prisons, 244 F. Supp. 2d 57, 64 (N.D.N.Y. 2003). See
also 28 U.S.C. §§ 1346(b) (2004); Part E(4) of Chapter 16 of the JLM, “Using 42 U.S.C. § 1983 and 28
U.S.C. § 1331 to Obtain Relief from Violations of Federal Law.”
4. The general principles of tort law have also been organized into a “Restatement” by the
American Law Institute. The Restatement is a useful resource for learning about tort law in general but
is not binding law.
5. Remember that “§” is the symbol for “section.” For example, § 1983 means “Section 1983.”
Therefore, “§ 1983” refers to a specific section, Section 1983, of a law (here a law in the United States
Code).
6. The New York Court of Claims is a specific New York State court that only hears claims for
damages against the State of New York. If the person who injured you was a state official or employee,
and you decide to file a tort action in state court in New York, you should file your claim in the New
York Court of Claims. The Court of Claims can only award money damages; it cannot issue an
injunction. See Part C(4) of Chapter 5 of the JLM, “Choosing a Court & Lawsuit,” for more information
on the Court of Claims. Chapter 17 of the JLM, “The State’s Duty to Protect You and Your Property:
Tort Actions,” explains tort actions in more detail.
(3) file an Article 787 petition in state court if you are in New York. More information on all
of these types of claims can be found in other chapters of the JLM, including Chapter 5,
“Choosing a Court and a Lawsuit;” Chapter 16, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331
to Obtain Relief From Violations of Federal Law;” Chapter 17, “The State’s Duty to Protect
You and Your Property: Tort Actions;” and Chapter 22, “How to Challenge Administrative
Decisions Using Article 78 of the New York Civil Practice Law and Rules.” If you decide to
file a federal court claim, you must read JLM Chapter 14 on the Prison Litigation Reform
Act (“PLRA”). If you do not follow the steps required by the PLRA, you might lose your right
to sue (and possibly your good-time credit also).
B. Your Right to be Free from Assault
This Part of the Chapter is organized into eight different sections. Part B(1) explains the
legal definition of “assault” and when courts consider prison assaults unlawful. Part B(2)
explains how the Eighth Amendment, which forbids cruel and unusual punishment, protects
convicted prisoners against assaults by both prison guards and other prisoners. Part B(3)
talks about your rights against harassment. Part B(4) explains, for both men and women
prisoners, the federal and state laws if you have been sexually assaulted. Part B(5) explains
why you should not use force to resist, even if you think the order, assault, or search by
prison officials is illegal. Part B(6) presents special issues for gay, homosexual, lesbian,
and/or effeminate prisoners. Finally, Part B(7) explains your protections from assault under
state laws and state constitutions.
1. The Legal Concept of Assault
Most people think of “assault” as a violent physical attack, but the legal name for an
actual physical attack is “battery.”8 In contrast, “assault” means an act—like a threat, verbal
abuse, or harassment—that makes a person afraid he will be physically attacked. 9 For
example, an “assault and battery” charge means you are charged with both making someone
afraid that you will attack him (“assault”) as well as actually physically attacking him
(“battery”). Both are examples of “torts.”
Outside prison, most threats and unwanted touching or uses of force are torts and are
therefore illegal. But in prison, tort law “privileges” or allows prison staff to use some force
that would not be allowed outside. Therefore, if you were assaulted in prison, most courts
will not find your rights were violated (that the act against you was illegal and an “actionable
tort”) unless you were physically attacked. If you were only verbally threatened or harassed,
most courts will not find that the prison officials violated your rights. For more on torts and
assault under state tort law, see Part B of Chapter 17 of the JLM on tort actions.
Constitutional law is similar to tort law in this respect. Verbal threats by prison staff
generally do not violate the Constitution.10 But if the verbal abuse comes with a believable
7. An Article 78 petition refers to a petition using Article 78 of the New York Civil Practice Law.
You cannot use Article 78 to seek damages for assault or other injury. Instead, you can use an Article
78 petition to go to court to challenge decisions made by New York State administrative bodies or
officers, like the Department of Correctional Services or prison employees, if you think the decision was
illegal, arbitrary, or grossly unfair. See Part C(6) of Chapter 5, “Choosing a Court & Lawsuit,” and
Chapter 22 of the JLM, “How to Challenge Administrative Decisions Using Article 78 of the New York
Civil Practice Law and Rules,” for more about Article 78 proceedings.
8. Battery is “[t]he use of force against another, resulting in harmful or offensive contact.” Black’s
Law Dictionary 162 (8th ed. 2004).
9. Assault is “[t]he threat or use of force on another that causes that person to have a reasonable
apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable
fear … of an immediate battery … [or] an attempt to commit battery [with] the specific intent to cause
physical injury.” Black’s Law Dictionary 122 (8th ed. 2004).
10. See Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir. 1995) (holding that prison officials’
threat of serious physical harm, courts might find a constitutional violation.11 Even then,
under the Prison Litigation Reform Act (“PLRA”), you cannot sue for compensatory
damages 12 (and, in some circuits, punitive damages 13 ) in federal court for mental or
emotional injury unless you were also physically injured.14 See JLM Chapter 14, “The Prison
Litigation Reform Act,” for information on the PLRA’s physical injury requirement.
sexually harassing words to prisoner were not enough for a claim); Oltarzewski v. Ruggiero, 830 F.2d
136, 139 (9th Cir. 1987) (holding that prison official’s use of vulgarity (bad language) did not state a
constitutional claim); Collins v. Cundy, 603 F.2d 825, 826 (10th Cir. 1979) (holding that sheriff’s
laughing at prisoner and threatening to hang him did not state a constitutional claim); Maclean v.
Secor, 876 F. Supp. 695, 698 (E.D. Pa. 1995) (“It is well established that verbal harassment or threats
… will not, without some reinforcing act accompanying them, constitute a constitutional claim.”);
Murray v. Woodburn, 809 F. Supp. 383, 384 (E.D. Pa. 1993) (“Mean harassment … is insufficient to
state a constitutional deprivation.”); Prisoners’ Legal Ass’n v. Roberson, 822 F. Supp. 185, 189 (D.N.J.
1993) (“[V]erbal harassment does not give rise to a constitutional violation enforceable under § 1983.”);
Govan v. Campbell, 289 F. Supp. 2d 289, 300 (N.D.N.Y. 2003) (“A claim under 42 U.S.C. § 1983 is not
designed to rectify harassment or verbal abuse.”); Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir.
2004) (“[H]arassment and verbal abuse … do not constitute the type of infliction of pain that the Eighth
Amendment prohibits.”); Graves v. N.D. State Penitentiary, 325 F. Supp. 2d 1009, 1011–12 (D.N.D.
2004) (finding that even though a guard’s racially derogatory language was “offensive, degrading, and
reprehensible,” “the use of racially derogatory language will not, by itself, violate the 14th Amendment
‘unless it is pervasive or severe enough to amount to racial harassment’” (quoting Blades v. Schuetzle,
302 F.3d 801, 805 (8th Cir. 2002)).
11. See Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992) (finding prisoner stated a §
1983 8th Amendment excessive force claim for psychological injuries where plain-clothed corrections
officers surprised plaintiff on the street while he was out on work release and, without identifying
themselves, threatened at gunpoint to kill him before taking him back to jail; the court held the
“brandishing of a lethal weapon” was “not an idle and laughing threat” but was malicious and sadistic
and, though plaintiff was not physically injured, his alleged psychological injury was not de minimus
because “convicted prisoners have a constitutional ‘right to be free from the terror of instant and
unexpected death’ at the hands of their keepers”) (citations omitted); Burton v. Livingston, 791 F.2d 97,
100 (8th Cir. 1986) (finding the allegation that a guard drew a weapon, made racial epithets, and
threatened to shoot a black prisoner in the back to prevent him from exercising free speech stated §
1983 claim); see also Hudson v. McMillian, 503 U.S. 1, 16–17, 112 S. Ct. 995, 1004, 117 L. Ed. 2d 156,
172 (1992) (Blackmun, J., concurring) (stating a “guard placing a revolver in an inmate’s mouth and
threatening to blow [the] prisoner’s head off” was an unnecessary and wanton infliction of pain—albeit
psychological, not physical pain—amounting to an 8th Amendment excessive force violation); Jackson
v. Crews, 873 F.2d 1105, 1108 (8th Cir. 1989) (affirming jury verdict for plaintiff in a § 1983 excessive
force claim against a police officer where the officer, in trying to arrest the plaintiff for public
drunkenness, caught and handcuffed the fleeing plaintiff on the ground and then slammed his face into
the pavement, threatening to break his neck); Douglas v. Marino, 698 F. Supp. 395, 397 (D.N.J. 1988)
(upholding a constitutional claim where a prison employee threatened to kill a prisoner while gesturing
with a butcher’s knife).
12. Compensatory damages are money damages that reimburse you for the actual injury you
suffered in an effort to “make you whole again” or to put you in the same position as you were before
the injury occurred. These types of damages might include reimbursement for medical expenses or
money in recognition of pain and suffering.
13. Punitive damages are damages awarded in addition to compensatory damages that are
meant to punish a defendant who was reckless or acted with intent.
14. The PLRA prohibits all federal civil actions (constitutional and tort claims) brought in federal
court by prisoners (convicted felons and misdemeanants, and pretrial detainees,) for mental or
emotional injury suffered while in custody where there was no related physical injury. 42 U.S.C. §
1997e(e) (2000). The Federal Tort Claims Act has a similar requirement for convicted felons (but not
pretrial detainees or misdemeanants): no convicted felon can “bring a civil action against the United
States or an agency, officer, or employee of the Government, for mental or emotional injury suffered
while in custody without a prior showing of physical injury.” 28 U.S.C. § 1346(b)(2) (2000). See Chapter
14 of the JLM, “The Prison Litigation Reform Act” for more information.
(a) You Must Prove That Your Attacker Intended to Touch or Harm
You
(i) State Torts and Intent
Because assault and battery are torts and each state has its own state tort law, state
courts use different tests to determine whether someone’s use of force against you is wrongful
(whether that person has committed the torts of assault and battery against you).15 All states
require you to show that the defendant intended to act against you in some way. Some states
require you to prove that the defendant intended to touch you in an offensive or violent
way.16 Other states require you to show that the defendant acted unlawfully,17 or that the
defendant behaved with willful disregard for your rights. 18 In New York, courts use the
“intentional touching” standard.19
All state courts believe the use of force in prison is sometimes necessary for safety
reasons and to maintain order. Therefore, courts often think that a prison official’s
intentional use of physical force on a prisoner is not wrongful (a battery), even if the same
use of force outside prison would be illegal.
To prove the tort of battery (physical assault), you must show the defendant intentionally
acted, but you do not have to show the officer intended to harm you.20 Let’s say a prison
official handcuffed you very tightly, permanently hurting your wrists and hands. To prove
this was battery, you must show the guard intended to handcuff you, but you do not have to
show the guard intended to hurt you when he handcuffed you.
(ii) Constitutional Torts and Intent
It is difficult to prove an assault is not only a tort under state law but also violated your
constitutional rights under the Eighth Amendment’s prohibition of cruel and unusual
punishment. To prove an assault against you violated your constitutional rights, you must
show your attacker both intended to handcuff you and intended to hurt you. This means if
you were injured when prison staff intentionally touched you, you could bring a successful
claim of assault and battery under state tort law—even if you cannot prove that the official
specifically meant to hurt you. But, if you can show the official intended to harm you, you
could include both the constitutional violation and the state torts of assault and battery in
your suit.
15. As described in the Introduction to this Chapter, the tests used by courts today come from past
judicial decisions—called the common law—that some states have now made into statutes.
16. See, e.g., Tower Ins. Co. of N.Y. v. Old N. Blvd. Rest. Corp., 245 A.D.2d 241, 242, 666 N.Y.S.2d
636, 637 (1st Dept. 1997) (“To establish a civil battery a plaintiff need only prove intentional physical
contact by defendant without plaintiff’s consent; the injury may be unintended, accidental or
unforeseen.”).
17. See, e.g., Glowacki v. Moldtronics, Inc., 636 N.E.2d 1138, 1140 (Ill. App. 2d Dist. 1994) (holding
that since smoking is not unlawful, in order for plaintiff to recover on a battery action based on harm
allegedly caused by her co-workers’ smoking, she would have to demonstrate that they intended to harm
her).
18. See, e.g., Ashcraft v. King, 228 Cal. App. 3d 604, 613 (Cal. App. 2d Dist. 1991) (“In an action for
civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful
disregard’ for the plaintiff’s rights.”).
unforeseen.”).
unforeseen.”).
(b) Can You Sue the Prison If You Were Assaulted by Other Prisoners?
(i) State Tort of Negligence
If you were physically attacked by another prisoner and believe that prison officials were
partly responsible for the attack, you may also be able to file a lawsuit against the prison
and/or the prison officials. But here, you cannot claim assault and battery (because the
prison officials did not attack you). 21 Instead, you can use the law of negligence. 22
“Negligence” is a tort like assault and battery under state tort law.23 If another prisoner is
attacking you, prison officials should try to stop the attack. If they do not, you could sue them
for negligence. To prove the prison officials’ negligence in such a situation, you must show
the court that the officials “failed to exercise [or use] reasonable care” in allowing the attack
to happen24—in other words that the officials did not act like reasonably careful people to
prevent the attack. You will need evidence that: (1) the officials knew (or reasonably should
have known) that you would be harmed or that there was a substantial risk that you would
be harmed;25 and (2) the officials did not act to prevent it.
Winning a negligence claim against prison officials for a prisoner-on-prisoner assault is
difficult.26 Courts only find negligence in limited situations, for example: when the attacker
is a prisoner officials knew or should have known was drunk or violent;27 when the plaintiff
21. If an officer participated in the attack, however, you can also claim assault and battery against
the participating officer (in addition to your claim of negligence against the other officers whom you
believe allowed the attack to happen).
22. See Part B(2) of Chapter 17 of the JLM, “The State’s Duty to Protect You and Your Property:
Tort Actions,” for more on negligence and negligent torts.
23. Negligence is “the failure to exercise the standard of care a reasonably prudent person would
have exercised in a similar situation; any conduct that falls below the legal standard established to
protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or
willfully disregardful of others’ rights; a tort grounded in this failure, usually expressed in terms of the
following elements: duty, breach of duty, causation, and damages.” Black’s Law Dictionary 1061–62 (8th
ed. 2004).
24. The Restatement (Second) of Torts defines the general rule: “One who is required by law to
take or who voluntarily takes the custody of another under circumstances such as to deprive the other
of his normal power of self-protection or to subject him to association with persons likely to harm him,
is under a duty of exercising reasonable care so to control the conduct of third persons as to prevent
them from intentionally harming the other or so conducting themselves as to create an unreasonable
risk of harm to him, if the actor (a) knows or has reason to know that he has the ability to control the
conduct of the third persons, and (b) knows or should know of the necessity and opportunity for
exercising such control.” Restatement (Second) of Torts, § 320. The Restatement of Torts is published
by the American Law Institute and presents the general principles of tort law.
25. See Sanchez v. New York, 99 N.Y.2d 247, 255, 784 N.E.2d 675,680, 754 N.Y.S.2d 621, 626
(2002) (holding that “the State owes a duty of care to inmates for foreseeable risks of harm; and that
foreseeability is defined not simply by actual notice but by actual or constructive notice—by what the
‘State knew or had reason to know’ [or] … what the State ‘is or should be aware’ of …. The requisite
foreseeability is as to a ‘risk of harm’ … or ‘risk of inmate-on-inmate attack’”; actual notice or “proof of
specific notice of time, place or manner of the risk” is not required); see, e.g., Flaherty v. State, 296 N.Y.
342, 346, 73 N.E.2d 543, 544 (1947) (denying plaintiff prisoner’s claim after finding it was not
foreseeable that a fellow prisoner with whom the plaintiff had been arguing would pour acid on the
sleeping plaintiff).
26. See, e.g., Wilson v. New York, 303 A.D.2d 678, 679, 760 N.Y.S.2d 51, 52 (2d Dept. 2003)
(affirming dismissal of negligence claim by prisoner injured by other prisoners; “While the State’s duty
to an inmate encompasses protection from the foreseeable risk of harm at the hands of other prisoners
… the State is not an insurer of an inmate’s safety. The State will be liable in negligence for an assault
by another inmate only upon a showing that it failed to exercise adequate care to prevent that which
was reasonably foreseeable.”).
27. See, e.g., Littlejohn v. New York, 218 A.D.2d 833, 833-34, 630 N.Y.S.2d 407, 408 (3d Dept.
1995) (holding the State has a duty to use reasonable care to protect prisoners from foreseeable risks of
harm and affirming judgment for prisoner where prisoner’s face was slashed by a “known dangerous
was exposed to a mentally ill prisoner; 28 when the plaintiff was exposed to an armed
prisoner;29 when the plaintiff was exposed to a prisoner overseer or “trustee”;30 when the
plaintiff was exposed to a prisoner who had a grudge against him or who had threatened
him;31 or when the prison does not have enough supervisory staff on duty.32
prisoner,” whom prison officials knew was violent and had many prior assaults); Kemp v. Waldron, 125
Misc. 2d 197, 199, 479 N.Y.S.2d 440, 441 (Sup. Ct. Schenectady County 1984) (finding county jail
prisoner, assaulted by two fellow prisoners, stated claim against sheriff for negligence and breach of
statutory duty to provide for prisoner’s safety, and against unknown correction officer for negligence,
because sheriff knew the other prisoners were dangerous and violent), aff’d, 115 A.D.2d 869, 497
N.Y.S.2d 158 (3d Dept. 1985).
28. See, e.g., Bartlett v. Commonwealth, 418 S.W.2d 225, 228 (Ky. Ct. App. 1967) (finding for the
plaintiff parents of a 15-year-old prisoner in a state juvenile facility who was murdered by two fellow
prisoners, both of whom had records of violence and mental and emotional instability; court noted the
general rule that the keeper of a prison must exercise ordinary care for the protection of his prisoner if
there is reasonable grounds to foresee danger to the prisoner, and held the trial court committed a
reversible error in excluding the attackers’ records from evidence); Dunn v. Swanson, 217 N.C. 279, 280–
81, 7 S.E.2d 563, 564 (1940) (finding cause of action against sheriff and county jail official, alleging
negligence in locking a prisoner in the same cell with a violently insane man who killed the prisoner, who
was weak, sick, and helpless, by beating him with a leg torn from a table left in the cell by the jailer and
sheriff). But see Mobley v. State, 1 A.D.2d 731, 732, 147 N.Y.S.2d 414, 416 (3d Dept. 1955) (finding no
negligence in state’s failure to segregate or more closely guard an allegedly dangerous prisoner once
diagnosed with psychosis, where there was no showing that the state had notice that the prisoner was so
much more dangerous than the other prisoners that it was improper to allow him to perform ordinary
tasks in the prison or mix with the other prisoners), reargued and appeal denied, 1 A.D.2d 928, 150
N.Y.S.2d 561 (3d Dept. 1956); Hann v. State, 137 Misc. 2d 605, 611, 521 N.Y.S.2d 973, 977 (N.Y. Ct. Cl.
1987) (finding that it was not foreseeable that prisoner with history of assaultive behavior and recently
released from psychiatric hospital would attack fellow prisoner).
29. See, e.g., Huertas v. State, 84 A.D.2d 650, 650, 444 N.Y.S.2d 307, 308 (3d Dept. 1981) (finding
negligence where, immediately before fatal assault, assailant left his work area with iron bar visible
under his clothes, in plain view of five correction officers); Jackson v. Hollowell, 714 F.2d 1372, 1373 (5th
Cir. 1983) (finding prison officials liable when prisoner was struck by ricocheting pellet fired from sawed-
off shotgun fired by armed prison trustee).
30. Jackson v. Mississippi, 644 F.2d 1142, 1146 (5th Cir. 1981) (establishing a “constitutional
right to be free from cruel and unusual punishment in the form of trusty shooters who were
inadequately screened for mental, emotional, or other problems”). “Trustees” or “trusty shooters” are
prisoners “armed with loaded shotguns … entrusted with the responsibility of guarding the other
inmates.” Jackson v. Hollowell, 714 F.2d 1372, 1373 (5th Cir. 1983) (establishing prisoner’s constitutional
right to be free from inadequately screened trusty shooters).
31. See, e.g., Rangolan v. County of Nassau, 51 F. Supp. 2d 236, 238 (E.D.N.Y. 1999) (upholding
judgment that county jail was negligent as a matter of law for housing prisoner in the same “jail pod”
as prisoner he had served as a confidential informant against and who subsequently beat him badly),
vacated in part on other grounds, 370 F.3d 239 (2d Cir. 2004); Ashford v. District of Columbia, 306 F.
Supp. 2d 8, 16–19 (D.D.C. 2004) (finding prisoner did state a common law negligence claim, where
prisoner was severely stabbed by a fellow prisoner against whom he had a permanent separation order
after being transferred to a new prison not aware of the separation order).
32. Negligence is seldom found in such a case. For an unusual example, see Bourgeois v. United
States, 375 F. Supp. 133, 135 (N.D. Tex 1974) (holding that under the Federal Tort Claims Act, federal
prison officials were negligent in, among other things, failing to provide adequate supervisory
personnel when a prisoner was injured after a fellow prisoner threw a “Molotov cocktail” into his cell).
But see Robinson v. U.S. Bureau of Prisons, 244 F.Supp.2d 57, 65 (N.D.N.Y. 2003) (noting that, to
determine the foreseeability of an attack, courts may look at evidence “including staffing levels, the
ability of staff to monitor the inmates, past behavior of inmates and prison staff, state regulations
regarding the staffing of correctional facilities and the monitoring of inmates, and expert testimony
regarding the staffing levels at issue”); Colon v. State, 209 A.D.2d 842, 844, 620 N.Y.S.2d 1015, 1016
(3d Dept. 1994) (reversing court of claims judgment for prisoner who claimed the prison failed to
provide adequate supervision after being attacked by a fellow prisoner in a prison engine repair shop
during a supervisor’s brief absence, instead finding the State provided reasonable supervision and
“unremitting supervision … was unnecessary and the fact that [the prison official was] not present at
the time of the incident, in and of itself, is insufficient to support a finding that the State failed to
(ii) Constitutional “Tort” of Deliberate Indifference
If another prisoner assaulted you, you may be able to make a federal constitutional claim
of “deliberate indifference” as well as a state tort claim of negligence. But, remember that
constitutional violations are harder to prove than state torts. “Deliberate indifference” refers
to prison officials’ actions or inactions that are worse than negligence (carelessness) and so
bad they violate the Eighth Amendment’s ban on cruel and unusual punishment. You will
have to prove that the prison officials actually knew that you were going to be attacked but
did nothing or too little to stop the attack (were “deliberately indifferent” to the danger), not
just that the officials were negligent and “should have known” you were in danger. Part
B(2)(a)(ii) below explains more about how to show prison officials’ “deliberate indifference.”33
(c) Are Body Searches and Sexual Attacks Also “Assault”?
Assaults occurring in prison can include more than just violent physical attacks. Forced
sexual contact and illegal body cavity searches certainly interfere with your body and may
also be assaults and batteries. 34 Courts use the same civil and constitutional tort laws
(including the Eighth Amendment) to decide claims of sexual assault. Part B(4) of this
Chapter explains some special legal protections you have against sexual assault. In contrast,
courts usually use the Fourth Amendment, not the Eighth Amendment, to decide claims of
illegal searches. The Fourth Amendment protects your right to be free from unreasonable
searches and seizures.35 Some illegal body cavity searches, however, may also violate the
Eighth Amendment if a court feels the search is so unreasonable that it constitutes cruel and
unusual punishment. 36 But remember that most courts will not find any constitutional
violations as long as the official who searched you was acting to further some legitimate
penological (or prison-related) interest and the pain you suffered was only a side effect, not
the main purpose of the search.37 See Part B(3) of Chapter 25, “Your Right to Be Free From
Illegal Body Searches,” for more information on when searches may violate the Eighth
Amendment.
exercise reasonable care”).

33. See Farmer v. Brennan, 511 U.S. 825, 829, 114 S. Ct. 1970, 1974, 128 L. Ed. 2d 811, 820 (1994)
(announcing that deliberate indifference requires showing “the official was subjectively aware of the
risk”); Knowles v. N.Y. City Dep’t of Corr., 904 F. Supp. 217, 222 (S.D.N.Y. 1995) (“Mere negligence,
however, on the part of a prison official will not give rise to a claim under § 1983.”).
34. See, e.g., Hammond v. Gordon County, 316 F. Supp. 2d 1262, 1303 (N.D. Ga. 2002) (holding
female plaintiff had sufficient evidence to claim assault and battery against male prison official who
placed the plaintiff “in apprehension of an unlawful touch when guard pointed a gun at plaintiff and
attempted to engage in sexual conduct with her;” also recognizing second plaintiff’s claim for
intentional infliction of emotional distress when another guard penetrated her vagina with his fingers).
35. The 4th Amendment states that “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S.
Const. amend. IV.
36. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1521 (9th Cir. 1993) (finding that random, non-
emergency clothed body searches of women prisoners by male guards violated the 8th amendment);
Tribble v. Gardner, 860 F.2d 321, 325 (9th Cir. 1988) (finding prisoner’s claim that a rectal probe may
have been punitive could proceed, where prisoner’s clothing, hair, hands, and other body cavities were not
searched and prisoner’s recent X-ray revealed no contraband in his rectum); Dellamore v. Stenros, 886 F.
Supp. 349, 351 (S.D.N.Y. 1995) (finding that plaintiff subjected to body cavity search without a medical
practitioner present stated a colorable claim under the 8th Amendment).
37. See Del Raine v. Williford, 32 F.3d 1024, 1038–42 (7th Cir. 1994) (finding that while rectal
searches may inflict pain, if the official has a legitimate reason to conduct them, they do not violate the
8th Amendment).
(d) When is Assault Prohibited by the Law?
As this Chapter explained above, not all physical touching or physical force is unlawful
assault. The difference between lawful and unlawful assault is particularly important for
prisoners. Actions that would be considered unlawful outside prison may be allowed as
“lawful force” in prison. For example, prison officers may use lawful force against prisoners
to maintain order and ensure rules are obeyed.38
Also, because corrections officers are government actors, they can use the defense of
“qualified immunity”39 when sued under Section 1983. This means even if you can prove you
were assaulted, the officials may not be liable because of qualified immunity. For a detailed
discussion of qualified immunity and Section 1983, see Part (C)(3)(c) (“Qualified Immunity”)
and Part B (“Section 1983”) of Chapter 16 of the JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C.
§ 1331 to Obtain Relief From Violations of Federal Law.”
2. Protection from Assault Under the Eighth Amendment
This Section is about the right of convicted state and federal prisoners to be free from
assault under the Eighth Amendment,40 which prohibits “cruel and unusual punishment.”41
This Section first explains how to prove an assault against you was so “cruel and
unusual” as to violate the Eighth Amendment. Under the Eighth Amendment, prison
officials cannot use excessive physical force against you42 or deliberately allow you to be
seriously injured by someone else. 43 Part B(2)(a) explains how you must show what the
prison official was thinking or knew at the time of the assault (this is assault’s “subjective
component”). Finally, Part B(2)(b) explains what kinds of injuries, if any, you must show you
received from an assault by a prison official or how a prison official’s actions caused you to be
in “substantial risk of serious harm” of being attacked by another prisoner (this is assault’s
“objective component”).
To summarize, to show that an assault against you violated the Eighth Amendment, you
must prove that the force used against you had two components (parts):
(1) A subjective component: prison officials must have acted with a sufficiently culpable
(guilty enough) state of mind;44 and
38. N.Y. Correct. Law § 137(5) (West 2003 & Supp. 2008) (“When any inmate, or group of inmates,
shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or
resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend
themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders
and to prevent any such attempt or escape.” (emphasis added)).
39. Qualified immunity is defined as “[i]mmunity from civil liability for a public official who is
performing a discretionary function, as long as the conduct does not violate clearly established
constitutional or statutory rights.” Black’s Law Dictionary 766 (8th ed. 2004).
40. This Chapter explains how the 8th Amendment’s right to be free from cruel and unusual
punishment can protect you from assaults and body searches. But, the 8th Amendment protects
prisoners in other ways too, like from general prison conditions like overcrowding and uncleanliness
(see Part B(2)(d) of Chapter 16 of the JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain
Relief From Violations of Federal Law”), and lack of proper medical care (see Chapter 23 of the JLM,
“Your Right to Adequate Medical Care”).
42. See Hudson v. McMillian, 503 U.S. 1, 6–7, 112 S. Ct. 995, 999, 117 L. Ed. 2d 156, 165–66 (1992)
(holding that excessive force may constitute an 8th Amendment injury even if prisoner is not seriously
physically harmed).
43. See Farmer v. Brennan, 511 U.S. 825, 833–34, 114 S. Ct. 1970, 1976–77, 128 L. Ed. 2d 811,
822–23 (1994) (finding that prison officials are obligated to protect prisoners from violent attacks by other
prisoners); see also Vaughan v. Ricketts, 859 F.2d 736, 741 (9th Cir. 1988) (“[P]rison administrators’
indifference to brutal behavior by guards toward inmates [is] sufficient to state an Eighth Amendment
claim.”).
44. Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 999, 117 L. Ed. 2d 156, 166 (1992) (“[T]he
(2) An objective component: you were injured somehow45 or placed in substantial risk of
serious injury.46
(a) Subjective Component—Culpable State of Mind
The subjective component of assault means you must prove what the prison official was
thinking or knew at the time you were assaulted. Courts use two different standards (the
Hudson and Farmer standards) for the subjective component. The standard used depends on
who assaulted you: a prison official or another prisoner. If an official hurt you, courts use the
Hudson standard to look at whether the guard used force as part of his job to keep the prison
safe and orderly or instead whether the guard’s force was intended to cruelly hurt you for no
legitimate reason. If another prisoner hurt you, courts use Farmer to look at whether the
prison officials knew about the danger to you but did not stop or prevent the assault.47
(i) Assault by a Prison Official—The Hudson Standard
If you are suing a prison official who injured you, a court will use the “malicious and
sadistic” standard the Supreme Court created in Hudson v. McMillian 48 to determine
whether the official’s force against you was so bad (“excessive”) it violated the Eighth
Amendment. Under Hudson, a prisoner must demonstrate that the prison official’s force was
not “a good-faith effort to maintain or restore discipline,” but rather was used “maliciously
and sadistically” to hurt the prisoner.49 “Malicious and sadistic” means evil and cruel.
If officials are using force for legitimate reasons, they are not violating the Eighth
Amendment.50 Prison officials are generally allowed to use force during a riot or other major
core judicial inquiry is ... whether force was applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.”).
extent of injury suffered by a prisoner is one factor that may suggest ‘whether the use of force could
plausibly have been thought necessary’ in a particular situation.” (quoting Whitley v. Albers, 475 U.S.
312, 321, 106 S. Ct. 1078, 1085, 89 L. Ed. 2d 251, 261–62 (1986))).
46. Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811, 823 (1994) (in
a claim of failure to protect, stating prisoner “must show … he is incarcerated under conditions posing a
substantial risk of serious harm”).
47. Note that if a prison official injured you in the presence of or with the knowledge of other
officials, you could sue both the official who harmed you and the officials and/or supervisors who knew
about it and did nothing. The prison officials who knew but did nothing about your assault would be
liable under the Farmer standard—not the Hudson “malicious and sadistic” standard. See, e.g., Blyden
v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) (finding the deliberate indifference standard applied to
prison supervisors if “after learning of the violation through a report or appeal, … [the supervisor]
failed to remedy the wrong …, created a policy or custom under which unconstitutional practices
occurred, or allowed such a policy or custom to continue …, [or] was grossly negligent in managing
subordinates who caused the unlawful … event.” (internal citations omitted)); Buckner v. Hollins, 983
F.2d 119, 122 (8th Cir. 1993) (applying the deliberate indifference, or Farmer, standard to a claim based
on prison official’s failure to act); Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989)
(“[S]upervisory liability may be imposed when an official has actual or constructive notice of
unconstitutional practices and demonstrates ‘gross negligence’ or ‘deliberate indifference’ by failing to
act.”); Vaughan v. Ricketts, 859 F. 2d 736, 741 (9th Cir. 1988) (“[P]rison administrators’ indifference to
brutal behavior by guards toward inmates [is] sufficient to state an Eighth Amendment claim.”); Madrid
v. Gomez, 889 F. Supp. 1146, 1249 (N.D. Cal. 1995) (noting supervisors may be liable for “conduct of a
completely different nature: abdicating their duty to supervise and monitor the use of force and
deliberately permitting a pattern of excessive force to develop and persist”).
48. Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992).
49. Hudson v. McMillian, 503 U.S. 1, 6–7, 112 S. Ct. 995, 998–99, 117 L. Ed. 2d 156, 165–66 (1992).
question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately
turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing harm.” (quoting Whitley v. Albers, 475 U.S. 312, 320–21,
prison disturbance, 51 and during smaller individual incidents when prisoners behave
violently or disruptively.52 But, if the force has no purpose and is simply meant to harm the
prisoner for no legitimate reason, then the official may be found to have used excessive force.
53 In other words, if the force is inflicted with the purpose of causing harm and not with the
purpose of restoring discipline, then the official may be found to have used excessive force.
To decide if the prison official intended to act maliciously and to harm you (to determine
the official’s “state of mind”), courts will look at:
(1) the seriousness of your injuries;54
(2) if the force was necessary under the circumstances (why the official used force);
(3) the relationship between the need to use force and the amount of force that was
actually used;
(4) the size of the threat as a prison official would reasonably see it; and
(5) efforts made by prison guards to decrease the amount of force used.55
You should think about each of these factors when you try to prove that prison officials
intentionally used violence against you only to cause you pain. You need to remember that
“not every push or shove, even if it may later seem unnecessary,” violates your constitutional
rights.56 Even if force was used, you may not have a successful claim. Nevertheless, some uses
of force may be so excessive that they are unconstitutional, even in emergency or urgent
circumstances.57
The Ninth Circuit has held there is no requirement of specific intent to harm or punish a
specific individual.58 This means even if the officer meant to hit someone else, he can still be
found liable if he hit you instead. For instance, in Robins v. Meecham, a prisoner was injured
by birdshot a correction officer had fired at another prisoner.59 The court held even though
the officer did not have a specific intent to harm or punish Robins, the officer did intend to
harm a different prisoner, thus satisfying the intent requirement.60
106 S. Ct. 1078, 1085, 89 L. Ed. 2d 251, 261 (1986))).

51. Whitley v. Albers, 475 U.S. 312, 318–26, 106 S. Ct. 1078, 1083–88, 89 L. Ed. 2d 251, 259–66
(1986) (finding no 8th Amendment violation where prisoner was shot as part of a good-faith effort to
restore prison security).
52. Hudson v. McMillian, 503 U.S. 1, 6, 112 S. Ct. 995, 998–99, 117 L. Ed. 2d 156, 165 (1992)
(finding that during a riot or a lesser disruption, “corrections officers must balance the need to maintain
or restore discipline through force against the risk of injury to inmates”).
53. See, e.g., Estate of Davis by Ostenfeld v. Delo, 115 F.3d 1388, 1394–95 (8th Cir. 1997) (finding
an 8th Amendment excessive force violation when a corrections officer struck a non-resisting prisoner
in the head and face 20 to 25 times while four other officers restrained his limbs, resulting in serious
injury).
54. Courts also look at the seriousness of your injuries in deciding the objective component of an
8th Amendment violation. But, the seriousness of your injuries is also important to proving the subjective
component because it can help show whether it was reasonable for the guard to think the force he used
was necessary. Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 999, 117 L. Ed. 2d 156, 166 (1992).
55. Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 999, 117 L. Ed. 2d 156, 166 (1992).
56. Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973), distinguished on other grounds by
Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
57. See Jones v. Huff, 789 F. Supp. 526, 535–36 (N.D.N.Y. 1992) (finding violations of prisoner’s 8th
Amendment rights when corrections officers repeatedly used gratuitous force against prisoner, causing
injury).
58. See Robins v. Meecham, 60 F.3d 1436, 1439 (9th Cir. 1995) (“[T]he Eighth Amendment does not
require a specific intent to punish a specific individual. The basic threshold of the Eighth Amendment is
that the offending conduct must be wanton.”).
59. Robins v. Meecham, 60 F.3d 1436, 1438 (9th Cir. 1995).
60. Robins v. Meecham, 60 F.3d 1436, 1440 (9th Cir. 1995).
Still, it is important to note that if a prison official intends to harm a prisoner, but in the
end does not hurt the prisoner, the prisoner will not have a claim.61 For example, in Warren
v. Humphrey, a prison official attempted to kick a prisoner in the head but missed.62 Because
he missed, there was no harm and no case.63 Remember that the Prison Litigation Reform
Act would probably also prevent you from making a similar claim because it requires a
physical injury, not just a mental injury.64
(ii) Assault by Another Prisoner—The Farmer Standard
If you are suing a prison official who did not stop or prevent another prisoner from
attacking you, the court will use the “deliberate indifference” 65 standard from Farmer v.
Brennan.66 Prison officials may be found liable under the deliberate indifference standard if
they:
(1) knew of a substantial risk of serious harm to the prisoner; and
(2) disregarded the risk by failing to act reasonably to avoid it.67
Because prisoners often cannot protect themselves, courts have decided that the
government must take reasonable steps to protect prisoners from violence by other
prisoners. 68 The Eighth Amendment creates a constitutional right for prisoners to be
protected from harm by fellow prisoners. 69 Although courts have mainly applied the
“deliberate indifference” standard to cases where a prison official does not prevent a prisoner
from assaulting another prisoner, courts have also applied the standard to situations where a
prison official does not prevent another official from attacking a prisoner.70 Thus, Farmer
61. Warren v. Humphrey, 875 F. Supp. 378, 382 (E.D. Tex. 1995) (“[P]laintiff must allege some
injury in order to sustain a claim of being subject to excessive force.”); Jackson v. Culbertson, 984 F. 2d
699, 700 (5th Cir. 1993) (finding trivial amounts of force not repugnant to the conscience of mankind do
not violate the 8th Amendment’s Cruel and Unusual Punishment Clause).
62. Warren v. Humphrey, 875 F. Supp. 378 (E.D. Tex. 1995).
63. Warren v. Humphrey, 875 F. Supp 378, 382 (E.D. Tex. 1995).
64. 42 U.S.C. § 1997e(e) (2003). See Part F of Chapter 14 of the JLM, “The Prison Litigation
Reform Act,” for more information on the PLRA’s limitations on actions for mental or emotional injury.
65. Note that “deliberate indifference” is also the legal standard for 8th Amendment violations
regarding medical care and general prison conditions, in addition to prisoner-on-prisoner assaults.
(“[A] prison official must have a sufficiently culpable state of mind … In prison-conditions cases that state
of mind is one of ‘deliberate indifference’ to inmate health or safety.”)..
68. See Dace v. Solem, 858 F.2d 385, 388 (8th Cir. 1988) (“[T]he Constitution requires prison
officials to protect prisoners from inmate attack while in custody.”); see also Berry v. City of Muskogee,
900 F.2d 1489, 1496–99 (10th Cir. 1990) (finding where prisoner was strangled to death in prison by two
men whom he had identified as helping him commit the crime for which he was serving time, officials
could have known of the danger based on the prior relationship); Cortes-Quinones v. Jiminez-Nettleship,
842 F.2d 556, 562–63 (1st Cir. 1988) (finding officials were deliberately indifferent to the safety needs of a
psychiatrically disturbed prisoner who was killed in an overcrowded prison); Gangloff v. Poccia, 888 F.
Supp. 1549, 1555 (M.D. Fla. 1995) (finding that prison officials have a duty to protect prisoners from one
another); Fisher v. Koehler, 692 F. Supp. 1519, 1559 (S.D.N.Y. 1988) (“Although the state is not obliged to
insure an assault-free environment, a prisoner has a constitutional right to be protected from the
unreasonable threat of violence from his fellow inmates.”)
69. See Smith v. Marcantonio, 910 F.2d 500, 501 (8th Cir. 1990) (stating that a prisoner’s right to
be protected from harm by other prisoners is “beyond dispute”); see also Farmer v. Brennan, 511 U.S.
825, 833–34, 114 S. Ct. 1970, 1976–77, 128 L. Ed. 2d 811, 822–23 (1994) (“[P]rison officials have a duty
... to protect prisoners from violence at the hands of other prisoners.... [G]ratuitously allowing the
beating or rape of one prisoner by another serves no legitimate penological objectiv[e], any more than it
squares with evolving standards of decency. Being violently assaulted in prison is simply not part of the
penalty that criminal offenders pay for their offenses against society.”).
70 . See Buckner v. Hollins, 983 F.2d 119, 123 (8th Cir. 1993) (finding grounds for an 8th
deliberate indifference lawsuits are also known as “failure-to-protect” claims.71 You can go to
court to claim prison officials are being deliberately indifferent to unsafe conditions or a
threatened assault against you, even if you have not yet been assaulted.72
The Supreme Court in Farmer v. Brennan held prison staff show deliberate indifference
when they fail to take reasonable safeguards despite their actual knowledge of an excessive
or substantial risk73 to a prisoner’s safety.74 If you were assaulted by another prisoner (or
prison guard) and believe prison officials’ deliberate indifference allowed the assault to
happen, you will have to prove to the court that:
(1) There was a substantial risk to your safety; and
(2) The prison officials knew of this risk to your safety; and
(3) The prison officials did not try to prevent the assault; or
(4) The prison officials did nothing to stop the assault; or
(5) The prison officials tried to prevent or stop the assault, but they did not try as hard
as they should (their attempts to prevent the assault were not reasonable).
Remember, courts also use the deliberate indifference standard in claims against
supervisors for inadequate supervision and control of subordinates, and against bystanding
officers witnessing an assault.75
(1) Proving a Substantial Risk to Your Safety
You must first show that there was/is a substantial risk of serious harm to your safety
from another prisoner to satisfy the objective component of the Farmer test (see Part
B(2)(b)(ii), below).
(2) Proving the Prison Officials Knew About This Risk
You must also provide evidence that the official knew of the substantial risk to your
safety.76 You do not have to prove the official definitely knew you were going to be attacked.
You only have to show the official knew there was a substantial risk that you would be
harmed.77 But you do not have to show that the officials knew you were personally at risk or
that the risk came from a particular prisoner.78
Amendment claim when state corrections officer failed to stop an assault by county corrections officer on
naked, handcuffed prisoner in cell).
71. See, e.g., Farmer v. Brennan, 511 U.S. 825, 831, 114 S. Ct. 1970, 1975, 128 L. Ed. 2d 811, 821
(1994).
72. Helling v. McKinney, 509, U.S. 25, 34, 113 S Ct. 2475, 2481, L. Ed. 2d 22, 32. (1993) (“[A]
prisoner need not wait until he is actually assaulted before obtaining relief. ... [T]he Eighth Amendment
protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of
pain and suffering.”).
There may be a “substantial risk” of harm if a prisoner receives specific, personal threats and/or has
characteristics common to vulnerable prisoners. This is true even when all prisoners could be considered
vulnerable.
75. See, e.g., Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) (holding correctional officers to a
deliberate indifference standard); Madrid v. Gomez, 889 F. Supp. 1146, 1248 (N.D. Cal. 1995)
(“Municipalities can be found liable where the failure to train or supervise subordinates evinces deliberate
indifference that leads to constitutional deprivations.”).
76. See Lewis v. Richards, 107 F.3d 549, 553–54 (7th Cir. 1997) (finding no 8th Amendment
violation where prisoner failed to present sufficient evidence that officials knew of risk to his safety and
consciously disregarded that risk after the prisoner was subjected to three separate sexual assaults);
Davis v. Scott, 94 F.3d 444, 446–47 (8th Cir. 1996) (finding no 8th Amendment violation where prison
informant was attacked after his return to the general population, because there was no “solid evidence”
that anyone in the general population posed an “identifiable serious risk” to his safety).
77. See Jensen v. Clarke, 94 F.3d 1191, 1197 (8th Cir. 1996) (finding that prison officials, who knew
Remember that for Eighth Amendment deliberate indifference claims, saying prison
officials should have known of the substantial risk to your safety is not enough79 (although in
that case you still may be able to make a state law negligence tort claim as described in Part
(B)(1)(a)(i)). Eighth Amendment deliberate indifference claims require the prison officials to
have had actual knowledge of the substantial risk to your safety.80
You can show that the officials actually knew about this substantial risk by presenting
both direct evidence and circumstantial evidence of the threat.81 Courts consider “[w]hether a
prison official had the requisite knowledge of a substantial risk ... [which is] a question of
fact.”82 For example, if you have evidence that the threat to your safety was “longstanding,
pervasive, well-documented, or expressly noted by prison officials in the past,” or that the
that violence in the prison was frequent and regular, but did not use available classification information
to try to assign compatible prisoners as cellmates, were deliberately indifferent to the increased risk of
violence arising from random cell assignments).
78. Farmer v. Brennan, 511 U.S. 825, 843, 114 S. Ct. 1970, 1982, 128 L. Ed. 2d 811, 829 (1994);
see Brown v. Budz, 398 F.3d 904, 914–15 (7th Cir. 2005) (holding deliberate indifference can be
established by knowledge either of a victim’s vulnerability or of an assailant’s predatory nature; both
are not required); Pierson v. Hartley, 391 F.3d 898, 902–03 (7th Cir. 2004) (holding that a prisoner
could recover for assault by a violent prisoner assigned to a “meritorious housing” unit in violation of
prison policy regardless of whether prison staff knew of the risk to the particular prisoner who was
injured); Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004) (holding that a transsexual prisoner could
recover for assault by a known “predatory inmate” either because leaving her in a unit containing high-
security prisoners threatened her safety, or because placing the attacker in protective custody created a
risk for the other occupants); Marsh v. Butler County, Ala., 268 F.3d 1014, 1027–30 (11th Cir. 2001) (en
banc) (finding prisoners assaulted in a county jail stated a claim where the jail had no functioning cell
locks or surveillance, prisoners made weapons from pieces of the run-down building, and there was a
lack of segregation or discipline of violent prisoners, crowding, understaffing, and lack of mental health
screening); Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 621 (2d Cir. 1996) (prisoner’s refusal to name
his enemies to prison staff does not by itself determine if staff knew of risk to him); Jensen v. Clarke,
94 F.3d 1191, 1198–1200 (8th Cir. 1996) (affirming injunction based on generalized increase in violence
attributed to random assignment of cellmates); LaMarca v. Turner, 995 F.2d 1526, 1535–36 (11th Cir.
1993) (liability can be based on “general danger arising from a prison environment that both stimulated
and condoned violence”); Coleman v. Wilson, 912 F. Supp. 1282, 1316 (E.D. Cal. 1995) (risk of harm
from systemic medical care deficiencies is obvious); Abrams v. Hunter, 910 F. Supp. 620, 624-25 (M.D.
Fla. 1995) (acknowledging potential liability based on awareness of generalized, substantial risk of
serious harm from prisoner violence), aff'd, 100 F.3d 971 (11th Cir. 1996); Knowles v. N.Y. City Dep’t of
Corr., 904 F. Supp. 217, 221 (S.D.N.Y. 1995) (finding a valid claim where prison officials knew of an
ethnic “war” among prisoners, that a Hispanic prisoner who had been cut had been transferred to
plaintiff’s jail, and that plaintiff was part of a group at risk because of his accent and appearance).
79. See Riccardo v. Rausch, 375 F.3d 521, 526 (7th Cir. 2004) (“‘Deliberate indifference’ means
subjective awareness. It is not enough, the Court held in Farmer, that the guard ought to have
recognized the risk. Instead, ‘the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.’”); Knowles
v. N.Y. City Dep’t of Corr., 904 F. Supp. 217, 222 (S.D.N.Y. 1995) (“Mere negligence, however, on the part
of a prison official will not give rise to a claim under § 1983.”).
80. See Carter v. Galloway, 352 F.3d 1346, 1350 (11th Cir. 2003) (per curiam) (dismissing
medium-security prisoner plaintiff’s claim for assault, after plaintiff was stabbed by his maximum-
security cellmate, a known “problem inmate,” after plaintiff complained his cellmate was “acting crazy”
but had not specifically told prison officials his cellmate had threatened him as “[s]uch a generalized
awareness of risk in these circumstances does not satisfy the subjective awareness requirement”).
81. Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004) (“The official’s knowledge of the risk
can be proven through circumstantial evidence, such as by showing that the risk was so obvious that
the official must have known about it.”); see also Farmer v. Brennan, 511 U.S. 825, 840, 114 S. Ct. 1970,
1980, 128 L. Ed. 2d 811, 827 (1994) (stating that the concept of constructive knowledge is familiar enough
that the term “deliberate indifference would not of its own force, preclude a scheme that conclusively
presumed awareness from a risk’s obviousness”). In other words, a finder of fact, like a judge or a jury,
may conclude that an official was aware of the risk if the risk was obvious.
official must have known about the risk, then generally such evidence is enough to prove
that the official did know about the risk.83 You should expect that prison officials will try to
prove they did not actually know about the facts showing you were in danger, or that even if
they did know of some risk to your safety, they reasonably believed the risk was not
significant.84 You should try to present more evidence that the prison officials actually knew
of the risk to your safety than just your own complaints that you were in danger. Your
complaints alone may not prove that prison officials knew about the risk because courts do
not expect guards to believe every protest or complaint a prisoner makes.85
(3) Prison Officials Did Not Act Reasonably to Prevent or
Stop Assault
Finally, you must prove that the official acted or failed to act in a situation where the
official knew that you were at a substantial risk of harm.86 It is important to understand that
if a prison official does take reasonable steps to help you, but you are assaulted anyway, then
you will likely lose in court because courts will not find the official acted with deliberate
indifference.87
(4) Examples of Farmer Deliberate Indifference Cases
In the Eighth Circuit case Reece v. Groose,88 Reece was in administrative segregation
because he had been an informant for the Drug Enforcement Agency and had the reputation
among other prisoners of being a “snitch.”89 While he was in segregation, a prisoner assigned
to sweep the corridors in the segregation unit assaulted Reece by throwing hot water on
him.90 The prisoner who assaulted Reece had a prior history of threatening behavior and
numerous infractions.91 The court said that because Reece had the reputation of being a
“snitch,” and was therefore a target for other prisoners, he faced an obvious substantial risk
of harm.92 Moreover, the court said that if the risk is obvious, you can assume that the prison
official knew of the risk.
83. Farmer v. Brennan, 511 U.S. 825, 842–43, 114 S. Ct. 1970, 1981–82, 128 L. Ed. 2d 811, 829
(1994).
84. Johnson v. Johnson, 385 F.3d 503, 525 (5th Cir. 2004) (noting prison officials defended
themselves by trying to show that it was reasonable to believe, based on the information they had at
the time, that there was no danger to the prisoner or that it was reasonable to disbelieve the prisoner’s
repeated complaints of sexual abuse); Farmer v. Brennan, 511 U.S. 825, 844, 114 S. Ct. 1970, 1982, 128
L. Ed. 2d 811, 830 (1994) (“[P]rison officials can try to prove that they ‘did not know of the underlying
facts’ or ‘believed (albeit unsoundly) that the risk ... was insubstantial or nonexistent’.”).
85. Riccardo v. Rausch, 375 F.3d 521, 527–28 (7th Cir. 2004) (“The Constitution does not oblige
guards to believe whatever inmates say…. [A] prisoner’s bare assertion is not enough to make the
guard subjectively aware of a risk, if the objective indicators do not substantiate the inmate’s
assertion.”).
86. See Farmer v. Brennan, 511 U.S. 825, 841–42, 114 S. Ct. 1970, 1981, 128 L. Ed. 2d 811, 828
(1994) (holding that under the 8th Amendment, prison officials could not be liable for inhumane
conditions of confinement unless the official had knowledge of the risk to the prisoner); see also Leibach v.
State, 215 A.D.2d 978, 627 N.Y.S.2d 463 (3d Dept. 1995) (stating that where an attack was planned in
secret, and correction staff was not aware of it, staff was not culpable).
87. Farmer v. Brennan, 511 U.S. 825, 844, 114 S. Ct. 1970, 1982–83, 128 L. Ed. 2d 811, 830
(1994) (emphasizing that there is no 8th Amendment violation if the official “responded reasonably to
the risk, even if the harm ultimately was not averted”).
88. Reece v. Groose, 60 F.3d 487 (8th Cir. 1995).
89. Reece v. Groose, 60 F.3d 487, 488 (8th Cir. 1995).
92. Reece v. Groose, 60 F.3d 487, 491 (8th Cir. 1995) (quoting Farmer v. Brennan, 511 U.S. 825,
833, 114 S. Ct. 1970, 1976, 128 L. Ed. 2d 811, 822 (1994)); see also Hamilton v. Leavy, 117 F.3d 742, 747
(3d Cir. 1997) (finding possible deliberate indifference under Farmer when prisoner had a history of
The Fifth Circuit in Horton v. Cockrell held that a prisoner had an Eighth Amendment
claim when prison officials failed to protect him from another prisoner.93 During a two-week
period, the prisoner filed three grievances and made at least one oral complaint regarding
fears of an attack by a fellow prisoner who had assaulted other prisoners.94 Because Horton
had filed complaints against the other prisoner, who had a history of assaulting others,
officials were probably aware of the risk of assault.
New York courts have also dealt with claims that guards failed to protect a prisoner from
other prisoners. In Knowles v. New York City Department of Corrections, another prisoner
slashed Knowles in the face while they were in the recreation area.95 Knowles brought an
action against prison officials stating they had known of the risk to him and were
deliberately indifferent to it.96 The guards had only patted down the prisoners when they had
entered the recreation area, instead of going through the normal strip search procedures.97
Furthermore, evidence existed that the prison officials knew about a “war” going on between
Spanish and Jamaican prisoners and that Knowles was among those prisoners at risk due to
his physical appearance and accent.98 The court held that this was enough evidence to create
uncertainty about whether or not the guards were deliberately indifferent to Knowles’
safety.99
In sum, prison officials may be found liable under the Farmer deliberate indifference
standard if they (1) know the prisoner is facing a substantial risk of serious harm; and
(2) disregard the risk by failing to take reasonable measures to avoid it. If they meet these
requirements, officials may be liable if they fail to prevent another prisoner or prison official
from attacking you. Prison officials may also be liable if there is a policy of permitting and
condoning a pattern of excessive force.100
(b) Objective Component
To prove the objective component of an Eighth Amendment violation, you must show
either you were injured (if assaulted by a prison official) 101 or the prison official’s
actions/inaction put you at “substantial risk of serious harm” from another prisoner, whether
or not you were actually assaulted.
(i) Seriousness of Harm in Assaults by Prison Officials
violent acts against fellow prisoner who was labeled a “snitch,” and officials failed to take additional
protective steps beyond recommending protective custody); Northington v. Marin, 102 F.3d 1564, 1567–68
(10th Cir. 1996) (finding deliberate indifference under Farmer when guard spread rumor that prisoner
was a snitch knowing that prisoner would thereby face serious risk of assault by other prisoners).
93. Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995).
94. Horton v. Cockrell, 70 F.3d 397, 399 (5th Cir. 1995); see also Williams v. Mueller, 13 F.3d 1214,
1216 (8th Cir. 1994) (finding cognizable 8th Amendment claim when, as two prisoners beat another for 20
minutes, officer stood idly, delayed requesting assistance, and blocked prisoner’s attempt to escape
assailants).
95. Knowles v. N.Y. City Dep’t of Corr., 904 F. Supp. 217 (S.D.N.Y. 1995).
96. Knowles v. N.Y. City Dep’t of Corr., 904 F. Supp. 217, 218 (S.D.N.Y. 1995).
97. Knowles v. N.Y. City Dep’t of Corr., 904 F. Supp. 217, 218–19 (S.D.N.Y. 1995).
100. See Matthews v. Crosby, 480 F.3d 1265, 1270-71 (11th Cir. 2007) (holding that a prison
warden’s knowledge of the violent propensities of some of his prison guards and his failure to act to
prevent them from assaulting prisoners could constitute deliberate indifference); Ruiz v. Estelle, 503 F.
Supp. 1265, 1302 (S.D. Tex. 1980) (finding 8th Amendment violations where prison officials encouraged
staff to indulge in excessive physical violence by rarely investigating reports of violence and failing to take
corrective disciplinary action against officers whom they knew to have brutalized prisoners), aff’d in part,
rev’d in part, 688 F.2d 266 (5th Cir. 1982), and 679 F.2d 1115 (5th Cir. 1982).
101. Hudson v. McMillian, 503 U.S. 1, 8, 112 S. Ct. 995, 999, 117 L. Ed. 2d 156, 166 (1992) (quoting
Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 2326, 2329, 1115 L. Ed. 2d 271, 278 (1991)).
To win a lawsuit against a prison official who assaulted you, your injuries must be bad
enough to violate your Eighth Amendment constitutional rights against “cruel and unusual
punishment.”102 Most often, courts require that you show you were seriously injured by the
prison official, although a few courts only require an injury, not a serious injury. 103 In
deciding if your injuries are bad enough, courts look to society’s standards of decency for
guidance.104 In general, society’s standards of decency are violated whenever prison officials
maliciously, evilly, or cruelly use force to cause harm “whether or not significant injury is
evident.”105 But in reality, “not ... every malevolent [cruel] touch by a prison guard gives rise
to a federal cause of action.”106
In other words, if your injuries are too small, there is probably no constitutional
violation. Courts call injuries they think are too small “de minimis” or state that they
occurred as the result of “de minimis” force. De minimis refers to the idea that “the law does
not concern itself with trifles” (small or trivial things).107 Some examples of injuries courts
have thought were de minimis are bumping, discomfort, sore wrists,108 cuts and swelling to
the wrists, 109 being slammed against a wall, 110 and being hit by swinging keys. 111 Some
examples of force courts have called de minimis are hitting a prisoner once on the head,112

103. Note that in some circuits a de minimis (minimal) injury may be sufficient to establish a
claim. See Archuleta v. Marshall, No. 00-2033, 2000 U.S. App. Lexis 17501, at *5 (10th Cir. Jul. 20, 2000)
(unpublished) (“The extent of the plaintiff’s injury is not determinative in assessing whether an Eighth
Amendment violation occurred. The inquiry for Eighth Amendment excessive force claims by convicted
prisoners is ‘whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.’” (citations omitted)); Flowers v. Phelps, 956 F.2d 488, 491 (5th
Cir. 1992) (holding that a prisoner, who had a sprained ankle from being beaten by corrections officers,
suffered a serious enough injury to have a successful 8th Amendment claim because such deliberate
excessive force claims required no minimum injury), vacated in part on other grounds, 964 F.2d 400 (5th
Cir. 1992); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992) (“The ‘malicious and sadistic’
requirement applies regardless of whether the plaintiff has alleged significant physical injury, for the
ultimate constitutional inquiry is directed at whether an unnecessary and wanton infliction of pain has
occurred.”); see also Watford v. Bruce, 126 F. Supp. 2d 425, 427 (E.D. Va. 2001) (“[T]he United States
Supreme Court recognized that a per se non de minimis injury requirement would give prison officials
carte blanche ability to ‘punish’ prisoners physically so long as the injuries inflicted were not severe.…
The Hudson Court did not specify what type or level of injury is necessary to state a viable claim.”).
104. Hudson v. McMillian, 503 U.S. 1, 2, 112 S. Ct. 995, 996, 112 L. Ed. 2d 156, 157 (1992); Estelle
v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251, 259 (1976).
(internal quotations omitted) (emphasis added).
108. Fillmore v. Page, 358 F.3d 496, 504-05 (7th Cir. 2004) (holding that incidental bumping,
discomfort, and sore wrists were de minimis and do not meet the constitutional threshold).
109. Watson v. Riggle, 315 F. Supp. 2d 963, 969-70 (N.D. Ind. 2004) (holding injury to prisoner’s
wrists, including a cut and some swelling, caused when guards removed his handcuffs was de minimis).
But see Wall v. County of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004) (holding that at least in the
context of the 4th Amendment, “[i]t is well-established that overly tight handcuffing can constitute
excessive force”).
110. Govan v. Campbell, 289 F. Supp. 2d 289, 300 (N.D.N.Y. 2003) (holding that prisoner’s claims
guard slammed him against the wall and rubbed up against him was “de minimis” and insufficient to
state a constitutional violation).
111. Norman v. Taylor, 25 F.3d 1259, 1263–64 (4th Cir. 1994) (requiring prisoner to establish more
than de minimis injury by deputy’s swinging of keys at the prisoner to maintain claim of excessive force);
White v. Holmes, 21 F.3d 277, 281 (8th Cir. 1994) (requiring prisoner to establish more than de minimis
injury caused by prison librarian throwing keys at prisoner and flailing her arms at prisoner’s head).
112. Olson v. Coleman, 804 F. Supp. 148, 150–51 (D. Kan. 1992) (holding that single blow that
struck prisoner on the head while he was handcuffed was not excessive use of force), vacated on other
grounds, No. 92-3281, 1993 U.S. App. LEXIS 10086, at * 3 (D. Kan. April 28, 1993) (unpublished).
spraying a prisoner with water,113 pressing a fist against a prisoner’s neck,114 and bruising a
prisoner’s ear during a routine search.115 So, if you go to court, you will most likely have to
show the physical force used against you was not minor and you received serious injuries as
a result.116
Courts do not have an exact definition for the type or degree of harm that you need to
claim cruel and unusual punishment. Courts usually say that “the unnecessary and wanton
infliction of pain” violates the Eighth Amendment,117 but they look at each case individually.
The following cases will show you in more detail what kinds of actions, intentions, and
injuries violate your constitutional rights and what kinds do not.
In Hudson, the prisoner suffered blows that caused “bruises, swelling, loosened teeth,
and a cracked dental palate.”118 The Supreme Court found that the violence against Hudson
and his injuries were serious enough to satisfy the “objective component” of the Eighth
Amendment. This provided the basis for a constitutional claim. But you should notice that
the Hudson Court, in finding a constitutional violation, also thought that it was important
that the officers intended to humiliate the prisoner.
Soon after the Supreme Court decided Hudson, a district court in New York used the
Hudson guidelines to determine the constitutionality of force used by corrections officers. In
Jones v. Huff, corrections officers failed to stop other officers from unnecessarily beating a
prisoner. 119 The excessive beating badly bruised and injured the prisoner, including a
fracture to his left eye. The same officers who did not stop the beating later ripped off the
prisoner’s clothes because they thought he was stripping too slowly. Even though the
prisoner had originally disobeyed orders, the court found the officers liable for not trying to
stop the other officers from beating the prisoner.120 There were several incidents examined in
this case. In one instance, liability was found where an officer kicked a prisoner in the
buttocks for no reason.121 Again, as in Hudson, the court found a constitutional violation
partly because the officers intended to humiliate the prisoner.
The Eighth Circuit in Estate of Davis by Ostenfeld v. Delo found an Eighth Amendment
violation where a corrections officer struck a prisoner in the head and face over twenty times
while four other officers restrained the prisoner’s limbs. The prisoner was seriously injured
as a result.122 The officers committed these acts even though the prisoner obeyed an order to
lie face down on the floor and did not resist efforts to restrain him.
113. Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993) (holding that guard’s spraying
prisoner with water because he started a fire was a de minimis use of physical force and was thus too
trivial to make out a violation of 8th Amendment rights).
114. Candelaria v. Coughlin, 787 F. Supp. 368, 374-75 (S.D.N.Y. 1992) (finding that guard pressing
his fist against prisoner’s neck, resulting in no physical injury, was de minimis force for 8th Amendment
purposes), aff’d, 979 F.2d 845 (2d Cir. 1992).
115. Siglar v. Hightower, 112 F.3d 191, 193–94 (5th Cir. 1997) (finding no 8th Amendment
violation where plaintiff suffered bruised ear during routine search; court deemed this a de minimis use of
force).
116. See, e.g., Thomas v. Stalter, 20 F.3d 298, 301–02 (7th Cir. 1994) (finding that excessive force
was used when an officer hit a prisoner in the mouth with his fist while the prisoner was held by at least
nine other officers); Munz v. Michael, 28 F.3d 795, 799 (8th Cir. 1994) (finding that excessive force was
used when marshals kicked and stomped on prisoner in retaliation for vandalizing interior of squad car).
117. Gregg v. Georgia, 428 U.S. 153, 173, 965 S. Ct. 2909, 2925, 49 L. Ed. 2d 859, 874–75 (1976).
119. Jones v. Huff, 789 F. Supp. 526, 535–36 (N.D.N.Y. 1992).
120. Jones v. Huff, 789 F. Supp. 526, 535–36 (N.D.N.Y. 1992) (finding that kicks and punches were
not part of a good-faith effort to restore discipline and could not have been thought necessary since the
prisoner was already pinned down by two other officers, and that stripping the prisoner “was done
maliciously with the intent to humiliate him”).
121. Jones v. Huff, 789 F. Supp. 526, 532 (N.D.N.Y. 1992).
122. Estate of Davis by Ostenfeld v. Delo, 115 F.3d 1388, 1394–95 (8th Cir. 1997).
In Hickey v. Reeder, the Eighth Circuit ruled that the use of a stun gun to force a
prisoner to clean his cell violated the prisoner’s Eighth Amendment rights.123 The Fourth
Circuit held in Williams v. Benjamin that a prisoner sprayed with mace and then restrained
on a bare-metal bed frame for over eight hours, without access to medical care or a toilet, had
an Eight Amendment claim.124
The Fifth Circuit in Flowers v. Phelps held that a prisoner who was beaten by corrections
officers, resulting in a sprained ankle, suffered a serious enough injury to have a successful
Eighth Amendment claim.125 The court stated that there is no minimum injury required for
Eighth Amendment claims of excessive force.126 In this way, even though a sprained ankle
may not seem like a bad injury, in Flowers it was serious enough not to be de minimis.
The Sixth Circuit has held that minor physical contact is enough to satisfy the objective
harm component for a constitutional claim if there is no legitimate reason for the contact. In
Pelfrey v. Chambers, the Sixth Circuit ruled that the prisoner had a legitimate claim against
a corrections officer who pulled a knife on him, grabbed his hands, and cut his hair with the
knife. 127 The court said that the corrections officer’s acts could not have been meant to
further any institutional objective and were designed “to frighten and degrade [the prisoner]
by reinforcing the fact that his continued well-being was entirely dependent on the good
humor of his armed guards.” 128 The court found this action to be a totally unnecessary,
malicious, and sadistic use of force to cause harm.129
Pelfrey demonstrates that when you bring a claim against a prison official, you might not
always need a significant physical injury. In this case, the fear caused by the official was
enough, even without any physical injury. After Pelfrey was decided, however, the Prison
Litigation Reform Act (“PLRA”) barred bringing claims in federal civil court for mental or
emotional injury not related to physical injury. So the PLRA requirements may now prevent
you from recovering compensatory damages (and in some courts, punitive damages as well)
in cases like this.130
(ii) Substantial Risk of Serious Harm from Other Prisoners
To satisfy the objective component in a Farmer deliberate indifference claim about a
prisoner assault, you must show you faced an objective, “substantial risk of serious harm.”
You can make a deliberate indifference claim even if you were never injured or attacked as
long as you can show you were at substantial risk of an assault. For a prison official’s actions
(or failure to act) to violate the Eighth Amendment, “the deprivation alleged must be
objectively, ‘sufficiently serious,’” and you “must show [you are] incarcerated under
conditions posing a substantial risk of serious harm.”131
It is important you understand that “not ... every injury suffered by one prisoner at the
hands of another translates into constitutional liability for prison officials responsible for the
victim’s safety.”132 In other words, if you never faced a substantial risk (or cannot prove you
did), you cannot prove prison officials were deliberately indifferent to that risk. For example,
123. Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993).

124. Williams v. Benjamin, 77 F.3d 756, 764–65 (4th Cir. 1996).
125. Flowers v. Phelps, 956 F.2d 488, 489–90 (5th Cir. 1992), vacated in part on other grounds, 964
F.2d 400 (5th Cir. 1992).
126. Flowers v. Phelps, 956 F.2d 488, 491 (5th Cir. 1992).
127. Pelfrey v. Chambers, 43 F.3d 1034, 1035 (6th Cir. 1995).
130. See Part F of Chapter 14 of the JLM, “The Prison Litigation Reform Act,” for further
information on the PLRA and its actual injury requirement.
in Berry v. Sherman,133 the Eighth Circuit decided that the plaintiff, a prisoner who was
assaulted by his cellmate, did not have an Eighth Amendment failure-to-protect claim
because no one, including the victim, had thought the cellmate was dangerous. Therefore, the
court rejected the prisoner’s lawsuit because he had failed to show a “substantial risk of
serious harm.”134
The Farmer Court did not explain how serious the risk must be to be “substantial.”135
Generally, courts assess whether society considers the risk that the prisoner complains of to
be so bad that it violates modern standards of decency to expose anyone unwillingly to such a
risk. In other words, the prisoner must show that the risk of which he complains is not one
that today’s society chooses to tolerate.136 Courts do not consider the general, everyday risk of
assault from other prisoners to be a “substantial risk” by itself.137
Remember that after you show you faced substantial risk of serious harm, you must
show prison officials knew about the risk but were deliberately indifferent (see above).
3. Harassment by Prison Officials
This Section explains when different types of harassment violate the Eighth
Amendment. Harassment can be verbal, physical, or sexual. Harassment may be about race,
sex, disability, language, national origin, sexual orientation, etc. New York State defines
harassment as “[e]mployee misconduct meant to annoy, intimidate, or harm an inmate.”138
Generally, verbal harassment alone does not violate the Eighth Amendment unless you are
also physically threatened at the same time. Sexual harassment is any unwanted sexual
attention. Generally, sexual comments by themselves are not sufficient to establish an
Eighth Amendment violation. 139 If you are being harassed, you should first try to file a
grievance through the inmate grievance system, discussed in JLM Chapter 15.
133. Berry v. Sherman, 365 F.3d 631, 631 (8th Cir. 2004).
134. Berry v. Sherman, 365 F.3d 631, 635 (8th Cir. 2004); see also Riccardo v. Rausch, 375 F.3d
521, 526–27 (7th Cir. 2004) (reversing judgment for prisoner plaintiff and holding that the prisoner had
not faced a substantial risk from his cellmate, who later assaulted him, because while the prisoner was
at risk of attack from the Latin Kings, his cellmate attacked him not for that reason but out of a
personal fantasy: “The risk from which [the prisoner plaintiff] Riccardo sought protection was not
realized; for all this record shows, the (objectively evaluated) risk to Riccardo of sharing a cell with
Garcia was no greater than the risk of sharing a cell with any other prisoner.”).
135. Farmer v. Brennan, 511 U.S. 825, 834 n.3, 114 S. Ct. 1970, 1977 n.3, 128 L. Ed. 2d 811, 823
n.3 (1994) (noting that the Court did not reach the question of “[a]t what point a risk of inmate assault
becomes sufficiently substantial for Eighth Amendment purposes”).
136. Helling v. McKinney, 509 U.S. 25, 35, 113 S. Ct. 2475, 2481, 125 L. Ed. 2d 22, 32–33 (1993)
(finding that being exposed to a cellmate that smoked five packs of cigarettes a day created, in theory, a
potentially valid claim under the 8th Amendment due to unreasonable health risk).
137. Jones v. Marshall, 459 F. Supp. 2d 1002, 1008 (E.D. Cal. 2006) (quoting Berg v. Kincheloe,
794 F.2d 457, 462 (9th Cir. 1986)) (“[T]he legal standard must not be applied to an idealized vision of
prison life, but to the prison as it exists.”).
139. See Adkins v. Rodriguez, 59 F.3d 1034, 1037–38 (10th Cir. 1995) (finding prison official’s
alleged verbal sexual harassment of prisoner did not violate the 8th Amendment because it did not
constitute deliberate indifference to the prisoner’s health or safety). When other forms of harassment
are combined with comments of a sexual nature, they may constitute cruel and unusual punishment in
violation of the 8th Amendment. See, e.g., Berry v. Oswalt, 143 F.3d 1127, 1131–33 (8th Cir. 1998)
(holding that allegations of attempted non-routine pat-downs combined with sexual comments and
propositions that caused fear and frustration met the objective prong of the 8th Amendment claim).
(a) Verbal Harassment Alone
You cannot have an Eighth Amendment claim for verbal assault only.140 Courts do not
think verbal abuse, including racial and sexual harassment, violates the Constitution. For
example, the Ninth Circuit held in Austin v. Terhune that a prisoner did not have an Eighth
Amendment claim where a guard verbally harassed the prisoner in a sexual manner and
briefly exposed the guard’s genitals.141 Similarly, the Sixth Circuit in Johnson v. Dellatifa
decided that a prisoner had no constitutional claim against a guard who banged his cell door,
threw food trays, made aggravating and insulting remarks, and behaved in a racially
prejudicial manner because harassment and verbal abuse are not Eighth Amendment
violations.142
(b) Verbal Harassment With Physical Threats
While simple verbal harassment does not violate the Eighth Amendment, courts have
held that when these assaults are accompanied by very serious physical threats (most cases
involve credible death threats), you may have a claim for psychological injury.143 However,
the PLRA states that prisoners may not bring a federal civil action for mental or emotional
injury suffered while in custody “without a prior showing of physical injury.”144 The courts
have interpreted this to mean that if you can only demonstrate a psychological injury, you
will not be able to recover money damages. The court can still grant you injunctive relief (a
court order to prevent officials or prisoners from harassing you) if you can show that this
conduct is likely to be repeated in the future.145 For more information on injunctive relief, see
Part L of Chapter 14 of the JLM, “The Prison Litigation Reform Act.”
(c) Sexual Harassment
Sexual harassment (or sexual assault) can be “any unwanted sexual attention a woman
[or man] experiences ... from leering, pinching, patting, verbal comments, and subtle
140. Webster v. City of New York, 333 F. Supp. 2d 184, 201 (S.D.N.Y. 2004) (“Being subjected to
verbally abusive language does not rise to the level of a constitutional claim in an Eighth Amendment
context.”); Minifield v. Butikofer, 298 F. Supp. 2d 900, 904–05 (N.D. Cal. 2004) (holding prisoner did
not state a constitutional claim for sexual harassment, where a prison official twice unzipped his pants
and told prisoner to grab his penis, because the Ninth Circuit has “specifically differentiated between
sexual harassment that involves verbal abuse and that which involves allegations of physical assault,
finding the later [sic] to be in violation of the constitution;” also noting the prisoner had not alleged any
physical injury, and under the Prison Litigation Reform Act, “[f]ailure to allege and establish an
appropriate physical injury is ground for dismissal”); Jones v. Brown, 300 F. Supp. 2d 674, 681 (N.D.
Ind. 2003) (holding pretrial detainee had no constitutional claim, where guard incorrectly told him
criminal charges had been dismissed, when in fact they had been referred to the prosecutor and
eventually became part of a plea bargain, because verbal abuse and harassment are not sufficient).
141. Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (“Although prisoners have a right to
be free from sexual abuse, whether at the hands of fellow inmates or prison guards, the Eighth
Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” (citations
omitted)).
142 . Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (“[T]he allegations, if true,
demonstrate shameful and utterly unprofessional behavior [but] they are insufficient to establish an
Eighth Amendment violation. … [H]arassment and verbal abuse … do not constitute the type of
infliction of pain that the Eighth Amendment prohibits.”).
143. See, e.g., Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992) (finding alleged threats
accompanied by the brandishing of weapons intended to make a person fear for his life would, if true,
violate the 8th Amendment).
144. 42 U.S.C. § 1997e(e) (2006).
145. See Zehner v. Trigg, 133 F.3d 459, 461–64 (7th Cir. 1997) (finding that in a suit for emotional
damages because of exposure to asbestos, a prisoner cannot sue for monetary damages but can sue for
other kinds of relief).
pressure for sexual activity.”146 Both men and women can be sexually harassed.147 Because
prison officials have so much power over prisoners, a corrections officer may try to force a
prisoner into “verbal or physical conduct of a sexual nature” by threatening him or her with
disciplinary action or some other punishment.148 This can be considered cruel and unusual
punishment violating a prisoner’s Eighth Amendment rights.
To decide if an act of sexual harassment or assault violated a prisoner’s Eighth
Amendment rights, courts look to see if the act offends “evolving standards of decency.”149 In
other words, a court will look at what society believes is acceptable and decent behavior to
decide whether an attacker’s behavior violated that standard. Sexual assault is a clear
violation, but comments of a sexual nature by themselves are usually not enough to violate
the Eighth Amendment.150
If a prison official sexually harassed you, you can file a lawsuit both against that official
and the prison. But know that it is difficult to make an Eighth Amendment claim for sexual
harassment against a correctional institution because you must prove that the
administrators showed “deliberate indifference” toward the harassment.151 In other words,
you must show that the prison administrators knew or must have known of the risk of
harassment, but ignored it. Showing this knowledge is difficult unless you have evidence
that you notified administrators of the problem or asked for help.
(d) Reporting Harassment in New York
New York law defines harassment as “[e]mployee misconduct meant to annoy,
intimidate, or harm an inmate” 152 and creates a special procedure for reporting
harassment. 153 The procedure says that if you think you are the victim of employee
misconduct or harassment, you should report the grievance to the prison employee’s direct
supervisor.154 You should also file a formal grievance with the Inmate Grievance Resolution
Committee (“IGRC”). 155 The Committee will forward it to the prison superintendent for
review.156 After receiving the grievance, the superintendent will decide within twenty-five
calendar days if the employee’s conduct was harassment.157 If you do not get an answer from
146. Laurie A. Hanson, Comment, Women Prisoners: Freedom from Sexual Harassment—A
Constitutional Analysis, 13 Golden Gate U.L. Rev. 667, 667 n.2 (1983) (citing Alliance Against Sexual
Coercion, Fighting Sexual Harassment 3 (1979)).
147. Boddie v. Schnieder, 105 F. 3d 857, 861 (2d Cir. 1997) (finding that sexual abuse of a male
prisoner may violate the 8th Amendment).
148. EEOC Guidelines on Sexual Harassment, 29 C.F.R. § 1604.11(a) (2007).
149. Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630, 642 (1958).
150. See Adkins v. Rodriguez, 59 F.3d 1034, 1037–38 (10th Cir. 1995) (finding prison official’s
alleged verbal harassment of prisoner did not violate the 8th Amendment because it did not constitute
deliberate indifference to the prisoner’s health or safety). When other forms of harassment are
combined with comments of a sexual nature, they may constitute cruel and unusual punishment in
violation of the 8th Amendment. See, e.g., Berry v. Oswalt, 143 F.3d 1127, 1131–33 (8th Cir. 1998)
(holding that allegations of attempted non-routine pat-downs combined with sexual comments and
propositions that caused fear and frustration met the objective of the 8th Amendment claim).
151. See Daskalea v. District of Columbia, 227 F.3d 433, 441, 343 U.S. App. D.C. 261, 269 (D.C.
Cir. 2000) (stating that a municipality can be found liable when it is a policy or custom that inflicts the
injury and finding that something constitutes a policy or custom when it arises out of deliberate
indifference).
the superintendent within this time, you can appeal the grievance to the Central Office
Review Committee (“CORC”).158
If you are a victim of sexual harassment, you should use the confidential procedure your
prison has in place to bring a formal complaint.159 If you keep copies of these complaints, you
may be able to later show administrators were aware of the problem and were deliberately
indifferent to your complaint.
4. Sexual Assault and Rape
Sexual assault and rape are both types of assaults. “Sexual assault” means any physical
contact of a sexual nature, such as fondling your genitals (your private parts). If you have
been sexually assaulted, you can make a claim using the laws described above.
If you were attacked by a prison official, you can make an Eighth Amendment claim and
a state tort law claim for assault and battery. Remember that even though prison officials
have the right to use lawful force to maintain order and security within the prison, they do
not have the right to sexually abuse you.160 Any bodily contact between you and a prison
official must be lawful force needed to maintain security and must relate to some penological
need, meaning the action must assist the official in running the prison. A guard cannot claim
that he is maintaining order or disciplining you for breaking some rule in order to force you
to have sexual relations with him or to touch him in a sexual way.161 If a prison official does
this, you can seek the protection of the law.162
Even consensual sex (sex that both people agree to) between a prisoner and a prison
official is not permitted. Such consensual sex will still violate the Eighth Amendment.163
Federal law specifically criminalizes all sexual contact between corrections officers and
prisoners in federal prisons, as Part B(4)(d) explains below. Many states, including New
York, have similar state laws,164 as Part B(4)(e) explains.
If you were sexually assaulted by another prisoner, you can claim prison officials were
deliberately indifferent to the risk to your safety in violation of the Eighth Amendment (in

159. Every facility should have a confidential and formal process for filing these complaints in
order to prevent retaliation. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(k) (2007). However, be aware
that complaints are not always kept “confidential” in reality.
160. See Women Prisoners v. District of Columbia, 877 F. Supp 634, 665 (D.D.C. 1994) (“Rape,
coerced sodomy, unsolicited touching of women prisoners’ vaginas, breasts, and buttocks by prison
employees are ‘simply not part of the penalty that criminal offenders pay for their offenses against
society.’” (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811, 823
(1994))), vacated in part on other grounds, 93 F.3d 910, 320 U.S. App. D.C. 247 (D.C. Cir. 1996).
161. See Women Prisoners v. District of Columbia, 877 F. Supp 634, 665 (D.D.C. 1994) (noting that
although security concerns sometimes trump privacy interests, the evidence did not show any justification
for invasion of prisoners’ privacy or vulgar sexual remarks).
162. See Women Prisoners v. District of Columbia, 877 F. Supp. 634, 665–66 (D.D.C. 1994) (holding
that the District of Columbia was liable under § 1983 for 8th Amendment violations); see also Hovater v.
Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993) (stating that “an inmate has a constitutional right to be
secure in her bodily integrity and free from attack by prison guards” (citing Alberti v. Klevenhagan, 790
F.2d 1220, 1224 (5th Cir. 1986))).
163. See, e.g., Carrigan v. Davis, 70 F. Supp. 2d 448, 452–53 (D. Del. 1999) (stating “as a matter
of law, that an act of vaginal intercourse and/or fellatio between a prison inmate and a prison guard,
whether consensual or not, is a per se violation of the Eighth Amendment”). Note that the holding in
Carrigan was limited to vaginal intercourse and/or fellatio (oral sex); it did not include other sexual
activities.
164 . To learn about your state’s sexual misconduct in prison laws, you can go to
http://www.justdetention.org (last visited Oct. 25, 2008) and find a state-by-state legislative review
under “Legal Resources.”
other words that prison officials knew you were at risk of harm but did nothing about it).165
You could also make a state law negligence claim against prison officials.
(a) What to Do If You Are Sexually Assaulted
If you are raped or sexually assaulted, you should tell someone immediately and ask to
go to the hospital. There you should be tested for sexually transmitted infections and
pregnancy. The health professional should collect your clothing, fingernail scrapings, pubic
hair samples, blood samples, hair strands, and swab samples from the back of your throat
and your rectum and/or vagina.166 If you would like to speak with someone after the sexual
assault or rape, the prison may provide counseling.
You may also want to file a report about the sexual assault and press criminal charges.
Many prisoners are afraid—for good reason—that prison officials will retaliate against them
if they file grievances, especially complaints against staff. You may fear that your complaint
will not be kept confidential in your prisoner file and that you will be harassed or threatened.
It can be difficult to report a sexual assault or rape, but you should know that any sexual
contact by a corrections officer is wrong and you have a right not to be subject to such abuse.
It is also wrong for the prison guards to retaliate against you for reporting the assault,
although retaliation does happen.
If you bring a civil suit, it is important to know that the court recognizes only physical
abuse, not emotional damages. According to Section 803(d) of the Prison Litigation Reform
Act (“PLRA”), “no Federal civil action may be brought by a prisoner confined in a jail, prison
or other correctional facility, for mental or emotional injury suffered while in custody without
a prior showing of physical injury.”167 This makes the collection of physical evidence of sexual
assault even more important. See Chapter 14 of the JLM for more information on the PLRA.
(b) Eighth Amendment Claims for Sexual Assault
Like any assault, if you were sexually assaulted by another prisoner, courts use the
Eighth Amendment deliberate indifference standard to determine if a prison official is liable
for not preventing the assault.168
If you were instead assaulted by a prison official, you can claim that the assault was
“cruel and unusual punishment” violating your Eighth Amendment rights. Conduct violates
the Eighth Amendment if it violates the “evolving standards of decency that mark the
progress of a maturing society.”169 Courts have found that sexual assaults violate the Eighth
Amendment because, as explained in Women Prisoners v. District of Columbia, for example,
“rape, coerced sodomy, unsolicited touching of women prisoners’ vaginas, breasts and
buttocks by prison employees are ‘simply not part of the penalty that criminal offenders pay
for their offenses against society.’”170
165. Farmer v. Brennan, 511 U.S. 825, 847, 114 S. Ct. 1970, 1984, 128 L. Ed. 2d. 811, 832 (1994)
(holding that a “prison official may be held liable under the Eighth Amendment for denying humane
conditions of confinement only if he knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it”).
166. See Linda M. Petter & David L. Whitehill, Management of Female Sexual Assault, 58 Am.
Family Physician 920 (1998), available at http://www.aafp.org/afp/980915ap/petter.html.
167. Prison Litigation Reform Act of 1995, 42 U.S.C. §1997e(e) (2000).
(holding that to violate the 8th Amendment, a prison official must have a “sufficiently culpable state of
mind” which means one of “deliberate indifference” to prisoner health or safety (citing Wilson v. Seiter,
501 U.S. 294, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991))).
(quoting Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59, 68 (1981)).
170. Women Prisoners v. District of Columbia, 877 F. Supp. 634, 665 (D.D.C. 1994) (quoting
Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811, 823 (1994)), vacated in
In making your Eighth Amendment claim, you must show the same two components as
for any assault by a prison official: (1) the subjective component that the prison official has a
“sufficiently culpable state of mind,” and (2) the objective component that the harm is
“sufficiently serious.” 171 Showing these two components is generally easier when proving
sexual assault as compared to alleging a physical assault. Courts recognize that sexual
assaults are usually both malicious and harmful. As the Second Circuit in Boddie v.
Schnieder explained, a claim of sexual abuse may meet both the subjective and objective
elements of the constitutional test because sexual abuse can cause severe physical and
mental harm and may, on its own, exhibit a sufficiently culpable state of mind.172
(c) Sexual Abuse of Women Prisoners
While many prisoners, both men and women, are sexually assaulted and/or raped,
women prisoners are particularly vulnerable.173 Although all prisoners’ rights to privacy are
very limited because of the nature of prison and incarceration,174 courts are sometimes more
sympathetic to female prisoners because of the greater chance of sexual abuses by prison
guards. For example, some courts have found searches of women prisoners by male guards to
be unconstitutional, even if searches of male prisoners by female guards would be allowed
under the same circumstances.175 To help prevent sexual abuse of women prisoners, some
prisons have tried to hire only female corrections officers for women’s prisons.176 Though
federal law prohibits employment discrimination based on sex, 177 hiring only female
employees for female correctional facilities will not violate the law if it produces only a
“minimal restriction” on employment178 or if gender is an essential part of the job. Some
part on other grounds, 9 F.3d 910, 320 U.S. App. D.C. 247 (D.C. Cir. 1996).
(discussing the two components necessary to prove an Eighth Amendment Claim: sufficiently serious
harm and a sufficiently culpable state of mind). See Part B(2) of this Chapter for more information on the
objective and subjective components of 8th Amendment violations.
172. Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997); see also Hammond v. Gordon County,
316 F. Supp. 2d 1262, 1301 (N.D. Ga. 2002) (holding that prisoner had satisfied both the objective and
subjective components of her 8th Amendment claim by alleging she had sexual intercourse with a
prison guard, even though the guard claimed it was consensual; noting that under Georgia state law
“an inmate may not consent to certain types of sexual contact with a prison guard” and that sexual
intercourse “is objectively sufficiently serious to satisfy the [objective] element” of plaintiff’s 8th
Amendment claim as well as the subjective element because there is “no legitimate penological purpose
that possibly could be served by a jailer's conduct in engaging in a sexual relationship with an inmate.
… the conduct at issue is sufficient evidence, in and of itself, of [the defendant’s] culpable state of
mind”).
173. Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
(1996), available at http://hrw.org/reports/1996/Us1.htm# (noting that the female prisoner population is
“a population largely unaccustomed to having recourse against abuse; all the more necessary, then, for
the state to present the available means of recourse clearly and in an accessible fashion”).
174. See Hudson v. Palmer, 468 U.S. 517, 527–28, 104 S. Ct. 3194, 3200–01, 82 L. Ed. 2d 393,
403–04 (1983) (finding that the interest in ensuring institutional security necessitates a limited right of
privacy for prisoners).
175. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (holding that prison policy
requiring male guards to conduct non-emergency, suspicionless, clothed body searches on female
prisoners was cruel and unusual punishment in violation of the 8th Amendment). See Part C(2)(f) of
Chapter 25 of the JLM, “Your Right To Be Free From Illegal Body Searches,” for more information about
cross-gender body searches.
176 . See, e.g., Ind. Code Ann. §§ 36-8-3-19, 36-8-10-5 (West 1999). California protects all
prisoners from being searched by officers of the opposite sex. Cal. Penal Code § 4021(b) (West 2004).
Michigan provides that if prisoners are subject to body cavity searches by officers of the opposite sex, an
officer of the same sex must also be present. Mich. Comp. Laws Ann. § 764.25b(5) (West 2000).
177. 42 U.S.C. § 2000e-2(a)-(d)(2000).
178. See Tharp v. Iowa Dep’t of Corr., 68 F.3d 223, 226 (8th Cir. 1995) (upholding a policy of
courts have found that gender is an appropriate employment qualification where it advances
goals of prison security and rehabilitation.179
(d) Federal Law
While a prison official is permitted to touch a prisoner for security reasons (for example,
while performing a legal search), he is never allowed to have sexual contact with a prisoner.
Section 2243 of Title 18 of the United States Code180 criminalizes sexual intercourse or any
type of sexual contact between persons with “custodial, supervisory or disciplinary” authority
and prisoners in federal correctional facilities.181 Section 2241 makes it a felony to use or
threaten force to engage in sexual intercourse in a federal prison.182 This means it is always
illegal in a federal prison for prison officials to have sexual contact with prisoners, and it is a
felony if the officials use or threaten force. These laws only protect federal prisoners. Laws
protecting state prisoners are discussed in the next Subsection.
In 2003, the federal government passed the Prison Rape Elimination Act, the first federal
law addressing sexual assault in prisons. The Act calls for the collection of national statistics
about sexual assault in federal, state, and local prisons. It also develops guidelines for states
on addressing prisoner rape, creates a review panel to hold annual hearings, and provides
grants to states to combat the problem.183 With this Act, the federal government recognized
for the first time sexual assault in prisons is a major problem.
(e) State Law
In many states, including New York and California, any sexual conduct between a prison
employee and a prisoner—even with the prisoner’s consent—is a form of rape.184 A New York
State statute makes any sexual relations between prisoners and prison employees illegal.
Specifically, the law says prisoners cannot legally “consent” to sexual relations with prison
employees.185 Thus, by state statute, New York State prison employees are criminally liable
assigning female guards to the prison’s women’s unit where doing so did not lead to termination,
demotion, reduction of pay, or missed promotion opportunities); Grummett v. Rushen, 779 F.2d 491,
496 (9th Cir. 1985) (finding that to restrict or disallow female guards from holding positions that
involve occasional viewing of male prisoners would require “tremendous rearrangement of work
schedules and possibly produce a risk to both internal security needs and equal employment
opportunities for the female guards”).
179 . See Robino v. Iranon, 145 F.3d 1109, 1111 (9th Cir. 1998) (concluding that gender
constitutes a bona fide occupational qualification because the state’s legitimate penological interests
outweigh the employees’ interests in holding certain posts); Torres v. Wis. Dep't of Health & Social
Serv., 859 F.2d 1523, 1530 (7th Cir. 1988) (“[T]he superintendent … made a professional judgment that
giving women prisoners a living environment free from the presence of males in a position of authority
was necessary to foster the goal of rehabilitation [especially due to the] “high percentage of female
inmates [that] has been physically and sexually abused by males.”).
180. 18 U.S.C. § 2243 (2000).
181. For an example of criminal prosecution of a federal prison guard for violating this statute, see
United States v. Vasquez, 389 F.3d 65, 77 (2d Cir. 2004) (affirming conviction of defendant prison guard
for five counts of sexual abuse of prisoners and one count of misdemeanor abusive sexual contact, and
sentencing of defendant to 21 months imprisonment).
182. 18 U.S.C. § 2241 (2000).
183. Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601-15609 (2006). Though no national
guidelines have yet been adopted, the National Prison Rape Elimination Commission did release draft
guidelines in mid-2008 for public comment. NPREC, Standards and Comments, available at
http://www.nprec.us/standards.htm (last visited Sept. 23, 2008). These draft guidelines will be
presented to the United States Attorney General, who will then issue national guidelines to prevent
rape and sexual assault in prison.
184. Cal. Penal Code § 289.6 (West 2004 & Supp 2007); N.Y. Penal Law § 130.05(3)(e)-(f)
(McKinney 2004).
185. N.Y. Penal Law §§ 130.05(3) (e)–(f) (McKinney 2004).
for rape, sodomy, sexual misconduct, or sexual abuse if they have sexual contact with or
commit a sexual act with prisoners. In other words, courts will consider any sexual contact
between a prison employee and a prisoner a crime, even if the prisoner believed such contact
was consensual. Consent is not a valid defense for the prison official’s acts.
Other states that criminalize sexual contact between prison employees and prisoners
include Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, the District
of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana,
Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada,
New Hampshire, New Jersey, New Mexico, North Dakota, Ohio, Oregon, Pennsylvania,
Rhode Island, South Carolina, South Dakota, Utah, Virginia, Washington, West Virginia,
and Wisconsin.186 States that have laws that do not refer specifically to prison employees but
may also criminalize prison employees’ sexual contact with prisoners include North Carolina,
Oklahoma, Texas, and Wyoming.187
Some states have also taken steps to protect prisoners from retaliation for reporting
sexual misconduct by prison staff. For example, California has made it illegal for prison
guards to retaliate against prisoners who report them for sexual assault.188 Of course, even
with such laws, retaliation still occurs and is a real concern. But, if your state law prohibits
retaliation, the fact that the law forbids this behavior only strengthens your legal claim.
5. Force Used to Carry Out an Illegal Order
If you refuse to follow an order from a prison official, even if that order is illegal, prison
officials can use force to make you obey. Courts have held that prisoners must follow orders
186. Alaska Stat. §§ 11.41.425.2, 11.41.427.1 (2004); Ariz. Rev. Stat. Ann. § 13-1419 (2001 &
Supp. 2006); Ark. Code Ann. § 5-14-126(a)(1)(A) (2006); Cal. Penal Code § 289.6 (1999 & Supp. 2006);
Colo. Rev. Stat. Ann. § 18-3-404(f) (2004 & Supp. 2006); Conn. Gen. Stat. Ann. §§ 53a-71(a)(5), 53a-
73a(a)(E) (2001 & Supp. 2006); Del. Code Ann. tit. 11, § 1259 (2001 & Supp. 2004); D.C. Code §§ 22-3013,
22-3014, and 22-3017 (2001 & Supp. 2006); Fla. Stat. Ann. § 944.35(3) (2001 & Supp. 2006); Ga. Code
Ann. § 16-6-5.1 (2003 & Supp. 2006); Haw. Rev. Stat. Ann. §§ 707-731(1)(c), 707-732(1)(d) (2003 & Supp.
2005); Idaho Code Ann. § 18-6110 (2004 & Supp. 2006); 720 Ill. Comp. Stat. Ann. 5/11-9.2 (2002 & Supp.
2006); Iowa Code Ann. § 709.16(1) (2003); Kan. Stat. Ann. § 21-3520 (1995 & Supp. 2005); Ky. Rev. Stat.
Ann. § 510.120 (1999); La. Rev. Stat. Ann. § 14:134.1 (2004); Me. Rev. Stat. Ann. tit. 17-a, § 253(2)(E)
(2006); Md. Code Ann., [Crim. Law] § 3-314 (2002 & Supp. 2005); Mich. Comp. Laws Ann. §§ 750.520c
(1)(i-k) (2004 & Supp. 2006); Minn. Stat. Ann. § 609.344(1)(m), 609.345(1)(m) (2003 & Supp. 2006); Miss.
Code Ann. § 97-3-104 (2006); Mo. Ann. Stat. § 566.145 (Supp. 2006); Mont. Code Ann. §§ 45-5-502(5)(a)
and 45-5-503(3)(d) (2005); Nev. Rev. Stat. Ann. § 212.187 (2005); N.H. Rev. Stat. Ann. § 632-A:4(III)
(Supp. 2005); N.J. Stat. Ann. § 2C:14-2(c)(2) (2005 & Supp. 2006); N.M. Stat. § 30-9-11(D)(2) (2006); N.D.
Cent. Code § 12.1-20-06 (1997 & Supp. 2005); Ohio Rev. Code Ann. § 2907.03(A)(6,11) (2006); Or. Rev.
Stat. §§ 163.452, 454; 18 Pa. Cons. Stat. Ann. § 3124.2 (2000 & Supp. 2006); R.I. Gen. Laws § 11-25-24
(2002); S.C. Code Ann. § 44-23-1150 (2002 & Supp. 2005); S.D. Codified Laws § 24-1-26.1 (2004); Utah
Code Ann. § 76-5-412 (2003); Va. Code Ann. § 18.2-64.2 (2004); Wash. Rev. Code Ann. §§ 9A.44.160-180
(2000); W. Va. Code Ann. § 61-8B-10 (2005); and Wis. Stat. Ann. § 940.225 (2005 & Supp. 2005). These
laws vary significantly in detail, and you should consult the law of the state in which you are imprisoned.
See The Human Rights Watch Women’s Rights Project Report, All Too Familiar: Sexual Abuse of Women
in U.S. State Prisons 39–40 (1996).
187. N.C. Gen. Stat. § 14-27.7 (2005); Okla. Stat. Ann. tit. 21, § 1114 (2005); Tex. Code Ann. §
22.011 (2004); Wyo. Stat. Ann. § 6-2-303 (2005). See The Human Rights Watch Women’s Rights Project
Report, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons 40 (1996), available at
http://hrw.org/reports/1996/Us1.htm#_1_11.
188. Cal. Code Reg. Tit. 15, § 3401.5(f) (2003).
so that prisons can be administered in a safe and orderly way.189 Even if you believe an order
violates your constitutional rights, courts say you do not have the right to resist the order.190
In Jackson v. Allen, a prisoner resisted prison guards because he thought they were
going to use cruel and unusual punishment against him in violation of the Eighth
Amendment.191 The guards used force on him to overcome his resistance. The prisoner won
his case against the guards, but only because they used excessive force. The prisoner’s
resistance to the guards’ order, the court said, was not justified because guards have a legal
right to make prisoners obey their orders and use force if necessary. The court stated a
prisoner in this situation has the opportunity to recover damages in court for
unconstitutional punishment but should not resist the order itself. Again, this assumes the
force used was reasonable and necessary under the circumstances.192 But, the court did say
there was one exception to the general rule that prisoners may never resist orders—a
prisoner may resist an illegal order to protect himself from “immediate, irreparable and
permanent physical or mental damage or death.” 193 The court declined to give specific
examples of when a prisoner could legally refuse an order but stated such exceptions would
be limited to extreme situations.
6. Assault on LGBT or Effeminate Prisoners
Unique issues exist for gay or effeminate prisoners (prisoners with feminine
characteristics). Chapter 30 of the JLM, “Special Information for Lesbian, Gay, Bisexual, and
Transgender Prisoners,” explains these issues in more detail. But, you should remember you
do not have to wait to be attacked before bringing suit; you can sue before you are assaulted
if you feel officials are ignoring a large risk you will be seriously harmed. You should also
note you may be eligible for special protection even if you are not gay but are more
vulnerable to physical and sexual assaults by other prisoners because of your appearance.194
If you fear you will be assaulted, you may request to be placed in special housing or
protective custody, which unfortunately usually also means you will lose certain privileges.
Prison officials may also put you, without your consent, in protective custody or even solitary
confinement because they believe that is the only way to protect you.
In general, courts have recognized that gay or effeminate men are often assaulted in
prison, especially when placed in the general population, 195 and may need special
consideration either at sentencing or after incarceration.196 Courts are still creating the law
189. Griffin v. Comm’r of Pa. Prisons, No. 90-5284, 1991 U.S. Dist. LEXIS 17951, at *11 (E.D. Pa.
Dec. 6, 1991) (unpublished) (“Even if plaintiff considered the order illegal, plaintiff should not have
refused to follow it because it is critical to the orderly administration of a prison that prisoners follow
orders.), aff’d, 961 F.2d 208 (3d Cir. 1992).
190. Pressly v. Gregory, 831 F.2d 514, 518 n.3 (4th Cir. 1987) (holding the prisoner could not resist
being taken into custody by claiming that it violated his civil rights when his habeas petition was still
pending).
191. Jackson v. Allen, 376 F. Supp. 1393, 1394 (E.D. Ark. 1974).
194. See, e.g., United States v. Gonzalez, 945 F.2d 525, 526 (2d Cir. 1991) (ruling in favor of
decreasing prisoner’s sentence because of his feminine appearance).
195. See, e.g., Farmer v. Brennan, 511 U.S. 825, 848, 114 S. Ct. 1970, 1984, 128 L. Ed. 2d 811, 832
(1994) (noting placing a young effeminate man into general population could threaten his safety); Johnson
v. Johnson, 385 F.3d 503, 517–19 (5th Cir. 2004) (holding officials must use all possible administrative
means to protect prisoners from sexual abuse); Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 77, 83–84 (6th
Cir. 1995) (holding warden liable for providing inadequate protection against physical and sexual abuse of
vulnerable prisoner).
196. United States v. Gonzalez, 945 F.2d 525, 526–27 (2d Cir. 1991) (holding that shortening the
prison sentence for a prisoner was possible by balancing the government’s interest in incarcerating
criminals with the goal of diminishing the likelihood that the prisoner would be assaulted).
in this area, but the Supreme Court has expressly recognized that a sentencing court may
consider “susceptibility to abuse” in prison as a factor for a downward departure in
extraordinary or unusual circumstances.197 Where the judge believes there is a serious risk
you could be assaulted in prison or where prison officials say that they can protect you only
by putting you in protective custody or solitary confinement, you can request better
protective custody conditions or a shorter sentence. For example, several courts have ordered
reduced sentences for prisoners at risk of assault because of their sexual orientation or
appearance.198
Special treatment for effeminate or gay prisoners was considered by the Second Circuit
in United States v. Lara.199 In this case, the prisoner had a youthful appearance and bisexual
orientation that made him extremely vulnerable to physical attack. Prison officials were able
to protect him only by putting him in solitary confinement, so the court reduced his
sentence.200 A year after Lara, the Second Circuit also decided United States v. Gonzalez.201
Like Lara, the court reduced the sentence of a nineteen-year-old prisoner who was young,
effeminate, and likely to be victimized by his fellow prisoners.202 Unlike in Lara, the prisoner
in Gonzalez was not gay or bisexual but still vulnerable to homophobic attacks since his
physical appearance did not conform to traditional notions of masculinity.203 In other words,
as long as a prisoner looks like he might be gay, he is at a greater risk of attack, even if he is
not actually gay. The Gonzalez court also found that the prisoner could get a shorter sentence
even though he had not been attacked; oppressive conditions without an actual attack may
be enough to get a shorter sentence.204
Most LGBT prisoners who have been assaulted by other prisoners make Eighth
Amendment deliberate indifference claims under Farmer,205 although in one recent case, a
197. Koon v. United States, 518 U.S. 81, 111, 116 S. Ct. 2035, 2053, 135 L. Ed. 2d 392, 421
(1996). Note that Koon, however, dealt with prisoners who were susceptible to abuse because they were
ex-police officers, not because of their sexual orientation or appearance. See also United States v.
LaVallee 439 F.3d 670, 708 (10th Cir. 2006) (allowing a reduced sentence for police officers because of
their clearly demonstrated increased “susceptibility to abuse” in prison).
198. See, e.g., United States v. Lara, 905 F.2d 599, 608–09 (2d Cir. 1990) (reducing a sentence for
a gay prisoner after prison officials put him in solitary confinement because solitary confinement was
the only way the officials could protect him from assault); United States v. Gonzalez, 945 F.2d 525,
526–27 (2d Cir. 1991) (approving the trial court’s grant of a downward sentencing departure to a
nineteen-year-old effeminate-looking heterosexual prisoner based on the likelihood of assault by other
prisoners, even though no such attack had yet occurred); cf. United States v. Parish, 308 F.3d 1025,
1032–33 (9th Cir. 2002) (upholding downward departure because prisoner was particularly susceptible
to abuse); United States v. Wilke, 156 F.3d 749, 754–55 (7th Cir. 1998) (departing from sentencing
guidelines because of prisoner’s sexual orientation and demeanor). Note, however, that the Federal
Sentencing Commission has discouraged, but not prohibited, the use of physical appearance in
determining a prisoner’s potential for victimization and thus reduction in sentence. See Koon v. United
States, 518 U.S. 81, 107, 116 S. Ct. 2035, 2050, 135 L. Ed. 2d 392, 418 (1996).
199. United States v. Lara, 905 F.2d 599 (2d Cir. 1990).
200. United States v. Lara, 905 F.2d 599, 603 (2d Cir. 1990).
201. United States v. Gonzalez, 945 F.2d 525 (2d Cir. 1991).
202. United States v. Gonzalez, 945 F.2d 525, 526 (2d Cir. 1991).
203. United States v. Gonzalez, 945 F.2d 525, 526–27 (2d Cir. 1991) (“[E]ven if Gonzalez is not gay
or bisexual, his physical appearance, insofar as it departs from traditional notions of an acceptable
masculine demeanor, may make him as susceptible to homophobic attacks as was the bisexual defendant
before us in Lara.”).
204. United States v. Gonzalez, 945 F.2d 525, 527 (2d Cir. 1991); cf. Koon v. United States, 518
U.S. 81, 111, 116 S. Ct. 2035, 2053, 135 L. Ed. 2d 392, 421 (1996) (finding court did not abuse discretion
in granting downward sentencing departure based on convicted police officers’ susceptibility to abuse in
prison). But, note: the Federal Sentencing Commission has discouraged, but not prohibited, the use of
appearance in determining potential victimization and thus reduction in sentence. See Koon v. United
States, 518 U.S. 81, 107, 116 S. Ct. 2035, 2050, 135 L. Ed. 2d 392, 418 (1996).
court recognized a Fourteenth Amendment Equal Protection claim as well.206 To make a
claim that you are vulnerable to attack (in order to satisfy a deliberate indifference claim),
you have to present evidence that you may be a target of assault. 207 If you are gay or
effeminate, it may be easier for you to prove that there is/was a substantial risk to your
safety and that prison officials knew of this risk. In other words, your status as gay or
effeminate may make it easier to prove that you are a vulnerable prisoner. So as long as
prison officials know of your status, they know there is a higher risk you will be assaulted.
But even if it might be easier for you to prove you are/were in danger of being assaulted,
reporting any threats against you so that prison officials know about any specific problems is
still important. For example, if you seem vulnerable because you are gay, or because you look
young or effeminate, then you should report to prison officials any harassment or threats of
rape by other prisoners. When you report harassment or threats to prison officials, you need
to have some specific evidence or examples (for example, that a prisoner who has raped other
prisoners is threatening you) because suspicions alone are not enough.208 With such evidence,
prisoners who fall into the gay or effeminate categories may be able to make a deliberate
indifference Eighth Amendment claim that prison officials should have taken this into
consideration in order to prevent an attack. Of course, you will still have to prove that prison
officials did not act reasonably to try to prevent the assault.
(a) Examples of Legal Claims Brought by LGBT Prisoners.
In Farmer v. Brennan, a transsexual209 prisoner with feminine characteristics was placed
in the general male prison population and was later beaten and raped by another prisoner.210
The Supreme Court held that the prisoner may have had an Eighth Amendment claim and
sent the case back to the lower court to determine if prison officials acted with deliberate
indifference by failing to protect him.
The Third Circuit in Young v. Quinlan held prison officials violated the Eighth
Amendment under the deliberate indifference standard when a prisoner, described as small,
young, and effeminate, was sexually assaulted by other prisoners, and officials ignored his
requests for protection.211 Similarly, the Sixth Circuit in Taylor v. Michigan Department of
Corrections held a prisoner (who was small, vulnerable-looking, with a youthful appearance,
low IQ, and a seizure disorder) had an Eighth Amendment claim for being placed in a
sixty-person prison camp barracks where he was raped. 212 The Seventh Circuit also
recognized an Eighth Amendment claim in Pope v. Shafer when a prisoner was assaulted
after officials ignored the prisoner’s and internal affairs officers’ specific reports of threats
against him and refused transfer requests.213
(recognizing as actionable an 8th Amendment claim for a prison’s “deliberate indifference” to a

prominent risk of assault).
206. Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004) (holding that prisoner’s sexual-
orientation-based equal protection claims were properly pleaded and actionable).
207 . See Purvis v. Ponte, 929 F.2d 822, 825–27 (1st Cir. 1991) (per curiam) (finding 8th
Amendment not violated when prisoner alleged general fear of “gay bashing” and suspicions that
homophobic cellmates threatened his safety, because prisoner presented no evidence of likelihood violence
would occur and officials had tried 6 different cellmates).
208. Riccardo v. Rausch, 375 F.3d 521, 527–28 (7th Cir. 2004) (“The Constitution does not oblige
guards to believe whatever inmates say…. [A] prisoner’s bare assertion is not enough to make the
guard subjectively aware of a risk, if the objective indicators do not substantiate the inmate’s
assertion.”).
209. A transsexual is someone whose anatomical sex does not match his or her gender identity.
211. Young v. Quinlan, 960 F.2d 351, 362–63 (3d Cir. 1992).
212. Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 77, 84 (6th Cir. 1995).
213. Pope v. Shafer, 86 F.3d 90, 91–92 (7th Cir. 1996).
In Greene v. Bowles, a transsexual prisoner was placed in protective custody to prevent
attacks from other prisoners, but then another prisoner severely beat him prisoner in
protective custody. 214 The Sixth Circuit recognized an Eighth Amendment deliberate
indifference claim because the warden admitted knowing the attacker was a “predatory
inmate,” knew the plaintiff had been placed in protective custody because of her status as a
vulnerable prisoner, and knew both attacker and plaintiff were being housed in the same
unit.215 Importantly, the Sixth Circuit held vulnerable (transsexual, gay, effeminate, etc.)
prisoners who have been attacked can prove prison officials knew of the substantial risk to
their safety in two different ways: (1) by proving the officials knew of the plaintiff’s
vulnerable status and of the general risk to the plaintiff’s safety from other prisoners, even if
the officials did not know of any specific danger; or (2) by proving that the officials knew that
a predatory prisoner, without segregation or other protective measures, presented a
substantial risk to others, including the plaintiff.216 If you are a vulnerable prisoner attacked
by a predatory prisoner, this makes it easier for you to prove that prison officials knew of the
risk to your safety because you do not have to prove a particular prisoner presented a specific
threat to your safety.217
In another important case, Johnson v. Johnson, an African-American homosexual
prisoner sued prison officials after prison gangs sexually assaulted him and bought and sold
him as a sexual slave for over eighteen months, despite the plaintiff’s requests for
protection.218 The Fifth Circuit said the plaintiff had a deliberate indifference claim because
the officials continued to house him with the general population even though he repeatedly
requested protection: the prison officials’ response—that Johnson must “learn to f*** or
fight”—“was not a reasonable response and ... contravenes clearly established law.”219 The
Court further held that “[a]lthough it is not clear exactly what type of action an official is
legally required to take under Farmer, ... an official may not simply send the inmate into the
general population to fight off attackers.”220
In his lawsuit, Johnson also claimed that the prison officials’ actions violated his Equal
Protection rights under the Fourteenth Amendment. 221 Specifically, he claimed that the
officials failed to protect him like they protected other prisoners because of his sexual
214. Greene v. Bowles, 361 F.3d 290, 292 (6th Cir. 2004).
215. Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004) .
216. Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004) (“[W]here a specific individual poses a
risk to a large class of inmates, that risk can also support a finding of liability even where the
particular prisoner at risk is not known in advance.”).
217. Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004) (“[A] prison official cannot ‘escape
liability ... by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did
not know that the complainant was especially likely to be assaulted by the specific prisoner who
eventually committed the assault.’” (quoting Farmer v. Brennan, 511 U.S. 825, 844, 114 S. Ct. 1970,
1982, 128 L. Ed. 2d 811, 829 (1994))). See also Curry v. Scott, 249 F.3d 493, 507–08 (6th Cir. 2001)
(finding where a particular prison guard had a history of racially motivated harassment of African
American prisoners, deliberate indifference could be demonstrated by factual record, without threat to
particular prisoner).
218. Johnson v. Johnson, 385 F.3d 503, 512 (5th Cir. 2004).
220. Johnson v. Johnson, 385 F.3d 503, 527 (5th Cir. 2004); see also Farmer v. Brennan, 511 U.S.
825, 832–33, 114 S. Ct. 1970, 1976–77, 128 L. Ed. 2d 811, 822–23 (1994) (explaining that jailers must
“take reasonable measures to guarantee the safety of the inmates” and “are not free to let the state of
nature take its course” (internal quotation and citation omitted)).
221. U.S. Const. amend. XIV, Section 1 (“No State shall … deny to any person within its
jurisdiction the equal protection of the laws.”). See Part B(2) and Part F(1) of Chapter 30 of the JLM,
“Special Information for Lesbian, Gay, Bisexual, and Transgender Prisoners” for more information on
the Equal Protection Clause.
orientation.222 The Fifth Circuit recognized this claim, noting that “if they actually did deny
Johnson protection because of his homosexuality ..., that decision would certainly not
effectuate any legitimate [governmental] interest” and would be in violation of the Equal
Protection Clause.223 You should note that the Johnson court accepted the plaintiff’s sexual-
orientation-based equal protection claim without proof that other non-homosexual prisoners
were treated differently, but remember that Johnson is a new case and the law is still
developing.
7. Protection Under State Constitutions and Statutes and Federal
Statutes
You have already read how state tort law and federal constitutional law protect your
rights against assault. But do not forget that state constitutions and statutes also protect
your right to be free from assault. For example, the New York State Constitution, like the
federal Eighth Amendment, prohibits cruel and unusual punishment.224 And, like the federal
Fifth and Fourteenth Amendment Due Process Clauses, the New York Constitution prohibits
deprivation of your liberty without due process of law.225
New York State laws give prisoners additional protections. New York statutes prohibit
prison officials from hitting prisoners except under emergency circumstances: “[N]o officer or
other employee of the department shall inflict any blows whatever upon any inmate, unless
in self defense, or to suppress a revolt or insurrection.”226 New York statutory law also allows
you to bring civil lawsuits against officers and employees of the New York Department of
Correctional Services.227 See Chapter 2 of the JLM, “Introduction to Legal Research,” for
information on how to find similar laws in your state.
In addition, federal statutes can also protect the rights of federal prisoners to be free
from assault. The Federal Bureau of Prisons owes a duty of care to persons in federal
custody, which can be the basis for a suit against prison officials if you are attacked by other
prisoners. 228 But, it is state tort law that will determine when this duty is breached, so
researching the laws of the state in which the prison sits is still necessary.229
C. Legal Remedies Available for Victims of Unlawful Assault
This Part explains what you can do, legally, if you have been the victim of an unlawful
assault. Part C(1) explains how you should first complain using your prison’s Inmate
Grievance Program. Part C(2) describes how you can then file a Section 1983 suit if you
believe prison officials or other government employees (including police officers) violated any
222. Johnson v. Johnson, 385 F.3d 503, 512 (5th Cir. 2004) (noting Johnson’s claim that officials
told him “‘[w]e don't protect punks on this farm’—‘punk’ being prison slang for a homosexual man”).
223. Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); see Farmer v. Brennan, 511 U.S. 825,
833, 114 S.Ct. 1970, 1977, 128 L. Ed. 2d 811, 823 (1994) (“[G]ratuitously allowing the beating or rape of
one prisoner by another serves no legitimate penological objective.” (internal quotation omitted)).
224. N.Y. Const. art. I, § 5.
225. N.Y. Const. art. I, § 6.
227. N.Y. Correct. Law § 24 (McKinney 2003). See Chapter 17 of the JLM, “The State’s Duty to
Protect You and Your Property: Tort Actions,” for information on how to bring tort actions against state
employees.
228. 18 U.S.C. § 4042(a) (2000). See United States v. Muniz, 374 U.S. 150, 164–65, 83 S. Ct.
1850, 1859, 10 L. Ed. 2d 805, 816 (1963) (holding that the duty of care owed to federal prisoners is fixed
by 18 U.S.C. § 4042, regardless of any conflicting state rules).
229. Parrott v. United States, 536 F.3d 629 (7th 2008) (finding that Indiana tort law governs
whether the duty of care is breached in a suit brought under the Federal Tort Claims Act). See footnote
3 of this Chapter for more information on the Federal Tort Claims Act under which such claims must
be brought.
of your constitutional rights. Part C(3) explains how you can also file a state tort claim.
Finally, Part C(4) describes class actions (when groups of plaintiffs bring suit together).
Remembering different laws apply in state and federal prisons is important. If you are in
a federal prison, what state the prison is in does not matter. Federal prisons use federal law.
If you are in state prison, you can use both state and federal laws. But, remember each state
creates its own laws. Research the laws of your state and how prisoners in your state file
suits in that state’s courts. Federal constitutional rights are protected regardless of whether
you are in a state or a federal prison, but what legal claims you make and how you make
them will differ depending on whether you are in state or federal court.
1. Inmate Grievance Program
If you believe your rights have been violated, you should first file an administrative
grievance. See Chapter 15 of the JLM, “Inmate Grievance Procedures,” for further
information. It is very important that you fully complete any administrative grievance
processes before filing a lawsuit. If you do not, the court will probably reject your claim
because you did not “exhaust” (complete) all administrative remedies first.230
2. 42 U.S.C. § 1983
If you think that prison officials have violated your Eighth Amendment rights, you may
sue the officials or guards using Section 1983 of Title 42 of the United States Code (42 U.S.C.
§ 1983). Section 1983 is a federal law that allows you to sue state officials who have violated
your constitutional rights while acting “under color of any” state law.231 You can sue federal
officials in a similar suit, called a Bivens action.232
You can also use Section 1983 to sue local officials as long as you can show that they too
acted under “color of state law.” (You may be able to sue local officials under state tort law as
well.) But note that you can only sue municipalities (towns, cities, or counties) under Section
1983 if your injury was the result of an official municipal policy or custom.233 This means
that to sue a city or a county, you will have to show that the “execution of [the] government’s
policy or custom ... inflict[ed] the injury.”234 In other words, a local government will be held
liable only if an injury can be shown to be a direct result of the local government’s official
policy, either express or implied.235 Therefore, a local government is not liable under Section
230. See, e.g., Johnson v. Johnson, 385 F.3d 503, 515–23 (5th Cir. 2004) (dismissing prisoner’s
claims that prison officials had failed to protect him from repeated sexual assaults due to failure to
exhaust).
231. 42 U.S.C. § 1983 (2003).
232. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct.
1999, 29 L. Ed. 2d 619 (1971).
233. See, e.g., Williams v. Kaufman County, 352 F.3d 994, 1013–14 (5th Cir. 2003) (holding a
county could be held liable for unlawful searches of detainees when the relevant policymaker, in this
case the sheriff, authorized the policy).
234. Irwin v. City of Hemet, 22 Cal. App. 4th 507, 525, 27 Cal. Rptr. 2d 433, 442 (Cal. Ct. App.
1994) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037, 56 L. Ed. 2d 611, 637
(1978)). In Irwin, a California court found that a complaint, alleging that the City of Hemet’s adoption of a
policy or custom not to train its jailers in suicide screening and prevention was the proximate cause of a
prisoner’s suicide, may not be summarily dismissed without determination as to whether or not the city
adopted a policy or custom to inadequately train jailers. For an example of such a municipal policy or
custom, see Blihovde v. St. Croix County, 219 F.R.D. 607, 612 (W.D. Wis. 2003) (involving claims arising
from a policy of strip searches for arrestees entering a jail).
235. Blihovde v. St. Croix County, 219 F.R.D. 607, 618 (W.D. Wis. 2003) (citing Monell v. Dep’t of
Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611, 635 (1978)) (“Even when there is
no express policy, a municipality may be liable when there is a ‘custom’ of unconstitutional conduct.”);
see also Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125–27 (2d Cir. 2004) (reviewing the law of
municipal liability in a damage suit for excessive force); Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir.
2008) (dismissing a § 1983 claim for lack of evidence of a practice of using excessive force and following
1983 “for an injury inflicted solely by its employees or agents” who were not following official
local policy or custom,236 even though the local officials may be individually liable under
Section 1983.
You should read Chapter 16 of the JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to
Obtain Relief From Violations of Federal Law,” to learn more about Section 1983 claims.
Part E(1) of Chapter 16 explains Bivens actions and Part C(3)(c) gives more information on
qualified immunity.
3. Tort Actions
Chapter 17 of the JLM, “The State’s Duty to Protect You and Your Property: Tort
Actions,” explains how to bring a tort action in New York’s Court of Claims.237 If you were
assaulted, you can bring a state law tort action against those who assaulted you, their
supervisors, and maybe the state itself. It is very important to read Chapter 17 because there
is a time limit for filing a lawsuit in the Court of Claims. If you do not file in time, you cannot
sue in the New York State court system. Both New York State prisoners and prisoners from
outside New York should read Chapter 17 for more information on how to bring a tort claim
in state court.
4. Class Action Suits
Class actions are a type of lawsuit in which many plaintiffs sue together for similar
violations of their rights. 238 Courts generally allow class actions where the following
conditions are present: (1) there are too many plaintiffs for the court to try each case
individually, (2) each plaintiff’s case is similar in fact and law, (3) the claims or defenses of
the representative parties are typical of the claims or defenses of the class, (4) the
representative parties will fairly and adequately protect the interests of the class,239 and (5)
most of the claims would not be brought otherwise because each plaintiff’s individual
damages are too small.240
If a pattern of excessive force against prisoners exists within a prison, a class action suit
may be brought on behalf of all the prisoners against the wardens or administrators in
charge of the overall operations of the prison.241 Defendants in such an action are charged
a “code of silence”).
1994) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037–38, 56 L. Ed. 2d 611,
694 (1978)).
237. Remember the New York Court of Claims is a specific state court in New York that only
deals with claims against the State of New York. If the person who injured you was a state official or
employee and you decide to file a tort action in state court in New York, you should file your claim in
the New York Court of Claims. The New York Court of Claims can only award money damages; it
cannot issue an injunction. See Part C(4) of Chapter 5 of the JLM, “Choosing a Court & Lawsuit: An
Overview of the Alternatives,” for more information on the Court of Claims and Chapter 17 of the JLM,
“The State’s Duty to Protect You and Your Property: Tort Actions,” for more detailed information on
tort actions.
238. See Chapter 5 of the JLM, “Choosing a Court & Lawsuit: An Overview of the Alternatives”
on class actions in general and Part D(1) of Chapter 16 of the JLM, “Using 42 U.S.C. § 1983 and 28
U.S.C. § 1331 to Obtain Relief From Violations of Federal Law,” for more detailed information on §
1983 class actions.
239. See Fed. R. Civ. P. 23.
240. See, e.g., Tardiff v. Knox County, 365 F.3d 1, 7 (1st Cir. 2004) (holding that class action
status probably is the only feasible means for arrestees to pursue strip search claims); Amchem Prods.,
Inc., v. Windsor, 521 U.S. 591, 617, 117 S. Ct. 2231, 2246, 138 L. Ed. 2d 689, 709–10 (1997) (noting that
the policy underlying class actions is to make it possible for individuals with small claims to aggregate
those claims in order to vindicate their rights).
241. See, e.g., Ingles v. Toro, 438 F. Supp. 2d 203, 208–09 (S.D.N.Y. 2006) (approving settlement
of a class action over excessive use of force by New York City prison guards; the city agreed to pay
with “abdicating their duty to supervise and monitor the use of force and deliberately
permitting a pattern of excessive force to develop and persist.” 242 In such cases, “the
subjective prong of the Eighth Amendment is satisfied by a showing of deliberate
indifference” rather than the Hudson v. McMillian standard of maliciousness.243
D. Conclusion
This Chapter described the legal meaning of “assault” and explained your right to be free
from physical and sexual assault in prison. Different sources of law offering you protection
against guard and prisoner assault and different ways to obtain redress for rights violations
exist. Remember to complete administrative grievance processes filing suit. Otherwise,
courts might not allow you to proceed.
injured prisoners $2.2 million and revise its use-of-force directive and investigatory procedures, install
new video cameras to watch guards and prisoners, and train guards in appropriate defensive
techniques); Madrid v. Gomez, 889 F. Supp. 1146, 1254–60 (N.D. Cal. 1995) (granting injunction in
class action on behalf of all prisoners at Pelican Bay State Prison where pattern of unnecessary and
wanton infliction of pain and constitutionally inadequate provision of medical and mental health care
was shown as cruel and unusual conditions of confinement as to mentally ill prisoners in a security
housing unit); see also Mark Mooney, Inmates Win 1.5M in Rikers Abuse Settlement, Daily News, Feb. 14,
1996, at 12 (discussing a class action suit by 15 prisoners that involved allegations of abuse by corrections
officers and that was settled by New York City for $1.5 million).
242. Madrid v. Gomez, 889 F. Supp. 1146, 1249 (N.D. Cal. 1995).
Manual
Chapter 25:
Your Right To Be Free From
Illegal Body Searches

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 25
Your Right To Be Free From Illegal Body Searches*
A. Introduction
This Chapter explains your right to be free from involuntary exposure and illegal body
searches. This Part, Part A, is the Introduction. Part B explains your rights regarding
involuntary cross-gender exposure (when persons of the opposite sex see your body against
your wishes) and your privacy rights about your body, in particular the rights of women
prisoners. Part C focuses on body searches for both men and women. Finally, Part D explains
what you can do and what legal remedies you can use to protect your rights.
This Chapter explains your rights using both federal constitutional law (from the U.S.
Constitution) and New York State laws. For all searches, including body cavity searches,
courts generally use the Fourth Amendment, which protects you against unreasonable
searches.1 Remember that rules from the U.S. Supreme Court apply to the whole country. If
you are in a prison outside of New York, you should research the laws in your state. You
should try to use the laws and court decisions of the federal circuit you are in. Reading
Chapter 2 of the JLM, “Introduction to Legal Research,” before you read this Chapter (or any
other chapter of the JLM) is a good idea because it will help you understand how to research
the law and understand which laws apply to you.
If you think your rights are being violated, you should first try to protect your rights
through your institution’s administrative grievance procedures.2 You must go through the
prison grievance process to protect your right to sue in federal court under the Prison
Litigation Reform Act (“PLRA”). Read Chapter 14 of the JLM on the PLRA to know what to
do— otherwise you might lose your right to sue (and possibly your good-time credit also).
If the grievance system does not help you or if it does not help you enough, you can then
file a lawsuit. Prisoners who challenge illegal body searches and involuntary exposure
usually file claims under 42 U.S.C. § 1983 (“Section 1983”),3 through a Bivens action in state
or federal court, or file an Article 784 petition in state court if in New York. Other JLM
* This Chapter was written by Anya Emerson based on previous versions by Sara Manaugh, Jennifer
Parkinson, Hannah Breshin Otero, Aric Wu, Sara Pikofsky, and Tami Parker. Special thanks to John
Boston of The Legal Aid Society, Prisoners’ Rights Project for his valuable comments.
1. The 4th Amendment states that “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const.
amend. IV.
2. See JLM Chapter 15, “Inmate Grievance Procedures,” for more information on prisoner
grievance procedures.
3. Remember that “§” is the symbol for “section.” For example, § 1983 means “Section 1983.”
Therefore, “§ 1983” refers to a specific section, section 1983, of a law (here the United States Code).
4. An Article 78 petition refers to a petition using Article 78 of the New York Civil Practice Law
& Rules. You cannot use Article 78 to seek damages. You can use an Article 78 petition only to go to
court to challenge decisions made by New York State administrative bodies or officers, like the
Department of Correctional Services or prison employees, if you think the decision was illegal,
arbitrary or grossly unfair. For instance, a prisoner might file an Article 78 petition to request judicial
review of a prison disciplinary determination resulting from what the prisoner believes to have been an
illegal search. See, e.g., Ocean v. Selsky, 252 A.D.2d 984, 985, 676 N.Y.S.2d 380, 381 (4th Dept. 1998)
(challenging prison director’s actions in violating the rules for a “pat frisk” using Article 78); see also
Young v. Coombe, 227 A.D.2d 799, 800, 642 N.Y.S.2d 443, 444 (3d Dept. 1996) (seeking judicial review
of Commissioner’s determination that prisoner was in violation of prison disciplinary rules by, among
other things, not complying with a frisk); Medina v. Portuondo, 298 A.D.2d 733, 734, 749 N.Y.S.2d 291,
293 (3d Dept. 2002) (challenging determination that prisoner violated prison rules by possessing
contraband and controlled substances). See Part C(4) of Chapter 5 of the JLM, “Choosing a Court and a
Chapters have more information on these claims, including Chapter 5, “Choosing a Court
and a Lawsuit,” Chapter 16, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief
From Violations of Federal Law,” and Chapter 22, “How to Challenge Administrative
Decisions Using Article 78 of the New York Civil Practice Law and Rules.” If you want to
learn more about your rights against assaults in prison, see Chapter 24 of the JLM, “Your
Right to Be Free From Assault.”
If you bring a civil suit, it is important to know that the court recognizes only physical
abuse, not emotional damage. According to Section 803(d) of the Prison Litigation Reform Act
(“PLRA”), “no Federal civil action may be brought by a prisoner confined in a jail, prison or
other correctional facility, for mental or emotional injury suffered while in custody without a
prior showing of physical injury.”5 See Chapter 14 of the JLM for more information on the
PLRA.
Also, because prison officers are government actors, they can use the defense of “qualified
immunity”6 when sued in a Section 1983 action. This means that even if you can prove you
were illegally searched, the officials may not be liable because of their qualified immunity
defense.7 For a detailed discussion of qualified immunity and Section 1983, see Part (C)(3)
(Qualified Immunity) and Part B (Section 1983) of Chapter 16 of the JLM, “Using 42 U.S.C. §
1983 and 28 U.S.C. § 1331 to Obtain Relief From Violations of Federal Law.”
B. Involuntary Exposure
This Part discusses your privacy rights regarding your naked body. 8 “Involuntary
exposure” is when your naked, or partly naked, body is seen by guards of the opposite sex,
such as when you are using showers or toilets. The Supreme Court in Turner v. Safley stated
that although prisoners have diminished liberty interests, prison regulations that restrict
the rights of prisoners must be reasonably related to legitimate penological (prison-related)
interests. 9 Thus, your privacy rights can be limited if the prison gives a reason that is
reasonably related to a legitimate prison policy.
Lawsuit,” and Chapter 22 of the JLM, “How to Challenge Administrative Decisions Using Article 78 of
the New York Civil Practice Law and Rules,” for more about Article 78 proceedings.
5. Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, §§ 801–10, 110 Stat. 1321
(1996).
6. Qualified immunity is defined as “[i]mmunity from civil liability for a public official who is
performing a discretionary function, as long as the conduct does not violate clearly established
constitutional or statutory rights.” Black’s Law Dictionary 766 (8th ed. 2004).
7. See, e.g, Way v. County of Ventura, 445 F.3d 1157, 1163 (9th Cir. 2006), cert. denied,
549127 S. Ct. 665, 166 L. Ed. 2d 513 (2006) (holding strip search of arrestee unconstitutional but
finding in favor of the County because of the officers’ qualified immunity); Lay v. Porker, 371 F. Supp.
2d 1159, 1167 (C.D. Cal. 2004) (holding that a body cavity search of naked male prisoner in the
presence of a female officer did violate the prisoner’s constitutional rights, but granting summary
judgment to the prison because of the prison official’s qualified immunity). But see Edgerly v. City and
County of San Francisco, 495 F.3d 645, 657 (9th Cir. 2007) (finding that qualified immunity did not
protect officers who conducted a post-booking strip search without reasonable suspicion).
8. For other privacy rights, see Chapter 19 of the JLM, “Your Right to Communicate with the
Outside World” (monitoring of telephone calls, inspection of mail), and Chapter 26 of the JLM,
“Infectious Diseases: AIDS, Hepatitis, and Tuberculosis in Prison,” on the right to privacy regarding
health status.
9. Turner v. Safley, 482 U.S. 78, 87, 107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64, 78 (1987). This rule
has been superseded by Section 3 of the Religious Land Use and Institutionalized Persons Act
(RLUIPA), which adds that the government’s policy must be the least restrictive means of achieving its
compelling interest. “No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution … unless the government demonstrates that imposition
of the burden on that person—(1) is in furtherance of a compelling governmental interest; and (2) is the
least restrictive means of furthering that compelling governmental interest.” 42 U.S.C.A. § 2000cc-1
(2000). See Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005) (finding a prison regulation
It is hard to challenge involuntary exposure situations because prisons must obey federal
employment discrimination laws that require male and female employees to be treated the
same. Prohibiting guards from viewing nude (naked) prisoners of the opposite sex may
violate laws requiring equal employment opportunities, because whether the guard is a man
or a woman would then become a factor in employment decisions.10 Most courts have held
that prison policies allowing cross-sex viewing of nude prisoners do not violate prisoners’
rights. 11 The Ninth Circuit in Oliver v. Scott held that a male prisoner’s Fourth and
Fourteenth Amendment rights were not violated after female prison guards strip searched
the prisoner and observed him showering and using the bathroom.12 Also, the Eighth Circuit
in Timm v. Gunter held that allowing female guards, like male guards, to pat search male
prisoners was a reasonable regulation and did not violate any privacy interests of the
prisoners.13
But you can expect to have some privacy rights with respect to your naked body. Courts
generally do not like prison policies requiring prisoners to be routinely searched or seen by
guards of the opposite sex. 14 Courts have held that prisons may accommodate prisoners’
prohibiting male prisoners from having hair longer than three inches to be a substantial burden on
prisoners’ exercise of religion and in violation of RLUIPA); Washington v. Klem, 497 F.3d 272, 282–83
(3d Cir. 2007) (finding that a prison policy limiting a prisoner to keeping 10 books in his cell did burden
his religious exercise, did not further a compelling state interest, and was not the least restrictive
means for achieving safety and health interests).
10. See Csizmadia v. Fauver, 746 F. Supp. 483, 491 (D.N.J. 1990) (discussing the tension between
prisoners’ constitutional privacy rights prisoners and guards’ equal employment rights). But see Tharp
v. Iowa Dep’t of Corr., 68 F.3d 223, 225 (8th Cir. 1995) (finding that assignment of female guards to
female prison units did not violate equal employment rights and could been viewed as serving a
positive interest for the prison as long as guards were not being denied opportunities for promotion or
being discriminated against by these assignments).
11. See, e.g., Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985) (rejecting prisoner’s claim
challenging assignment of female officers to male housing units); Smith v. Chrans, 629 F. Supp. 606,
611 (C.D. Ill. 1986) (dismissing case when prisoner alleged nothing more than occasional and
inadvertent sightings by female prison employees of prisoners in cells or open shower or toilet facilities
engaged in basic bodily functions); Mills v. City of Barbourville, 389 F.3d 568, 579 (6th Cir. 2004)
(finding no 4th Amendment violation where male employee accidentally saw female plaintiff’s bare
chest while female jailers were searching her upon entry to prison). But see Morris v. Newland, No. CIV
S-00-2794 GEB GGH P, 2007 U.S. Dist. LEXIS 15725, at *17 (E.D. Cal. Mar. 6, 2007) (unpublished)
(dismissing claim that prisoner’s 4th Amendment rights were violated by three prison guards watching
him shower, but declining to dismiss the prisoner’s retaliation claim that the guards had “repeatedly
ogled him in retaliation for his having filed inmate grievances regarding female guards being allowed
to watch him showering or otherwise undressed”); Cerniglia v. County of Sacramento, No. 2:99-cv-
01938-JKS-DAD, 2008 U.S. Dist. LEXIS 32346, at *48 (E.D. Cal. Apr. 18, 2008) (unpublished) (finding
no violation of a prisoner’s right to privacy where prisoner was strip searched in a dayroom where
anyone could have seen him, but there was no evidence than anyone actually did).
12. Oliver v. Scott, 276 F.3d 736, 746 (5th Cir. 2002); see also Johnson v. Phelan, 69 F.3d 144, 147
(7th Cir. 1995) (noting that limiting the prison guards that could monitor prisoners in the shower or
toilets to a specific gender or sexual orientation would be inefficient staff deployment and therefore is
not required).
13. Timm v. Gunter, 917 F.2d 1093, 1100 (8th Cir. 1990).
14. See Mills v. City of Barbourville, 389 F.3d 568, 579 (6th Cir. 2004) (“As to jail employees of the
opposite gender viewing prison inmates or detainees, we have recognized that a prison policy forcing
prisoners to be searched by members of the opposite sex or to be exposed to regular surveillance by
officers of the opposite sex while naked—for example while in the shower or using a toilet in a cell—
would provide the basis of a claim on which relief could be granted.”); Fortner v. Thomas, 983 F.2d
1024, 1030 (11th Cir. 1993) (recognizing prisoners’ right to bodily privacy “because most people have ‘a
special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of
the other sex may be especially demeaning and humiliating’” (quoting Lee v. Downs, 641 F.2d 1117,
1119 (4th Cir. 1981))); Sepulveda v. Ramirez, 967 F.2d 1413, 1415–16 (9th Cir. 1992) (noting that the
right to bodily privacy was extended to prisoners in 1985 in the Ninth Circuit and to parolees in 1988);
privacy interests when such actions are reasonable and do not affect penological interests.
But courts have not been clear about which specific prison actions violate your privacy
rights. 15 The court in Hudson v. Goodlander held that a prisoner’s privacy rights were
violated by assigning female guards to posts where they could view a male prisoner while he
was completely unclothed.16 The court stated that voluntary restrictions on employment of
female correction officers should adequately protect prisoner privacy and could be removed
during times of emergency.17
Courts have used several methods to balance prisoners’ privacy rights and correction
officers’ right to be free from sex discrimination in employment. One method is to allow
guards of the opposite sex only quick and random views of unclothed prisoners. For example,
the court in Johnson v. Pennsylvania Bureau of Corrections held that a prison’s security
interests were reasonable when it assigned female officers to various positions throughout
the jail since the actual viewings were too limited to amount to a violation of prisoners’
constitutional rights. 18 Other methods approved by the courts include allowing female
prisoners to cover the windows of their cells for short periods of time,19 allowing prisoners to
cover their genitals with a towel when guards are present in the restrooms,20 and providing
pajamas for sleeping. Some courts have even held that prisons should change the design of
bathroom facilities to protect a prisoner’s privacy rights.21
C. Body Searches
This Part talks about when and how prison officials are allowed to search your body. Part
C(1) introduces the names courts use for different types of body searches. Part C(2) explains
the Fourth Amendment protections against illegal searches for convicted prisoners. Part C(3)
explains how the Eighth Amendment also limits certain body searches. Part C(4) talks about
privacy rights and DNA testing. Part C(5) describes your privacy rights under state statutes,
Kent v. Johnson, 821 F.2d 1220, 1226 (6th Cir. 1987) (recognizing that a prisoner has a constitutional
claim when the prison fails to reasonably accommodate the interests of prisoners and female
employees).
15. See Ashann-Ra v. Comm. of Va., 112 F. Supp. 2d 559, 565 (W.D. Va. 2000) (recognizing
routinely or regularly exposing an unclothed inmate to female guards may constitute a constitutional
violation, but noting an evidentiary hearing may be required to make the determination on particular
encounters between female officers and naked male inmates); Oliver v. Scott, 276 F.3d 736, 744–46 (5th
Cir. 2002) (upholding under the Turner reasonable relationship standard a policy “permitting all
guards to monitor all inmates at all times” because it “increases the overall level of surveillance” and
bathrooms and showers can be the site of violence); Hill v. McKinley, 311 F.3d 899, 903–05 (8th Cir.
2002) (holding both male and female staff could participate in transfer of unruly naked female prisoner,
since not enough female guards were available; however, leaving the prisoner exposed on a restraint
board in male officers’ presence violated the 4th Amendment); Somers v. Thurman, 109 F.3d 614, 617–
23 (9th Cir. 1997) (finding no clearly established 4th Amendment protection against cross-gender strip
searches, dismissing 8th Amendment claim that female officers subjected male plaintiff to visual body
cavity searches, watched him shower, pointed at him and made jokes about him).
16. Hudson v. Goodlander, 494 F. Supp. 890 (D. Md. 1980); see also Fortner v. Thomas, 983 F.2d
1024, 1029–30 (11th Cir. 1993) (male prisoners suing to prevent female guards from coming into living
quarters where they were exposed may be entitled to injunctive relief in light of court’s recognition of
limited constitutional right to bodily privacy); Arey v. Robinson, No. Y-90-3009, 1992 U.S. Dist. LEXIS
21810, at *32 (D. Md. 1992) (unpublished) (finding the design and operation of bathroom facilities
violated the prisoner’s privacy rights), aff’d, 819 F.Supp. 478, 479 (D. Md. 1992).
17. Hudson v. Goodlander, 494 F. Supp. 890, 893–94 (D. Md. 1980).
18. Johnson v. Pa. Bureau of Corr., 661 F. Supp. 425, 432–34 (W.D. Pa. 1987).
19. See Torres v. Wis. Dep’t of Health & Social Servs., 859 F.2d 1523, 1524 (7th Cir. 1988) (en
banc) (permitting female prisoners at women’s maximum security prison to cover windows in the doors
of their rooms with privacy cards for up to 10 minutes between hours of 6 a.m. and 9 p.m. while they
are dressing or using the toilet).
20. Timm v. Gunter, 917 F.2d 1093, 1102 (8th Cir. 1990).
21. Arey v. Robinson, 819 F. Supp. 478 (D. Md. 1992).
especially New York law. Part C(6) explains how each prison’s own rules can also protect you
from illegal searches. Part C(7) explains why, in general, it is better for prisoners not to
resist being searched, even if you believe the search is illegal.
Note that both arrestees and pretrial detainees have more constitutional protections
against body searches than convicted prisoners. When you research your case, don’t confuse
the reasonableness standard for searches of arrestees/pretrial detainees with the
reasonableness standard for convicted prisoners.22
1. Types of Body Searches
Remembering that most searches of prisoners are legal is important. Prison officials may
legally touch you for security reasons, such as when performing a valid search.23 But, courts
have recognized that sometimes prison officials use searches, especially strip searches and
body cavity searches, just to harass or abuse prisoners, and this is not legal. (For more on
harassment, see Part B(3) of Chapter 24 of the JLM, “Your Right to Be Free From Assault.”)
The courts, and the Supreme Court, have created some standards to accommodate the needs
of both prisons and prisoners.24 This Section explains five types of searches:
(1) pat frisk search—a search where a prison guard searches your body and clothes while you are still
dressed (but you will usually have to remove your hat, shoes, and coat);
(2) strip search—a search where you remove all of your clothing, and the prison official searches your
clothes after you take them off (the prison guard does not touch you or search your body cavities);
(3) strip frisk search—a search where the official searches your clothes after you have taken them off
and also looks at (but does not touch) your body cavities (all prisoners must bend over to have
their anal cavities searched; women must also squat so that the guards can look into their vaginal
cavity);
(4) body cavity search—a search that includes contact with any or all of your body cavities; these
searches should be performed by trained medical personnel only; and
(5) cross-gender body search—any search performed by someone of the opposite sex.
2. Fourth Amendment Protections
Prisoners usually use the Fourth Amendment, which forbids “unreasonable searches and
seizures,”25 to challenge body searches. Prisoners have some, but very limited, privacy rights
to their bodies under the Fourth Amendment.26
22. Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986) (holding strip/body cavity search unconstitutional
where authorities had no reasonable suspicion arrestee was concealing contraband); Willis v. Artuz, 301
F.3d 65, 69 (2d Cir. 2002) (holding that law enforcement-related searches of pretrial detainees’ cells are
subject to the 4th Amendment, but searches of convicted prisoners’ rooms are not, because “a convicted
prisoner’s loss of privacy rights can be justified on grounds other than institutional security,” such as
retribution).
23. Prison officials are allowed to use bodily force to maintain control and security within the
prison as long as their actions relate to some penological need, meaning the action helps them manage
and maintain control of the prison. See, e.g., N.Y. Correct. Law § 137(5) (McKinney 2006) (“When any
inmate … shall offer violence to any person, or do or attempt to do any injury to property, or attempt to
escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means
to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of
the offenders and to prevent any such attempt or escape.”) (emphasis added). See also Turner v.
Huibregtse, 421 F. Supp. 2d 1149, 1152 (W.D. Wis. 2006) (finding inappropriate grabbing and fondling
the prisoner in a harassing manner rather than the touching requisite to a search may violate the
prisoner’s constitutional rights).
24. See generally Hudson v. Palmer, 468 U.S. 517, 526–27, 104 S. Ct. 3194, 3200–01, 82 L. Ed. 2d
393, 403–04 (1984) (establishing such standards); Bell v. Wolfish, 441 U.S. 520, 530, 99 S. Ct. 1861,
1869, 60 L. Ed. 2d 447, 462 (1979) (same).
25. U.S. Const. amend. IV. But remember that the 4th Amendment does not protect you from
searches and seizures of your prison cell, because the Supreme Court has said that prisoners have no
legitimate expectation of privacy in their prison cells. See Block v. Rutherford, 468 U.S. 576, 591, 104 S.
This Section first tells you when courts do allow body searches under the Fourth
Amendment. Next, Part C(1)(a) explains the Fourth Amendment’s “reasonableness
standard,” which courts use to decide if a search was lawful. Part C(1)(b) talks about strip
search cases, Part C(1)(c) discusses strip frisks, and Part C(1)(d) covers body cavity searches.
Finally, Part C(1)(e) explains your limited right not to be searched by someone of the
opposite sex (cross-gender body searches).
(a) Reasonableness Standard for Searches of Prisoners
The lawfulness of a body search depends on whether a prison guard acts reasonably in
conducting the search. In Bell v. Wolfish, the Supreme Court said that body searches are
constitutional, but only if performed in a “reasonable manner.”27 Guards must act reasonably
when searching prisoners because searches invade prisoners’ privacy and can easily become
abusive.28 In other words, courts balance the state’s need for the search against how much
the prisoner’s privacy is invaded.
The courts do not have a rule for what is “reasonable” in body searches. Instead, they
have decided that some practices are unreasonable. To decide if a search is unreasonable (or
reasonable) and unnecessarily invasive of prisoners’ privacy, Bell v. Wolfish requires courts
to look at: (1) how the search is performed; (2) the reason for the search; and (3) the place of
the search.29
Different courts make different decisions using this test, depending on how “reasonable”
a court finds the prison officials’ explanation for the search and the conduct during the
search. Note that courts will generally believe prison officials when they claim that they
needed to search a prisoner for security reasons. Courts usually do not want to second-guess
prison safety policies used to maintain prison control.30 While courts will not allow prison
Ct. 3227, 3235, 82 L. Ed. 2d 438, 450 (1984) (holding searches of pretrial detainees’ cells were not
unconstitutional, because they served the important government purpose of maintaining security in the
jail); Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct. 3194, 3200, 82 L. Ed. 2d 393, 402–03 (1984)
(holding that the 4th Amendment prohibition against unreasonable searches does not apply to prison
cells because “[t]he recognition of privacy rights for prisoners in their individual cells simply cannot be
reconciled with the concept of incarceration and the needs and objectives of penal institutions”); Willis
v. Artuz, 301 F.3d 65, 68–69 (2d Cir. 2002) (holding that prisoners are not protected from cell searches
by prosecutors or police even though such searches are not related to prison security). But see United
States v. DeFonte, 441 F.3d 92, 94 (2d Cir. 2006) (finding that attorney-client privilege extends to
documents kept in an inmate’s cell, even though there is no reasonable expectation of privacy in them
for 4th Amendment purposes).
26. Nicholas v. Goord, 430 F.3d 652, 658 (2d Cir. 2005), cert. denied, 549 U.S. 953, 127 S. Ct. 384,
166 L. Ed. 2d 270 (2006) (noting “that prisoners retain a right to bodily privacy, even if that
right is limited by institutional and security concerns”); Fortner v. Thomas, 983 F.2d 1024, 1030
(11th Cir. 1993) (“We are persuaded to join other circuits in recognizing a prisoner’s constitutional right
to bodily privacy because most people have ‘a special sense of privacy in their genitals, and involuntary
exposure of them in the presence of people of the other sex may be especially demeaning and
humiliating.’”) (citation omitted), overruled on other grounds by United States v. Amerson,
483 F.3d 73 (2d Cir. 2007); Peckham v. Wis. Dep’t of Corrs., 141 F.3d 694, 696 (7th Cir. 1998)
(stating some loss of privacy is of course to be expected in prison, however “those convicted of criminal
offenses do not surrender all of their constitutional rights.”); Samson v. California, 547 U.S. 843, 856,
126 S. Ct. 2193, 2202, 165 L. Ed. 2d 250, 262 (2006) (holding that while suspicionless searches are not
precluded, the prisoner’s limited privacy right is protected by “California's prohibition on ‘arbitrary,
capricious or harassing’ searches”).
27. Bell v. Wolfish, 441 U.S. 520, 560, 99 S. Ct. 1861, 1885, 60 L. Ed. 2d 447, 482 (1979).
28. Bell v. Wolfish, 441 U.S. 520, 559–60, 99 S. Ct. 1861, 1884–86, 60 L. Ed. 2d 447, 481–83 (1979).
29. Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 1884–85, 60 L. Ed. 2d 447, 481–82 (1979).
30. See Elliot v. Lynn, 38 F.3d 188, 191–92 (5th Cir. 1994) (deferring to the prison’s claim that a
state of emergency existed that necessitated the deprivation of privacy where prison officials conducted
a massive prison shakedown after an increase in murders and violence, and the strip searches were
officials to do anything they wish (courts can and have struck down unreasonable policies), a
prison official can typically prove the need for a search policy easily.
In general, searches should not be performed abusively 31 or conducted in an
unnecessarily public manner. 32 Who conducts the search can be important—for example,
courts like trained medical personnel to perform body cavity searches. Where the search is
performed is also a factor—for example, prison officials should not perform strip searches in
public without a good reason.33 Which prisoners are being searched is considered critical—
courts allow more intrusive searches of maximum security prisoners 34 or “troublemaker”
prisoners, such as those previously caught with contraband.35
The New York State Department of Correctional Services (“DOCS”) uses this
“reasonableness standard” in its guidelines that describe when pat frisks are acceptable.
According to Directive 4910, a pat frisk is justified if an official has “an articulable basis to
suspect that an inmate may be in possession of contraband.”36 This directive replaced the old
standard, which required “reasonable suspicion that an inmate is in possession of
contraband.” The new language—“articulable basis”—allows prison officials even greater
discretion when determining if a pat frisk is necessary. As long as a prison official can give a
reason (and it may not have to be a good reason) to suspect that you may be carrying
contraband, he can pat frisk you. An official will also pat frisk you before you speak with
Department officials or enter the visiting room.37
(b) Strip Search
conducted in front of other prisoners and several non-prison staff persons); Whitman v. Nesic, 368 F.3d
931, 934–35 (7th Cir. 2004) (deferring to prison’s claim of security reasons for requiring prisoners to be
strip-searched before giving urine samples in a random drug testing program, because “[p]rison officials
must be accorded wide ranging deference in matters of internal order and security.”)
31. Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003) (holding that conducting strip searches
while opposite-sex staff were invited to watch, accompanied by sexual harassment and taunting, would
be “designed to demean and humiliate” and would thus state an 8th Amendment claim). But see Somers
v. Thurman, 109 F.3d 614, 624 (9th Cir. 1997) (“To hold that gawking, pointing, and joking violates the
prohibition against cruel and unusual punishment would trivialize the objective component of the 8th
Amendment test and render it absurd.”).
32. Farmer v. Perrill, 288 F.3d 1254, 1260–61 (10th Cir. 2002) (holding that government must
provide justification for doing the visual strip searches in public).
33. Farmer v. Perrill, 288 F.3d 1254, 1260–61 (10th Cir. 2002) (affirming denial of summary
judgment as to a challenge to visual strip searches en route to the recreation yard conducted in view of
other prisoners, and holding that government must provide justification for doing the visual strip
searches in public); see Smith v. Taylor, 149 F. App’x 12, 14 (2d Cir. 2005) (holding that the presence of
more officers at a strip search than prison rules authorized suggested a privacy violation not necessary
to serve penological interests).
34. Arruda v. Fair, 710 F.2d 886, 886–88 (1st Cir. 1983) (upholding the practice of subjecting
prisoners to body cavity searches upon non-contact visitations, visits to the infirmary and library, and
upon leaving cells, finding the practice reasonable given prison officials’ need to find smuggled
contraband among segregated prisoners in maximum-security prison); Savard v. Rhode Island, 338
F.3d 23, 30–31 (1st Cir. 2003) (holding that maximum-security prison’s policy authorizing blanket strip
and body cavity searches did not violate prisoner’s Fourth Amendment rights, because the general
interest of internal security in such a prison is compelling); Rickman v. Avaniti, 854 F.2d 327, 328 (9th
Cir. 1988) (holding that policy of performing visual strip and body cavity searches on prisoners in
administrative segregation unit whenever these prisoners left their cells was constitutional in light of
security interests).
35. See Brown v. Hilton, 492 F. Supp. 771, 776–77 (D.N.J. 1980) (holding visual anal inspections of
prisoners entering a segregated unit were proper for prisoner who was accomplice of two other
prisoners caught with contraband).
36. State of New York, Department of Correctional Services, Directive No. 4910, Control of and
Search for Contraband, at 2 (2001) (as revised Dec. 11, 2006).
In a strip search, you take off your clothes and a prison official searches them and
inspects your naked body. In a strip search the official does not touch you or search your
body cavities. At least one circuit court has held that a strip search does not have to be
“deliberate,” meaning that it doesn’t matter if the officer intended to see your naked body, as
long as the officer did see your naked body.38 Courts generally allow strip searches if prison
officials have a reasonable security interest to justify the search.39 Strip searches designed
only to harass prisoners, and not justified by any legitimate security concerns, may violate
the Fourth or the Eighth Amendment.40
Courts vary on how they have interpreted the Fourth Amendment’s reasonableness
standard for strip searches. In Arruda v. Fair, the First Circuit held that a policy requiring
strip searches of maximum security prisoners when entering or leaving the unit to go to the
library or infirmary and after meeting visitors, was reasonable, even though a guard
accompanied prisoners to the infirmary and there was a wire screen in the visiting area
because particularly dangerous criminals were involved.41 Courts also look at the place of the
search and the conditions of the search to see if the prisoner’s privacy rights were violated.42
In Cornwell v. Dahlberg, the Sixth Circuit held that a male prisoner who was strip searched
outdoors after a prison uprising in front of several female correction officers, raised a valid
38. Wood v. Hancock County Sheriff’s Dep’t, 354 F.3d 57, 63–65 (1st Cir. 2003) (defining strip
searches to be “exposing one’s naked body to official scrutiny,” and holding that “[t]he critical question
is whether viewing the naked body was an objective of the search, rather than an unavoidable and
incidental by-product,” and finding a strip search does not necessarily involve inspection of prisoner’s
mouth or underarms). But see Stanley v. Henson, 337 F.3d 961, 963–64 (7th Cir. 2003) (finding
observed clothing exchange in which prisoner was never fully naked was not a “strip search,” because it
was an administrative procedure with the purpose of ensuring that contraband was not brought into
the jail).
39. See Peckham v. Wis. Dep’t of Corr., 141 F.3d 694, 695–97 (7th Cir. 1998) (finding strip
searches that were for legitimate, identifiable purposes and not for punishment or harassment
purposes did not violate prisoner’s rights); Thompson v. Souza, 111 F.3d 694, 700 (9th Cir. 1997)
(upholding visual strip searches to search for drugs, even though this was not an “intended” purpose
contained in a written plan); Bruscino v. Carlson, 854 F.2d 162, 165 (7th Cir. 1988) (upholding rectal
searches in maximum security federal prison and noting the extreme violence and amount of
contraband typically found in such searches); Goff v. Nix, 803 F.2d 358, 366–71 (8th Cir. 1986)
(upholding visual body cavity searches on prisoners before and after trips to hospital, visits to prison
infirmary, other such contacts with people outside the prison, and exercise period for prisoners in
segregation; noting the high level of deference accorded to prison administrators’ decisions about such
searches); Roberts v. Rhode Island, 239 F.3d 107, 112 (1st Cir. 2001) (noting that prisons have
discretion to base searches on the type of crime for which an inmate is convicted, such as justifying a
search on the fact that the inmate was charged with a violent felony); Brown v. Blaine, 185 F. App’x.
166, 169 (3d Cir. 2006) (finding visual strip searches appropriate when conducted under institutional
policy that mandated strip searches upon reentry to the restricted housing unit).
40. Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995) (stating that if strip searches “are devoid
of penological merit and imposed simply to inflict pain, the federal courts should intervene,” and that
strip searches may not be used to retaliate against 1st Amendment-protected activity); Peckham v. Wis.
Dep’t of Corr., 141 F.3d 694, 697 (7th Cir. 1998) (stating that the Eighth Amendment protects prisoners
from unconstitutional strip searches). See also Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir. 2004)
(noting that a search must be “calculated harassment unrelated to prison needs” in order to be
unconstitutional (citing Meriwether v. Faulkner, 821 F.2d 408, 418 (7th Cir. 1987))).
41. Arruda v. Fair, 710 F.2d 886, 886–88 (1st Cir. 1983).
42. See, e.g., Evans v. Stephens, 407 F.3d 1272, 1281 (11th Cir. 2005) (en banc) (holding that
searches conducted with little respect for arrestees’ privacy, without sanitary precautions,
and that included threatening and racist language were unreasonable searches). But see
Franklin v. Lockhart, 883 F.2d 654, 656 (8th Cir. 1989) (noting that a search conducted
in front of other detainees may not be an unreasonable violation of detainee’s privacy if
there are security concerns that outweigh the intrusiveness of the searches).
Fourth Amendment claim, because the search could have occurred in a more private place.43
In Hodges v. Stanley, a prisoner complained that a strip search, and an accompanying
physical attack prior to his placement in administrative detention, was unconstitutional.44
Hodges alleged that he had been searched twice in a row, and he questioned the need for a
second search. The Second Circuit said that the first search, a mandatory procedure when
prisoners were put in administrative detention, was proper. The court found that Hodges
stated a constitutional claim because the second search was unnecessary.45
(c) Strip Frisk
“Strip frisk” means a visual search of a prisoner’s clothes and body, including body
cavities.46 For a male this involves one or more of the following procedures:
(1) Opening his mouth and moving his tongue up and down and from side to side;
(2) Removing any dentures;
(3) Running his hands through his hair;
(4) Allowing his ears to be visually examined;
(5) Lifting his arms to expose his armpits;
(6) Bending over and/or spreading his buttocks to expose his anus to the frisking officer;
and
(7) Spreading his testicles to expose the area behind his testicles.
For females the procedures are the same, except females must squat to show the vagina.47 It
is important to remember courts sometimes use the terms “strip frisk search” and “body
cavity search” to mean the same thing, so when a court refers to a “visual body cavity
search,” it is referring to a “strip frisk” search.
Because strip frisks invade prisoners’ privacy more than strip searches, courts usually
require prison officials to have individualized suspicion about the particular prisoner being
searched to justify strip frisks or body cavity searches.48 However, some courts now allow
random strip frisk searches. For example, the Second Circuit in Covino v. Patrissi held that
routine strip frisk searches were reasonable and should not be limited to searching prisoners
after contact visits.49 Using the reasonableness standard, the court in Covino found that a
regulation allowing random visual body cavity searches (which required the prisoner to
remove his clothing, lift his genitals, and spread his buttocks for a visual examination) was
not unreasonable, because the prisoners were very dangerous and that the prison needed to
prevent contraband. Therefore, the prison officials’ need to conduct these searches was more
important than the prisoners’ concerns.50
When prison officials conduct strip frisk searches to control a dangerous situation, courts
usually do not find any constitutional violation.51 The Eighth Circuit in Franklin v. Lockhart
43. Cornwell v. Dahlberg, 963 F.2d 912, 916–17 (6th Cir. 1992).
44. Hodges v. Stanley, 712 F.2d 34, 35 (2d Cir. 1983).
45. Hodges v. Stanley, 712 F.2d 34, 35–36 (2d Cir. 1983). See also Iqbal v. Hasty, 490 F.3d 143,
172 (2d Cir. 2007) (finding that detainee stated a 4th Amendment claim when he alleged that he was
subjected to multiple consecutive strip searches and repeated strip and body cavity searches that might
be understood to be punishment and not related to legitimate government purposes).
46. Prison officials only look at your body cavities in a strip frisk search. If officials touch any body
cavity, they are conducting a body cavity search.
47. See Gomez v. Coughlin, 685 F. Supp. 1291, 1299 n.5 (S.D.N.Y. 1988) (defining “strip frisk”
search).
48. See, e.g., Vaughan v. Ricketts, 950 F.2d 1464, 1468–69 (9th Cir. 1991) (requiring “reasonable
cause” to justify digital rectal searches), overruled on other grounds by Koch v. Ricketts, 68 F.3d 1191
(9th Cir. 1995).
49. Covino v. Patrissi, 967 F.2d 73, 79 n.5 (2d Cir. 1992).
50. Covino v. Patrissi, 967 F.2d 73, 79 (2d Cir. 1992).
51. See, e.g., Goff v. Nix, 803 F.2d 358, 367–68 (8th Cir. 1986) (holding visual body cavity searches
by prison officials did not violate 4th Amendment, and prison administrators’ decision to conduct such
held that a policy requiring visual body cavity searches of prisoners on punitive status, in
administrative segregation, or in need of protection was justified by security concerns.52 The
Fifth Circuit in Elliott v. Lynn held that a visual body cavity search of a prisoner in front of
other prisoners and non-searching officers was justified as part of a prison-wide shakedown
following an increase in murders.53 The Ninth Circuit in Thompson v. Souza held that a
visual strip search of a prisoner’s body cavities was reasonably related to the prison’s
legitimate need to keep drugs out of prison and therefore did not violate the Fourth
Amendment.54 The court reached this conclusion even though the prisoner was told to run
his fingers around his gums after touching his genitalia, the search went beyond prison
guidelines and the officials’ search plan, and the search happened in front of other prisoners.
Courts will therefore probably not find it difficult to hold that a prison’s safety concerns
override your privacy rights in a strip frisk situation.
(d) Body Cavity Search
A “body cavity search” (or “digital search”) is an actual physical examination of the
prisoner’s anal and/or genital cavities conducted by a professional member of the health
services staff. During a digital body cavity search, a guard or prison official places his or her
fingers into a prisoner’s nose, mouth, anus, and/or vagina. The test for deciding whether
digital body cavity searches are reasonable is stricter than the test for any other type of
search because body cavity searches are particularly intrusive. The Ninth Circuit has
established three requirements which must be satisfied in order for a digital body cavity
search to be constitutional under the Fourth Amendment:
(1) There must be reasonable suspicion to believe that the person searched is hiding
contraband;55
(2) There must be a valid penological (prison management) need for the search;56 and
(3) The search must be “conducted in a reasonable manner,” which means the court will
look at whether trained staff performed the search in private under hygienic (clean)
conditions.57
The Seventh Circuit in Bruscino v. Carlson held that a policy requiring rectal searches of
prisoners returning to cells was reasonable because guards found a lot of contraband,
including knives and hacksaw blades, from the searches.58 Furthermore, prison violence had
decreased since the searches began. 59 Please note, however, that Bruscino v. Carlson
involved the U.S. Penitentiary in Marion, Illinois, “the only prison in the U.S. currently
designed to hold the most violent and dangerous prisoners in the federal system,” which may
explain why the court allowed searches to occur frequently.60 As part of this search, prisoners
searches as a condition of any movement outside segregation unit or confines of prison was entitled to
deference).
52. Franklin v. Lockhart, 883 F.2d 654, 656 (8th Cir. 1989).
53. Elliot v. Lynn, 38 F.3d 188, 191 (5th Cir. 1994).
54. Thompson v. Souza, 111 F.3d 694, 700–01 (9th Cir. 1997).
55. Vaughan v. Ricketts, 859 F.2d 736, 739–40 (9th Cir. 1988) (holding rectal searches in open hall
on an unsanitary table were unreasonable), overruled on other grounds by Koch v. Ricketts, 68 F.3d
1191 (9th Cir. 1995).
56. Tribble v. Gardner, 860 F.2d 321, 325 (9th Cir. 1988) (holding that if rectal searches were
conducted whenever prisoner is moved into secure housing unit within maximum security prison and
for purposes unrelated to security considerations, searches would violate the 4th Amendment); see also
Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987).
57. Vaughan v. Ricketts, 859 F.2d 736, 741 (9th Cir. 1988), overruled on other grounds by Koch v.
Ricketts, 68 F.3d 1191 (9th Cir. 1995).
58. Bruscino v. Carlson, 854 F.2d 162, 164–65 (7th Cir. 1988).
59. Bruscino v. Carlson, 854 F.2d 162, 164–65 (7th Cir. 1988).
60. Bruscino v. Carlson, 854 F.2d 162, 163 (7th Cir. 1988).
returning to their cells were often subjected to a rectal search, where a paramedic inserted a
gloved finger into the prisoner’s rectum and felt around for contraband.
Courts often approve body cavity searches performed by X-ray.61 The court in People v.
Pifer held an X-ray search, which discovered a hypodermic syringe in the prisoner’s rectal
cavity, was reasonable.62 The court found the prison had significant and legitimate security
interests more important than the prisoner’s rights. The court said “an X-ray is far less
humiliating, degrading, invasive, annoying and physically uncomfortable than a physical
viewing of the anal cavity or physical invasion of the rectal cavity.”63
The New York Department of Correctional Services (“DOCS”) rules say body cavity
searches may only be done “once all other means have been exhausted” and “when there is
imminent danger to an inmate’s health or facility safety.”64 A doctor must explain the process
to the prisoner before performing a body cavity search. 65 The prisoner should have the
opportunity to give up the contraband at this time.66 A corrections officer of the same sex as
the prisoner should be present during the entire exam.67
Note that in New York, an X-ray search using the Body Orifice Scanning System (“the
BOSS” or “the BOSS chair”) is sometimes also called a metal detector search.68 Whenever
you are searched with the BOSS chair, you may be fully clothed.69 Even if the X-ray search is
being used after a strip search or a strip frisk, prison officials must let you put your
underclothes back on first.70 See Part C(5) of this Chapter for more information about these
New York State prison rules.
(e) Cross-Gender Body Searches
This Subsection explains your rights not to be searched by prison officials of the opposite
sex. Part B of this chapter, “Involuntary Exposure,” explained your rights not to be seen by
prison officials of the opposite sex. You should read both sections because the laws are very
similar.
Courts have held prisoners do have some rights not to be searched by guards of the
opposite sex. 71 In general, courts have found that prisoners’ legitimate expectations of
61. People v. Collins, 8 Cal. Rptr. 3d 731, 744 (Cal. App. 2004) (upholding an intended visual body
cavity search of a prisoner); Thompson v. County of Cook, 412 F. Supp. 2d 881, 893 (N.D. Ill. 2005)
(denying summary judgment for prison on the question of whether visual body cavity searches and
urethral swabbing for all incoming prisoners were proper).
62. People v. Pifer, 216 Cal. App. 3d 956, 962–63, 265 Cal. Rptr. 237, 240–41 (Cal. Ct. App. 1989)
(court found that routine x-ray searches of all prisoners being transferred from one prison facility to
another were reasonable).
63. People v. Pifer, 216 Cal. App. 3d 956, 961, 265 Cal. Rptr. 237, 242 (Cal. Ct. App. 1989).
Search for Contraband, at 1–2 (2001) (as revised Dec. 11, 2006).
Search for Contraband, at 2 (2001) (as revised Dec. 11, 2006) (stating that underclothes means
“undershorts for males and bras and panties for females”).
71. See Mills v. City of Barbourville, 389 F.3d 568, 579 (6th Cir. 2004) (stating “we have recognized
that a prison policy forcing prisoners to be searched by members of the opposite sex or to be exposed to
regular surveillance by officers of the opposite sex while naked ... would provide the basis of a claim on
privacy from persons of the opposite sex are very limited.72 Courts must balance a prisoner’s
limited right to be free from invasions of privacy by members of the opposite sex, with the
state’s interests in maintaining the security of the prison 73 and in avoiding sex
discrimination in prison employment.74 Most cases addressing gender issues in prisons focus
on the right to privacy and try to balance these competing interests.
This balancing test is difficult, so courts have different opinions. One court found a male
prisoner had no Fourth Amendment protection against cross-gender strip searches and no
Eighth Amendment claim against visual body cavity searches by female guards.75 But in
another case, the Seventh Circuit said specifically that not all cross-gender searches are
permissible. 76 Prisons should respect a prisoner’s constitutional privacy where it is
reasonable, taking into account prison security and equal employment for female guards.77
which relief could be granted”); Hayes v. Marriott, 70 F.3d 1144, 1147 (10th Cir. 1995) (holding that
summary judgment was inappropriate because plaintiff was allegedly subjected to a body cavity search
“in the presence of over 100 people including female secretaries and case managers”); Moore v. Carwell,
168 F.3d 234, 237 (5th Cir. 1999) (holding that an allegation of strip and body cavity searches
performed by an officer of the opposite sex, absent an emergency, at a time when same sex officers were
available to conduct the search, was not frivolous).
72. See, e.g., Michenfelder v. Sumner, 860 F.2d 328, 333–34 (9th Cir. 1988) (holding that strip
searches of male prisoners that occasionally occurred in view of female guards do not violate the 4th
Amendment); Grummett v. Rushen, 779 F.2d 491, 495–96 (9th Cir. 1985) (finding that pat-down
searches of male prisoners, including their groin areas, by female guards do not violate the 4th
Amendment). But see Lay v. Forker, 371 F.Supp.2d 1159, 1164 (C.D. Cal. 2004) (finding that a strip
search of a male prisoner in the presence of a female officer did violate the 4th Amendment but that the
officer was entitled to qualified immunity).
73. Hudson v. Palmer, 468 U.S. 517, 526–28, 104 S. Ct. 3194, 3200–01, 82 L. Ed. 393, 403–04
(1984) (“Determining whether [a prisoner’s] expectation of privacy is ‘legitimate’ or ‘unreasonable’
necessarily entails a balancing of interests. The two interests here are the interest of society in the
security of its penal institutions and the interest of the prisoner in privacy within his cell.”).
74. Smith v. Fairman, 678 F.2d 52, 53–55 (7th Cir. 1982) (considering the state’s “strong interest
in avoiding sex discrimination in its hiring practices at the prison” and holding that “requiring plaintiff
to submit to a limited frisk-type search by a female guard infringes upon no right guaranteed by the
Constitution”); see, e.g., Timm v. Gunter, 917 F.2d 1093, 1102 (8th Cir. 1990) (holding that it was not
unreasonable for prison to authorize female guards to conduct surveillance of all areas, including
shower and toilet facilities, and to pat search male prisoners on the same basis as male guards, given
the prison system’s interest in protecting the equal employment rights of prison guards and
maintaining prison security); Berl v. County of Westchester, 849 F.2d 712, 716 (2d Cir. 1988),
abrogated on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed.
2d 268 (1989) (finding county liable for employment discrimination under Title VII for refusing to
consider two male guards for promotion to female unit of prison); Bagley v. Watson, 579 F. Supp. 1099,
1104–05 (D. Or. 1983) (holding that female corrections officers cannot be excluded from positions which
involve performing pat-down frisk searches of clothed male prisoners and visual observations of male
prisoners in various states of undress); Griffin v. Mich. Dep’t of Corr., 654 F. Supp. 690, 702–03 (E.D.
Mich. 1982) (finding gender not to be a bona fide occupational qualification for corrections officers
because prisoners were being viewed by corrections officers of the opposite sex). See also Part B of this
Chapter for a discussion of similar issues concerning involuntary exposure.
75. Somers v. Thurman, 109 F.3d 614, 617–23 (9th Cir. 1997). Compare with Skurstenis v. Jones,
236 F.3d 678, 683–84 (11th Cir. 2000) (upholding male prison official’s manual search for lice of the
female plaintiff’s pubic hair immediately before the plaintiff’s release, on the ground that the search
was done privately in the clinic by a member of the medical staff and it was done at the earliest
opportunity) and Skurstenis v. Jones, 81 F. Supp. 2d 1228, 1237 (N.D. Ala. 1999) (describing incident
as “the inspection to prevent lice from escaping from the jail”).
76. Canedy v. Boardman, 16 F.3d 183, 188 (7th Cir. 1994).
77. Canedy v. Boardman, 16 F.3d 183, 188 (7th Cir. 1994) (finding that male prisoner did have a
cause of action against strip searches by female guards, because “where it is reasonable—taking
account of a state’s interests in prison security and in providing equal employment opportunity for
Your state may also have laws protecting women prisoners or regulating searches by
opposite-sex guards. For example, California law requires that all California prisoners be
searched “in a professional manner.”78 Routine clothed searches of male prisoners may be
performed by prison officials of either sex, but searches of clothed female prisoners should be
performed only by female employees—except in emergency situations.79 California prohibits
opposite-sex guards (other than qualified medical staff) from performing unclothed body
inspections “except under emergency conditions with life or death consequences.”80
The New York Department of Correctional Services (“DOCS”) allows female correction
officers to routinely pat frisk most male prisoners.81 For New York State female prisoners,
however, DOCS requires that, “whenever possible,” female guards should pat frisk female
prisoners82 (see Part C(2)(f)(1) below).
(i) Searches of Women Prisoners by Male Guards83
While all prisoners’ rights to privacy are limited because of the nature of prison and
incarceration, 84 courts are sometimes more sympathetic to female prisoners. Some courts
recognize that women have a greater privacy interest in certain situations because female
prisoners are particularly vulnerable to sexual abuse by correctional personnel. As a result,
some courts have found searches of women prisoners by male guards to be unconstitutional,
even if the same searches of male prisoners by female guards would be allowed under the
same circumstances.
For example, in Jordan v. Gardner, the Ninth Circuit held that past sexual and physical
abuse experienced by female prisoners may affect the way they react to searches by male
prison guards. Because of this, the court found that female prisoners have a greater privacy
interest than males. The court held that random, non-emergency, clothed body searches on
female prisoners were cruel and unusual punishment, violating the Eighth Amendment.85 In
female guards—to respect an inmate’s constitutional privacy interests, doing so ... is a constitutional
mandate”).
78. Cal. Code Regs. tit. 15, § 3287(b) (2006) (requiring that all searches of prisoners “be conducted
in a professional manner which avoids embarrassment or indignity to the prisoner. Whenever possible,
unclothed body inspections of prisoners shall be conducted outside the view of others”). Title 15 of the
California Codes and Regulations (Crime Prevention and Corrections) contains the provisions
concerning prisoner body searches.
79. Cal. Code Regs. tit. 15, § 3287(b)(2)–(3) (2006).
80. Cal. Code Regs. tit. 15, § 3287(b)(1) (2006). The CDCR Department Operations Manual (the
DOM) reflects the same policies. CDCR Department Operations Manual §§ 52050.18.2, 52050.18.3
(1989), available at
http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/DOM/Ch_5_Printed_Final_DOM.pdf.
81. State of New York, Department of Correctional Services, Directive 4910, Control of and Search
for Contraband, at 3 (2001) (as revised Dec. 11, 2006) (“Pat frisks [of male prisoners] will be performed
by officers regardless of sex,” although male Muslim prisoners may request a male officer under certain
circumstances). In general, cross-gender pat-down searches of male prisoners by female prison guards
are constitutionally permissible. See Grummett v. Rushen, 779 F.2d 491, 495 (9th Cir. 1985)
(permitting routine cross-gender pat-downs because “these searches do not involve intimate contact
with an inmate’s body”); Smith v. Fairman, 678 F.2d 52, 53 (7th Cir. 1982) (holding female guards may
conduct “pat-down” searches without violating a male prisoner’s privacy).
for Contraband, at 3 (2001) (as revised Dec. 11, 2006).
83. It is very important that you read all of Part C of this Chapter, not just this Section. Courts
will use the general rules explained in Part C to decide if a search was legal. This Section only explains
some additional protections women prisoners have against searches by male prison guards.
84. See Hudson v. Palmer, 468 U.S. 517, 527, 104 S. Ct. 3194, 3201, 82 L. Ed. 2d 393, 404 (1984)
(stating that a right of privacy in traditional 4th Amendment terms is fundamentally incompatible with
the close and continual surveillance of prisoners and their cells).
85. Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993). Whether the doctrine of this case will be
adopted by other circuits or the Supreme Court is questionable. See Hovater v. Robinson, 1 F.3d 1063,
Jordan, the prison policy allowed both male and female guards to randomly and routinely
search clothed female prisoners. During the searches, the guards rubbed, stroked, squeezed,
and kneaded the women’s bodies, including their covered breasts, buttocks, inner thighs, and
crotches. The policy required guards to “push inward and upward when searching the crotch
and upper thighs” of the prisoners and to check the crease in their buttocks with a downward
motion with the edge of the hand. 86 Many of the female prisoners had been sexually or
physically abused by men in the past, and one woman, after being searched, suffered severe
distress. The court found that prison officials knew of the risks of mental trauma and acted
with deliberate indifference to the harm that the cross-gender clothed body searches were
likely to cause. The court said the policy violated the Eighth Amendment because it was
“unnecessary” for male guards to search the women (since female guards could do the
searches) and “wanton,” meaning the searches regularly caused prisoners pain. 87 Other
courts have also recognized that female prisoners are entitled to greater privacy protection,
though with some limitations.88
In general, male prison officials are allowed to conduct clothed body frisks of women
prisoners (where the outer garments of the prisoner are searched), 89 cell searches, 90 and
visual body cavity or strip searches (where prisoners take off their clothes and are visually
inspected by a guard).91 Some states require that only medical personnel, not correctional
personnel, may conduct body cavity searches that involve physical intrusion or extraction of
a foreign object from a body cavity.92 Similarly, body cavity searches requiring the use of
1066 (10th Cir. 1993) (holding that a male guard having sole custody of a female prisoner does not
create such a risk to her safety that it violates the 8th Amendment). The Jordan court’s decision was
fact-specific to the particular prison in the case, and other courts have indicated that the case did not
create a per se constitutional violation. See Carl v. Angelone, 883 F. Supp. 1433, 1440 (D. Nev. 1995)
(finding that although prison director transferred male correction officers out of female prisons based
on Jordan, there was no per se rule of unconstitutionality for cross-gender searches; thus, prisons could
not be forced to transfer the men based on their sex).
86. Jordan v. Gardner, 986 F.2d 1521, 1523, 1532 (9th Cir. 1993).
87. Jordan v. Gardner, 986 F.2d 1521, 1527–28 (9th Cir. 1993); see also Berry v. City of Muskogee,
900 F.2d 1489, 1498 (10th Cir. 1990) (stating knowledge of risk of harm and failure to act to prevent
the harm constitute deliberate indifference).
88. See, e.g., Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir. 1992) (denying qualified
immunity to a male parole officer who walked in on a female parolee urinating as part of a required
drug test); Torres v. Wis. Dep’t of Health & Social Servs., 838 F.2d 944, 946–47 (7th Cir. 1988), rev’d in
part, 859 F.2d 1523, 1524–25 (7th Cir. 1988) (suggesting that to protect female prisoners’ privacy,
prisons could provide them with appropriate sleepwear and allow them to cover their windows while
dressing or using the toilet); Forts v. Ward, 621 F.2d 1210, 1213 (2d Cir. 1980) (allowing female
prisoners to cover the window of their cells for privacy for 15 minute intervals). But see Carlin v. Manu,
72 F. Supp. 2d 1177, 1180 (D. Or. 1999) (holding that observation by male guards during strip searches
of female prisoners made by female guards was acceptable during an emergency removal to a male
prison since the male guards were not touching the female prisoners).
89. See Smith v. Fairman, 678 F.2d 52, 53–54 (7th Cir. 1982) (holding female guards may conduct
“pat down” searches without violating a male prisoner’s privacy).
90. See Hudson v. Palmer, 468 U.S. 517, 525–26, 104 S. Ct. 3194, 3199, 82 L. Ed. 2d 393, 402–03
(1984) (holding that prisoner has no reasonable expectation of privacy in his cell); Martin v. Lane, 766
F. Supp. 641, 646 (N.D. Ill. 1991) (applying Hudson to deny relief under the 4th Amendment to a
prisoner whose cell was searched during a lockdown).
91. See Bell v. Wolfish, 441 U.S. 520, 558, 99 S. Ct. 1861, 1884, 60 L. Ed. 2d 447, 481 (1979)
(upholding visual body cavity searches of prisoners against 4th Amendment challenge). The gender of
the guards assigned to conduct the searches is not mentioned.
92. See DaVee v. Mathis, 812 S.W.2d 816, 824–26 (Mo. Ct. App. 1991) (concluding that while
searches involving physical intrusion and removal of foreign objects must be conducted by medical
personnel, the search in question did not involve physical contact and was thus reasonably conducted
by non-medical personnel); U.S. ex rel. Guy v. McCauley, 385 F. Supp. 193, 199 (E.D. Wis. 1974) (“[t]he
intrusion of either the vaginal or anal cavities must be made by skilled medical technicians”).
one’s fingers, or a “digital body search,” are unreasonable unless medical personnel do these
searches in a hygienic manner in a private area.93 The presence of male officers is also an
aggravating circumstance that might make a digital body search unreasonable.94 The prison
official must have a particularly strong reason to conduct a vaginal search of a pregnant
woman, whether visual or digital.95
Your state may have specific laws to protect you or to regulate searches by opposite-sex
guards. California, for instance, prohibits opposite-sex guards from performing unclothed
body inspections in non-emergency situations.96 In New York, DOCS policy requires that,
“whenever possible,” female guards—not male guards—should pat frisk female prisoners.97 If
a male officer has to perform a non-emergency pat frisk search of a female prisoner (because,
for example, a female officer is not available), he must try to search the prisoner in a public
location. In New York, if more than fifty percent of all officers on duty are women, then male
guards cannot perform non-emergency pat frisks, unless the pat frisk is based upon an
articulable basis to suspect the female prisoner possesses contraband and a female officer is
not present and available at the pat frisk location. 98 Women prisoners who have been
diagnosed with Post Traumatic Stress Disorder may also request a “Cross Gender Pat Frisk
Exemption,” which prevents male officers from routinely pat frisking them. However, male
guards may still search them under emergency situations, when specifically directed to do so
by a supervisor, or when the officer has an articulable basis to believe the female prisoner
possesses contraband and a female officer is not available.99
93. See Bonitz v. Fair, 804 F.2d 164, 172–73 (1st Cir. 1986) (holding that digital body searches of
female prisoners were unreasonable and in violation of 4th Amendment because non-medical personnel
performed the searches in a non-hygienic manner and in the presence of male personnel), overruled on
other grounds by Unwin v. Campbell, 863 F.2d 124, 128 (1st Cir. 1988); U.S. ex rel. Guy v. McCauley,
385 F. Supp. 193, 198 (E.D. Wis. 1974) (finding a search “abused common conceptions of decency and
civilized conduct” and violated the 5th Amendment because it involved forcing a pregnant woman to
bend over painfully, the police officers conducting the search were not medically trained, and the search
was not conducted in a medical environment). But see Rodriguez v. Furtado, 771 F. Supp. 1245, 1256–
57 (D. Mass. 1991) (holding that a body cavity search of a female patient by a doctor in a hygienic and
private setting pursuant to a search warrant was reasonable). Some states specifically require medical
personnel by statute to perform body cavity searches of prisoners. See, e.g., Mich. Comp. Laws Ann. §
764.25b(5).
94. See Bonitz v. Fair, 804 F.2d 164, 172–73 (1st Cir. 1986) (searching female prisoners in the
presence of male prisoners is one factor that the court considered in finding the search to be
unreasonable).
95. See U.S. ex rel. Guy v. McCauley, 385 F. Supp. 193, 198 (E.D. Wis. 1974) (holding that a visual
vaginal search of woman who is seven-months pregnant “abuses common conceptions of decency and
civilized conduct” when the search is conducted in a non-medical environment by non-medical officers,
and it was painful for the woman to bend over).
96. Cal. Code Regs. tit. 15, § 3287(b)(1) (2008). The California Department of Corrections and
Rehabilitation Department Operations Manual (the DOM) reflects the same policies. CDCR
Department Operations Manual § 52050.18.3 (1989).
for Contraband, at 2–3 (2001) (as revised Dec. 11, 2006). Pat frisks are required when prisoners are
entering the visiting room, when an entire area of the institution is being searched, when an officer has
an articulable basis to suspect a prisoner possesses contraband, or as directed by supervisory staff. Pat
frisks are also allowed when a prisoner is going or returning to housing, program, and recreation areas
and outside work details. See also Hamilton v. Goord, No. 97-CV-1363 (S.D.N.Y. June 5, 2000) (order
granting stay of litigation so DOCS could take action relating to pat frisks of female prisoners),
available at http://www.amnestyusa.org/women/custody/newyork.pdf (last visited Dec. 13, 2008).
for Contraband, at 3–4 (2001) (as revised Dec. 11, 2006).
for Contraband, at 3 (2001) (as revised Dec. 11, 2006). These policies are the result of a 1998 lawsuit
against DOCS by women prisoners who claimed cross-gender pat frisks violated their constitutional
Some prisons have tried to hire female prison officers for certain jobs in women’s
prisons.100 But the prisons may be sued for employment discrimination, since federal law
prohibits employment discrimination based on sex,101 and courts have held that hiring only
female employees for female correctional facilities violates this law.102 The state’s interest in
equal employment opportunities for correctional officers is strong compared to a prisoner’s
privacy interest in her body, as long as the cross-gender interactions are not offensive,
disrespectful, or unprofessional.103 Therefore, prisons have not been as successful as they
could have been in ensuring that there are enough women employees to search the female
prisoners, so male employees are allowed to search you.
In sum, courts will balance the invasive nature of the search against the prison’s
penological concerns of security and equal employment opportunities. But prison officials
must still try to provide privacy to prisoners if reasonable, and they should also train prison
employees to carry out searches in the least intrusive manner possible.104
3. Eighth Amendment Limitations
Chapter 24 of the JLM, “Your Right to Be Free From Assault,” explains your rights
under the Eighth Amendment, which prohibits cruel and unusual punishment. As this
Chapter explains, courts usually view illegal search claims as possible violations of the
Fourth Amendment. Sometimes, however, a court may believe a search was so unreasonable
rights; the lawsuit settled. See Hamilton v. Goord, No. 97-CV-1363 (S.D.N.Y. June 5, 2000) (order
granting stay of litigation so DOCS could address psychological issues around cross-gender pat frisks),
available at http://www.amnestyusa.org/women/custody/newyork.pdf (last visited Dec. 13, 2008).
100. See, e.g., Ind. Code Ann. §§ 36-8-3-19, 36-8-10-5 (LexisNexis 2004). California protects all
prisoners from room searches by officers of the opposite sex and ensures that a trained female staff
member is available and accessible for the supervision of female prisoners. Cal. Penal Code § 4021(b)
(West 2000). Michigan provides that if prisoners are subject to body cavity searches by a person of the
opposite sex, another person of the same sex must also be present. Mich. Comp. Laws Ann. § 764.25b(5)
(West 2000).
101. 42 U.S.C. § 2000e-2(a)–(d) (2006) (“Title VII”).
102. See, e.g., Henry v. Milwaukee County, 539 F.3d 573, 581 (7th Cir. 2008) (finding that a
prison policy which required staff overtime shifts to be staffed by same-sex guards and so reduced the
number of shifts available to women was not reasonably necessary to achieve the goals of
rehabilitation, security, and privacy); Forts v. Ward, 621 F.2d 1210, 1216 (2d Cir. 1980) (holding that
male prison guards could not be excluded from night shifts in women’s prison because other measures
to ensure prisoner privacy were available). But see Robino v. Iranon, 145 F.3d 1109, 1111 (9th Cir.
1998) (upholding policy excluding male prison guards from certain posts in order to accommodate the
privacy of female prisoners and reduce risk of sexual conduct between guards and prisoners when male
prison guards still had many other employment opportunities in the system).
103. See Grummett v. Rushen, 779 F.2d 491, 495 (9th Cir. 1985) (finding that to restrict or
disallow female guards from holding positions which involve occasional viewing of male prisoners
would require tremendous rearrangement of work schedules and possibly produce a risk to both
internal security needs and equal employment opportunities for female guards, especially when the
record indicates that female guards have acted professionally and appropriately); Robins v. Centinela
State Prison, 19 F. App’x. 549, 550–51 (9th Cir. 2001) (while generally the search of male prisoners by
female officers may not violate the 4th Amendment, a search that is “completely unprofessional and
offensive” may be such a violation).
104. See, e.g., Timm v. Gunter, 917 F.2d 1093, 1100 (8th Cir. 1990) (upholding cross-gender pat
searches when female guards are trained to perform pat searches of male prisoners in a professional
manner); Torres v. Wis. Dep’t of Health & Social Servs., 859 F.2d 1523, 1524 (7th Cir. 1988) (noting
procedures in place to minimize intrusions on the privacy of inmates). But see Cameron v. Hendricks,
942 F. Supp. 499, 503 (D. Kan. 1996) (stating that the availability of less intrusive measures is only one
factor in determining the reasonableness of a search and that officials are not required to perform the
“least intrusive” search).
that it violates the Eighth Amendment’s prohibition against cruel and unusual
punishment.105 (Some illegal searches may also be considered assault and battery.106)
There is no clear standard about how much pain and suffering is unconstitutional.
Courts usually say “the unnecessary and wanton infliction of pain” violates the Eighth
Amendment.107 Prison officials’ behavior must meet this standard before a court will find a
constitutional violation. But if the official acts only to further some legitimate penological
interest and if the pain suffered is a result only incidental to (not the main purpose of) the
procedure, then courts will probably say your constitutional rights were not violated.108 If you
believe your Eighth Amendment rights were violated by an illegal search, you should read
Chapter 16, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief From Violations
of Federal Law,” as well as Chapter 24, “Your Right To Be Free From Assault,” for more
information.
In regard to body searches, the Eighth Amendment is most often triggered by the
manner in which the searches are conducted and, at times, by the purpose of the searches. In
Meriwether v. Faulkner, the prisoner had a sex change operation and claimed that guards
made her strip to harass her and to see her unusual physical features.109 She also claimed
that there were no security reasons to search her.110 The court said that such searches might
violate the Eighth Amendment. In addition, in McRorie v. Shimoda, the court sustained an
Eighth Amendment claim against a prison guard who rammed his baton into the anus of a
prisoner during a strip search.111
The Seventh Circuit in Isby v. Duckworth held that a rectal cavity search conducted in a
private room by a doctor, who inserted a gloved and lubricated finger into the prisoner’s
rectum to check for a weapon, was not abusive, even though the doctor laughed before doing
the search while guards held the prisoner down.112 Similarly, the Ninth Circuit in Somers v.
Thurman held that a male prisoner did not state an Eighth Amendment claim based on
allegations that female guards pointed and joked “among themselves” while observing him
showering and while conducting a body cavity search of him.113 However, the Ninth Circuit
in Dockery v. Bass held that a prisoner may have an Eighth Amendment claim when officials
105. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1524–25 (9th Cir. 1993); Tribble v. Gardner, 860
F.2d 321, 325–26 (9th Cir. 1988) (finding that a rectal probe may have violated the 8th Amendment if it
was conducted for purposes unrelated to security considerations, where a prisoner’s clothing, hair,
hands, and other body cavities were not searched and prisoner’s recent X-ray revealed no contraband in
his rectum); Dellamore v. Stenros, 886 F. Supp. 349, 351 (S.D.N.Y. 1995) (finding that a plaintiff
subjected to a body cavity search without a medical practitioner present stated a claim under the §
1983).
106. See, e.g., Hammond v. Gordon County, 316 F. Supp. 2d 1262, 1293 (N.D. Ga. 2002) (holding
that a female prisoner presented enough evidence to show assault and battery, because she alleged that
a guard violated inserted his fingers into her vagina).
107. Gregg v. Georgia, 428 U.S. 153, 173, 965 S. Ct. 2909, 2925, 49 L. Ed. 2d 859, 874 (1976). See
also Baze v. Rees, 128 S. Ct. 1520, 1531–32, 170 L. Ed. 2d 420, 432–33 (2008) (upholding the three-drug
lethal injection protocol on the grounds that neither the risk of improper administration of the first
drug nor the failure to adopt more humane alternatives constitute cruel and unusual punishment).
108. See Del Raine v. Williford, 32 F.3d 1024, 1038–42 (7th Cir. 1994) (finding that while rectal
searches may inflict pain, if the official has a legitimate reason to conduct them, they do not violate the
8th Amendment). See also Gillis v. Litscher, 468 F.3d 488, 492 (7th Cir. 2006) (finding that a behavioral
modification program imposed on an inmate for breaking a rule may have imposed on him “an atypical
and significant hardship” in violation of his 8th Amendment rights).
109. Meriwether v. Faulkner, 821 F.2d 408, 411 (7th Cir. 1987).
110. Meriwether v. Faulkner, 821 F.2d 408, 418 (7th Cir. 1987).
111. McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir. 1986).
112. Isby v. Duckworth, No. 97-3705, 175 F.3d 1020 (7th Cir. Mar. 11, 1999) (unpublished).
113. Somers v. Thurman, 109 F.3d 614, 624 (9th Cir. 1997).
subjected him to two strip searches, maliciously causing him pain with the excessive use of
handcuffs and the forcible insertion of a tube up his anal cavity.114
4. DNA Testing
Prisoners can be forced to give DNA samples by state or federal law.115 Forced DNA
testing of prisoners generally does not violate the Fourth Amendment.116 It is unclear so far
if all prisoners can be forced to give DNA samples, not just prisoners convicted of certain
types of crimes 117 like sex offenses. 118 Some courts have found that laws requiring DNA
sampling of all convicted felons do not violate the Fourth Amendment because the state’s
interest is more important than the bodily intrusion. 119 See Chapter 11, “Using Post-
Conviction DNA Testing to Attack Your Conviction or Sentence,” and Chapter 32, “Special
Considerations for Sex Offenders,” for more information.
5. Statutory Privacy Rights
You may also have privacy rights under state statutes and regulations, in addition to
your federal constitutional rights.120 For example, New York State law requires prisons to
114. Dockery v. Bass, No. 95-17250, 133 F.3d 926 (9th Cir. Dec. 15, 1997) (unpublished).
115. U.S. v. Weikert, 504 F.3d 1, 3 (1st Cir. 2007) (upholding a blood draw from a prisoner on
supervised release); State v. Martin, 955 A.2d 1144, 1144 (Vt. Sup. Ct. 2008) (upholding a state law
requiring a blood draw from convicted nonviolent felons); United States v. Kincade, 379 F.3d 813, 832
(9th Cir. 2004) (holding that compulsory DNA profiling of qualified federal offenders was reasonable
under the totality of the circumstances, which included the probationer’s reduced expectations of
privacy, the minimal intrusion occasioned by blood sampling, and the significant societal interests
furthered by the collection of DNA information from convicted offenders); Velasquez v. Woods, 329 F.3d
420, 421 (5th Cir. 2003) (per curiam) (noting that every circuit court to consider the question of whether
statutes compelling collection of DNA samples from felons were violations of the 4th Amendment has
held they are not, so the lower court did not err in holding the same thing).
116. Groceman v. U.S. Dep’t of Justice, 354 F.3d 411, 413–14 (5th Cir. 2004) (per curiam)
(“[A]lthough collection of DNA samples from prisoners implicates Fourth Amendment concerns, such
collections are reasonable in light of an inmates’ diminished privacy rights, the minimal intrusion
involved, and the legitimate government interest in using DNA to investigate crime … persons
incarcerated after conviction retain no constitutional privacy interest against their correct
identification.”); United States v. Hugs, 384 F.3d 762, 769 (9th Cir. 2004) (finding that a supervised
release condition requiring the defendant, a “qualified felon,” to cooperate in the collection of DNA does
not violate the 4th Amendment).
117. See Groceman v. U.S. Dep’t of Justice, 354 F.3d 411, 413 n.2 (per curiam) (5th Cir. 2004)
(noting variety of approaches); Roe v. Marcotte, 193 F.3d 72, 81–82 (2d Cir. 1999) (upholding statute
applying to sex offenders; rejecting rationale that would extend to all offenses). But see Nicholas v.
Goord, 430 F.3d 652, 671 (2d Cir. 2005) (in decision upholding statute applying to assault, homicide,
rape, incest, escape, attempted murder, kidnapping, arson, and burglary, suggesting its rationale
applies to all convicted felons); United States v. Amerson, 483 F.3d 73, 83-84 (2d Cir. 2007) (extending
the applicability of the DNA collection statute to non-violent probationers under the two pronged
special needs test used in the Circuit when there was a strong governmental interest).
118. See, e.g., Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996) (upholding requirement that
prisoners convicted of sexual assault provide DNA samples).
119. Padgett v. Ferrero, 294 F. Supp. 2d 1338, 1342 (N.D. Ga. 2003) (felony convictions justify
searches, so as to satisfy the 4th Amendment); United States v. Stegman, 295 F. Supp. 2d 542, 550 (D.
Md. 2003) (DNA analysis is not an unreasonable search or seizure); United States v. Amerson, 483 F.3d
73, 83–84 (2d Cir. 2007) (extending the applicability of the DNA collection statute to non-violent
probationers under the two pronged special needs test used in the Circuit when there was a strong
governmental interest and minimal intrusion and invasion of privacy on behalf of the probationers).
120. Prisoners should become familiar with the penal codes of their respective states, as well as
the employee manual of their prisons, if possible. The employee manuals will tell you what procedures
the guards must follow and may help you challenge the guards’ behavior through internal prison
grievance procedures.
give prisoners certain clothing, and to follow specific procedures when giving prisoners urine
tests or searching prisoners’ religious items.
(a) Clothing
New York State law gives all prisoners the right to the same amount of “facility-issue
clothing” 121 Look in your prison library for the New York Department of Correctional
Services Directives (specific prison rules) for more specific information about clothing. Prison
officials in New York cannot take clothing away as punishment.122 But they can take clothing
away if they think it is dangerous to the prison and/or yourself and is a threat “to the safety,
security or good order.”123 If officials want to take away some clothing from you because they
think it is dangerous for you to have, they must follow specific procedures.124 A deprivation
order must be authorized by the officer of the day, the deputy superintendent for security
services, or a higher official. You must receive a written copy of the order within twenty-four
hours. The copy must include the reasons for the order and explain how you can challenge
the order. The prison superintendent must also receive a copy. The deprivation order must be
reviewed on a daily basis for seven days. If the order is still in effect after seven days, it must
be reviewed in writing on a weekly basis. A copy of this review should be sent to you and the
superintendent.125
(b) Urine Tests
Forcing people to take urine tests or give samples of other bodily fluids is considered a
“search”126 under the Fourth Amendment, and the procedures for urine tests are held to the
same standard as other searches. Prison officials may require prisoners to give urine samples
for drug testing either with reasonable cause or pursuant to a program designed to prevent
selective enforcement or harassment.127 New York has state regulations about privacy when
you take a urinalysis test.128 The rules have a specific procedure for urine tests. You will be
pat-frisked before giving the sample, and someone will watch you give the sample. The
person who watches you must be from the security or medical staff, and the person has to be
the same sex as you. You should be in a private place where no other prisoners or staff can
see you.129
121. N.Y. Comp. Codes R. & Regs. tit. 9, § 7005.7 (2005). For men, this includes one shirt and one
pair of pants. Women receive one shirt and one skirt, dress, or pair of pants. Both men and women
should receive two pairs of socks, two sets of underwear, one pair of shoes, and one sweater or jacket for
cold weather. Women prisoners are allowed to wear brassieres.
125. N.Y. Comp. Codes R. & Regs. tit.7, § 305.2(b) (2005).
126. Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 617, 109 S. Ct. 1402, 1413, 103 L.
Ed. 639, 660 (1989) (holding that the Federal Railroad Administration’s policy of drug testing by
collecting and testing urine samples and samples of other bodily fluids constitute “searches” under the
4th Amendment).
127. Hurd v. Scribner, No. 06CV0412, 2007 U.S. Dist. Lexis 32651, at *9 (S.D. Cal. May 02, 2007)
(unpublished) (upholding in response to habeas petition discipline taken against a prisoner who refused
a drug test); Louis v. Dep’t of Corr. Servs. of Neb., 437 F.3d 697, 700 (8th Cir. 2006) (holding in a § 1983
action that prisons requiring tests do not need to allow prisoners to sign and seal their own urine
specimens and do not have to conduct a GC/MS test where there the test shows a positive result but
prisoner denies using drugs); Thompson v. Souza, 111 F.3d 694, 702–03 (9th Cir. 1997) (upholding
urine testing of group of 124 prisoners); Lucero v. Gunter, 17 F.3d 1347, 1350 (10th Cir. 1994)
(upholding random tests); Forbes v. Trigg, 976 F.2d 308, 314–15 (7th Cir. 1992) (upholding urinalysis of
all prisoners in certain jobs).
129. N.Y. Comp. Codes R. & Regs. tit. 7, § 1020.4 (2008); see also State of New York, Department
of Correctional Services, Directive 4937, Urinalysis Testing, at 2 (2006).
(c) Searches of Religious Items
In New York, religious items such as a Native American prisoner’s medicine bag can only
be inspected in a manner that respects its religious significance. However, a medicine bag
may be scanned at any time with a metal or other electronic detector. A prisoner must also
hold the medicine bag open for prison officials to look inside if the official has reason to
believe that it may contain contraband. 130 See JLM Chapter 27, “Religious Freedom in
Prison,” for more information on religious rights in prison.
6. Departmental Directives and Privacy Rights
The New York Department of Correctional Services Directives has specific rules for each
state prison. Look in your prison library for a copy of these directives.
These directives have additional rules for searches that may be stricter than the court
rules. For example, the directives say that only a physician under the supervision of Central
Office physician guidance can conduct body cavity searches.131 The body cavity search must
take place in the examining room. The official must use professional, hygienic techniques
and explain the procedure to you. The physician must also give you a chance to yield
contraband voluntarily. One corrections officer of your sex must be present to witness the
examination.132 These rules are intended to make sure that no one, including health officials,
humiliates or harasses you. If anyone does harass you, you may bring a complaint alleging
violation of the professional standards set out in the directives.
The New York Directives also say that when you are transferred from one DOCS facility
to another, you will be strip frisked and subjected to a metal detector search at the facility
from which you are being transferred, but you will not be strip searched or strip frisked at
the receiving facility. You may be subjected to a metal detector search at the receiving
facility, though. The same policy applies when you are transferred from one Special Housing
Unit to another Special Housing Unit. However, there is an exception if an officer has
“probable cause” to believe that you are carrying contraband.133
When you are strip searched or strip frisked, prison officials must make sure you have
some privacy. Only the prison official doing the search should be there, although a supervisor
may observe. 134 Additional corrections officers should be present only if there are major
disturbances or if it is likely that you will resist the search, and inmates may be searched in
groups if there is a major disturbance at the facility. The prison should limit traffic as much
as possible where strip searches are conducted. Officers of the same sex as you must conduct
strip searches and strip frisks.135
A very important rule about strip searches in New York is that officers must always act
professionally. They have to be aware of the sensitive nature of searches and must “conduct
such searches in a manner least degrading to all involved.”136 Typically, if you cooperate in a
non-body cavity search, the officer may not touch you, except to run fingers through your
130. State of New York, Department of Correctional Services, Directive 4910, Control of and
hair, if necessary.137 If you believe that a search is conducted improperly, you can use the
New York Inmate Grievance Program or an Article 78 proceeding to seek a remedy.138 If you
believe the search also violated your constitutional rights, then you can use the legal
remedies in Part E of this Chapter. If you are incarcerated in another state, it is likely that
there are similar regulations to protect your rights. See Chapter 2 of the JLM, “Introduction
to Legal Research,” for more information on legal research so that you can find the laws and
regulations of the state where you are incarcerated.
D. Should You Resist an Illegal Body Search?
If you are searched in a way that you believe is illegal or against a prison regulation, it is
best to allow the search to take place. (Prison officials can use force to make you obey orders,
even if those orders may be illegal, so resisting is often not possible.) Courts have held that
prisoners must follow orders so that prison rules can be administered safely and in an
orderly way.139 Even if you believe that an order violates your constitutional rights, courts
say that you do not have the right to resist the order.140
It is safest for you not to resist the prison official, because if you resist you probably will
be disciplined and you may be injured. You can later file a lawsuit to help prevent future
violations of your rights and to punish the official. Any disciplinary action taken against you
for resisting the search will be added to your record, affecting your good-time credit and your
chances of parole. If you resist a search and then bring a lawsuit, winning the suit may mean
the court will clear your disciplinary record after finding the search violated prison rules.141
However, resisting a search—even if it is obviously illegal— is more likely to lead to a
permanent mark on your disciplinary record. Courts rarely order a disciplinary record to be
changed, so it is unlikely that a permanent mark due to your resisting an illegal search can
ever be eliminated.142 Courts want prisoners to challenge violations of their rights in courts,
138. See Chapter 15, “Inmate Grievance Procedures,” and Chapter 22 of the JLM, “How to
Challenge Administrative Decisions Using Article 78 of the New York Civil Practice Law and Rules,”
for more information on inmate grievance procedures and Article 78 proceedings.
139. Griffin v. Comm’r of Pa. Prisons, No. 90-5284, 1990 U.S. Dist. LEXIS 17951, at *11 (E.D. Pa.
Dec. 10, 1991) (unpublished), aff’d, Griffin v. Comm’r of Pa. Prisons, 961 F.2d 208 (3d Cir. 1992) (“Even
if plaintiff considered the order illegal, plaintiff should not have refused to follow it because it is critical
to the orderly administration of a prison that prisoners follow orders.”). See also Williams v. Delo, 49
F.3d 442, 446 (8th Cir. 1995) (finding that prisoner’s refusal to follow the orders of corrections officials
posed a threat to institutional security); Eccleston v. Oregon ex rel. Or. Dep’t of Corr., 168 F. App’x 760,
761 (9th Cir. 2006) (finding that prison official’s use of chemical agent on prisoner who repeatedly
refused to follow orders to leave his cell was not cruel and unusual punishment).
140. Pressly v. Gregory, 831 F.2d 514, 518 n.3 (4th Cir. 1987) (citing Wright v. Bailey, 544 F.2d
737 (1976) for the proposition that you cannot resist arrest by stating that the arrest is illegal unless
the illegality is clear at the time of the arrest); Jackson v. Allen, 376 F. Supp. 1393, 1394–95 (E.D. Ark.
1974) (holding that, because of the discipline structure of prisons, prisoners do not have the right to
resist an unconstitutional order or punishment unless resistance is necessary to prevent one’s own
death). But see Purcell v. Pa. Dep’t of Corr., No. 95-6720, 1998 U.S. Dist. LEXIS 105, at *26–27 (E.D.
Pa. Jan. 9, 1998) (finding that, because prisoner might have suffered injury by following order and had
medical authorization that led him to believe that he did not have to obey the order, prisoner can
proceed with action against prison officials).
141. See Dunne v. Reid, 93 Misc. 2d 50, 52, 402 N.Y.S.2d 923, 923 (Sup. Ct. Dutchess County
1978) (ordering prisoner’s disciplinary record from resisting search cleared after finding prison officials
acted in violation of prison regulations when they tried to search the prisoner in front of other people,
despite prison rules that said searches must respect prisoners’ privacy).
142. See, e.g., Mahogany v. Stalder, 242 F. App’x 261, 263 (5th Cir. 2007) (dismissing prisoner’s
claim seeking restoration of good-time credits and expungement of disciplinary proceedings from his
record).
not to refuse to obey orders from prison officials.143 Do not count on the courts to clear your
record, especially if the order you disobey is not clearly contrary to a prison’s own rules.
E. Legal Remedies
If you believe your rights have been violated, remember you should first file an
administrative grievance at your institution. See Chapter 15 of the JLM, “Inmate Grievance
Procedures,” for further information. 144 You can then file a Section 1983 lawsuit if you
believe prison officials or other government employees (including police officers) have
violated any of your constitutional rights. In addition, you can file a class action law suit,
which involves a group of plaintiffs bringing a lawsuit together.
If you think that prison officials have violated your Eighth or Fourth Amendment rights,
you may sue the officials or guards using 42 U.S.C. § 1983. Section 1983 is a federal law that
allows you to sue state officials who have violated your constitutional rights while acting
“under color of” any state law.145 You can sue federal officials in a similar suit, called a
Bivens action.146
You can also use Section 1983 to sue local officials as long as you can show that they too
acted under “color of state law.” But note that you can only sue municipalities (towns, cities,
or counties) under 42 U.S.C. § 1983 if your injury was the result of an official municipal
policy or custom.147 To sue a city or a county, then, you will have to show that the “execution
of [the] government’s policy or custom ... inflict[ed] the injury.”148 In other words, a local
government will be held liable only if an injury can be shown to be a direct result of the local
government’s official policy, either express or implied.149 Therefore, a local government is not
liable under Section 1983, “for an injury inflicted solely by its employees or agents” who were
143. See Rivera v. Smith, 63 N.Y.2d 501, 515, 472 N.E.2d 1015, 1022, 483 N.Y.S.2d 187, 194
(1984) (“[T]he recognition and enforcement even of constitutional rights may have to await resolution in
administrative or judicial proceedings; self-help by the inmate cannot be recognized as an acceptable
remedy.”). But see Sanchez v. Scully, 143 Misc. 2d 889, 889, 542 N.Y.S.2d 920, 920 (Sup. Ct. Dutchess
County 1989) (holding that, given the existence of unambiguous statutory language in support of
prisoner’s refusal to work in excess of eight hours per day, the record of the subsequent disciplinary
proceeding should be expunged from the inmate’s record); Dunne v. Reid, 93 Misc. 2d 50, 52, 402
N.Y.S.2d 923, 923 (Sup. Ct. Dutchess County 1978) (finding disciplinary action inappropriate where the
prisoner resisted a search that violated the prison’s own regulations).
144. See, e.g., Johnson v. Johnson, 385 F.3d 503, 515–23 (5th Cir. 2004) (describing in detail the
requirement that a prisoner exhaust administrative remedies before filing a lawsuit).
145. 42 U.S.C. § 1983 (2003).
146. Prisoners can make constitutional claims against federal officials in federal court under 28
U.S.C. § 1331 by using Bivens actions. See Part E(1) of Chapter 16 of the JLM, “Using 42 U.S.C. § 1983
and 28 U.S.C. § 1331 to Obtain Relief From Violations of Federal Law,” for more information on Bivens
actions.
147. See, e.g., Williams v. Kaufman County, 352 F.3d 994, 1013–14 (5th Cir. 2003) (holding that
the municipality could be held liable for unlawful searches of detainees because the policy was
authorized by the sheriff, the relevant policymaker).
148. Irwin v. City of Hemet, 22 Cal. App. 4th 507, 525–27 Cal. Rptr. 2d 433, 442–43 (Cal. Ct. App.
1994) (finding that a complaint alleging that City of Hemet’s adoption of a policy or custom not to train
its jailers in suicide screening and prevention was the proximate cause of a prisoner’s suicide may not
be summarily dismissed without determination of fact as to whether or not the city adopted a policy or
custom to inadequately train jailers (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct.
2018, 2035, 56 L. Ed. 2d 611, 635 (1978))). For an example of such a municipal policy or custom, see
Blihovde v. St. Croix County, 219 F.R.D. 607, 612 (W.D. Wis. 2003) (describing a county’s strip-search
policy).
149. Blihovde v. St. Croix County, 219 F.R.D. 607, 618 (W.D. Wis. 2003) (“Even when there is no
express policy, a municipality may be liable when there is a ‘custom’ of unconstitutional conduct.”
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611, 635
(1978))); see also Amnesty America v. Town of W. Hartford, 361 F.3d 113, 124–27 (2d Cir. 2004)
(reviewing the law of municipal liability in a damage suit for excessive force).
not following official local policy,150 even though the local officials may be individually liable
under Section 1983. You should read JLM Chapter 16, “Using 42 U.S.C. § 1983 and 28
U.S.C. § 1331 to Obtain Relief From Violations of Federal Law,” to learn more about Section
1983 claims.
Class actions are a type of lawsuit where many plaintiffs sue together for similar
violations of their rights. 151 Most successful class action cases challenging prison search
policies have been brought on behalf of non-violent, non-drug misdemeanor arrestees, not
convicted prisoners.152
It is important to remember different laws apply in state and federal prisons. If you are
in a federal prison, it does not matter what state the prison is in. Federal prisons only use
federal law. If you are in a state prison, you can use both state and federal laws. But,
remember that each state creates its own laws. You must research the laws of your
particular state and how prisoners in your state file suits in that state’s courts. Federal
constitutional rights are protected regardless of whether you are in state or federal prison,
but the way you present your case—what legal claims you make and how you make them—
will differ.
F. Conclusion
In conclusion, although your rights against involuntary exposure and body searches are
substantially limited in prison, it is possible for your rights to be violated under the Fourth
Amendment, Eighth Amendment, or under selected state statutory provisions. Whether your
rights have been violated will depend in large part on the reasonableness behind the search,
or behind the policy leading to the involuntary exposure. It will also depend on what kind of
search or exposure is at issue. The more cases you can find with facts similar to your own
situation, the better your chances of showing that your rights were violated.
1994).
151. See Chapter 5 of the JLM, “Choosing a Court and Lawsuit” for information on class actions
in general and Part D(1) of Chapter 16 of the JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to
Obtain Relief From Violations of Federal Law,” for § 1983 class actions.
152. See, e.g., Bynum v. District of Columbia, 217 F.R.D. 43, 45–49 (D.D.C. 2003) (certifying a §
1983 class action claiming 4th and 5th Amendment violations, where plaintiffs challenged prison policy
of conducting suspicionless strip searches of prisoners returning from court with orders for their
release). Bynum later settled for $12 million and the District of Columbia agreed to “no longer strip
search [detainees] who are entitled to release”. Bynum v. District of Columbia, 384 F. Supp. 2d 342, 359
(D.D.C. 2005). See also Tardiff v. Knox County, 365 F.3d 1, 7 (1st Cir. 2004) (affirming class
certification for non-violent, non-drug arrestees challenging policy of blanket, routine strip searches
without reasonable suspicion); Blihovde v. St. Croix County, 219 F.R.D. 607, 613–21 (W.D. Wis. 2003)
(affirming amended class definition in a § 1983 class action, alleging plaintiffs, all misdemeanor non-
drug, non-violent arrestees, were subjected to strip searches without reasonable suspicion according to
a county prison policy in violation of the 4th and 14th Amendments); Nilsen v. York County, 382 F.
Supp. 2d 206, 209 (D. Me. 2005) (approving $3.3 million settlement in § 1983 class action over strip
searches of non-drug, non-weapon, and non-violent arrestees at county jail; plaintiffs alleged the strip
searches were conducted pursuant to county jail policy, without individualized reasonable suspicion in
violation of the 4th Amendment; the settlement also required county to maintain a written policy
prohibiting the challenged strip searches).
Manual
Chapter 26:
Infectious Diseases: AIDS,
Hepatitis, Tuberculosis and MRSA
in Prisons

8th Edition 2009
LEGAL DISCLAIMER
CHAPTER 26
INFECTIOUS DISEASES: AIDS, HEPATITIS, TUBERCULOSIS AND MRSA IN

PRISONS∗
A. Introduction
This Chapter explains your legal rights about infectious diseases in prison. This Chapter has
information for both prisoners who already have an infectious disease (like HIV/AIDS, tuberculosis,
hepatitis B, hepatitis C or MRSA), and for prisoners who want to avoid getting an infectious disease. Part B
gives you some basic facts about infectious diseases. Section (1)(a) of Part B also describes how women may
have different symptoms of HIV/AIDS. Part C explains the general standard used to determine whether a
prison policy is constitutional. Part D is about prison medical testing for infectious diseases—whether a
prison can force you to get tested or have others tested. Part E discusses disease prevention and segregation
issues. Part F discusses the role of confidentiality and what you can expect in terms of keeping your health
status private in prison. Part G deals with treatment options and your legal rights to those options. Part H
discusses issues of discrimination. Part I discusses sentencing issues. Part J discusses planning for your
release, if you have an infectious disease. Finally, Appendix A lists resources for further information,
counseling, and support for you and your family.
You should also read other Chapters of the JLM to understand your legal rights, especially Chapter 16,
“Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief From Violations of Federal Law,” Chapter 32,
“Special Considerations for Sex Offenders,” Chapter 28, “Rights of Prisoners with Disabilities,” Chapter 23,
“Your Right to Adequate Medical Care,” and Chapter 35, “Getting Out Early: Conditional & Early Release.”
There are more court cases about HIV/AIDS than about tuberculosis, hepatitis B, hepatitis C and MRSA.
Because judges always look at the specific facts of each case, try to find cases about your disease. But, you
also can try to make comparisons between different diseases because the diseases are very similar, including
how they are spread and their effects on prisoners. For example, if you want to use a case about AIDS and
argue the law should also apply to hepatitis C, you should try to explain your reasons as clearly as possible.
This Chapter is only a summary of the many issues about infectious diseases in the prison system. You
probably will have to do more research elsewhere. This Chapter, for example, only includes HIV/AIDS,
tuberculosis, hepatitis (the most common infectious diseases in prison), and MRSA, but there are many
other diseases. Scientists are always discovering new information about infectious diseases, so some of this
information may not be correct in the future.
B. Background Information on Infectious Diseases
1. HIV and AIDS
HIV, the Human Immunodeficiency Virus, is the virus that causes AIDS.1 AIDS stands for Acquired
Immunodeficiency Syndrome. Over time, the HIV virus weakens your immune system so your body cannot
fight off infection properly. You may develop various infections—known as “opportunistic” infections—that
take advantage of your body’s weakened condition.
About half of people with HIV develop AIDS within ten years of getting HIV. How long it takes for HIV
to develop into AIDS is different for each person. Medical treatments can slow down how fast HIV weakens
your body.2 As HIV gets worse and becomes AIDS, people become sick with serious illnesses and infections.
∗ This Chapter was rewritten by Carrie Ellis based, in part, on previous versions of “AIDS in Prison” and “AIDS,
Tuberculosis, and Hepatitis in Prison” by Emily Monroe, Jin Hee Lee, Stephanie I. R. Fidler, Sara Corello, and Paul Farrell
Mapelli. Special thanks to Milton Zelermyer Prisoners’ Rights Project, The Legal Aid Society of New York; Madeline
deLone, Innocence Project; and Jennifer Wynn, Prison Visiting Project, Correctional Association of New York, for their
helpful comments.
1 . Divs. of HIV/AIDS Prevention, U.S. Dep’t of Health & Human Servs., What is HIV?,
http://www.cdc.gov/hiv/pubs/faq/faq1.htm (last visited Feb. 22, 2007). The JLM knows that many prisoners do not have
access to the Internet, but because we want this information to be up to date, we cite frequently to different agencies’
and organizations’ Internet websites.
2. Divs. of HIV/AIDS Prevention, U.S. Dep’t of Health & Human Servs., How Long Does It Take for HIV to Cause
AIDS?, http://www.cdc.gov/hiv/pubs/faq/faq4.htm (last visited Nov. 26, 2006).
Being HIV-positive does not mean that you have AIDS. It is very important that you consult a doctor to
find out if you are infected with HIV or if you have AIDS so that you can receive the proper medical
treatment. The only way you can know for certain if you are infected is to be tested.
In 2005, it was estimated that about 984,155 people in the United States had been diagnosed with
AIDS.3 The estimated rate of confirmed AIDS in State and Federal prisons was more than 2½ times higher
than in the general population.4 About 2,734 prisoners in New York State—excluding New York City—were
HIV-positive, and 3,969 prisoners had AIDS.5
The most common ways HIV is spread include by having unprotected anal, vaginal, or oral sex with a
person with HIV; by sharing needles or injection equipment with a drug user who has HIV; from an HIV-
infected mother to her baby, before or during birth or through breast-feeding;6 through unsanitary tattooing
or body piercing procedures.7
You cannot get HIV by working with or being around someone who has HIV, or by sharing a cell with
another prisoner who is HIV-positive. You also cannot get HIV from sweat, spit, tears, clothes, drinking
fountains, telephones, toilet seats, or through everyday activities like sharing a meal. HIV is also not
transmitted through insect bites or stings, donating blood, or through closed-mouth kissing (although there
is a very small chance of getting it from open-mouthed or “French” kissing with someone who is HIV-positive
because of possible blood contact through open wounds, warts, etc.).8
If you are currently HIV-negative, you can help avoid getting HIV by taking the following steps:
(1) Never share needles or syringes if you inject drugs or get a tattoo or body piercing.
(2) Do not share equipment used to prepare and inject drugs (“works”).
(3) Use a latex condom—not a lambskin condom—every time you have sex, including anal and oral sex.
(4) Never share razors or toothbrushes because of the risk of contact with someone else’s blood.
Taking these precautions can help protect you from contracting the HIV infection.
(a) Women and HIV/AIDS
Symptoms of HIV are often different for women than for men. Because these symptoms are typically not
associated with HIV, many women go undiagnosed until the virus progresses to AIDS.9 Early signs for a
woman with HIV include gynecological disorders, especially pelvic inflammatory disease (“PID”), infections
causing abnormal pap smears (cervical dysplasia), and chronic yeast infections.10 HIV-positive women also
have a higher risk of developing cervical cancer.11 If you are HIV-positive, getting a complete gynecological
exam, including an inspection of the cervix (colposcopy) and a pap smear every six months, is important to
detect any problems early. If you believe you may be infected with HIV or AIDS, try to get tested.
Appendix A includes several organizations and sources of information about HIV and AIDS. If you are
HIV-positive, it is important that you be tested for tuberculosis, which is a very contagious and serious
disease, because HIV-positive people have a much higher risk of getting tuberculosis.12
3 . Divs. of HIV/AIDS Prevention, U.S. Dep’t of Health & Human Servs., Basic Statistics,
http://www.cdc.gov/hiv/stats.htm (last visited Sept. 27, 2007).
4. Office of Justice Programs, U.S. Dep’t of Justice, HIV in Prisons, 2005, Publ’n No. NCJ 218915, available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/hivp05.pdf.
5. Bureau of HIV/AIDS Epidemiology, N.Y. Dep’t of Health, New York State HIV/AIDS Surveillance Semiannual
Report: For Cases Diagnosed Through December 2004, at 29 (Apr. 2006), available at
http://www.health.state.ny.us/diseases/aids/statistics/semiannual/2005/surveillance_semiannual_report_2005_12.pdf.
6. Divs. of HIV/AIDS Prevention, U.S. Dep’t of Health & Human Servs., How is HIV Passed from One Person to
Another?, http://www.cdc.gov/hiv/pubs/faq/faq16.htm (last visited March 24, 2008).
7. Divs. of HIV/AIDS Prevention, U.S. Dep’t of Health & Human Servs., Can I Get HIV From Getting a Tattoo or
Through Body Piercing?, http://www.cdc.gov/hiv/pubs/faq/faq27.htm (last visited Sept. 27, 2007).
8. Divs. of HIV/AIDS Prevention, U.S. Dep’t of Health & Human Servs., HIV and AIDS: Are You at Risk?,
http://www.cdc.gov/hiv/pubs/brochure/atrisk.htm (last visited March 24, 2008).
9. See Louise G. Trubek & Elizabeth A. Hoffman, Symposium, Vital Issues in National Health Care Reform:
Searching for a Balance in Universal Health Care Reform: Protection for the Disenfranchised Consumer, 43 DePaul L.
Rev. 1081, 1087 (1994).
10. See Brenda V. Smith & Cynthia Dailard, Female Prisoners and AIDS: On the Margins of Public Health and
Social Justice, 9 AIDS & Pub. Pol’y J. 78, 80 (1994).
11 . Nat’l Cancer Inst., What You Need to Know About: Cancer of the Cervix: Risk Factors (2005),
http://www.cancer.gov/cancertopics/wyntk/cervix/page5.
12. Div. of Tuberculosis Elimination, U.S. Dep’t of Health & Human Servs., The Deadly Intersection Between TB
2. Tuberculosis
Tuberculosis (“TB”) is a disease caused by bacteria that are spread through the air. When you breathe in
the bacteria, the bacteria usually settles in and attacks your lungs,13 but it can also move to and attack other
parts of your body.14 Outside of prison, TB does not spread that easily, but in prison TB spreads much more
easily because of overcrowding and poor ventilation. People born outside the United States (especially Latin
America and the Caribbean, Africa, Asia, Eastern Europe, or Russia) are more likely to have been infected
with the bacteria.15 People who have spent time in places where TB is common, like homeless shelters, drug
treatment centers, health care clinics, jails, and prisons, are also more likely to have TB infection.16
It is important to know that being infected with the TB bacteria is not the same as having TB disease. If
you have TB infection (“latent TB”), you will have no symptoms and you cannot spread TB to others. But if
you do not get medical treatment, your TB infection can develop into TB disease (“active TB”).17 If you have
active TB, you can have symptoms like a bad cough lasting more than three weeks, pain in your chest,
coughing up blood or phlegm, weakness or fatigue, weight loss, no appetite, chills, fever, or night sweating.18
TB is particularly dangerous for HIV-positive people because of their weakened immune systems. In
fact, more HIV-positive people die from TB than from anything else. 19 Although ten to fifteen million
Americans have latent TB, only ten percent develop TB disease during their lives.20 But, people with both
HIV and TB bacteria are 100 times more likely to develop active TB than HIV-negative people.21
Be sure to consult other sources and prison medical professionals if you think you have TB. TB disease
can be treated and cured if you get medical care, take prescription medication, and follow doctor’s
orders.22
3. Hepatitis B and Hepatitis C
Hepatitis is a disease that attacks the liver. There are different types of hepatitis, but the most common
types among prisoners are hepatitis B and hepatitis C.
(a) Hepatitis B
In 2003, 73,000 people in the United States had hepatitis B.23 About 5,000 people die each year from
hepatitis B.24 The hepatitis B virus, like HIV, is spread by having sex with infected persons without a
condom, through sharing needles (“works”) when shooting drugs, through needlesticks or sharp exposures on
the job, or from an infected mother to her baby during birth.25 You can avoid getting hepatitis B by taking the
same precautions as you would for HIV.
and HIV (2007), http://www.cdc.gov/hiv/pubs/facts/hivtb.htm.

13. Div. of Tuberculosis Elimination, U.S. Dep’t of Health & Human Servs., Questions and Answers about TB 1
(2007), http://www.cdc.gov/tb/faqs/qa_introduction.htm#Intro1.
14. Div. of Tuberculosis Elimination, U.S. Dep’t of Health & Human Servs., Questions and Answers about TB 2
15. Ctrs. for Disease Control & Prevention, U.S. Dep’t of Health & Human Servs., Chapter 4: Prevention of
Specific Infectious Diseases—Tuberculosis (2007), http://wwwn.cdc.gov/travel/yellowBookCh4-TB.aspx.
16. Ctrs. for Disease Control & Prevention, U.S. Dep’t of Health & Human Servs., Chapter 4: Prevention of
Specific Infectious Diseases—Tuberculosis (2007), http://wwwn.cdc.gov/travel/yellowBookCh4-TB.aspx .
17. Div. of Tuberculosis Elimination, U.S. Dep’t of Health & Human Servs., Questions and Answers about TB
(2007), http://www.cdc.gov/tb/faqs/qa_TBDisease.htm#Active1.
23. Div. of Viral Hepatitis, U.S. Dep’t of Health & Human Servs., Hepatitis B Frequently Asked Questions (2006),
http://www.cdc.gov/ncidod/diseases/hepatitis/b/faqb.htm.
People who have hepatitis B often do not have any symptoms, but can still spread the virus to other
people.26 If you do have symptoms, you may develop yellow eyes and skin, tiredness, loss of appetite, dark
urine, abdominal pains, and nausea. There are vaccines to protect you from hepatitis B, but once you get
hepatitis B, there is no cure. You should still get medical attention, however, because there are medical
treatments to help your symptoms.27 If you have hepatitis B, you should get tested for HIV and hepatitis C.
(b) Hepatitis C
HCV is the virus causing hepatitis C. About 4.1 million Americans have been infected with HCV,
including 3.2 million chronically or permanently infected.28 Almost 80% of infected persons do not show any
signs or symptoms of hepatitis C. Many people infected with hepatitis C may not show any symptoms for
twenty or thirty years. Hepatitis C symptoms include yellow skin, dark urine, fatigue, abdominal pain, and
loss of appetite. 29 Most people (70%) with chronic HCV infection have some liver damage. If you have
hepatitis C, you should not drink alcohol because alcohol can make your liver damage worse.30
While few people outside of prison have HCV, a very high percentage of prisoners are infected with
HCV.31 To avoid getting hepatitis C, you should:
(1) never shoot drugs (if you cannot stop, never reuse or share syringes, water, or “works”);
(2) never share toothbrushes, razors, or other personal care items;
(3) avoid getting a tattoo or body piercing if there is a chance that someone else’s blood is on the tools or
the artist or piercer does not follow good health practices;32
(4) avoid having unprotected sex.
Though the risk of spreading hepatitis C through sexual intercourse is low, it is spread through direct
contact with bodily fluids.33 If you have hepatitis C, you should be tested for HIV and hepatitis B.
4. Methicillin-resistant Staphylococcus Aureus (“MRSA”)
Staph is a kind of bacteria that can cause various infections, including everything from minor skin
problems to serious, fatal infections.34 Methicillin-Resistant Staphylococcus Aureus, or “MRSA,” is a kind of
staph not easily treatable with the antibiotics that normally cure a staph infection.35 Many people carry
staph bacteria in their nasal passages without getting sick.36 Illness can develop if the bacteria enter the
skin, often through a scratch, scrape or another minor wound. Most cases of MRSA happen in health-care
settings like hospitals, but outbreaks in prisons are becoming more common.37
28. Div. of Viral Hepatitis, U.S. Dep’t of Health & Human Servs., Hepatitis C Fact Sheet (2005), available at
http://www.cdc.gov/ncidod/diseases/hepatitis/c/cfact.pdf.
31 . Ready to Learn All About Hepatitis C, Hepatitis C Statistics (2002),
http://www.allabouthepatitisc.com/readytolearn/about/statistics.jsp.
34. Div. of Healthcare Quality Promotion, U.S. Dep’t of Health and Human Servs., Community-Associated MRSA
Information for the Public (2005), http://www.cdc.gov/ncidod/dhqp/ar_mrsa_ca_public.html.
The first symptom of MRSA is usually a skin infection easily mistaken for a pimple, boil or insect bite.38
The infection may be painful, swollen, red or produce pus.39 It can develop into a large abscess or blister.40
MRSA is usually treatable, either by draining the wound or taking antibiotics.41 Do not drain the wound
yourself, since this can cause the infection to spread.42 The infection may return even after treatment.43
MRSA and other staph infections can be spread to other people through direct physical contact or, less
commonly, through contact with an infected surface or object.44 The risk can be lessened by keeping wounds
clean, dry and covered. 45 It is also important to keep shared surfaces clean, wash your hands often
(especially after touching a wound), and avoid sharing personal items like razors and clothing.46 If you
suspect you have MRSA, it is especially important to seek treatment if you have HIV or another immune
system problem, because a MRSA infection may lead to more serious problems.47
C. Constitutional Rights In A Prison Setting
The rest of this Chapter discusses your rights to treatment for and protection from infectious diseases in
prison. It also explains when and how a correctional facility can limit your rights to treatment and
protection. This Part explains the general legal standard that courts use to determine if a prison policy is
constitutionally valid. Knowing the rule will help you better understand the court decisions in this Chapter.
In general, correctional facilities can limit your constitutional rights if the prison’s actions are reasonably
related to a legitimate penological interest.48 To decide if a prison policy has a legitimate penological interest,
courts look at four factors:
(1) the existence of a valid, rational connection between the prison policy and a legitimate state interest;
(2) the existence of alternative means of exercising the right being limited;
(3) the impact granting the right will have on correction officers, other prisoners, or the allocation of
prison resources; and
(4) whether the prison policy or regulation is an exaggerated response to prison concerns.49
These four factors are often referred to as the Turner standard, since the Supreme Court first stated this
standard in Turner v. Safley.50
So, if you think a prison policy illegally violates your constitutional rights, you may want to argue that
there is no legitimate penological interest which justifies the violation, or at least, that the interest is not
“reasonably related” to the actions or policy of the prison officials. You can also try to argue that there are
other ways of accomplishing the same governmental goal without compromising your constitutional rights.
38. Tara Parker-Pope, MRSA Warning Signs and Preventive Measures, N.Y. Times, Oct. 27, 2007 at B4, available
at http://www.nytimes.com/2007/10/27/nyregion/27mrsa.html?scp=3&sq=%22tara+parker-pope%22+MRSA&st=nyt.
44. Federal Bureau of Prisons, Clinical Practice Guidelines, Management of Methicillin-Resistant Staphylococcus
Aureus (MRSA) Infections 29 (2005), available at http://www.bop.gov/news/PDFs/mrsa.pdf.
49. Turner v. Safley, 482 U.S. 78, 89–91, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64, 79–80 (1987).
D. Legal Rights Concerning Testing For Infectious Diseases
1. Involuntary Testing
Mandatory testing policies vary widely among states. States may also have different policies for different
diseases, so a state may require prisoners to take a TB test but not an HIV test, for example. If you are
outside New York State, you should check your state’s laws to find out what its testing policies are. Courts
generally allow prisons to test prisoners for infectious diseases, even without a prisoner’s consent, because
courts find that the prevention of disease is a legitimate state interest.51
(a) HIV Testing
In New York State prisons, you normally cannot be tested for HIV without your consent (you must
voluntarily agree to be tested).52 But, if you are convicted of certain sex offenses, you can be tested for HIV
against your will if the victim requests that you be tested.53 You will learn your test results and the results
will also be sent to the victim, and possibly to the victim’s immediate family, guardian, physicians,
attorneys, and medical or mental health providers. Contacts of the victim may also be notified if there was a
risk of HIV transmission.54 Your test results cannot be used against you in a civil or criminal proceeding
related to the events that were the basis of your conviction.55 For more information, see Chapter 32 of the
JLM, “Special Considerations for Sex Offenders.”
Federal prisons, unlike New York state prisons, can require a prisoner to undergo HIV testing, although
federal prisons do not test all prisoners. If you have a sentence of six months or more, and if medical
personnel think you might be HIV-infected, they may require you to take an HIV test.56 If you refuse the
test, you might receive an incident report for failing to follow an order.57 Also, if you refuse testing, you may
not be able to file a claim for failure to receive adequate medical care.58 Additionally, federal prisons conduct
mandatory random testing once a year. If you test positive, the prison cannot subject you to disciplinary
proceedings based solely on your results, though you may be punished if you have performed an act to
transmit the disease.59 Also, federal prisons test prisoners being considered for release, parole, good conduct
time release, furlough, or placement in a community-based program. Refusal to be tested may result in an
incident report for refusing an order.60 If you test positive, the prison cannot deny you participation in
activities and programs just because of the result.61
Outside of New York, many states have mandatory HIV testing when you enter prison,62 during custody,
and/or upon your release.63 Despite challenges on the basis of the Eighth Amendment’s prohibition against
51. See, e.g., Rossi v. Portuondo, 277 A.D.2d 526, 527, 714 N.Y.S.2d 816, 817 (2000).
52. N.Y. Pub. Health Law § 2781(1) (McKinney 2007) (stating consent must be “written” and “informed” from a
person who is capable of consenting; if the person is incapable, someone authorized by law may consent for the person).
53. N.Y. Crim. Proc. Law § 390.15(1)(a) (McKinney 2005) (stating that the sex offense must be an act of “sexual
intercourse,” “oral sexual conduct,” or “anal sexual conduct” as defined by N.Y. Penal Law § 130.00).
54. N.Y. Crim. Proc. Law § 390.15(6)(a)(ii) (McKinney 2005).
56. 28 C.F.R § 549.12(a)(1)(2006).
57. 28 C.F.R. § 549.18(a) (2002). See Chapter 18 of the JLM, “Your Rights at Prison Disciplinary Hearings,” for
more information about the consequences of prison incident reports.
58. Walker v. Peters, 989 F. Supp. 971, 975 (N.D. Ill. 1997) (finding that deprivation of medication cannot be
considered deliberate indifference unless prisoner has received a positive HIV test first). See Chapter 23 of the JLM,
“Your Right to Adequate Medical Care,” for more information on the deliberate indifference standard.
59. 28 C.F.R. § 549.13(c) (2005).
60. 28 C.F.R. § 549.12(a)(1) (2005).
61. See 28 C.F.R. § 549.13(b) (2005) (stating that prisoners may be limited in programming if they have an
infectious disease which can be transferred through casual conduct, possibly showing that limitations in programming
are not allowed based on a prisoner’s disease which cannot be passed on through casual conduct (like HIV)). See also 42
U.S.C. §§ 2000cc (2000), (stating generally that the government shall not impose restrictions on the religious activity of
prisoners unless the government can show that such restriction furthers a compelling governmental interest using the
least restrictive means possible). This is limited to available programs to institutionalized persons which are federally
funded. See also 42 U.S.C. § 2000d-4a (1964) (defining “program or activity” as “all of the operations of a department,
agency, special purpose district, or other instrumentality in a state or local government.”) Note that this only applies to
religious activity, meaning that this law does not prevent you from being excluded from a non-religious activity if you
test positive for HIV, and that you may still be excluded if the government has a compelling interest in doing this.
62. Alabama, Georgia, Idaho, and Missouri are among the states that mandate testing of prisoners entering the
cruel and unusual punishment, the Fourth Amendment’s prohibition on unreasonable searches and seizures,
the right to privacy, and the Equal Protection Clause of the Fourteenth Amendment, courts tend to uphold
involuntary testing on the grounds that it is reasonably related to a legitimate penological interest.64
(b) TB Testing
While HIV cannot be passed from person to person by casual contact, TB is spread through the air. So,
prison TB testing policy often differs from prison HIV testing policy. In New York State, DOCS policy
requires all prisoners entering prison to be tested for tuberculosis. The TB screening includes a chest x-ray
and a skin test, where a small amount of purified protein derivative (“PPD”) is injected beneath your skin
and observed for a reaction. After the initial test, you will be re-tested yeary. If you refuse testing, medical
personnel will counsel you as to the benefits of the test. If you still refuse, then you will be placed in medical
keeplock (also known as “tuberculin (TB) hold”) for up to a year until you have received three negative chest
x-rays or you agree to be tested. While in TB hold, you are only allowed one hour of solitary exercise per day
and three showers a week. You lose your telephone privileges and can receive visits from lawyers.65
Courts have generally upheld New York State DOCS TB testing policy against challenges claiming
violation of the Fourth Amendment protection against unreasonable searches or the Eighth Amendment
prohibition against cruel and unusual punishment because they consider the policy to be reasonably related
to preventing the spread of tuberculosis in correctional facilities.66 Additionally, some courts have upheld
mandatory TB testing or confinement in TB hold even if the test is against the prisoner’s religious beliefs.67
However, DOCS TB policy states that “[a]ccommodations for those with religious objections to tuberculin
skin test may be made if they can be done without putting the health of other inmates and staff at
significant risk.”68 According to the policy, if a prisoner refuses the PPD test on religious grounds, he is
placed in TB hold while the legitimacy of his objection is determined. If the Chief Medical Officer determines
that you sincerely hold a religious belief that prohibits PPD testing, he may request that you take a blood
test and chest x-ray instead of the skin test. You will remain in TB hold until the results of the blood test,
chest x-ray, and physical examination indicate that you do not have latent TB.69
prison system. See Ala. Code § 22-11A-17 (2006) (subjecting all persons sentenced to confinement or imprisonment for
more than 30 consecutive days to mandatory testing); Ga. Code Ann. § 42-5-52.1(c) (1997 & Supp. 2007); Idaho Code §
39-604(1) (2004); Mo. Rev. Stat. § 191.659 (2004).
63. Alabama, Idaho, and Missouri are among the states that test upon release. See Ala. Code § 22-11A-17(a)
(2006); Idaho Code § 39-604(1) (2004); Mo. Rev. Stat. § 191.659 (2004).
64. See, e.g., Dunn v. White, 880 F.2d 1188, 1196–98 (10th Cir. 1989) (finding no 1st, 4th, or 14th Amendment
constitutional violations when prisoner alleged he was threatened with disciplinary segregation if he failed to submit to
the HIV blood test even though he claimed his religious beliefs did not allow the test).
65. Division of Health Services, New York Department of Correctional Services, Health Services Policy Manual, §
1.18, at 6 (June 21, 2004).
66. See Lee v. Frederick 519 F. Supp 2d 320, 327 (W.D.N.Y. 2007) (finding that prisoner’s Eighth Amendment
rights were not violated when he was placed on TB hold because, while plaintiff did suffer some loss of his freedom of
movement, he didn’t present evidence that he suffered a serious deprivation of his rights or that defendants acted with
the culpable state of mind—unnecessary and wanton infliction of pain); Delisser v. Goord, 2003 U.S. Dist. LEXIS 488, at
*4, *16, *18–19, *23 (N.D.N.Y. Jan. 15, 2003) (unpublished) (holding that prisoner, who was placed in TB hold for a total
of 52 days for refusing to submit to PPD test and then for refusing to take TB medication, did not suffer a violation of his
Eighth or 14th Amendment rights); Word v. Croce, 169 F.Supp 2d 219, 222, 225 (S.D.N.Y. 2001) (finding that where
plaintiff alleged violations of the Fourth Amendment because she was put on TB Hold, her claims were more
appropriately brought under the Eighth Amendment, and also finding that the TB Hold was not a violation of her
Constitutional rights); Davidson v. Kelly, 1997 U.S. App. LEXIS 33796, at *4–5, *8 (2d Cir. Nov. 24, 1997) (unpublished)
(placing a prisoner in TB hold for three days until he agreed to be tested for TB did not violate the prisoner’s Eighth
Amendment rights because it furthered a legitimate penological interest); Johnson v. Keane, 1994 U.S. Dist. LEXIS
1228, at *3 (S.D.N.Y. Feb. 9, 1994) (unpublished).
67. See, e.g., Rossi v. Portuondo, 277 A.D.2d 526, 527, 714 N.Y.S.2d 816, 817 (3d Dept. 2000) (holding that giving
prisoners the option of testing or being placed in medical confinement is “reasonably related” to the “legitimate
penological interest” of preventing the spread of the disease; therefore, the testing policy did not violate prisoner’s First
Amendment right to free exercise of religion).
1.18, at 25 (June 21, 2004).
1.18, at 25 (June 21, 2004).
If the TB test is against your religious beliefs and you want to challenge the policy as a violation of your
First Amendment right to free exercise of religion, you should try to show how the policy is irrational as
applied to you.70 If you have submitted to the test in the past or are willing to undergo a chest x-ray, you
might strengthen your chances of succeeding.71 You may also be able to argue that being placed on TB hold
is a violation of your Eighth Amendment Rights, especially if the ventilation system does not somehow
prevent the air that circulates in your cell from reaching other prisoners or staff, you might also be able to
argue keeplock policy does not make sense as applied to you since it does not help protect others’ safety.72
If you are in a federal prison, you must undergo a PPD test and possibly a chest x-ray when you enter
the facility.73 If you refuse both tests, the prison will conduct them without your consent.74 Refusing to be
tested may result in an incident report, although you will not be placed in medical isolation unless there is a
clinical indication for such measures.75
(c) Hepatitis B & Hepatitis C
New York State does not require HCV testing for all prisoners, but does test all prisoners who are
determined to be at high risk.76 You are considered to be at high risk of HBV or HCV if you have a history of
HIV infection, intravenous drug use, intranasal cocaine use, sexually-transmitted diseases, blood
70. Reynolds v. Goord, 103 F. Supp. 2d 316, 337 (S.D.N.Y. 2000) (holding that Rastafarian prisoner who expected
to be in tuberculin hold for a year after refusing a TB test showed a clear and substantial likelihood of proving at trial
that the prison policy as applied violated his 1st Amendment rights). If you are a federal prisoner, also see Jolly v.
Coughlin, 76 F.3d 468, 480 (2d Cir. 1996) (stating that prison officials likely violated the prisoner’s religious freedom
under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb–bb-4). If you are a state prisoner, however,
RFRA is no longer good law and Jolly will not apply to your case. City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157,
138 L. Ed. 2d 624 (1997). After RFRA was declared unconstitutional as applied to states, some states enacted state laws
modeled on RFRA to fill the gap. So if you are a state prisoner, you should check to see if your state has enacted a “mini-
RFRA” state law. If you are a state or federal prisoner, you may also be able to make an argument under the Religious
Land Use and Institutionalized Persons Act of 2000 (RLUIPA) which states that “[n]o government shall impose a
substantial burden on the religious exercise of a person residing in or confined to an institution” unless the government
establishes that the burden furthers “a compelling governmental interest,” and does so by “the least restrictive means.”
42 U.S.C. § 2000cc-1(a)(1)-(2). For a discussion of a possible RLUIPA argument, see Johnson v. Sherman, 2007 U.S. Dist.
LEXIS 24098, at *14 (E.D. Cal, April 2, 2007) (unpublished) (noting that “[p]reventing the spread of tuberculosis among
the closely confined population within the prison by use of the least restrictive means possible greatly outweighs the
harm posed to the plaintiff by submitting to the skin test. While the harm to plaintiff's ability to practice his belief is no
doubt burdened, the CDCR has a grave responsibility to protect the inmate populations confined within its prisons from
the spread of a highly contagious and debilitating disease.”)
71. See Selah v. Goord, 255 F. Supp. 2d 42, 55 (N.D.N.Y. 2003) (holding DOCS TB policy as applied to petitioner
was irrational since he had been tested while incarcerated); Reynolds v. Goord, 103 F. Supp. 2d 316, 337 (S.D.N.Y. 2000)
(holding that Rastafarian prisoner who expected to be in tuberculin hold for a year after refusing a TB test showed a
clear and substantial likelihood of proving at trial that the prison policy as applied violated his First Amendment rights).
72. Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996) (finding a substantial likelihood of an Eighth Amendment
violation when New York State prison officials placed a prisoner in “medical keeplock” for three-and-a-half years, after
the prisoner refused to undergo a TB test for religious reasons). In Jolly, the court considered these facts: (1) prisoners
who refused to be tested were placed in medical keeplock; (2) medical keeplock did not involve “respiratory isolation” and
thus did not reduce the risks of infection; (3) prisoners were allowed to leave their cells only once each week for a 10-
minute shower and could leave for meetings with counsel; and (4) plaintiff suffered headaches, hair loss, rashes, and
difficulty standing or walking due to his confinement. Jolly v. Coughlin, 76 F.3d 468, 472 (2d Cir. 1996). Although the
portion of Jolly addressing RFRA violations is no longer good law for state prisoners (see footnote 70), it is still good law
for both state and federal prisoners for arguments based on Eighth Amendment violations.
73. Fed. Bureau of Prisons, U.S. Dep’t of Justice, Program Statement P6190.03, Infectious Disease Management,
at 9 (June 28, 2005), available at http://www.bop.gov/policy/progstat/6190_003.pdf; see also Washington v. Cambra, 165
F.3d 920 (9th Cir. 1998) (unpublished table decision).
74. See, e.g., Ballard v. Woodard, 641 F.Supp. 432, 437 (W.D.N.C. 1986) (performing a PPD test without a
prisoner’s consent does not constitute the denial of any federal constitutional rights); Dunn v. Zenk, No. 1:07-CV-2007-
RLV, 2007 U.S. Dist. LEXIS 73891, at *9 (N.D. Ga. Oct. 1, 2007) (holding that involuntary testing for tuberculosis does
not violate prisoner’s constitutional rights).
75. Fed. Bureau of Prisons, U.S. Dep’t of Justice, Program Statement P6190.03, Infectious Disease Management,
at 8 (June 28, 2005), available at http://www.bop.gov/policy/progstat/6190_003.pdf.
76. See Division of Health Services, New York Department of Correctional Services, Health Services Policy
Manual: Health Appraisal, § 1.19 at 2 (Feb. 20, 2004); Memorandum from Lester N. Wright, Departure Comm’r/Chief
Med. Officer N.Y. Dep’t of Corr. Servs., on Revised Hepatitis C Primary Care Practice Guidelines to Facility Health
Servs. 1 (Mar. 25, 2003).
transfusions before July 1992, hemodialysis, infusion of clotting factor before 1987, tattoos or body piercing
with non-sterile equipment, solid organ transplants, or symptoms of hepatitis.
In New York State, during your initial health screening, you will be offered a hepatitis B vaccine if you
are not currently infected but are at high risk, unless your medical history suggests otherwise. You are
considered at high risk if you are 18 years old or younger and not immune, you have had more than one sex
partner in six months, you recently had a sexually-transmitted disease, you are male and have had sex with
other men, you inject illegal drugs, you have been exposed to blood or blood-contaminated products, you have
had household contact with persons suffering from chronic hepatitis B infection, you are a hemodialysis
patient, you take clotting factor concentrates (you are a hemophiliac), or you have chronic hepatitis C and
are not immune. The vaccine consists of three doses over six months.77
If you are in a federal prison, you will be screened to determine if you are likely to be HBV- or HCV-
infected. Similar to the federal prison system’s TB policy, refusal to submit to the test will result in an
incident report for failure to follow an order.
(d) MRSA
The Federal Bureau of Prisons recommends all prisoners be checked for skin infections at initial intake
screening and after returning from a hospitalization.78 Prisoners at high risk for MRSA infections (including
those with HIV, diabetes or open wounds) are supposed to be screened at all routine medical examinations.79
2. Right to Testing upon Request
(a) HIV Testing
Many states provide HIV tests for prisoners upon request. If you are denied a test, you might consider
challenging it as a violation of the correctional facility’s own policy. In New York State prisons, you will be
offered a test when you first enter the facility. Also, anonymous testing (where you do not include your
identity) is available through the Criminal Justice Initiative (“CJI”).80
If you are a federal prisoner, you can request HIVtesting , but not more than once per year.81 At least
one federal court has failed to recognize a constitutional right to HIV testing, especially in cases where the
prisoner cannot allege specific exposure to HIV.82 But, you may have an Eighth Amendment claim if you
belong to a high-risk group and are denied an HIV test, since such a denial would prevent you from getting
proper medical care. Additionally, if you meet the prison’s specified criteria and are still refused a test, you
may also have a claim.83 You should check to see how the courts in your jurisdiction have decided this issue.
77. See Division of Health Services, New York Department of Correctional Services, Health Services Policy
Manual, § 1.19 (Feb. 20, 2004) (outlining the procedure for a prisoner’s initial health appraisal upon entry); Division of
Health Services, New York Department of Correctional Services, Health Services Policy Manual: Standing Orders for
Immunizations, § 1.54 (May 11, 2004) (specifying under what circumstances the vaccine should be offered).
78 . See Federal Bureau of Prisons, Clinical Practice Guidelines, Management of Methicillin-Resistant
Staphylococcus aureus (MRSA) Infections 2 (2005), available at http://www.bop.gov/news/PDF/mrsa.pdf.
Staphylococcus aureus (MRSA) Infections 2 (2005), available at http://www.bop.gov/news/PDF/mrsa.pdf.
80. The Criminal Justice Initiative is a project funded by the New York Department of Health’s AIDS Institute, in
which community-based organizations go into prisons and provide tests, counseling, peer education, and discharge
planning. N.Y. Dep’t. of Health, Prevention and Support Services,
http://www.health.state.ny.us/diseases/aids/corrections/index.htm (last visited Mar. 3, 2008).
81. 28 C.F.R. § 549.12(a)(4) (2007).
82 . See St. Hilaire v. Lewis, No. 93-15129, 1994 U.S. App. LEXIS 14867, at *10 (9th Cir. June 7, 1994)
(unpublished) (finding no constitutional violation for failure to provide an HIV test because prisoner was not a member
of a high-risk group and had no alleged exposure to HIV). Doe v. Wigginton, 21 F.3d 733, 738-739 (6th Cir. 1994) (finding
no 8th Amendment violation where a prisoner was refused an HIV test because the state policy required an HIV test if a
prisoner “provides a presumptive history of exposure” and the prisoner did not provide such information).
83. See Doe v. Wigginton, 21 F.3d 733, 739–740 (6th Cir. 1994) (holding the prison did not violate the 8th or 14th
Amendments for refusing to test for HIV on request because it could reasonably limit the testing based on a prisoner’s
history, medical symptoms, prior drug use, or sexual activity). It is possible the court would have allowed Doe’s claim to
prevail if he had given officials information indicating that he met the criteria for testing and was still refused a test.
(b) Hepatitis B
If you are in a federal prison, you can request a hepatitis B test after consulting with a Bureau of
Prisons’ health care provider; however, you cannot be tested more than once per year.84
(c) MRSA
If you have a skin infection that may be caused by MRSA, the wound may be tested if your doctor feels it
is necessary to determine the proper treatment.85
3. Consequences of Testing Positive for HIV in New York
States have different rules about what happens after a prisoner tests positive for HIV. In New York, in
order to track HIV/AIDS better and to increase prevention of HIV infection, the state assembly adopted the
HIV Reporting and Partner Notification (HIVRPN) law, which became effective in 2000.86 This law requires
doctors and other medical providers (including the laboratories doing the tests) to report to the Department
of Health the names of people infected with HIV, HIV-related illness, or AIDS.87 The information is supposed
to remain confidential;88 but, New York regulations allow for revealing HIV status to employees or agents of
the Division of Probation and Correctional Alternatives, Division of Parole, Commission of Correction, or any
local probation department, to the extent that those individuals are authorized to access records containing
such information to carry out their functions, powers, and duties.89 If you are diagnosed with an HIV-related
illness, your medical care provider will ask for the names of your spouse, sexual partners, and/or needle-
sharing partners.90 If you provide those names, those individuals will receive notice they are at risk of being
infected with HIV,91 and they will be offered counseling and HIV testing.92 Your name will not be given to
them.93 You have the right to refuse to give that information at no legal penalty (civil or criminal).94
84. 28 C.F.R. § 549.12(a)(4) (2005) (providing that a prisoner may request to be tested only once per year, unless
more testing is determined to be necessary by the Bureau).
85. See generally Fed. Bureau of Prisons, U.S. Dep’t of Justice, Program Statement P6190.03, Infectious Disease
Management, at 3 (June 28, 2005), available at http://www.bop.gov/policy/progstat/6190_003.pdf.
86. N.Y. Comp. Codes R. & Regs. tit. 10, §§ 63.1—63.11 (2007). See also N.Y. Dep’t of Health, HIV Reporting &
Partner Notification: What You Need to Know about the Law (2002), available at
http://www.health.state.ny.us/diseases/aids/regulations/notification/hivpartner/docs/lawqa.pdf.
87. N.Y. Comp. Codes R. & Regs. tit. 10, § 63.4(a)(1) (2007). See also N.Y. Dep’t of Health, HIV Reporting and
http://www.health.state.ny.us/diseases/aids/regulations/notification/hivpartner/docs/lawqa.pdf; Mew York City
Department of Health and Mental Hygiene: HIV Reporting/Partner Notification Law (1008),
http://www.nyc.gov/html/doh/html/ah/ahn1.shtml (last visited Feb. 29, 2008).
88. N.Y. Comp. Codes R. & Regs. tit. 10, § 63.6 (2007). See also N.Y. Dep’t of Health, HIV Reporting and Partner
Notification: What You Need to Know about the Law (2000), available at
http://www.health.state.ny.us/diseases/aids/regulations/notification/hivpartner/docs/lawqa.pdf. This brochure
emphasizes that this information is confidential:
Under the law, identifying information about people with HIV infection is ONLY to be used to help the Health
Department track the epidemic and for partner notification. The Health Department will NOT disclose this
information to other government or private agencies like the United States Citizenship and Services (USCIS),
police, welfare, insurance companies or landlords.
93. N.Y. Comp. Codes R. & Regs. tit. 10, §§ 63.6, 63.8(a)(3) (2007).
94. N.Y. Dep’t of Health, HIV Reporting and Partner Notification, N.Y. Dep’t of Health, HIV Reporting and
http://www.health.state.ny.us/diseases/aids/ regulations/notification/hivpartner/docs/lawqa.pdf.
E. Legal Rights and Prevention of Infectious Diseases
1. Prevention and Prison Policy
The government has a duty to provide medical care to people it incarcerates. 95 This duty may also
include protecting prisoners from infectious diseases, such as TB.96 But, it is also very important to take the
necessary precautions to protect yourself and others from disease. If you have anal, vaginal, or oral sex, it is
extremely important to use latex condoms in order to protect yourself against HIV infection and other
sexually-transmitted diseases. This is particularly vital in the prison system, where a higher proportion of
the population is HIV-positive. Very few jails or prisons provide condoms for prisoners. A few jails in Los
Angeles, New York City, Philadelphia, San Francisco, and Washington, D.C. supply condoms on a limited
basis, and Mississippi and Vermont offer condoms to prisoners. 97 In some prisons, condoms may be
considered contraband, so make sure to check whether your prison considers condoms contraband.98
Prisons have some duty to prevent MRSA’s spread once they know infection is present, but you have
limited options to enforce this duty. An Eighth Amendment claim for failing to protect a prisoner from
contracting MRSA would have to show “deliberate indifference” to the serious medical needs. 99 Courts
generally hold prisons need not take every possible measure to prevent MRSA’s spread. As long they take
reasonable steps, you cannot make a constitutional claim by showing the prison could have done more.100
2. Segregation of Prisoners with Infectious Diseases
(a) Mandatory Segregation
(i) Mandatory Segregation of Prisoners with TB
Prisons may want to segregate (separate) prisoners with infectious diseases from other prisoners to
prevent the disease’s spread. This type of segregation is often mandatory and involves separate housing.
New York law allows prison officials to separate prisoners if a “contagious disease” becomes widespread.101
But, New York law also states that all who are “sick shall receive all necessary care and medical assistance,”
and that all such prisoners should be transferred back to general population as soon as possible.102
Because TB can be spread through the air, the law often treats people with TB differently. Prisons can
usually isolate prisoners who are suffering from TB to prevent the spread of a “contagious disease.”103 New
95. See Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251, 259 (1976) (confirming “the
government’s obligation to provide medical care for those whom it is punishing by incarceration”). See JLM Chapter 23
for more information on a prison’s duty to provide medical care and what you can do if you are not receiving proper care.
96. See Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981) (finding prison’s failure to adequately screen incoming
prisoners constituted a “threat to the well-being of the inmates [that] is so serious, and the record [is] so devoid of any
justification for the defendants’ policy, that under the standard of Bell v. Wolfish this practice constitutes ‘punishment’
in violation of the Due Process Clause”); Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977) (stating though a prison is
not required to conduct medical exams on prisoners within 36 hours of entering the facility, leaving persons with
communicable or contagious diseases, like scabies or gonorrhea, among other prisoners for a month or more, without
medical care, violated the standard of adequate medical services).
97. Beth Shuster, Sheriff Approves Handout of Condoms to Gay Inmates, L.A. Times, Nov. 30, 2001, at A38.
98. See, e.g., Karen Cropsey, Gloria Eldridge and Melanie Spector, The American Psychological Association (APA)
HIV Office for Psychology Education (HOPE) Training Resource Package, HIV, Mental Health, and Prisons 15, (2006),
http://www.apa.org/pi/aids/hopemanual.html; Amy Wooten, House Rejects Prison Condom Bill, Windy City Times, Mar.
21, 2007, available at http://www.windycitymediagroup.com/gay/lesbian/news/ARTICLE.php?AID=14325; Rebecca
Nerenberg, Spotlight: Condoms in Correctional Settings, HEPP News, Jan. 2002, available at
http://www.thebody.com/content/art13017.html.
99. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed. 2d. 251 (1976).
100. See Lopez v. McGrath, No. C 04-4782 MHP, 2007 WL 1577893, at * 8, 2007 U.S. Dist. LEXIS 39409 at *24-
25, (N.D. Cal. May 31, 2007) available at http://www.websupp.org/data/NDCA/3:04-cv-04782-63-NDCA.pdf at 12 (stating
that while taking more hygienic measures would have reduced the risk of infection, there is no evidence they were
necessary to reduce risk to the plaintiff to acceptable levels); Walker v. Floyd County, No. 4:07-CV-0014-SEB-WGH, 2007
WL 2237622, at *9, 2007 U.S. Dist. LEXIS 56134 at *25-27 (S.D. Ind. July 31, 2007) (a showing that there were
additional measures a prison could have taken to stop MRSA’s spread is not enough to show a constitutional violation).
101. N.Y. Correct. Law § 141 (McKinney 2003).
103. See Dunn v. Zenk, 2007 U.S. Dist. LEXIS 73891, at *9 (N.D.Ga. 2007) (holding that states have a legitimate
penological interest in controlling the spread of tuberculosis so the involuntary administration of a TB test does not
offend the Constitution); Davidson v. Kelly, 1997 U.S. App. LEXIS 33796, at *4 (2d Cir. Nov. 24, 1997) (unpublished)
York City law even allows non-incarcerated persons infected with TB to be hospitalized in certain
circumstances. 104 DOCS TB policy requires prisoners with contagious TB to be placed in respiratory
isolation. While in respiratory isolation, you are only allowed to leave the area for certain medical treatment
and you will have to wear a surgical mask.105
(ii) Mandatory Segregation of Prisoners with HIV
Because HIV does not spread as easily as TB, New York State prisons106 and federal prisons107 do not use
HIV status alone to determine housing or program assignments. New York prisons are not allowed to
automatically segregate HIV-positive prisoners. New York state courts have found that mandatory
segregation violates your right to privacy—specifically, your right to medical confidentiality—because
housing in an AIDS unit tells other prisoners and staff that you are HIV-positive.108 If you are a federal
prisoner who has HIV or AIDS, the prison can only separate you if prison officials have reasonable evidence
that you pose a health risk.109 For more information on confidentiality issues, see Part F of this Chapter, and
for information regarding discriminatory treatment based on your health status, see Part H of this Chapter.
However, some states do require that all HIV-infected prisoners reside separately, and many courts
outside of New York have upheld prison systems’ decisions to segregate HIV-positive prisoners. Courts
generally view segregation as a reasonable means of limiting exposure to HIV and consider preventing the
spread of HIV to be a legitimate penological interest.110 Additionally, at least one federal court of appeals
identified a high risk of HIV transmission in prison even though the prison did not present evidence of
actual transmission of the virus. The court thought the mere presence of high-risk behavior—like
intravenous drug use, sex, and violent exchanges—was enough to establish a significant risk of transmitting
HIV existed.111 The court also rejected the prisoners’ suggestions to hire more corrections officers or identify
prisoners who were HIV-positive and likely to engage in high-risk conduct. The court found such
accommodations to be unreasonable and to create an “undue hardship” on the facility.112 This ruling might
make it more difficult to argue your segregation is unconstitutional.
(placing a prisoner in TB hold for three days until he agreed to be tested for TB did not violate the prisoner’s 8th
Amendment rights because it furthered a legitimate penological interest); McCormick v. Stalder, 105 F.3d 1059, 1061–62
(5th Cir. 1997) (holding that prison policy requiring TB patients to be medicated or isolated was reasonably related to
legitimate penological interests); Washington v. Cambra, 1998 U.S. App. LEXIS 30072, at *3 (9th Cir 1998)
(unpublished) (holding that a policy of testing prisoners twice for TB is reasonably related to the legitimate penological
goal of detecting and containing TB and the second test did not violate the prisoner’s rights under the 8th or 14th
Amendments); Delisser v. Goord, 2003 U.S. Dist. LEXIS 488, at *16, *18–19, *23 (N.D.N.Y. Jan. 15, 2003) (unpublished)
(holding that prisoner, who was placed in TB Hold for a total of 93 days for refusing to submit to PPD test and then for
refusing to take TB medication, did not suffer a violation of his 8th or 14th Amendment rights).
104. See 24 RCNY Health Code § 11.47(d)(1) (2007) (authorizing “the removal to and/or detention in a hospital or
other treatment facility for appropriate examination for tuberculosis of a person who has active tuberculosis or who is
suspected of having active tuberculosis and who is unable or unwilling voluntarily to submit to such examination by a
physician or by the Department”); City of New York v. Doe, 205 A.D.2d 469, 469, 614 N.Y.S.2d 8, 9 (1st Dept. 1994)
(holding that patient could be detained pursuant to New York City Health Code § 11.47 where there was no less
restrictive way to treat patient’s TB infection).
105. Division of Health Services, New York Department of Correctional Services, Health Services Policy Manual:
Tuberculosis, § 1.18 at 10–11 (June 21, 2004).
106. See, e.g., Nolley v. County of Erie, 776 F. Supp. 715, 719 (W.D.N.Y. 1991) (“DOCS stopped isolating HIV+
inmates from the general population in 1987.”).
107. 28 C.F.R. § 549.13(c) (2007) (“Except as provided for in disciplinary policy, no special or separate housing
units may be established for HIV-positive inmates.”). However, as a federal prisoner, you can be placed in controlled
housing if there is reasonable evidence that you will pose a health risk to others. 28 C.F.R. § 541.61 (2007).
108. See Nolley v. County of Erie, 776 F. Supp. 715, 733–36 (W.D.N.Y. 1991) (holding segregation violated
constitutional and statutory rights to privacy because HIV status was disclosed); Doe v. Coughlin, 697 F. Supp. 1234,
1240 (N.D.N.Y. 1988) (holding involuntary segregation of prisoners with HIV or AIDS violates right to privacy).
109. 28 C.F.R. § 541.61 (2007).
110. See, e.g., Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (holding Mississippi prisons had reasonable
interests in segregating HIV prisoners; segregation did not violate rights to privacy, equal protection, or due process).
111. Onishea v. Hopper, 171 F.3d 1289, 1299 (11th Cir. 1999) (holding risk of HIV transmission justified
segregation of HIV-positive prisoners, including exclusion from programs and activities offered to other prisoners).
112. Onishea v. Hopper, 171 F.3d 1289, 1303–04 (11th Cir. 1999). (finding that the cost of implementing this
accommodation would be too high).
(iii) Mandatory Segregation of Prisoners with MRSA
Prisons may choose to segregate prisoners with active MRSA infections to prevent the spread of the
infection to others through contact. The Federal Bureau of Prisons generally recommends that prisoners
with MRSA wounds that are either not draining or that can be easily covered with bandages do not need to
be housed separately.113 As the infection becomes more serious or develops into MRSA pneumonia, separate
housing is recommended or required.114 A prison may have the right to threaten a prisoner with solitary
confinement if they refuse to accept the prescribed treatment for MRSA.115
(b) Segregation Requested by Prisoners
If you are afraid of getting an infectious disease, read Part B of this Chapter again to get a sense of the
steps you can take to protect yourself. In general, prisoners who are afraid of getting infectious diseases from
other prisoners have not been able to successfully sue prison officials. Some prisoners have tried to get
prisons to segregate other prisoners who were infected with a communicable disease, but most of these cases
are unsuccessful. Other prisoners who already are infected have also unsuccessfully requested that the
prison give them a single cell (or vaccinate other prisoners) so that they do not spread their diseases.116
Courts seem to support a prison’s decision not to segregate prisoners with HIV-related illnesses.117
Although prisons may have a legal responsibility to protect prisoners from exposure to communicable
diseases,118 to win a lawsuit against prison officials for exposing you to infectious diseases, you must prove
that (1) there was a specific and significant risk of infection, and (2) prison officials were aware of that risk
but disregarded it.119 You must show that there is a significant possibility that the virus or disease will be
transmitted to you. It is not enough if you only have a general fear of getting the virus.
Some courts have held that this standard is sometimes met when prisoners are housed with people
known to have MRSA infections. For this to be true, the infected prisoner must have open wounds that are
not being adequately covered or cleaned and that are likely to infect other prisoners.120
Staphylococcus aureus (MRSA) Infections 35 (2005), available at http://www.bop.gov/news/PDFs/mrsa.pdf.
Staphylococcus aureus (MRSA) Infections 35 (2005), available at http://www.bop.gov/news/PDFs/mrsa.pdf.
115. See Keller v. County of Bucks, 209 Fed.Appx. 201, 205–206 (3d Cir. 2006) (unpublished) (holding that it was
not a constitutional violation to isolate a pre-trial detainee who refused treatment for a MRSA infection when the
isolation was imposed following a medical determination); Munoz v. Fortner, 2007 U.S Dist. LEXIS 91543 at *20–21
(E.D. Tex. Dec. 13, 2007) (holding that it does not violate the Constitution to threaten to put prisoners with MRSA who
do not comply with recommended treatment into isolation).
116. Johnson v. Horn, 782 A.2d 1073 (Pa. Commw. Ct. 2001) (refusing to give court order forcing prison officials to
assign prisoner to a single cell so he would not spread hepatitis C to other prisoners.)
117. See Deutsch v. Fed. Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990), aff’d, 930 F.2d 909 (2d Cir.
1991) (holding that prisoner did not have the right to have another HIV-positive prisoner segregated unless the inmate
poses a known health risk); Glick v. Henderson, 855 F.2d 536, 539–40 (8th Cir. 1988) (holding prisoner’s fear of
contracting HIV through shared work assignments or eating food possibly prepared by HIV-infected prisoners was not
sufficient to grant request to order segregation of HIV-infected prisoners).
118. See Hutto v. Finney, 437 U.S. 678, 682 (1978) (finding prison conditions required an Eighth Amendment
remedy where inmates in punitive isolation were crowded into cells when some of them had infectious maladies such as
hepatitis and venereal disease); Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981) (finding that prison’s failure to
adequately screen incoming prisoners violated the due process rights of pretrial detainees and the 8th Amendment
rights of sentenced prisoners); Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977) (stating that leaving persons with
communicable or contagious diseases, such as scabies or gonorrhea—without medical attention in the midst of other
prisoners violated the required standard of adequate medical services).
119. See Massick v. N. Cent. Corr. Facility, 136 F.3d 580, 581 (8th Cir. 1998) (holding that plaintiff’s 8th
Amendment rights were not violated when prison officials placed him in a cell with an HIV-positive prisoner, whose HIV
status plaintiff did not know, and who had open bleeding wounds, because the risk of transmission was small and
because prison officials acted reasonably by granting plaintiff’s request to change cellmates after plaintiff discovered his
cellmate was HIV-positive); Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 788–89 (7th Cir. 1995) (holding that knowingly
assigning prisoners to share a cell with an HIV-positive prisoner with a known propensity to rape, without even giving a
warning, would constitute, if found to be true, a “deliberate indifference” to the “fear and humiliation inflicted by the
rape and the fear of contracting the AIDS virus” in violation of prisoners’ 8th Amendment rights); DeGidio v. Pung, 920
F.2d 525, 532–33 (8th Cir. 1990) (holding that prison officials’ consistent pattern of reckless or negligent conduct in
responding to outbreaks of TB was sufficient to constitute deliberate indifference, violating the 8th Amendment).
120. See Lopez v. McGrath, No. C 04-4782 MHP, 2007 WL 1577893 at * 10, 2007 U.S. Dist. LEXIS 39409 at *31
(N.D. Cal. May 31, 2007) available at http://www.websupp.org/data/NDCA/3:04-cv-04782-63-NDCA.pdf at 15 (holding
Additionally, the Prison Litigation Reform Act (“PLRA”) makes winning money damages even more
difficult. Under the PLRA, if you seek money damages, you will have to show you were physically injured,
not just mentally or emotionally injured, or placed at an increased risk of being infected. For more
information on the PLRA, see JLM Chapter 14, “The Prison Litigation Reform Act.”
F. Legal Rights and Confidentiality
Under the Constitution, you have a privacy interest regarding disclosure of personal matters.121 See Part
E (2) of JLM Chapter 23, “Your Right to Adequate Medical Care,” for information about medical privacy.
Prisoners with infectious diseases generally have a limited right to keep information about their medical
condition confidential. Some courts have held this right to confidentiality also applies to an individual’s HIV
status.122 But, other courts have held that there is no constitutional right to privacy regarding HIV status.123
If you are in federal prison, your HIV test results, if positive, must be disclosed to the prison’s employees.124
In New York State, your HIV-related information cannot be disclosed to anyone but you and individuals
authorized by statute.125 Authorized individuals include health care providers when knowledge is necessary
to provide adequate care,126 employees of the Division of Parole,127 employees of the Division of Probation and
Correctional Alternatives or local probation department, 128 the medical director of the local correctional
facility,129 or an employee or agent of the Commission of Correction.130 These authorized individuals are
entitled to access to the extent such information is needed for them to carry out their duties and functions.131
In New York, prisoners have won claims of statutory and constitutional rights violations when their HIV
status was improperly disclosed. In particular, a prison official disclosing your HIV status to other prisoners
or non-medical personnel is improper.132 The courts seem to permit disclosure if such disclosure is reasonably
related to legitimate prison interests, like protecting prisoners or corrections officers from infection. But,
unnecessary disclosure of such information for humor or gossip violates a prisoner’s constitutional rights.133
that triable issue of fact was created when plaintiff claimed that administrators knew medical staff were putting
prisoners with MRSA infections back into the general population, possibly creating “substantial risk” to other prisoners);
Kimble v. Tennis, Civil No. 4:CV-05-1871, 2006 WL 1548950, at * 4, 2006 U.S. Dist. LEXIS 36285 at *11 (M.D. Pa. June
5, 2006) (holding that evidence that prison doctor authorized release of a MRSA-infected prisoner with open sores to the
general population was enough to support a claim of deliberate indifference).
121. See Whalen v. Roe, 429 U.S. 589, 599, 97 S. Ct. 869, 876, 51 L. Ed. 2d 64, 73 (1977) (finding the Constitution
protects individual’s right to make personal decisions and against information disclosure) (non-prison case); O’Connor v.
Pierson, 426 F.3d 187, 201 (2d Cir. 2005) (“Medical information in general, and information about a person’s psychiatric
health and substance-abuse history in particular, is information of the most intimate kind.”) (non-prison case).
122. See Doe v. Delie, 257 F.3d 309, 315–17 (3d Cir. 2001) (finding prisoners retain a right to privacy in medical
information, and that the right is “particularly strong” for HIV status); Doe v. City of New York, 15 F.3d 264, 267 (2d
Cir. 1994) (“Individuals who are infected with the HIV virus clearly possess a constitutional right to privacy regarding
their condition.”).
123. See Sherman v. Jones, 258 F. Supp. 2d 440, 444 (E.D. Va. 2003) (holding that there is no constitutional right
to privacy of HIV status, and noting that different circuit courts have reached different conclusions on this issue).
124. 28 C.F.R. § 549.14 (2005).
125. N.Y. Pub. Health Law § 2782 (McKinney 2006). State agencies authorized to obtain confidential HIV-related
information should have regulations to prevent discrimination, prohibit unauthorized disclosure, and establish criteria
for determining who should receive the information and when. N.Y. Pub. Health Law § 2786(2)(a) (McKinney 2006).
126. N.Y. Pub. Health Law § 2782(1)(d) (McKinney 2006).
127. N.Y. Pub. Health Law § 2782(1)(l) (McKinney 2006).
128. N.Y. Pub. Health Law § 2782(1)(m) (McKinney 2006).
129. N.Y. Pub. Health Law § 2782(1)(n) (McKinney 2006).
130. N.Y. Pub. Health Law § 2782(1)(o) (McKinney 2006).
131. N.Y. Pub. Health Law §§ 2782(1)(l)–(o) (McKinney 2006).
132. See Lipinski v. Skinner, 781 F. Supp. 131, 140 (N.D.N.Y. 1991) (allowing prisoner to sue law enforcement
officials and prison officials when they disclosed his HIV status to newspaper); V. v. State, 150 Misc. 2d 156, 157–58, 566
N.Y.S.2d 987, 988–89 (N.Y. Ct. Cl. 1991) (holding that prisoner stated proper claim for relief when accusing prison of
improperly revealing HIV-related information); Doe v. Coughlin, 697 F. Supp. 1234, 1238 (N.D.N.Y. 1988) (temporarily
forbidding plan to segregate prisoners because it would disclose their AIDS status, violating their right to privacy). But
see Cordero v. Coughlin, 607 F. Supp. 9, 11 (S.D.N.Y. 1984) (holding that plan that separated prisoners with AIDS did
not violate the prisoners’ 1st Amendment right to privacy because the right to privacy was limited by the needs of the
prison and the fact that the inmates were confined).
133. See Powell v. Shriver, 175 F.3d 107, 112–13 (2d Cir. 1999) (holding though prison official does not violate a
prisoner’s right to medical privacy if the actions are reasonably related to legitimate prison interests, disclosing such
information as gossip or a joke is illegitimate); see also Baez v. Rapping, 680 F. Supp. 112, 115 (S.D.N.Y. 1988) (holding
In other jurisdictions, courts have been divided on the issue of medical privacy. Some courts have found
a prisoner’s right to medical confidentiality to be limited,134 while other courts have protected such rights for
prisoners and arrestees.135 But, the enactment of the Prison Litigation Reform Act (PLRA) may result in
different outcomes for similar cases brought today. For more information on the PLRA, see Chapter 14 of the
JLM. It is important to remember that the PLRA requires a showing of physical injury, not just mental or
emotional injury, to recover monetary damages. Thus, to be successful in a lawsuit, you would probably have
to prove that the prison official’s actions physically injured you. Some courts may require you to show the
harm is likely to occur again to get injunctions (orders requiring officials to stop or change a policy).136
G. Legal Rights and Medical Treatment
1. Right to Medical Treatment
If you are denied medical treatment for an infectious disease, you may have a claim that the prison
violated your rights under the Eighth Amendment. The Eighth Amendment protects you from cruel and
unusual punishment. To win an Eighth Amendment claim, you must prove that prison officials showed
“deliberate indifference” to your “serious medical needs.”137 It is important to remember that courts do not
think that every claim of inadequate medical care is bad enough to be a constitutional violation.138 But a few
courts have held that a denial of prescribed AIDS or hepatitis C medical treatment does violate a prisoner’s
constitutional rights. 139 See Chapter 23 of the JLM, “Your Right to Adequate Medical Care,” for more
information on how to bring an Eighth Amendment claim for failure to provide adequate medical treatment.
Courts generally do not believe prisoners have a constitutional right to a private doctor or experimental
medication.140 You may still be able to get experimental drugs, but you will probably not have an Eighth
Amendment claim against your facility if it does not prescribe them for you. But, some prisons have
prison officials did not violate prisoner’s right to confidentiality by warning other officials to avoid contact with prisoner’s
body fluids). But see Nolley v. County of Erie, 776 F. Supp. 715, 725–28 (W.D.N.Y. 1991) (holding policy of putting red
stickers on HIV-positive prisoner’s possessions, revealing HIV status, violated privacy rights under New York law).
134. See Anderson v. Romero, 72 F.3d 518, 523 (7th Cir. 1995) (holding that prisoners do not have a constitutional
right to the confidentiality of their HIV status, especially in light of the fact that HIV-positive prisoners could be
identified when segregated from the rest of the prison population); Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir. 1994)
(holding that the prisoner’s right to privacy was not violated when a corrections officer, in the presence of other
witnesses, opened his file after he refused to answer questions about his medical condition); Adams v. Drew, 906 F.
Supp. 1050, 1055–58 (E.D. Va. 1995) (stating that disclosure by prison officials of prisoner’s HIV status to other
prisoners did not violate right to privacy).
135. See A.L.A. v. W. Valley City, 26 F.3d 989, 991 (10th Cir. 1994) (stating arrestee had stated a claim against police
for disclosing his HIV status to his family and a stranger, even though it was later revealed he did not have HIV).
136. Davis v. Dist. of Columbia, 158 F.3d 1342, 1346–47 (D.C. Cir. 1998) (ruling that the prisoner, who had AIDS,
could not sue for unauthorized disclosure of his medical files, since he failed to show a threat of it happening again).
137. Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (describing the standard for bringing an 8th
Amendment claim for failure to receive proper medical care) (citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285,
291, 50 L. Ed. 2d 251 (1976)). HIV and hepatitis are generally considered “serious medical needs.” Brown v. Johnson, 387
F.3d 1344, 1351 (11th Cir. 2004).
138. See Smith v. Carpentar, 316 F.3d 178, 184, 186–87 (2d Cir. 2003) (citing Estelle v. Gamble, 429 U.S. 97, 104,
97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)) (holding brief interruptions of HIV medications, with no discernible adverse
effects, did not present serious medical needs; noting that a showing of increased risk, even absent presently detectable
symptoms, might be serious enough).
139. See Montgomery v. Pinchak, 294 F.3d 492, 500 (3d Cir. 2002) (finding HIV-positive prisoner’s claim regarding
violation of his right to adequate medical treatment had merit and holding because HIV is a life-threatening disease if
left untreated, the prisoner had met the serious medical need prong of Estelle v. Gamble). But see Johnson v. Wright,
2005 U.S. App. LEXIS 12428 (2d Cir. N.Y., June 24, 2005) (finding that although a facility’s refusal to give a prisoner the
medication most prisoners received for hepatitis C because he had used illegal drugs constituted deliberate indifference,
there was medical reason for denying the prison therapy); Niemic v. Maloney, 448 F. Supp. 2d 270 (9th Cir. 2006)
(finding that the denial of a medicine subsequent to a failed drug test does not violate Due Process under the 14th
Amendment, especially given that a decision to deny the medicine to active drug users is in accord with medical custom).
140. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (“[M]ere disagreement over the proper treatment
does not create a constitutional claim.”); McKenna v. Wright, 01 Civ. 6571 (WK), 2002 U.S. Dist. LEXIS 3489, at *21
(S.D.N.Y. Mar. 4, 2002) (unpublished) (dismissing plaintiff’s claim on the basis that the doctor’s treatment decision was
his medical judgment and consistent with current medical literature); Carter v. Cash, No. 92 Civ. 5526 (JG), 1995 U.S.
Dist. LEXIS 22209, at *2–3 (E.D.N.Y. May 31, 1995) (unpublished) (prisoner not entitled to medication of his choice if
doctor decided, based on his professional judgment, that it would not be in the prisoner’s best interest).
participated in clinical trials for anti-retroviral therapy for AIDS. To take part in such trials, you must first
get approval from the Institutional Review Board of the testing site and your prison’s medical department.141
If you believe that your health is suffering because you are being wrongfully denied medication, you will
probably have to show that the medical community agrees that this medication will help your condition.
Otherwise, the court may see your claim as a simple disagreement between you and your doctor.142 If you
want to bring a claim about medical treatment or medication denied to you sometime in the past, a court
may look back to see what the accepted medical practices were at that time.143
If you received medical treatment but think that a prison doctor incorrectly diagnosed your condition, it
will be difficult to bring a successful case against the prison officials. In the past, courts have dismissed
cases for a variety of reasons, such as because the prisoner could not prove that the prison officials had
personal involvement,144 or the prisoner could not show any physical harm or that his needs were ignored.145
If you have Hepatitis C and prison officials determine that you should receive a certain treatment for a
certain length of time, and you are then denied that treatment, you may have a claim under the Eighth
Amendment. The initial requirements to bring a claim will be met if you can say that the removal from the
prescribed treatment is endangering your life by failing to treat your disease.146 You do not have to also
claim that you have suffered an independent harm, other than the progress of your disease, in order to bring
your claim.147 Meeting these requirements allows you to begin your case, but does not mean that you will
win. You will still need to show that there was “deliberate indifference” to your medical needs.148
This does not change the rule that courts do not like to question doctors’ medical decisions. If you have
received treatment for Hepatitis C but think you should have been given different treatment,149 or if your
doctors said you do not have a condition requiring any treatment, this rule will not allow you to bring suit.150
2. Right to Refuse Medical Treatment
Some people, for a variety of reasons, choose to refuse medical treatment. Competent people—people who
can think and understand well enough to make medical decisions for themselves—have the right to refuse
141. You can find information about clinical trials from publications such as the American Foundation for AIDS
Research (“AMFAR”) AIDS/HIV Treatment Direction. AMFAR’s contact information is included in Appendix A at the
end of this Chapter.
142. See Perkins v. Kansas Dep’t of Corrs., 165 F.3d 803, 811 (10th Cir. 1999) (upholding the denial of protease
inhibitor to prisoner with HIV because other treatment was provided); Loch v. County of Bucks, No. 03-CV-4833, 2006
WL 2559296 at *3, 2006 U.S. Dist. LEXIS 62620 at *10–11 (E.D. Pa. Sept. 1, 2006), available at
http://www.paed.uscourts.gov/documents/opinions/06D1114P.pdf at 5 (holding that a prisoner who had been treated for
conditions including MRSA did not assert a constitutional violation simply because they claim the treatment they
received was inadequate); Matthews v. Crosby, No. 3-06-CV-38, 2006 U.S. Dist. LEXIS 35049 at *7 (N.D. Fla. May 31,
2006), available at http://www.websupp.com/data/NDFL/3:06-cv-00038-10-NDFL.pdf at 4 (holding that a complete denial
of available treatment, but not a dispute over the care received, could be a constitutional violation).
143. See Parker v. Proffit, Civ. A. No. 94-00815-R, 1995 U.S. Dist. LEXIS 15941, at *19 (W.D. Va. Oct. 27, 1995)
(unpublished) (evaluating denial of medication by standards of medical treatment at time of denial); Adams v. Poag, 61
F.3d 1537, 1543 (11th Cir. 1995) (to show a prison official’s actions were deliberately indifferent, a plaintiff could produce
opinions of medical experts asserting the official’s actions were contrary to contemporary accepted medical practices).
144. See Timmons v. N.Y. State Dep’t of Corr. Servs., 887 F. Supp. 576, 580 (S.D.N.Y. 1995) (holding a prisoner
bringing a claim against prison officials for misdiagnosing him in 1986 as having HIV had not shown the officials had
any personal involvement in the alleged violations and was thus not entitled to relief under 42 U.S.C. § 1983). Section
1983 governs suits against prison officials for federal statutory and constitutional violations and is described in detail in
JLM Chapter 16, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief From Violations of Federal Law.”
145. See Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (dismissing 8th Amendment claim because prisoner
failed to show that he suffered any adverse medical effects from the sporadic lack of treatment).
146. See Erickson v. Pardus, 127 S.Ct. 2197, 2200, 167 (2007) (holding that the pleading requirements of Federal
Rule of Civil Procedure 8(a)(2) were met by statements that a prisoner with Hepatitis C had been removed from his
prescribed course of treatment and denied all treatment for his disease due to suspicion of drug use).
147. See Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (stating that allegations in complaint were sufficient to
bring an initial claim, and no claim of “cognizable independent harm” apart from removal from treatment is required).
148. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d. 251 (1976).
149. See Loukas v. Mich. Dep’t of Corr., No. 2-07-CV-142, 2008 U.S. Dist. LEXIS 14724 at *2 (W.D. Mich. Feb. 27,
2008) (holding that a prisoner who has not been denied medical care, but simply questions whether the treatment he has
been receiving is adequate, does not have an Eighth Amendment claim).
150. See Hix v. Tenn. Dep’t of Corr., 196 Fed.Appx. 350, 357 n.1 (6th Cir. 2006) (stating Hepatitis C does not
require treatment in all cases, and a difference of opinion over medical treatment does not violate the 8th Amendment).
treatment, even if it means they will die as a result.151 However, your right to refuse treatment is limited as
a prisoner.152 Most courts have held that prisons can treat TB-infected prisoners without their consent.153
Courts balance your interest in refusing treatment with the prison’s “legitimate penological interest” in
preventing the spread of disease. Courts will also consider whether the prison’s actions are reasonably
related to the prison’s interests. If you do not have a disease that is transmitted through air, the prison will
have a weaker argument for forcing you to take medication than if you have a disease such as TB that is
easily spread. See Part C of Chapter 29, “Special Issues for Prisoners with Mental Illness,” for more
information about your right to refuse medical treatment.
H. Discriminatory Treatment and Infectious Diseases
1. Constitutional Rights
The Fourteenth Amendment guarantees constitutional rights that may protect you from discriminatory
treatment on the basis of having an infectious disease. For example, your rights under the Equal Protection
Clause of the Fourteenth Amendment prohibit discrimination by the state that is not rationally related to a
legitimate purpose.154 The Due Process Clause of the Fourteenth Amendment forbids the prison facility from
taking away your entitlements without due process of law.155 The Eighth Amendment protects you from
“cruel and unusual punishment.”156 Keep in mind, however, that the courts balance these constitutional
rights against legitimate penological interests,157 which may allow prison officials to lawfully infringe upon
your rights. Prison policies are valid if they are reasonably related to a legitimate penological interest;
however, the prison is required to use the least restrictive means of achieving the goals of the policy.158
If you bring a suit challenging a prison practice under the Fourteenth Amendment’s Due Process Clause,
you must prove you were entitled to something the prison took away.159 Any entitlement must be created by
151. For New York law, see N.Y. Pub. Health Law §§ 2960–79 (McKinney 2007) (“Orders Not to Resuscitate”)
(regulating right of “adult with capacity” to direct issuance of orders not to resuscitate); N.Y. Pub. Health Law §§ 2980–
94 (McKinney 2007) (“Health Care Agents and Proxies”) (allowing appointment of agents to make important health care
decisions including the refusal of life-saving treatment for the appointer); Quill v. Koppell, 870 F. Supp. 78, 84 (S.D.N.Y.
1994) (“It is established under New York law that a competent person may refuse medical treatment, even if the
withdrawal of such treatment will result in death.”). See also Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996) (holding that
physicians can prescribe death-inducing drugs for mentally competent patients who wish to end their lives during the
end stages of terminal illness. This case may lend strength to the proposition that a competent person may refuse
medical treatment, even if such refusal will result in death).
152. See Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990) (recognizing 14th
Amendment right to refuse medical treatment, using Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64
(1987), to balance prisoner’s rights against the state’s duty to treat mentally ill prisoners and protect the safety of
prisoners and correction officers, and finding the state did not deprive right to refuse treatment without due process).
153. See McCormick v. Stalder, 105 F.3d 1059, 1062 (5th Cir. 1997) (holding that prison officials did not violate
the 8th Amendment when they required a prisoner with TB to undergo drug therapy without his consent).
154. U.S. Const. amend. XIV, § 1 (“No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).
155. U.S. Const. amend. XIV, § 1. (“No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).
156. U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”).
157. See Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (analyzing whether a prison
regulations that burden fundamental rights are “reasonably related” to legitimate penological objectives).
158. See Turner v. Safley, 482 U.S. 78, 91, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64, 80 (1987) (“But if an inmate
claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological
interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship
standard.” This means if a prisoner can point to a different procedure not requiring more money or time, the alternative
can be used as evidence that the challenged policy is not reasonable.); Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 810–
11, (10th Cir. 1999) (holding HIV-positive prisoner could claim a constitutional violation for being forced to wear a face
mask whenever he left his cell and noting that wearing such a mask could become a humiliating form of branding that
violated the 8th Amendment’s prohibition of punishing individuals for a physical condition). But see Parker v. Proffit,
Civ. A. No. 94-00815-R, 1995 U.S. Dist. LEXIS 15941, at *19–21 (W.D. Va. Oct. 27, 1995) (unpublished) (stating that
making an HIV-positive prisoner wear a mask and protective clothing may have caused some embarrassment, but the
practice did not rise to a constitutional violation of the 8th Amendment prohibition on cruel and unusual punishment).
159. See Anderson v. Romero, 72 F.3d 518, 527 (7th Cir. 1995) (ruling a state statute directing prisons to provide
state law. If you think you are entitled to something, you should first determine whether or not a state
statute or regulation gives you a right to that entitlement. Also know that prison officials can treat prisoners
with infectious diseases differently from other prisoners if their reasons further legitimate penological
interests.160 But, the reasons must be rational and not purely discriminatory.
The Fourteenth Amendment only applies to the states, but the Fifth Amendment’s Due Process Clause
protects your rights against the federal government. If you are in a federal prison, you might consider
bringing your lawsuit under federal statutes, instead of under the Fifth Amendment.
2. Statutory Rights
Certain laws protect you from forms of discrimination based on disabilities, including HIV status. The
Federal Rehabilitation Act of 1973 (“FRA”) prohibits discrimination, or denial of programs or benefits based
on disability, by a federal, state, or local government agency, or any recipient of federal funding.161 Similarly,
the Americans with Disabilities Act (“ADA”) prohibits public and private entities from discriminating,
excluding, or denying services, programs, or activities to a person with a disability.162 These laws recognize
tuberculosis and HIV infection as a form of disability because they are physical impairments limiting major
life activities.163 Also, in Bragdon v. Abbott, the Supreme Court clearly stated that under the ADA, “HIV
infection satisfies the . . . definition of a physical impairment during every stage of the disease.”164
Although HIV is viewed as a disability according to the FRA and the ADA, your rights are limited to
some extent if: (1) your HIV infection poses a significant risk to the health or safety of others; or (2) it would
be an undue hardship on the prison facility to accommodate your needs.165 Also, the U.S. Supreme Court has
decided that individuals cannot recover monetary damages from the state for its failure to comply with the
ADA.166 However, you can still seek injunctive relief, which means that you can file a claim in which you ask
the court to require the state to end practices that violate the ADA.167
If you are suing for violation of your statutory rights, you should cite both the FRA and ADA, since the
remedies, procedures, and rights are the same under both laws.168 The only difference is the FRA only
“barber facilities” gave the plaintiff an entitlement to a haircut, and keeping plaintiff from this entitlement because of
his HIV status deprived him of his property and liberty rights under the 14th Amendment’s Due Process Clause).
160. See Laureano v. Vega, 92 Civ. 6056 (LMM), 1994 U.S. Dist. LEXIS 2107, at *23–24 (S.D.N.Y. Feb. 25, 1994)
(unpublished), aff’d, 40 F.3d 1237 (2d Cir. 1994) (rejecting prisoner’s claim that he had received difficult work
assignments because of his HIV status; holding that he had failed to establish any retaliatory motive by prison officials
and that there is no right to a particular prison job); Farmer v. Moritsugu, 742 F. Supp. 525, 528 (W.D. Wis. 1990)
(finding that prison had legitimate interest in maintaining security and order and therefore refusal of HIV-infected
prisoner’s request for food service job was not denial of equal protection); Doe v. Coughlin, 71 N.Y.2d 48, 54, 56, 60, 518
N.E.2d 536, 540, 541, 544, 523 N.Y.S.2d 782, 786, 787, 790 (N.Y. 1987) (upholding prison officials’ refusal to allow a
prisoner with AIDS to participate in a Family Reunion Program and holding that prisoner’s privacy rights and his rights
under the Due Process Clause and the Equal Protection Clause had not been violated, reasoning that there is no right to
marital relations and that the prison officials had a rational basis to believe that such visits would help the spread of a
disease). Note, however, the New York State Department of Corrections’ official policy does not currently deny
participation in the Family Reunion Program based solely on the HIV status of the prisoner. Instead, there is a special
review of each prisoner’s application because of potential health risks to the visitor. N.Y. Comp. Codes R. & Regs. tit. 7
§§ 220.2–220.9 (2008) (State of New York, Department of Correctional Services, Directive No. 4500 (August 2007)).
161. 29 U.S.C. § 701(a)–(c) (2000).
162. 42 U.S.C. § 12132 (2000).
163. 28 C.F.R. § 35.104(4)(1)(ii) (2006) (“The phrase physical or mental impairment includes, but is not limited to,
such contagious and non-contagious diseases and conditions as ... HIV disease (whether symptomatic or asymptomatic),
tuberculosis ....”); 42 U.S.C. § 12102(2) (2000) (“The term ‘disability’ means ... a physical or mental impairment that
substantially limits one or more of the major life activities of such individual; a record of such impairment; or being
regarded as having such an impairment.”).
164. Bragdon v. Abbott, 524 U.S. 624, 637, 118 S. Ct. 2196, 2204, 141 L. Ed. 2d 540, 556–57 (1998). This case
concerned a dentist’s refusal to examine an HIV-infected patient in his office. Though the facts did not involve prisoners,
the legal principle is the same regarding HIV infection as a disability. For a lower court decision finding an HIV-positive
prisoner disabled under the FRA and ADA, see, e.g., Dean v. Knowles, 912 F. Supp. 519, 521 (S.D. Fla. 1996).
165. See Onishea v. Hopper, 171 F.3d 1289, 1305 (11th Cir. 1999) (holding any amount of risk through a “specific
and theoretically sound means of transmission” is a significant risk, and allowing segregation of HIV-positive prisoners).
166. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374, 121 S. Ct. 955, 968, 148 L. Ed. 2d 866, 884
(2001) (holding Alabama State employees could not recover damages because of state’s failure to comply with the ADA).
167. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9, 121 S. Ct. 955, 968 n.9, 148 L. Ed. 2d 866,
884 n.9 (2001) (“ADA standards can be enforced by … private individuals in actions for injunctive relief”).
168. 42 U.S.C. § 12133 (2000) (“The remedies, procedures, and rights set forth in [29 U.S.C. § 794(a)] shall be the
applies to public (government) entities while the ADA can support a claim against both private and public
entities. You should also check the law of your state and city since sometimes states and localities enact
additional laws to protect persons with communicable diseases, like HIV or hepatitis, from discrimination.
In New York State, the Executive Law prohibits discrimination in several settings based on carrier status.169
If you are suing in New York, you should review New York law to see if it applies to your circumstances.
Most prison facilities are controlled and financed by federal, state, or local governments so they are
generally subject to the ADA and FRA. Furthermore, the U.S. Supreme Court has stated the ADA and FRA
prohibit discrimination in the prison system.170 This means prison facilities cannot exclude or deny prisoners
“benefits of the services, programs, or activities of a public entity” or subject them to discrimination.171
Benefits include recreational activities, medical services, and educational and vocational programs.172
However, when a court evaluates a prison policy, it will consider whether the restriction is reasonably
related to a legitimate penological interest.173 When a prison is defending a policy, it only has to show that
the possibility of a risk exists; it does not have to demonstrate that the risk has actually occurred. Examples
of interests cited by prison authorities include prison safety and undue financial or administrative burden.174
I. Sentencing Persons With Infectious Diseases
If you have an infectious disease and you have been indicted for a crime but not yet sentenced, you may
be able to ask the judge to dismiss the indictment or decrease your sentence because of your health
condition. Different states have different rules, so be sure to look at your state’s statutes and cases.
If your case is in New York State and you have a terminal illness, you may: (1) ask for lower bail; (2) ask
to be released on your own recognizance; or (3) make a Clayton motion to have your case dismissed “in the
interest of justice” (under New York Criminal Procedure Law § 210.40 and § 210.45).175 The court will look at
the evidence of guilt, the seriousness of the offense, your character, and your criminal record.176 To support a
request for dismissal, try to provide medical documentation that imprisonment would worsen your health.
If you have a terminal disease and are in prison because you violated your parole, you can request to: (1)
be returned to parole status; (2) be released to time served or granted conditional release to probation; or (3)
remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability
in violation of [42 U.S.C. § 12132].”).
169. See N.Y. Exec. Law § 296 (McKinney 2005).
170. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213, 118 S. Ct. 1952, 1956, 141 L. Ed. 2d 215, 221 (1998) (“[T]he
plain text of Title II of the ADA unambiguously extends to state prison inmates.”).
171. 42 U.S.C. § 12132 (2000).
172. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S. Ct. 1952, 1955, 141 L. Ed. 2d 215, 219 (1998).
173. See Gates v. Rowland, 39 F.3d 1439, 1448 (9th Cir. 1994) (finding a legitimate penological interest allowed
prison to discriminate against HIV-positive prisoners by denying them food service jobs). In Gates the prison claimed
that although the medical risk of infecting other prisoners through food service is admittedly small, the perception of a
risk by other prisoners could be threatening and could lead to violence. Thus, the prison interest was not in preventing
the spread of HIV so much as promoting prison safety, a typical prison interest. See also Onishea v. Hopper, 126 F.3d
1323, 1336 (11th Cir. 1999) (the FRA “mandates judicial consideration of interests particular to the prison system”).
174. Bullock v. Gomez, 929 F. Supp. 1299, 1305–08 (C.D. Cal. 1996) (finding the California Men’s Colony possibly
violated the ADA and the FRA when it prohibited HIV-infected prisoners from visiting their spouses in a family visiting
program permitting prisoners to visit immediate family members in private conditions for relatively extended periods of
time, including overnight stays; stating that the discrimination may be justified under the standard in Turner v. Safley,
482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), as a legitimate penological interest if accommodating HIV-prisoners
proved to be an undue financial or administrative burden, or if the concerns of other prisoners could lead to prison
violence; and noting that proof of previous prison violence is not required to prove a legitimate penological interest).
175. People v. Clayton, 41 A.D.2d 204, 208, 342 N.Y.S.2d 106, 110 (2d Dept. 1973) (listing factors a court should
consider where defendant seeks to dismiss case “in the furtherance of justice,” including the (1) nature of the crime; (2)
available evidence of guilt; (3) defendant’s prior record; (4) punishment already suffered by defendant; (5) purpose and
effect of further punishment; (6) any prejudice to defendant by time’s passage; and (7) the impact on the public interest
of indictment’s dismissal); see also People v. Lawson, 198 A.D.2d 71, 74, 603 N.Y.S.2d 311, 313 (1st Dept. 1993) (dismissing
indictment of defendant, described as “thin as a rail” and unable to stand properly, who had not been involved in any other
criminal activity and was honorably discharged from the Air Force, and was in final stages of AIDS), aff’d, People v.
Herman L., 83 N.Y.2d 958, 960, 639 N.E.2d 404, 405, 615 N.Y.S.2d 865, 866 (1994) (dismissing indictment pursuant to N.Y.
Crim. Proc. Law § 210.40 (McKinney 1993), which allows dismissals “in furtherance of justice” and in judge’s discretion).
176. See, e.g., People v. Sierra, 149 Misc. 2d 588, 590, 566 N.Y.S.2d 818, 819 (Sup. Ct. Kings County 1990)
(refusing to dismiss conviction because defendant suffered from AIDS Related Complex (“ARC”) and would eventually
develop AIDS, since he was a repeat felon with a long criminal history; the court also considered the evidence of the
defendant’s guilt, the offense’s seriousness, his character, and criminal history to find he was not entitled to dismissal).
have your case adjourned in contemplation of dismissal. The adjournment may be extended indefinitely,
which may allow you to live your last days out of prison.
If you are facing sentencing in federal court, judges consider the sentencing guidelines on an advisory
basis. The court may impose a lesser sentence (“downward departure”) if mitigating circumstances exist.177
The U.S. Sentencing Commission Guidelines Manual states, “an extraordinary physical impairment may be
a reason to depart downward; for example, in the case of a seriously infirm defendant, home detention may
be as efficient as, and less costly than, imprisonment.”178 Courts usually do not reduce sentences unless the
defendant’s AIDS is bad enough to be an “extraordinary physical impairment.” Some courts only consider
the defendant’s health at the time of sentencing, even if the disease will likely worsen in prison.179
Most courts require you to be seriously ill before dismissing an indictment or reducing your sentence, but
one federal district court did grant a downward departure to an HIV-positive defendant in stable condition.
The court reasoned the defendant believed his good health was a result of his special regimen of strict diet,
regular exercise, acupuncture, and a combination of vitamins and natural supplements under the close
supervision of a medical professional.180 In this case the judge was not concerned whether the treatment
actually contributed to the defendant’s good health under the reasoning that since the defendant believed
his regimen was effective, he would suffer emotional harm if he had to change treatments in prison.181
If you are trying to get your sentence dismissed or reduced because of your health, you have a greater
chance of success if you suffer from a very serious illness, like advanced-stage AIDS. You should try to
present medical documentation that being in prison will harm your health. Also, keep in mind courts might
not be sympathetic to you if you have a long criminal history. Remember, courts have discretion to grant
downward departures. The law does not say exactly what an “extraordinary physical impairment” is, so you
may be able to get a reduced sentence or dismissal even if you do not have AIDS, but TB or hepatitis instead.
J. Life After Imprisonment: Planning for Your Release
Chapter 35 of the JLM, “Getting Out Early: Conditional & Early Release,” contains information about
compassionate release and medical parole. If you have been diagnosed with an infectious disease, you should
read that Chapter carefully to see whether you might be eligible for either of these options.
If you are about to be paroled or released, you should get a confidential HIV test before leaving prison.
Getting a test can be more difficult or expensive outside of prison. If you do have HIV/AIDS or hepatitis, you
should continue to be careful to avoid infecting other people. Before release, you should also try to contact
local agencies and organizations for help transitioning from prison to community life. You can contact the
public health department in your area for free brochures. Appendix A lists other helpful agencies.
K. Conclusion
If you have AIDS, TB, hepatitis B or C, MRSA or another infectious disease, people may treat you
differently due to ignorance and fear. Protect yourself by becoming aware of the facts of the disease and
your legal rights. As a prisoner, you may find information and support is not always readily available.
But, many of the organizations in Appendix A of this Chapter work with prisoners and might help you.
177 . Before January 12, 2005, federal judges had to sentence according to the sentencing guidelines. The
guidelines allowed judges to impose lesser sentences if mitigating circumstances the Sentencing Commission had not
adequately considered when creating the guidelines existed. 18 U.S.C. § 3553(b) (2000). In January 2005, the Supreme
Court held the guidelines violated the 6th Amendment because they required judges to enhance sentences based on facts
not found by a jury beyond a reasonable doubt or admitted in a guilty plea. The federal sentencing guidelines are now
advisory instead of required. United States v. Booker, 543 U.S. 220, 245, 125 S. Ct. 738, 757, 160 L. Ed. 2d 621, 651
(2005). It is still unclear what this decision means for the way a serious illness affects a defendant’s sentence.
178. U.S. Sentencing Guidelines Manual, 18 U.S.C.S. Appx. § 5H1.4 (2006)
179. See United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995) (denying downward departure because
defendant’s HIV infection had not progressed into advanced AIDS and was not an “extraordinary physical impairment”);
United States v. Woody, 55 F.3d 1257, 1275 (7th Cir. 1995) (refusing downward departure because HIV-positive
defendant did not have full-blown AIDS); United States v. Rabins, 63 F.3d 721, 729 (8th Cir. 1995) (denying downward
departure because defendant’s AIDS had not become life-threatening; also holding that the defendant’s condition should
be assessed at the time of sentencing, regardless of the serious physical difficulties that may develop over the years).
180. United States v. Blarke, 7 F. Supp. 2d 192 (E.D.N.Y. 1998).
181. United States v. Blarke, 7 F. Supp. 2d 192, 212 (E.D.N.Y. 1998).
APPENDIX A
RESOURCES FOR INFORMATION, COUNSELING, AND SUPPORT

National AIDS Organizations Phone: (541) 607.5725
AIDS in Prison Project’s Hotline Fax: (541) 607-5684
Phone: (718) 378-7022 (in English, en Español) http://www.hcvinprison.org/
Hours: Tuesday, Wednesday, Thursday 3:00 pm to Education, advocacy and support for prisoners
8:00 pm Eastern. with hepatitis C and HIV co-infection.
HIV/AIDS hotline for prisoners. All collect calls
accepted. National Minority AIDS Counsel
Prison Initiative
Center for Disease Control National AIDS Hotline 1931 13th Street NW
(CDC-INFO) Washington, DC 20009-4432
Centers for Disease Control and Prevention, 1600 Phone: (202) 483-NMAC (6622)
Clifton Rd, Atlanta, GA 30333 Fax: (202) 483-1127, (202) 483-1135, (202) 483-
Phone: (800) CDC-INFO (232-4636) (24 hours, in 5387
English, en Español) www.nmac.org/index/prison-initiative
TTY (for callers with hearing impairments): (888) E-mail: [email protected]
232-6348 (24 hours) The Prison Initiative is a project of NMAC, which
helps community and faith-based organizations,
Center for Disease Control National Prevention correctional facilities and health departments
Information Network (CDC-NPIN) evaluate, improve and implement effective
Phone: (800) 458-5231 discharge planning for HIV positive prisoners and
TTY (for callers with hearing impairments): (800) former prisoners.
243-7012 (M-F 9am-8pm (ET))
National Native American AIDS Prevention
HIV/AIDS Treatment Information Service (ATIS) Center
P.O. Box 6303 720 S. Colorado Blvd., Suite 650-S
Rockville, MD 20849 Denver, CO 80246
Toll free: 1-800-448-0440 Phone: (720) 382-2244
www.hivatis.org Fax: (720) 382-2248
Free literature, including U.S. guidelines on HIV Automated fax info: 1-800-283-6880
treatment from the Department of Health and Hours: Monday–Friday 9:00 am to 5:00 pm
Human Services (DHHS). http://www.nnaapc.org/
E-mail: [email protected]
HIV/AIDS/HCV Education Project The National Native American AIDS Prevention
ACLU NATIONAL PRISONER PROJECT Center (NNAAPC) offers a variety of programs to
733 15th St. NW, Suite 620 help promote education about HIV/AIDS, support
Washington D.C. 20005 prevention efforts, and help foster healthy attitudes
http://www.aclu.org/hiv/index.html about sexuality and sexual health in the Native
Referrals to city and state programs nationwide. community.
Resource center, including free copies of PLAY IT
SAFER, a booklet on STIs (sexually transmitted AIDS Organizations in New York
infections), and HIV/AIDS magazines. AIDS Related Community Services
40 Sawmill River Road
National HCV Prison Coalition Hawthorne, NY 10523
Hepatitis C Awareness Project Phone: (914) 345-8888
Phyllis Beck, Director Fax: (915) 785 8299
PO Box 41803 Counseling, education, food, and pantry.
Eugene, OR 97404
American Foundation for AIDS Research primarily related to entitlements, housing,
120 Wall Street, 13th Floor immigration (including permanency planning),
New York, NY 10005-3902 and family law. It serves residents of Manhattan
Phone: (212) 806-1600 and the Bronx, and homeless people in all five
Toll-free: (800) 392-6327 boroughs. Collect calls are accepted.
Fax: (212) 806-1601
This group is a non-profit organization that Hispanic AIDS Forum, Inc.
supports AIDS research, HIV prevention, Manhattan Office:
treatment education, and the advocacy of AIDS- 213 West 35th Street, 12th Floor
related public policy. New York, NY 10010
Phone: (212) 868-6230 (in English, en Español)
Asian Pacific Islander Coalition on HIV/AIDS Fax: (212) 868-6237
400 Broadway
New York, NY 10013 Bronx Office:
Phone: (212) 334-7940 886 Westchester Avenue
(866) 274-2429 (Infoline) Bronx, NY 10459
Fax: (212) 334-7956 Phone: (718) 328-4188 (in English, en Español)
This group is a non-profit organization providing Fax: (718) 328-2888
HIV/AIDS-related services, education, and
research to Asian and Pacific Islander Queens Office:
Communities in New York City. Services include 6207 Woodside Avenue, 3rd Floor
HIV testing, STI screening and treatment, Woodside, NY 11377
acupuncture, and more. Phone: (718) 803-2766 (in English, en Español)
Fax: (718) 803-0321
Correctional Association of New York The Hispanic AIDS Forum is New York’s largest
2090 Adam Clayton Powell, Suite 200 Latino-run AIDS outreach organization. It has a
New York, NY 10027 bilingual staff and provides seminars, outreach
Phone: (212) 254-5700 programs, case management services, counseling
Fax: (212) 473-2807 and other support, and referrals to other
This organization provides advocacy, research, organizations.
information, and referral to prisoners and parolees
living with HIV. Latino Commission on AIDS
24 West 25th Street, 9th Floor
Gay Men’s Health Crisis New York, NY 10010
119 West 24th Street Phone: (212) 675-3288
New York, NY 10011-1913 Fax: (212) 675-3466
Phone: (212) 807-6655 A grass-roots organization working in
Toll free: (800) 243-7692 (Hotline) (in English, en collaboration with the AIDS in Prison Project.
Español) (Mon.–Fri. 10 a.m.–9 p.m.; Sat. 12 p.m.–
3 p.m.) Legal Action Center (LAC)
Assists prisoners with obtaining public benefits 225 Varick Street, 4th Floor
when on parole, and publishes a variety of New York, NY 10014
informational brochures. It provides legal services Phone: (212) 243-1313
to anyone who is HIV-positive. It also provides Toll-free: (800) 223-4044
referrals and serves women and children. Fax: (212) 675-0286
This organization provides legal services for ex-
HIV Law Project offenders with HIV, such as help with housing and
15 Maiden Lane, 18th Floor employment discrimination.
New York, NY 10038
Fax: (212) 577-3192
This organization provides legal advocacy.
However, it only deals with civil law cases, not
criminal law. It provides free civil legal services
New York AIDS Coalition (NYAC) AIDS Organizations in California
231 West 29th Street, #1002 San Francisco AIDS Foundation
New York, NY 10001 995 Market St, Ste 200
Phone: (212) 629-3075 San Francisco CA 94103
Brings together community-based HIV/AIDS Phone: (415) 487-3000
organizations and their supporters to work for Fax: (415) 487-3009
increased funding and fair policies for people http://www.sfaf.org
living with HIV/AIDS in New York State. Provides vital services and programs designed to
improve the quality of life for people living with
The Osborne Association AIDS in Prison Project HIV/AIDS and to reduce the number of new
809 Westchester Avenue infections that occur each year.
Bronx, NY 10455
Phone: (718) 842-0500 Center for Health Justice
Fax: (718) 842-0971 8235 Santa Monica Blvd, Suite 214
AIDS in Prison Project Hotline (718) 378-7022 West Hollywood, CA 90046
(T,W,R, 3–8 p.m.; collect calls accepted) Phone: (323) 822-3835
www.osborneny.org Fax: (323) 822-3831
Provides information, counseling, education, Email: [email protected]
placement in service organizations, and medical http://www.healthjustice.net
advocacy for New York prisoners. Provides HIV legal and education information
inside and outside correctional facilities.
Prisoners’ Rights Project of the Legal Aid Society
199 Water Street Project Inform’s National HIV/AIDS Treatment
New York, NY 10038 Hotline
Phone: (212) 577-3530 1375 Mission Street
Fax: (212) 509 8433 San Francisco, CA 94103
Provides services to prisoners only. It also helps Toll free: 1-866-HIV-INFO (448-4636)
prisoners in New York City and New York State Hours: Monday-Friday, 9 am-5 pm and Saturday
with medical concerns and brutality cases. 11 am-4 pm, Pacific Time.
Provides legal and educational information for
Prisoners Legal Services of New York (PLSNY) those with HIV/AIDS. Will mail out materials to
Central Intake prisoners and accepts collect calls from
114 Prospect St. correctional institutions.
Ithaca, NY 14850
(Due to the large number of inquiries, PLSNY does AIDS Project Los Angeles
not accept telephone calls from prisoners and their 611 South Kingsley Drive
family members). Los Angeles, CA 90005
PLSNY is a non-profit legal services organization Phone: (213) 201-1600, (213) 201-1500
providing civil legal services to indigent prisoners http://www.apla.org/
in New York State correctional facilities in cases
where no other counsel is available. AIDS Organizations in Illinois
Illinois AIDS Hotline
Women’s Prison Association Toll-free: (800) 243-2437
Reentry Unit Up-to-date information on HIV transmission, HIV
175 Remsen Street, 9th Floor counseling and testing sites. Offers information
Brooklyn, NY 11202 and support resources, risk reduction. Bilingual.
WPA Reentry Services include a full array of
prison, jail, and community-based assistance
aimed at helping women become full participants
in community life following incarceration or other
criminal justice involvement.
AIDS Organizations in Pennsylvania AIDS Foundation Houston
Lewisburg Prison Project 3202 Weslayan
P.O. Box 128 Houston, Texas 77027
Lewisburg, PA 17837-0128 Phone: (713) 623-6796
Phone: (570) 523-1104 Fax: (713) 623-4029
Non-profit organization that provides legal and www.aidshelp.org
other assistance to prisoners in Central Special Prison Initiative Program. Prevention
Pennsylvania for non-criminal issues. Counsels counseling, health education/risk reduction, HIV
and assists prisoners who encounter treatment prevention education, STI prevention education,
they perceive as illegal or unfair, including street outreach, peer education, case management
medical treatment. for HIV/AIDS, hepatitis education/counseling,
hotline/telephone counseling, peer counseling, food
Pennsylvania AIDS Hotline pantry, nutrition services, volunteer services,
Toll-free: (800) 662-6080 HOPWA, emergency financial assistance, clothing
Up-to-date information on HIV transmission, HIV assistance, housing programs.
counseling and testing sites. Offers information
and support resources, risk reduction. National Hepatitis B Organization
Hepatitis B Foundation
AIDS Organizations in Texas 3805 Old Easton Rd.
AIDS Arms Doylestown, PA 18902
219 Sunset, Suite #116-A Phone: (215) 489-4900
Dallas, Texas 75208 Hepatitis B Foundation provides information and
Phone: (214) 521-5191 support for people with Hepatitis B and supports
Fax: (214) 528-5879 research for a cure. It also offers online support
TDD: (214) 231-0151 groups.
www.aidsarms.org
Assists individuals in accessing the healthcare,
resources, and support necessary to successfully
manage the challenges of living with HIV/AIDS.
Assists prisoners in obtaining information
regarding HIV/AIDS and other STIs.
Urban League of Greater Dallas

4315 South Lancaster Road
Dallas, Texas 75216
Phone: (214) 915-4600
Fax: (214) 915-4601
www.dallasurbanleague.com
Referral for anonymous and confidential HIV
testing, prevention counseling, individual ongoing
counseling (not prevention counseling), health
education/risk reduction, HIV prevention
education, STI prevention education, street
outreach, peer education, HIV early intervention,
hepatitis education/counseling, TB testing,
substance abuse intervention, support groups, peer
counseling, financial education/entitlement
assistance, emergency financial assistance,
clothing assistance, computer technology training,
G.E.D. classes, employment programs, brochures,
videos.
Manual
Chapter 27:
Religious Freedom in Prison

8th Edition 2009
LEGAL DISCLAIMER
CHAPTER 27
RELIGIOUS FREEDOM IN PRISON*

A. Introduction
While in prison, you have the right to observe and practice the religion of your choice.1 The United States
Constitution as well as federal and state laws protect this right. This Chapter describes these protections and
explains how courts determine whether a prisoner’s right to religious freedom has been violated.
1. Constitutional Protections
The First Amendment to the Constitution provides the most basic protection of your right to religious
freedom. This Amendment states that “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.”2
The first part of the Amendment, known as the Establishment Clause, prohibits government officials from
establishing a religion. Generally, this means that the government is not allowed to start a church, to aid one
religion, to aid all religions, or to favor one religion over another.3
The second part of the First Amendment, known as the Free Exercise Clause, determines when and how
much the government can restrict your religious practices. Under the Free Exercise Clause, prison officials can
only impose restrictions on your exercise of religion “reasonably related” to legitimate prison goals.4 In other
words, if you are barred from performing a religious practice, the justification must reasonably relate to the
prison’s aims. These goals may include preventing crime, rehabilitating prisoners, and ensuring security.5
Both the Establishment Clause and Free Exercise Clause are part of the First Amendment, but courts
address these clauses separately, and this Chapter will also address them separately.
2. Statutory Protections
Laws passed by Congress and state governments provide additional protection of your religious freedom.
Depending on whether you are in a state or federal prison, different laws apply. If you are in a state prison, the
Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) protects your religious freedom;6 if
you are in a federal prison, the Religious Freedom Restoration Act of 1993 (RFRA) applies.7
Although RLUIPA and RFRA are two different laws, both use the same language to describe the religious
free exercise protections provided to prisoners.8 Therefore, if you are a federal prisoner (and, thus, protected by
RFRA), this Chapter’s discussion of RLUIPA will still help you figure out how strong your RFRA claims are.
Additionally, cases decided under either RLUIPA or RFRA will often be helpful to you in bringing claims,
regardless of whether you are in federal or state prison.9
* This Chapter was revised by Robert Schwimmer, based in part on previous versions by Shana L. Fulton, W. Kevin
Brinkley, Jeffra Becknell, Jennifer Eichholz, Betty A. Lee, Richard F. Storrow, and Jimmy Wu. Thanks to John Boston
for all of his work on this Chapter.
1. See Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1082–83, 31 L. Ed.2d 263, 268 (1972) (prisoners retain 1st
Amendment protections, including its directive that no law shall prohibit the free exercise of religion).
3. See Everson v. Bd. of Educ., 330 U.S. 1, 15, 67 S. Ct. 504, 511, 91 L. Ed. 711, 723 (1947) (“The ‘establishment of
religion’ clause of the 1st Amendment means at least this: Neither a state nor the Federal Government can set up a
church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”).
4. Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64, 79 (1987) (“[W]hen a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological
interests.”).
5. Pell v. Procunier, 417 U.S. 817, 822–23, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 501–02 (1974); Procunier v.
Martinez, 416 U.S. 396, 412, 94 S. Ct. 1800, 1810–11, 40 L. Ed. 2d 224, 239 (1974).
6. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc to cc-5. (2006).
7. Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to bb-4. (2006).
8. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1 (2006); Religious
Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to bb-4 (2006).
9. See, e.g., Fowler v. Crawford, 534 F.3d 931, 937–38 (8th Cir. 2008) (holding that a RFRA case “dictate[d] the
outcome” in the RLUIPA case before the court).
Some states have also enacted state-specific laws that further protect the religious freedom of state
prisoners; these laws are discussed in more detail in Part D of this Chapter.
3. Bringing a Religious Freedom Lawsuit
If you believe prison officials have violated your constitutional or statutory rights to religious freedom, and
you wish to bring a suit against them, you will first need to follow your institution’s administrative grievance
procedure.10 See JLM Chapter 15 for further information on inmate grievance procedures.
If you are unsuccessful or do not receive a favorable result through the grievance procedure, you can file
suit in federal court. Depending on which type of prison you are in, you will need to bring different claims: if
you are a state prisoner, you should bring a RLUIPA claim under 42 U.S.C. § 2000cc to cc-5 and a First
Amendment claim under 42 U.S.C. § 1983. If you are a federal prisoner, you should bring a RFRA claim
under 42 U.S.C. § 2000bb to bb-4 and a First Amendment claim in a Bivens action.11
Regardless of which claims you bring, when you draft your complaint, you should be sure to begin by
asserting a RLUIPA (or, if applicable, RFRA) claim, followed by a First Amendment claim. This is because it is
easier to meet the RLUIPA/RFRA standards than the First Amendment standards, and you are thus more
likely to receive relief under RLUIPA/RFRA than under the First Amendment.12
If you are a state prisoner, you can also file an action in a state court. If you are in a New York state prison,
you can either file an action in the Court of Claims, or you can file an Article 78 petition, depending on what
kind of relief you are seeking. More information on all of these types of cases can be found in Chapter 5
(Choosing a Court and a Lawsuit), Chapter 14 (Prison Litigation Reform Act), Chapter 16 (42 U.S.C. § 1983
and Bivens actions), Chapter 17 (Tort Actions), and Chapter 22 (Article 78 proceedings) of the JLM.
If you decide to pursue any claim in federal court, you MUST read JLM Chapter 14 on the Prison
Litigation Reform Act (PLRA). If you do not follow PLRA requirements, you can, among other things, lose your
good time and right to bring future claims in federal court without paying the full filing fee.
The next part of this Chapter discusses the First Amendment Establishment Clause. Part C discusses the
First Amendment Free Exercise Clause and RLUIPA/RFRA protections. Part D discusses your rights under
selected state statutes, while Part E considers recent developments in faith-based rehabilitation programs. The
Appendix lists some religious organizations that may provide you with additional support.
B. The First Amendment Establishment Clause
The Establishment Clause of the First Amendment states that “Congress shall make no law respecting an
establishment of religion.”13 This means that the government cannot form a church, aid any religion, prefer
any religion over another, or participate in any religious organization. 14 Prison officials violate the
10. See Cutter v. Wilkinson, 544 U.S. 709, 723 n.12, 125 S. Ct. 2113, 2123 n.12, 161 L. Ed. 2d 1020, 1035 n.12
(2005) (“[A] prisoner may not sue under RLUIPA without first exhausting all available administrative remedies.”). A
federal magistrate judge recently emphasized this point in a case brought by 10 Native American prisoners: in Sacred
Feather v. Merrill, the prisoners argued prison officials had violated their 1st Amendment and RLUIPA right to religious
freedom by limiting access to sweat lodges, powwows and ceremonial food and music. The judge recommended this suit
be dismissed because the prisoners had not exhausted the prison’s grievance procedures. In reaching this conclusion, the
judge first rejected the prisoners’ argument that the law requiring exhaustion of procedures, 42 U.S.C. § 1997e(a), does
not apply to 1st Amendment religious freedom claims. The judge then cited the Supreme Court’s decision in Cutter v.
Wilkinson that a prisoner must exhaust all administrative procedures before bringing a lawsuit under RLUIPA. See
Sacred Feather v. Merrill, No. 07-18 B, 2008 U.S. Dist. LEXIS 47543, at *9–10 (D. Me. June 19, 2008) (unpublished).
11. A Bivens action allows prisoners to sue federal officials for constitutional violations. See JLM Chapter 16,
“Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief From Violations of Federal Law,” for a detailed discussion;
see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72, 122 S. Ct. 515, 522, 151 L. Ed. 2d 456, 467 (2001).
12. See Shakur v. Schriro, 514 F.3d 878, 888 (9th Cir. 2008) (“RLUIPA ... mandates a stricter standard of review
for prison regulations that burden the free exercise of religion than the reasonableness standard [used to review
regulations under the 1st Amendment].”); see also Smith v. Allen, 502 F.3d 1255, 1266, 21 Fla. L. Weekly Fed. C. 54
(11th Cir. 2007) (noting RLUIPA affords a “heightened protection from government-imposed burdens” than the 1st
Amendment); Desimone v. Bartow, No. 08-C-638, 2008 U.S. Dist. LEXIS 64419, at *11 (E.D. Wis. Aug 12, 2008)
(unpublished) (noting “RLUIPA provides more expansive protection [than the 1st Amendment], prohibiting institutions
that receive federal funding from substantially burdening an inmate’s exercise of religion, even by a rule of general
applicability, unless that burden is the least restrictive means of furthering a compelling governmental interest.”).
14. See Kerr v. Farrey, 95 F.3d 472, 479–80 (7th Cir. 1996) (finding a violation of the Establishment Clause where
plaintiff had been required to attend a substance abuse counseling program with explicit religious content while in
prison and where the only option available to the prisoner was religious in nature).
Establishment Clause if they give special treatment to certain religious groups. For example, if prison officials
were to set up a church within the prison and then force prisoners to attend religious services, that would
violate the Establishment Clause.15
In order for your Establishment Clause claim to succeed, you will first need to prove that there was
government action, sometimes called state action. The Supreme Court has held that “state action may be
found if, though only if, there is such a close nexus between the State and the challenged action that
seemingly private behavior may be fairly treated as that of the State itself.”16
Generally, courts will consider actions by prison officials and private groups acting under the authority
of prison officials to be government action.17 For example, in 2007, the Court of Appeals for the Seventh
Circuit held that when a department of corrections gave private religious organizations the power to
incarcerate, treat, and discipline prisoners, as well as access to facilities and substantial aid to effectuate a
faith-based program, the religious organizations could be said to be state actors.18
Unauthorized actions by individuals, however, may be less likely to constitute state action. For example,
one federal appeals court held that there was no government action when a prison officer who was also a
Christian minister brought a bible to work and put it in the prisoners’ view, sang Christian songs, debated
and discussed religion with prisoners, and tried to convert prisoners to Christianity. The court found no
Establishment Clause violation because the jail had not approved these actions, had trained its staff to avoid
such conduct, and transferred the officer when the plaintiff complained.19
Once you have shown that the practice or regulation you are challenging constitutes government action,
you will need to prove that this action violated the Establishment Clause. To determine whether a prison
regulation or practice violates the Establishment Clause, courts have used different tests,20 including the Lee
coercion test21 and the Lemon test.22 While some courts have combined these tests,23 the Supreme Court has
yet to rule that either of these tests represents the sole constitutional standard.24 So you should try to argue in
your complaint the challenged prison regulation or practice fails under any of the Establishment Clause tests.
15. See Campbell v. Cauthron, 623 F.2d 503, 509 (8th Cir. 1980) (holding that allowing religious volunteers into a
cell block was not a state establishment of religion, but that prison officials were required to make sure that no prisoners
were subjected to forced religious indoctrination).
16. Brentwood Acad. v. Tenn. Sec. Sch. Athletic Ass’n, 531 U.S. 288, 295, 121 S. Ct. 924, 930, 148 L. Ed. 2d 807,
817 (2001).
17. See Monroe v. Pape, 365 U.S. 167, 184, 81 S. Ct. 473, 482, 5 L. Ed.2d 492, 503 (1961) (holding Constitutional
violations committed by state officers in performance of their duties were committed “under color of” state law, and
rejecting the argument “that ‘under color of’ state law included only action taken by officials pursuant to state law”).
18. Americans United for Separation of Church and State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 422–
23 (8th Cir. 2007).
19. Canell v. Lightner, 143 F.3d 1210, 1214 (9th Cir. 1998).
20. See Ross v. Keelings, 2 F. Supp. 2d 810, 816–18 (E.D. Va. 1998) (discussing the different standards courts use).
21. See Warner v. County Dep’t of Probation, 115 F.3d 1068, 1074–75 (2d Cir. 1997) (applying the coercion test to
determine whether a probation practice violates the Establishment Clause); Warburton v. Underwood, 2 F. Supp. 2d.
306, 318 (W.D. N.Y. 1998) (applying the coercion test to determine whether a prison rehabilitative program violates the
Establishment Clause and holding that while proof of government coercion is not necessary to prove an Establishment
Clause violation, it is sufficient).
22. See Kaufman v. McCaughtry, 419 F.3d 678, 683–84 (7th Cir. 2005) (applying the Lemon test to determine
whether a prison practice violates the Establishment Clause); Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 985 (8th Cir.
2004) (applying the Lemon test to determine whether a prison practice violates the Establishment Clause); see also Gray
v. Johnson, 436 F. Supp. 2d 795, 800 n.4 (W.D. Va. 2006) (“When deciding similar cases, the Second Circuit, the Seventh
Circuit, and the Eastern District of Virginia have opted to apply a more basic coercion test in lieu of Lemon. These courts
have simply examined whether the challenged program accomplished coerced religious participation, finding each time
that the program did.”).
23. See, e.g., Gray v. Johnson, 436 F. Supp. 2d 795, 800 n.4 (W.D. Va. 2006) (explaining how the coercion and
endorsement tests fall within the second prong of the Lemon test).
24. See Van Orden v. Perry, 545 U.S. 677, 685–86, 125 S. Ct. 2854, 2860–61,162 L. Ed. 2d 607, 615–16 (2005)
(explaining that many cases have either not relied on the Lemon test or applied it only after concluding that a regulation
was invalid under a different 1st Amendment Establishment test); see also Lynch v. Donnelly, 465 U.S. 668, 679, 104 S.
Ct. 1355, 1362, 79 L. Ed. 2d 604, 613 (1984) (“[W]e have repeatedly emphasized our unwillingness to be confined to any
single test or criterion in this sensitive area.”); County of Allegheny, 492 U.S. 594, 595, 109 S. Ct. 3086, 3102, 106 L.E.
2d 472, 496 (1989) (“Every government practice must be judged in its unique circumstances to determine whether it
[endorses] religion.”); Lee v. Weisman, 505 U.S. 577, 597, 112 S. Ct. 2649, 2661, 120 L. Ed. 2d 467, 487 (1992)
(explaining that Establishment Clause jurisprudence “remains a delicate and fact-sensitive one”).
1. The Lee Coercion Test
To determine whether a prison regulation or practice violates the First Amendment Establishment Clause,
a court may ask whether it amounts to “coercion” and thereby fails the Lee v. Weisman coercion test.25 In Lee,
the U.S. Supreme Court announced that “at a minimum, the Constitution guarantees that the government
may not coerce anyone to support or participate in a religion or its exercise....”26 Applying this rule, the Court
held that a policy permitting public schools to invite clergy members to say prayers at graduation ceremonies
was unconstitutional because it amounted to coerced participation in religion.27
Although Lee dealt with religious freedom in the school context, other lower courts have held that a
showing of coercion alone, without more, may be sufficient to prove an Establishment Clause violation in the
prison or probation context.28
For instance, in Kerr v. Farrey,29 a prisoner brought a federal civil rights claim against state corrections
officials. The prisoner alleged that the officials required him to attend religious-based Narcotics Anonymous
meetings as part of his rehabilitation.30 The federal court of appeals applied the Lee coercion rule by asking
three questions: (1) whether the state acted; (2) whether the action was coercive or forceful; and (3) whether
the object of the coercion was religious or secular. The prison failed all three questions because the state had
acted (through the prison officials) by forcing the prisoner to participate in the Narcotics Anonymous meeting,
which contained a religious element.31 The penalty for not attending the meetings was a higher security risk
classification and negative effects on the prisoner’s parole eligibility. Therefore, the court found that the prison
had violated the Establishment Clause.32
A similar conclusion was reached in Warner v. Orange County Department of Probation. There, the Second
Circuit Court of Appeals concluded that because the department of probation had required a prisoner to attend
a religious Alcoholics Anonymous program as a condition of probation, it “plainly constituted coerced
participation in religious exercise” and thus violated the Establishment Clause.33
2. The Lemon Test
If you are unable to show that the prison regulation or practice amounted to coercion, your suit may still
prevail under the Lemon test.34 This test, which comes from the U.S. Supreme Court’s decision in Lemon v.
Kurtzman,35 is a “central tool” in the court’s analysis of Establishment Clause cases36 and is frequently cited;
so, you should be prepared to argue the regulation about which you are complaining fails the Lemon test.
25. Ross v. Keelings, 2 F. Supp. 2d 810, 817 (E.D. Va. 1998) (interpreting Lee, and holding prison officials violated
the Establishment Clause by forcing a prisoner to attend a drug rehabilitation program that included a religious study
component).
26. Lee v. Weisman, 505 U.S. 577, 578, 112 S. Ct. 2649, 2655, 120 L. Ed. 2d 467, 480 (1992).
27. Lee v. Weisman, 505 U.S. 577, 578, 112 S. Ct. 2649, 2655, 120 L. Ed. 2d 467, 480 (1992).
28. See Warburton v. Underwood, 2 F. Supp. 2d. 306, 318 (W.D.N.Y. 1998) (holding proof of government coercion is
sufficient but not necessary to prove an Establishment Clause violation).
29. Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996).
30. For a more detailed discussion of faith-based addiction treatment options, see Part E of this Chapter.
31. Kerr v. Farrey, 95 F.3d 472, 476–81 (7th Cir. 1996); see also Warner v. Orange County Dep’t of Prob., 115 F.3d
1068, 1074–75 (2d Cir. 1997) (holding that the a county probation department could be held liable for violating the
Establishment Clause by requiring a probationer to attend Alcoholics Anonymous meetings that contained religious
content); Ross v. Keelings, 2 F. Supp. 2d 810 (E.D. Va. 1998) (discussed above).
32. Kerr v. Farrey, 95 F.3d 472, 481 (7th Cir. 1996); but see Quigg v. Armstrong, 106 F. App’x 555, 556 (9th Cir.
2004) (holding that a privately-run pre-release program that served as an alternative to prison was free to offer religion-
based treatment without providing nonreligious alternatives).
33. Warner v. Orange County Dep’t of Probation, 115 F.3d 1068, 1076 n.8 (1996).
34. See Alexander v. Schenk, 118 F. Supp. 2d 298, 301 (N.D.N.Y. 2000) (“In cases not involving coercion courts are
required to examine whether practice” satisfies the Lemon test).
35. Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971) (finding that the state cannot give
direct aid to parochial schools), noted in Zelman v. Simmons-Harris, 536 U.S. 639, 668–70, 122 S. Ct. 2460, 2476, 153 L.
Ed. 2d 604, 627–28 (2002). While the Lemon test has not been used recently by the Supreme Court, and some authors
have suggested that the Supreme Court may abandon it, as recently as 2005, the Supreme Court affirmed a district
court judge’s use of the first factor of the test, and refused to abandon the “purpose” factor despite urging from the
opposing party. McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 846, 125 S. Ct. 2722, 2733, 162
L. Ed.2d 729, 746 (2005).
36. See Zelman v. Simmons-Harris, 536 U.S. 639, 668, 122 S. Ct. 2460, 2476, 153 L. Ed. 2d 604, 627 (2002)
(describing the Lemon test as a “central tool in our analysis of cases in this area”) (O’Connor, J., concurring).
In order to demonstrate a violation of the Establishment Clause under the Lemon test, you must show one
or more of the following.
(1) The regulation has a non-secular legislative purpose (i.e., a religious purpose);
(2) Its “primary effect” is to advance or inhibit religion; or
(3) It fosters “excessive government entanglement with religion.”37
This means that under Lemon, a court will uphold a prison regulation or practice if (1) it has a secular
(non-religious) legislative purpose; (2) its primary effect neither advances nor inhibits religion, and (3) it
does not foster “an excessive government entanglement with religion.”
In assessing the first criterion—the purpose of the challenged practice—a court may be more likely to find
a prison regulation or practice has a non-religious purpose if it allows for airing more than one religious view.
For example, in Murphy v. Missouri Department of Corrections,38 the Eighth Circuit Court of Appeals found
prison officials who allowed a “broad spectrum” of religious programming to be shown on prison television, but
refused to show programs of an individual prisoner’s religious group, had not violated the Establishment
Clause because (1) the purpose of the programming was to allow for a “large range of religious messages” to be
aired and (2) the primary effect was to promote religious exercise, and did not inhibit the prisoner’s religion.39
Similarly, in Gray v. Johnson,40 a district court found that a prison rehabilitative program that involved
some discussion of religion at mandatory meetings and offered both secular and religious library materials did
not amount to a violation of the Establishment clause, even if participants had sung a gospel song at a talent
show and preached religion outside of the program.41
In contrast, in Kaufman v. McCaughtry,42 the Court of Appeals for the Seventh Circuit found that the first
criterion of Lemon had not been met, since there was no evidence that a prison’s refusal to allow prisoners to
organize an atheist study group had a non-religious purpose. Because the prison had failed to show why such a
gathering would pose a greater security risk than meetings of prisoners of other faiths, the court held that the
prison’s refusal to allow such a gathering was potentially unconstitutional. 43
In assessing the second and third parts of the Lemon test (which some courts have treated as a single
inquiry),44 courts have looked to whether the challenged practice either endorses or disapproves of religion.45
To summarize: to bring a successful First Amendment Establishment Claim, you should be able to show
(1) The practice or regulation that you are challenging is a government action;
(2) The practice or regulation has the effect of coercing you to practice religion and thus fails the Lee
coercion test, and
(3) Even if there is no coercion, the practice or regulation fails the Lemon test because it either (a) has a
religious purpose; (b) endorses, advances, or inhibits a religion; or (c) constitutes an excessive
government entanglement with religion.
37. Lemon v. Kurtzman, 403 U.S. 602, 612–13, 91 S. Ct. 2105, 2111, 29 L. Ed. 2d 745, 755 (1971) (finding that the
state cannot give direct aid to parochial schools), noted in Zelman v. Simmons-Harris, 536 U.S. 639, 668–70, 122 S. Ct.
2460, 2476, 153 L. Ed. 2d 604, 627–28 (2002).
38. Murphy v. Mo. Dep’t of Corrections, 372 F.3d 979, 985 (8th Cir. 2004).
39. Murphy v. Mo. Dep’t of Corrections, 372 F.3d 979, 985 (8th Cir. 2004).
40. Gray v. Johnson, 436 F. Supp. 2d 795, 799 n.4 (W.D. Va. 2006).
41. Gray v. Johnson, 436 F. Supp. 2d 795, 799 n.4 (W.D. Va. 2006).
42. Kaufman v. McCaughtry, 419 F.3d 678, 684 (7th Cir. 2005).
43. Kaufman v. McCaughtry, 419 F.3d 678, 684 (7th Cir. 2005).
44. See Bader v. Wren, 532 F. Supp. 2d 308, 313 (D N.H. 2008) (“The second and third questions have been fused
into one, because the same evidence often answers both questions.”); see also Zelman v. Simmons-Harris, 536 U.S. 639,
668–69, 122 S. Ct. 2460, 2476, 153 L. Ed. 2d 604, 627 (2002) (“[T]he degree of entanglement has implications for whether
a statute advances or inhibits religion.”); Agostini v. Felton, 521 U.S. 203, 232, 117 S. Ct. 1997, 2015, 138 L. Ed. 2d 391,
420 (1997) (combining excessive entanglement into the effects inquiry).
45. Lynch v. Donnelly, 465 U.S. 668, 690, 104 S. Ct. 1355, 1358, 79 L. Ed. 2d 604, 621 (1984) (O’Connor, J.,
concurring) (“The effect prong asks whether, irrespective of the government’s actual purpose, the practice under review
in fact conveys a message of endorsement or disapproval. An affirmative answer ... should render the challenged practice
invalid.”).
C. The First Amendment Free Exercise Clause, the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), and the Religious Freedom Restoration Act
(RFRA)
This section discusses your religious freedom rights under the First Amendment Free Exercise Clause and
RLUIPA/RFRA.46 Although this section describes the First Amendment Free Exercise Clause first, it is VERY
important that when drafting a complaint, you first state a claim for relief under RLUIPA/RFRA.
RLUIPA/RFRA standards are easier to meet than the First Amendment standards, and thus, you are more
likely to receive relief under RLUIPA/RFRA than under the First Amendment.47 After you make this claim,
you may then make an additional First Amendment claim.
1. First Amendment Free Exercise Clause
Under the Free Exercise Clause of the First Amendment, 48 prison officials must provide you with a
“reasonable opportunity” to exercise your right to religious freedom without fear of penalty.”49
However, in certain circumstances, prison officials may restrict this right to exercise or practice your
religious beliefs.50 Specifically, a prison may lawfully impose rules or regulations that interfere with your
sincerely held religious beliefs, provided that these rules or regulations are reasonably related to a legitimate
purpose or goal of the prison (a “legitimate penological purpose or goal.”).51 These legitimate goals may include
maintaining prison order, discipline, safety, and security.52
So, in order to successfully challenge a prison regulation or practice under the Free Exercise Clause, you
must be able to show that:
(1) Your belief is religious in nature;53
(2) Your belief is sincerely held; and
(3) The prison regulation is not reasonably related to a legitimate penological purpose or goal.54
The answer to the first two questions must be “yes” before a court will consider whether the regulation is
reasonably related to a legitimate purpose or goal. 55 The following discussion looks at each of these
requirements in more detail.
(a) Religious Nature of Your Beliefs
The court will first decide whether your beliefs are religious. 56 The First Amendment only protects
religious beliefs; therefore, if the court determines that your beliefs are simply moral or philosophical, it will
not find any violation of the Free Exercise Clause.57
46. RLUIPA and RFRA provide the same protection; the main difference is that RLUIPA applies to state and
municipal prisoners, while RFRA applies to federal prisoners. See Cutter v. Wilkinson, 544 U.S. 709, 715, 715 n.2, 125 S.
Ct. 2113, 2118, 2118 n.2, 161 L. Ed. 2d 1020, 1030, 1030 n.2 (2005) (noting that courts have appeals have held that
RFRA remains operative on the federal government and explaining that RLUIPA targets state and local governments).
regulations under the 1st Amendment.”).
49. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1082, 31 L. Ed. 2d 263, 268 (1972).
50. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 353, 107 S. Ct. 2400, 2407, 96 L. Ed. 2d 282, 293 (1987)
(restricting prisoners who were on work detail from participating in Jumu’ah did not violate the Constitution because it
was reasonably related to legitimate penological objectives).
51. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 349–50, 107 S. Ct. 2400, 2404–05, 96 L. Ed. 2d 282, 290 (1987),
noted in Washington v. Harper, 494 U.S. 210, 223, 110 S. Ct. 1028, 1037, 108 L. Ed. 2d 178, 199 (1990).
52. See Pell v. Procunier; 417 U.S. 817, 822–23, 94 S. Ct. 2800, 2804 (1974); Procunier v. Martinez, 416 U.S. 396,
412, 94 S. Ct. 1800, 1810–11, 40 L. Ed. 2d 224, 239 (1974).
53. See Wisconsin v. Yoder, 406 U.S. 205, 207, 92 S. Ct. 1526, 1529, 32 L. Ed. 2d 15, 20 (1972) (preliminary
determination of whether the Amish beliefs of Amish parents were religious and sincere enough to challenge a state law
that required school attendance for their children).
54. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 350, 107 S. Ct. 2400, 2405, 96 L. Ed. 2d 282, 291 (1987).
55. See Murphy v. Miss. Dep’t of Corrections, 372 F.3d 979, 983 (8th Cir. 2004) (“In analyzing a [1st Amendment
Free Exercise Claim], we consider first the threshold issue of whether the challenged governmental action ‘infringes
upon a sincerely held religious belief,’ and then apply the Turner factors to determine if the regulation restricting the
religious practice is ‘reasonably related to legitimate penological objectives.’” (citations omitted)).
56. See Wisconsin v. Yoder, 406 U.S. 205, 216, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15, 25 (1972) (preliminary
While this rule is fairly clear, courts have had difficulty defining what exactly constitutes a religious
belief.58 The Supreme Court has cautioned that “[t]he determination of what is a ‘religious’ belief or practice is
more often than not a difficult and delicate task,”59 and has not yet authoritatively or comprehensively defined
“religion.”60 Without a fixed definition, courts have adopted various approaches.
For example, the Third Circuit has adopted an objective test to determine whether a belief is religious. In
Africa v. Pennsylvania,61 the court identified three factors that help distinguish a religion:
First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable
matters. Second, a religion is comprehensive in nature: it consists of a belief-system as opposed to an isolated
teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.62
In contrast, the Second Circuit has adopted a more subjective test, one that looks not to the external
features of the belief system, but towards the “individual’s inward attitudes towards a particular belief
system.” 63 In Patrick v. LeFevre, 64 the court described religion as: “the feelings, acts, and experiences of
individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they
may consider the divine.”65 Thus, courts in the Second Circuit will probably look to “whether [your] beliefs ...
are, in [your] own scheme of things, religious.”66
These tests are not the only ones used in state or federal courts, so be sure to research the law in your state
or federal circuit. Though predicting whether a particular court will recognize a particular religion is hard, you
should be aware of some guideposts when assessing whether a court will determine that your belief is religious.
First, the U.S. Supreme Court has stated that the main consideration in deciding whether beliefs are
religious is whether the beliefs play the role of a religion in the life of the person making the claim.67 Second,
the Supreme Court has emphasized that “religious beliefs need not be acceptable, logical, consistent, or
comprehensible to others in order to merit First Amendment protection.”68 Likewise, your religion does not
determination of whether the Amish beliefs of Amish parents were religious and sincere enough to challenge a state law
that required school attendance for their children).
57. See Wisconsin v. Yoder, 406 U.S. 205, 215–16, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15, 25 (1972).
58. See, e.g., Cloutier v. Costco Wholesale, 311 F. Supp. 2d 190, 196 (D. Mass. 2004) (“[C]ourts are poor arbiters of
questions regarding what is religious and what is not.”).
59. Thomas v. Review Bd., 450 U.S. 707, 714, 101 S. Ct. 1425, 1430, 67 L. Ed. 2d 624, 631 (1981).
60. See Scott C. Idleman, The Underlying Causes of Divergent First Amendment Interpretations, 27 Miss. C. L.
Rev. 65, 71–79 (2008).
61. Africa v. Pennsylvania, 662 F.2d 1025 (3d Cir. 1981).
62. Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981) (emphasis added) (citing Malnak v. Yogi, 592 F.2d
197, 207–10 (3d Cir. 1979)). In Africa, the court held that although members of the MOVE organization, a “revolutionary
organization absolutely opposed to all that is wrong,” held sincere beliefs, these beliefs did not amount to a religion based on
the factors listed above. Africa v. Pennsylvania, 662 F.2d 1025, 1026 (3d Cir. 1981).
63. Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984).
64. Patrick v. LeFevre, 745 F.2d 153, 158 (2d Cir. 1984) (quoting W. James, The Varieties of Religious Experience
31 (1910)). This definition is similar to the Supreme Court’s description of religious belief as one “based upon a power or
being, or upon a faith, to which all else is ultimately dependent.” United States v. Seeger, 380 U.S. 163, 176, 85 S. Ct.
850, 859, 13 L. Ed.2d 733, 743 (1965); accord, Welsh v. United States, 398 U.S. 333, 339–40, 90 S. Ct. 1792, 1796, 26 L.
Ed.2d 308 (1970).
65. Patrick v. LeFevre, 745 F.2d 153, 158 (2d Cir. 1984) (quoting W. James, The Varieties of Religious Experience
31 (1910)). This definition is similar to the Supreme Court’s description of religious belief as one “based upon a power or
being, or upon a faith, to which all else is ultimately dependent.” United States v. Seeger, 380 U.S. 163, 176, 85 S. Ct.
850, 13 L. Ed. 2d 733 (1965); accord, Welsh v. United States, 398 U.S. 333, 339–40, 90 S. Ct. 1792, 1796, 26 L. Ed. 2d
308, 317 (1970).
66. Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999) (quoting Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.
1984); United States v. Seeger, 380 U.S. 163, 185, 85 S. Ct. 850, 863, 13 L. Ed. 2d 733, 747 (1965)) (emphasis in Jackson).
67. See U.S. v. Seeger, 380 U.S. 163, 185, 85 S. Ct. 850, 863, 13 L. Ed. 2d 733, 747 (1965) (“[C]ourts are not free to
reject beliefs because they consider them ‘incomprehensible.’ Their task is to decide whether the beliefs professed by a[n
inmate] are sincerely held and whether they are, in his own scheme of things, religious.”).
68. Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 714, 101 S. Ct. 1425, 1430, 67 L. Ed. 2d 624,
631 (1981).
need to be organized like traditional churches,69 conform to an established doctrine,70 or otherwise meet any
other organizational or doctrinal test.71
For example, a federal district court recently held that a prisoner who had invented his own religion had a
potentially valid claim under the First Amendment and RLUIPA.72 In Desimone v. Bartow, the prisoner argued
that prison officials had violated his right to free exercise of religion when they prohibited him from
maintaining journals written in a language that he invented. The prisoner asserted that he believed that
biblical scripture commanded him to write in this language and that the act of writing was itself a religious
act. Accepting this argument, the court allowed the suit to proceed, finding that the prisoner had set forth
cognizable claims under both the First Amendment and RLUIPA.73
Note, however, that although courts say that religions other than the major religions are entitled to First
Amendment protection,74 you may encounter greater difficulty if your religion is not well-known.
(b) Sincerity of Your Beliefs
If the court determines your belief is religious, it will next consider whether your belief is sincerely held.75
Prison officials and courts may demand you demonstrate sincerity, a deep commitment to your religion.76
In making this decision, courts are not supposed to judge whether your beliefs are “accurate or logical,”77
and are usually unwilling to rule on any belief set’s correctness.78 Thus, a court may still find your belief
sincerely held, even if the clergy says you are not a member of the religion.79 Indeed, “clergy opinion has
generally been deemed insufficient to override a prisoner’s sincerely held religious belief.”80
Instead, courts will look to factors including your familiarity with your faith’s teachings, your
demonstrated observance of its rules,81 and the length of time that you have practiced these religious beliefs.82
69. See Marria v. Broaddus, No. 97 Civ. 8297, 2003 U.S. Dist. LEXIS 13329, at *26–29 (S.D.N.Y. July 31, 2003)
(unpublished) (finding the prisoner’s beliefs as a member of the Nation of Gods and Earths to be sincere and religious).
70. See Sequoyah v. Tenn. Valley Auth., 620 F.2d 1159, 1163 (6th Cir. 1980).
71. See Sequoyah v. Tenn. Valley Auth., 620 F.2d 1159, 1163 (6th Cir. 1980) (finding that despite having “no written
creeds and no man-made houses of worship ... [t]he Cherokees have a religion within the meaning of the Constitution ...”).
72 . Desimone v. Bartow, No. 08-C-638, 2008 U.S. Dist. LEXIS 64419, at *13 (E.D. Wis. Aug. 12, 2008)
(unpublished) (holding that a prisoner who had created his own religion, which he refers to as the “Religious Society of
Atlantis and the Sanctuary of the Yahweh” had a potentially valid claim under the 1st Amendment and RLUIPA).
73 . Desimone v. Bartow, No. 08-C-638, 2008 U.S. Dist. LEXIS 64419, at *13 (E.D. Wis. Aug. 12, 2008)
(unpublished).
74. See Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3d Cir. 1981).
75. See generally Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972) (holding Amish children
could be exempted from required high school attendance because formal education beyond eighth grade violated sincerely
held Amish religious beliefs).
76. See United States v. Seeger, 380 U.S. 163, 185, 85 S. Ct. 850, 863, 13 L. Ed. 2d 733, 747 (1965) (stating that part
of the test for whether conscientious objector’s religious belief is within exemption from service in armed forces is whether
the religious belief is sincerely held).
77. Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999) (quoting Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir. 1996)).
78. See Presbyterian Church in United States v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S.
440, 451–52, 89 S. Ct. 601, 607, 21 L. Ed. 2d 658, 666–67 (1969) (finding religious issues should not be submitted to a court
for determination as this would destroy separation of church and state doctrine); see also Bear v. Nix, 977 F.2d 1291, 1294
(8th Cir. 1992) (holding that “the decision of the Native American consultant as to Bear’s eligibility to practice NAR [Native
American religion]” is an “application of religious doctrine ... beyond the constitutional power of the civil courts to review”).
79. See Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999) (requiring the prison to serve Kosher food to a prisoner
who professed Judaism despite Jewish chaplain’s claim that the prisoner was not “‘in fact Jewish’ according to the
‘practice of the Jewish religion’”).
80. Koger v. Bryan, 523 F.3d 789, 799–800 (7th Cir. 2008) (citing Ford v. McGinnis, 352 F.3d 582, 593–94 (2d
Cir.2003)) (holding that the role the Eid ul Fitr feast played in a prisoner's practice of Islam was determinative of
whether there had been a substantial burden, and not the testimony of Muslim clerics as to the proper celebration of the
feast); Jackson v. Mann, 196 F.3d 316, 320–21 (2d Cir.1999) (holding that it was the sincerity of a prisoner's beliefs, and
not the decision of Jewish religious authorities, that determined whether the prisoner was an adherent of Judaism
entitled to a kosher meal); Frazee v. Ill. Dep't of Employment Sec., 489 U.S. 829, 834, 109 S. Ct. 1514, 1517, 103 L. Ed.
2d 914, 920 (1989) (holding that in the context of a denial of unemployment benefits, the plaintiff's refusal, based on his
Christianity, to work on Sundays was entitled to protection even though “there are assorted Christian denominations
that do not profess to be compelled by their religion to refuse Sunday work”).
81. See Robinson v. Foti, 527 F. Supp. 1111, 1113 (E.D. La. 1981) (ruling a Rastafarian’s beliefs not sincere, since
he failed to demonstrate familiarity with Rastafarian practice, history, or teachings); see also Reed v. Faulkner, 842 F.2d
960, 963 (7th Cir. 1988) (“Evidence of nonobservance is relevant on the question of sincerity” but is not conclusive.).
Evidence that you have practiced a particular religious belief throughout your life, participated in religious
ceremonies when possible, or otherwise restricted your behavior in order to comply with religious requirements
can help to establish the sincerity of your religious beliefs.83
(c) The Validity of Prison Rules and Regulations
If the court decides your belief is religious and sincerely held, it will then apply the Turner v. Safley test to
the prison regulation or practice that you are challenging.84 This test asks whether a prison regulation “is
reasonably related to legitimate penological interests.”85 Specifically, under Turner, a court will consider the
following four factors:
(1) Whether there is “a valid, rational connection between the prison regulation and the legitimate
governmental interest put forward to justify it”;
(2) Whether there are other ways of exercising the right despite the regulation;
(3) If, by allowing you to exercise your right, there will be a “ripple effect” on others such as prison
personnel, other prisoners, and on the allocation of prison resources; and
(4) Whether there is an easier way for the prison to meet the regulation’s goal without limiting your
right in this way.86
When evaluating the first factor, courts have deferred to prison officials’ judgment87 and found that prison
security is a legitimate government interest.88 This means courts are not likely to second guess the reasons
prison officials give for prison regulations. For example, a federal court of appeals used the Turner test to
decide prison officials could prohibit religious items like a bear tooth necklace and a medicine bag in cells to
protect the safety of other prisoners, prison security, and the prisoner himself.89
Keep in mind that for the fourth factor, you will need to prove alternate methods of accommodating your
religious practice are impossible; it is not the prison’s burden to make this showing. If the regulation
satisfies all four factors, then the court will most likely find the regulation is reasonable and constitutional.90
2. RLUIPA and RFRA
In addition to the First Amendment protections described above, your right to religious freedom is also
protected by federal laws. If you are in state prison, your right is protected by a law called the Religious
Land Use and Institutionalized Persons Act of 2000 (RLUIPA).91 If you are in federal prison, your right is
protected by a law called the Religious Freedom Restoration Act (RFRA).92
82. See, e.g., Iron Eyes v. Henry, 907 F.2d 810, 813 (8th Cir. 1990) (finding that a prisoner’s belief was sincerely
held when the prisoner had practiced Sioux religious beliefs throughout his life).
83. See, e.g., Iron Eyes v. Henry, 907 F.2d 810, 813 (8th Cir. 1990) (finding that a prisoner’s belief was sincerely
held when the prisoner had practiced Sioux religious beliefs throughout his life).
85. Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64, 79 (1987) (finding a prison’s mail
regulations constitutional, but the prison’s regulations on prisoner marriages unconstitutional).
86. Turner v. Safley, 482 U.S. 78, 89–90, 107 S. Ct. 2254, 2261–62, 96 L. Ed. 2d 64, 79–80 (1987).
87. See Thornburgh v. Abbott, 490 U.S. 401, 407–08, 109 S. Ct. 1874, 1879, 104 L. Ed. 2d 459, 469 (1989); see also
Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005) (“Courts generally afford great deference to prison policies,
regulations, and practices relating to the preservation of these interests.”).
88. Pell v. Procunier, 417 U.S. 817, 822–23, 94 S. Ct. 2800, 2804 (1974).
89. Friend v. Kolodzieczak, 965 F.2d 682, 684 (9th Cir. 1992). However, this holding was conditioned upon
revising the prison manual to allow a limited right to possess religious articles. See also Hall v. Bellmon, 935 F.2d 1106,
1113 (10th Cir. 1991) (upholding a prison policy that prohibited a Native American from wearing a bear tooth necklace
and medicine bag); Spies v. Voinovich, 173 F.3d 398, 405 (6th Cir. 1999) (upholding the prohibition of certain Buddhist
religious materials from a prisoner’s cell and the chapel).
90. See, e.g., O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987) (applying the
Turner standard to find that requiring Muslim prisoners to miss a weekly religious service was reasonably related to
legitimate security concerns, and therefore did not violate the Constitution).
91. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc to cc-5. (2006).
92. In 1997, the Supreme Court held that RFRA does not apply to claims against states. City of Boerne v. Flores,
521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997). However, RFRA still applies to prisoners’ claims against federal
prisons. See Hankins v. Lyght, 441 F.3d 96, 106 (2d Cir. 2006) (noting that since Boerne, "every appellate court that has
squarely addressed the question has held that the RFRA governs the activities of federal officers and agencies") (internal
citations omitted); Guam v. Guerrero, 290 F.3d 1210, 1221–22, (9th Cir. 2001) (finding that the RFRA applies to
prisoners in Guam because of Congress’s settled plenary authority over U.S. territories).
These laws prohibit the government from imposing a substantial burden on the religious exercise of
prisoners, unless the government can demonstrate the restriction both (1) furthers a compelling
governmental interest; and (2) is the least restrictive means of furthering that compelling interest. 93
Both federal laws provide a higher level of protection for prisoners to exercise their religion than the
protection provided by the First Amendment Free Exercise Clause. 94 Therefore, you should begin your
complaint with an argument that the restriction violates RLUIPA (or, if you are in federal prison, RFRA).
You may then make an argument that the restriction also violates the Free Exercise Clause of the First
Amendment. In practice, if a court finds that a regulation does not violate RLUIPA or RFRA, it will also
almost certainly find that it does not violate the First Amendment Free Exercise Clause.95
Although RLUIPA and RFRA are separate laws, a court deciding a case under one law may look to how a
court decided a case under the other law. In other words, RLUIPA cases will be persuasive to courts deciding
RFRA cases and vice versa.96 This is because both laws prohibit laws and policies that substantially burden
the exercise of your religion, unless the restrictions further a compelling governmental interest using the
least restrictive means available.97 Additionally, both statutes protect the same type of “religious exercise.”98
Thus, although this Chapter primarily refers to RLUIPA, if you are a federal prisoner, this discussion of
RLUIPA can help you to determine if you have a viable claim under RFRA.
The following sections explain what you need to show to establish a RLUIPA or RFRA violation. In
general, you first need to show that (1) you meet the jurisdictional requirements of the law. Second, you will
need to show (a) you are seeking to engage in an exercise of religion; (b) the prison regulation or practice you
are challenging “substantially burdens” that exercise of religion; and (c) prison officials cannot demonstrate
that regulation is the (d) “least restrictive means” of achieving a (e) “compelling government interest.”99
(a) Jurisdictional Requirements
(i) RLUIPA
If you are a state prisoner bringing a claim under RLUIPA, you must first show that the law applies to
the prison regulation or practice you are challenging. RLUIPA provides that its protections apply when “(1)
the substantial burden is imposed in a program or activity that receives Federal financial assistance; or (2)
the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign
nations, among the several States, or with Indian tribes.”100
93. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1 (2006). (“No
government shall impose a substantial burden upon the religious exercise of a person residing in or confined to an
institution ... unless the government demonstrates that imposition of the burden (1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”); see
also Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1 (2006).
regulations under the 1st Amendment]; see also Smith v. Allen, 502 F.3d 1255, 1266 (11th Cir. 2007) (noting that
RLUIPA affords a “heightened protection from government-imposed burdens” than the 1st Amendment standards);
Desimone v. Bartow, No. 08-C-638, 2008 U.S. Dist. LEXIS 64419, at *11 (E.D. Wis. Aug. 12, 2008) (unpublished) (noting
that “RLUIPA provides more expansive protection [than the 1st Amendment], prohibiting institutions that receive
federal funding from substantially burdening an inmate’s exercise of religion, even by a rule of general applicability,
unless that burden is the least restrictive means of furthering a compelling governmental interest.”).
95. See, e.g., Daker v. Wetherington, 469 F. Supp. 2d 1231, 1238 (N.D. Ga. 2007) (finding a prison’s shaving policy
did not violate either RLUIPA or the 1st Amendment); Nelis v. Kingston, No. 06-C-1220, 2007 U.S. Dist. LEXIS 86036,
at *17 (E.D. Wis. Nov. 19, 2007) (unpublished) (finding a prison’s eligibility rule for religious activities did not violate
either RLUIPA or the 1st Amendment); Borzych v. Frank, 439 F.3d 388, 390–91 (7th Cir. 2006) (finding a prison’s
refusal to provide access to books did not violate either RLUIPA or the 1st Amendment); Fegans v. Norris, 537 F.3d 897,
906–08 (8th Cir. 2008) (finding a prison’s grooming policy did not violate either RLUIPA or the 1st Amendment).
96. See Hoevenaar v. Lazaroff, 422 F.3d 366, 370 (6th Cir. 2005) (“RFRA cases according deference to prison
decisions [are] applicable to cases brought pursuant to the RLUIPA.”); see also Murphy v. Mo. Dep’t of Corr., 372 F.3d
979 (8th Cir. 2004) (RLUIPA and RFRA apply the same standard); Congregation Kol Ami v. Abington Tp., No. 01-1919,
2004 U.S. Dist. LEXIS 16397, at *45, n.11 (E.D. Pa. Aug. 12, 2004) (unpublished) (“Cases involving establishment clause
challenges to the RFRA are as relevant as those involving the RLUIPA.”).
97. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1 (2006);
Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to bb-4. (2006).
98. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000bb-2(4) (2006).
99. 42 U.S.C. §§ 2000cc-1(a)(1)–(2) (2006).
100. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1 (2006).
This means that you will need to show that the prison regulation you are challenging is either (a)
imposed in a program or activity that receives federal funds (i.e., “Spending Clause jurisdiction”) or (b)
affects interstate commerce (i.e., “Commerce Clause jurisdiction”).101
In order to meet the Spending Clause jurisdictional requirement, the regulation that you are challenging
must be imposed in the context of a “program or activity” that receives Federal financial assistance.102
“Program or activity” means “all of the operations of ... a department, agency, special purpose district, or
other instrumentality of a State or local government.”103 Basically, this means that when a state or local
prison or department of corrections accepts federal funding, the RLUIPA will apply to all of its programs.104
Virtually every prison and jail system accepts some federal money, so you can and should plead in good faith
in your complaint that the court has Spending Clause jurisdiction. After you have filed your complaint, you
can then request the proof of that fact from the defendants in discovery.
A court has RLUIPA jurisdiction under the Commerce Clause if the substantial burden placed on your
religious exercise “substantially affects interstate commerce.”105 This means that if other people in the same
situation as you were similarly burdened, the total effect of all of those situations combined would affect
interstate commerce.106 However, because, as previously mentioned, nearly all prison and jail systems accept
some federal funds, it is very unlikely that you will need to rely upon Commerce Clause jurisdiction.
(ii) RFRA
If you are a federal prisoner bringing suit under RFRA, these jurisdictional requirements do not apply.
Instead, you must allege your Free Exercise rights were violated at a federal prison or by a federal agent.107
(b) Religious Exercise
Assuming you have met the jurisdictional requirements, a court will next assess whether the activity
you are seeking to pursue is a religious exercise. To constitute a religious exercise, the activity you are
seeking to pursue must be rooted in a (1) sincerely held belief that is (2) religious in nature.108
To make this showing, you do not need to prove that your religion requires you to engage in this activity,
or that the activity is a central or important part of your religion. This is because Congress has defined
“religious exercise” broadly, to mean “any exercise of religion, whether or not compelled by, or central to, a
system of religious belief.”109
101. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1 (2006) (“[The
RLUIPA] applies in any case in which (1) the substantial burden is imposed in a program or activity that receives
Federal financial assistance; or (2) the substantial burden affects, or removal of that substantial burden would affect,
commerce with foreign nations, among the several States, or with Indian tribes.”). If you are a federal prisoner bringing
a claim under RFRA, these jurisdictional requirements do not apply to you; instead, you must allege that your Free
Exercise rights were violated at a Federal prison or by an agent of the Federal Government.
103. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000d-4a (2006); 42
U.S.C. § 2000cc-5(6) (specifying that “the term ‘program or activity’ means all of the operations of any entity as described
in paragraph (1) or (2) or section 2000d-4a of this title.”) (2006).
104. See Orafan v. Goord, 2003 WL 21972735, at *7 (N.D.N.Y. Aug. 11, 2003) (unpublished) (“No where [sic] in
this definition [of program and activity] does it state that a receiver of federal funds is at liberty to decide which
programs are under the auspice of RLUIPA. Quite the contrary, as the statute clearly applies to all of the operations.”).
105. United States v. Lopez, 514 U.S. 549, 558–59, 115 S. Ct. 1624, 1629, 131 L. Ed. 2d 626 (1995) (describing the
types of commerce authority enjoyed by Congress, including “the power to regulate those activities having a substantial
relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.”).
106. Wickard v. Filburn, 317 U.S. 111, 128, 63 S. Ct. 82, 91, 87 L. Ed. 122 (1942) (holding that interstate effect is
measured by evaluating the activity in question “together with that of many others similarly situated.”).
107. Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-3 (2006).
108. See Koger v. Bryan, 523 F.3d 789, 797 (7th Cir. 2008) (“RLUIPA is a guarantor of sincerely held religious
beliefs”); see also Porter v. Burnett, No. 1:05-cv-562, 2008 WL 3050011, at *5, 2008 U.S. Dist. LEXIS 58993 (W.D. Mich.
Aug. 4, 2008) (unpublished) (“While [RLUIPA’s] definition of religious exercise is broad, it does require that [p]laintiff’s
religious beliefs be “sincerely held.”) (citing Episcopal Student Foundation v. City of Ann Arbor, 341 F. Supp. 2d 691, 700
(E.D. Mich. 2004) (citation omitted); Lovelace v. Lee, 472 F.3d 174, 187 n.2 (4th Cir. 2006) (citations omitted)); Starr v.
Cox, No. 05-cv-368-JD, 2008 U.S. Dist. LEXIS 34708, at *21 (D.N.H. Apr. 28, 2008) (unpublished) (“[C]ourts have
construed RLUIPA to require a plaintiff to show that the exercise of religion is part of a (1) system of religious belief and
(2) that the plaintiff holds a sincerely held belief in the religious exercise.”) (citing Guzzi v. Thompson, 470 F. Supp. 2d
17, 26 (D. Mass. 2007)).
109. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-5(7)(A) (2006).
Under this definition, RLUIPA protects religious activities that might be considered optional, such as a
Native American believer’s decision to use a sweat lodge for religious purification rites.110 RLUIPA also
protects religious practices that are not necessarily “central” to your religion, such as practices that are a
small part of your religion, or not of primary importance to your religion.111 Finally, RLUIPA also protects
religious practices that could be substituted with alternative religious practices.112 This means that, as a
general rule, courts will not attempt to determine whether your religious belief is accurate or supported by
your religious teachings, but will simply determine whether it is sincerely held and religious in nature.113
This broad definition, which applies to both RLUIPA and RFRA,114 significantly increases the likelihood
your suit will succeed, or at least survive a summary judgment motion.115 Before RLUIPA was enacted,
many lower courts imposed the rule that for a religious exercise to be protected, the exercise must be
absolutely required by that religion.116 This rule made it difficult for prisoners’ religious freedom claims to
succeed, and was also contrary to prior Supreme Court rulings.117
The current definition of “religious exercise” prevents courts and government officials from deciding
what types or levels of religious exercise are necessary or appropriate for membership in a certain religion. It
also incorporates the Supreme Court’s determination that the judicial system is not competent to decide
whether a particular act is “central” to a person’s faith.118
(c) Substantial Burden
If the court finds that you have engaged in religious exercise, it will then evaluate whether the prison
regulation that you are challenging “substantially burdens” this religious exercise.119
Although Congress did not define what “substantial burden” means, the Supreme Court has interpreted
“substantial burden” to mean that the government action or regulation at issue either (1) puts substantial
pressure on a believer to modify his behavior and violate his beliefs or (2) prevents you from engaging in
110. Limbaugh v. Thompson, No. 2:93cv1404-WHA, 2006 U.S. Dist. LEXIS 65949, at *2–3 (M.D. Ala. Sept. 14,
2006) (unpublished) (recognizing that RLUIPA does not require a religious exercise to be compelled by a system of
religious belief, and rejecting prison’s argument that use of the sweat lodge was not mandated by the plaintiffs’ religious
faith because a sweat lodge was just one means they could use to purify themselves).
111. See Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-5(7) (2006)
(“‘[R]eligious exercise’ includes any exercise of religion, whether or not ... central to a system of religious belief.”).
112. See, e.g., Hammons v. Saffle, 348 F.3d 1250, 1255–56, 1258 (10th Cir. 2003) (affirming district court ruling
that Muslim prisoner’s constitutional Free Exercise claim challenging prison’s denial of prayer oils for use in daily
prayers failed because he had other means available to him for practicing his religion, but noting RLUIPA’s more
protective standard and remanding so prisoner could pursue RLUIPA claim).
113. See Thomas v. Review Bd., 450 U.S. 707, 716, 101 S. Ct. 1425, 1431, 67 L. Ed. 2d 624, 632 (1981); see also
Hernandez v. Comm’r, 490 U.S. 680, 699, 109 S. Ct. 2136, 2148, 104 L. Ed. 2d 766, 786 (1989) (“It is not within the
judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’
interpretations of those creeds.”).
114. Congress amended RFRA through Section 7 of RLUIPA. This amendment ensures that the type of “religious
exercise” protected by RLUIPA is identical to that protected by RFRA. See Pub.L. 106-274, § 7, 114 Stat. 803, (2000); 42
U.S.C. § 2000bb-2(4) (2006). As a result, RFRA now defines “exercise of religion” as “religious exercise, as defined in
section 2000cc-5 [i.e., RLUIPA].” 42 U.S.C. § 2000bb-2(4) (2006).
115. Because the determination of whether your belief is sincere and religious in nature is a fact-specific inquiry,
some courts have expressed reluctance to grant summary judgment motions. See, e.g., Porter v. Caruso, 479 F. Supp. 2d
687, 691 (W.D. Mich. 2007) (holding that when there is evidence in the record to suggest that a belief is sincerely held,
summary judgment is inappropriate because the sincerity of a belief is a factual dispute that must be resolved at trial).
116. See Ira C. Lupu, The Failure of RFRA, 20 U. Ark. Little Rock L.J. 575, 591, 608–16 (1998) (study revealing
prisoners lost more than 90 percent of RFRA claims also found 75 percent of those claims were lost based on a finding
that no substantial burden on religious exercise had been imposed, and the most common reason for the holding of no
substantial burden was determining that the prisoner failed to show his faith required the religious exercise at issue).
117. See, e.g., Frazee v. Ill. Dep’t of Employment Security, 489 U.S. 829, 834, 109 S. Ct. 1514, 1517, 103 L. Ed. 2d
914 (1989) (repudiating a test extending protection only to religious exercise that was compelled); see also Levitan v.
Ashcroft, 281 F.3d 1313, 1319 (D.C. Cir. 2002) (“A requirement that religious practice be mandatory to warrant 1st
Amendment protection finds no support in the cases of the Supreme Court or of this court.”)
118. Employment Div., Dep’t. of Human Resources of Or. v. Smith, 494 U.S. 872, 886–87, 119 S. Ct. 1595, 1604,
108 L. Ed. 2d 876 (1990) (“It is no more appropriate for judges to determine the ‘centrality’ of religious beliefs before
applying a ‘compelling interest’ test in the free exercise field, than it would be for them to determine the ‘importance’ of
ideas before applying a ‘compelling interest’ test in the free speech field.”).
religious actions in a way that more than just inconveniences you.120 The legislative history of RLUIPA
indicates that Congress wanted courts to follow this interpretation. 121
Other federal circuits have adopted similar definitions of substantial burden. For example, the Seventh
Circuit has defined “substantial burden” for purposes of RLUIPA to mean a burden that “necessarily bears
direct, primary, and fundamental responsibility for rendering religious exercise ... effectively
impracticable.” 122 Likewise, the Third Circuit has found that a “substantial burden” exists where “(1) a
follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise
generally available to other inmates versus abandoning one of the precepts of his religion in order to receive
a benefit; OR (2) the government puts substantial pressure on a believer to substantially modify his behavior
and to violate his beliefs.”123 The Fifth Circuit has adopted a similar definition, holding that:
A government action or regulation creates a “substantial burden” on a religious
exercise if it truly pressures the adherent to significantly modify his religious
behavior and significantly violate his religious beliefs. The effect of a government
action or regulation is significant when it either (1) influences the adherent to act in
a way that violates his religious beliefs, or (2) forces the believer to choose between,
on the one hand, enjoying some generally available, non-trivial benefit, and, on the
other hand, following his religious beliefs.124
Although courts have emphasized that the question of whether a regulation imposes a substantial
burden is a “fact-specific inquiry” requiring “a case-by-case determination”,125 the examples discussed in
section C(3) can help you assess whether a court would find a regulation to be a substantial burden.
(d) Compelling Government Interest and Least Restrictive Means
Once you have established that a prison rule or regulation places a substantial burden on your religious
exercise, RLUIPA shifts the burden of production of evidence and the burden of persuasion to the
government.126 This means that in order to defeat your claim, the government needs to show that:
(1) the substantial burden it has placed on your religious exercise is necessary because of a “compelling
government interest,” and
(2) the burden it placed on your religious exercise is the “least restrictive means” of achieving its goal.127
In order to meet the first of these requirements, the government must show that it has a compelling
interest in restricting your religious exercise. The Supreme Court has defined “compelling interest” as “only
those interests of the highest order” 128 and repeatedly recognized that the government’s interest in
maintaining prison safety and security are compelling interests. 129 However, other examples of state
interests, such as reducing expenses, are less likely to be considered “compelling interests.”130
120. See Thomas v. Review Bd., 450 U.S. 707, 718, 101 S. Ct. 1425, 1432, 67 L. Ed. 2d 624, 634 (1981); see also
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (summarizing the Supreme Court’s
interpretation of “substantial burden” and noting that “a ‘substantial burden’ must place more than an inconvenience on
religious exercise; a ‘substantial burden’ is akin to significant pressure which directly coerces the religious adherent to
conform his or her behavior accordingly. Thus, a substantial burden can result from pressure that tends to force
adherents to forego religious precepts or from pressure that mandates religious conduct.”); see also Coronel v. Paul, 316
F. Supp. 2d 868, 880 (D. Ariz. 2004) (holding that “state action substantially burdens the exercise of religion within the
meaning of the RLUIPA when it prevents a religious adherent from engaging in conduct both important to the adherent
and motivated by sincere religious belief.”).
121. See 146 Cong. Rec. S7774, S7776 (daily ed. July 27, 2000) (Joint Statement of Sen. Hatch and Sen. Kennedy)
(stating that the term “substantial burden” is to “be interpreted by reference to existing Supreme Court jurisprudence”).
122. Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003).
123. Combs v. Homer-Center School Dist., 540 F.3d 231, 263 n.49 (3d Cir. 2008).
124. Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004).
125. See, e.g., Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir. 2004).
126. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1(a) (2006); see
also Koger v. Bryan, 523 F.3d 789, 796 (7th Cir. 2008) (“Once the plaintiff establishes this prima facie case, the
defendants ‘bear the burden of persuasion on any [other] element of the claim,’ namely, whether their practice “is the
least restrictive means of furthering a compelling governmental interest.”).
127. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1(a) (2006).
128. Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S. Ct. 1526, 1533, 32 L. Ed.2d 15, 25 (1972).
129. See, e.g., Pell v. Procunier, 417 U.S. 817, 823, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 502 (1974). (“[C]entral to
all other corrections goals is the institutional consideration of internal security within the corrections facilities
In order to show that the challenged rule or restriction is the “least restrictive means,” the government
must do more than merely assert that there is no less restrictive means available.131 The government must
also do more than simply speculate as to the possible adverse effects that could occur if it were to
accommodate your religious practice. 132 Moreover, in at least in some circuits, the government must
demonstrate that “it has actually considered and rejected the efficacy of less restrictive measures before
adopting the challenged practice.”133 Like the compelling interest test, the least restrictive means test is
quite strict and well established in constitutional law.134
Though you do not have the burden of proof, you can, and should, challenge the government’s argument
that the regulation is the least restrictive means. For example, if the government allows other types of
practices in the prison that harm its stated compelling interest, or if other prisons allow the religious
exercise you are seeking, you can use this evidence to try overcoming the government’s argument.135 Several
courts have recognized that evidence of what other prisons have done to accommodate prisoners’ religious
practices is relevant to the RLUIPA inquiry.136 But, note: “[c]ourts have repeatedly recognized that ‘evidence
of policies at one prison is not conclusive proof that the same policies would work at another institution.’”137
3. Examples of Common Challenges to Prison Restrictions
This section provides examples of common First Amendment and RLUIPA challenges to prison
restrictions, including restrictions on: attending religious services or worship areas, receiving visits from
religious advisors, sending and receiving religious mail, changing one’s name or diet for religious reasons,
refusing to receive medical treatment for religious reasons, and wearing special religious attire. It describes
themselves.”).
130. Some courts, however, have held that expense is a compelling governmental interest. See, e.g., Baranowski v.
Hart, 486 F.3d 112, 125–26 (5th Cir. 2007) (holding “controlling costs” to be a compelling governmental interest), cert.
denied, 128 S. Ct. 707, 169 L.Ed 553 (2007).
131. See Warsoldier v. Woodford, 418 F.3d 989, 1001 (9th Cir. 2005).
132. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 434–36, 126 S. Ct. 1211,
1222–24, 163 L. Ed.2d 1017, 1034–35 (2006) (holding that under the compelling interest test of the Restoration of
Freedom of Religion Act (RLUIPA’s predecessor statute), the government’s interest in enforcing the Controlled
Substances Act uniformly was insufficient to justify the substantial burden on religious exercise imposed on a small
religious group).
133. See, e.g., Spratt v. R.I. Dep’t Corr., 482 F.3d 33, 41 n.11 (1st Cir. 2007) (suggesting that “to meet the least
restrictive means test, prison administrators generally ought to explore at least some alternatives.”); see also Warsoldier
v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005) (citing United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 824,
120 S. Ct. 1878, 1892, 146 L. Ed.2d 865, 886 (2000) (finding, in context of 1st Amendment challenge to speech
restrictions, that “[a] court should not assume a plausible, less restrictive alternative would be ineffective”); City of
Richmond v. J.A. Croson, 488 U.S. 469, 507, 109 S. Ct. 706, 729–30, 102 L. Ed. 2d 854, 890–91 (1989) (holding that city's
minority set-aside program was not narrowly tailored in part because city had not considered whether race-neutral
measures would have achieved government's interest); Hunter ex rel. Brandt v. Regents of Univ. of Cal., 190 F.3d 1061,
1078 (9th Cir. 1999) (concluding that government “neglected to undertake any consideration—let alone serious, good
faith consideration” of race-neutral alternatives).
134. The “least restrictive means” test is a form of a common test used in constitutional cases known as the
“narrowly tailored” test, which instructs courts to evaluate whether a proposed regulation or law is carefully crafted to
achieve its goals. See Burk v. Augusta-Richmond County, 365 F.3d 1247, 1255 (11th Cir. 2004) (noting that law could be
written to meet least restrictive means test where “government ... tailor[s] its regulation more closely to fit ... conduct
likely to threaten the harms it fears.”).
135. For example, the Court of Appeals for the Ninth Circuit found that a grooming restriction that required all
male prisoners to maintain their hair no longer than three inches was not the least restrictive means of ensuring prison
security when other prisons did not impose such restrictions. In Warsoldier v. Woodford, the court noted that “other
prison systems, including the Federal Bureau of Prisons, do not have such hair length policies, or, if they do, provide
religious exemptions.” Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005). The court also noted that the
department of corrections had failed to explain why it did not impose the same grooming restriction on female prisoners
at its women’s prisons. Warsoldier v. Woodford, 418 F.3d 989, 1000 (9th Cir. 2005)..
136. See, e.g., Washington v. Klem, 497 F.3d 272, 285 (3d Cir. 2007) (finding that prison’s limitation on the
number of books allowed in cell was not the least restrictive means to ensure safety because, in part, other prisons
permitted a great number of books); Fowler v. Crawford, 534 F.3d 931, 942 (8th Cir. 2008) (noting that policies of other
prisons are “relevant” but not dispositive of the “least restrictive means” inquiry).
137. Fowler v. Crawford, 534 F.3d 931 (8th Cir. 2008) (quoting Spratt v. R.I. Dep’t Corr., 482 F.3d 33, 41 n.11 (1st
Cir. 2007) (emphasis added).
how courts have applied the Turner test to examine First Amendment Free Exercise claims as well as how
courts have applied, or might in the future apply, the RLUIPA standards outlined above.
Because RLUIPA generally provides greater protection to your religious freedom than the First
Amendment Free Exercise Clause,138 you should think of the discussion of the Free Exercise Clause as a
baseline for your rights to freely exercise your religion in prison. At times, RLUIPA will provide you with
greater rights than the First Amendment. Also, because the law in this area is constantly evolving, be sure
to check for new RLUIPA cases that support your particular claim.
(a) Restrictions on Attending Religious Services, Group Worship, and Receiving Visits
from Religious Advisors
(i) First Amendment Free Exercise Clause
Under the Free Exercise Clause, prisons must provide you with a “reasonable opportunity” to worship in
accordance with your conscience.139 This right to worship applies even if there is only a minority of prisoners
who observe the religion in question.140 Importantly, courts have recognized that this right to a reasonable
opportunity to worship, attend religious group services, and/or receive visits from religious advisors may be
restricted in certain instances.
For example, courts have held that prison officials may limit or prohibit religious group services when such
services would pose a threat to prison security.141 In Green v. McKaskle,142 a federal court of appeals examined
a warden’s order limiting a prisoner’s right to attend services at a Baptist church. The court determined that
the order was constitutional, even though the prisoner was occasionally prevented from attending the services
and was denied access to additional services. The court said that this limitation was allowed because “a
reasonable opportunity to practice his religion” was afforded.143
Similarly, in Thomas v. Gunter, a federal court of appeals held prison officials could deny a Native
American prisoner daily access to the prison sweat lodge for prayer.144 Applying Turner, the court held the
denial was rationally related to a legitimate penological interest in security. The sweat lodge was near a truck
delivery entrance in use during weekday afternoons, and the court accepted the prison’s argument that
frequent use of the sweat lodge created a security risk. The court noted that daily access to the sweat lodge
would also have interfered with scheduled educational and vocational activities.145
Courts have also held prison officials may attend prisoner religious group services, provided their presence
is reasonable and consistent with prison security measures and does not unreasonably restrict the manner in
which the services are conducted.146 Prison officials may also regulate the time, place, and sometimes the
regulations under the 1st Amendment]); see also Smith v. Allen, 502 F.3d 1255, 1266 (11th Cir. 2007) (noting that
RLUIPA affords a “heightened protection from government-imposed burdens” than the 1st Amendment standards);
DeSimone v. Bartow, 08-C-638, 2008 U.S. Dist. LEXIS 64419, at *11 (E.D. Wis. Aug. 12, 2008) (unpublished) (noting
that “RLUIPA provides more expansive protection [than the 1st Amendment], prohibiting institutions that receive
federal funding from substantially burdening an inmate’s exercise of religion, even by a rule of general applicability,
unless that burden is the least restrictive means of furthering a compelling governmental interest.”).
139. See Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081 n.2, 31 L. Ed. 2d 263, 368 (1972); see also Johnson v.
Moore, 948 F.2d 517, 520 (9th Cir. 1991) (holding that the failure to provide a Unitarian Universalist chaplain for a
prisoner did not violate the 1st Amendment, reasoning that “the Constitution does not necessarily require prisons to
provide each inmate with the spiritual counselor of his choice, [but that] [p]risons need only provide inmates with a
reasonable opportunity to worship in accord with their conscience” (quotations and citations omitted)).
140. See Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263, 268 (1972) (a prisoner must be given
“a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to
conventional religious precepts”).
141. See Brown v. Johnson, 743 F.2d 408, 412 (6th Cir. 1984) (holding that a blanket ban against religious services
by a church that ministered to homosexual persons did not violate the 1st Amendment because the ban was reasonably
related to the prison’s interest in maintaining internal security and reducing prison violence).
142. Green v. McKaskle, 788 F.2d 1116 (5th Cir. 1986).
143. Green v. McKaskle, 788 F.2d 1116, 1126 (5th Cir. 1986).
144. Thomas v. Gunter, 103 F.3d 700 (8th Cir. 1997).
145. Thomas v. Gunter, 103 F.3d 700, 703 (8th Cir. 1997).
146. See Butler-Bey v. Frey, 811 F.2d 449, 452 (8th Cir. 1987) (holding, in part, that a prison regulation requiring a
guard to be present at religious meetings did not violate the 1st Amendment where regulation applied to all prison group
meetings, both secular and non-secular).
manner in which religious services are conducted, provided the restrictions are rationally related to legitimate
state goals.147 Likewise, prison officials may not disrupt a religious service with force or violence without a
legitimate reason.148 Similarly, courts have held that prison officials may limit or prohibit visits by religious
advisors and counselors when such visits would undermine prison security, prison administration, or both.149
The time, length, and manner of these visits are also subject to reasonable regulation by prison officials.
For example, in Alley v. Vasquez,150 a federal court of appeals held prison officials could institute a lengthy
“lockdown” even though it effectively denied prisoners of all faiths the freedom to attend religious services or to
meet with volunteer ministers. In Alley, a group of Jehovah’s Witnesses who were unable to meet with their
volunteer minister during a lockdown at California’s San Quentin prison brought a Free Exercise suit. The
court noted that the lockdown was instituted during extraordinary circumstances, after a sergeant had been
stabbed to death. The court described the temporary lockdown as a “necessary response to prison violence,” and
thus, the temporary suspension of religious services was rationally related to a legitimate penological interest
in prison security.151 The court explained: “[W]hen a genuine emergency exists, prison officials may be more
restrictive than they otherwise may be, and certain services may be temporarily suspended.”152
Note that although your right to attend services or receive visits from ministers may be restricted, you do
not have to be a “presently affiliated” or “professed” member of a religion to attend such services and receive
visits from ministers of that faith, you may receive visits from the clergy of your choice even if you were not a
member of that faith prior to incarceration.153 Instead, you may simply be thinking about joining the religion
and want to attend services or talk to a minister in order to learn about the religion. But, a religious advisor
may examine the sincerity of your belief and restrict your access to religious services of that particular faith.154
Finally, although prisons must provide a “reasonable opportunity” to prisoners whose religious practices
are observed by a minority of prisoners,155 many courts have held that the accommodation a prison must make
for a particular religion should be related or proportional to the number of believers of that particular faith.156
147. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 358, 107 S. Ct. 2400, 2409, 96 L. Ed. 2d 282, 296 (1987) (holding
that “if a regulation merely restricts the time, place, or manner in which prisoners may exercise a right, a prison regulation
will be invalidated only if there is no reasonable justification for official action”).
148. See Arroyo Lopez v. Nuttall, 25 F. Supp. 2d 407, 410 (S.D.N.Y. 1998) (holding that a guard who shoved prisoner
from behind during prisoner’s permitted prayer time was not acting with a legitimate reason).
149. See Brown v. Johnson, 743 F.2d 408, 412 (6th Cir. 1984) (affirming that prison authorities can restrict visits by
officials of a church which ministers to the spiritual and religious needs of homosexuals because “a strong correlation
existed between inmate homosexuality and prison violence”); see generally Pell v. Procunier, 417 U.S. 817, 94 S. Ct. 2800, 41
L. Ed. 2d 495 (1974).
150. Alley v. Vasquez, No. 88-2886, 878 F.2d 385, 1989 WL 69929 (9th Cir. June 23, 1989) (unpublished).
151. Alley v. Vasquez, No. 88-2886, 878 F.2d 385, 1989 WL 69929, at *2 (9th Cir. June 23, 1989) (unpublished).
152. Alley v. Vasquez, No. 88-2886, 878 F.2d 385, 1989 WL 69929, at *2 (9th Cir. June 23, 1989) (unpublished)
(quoting Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982)); see also Caldwell v. Miller, 790 F.2d 589, 598–99 (7th
Cir. 1986) (discussing how long a ban on religious services may last during and after lockdown periods); Walker v.
Mintzes, 771 F.2d 920, 930–31 (6th Cir. 1985) (same). Under RLUIPA, you must initially prove prison officials have
placed a substantial burden upon your religious exercise. The prison must then show the burden furthered a compelling
government interest by the least restrictive means. While denying prisoners of all faiths the opportunity to attend
religious services, as mentioned above in Alley v. Vasquez, would clearly constitute a substantial burden upon religious
exercise, it is unclear whether courts in a similar situation would find such “lockdown” procedures violate RLUIPA. This
is because prison safety and security are compelling government interests and, as the court determined in Alley v.
Vasquez, the lockdown was a “necessary response to prison violence.” So, if the court found such procedures were the
least restrictive means of maintaining prison safety, the court would likely find the restrictions did not violate RLUIPA.
153. See Pell v. Procunier, 417 U.S. 817, 824–25, 94 S. Ct. 2800, 2805, 41 L. Ed. 2d 495, 503 (1974) (allowing
restricted visits from “members of their families, the clergy, their attorneys, and friends of prior acquaintance” as long as
“such visits will aid in the rehabilitation of the inmate”).
154. See Montano v. Hedgepeth, 120 F.3d 844, 850–51 (8th Cir. 1997) (allowing a prison chaplain to deny
participation in Protestant services to a Messianic Jew).
155. See, e.g., Koger v. Bryan, 523 F.3d 789, 799 (7th Cir. 2008) (“We have long held that “[t]he rights of inmates
belonging to minority or non-traditional religions must be respected to the same degree as the rights of those belonging
to larger and more traditional denominations.”) (quoting Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir. 1991)).
156. See Cruz v. Beto, 405 U.S. 319, 322 n.2, 92 S. Ct. 1079, 1082 n.2, 31 L. Ed. 2d 263, 268 n.2 (1972) (court does not
suggest “that every religious sect or group within a prison—however few in number—must have identical facilities or
personnel ... nor must a chaplain, priest, or minister be provided without regard to the extent of the demand”); see also
Jones v. Bradley, 590 F.2d 294, 296 (9th Cir. 1979) (citing Cruz) (holding that prison’s refusal to provide use of chapel to
prisoner, a pastor of the Universal Life Church, did not violate the 1st Amendment).
For example, in Cruz v. Beto,157 a Buddhist prisoner alleged that prison officials violated his constitutional
rights when they prohibited him from conducting Buddhist services in the prison chapel, offering religious
materials to other prisoners, and corresponding with his religious advisor. The U.S. Supreme Court reversed
the decision of the federal court of appeals, which had dismissed the prisoner’s claims. The Court emphasized
that the same constitutional standard must be applied to all limitations on religious practices and that there
must be equal treatment of different religions.158 However, the Court also stated that it did not mean to
suggest that every religion must have identical facilities and be accommodated equally.159
(ii) RLUIPA
Under RLUIPA, a prison may regulate your access to religious services and/or worship areas, provided that
if the regulation imposes a substantial burden on your religious exercise, it is (1) the least restrictive means to
(2) furthering a compelling government interest.160 As discussed above, if a court determines that a regulation
does not impose a substantial burden or that the activity you are pursuing is not a religious exercise, it will
dismiss your challenge and uphold the requirement.161
Keep in mind, however, that a court’s determination of whether a rule imposes a substantial burden on
your right to religious worship will depend on the specific facts of your case. For example, in at least two
instances, the Court of Appeals for the Fifth Circuit has found that a policy requiring volunteers to attend
prisoner religious group meetings did not impose a substantial burden, when the prisoners were able to engage
in alternative means of worship: in Adkins v. Kaspar, 162 the court concluded that the volunteer requirement
did not impose a substantial burden because the prisoner was able to attend services once a month, and also
had access to religious materials including books, video, and audiotapes. Likewise, in Baranowski v. Hart, 163
the court found that a volunteer requirement did not impose a substantial burden on Jewish prisoners who
wanted to meet on more Sabbath and Jewish holy days than their volunteer could attend. In a more recent
case, however, the same Court of Appeals concluded that a volunteer requirement could impose a substantial
burden, in a case where there was evidence that no additional volunteers would be available to provide group
religious worship, the prison applied the volunteer requirement differently for different religious groups, and
the prisoner did not have access to alternative means of worship.164
If you are able to show there is a substantial burden on your religious exercise, the government will need to
demonstrate the restriction on group worship or religious services is the least restrictive means to furthering a
compelling government interest.165 Though the court will require the prison to provide some evidence to show
the policy meets this standard, the Supreme Court has instructed courts to provide “due deference to the
experience and expertise of prison and jail administrators” in construing RLUIPA.166
Thus, for example, in Murphy v. Missouri Department of Corrections, 167 the Eighth Circuit Court of
Appeals found the prison had not met its burden when the only reason it gave for denying a prisoner the right
to group worship was the prisoner was a racist whose religion limited participation to Anglo-Saxons. In
contrast, the same Court of Appeals found the prison had met its burden in a case involving a Native American
157. Cruz v. Beto, 405 U.S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972).
158. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081–82, 31 L. Ed. 2d 263, 268 (1972).
159. Cruz v. Beto, 405 U.S. 319, 322 n.2, 92 S. Ct. 1079, 1082 n.2, 31 L. Ed. 2d 263, 268 n.2 (1972).
160. 42 U.S.C. §§ 2000cc-1(a)(1)–(2) (2006).
161. See Part C(2) above. For example, the Court of Appeals for the Fifth Circuit has dismissed at least two RLUIPA
challenges based on a finding that a prison policy that required an outside volunteer to attend prisoner group religious
meetings did not impose a substantial burden on the prisoners’ religious exercise. See, e.g., Adkins v. Kaspar, 393 F.3d
559, 571 (5th Cir. 2004); Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007).
162. Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir. 2004).
163. Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007).
164. Mayfield v. Tex. Dep’t of Corr., 529 F.3d 599, 614–15 (5th Cir. 2008) (finding that summary judgment was
inappropriate when there was evidence that no new volunteers would be available, the prisoner did not have alternative
means of worship, and prison officials were unevenly applying the requirement).
165. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1(a) (2006). See
Koger v. Bryan, 523 F.3d 789, 796 (7th Cir. 2008) (“Once the plaintiff establishes this prima facie case, the defendants
‘bear the burden of persuasion on any [other] element of the claim,’ namely, whether their practice “is the least
restrictive means of furthering a compelling governmental interest.”).
166. Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S. Ct. 2113, 2123, 161 L. Ed. 2d 1020, 1035 (2005).
167. Murphy v. Mo. Dep’t of Corr., 372 F.3d 979 (8th Cir. 2004)
prisoner who had been denied access to a sweat lodge.168 There, the prison provided the court with evidence
that it had suggested alternative religious means to the prisoner: officials had offered the prisoner an outdoor
area where he could smoke a ceremonial pipe, suggested a medicine wheel, and sought to locate a volunteer to
oversee a Native American group.169 Based in part on this evidence, the court concluded that the ban on
accessing the sweat lodge was the least restrictive means to furthering the prison’s interest in security.
These cases suggest that if you can show that the prison denied your request for group worship or
attendance of religious services, and did not offer you any alternative to your preferred means of worship, you
may have a better chance of defeating the government’s arguments that the restriction is the least restrictive
means towards furthering a compelling interest.
(b) Mail Censorship
Under the First Amendment Free Exercise Clause, a prison may censor the religious mail that you receive
or send, depending on the purpose the censorship serves. For a summary of the Supreme Court’s decisions on
prisoners’ use of the postal system, including receipt of religious materials and correspondence about religious
materials, see Chapter 19 of the JLM, “Your Right to Communicate with the Outside World.”
In general, prison officials may censor incoming religious mail in any manner reasonably related to the
legitimate needs of prison administration.170 To determine whether the censorship is appropriate, courts apply
the Turner test. Under this test, courts have allowed prison officials to withhold mail that advocates racial
violence and hatred, even if the mail contains religious content or is from a religious organization. For example,
in Chriceol v. Phillips,171 the Fifth Circuit Court of Appeals allowed a Louisiana prison to withhold mail that
the Aryan Nation and its affiliate church, the Church of Jesus Christ Christian, sent to prisoners. The court
explained that the mail encouraged racial violence and hatred, and that the “purpose of the rule [was] to
eliminate potential threats to the security or order of the facility,” which “clearly ... is a legitimate interest.”172
Similarly, in Shabazz v. Parsons,173 the Tenth Circuit Court of Appeals applied the Turner test and held
that Oklahoma prison officials had a rational basis for denying a prisoner access to an entire issue of a
religious magazine, which officials determined would create a danger of violence based on racial, religious, and
national hatred. 174 Furthermore, the court denied the prisoner’s claim that merely deleting the offending
portions of the magazine was a good alternative since doing so would be very expensive and would “prevent the
prisoner from obtaining meaningful administrative review.”175
Prison officials may also regulate outgoing mail, provided that the regulation is “generally necessary” to
protect one or more legitimate governmental interests.176 Note that it may be easier for you to successfully
challenge a restriction of outgoing mail, as the Supreme Court has recognized that outgoing correspondence
that includes “grievances or contains inflammatory racial views cannot reasonably be expected to present a
danger to the community inside the prison.”177
Note also that although prisons can censor mail if there is a legitimate penological interest at stake,
indiscriminate censorship, or an absolute ban on correspondence with a religious advisor is unconstitutional.
See Chapter 19 of the JLM, “Your Right to Communicate with the Outside World.”
168. Folwer v. Crawford, 534 F.3d 931 (8th Cir. 2008).

169. Folwer v. Crawford, 534 F.3d 931, 939–40 (8th Cir. 2008).
170. See Thornburgh v. Abbott, 490 U.S. 401, 404, 109 S. Ct. 1874, 1877, 104 L. Ed. 2d 459, 467 (1989) (applying the
Turner standard to determine whether regulations censoring incoming mail are constitutional).
171. Chriceol v. Phillips, 169 F.3d 313 (5th Cir. 1999).
172. Chriceol v. Phillips, 169 F.3d 313, 316 (5th Cir. 1999); see also Murphy v. Missouri, 814 F.2d 1252, 1256–57 (8th
Cir. 1987) (finding that a complete ban on Aryan Nation materials is too restrictive, but that a mail policy restricting
materials that advocate violence or racial inflammation is valid).
173. Shabazz v. Parsons, 127 F.3d 1246 (10th Cir. 1997).
174. Shabazz v. Parsons, 127 F.3d 1246, 1249 (10th Cir. 1997).
175. Shabazz v. Parsons, 127 F.3d 1246, 1249 (10th Cir. 1997).
176. See generally Thornburgh v. Abbott, 490 U.S. 401, 412, 109 S. Ct. 1874, 1881, 104 L. Ed. 2d 459, 472 (1989) (the
regulation of restricting outgoing mail must closely fit the interest it is supposed to serve).
177. Thornburgh v. Abbott, 490 U.S. 401, 411–12, 109 S. Ct. 1874, 1881, 104 L. Ed. 2d 459, 472 (1989).
(ii) RLUIPA
Under RLUIPA, a prison may censor the religious mail you receive or send, provided that if the
censorship substantially burdens your religious exercise, it (1) furthers a compelling government interest (2)
by the least restrictive means.178 Though the Supreme Court has noted no reason exists to believe “that
RLUIPA would not be applied ... with a particular sensitivity to security concerns,”179 the Court further
acknowledged that “[l]awmakers supporting RLUIPA were mindful of the urgency of discipline, order,
safety, and security in penal institutions” and anticipated that “courts would apply the Act’s standard with
due deference to prison administrators’ experience and expertise.”180 Thus, whether courts are likely to reach
different outcomes under a RLUIPA standard than they would under a Free Exercise standard is unclear.
(c) Shaving, Haircuts, and Grooming Restrictions
Under the First Amendment Free Exercise Clause, a prison may restrict how you choose to wear your hair
or beard, even if this choice is part of your religious practice. To determine whether a prison grooming
restriction is acceptable under the Free Exercise Clause, a court will apply the Turner “reasonably related”
standard. Under this test, a court will balance the importance of the religious practice in question against the
prison’s interests for discipline, order, identification, and hygiene.181 If the prison grooming requirement does
not reasonably relate to a legitimate penological interest, the requirement will fail.
Although courts apply the same test, the results of courts’ analyses have differed. Some courts have
recognized the rights of prisoners to grow beards or wear their hair in accordance with their religious beliefs.182
For example, the Court of Appeals for the Second Circuit upheld a Rastafarian prisoner’s right to avoid getting
an initial haircut when first received as a prisoner in a New York prison.183
Other courts, however, have been less willing to recognize these types of religious practices. For example,
in May v. Baldwin, 184 the Seventh Circuit Court of Appeals affirmed a prison regulation requiring a
Rastafarian prisoner to unbraid his dreadlocks during searches of his hair. The court accepted the prison’s
argument that, in order to maintain prison security, the prison needed to search for contraband, and that
unbraiding and hair inspection was the least restrictive means available.185
Likewise, in Fromer v. Scully, 186 the Court of Appeals for the Second Circuit upheld a New York
Department of Correctional Services (DOCS) directive forbidding prisoners from wearing beards longer than
one inch. The court in Fromer “recognized a ‘valid, rational connection’ between beard restrictions and a
legitimate penological interest in inmate identification,” emphasizing that the plaintiff had the burden of
proving that the prison’s concerns were irrational.187 Explaining its decision to defer to the judgment of the
prison administrators, the court noted that “[i]t is certainly not irrational to believe that a full beard, which
may well extend for significant lengths sideways from the cheeks as well as downwards from the chin, may
impede identification more than a one-inch beard.”188
(ii) RLUIPA
178. 42 U.S.C. §§ 2000cc-1(a)(1)–(2) (2006).

179. Cutter v. Wilkinson, 544 U.S. 709, 722–23, 125 S. Ct. 2113, 2123, 161 L. Ed. 2d 1020, 1035 (2004).
180. Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S. Ct. 2113, 2123, 161 L. Ed. 2d 1035 (2004).
181. See Hines v. S.C. Dep’t of Corr., 148 F.3d 353, 358 (4th Cir. 1998) (upholding a grooming policy that all male
prisoners keep their hair short and faces shaven in order to “suppress contraband, limit gang activity, maintain discipline
and security, and prevent prisoners from quickly changing their appearance”).
182. See, e.g., Teterud v. Burns, 522 F.2d 357, 359 (8th Cir. 1975) (Native American); Moskowitz v. Wilkinson, 432 F.
Supp. 947, 950 (D. Conn. 1977) (Orthodox Jew).
183. Benjamin v. Coughlin, 905 F.2d 571, 577 (2d Cir. 1990) (finding the legitimate penological goal of obtaining
an initial identification photograph could be accomplished by pulling back prisoner’s hair rather than cutting it off).
184. May v. Baldwin, 109 F.3d 557 (9th Cir. 1997).
185. May v. Baldwin, 109 F.3d 557, 564 (9th Cir. 1997). The court analyzed the regulation under the strict scrutiny
of RFRA which is a harder test to satisfy than Turner. Therefore, this grooming regulation would probably pass the Turner
test as well, for claims brought exclusively under the 1st Amendment. Also note that the RFRA strict standard was
overturned by the Supreme Court a few months after this decision, but was re-implemented in 2000 with The Religious
Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).
186. Fromer v. Scully, 874 F.2d 69 (2d Cir. 1989).
187. Fromer v. Scully, 874 F.2d 69, 74 (2d Cir. 1989) (citations omitted).
188. Fromer v. Scully, 874 F.2d 69, 74 (2d Cir. 1989).
Under RLUIPA, even if a grooming requirement substantially burdens your religious exercise, a prison
may restrict how you choose to style your hair or beard if it (1) furthers a compelling governmental interest
(2) by the least restrictive means. 189 These dual requirements may make it more difficult for prison
regulations regarding shaving, haircuts, and grooming to survive a RLUIPA challenge than a First
Amendment challenge.
For example, in Fluellen v. Goord,190 a prisoner brought a successful RLUIPA challenge against a DOCS
policy prohibiting all non-Rastafarian prisoners from wearing dreadlocks. The prisoner, a member of the
Nation of Islam, argued his refusal to cut his dreadlocks was based upon a specific verse of the Quran. In
response, DOCS asserted the Nation of Islam does not mandate dreadlocks, the prisoner’s interpretation of
the Quran was incorrect, and allowing the prisoner to wear dreadlocks potentially threatened security.
In considering these arguments, the district court in Fluellen rejected DOCS’s assertion, explaining that
it is not for the courts to question the importance of particular religious beliefs or practices, nor is it proper
for judges to determine the accuracy of a plaintiff’s interpretation of his religion’s teachings.191 While the
court acknowledged that prison safety and security constituted a compelling government interest under
RLUIPA, it found that the fact that DOCS permitted Rastafarians to wear dreadlocks meant that dreadlocks
do “not impose an insurmountable threat to DOCS’ security, safety or sanitation.”192 The court further noted
that “DOCS does not appear to have any concerns that permitting this particular plaintiff to wear
dreadlocks would threaten DOCS’ security, safety or sanitation,”193 and therefore held that the prisoner
could not be forced to cut his dreadlocks, nor could he be punished if he refused to do so.194
But, other courts have reached different conclusions, finding grooming requirements do not violate
RLUIPA.195 For example, in Fegans v Norris, a divided panel of the Eighth Circuit Court of Appeals found a
prison policy prohibiting male prisoners from wearing hair below the collar and from wearing beards did not
violate RLUIPA, even though the department of corrections did not impose the same requirement on women.196
In Fegans v. Norris,197 a prisoner who followed the Assemblies of Yahweh argued that the prison’s refusal
to exempt him from the grooming requirement violated RLUIPA, as well as the Free Exercise Clause. The
appeals court rejected this argument, finding that the grooming requirements were the least restrictive means
to furthering prison safety and security. Specifically, the court noted that prisoners had used their hair to
conceal contraband, and to change their appearance after escaping. The court further concluded that there was
no less restrictive means to preventing these risks, as “longer hair created a greater opportunity for inmates to
conceal contraband, and because correctional officers are placed at risk of assault if required to search through
the long hair of individual inmates.”198 Although the court recognized that the prison did not impose the same
requirement in the women’s barracks, the court noted that the women were housed in a single unit and thus
had less opportunity to conceal contraband.199
190 . Fluellen v. Goord, No. 06-CV-602E(Sr), 2007 U.S. Dist. LEXIS 95374 (W.D.N.Y. Mar. 12, 2007)
(unpublished).
191. Fluellen v. Goord, No. 06-CV-602E(Sr), 2007 U.S. Dist. LEXIS 95374, at * 16 (W.D.N.Y. Mar. 12, 2007)
(unpublished) (citing McEachin v. McGuinnis, 357 F.3d 197, 201 (2d Cir. 2004)).
192. Fluellen v. Goord, No. 06-CV-602E(Sr), 2007 U.S. Dist. LEXIS 95374, at *19 (W.D.N.Y. Mar. 12, 2007)
(unpublished).
193. Fluellen v. Goord, No. 06-CV-602E(Sr), 2007 U.S. Dist. LEXIS 95374, at *19–20 (W.D.N.Y. Mar. 12, 2007)
(unpublished).
194. Fluellen v. Goord, No. 06-CV-602E(Sr), 2007 U.S. Dist. LEXIS 95374, at *24 (W.D.N.Y. Mar. 12, 2007)
(unpublished), see also Warsoldier v. Woodford, 418 F.3d 989, 1002 (9th Cir. 2005) (holding that a Native American
prisoner at a minimum-security prison, whose faith taught that hair should only be cut upon the death of a close
relative, could not be punished for violating a rule prohibiting prisoners from having hair longer than three inches
without a showing by the prison that the policy constituted the least restrictive way of promoting safety).
195. Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008); see also Logan v. Ark. Dep’t of Corr., No. 5:07CV00252, 2008
U.S. Dist. LEXIS 61809, at *5–8 (E.D. Ark. July 28, 2008) (unpublished) (finding that the prisoner had failed to state a
claim because the grooming policies imposed by the Arkansas DOCS did not violate RLUIPA).
196. Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008).
197. Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008).
198. Fegans v. Norris, 537 F.3d 897, 903 (8th Cir. 2008). Applying a similar analysis to the beard restriction, the
court concluded that the prison had a compelling interest in restricting prisoners from wearing an uncut beard, as a beard
could create a better guise for an escapee and allow for contraband. Fegans v. Norris, 537 F.3d 897, 906 (8th Cir. 2008).
199. Fegans v. Norris, 537 F.3d 897, 904 (8th Cir. 2008).
These cases suggest that if you can show the prison has allowed some prisoners of your gender to wear the
hairstyle or beard you are seeking to adopt, you may have a better chance of prevailing on your RLUIPA claim.
(d) Name Restrictions
(i) First Amendment Free Exercise
Under the First Amendment Free Exercise Clause, a prison may refuse to recognize your choice of a
religious name, provided that the refusal is “reasonably and substantially justified by considerations of prison
discipline and order.”200 If you have legally changed your name, courts are more likely to recognize your right
to be called by your new name.201
For example, in Malik v. Brown, 202 a federal court of appeals recognized that a prisoner has a clear
constitutional interest in using his religious name, at least in addition to his committed name. While it stopped
short of requiring the prison to revise its filing system when a prisoner changes his name, the court at least
recognized the prisoner’s right to include his religious name on outgoing mail.203
Note that although courts may be willing to recognize a religious name, courts are unlikely to question the
way in which prison officials choose to organize their administrative prison records.204
(ii) RLUIPA
Under RLUIPA, a prison may refuse to recognize your choice of a religious name, provided that if the
refusal substantially burdens your religious exercise, it (1) furthers a compelling governmental interest and
(2) uses the least restrictive means. 205
Some courts have expressed reluctance to find that a refusal to recognize a name is a substantial burden
on your religious exercise.206 Therefore, it may be difficult for you to show that the refusal to recognize your
name violates RLUIPA: remember that under RLUIPA, the government can impose rules that burden your
religious exercise; it is only barred from adopting rules that substantially burden your religious exercise.
In order to show that the refusal to recognize your name constitutes a substantial burden, you should try
to provide the court with concrete examples of the obstacles that having an unchanged name presents. For
example, if an unchanged name will exclude you from participating in religious ceremonies, or subject you to
harsh treatment or exclusion by your co-believers, or make it so that you cannot “rise through the ranks” of
your religion, the court may be more willing to find that the restriction constitutes a substantial burden.207
If the court determines that not allowing you to change your name does significantly burden your
religious exercise, the government would then be required to show that not allowing you to change your
name served a “compelling governmental interest” and that it did so by the “least restrictive means.”208 As
noted above, prison safety and security are compelling governmental interests.209 Accordingly, if the prison
200. Barrett v. Commonwealth of Virginia, 689 F.2d 498, 503 (4th Cir. 1982) (holding that a Virginia statute that
places a flat ban on the recognition of religious name changes was unreasonable given that prisoners were already known
by several names, and the addition of newly adopted religious names into existing records would not threaten the
“reliability and efficiency of correctional records”) (quoting Sweet v. S.C. Dep’t of Corr., 529 F.2d 854, 863 (4th Cir. 1975)).
201. See Salahuddin v. Coughlin, 591 F. Supp. 353, 359 (S.D.N.Y. 1984) (upholding prison policy that recognizes
statutory court-ordered name changes but not common law name changes, in light of speedy and easily proven statutory
name changes and “legitimate [state] interest in avoiding confusion and simplifying record-keeping”). But see Barrett v.
Commonwealth of Virginia, 689 F.2d 498, 503 (4th Cir. 1982) (finding that adding a newly adopted religious name to prison
records would not be overly burdensome or disruptive to record-keeping procedures).
202. Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995).
203. Malik v. Brown, 71 F.3d 724, 728–29 (9th Cir. 1995) (finding minimal burden on the prison and “no legitimate
penological interest in preventing use of the religious name with the committed name on outgoing mail”).
204. See Barrett v. Commonwealth of Virginia, 689 F.2d 498, 503 (4th Cir. 1982).
206. See Amun v. Culliver, No. 04-0131-BH-M, 2006 U.S. Dist. LEXIS 75949, at *1 (S.D. Ala. Oct. 18, 2006)
(unpublished) (holding that prison’s refusal to add prisoner’s religious name to visitor list, prisoner location list, and
prison correspondence list was not a “substantial burden” on prisoner’s exercise of religious beliefs).
207. Two federal district court cases suggest that these factors may have supported a conclusion that a refusal to
recognize a changed name constitutes a substantial burden. See Scott v. California Supreme Court, No. CIV S-04-2586
LKK GGH P, 2008 WL 2788346, at *10 (E.D. Cal. July 17, 2008) (unpublished); see also Ashanti v. Cal. Dep’t of Corr.,
No. CIV S-03-0474 LKK GGH P, 2007 WL 520958, at *16 (E.D. Cal. Feb. 15, 2007) (unpublished).
208. 42 U.S.C. §§ 2000cc-1(a)(1)–(2) (2006).
209. Pell v. Procunier; 417 U.S. 817, 822–23, 94 S. Ct. 2800, 2804 (1974); Procunier v. Martinez, 416 U.S. 396, 412,
94 S. Ct. 1800, 1810–11, 40 L. Ed.2d 224, 240 (1974).
claims banning name changes is the least restrictive way of maintaining safety and security, the court may
uphold the prison’s refusal to grant your name-change request. For example, at least one federal appeals
court of appeals has held that, under RLUIPA, a prison may require a prisoner to use both his chosen name
and the name under which he was committed on incoming and outgoing mail.210
If you can show that other prisoners in your prison or in similar prisons were permitted to change their
names, you may be able to demonstrate that not permitting you to change your name for religious reasons is
not the least restrictive means by which the prison can maintain order. 211
(e) Special Diet Restrictions
Under the Free Exercise Clause, a prison can refuse to accommodate your request for a special diet,
provided that the restriction is rationally connected to legitimate penological goals. To determine whether a
prison may refuse to accommodate your request for a special diet, a court will apply the Turner test.212 Under
this test, the court will first determine whether your special diet request is based on sincerely held religious
beliefs. The court may also examine whether or not it is absolutely required by your religion.213 It will then look
to whether the prison’s denial of that request is rationally connected to any legitimate penological concerns. If
so, the court will balance the reasonableness of the refusal with the prison’s penological interests, looking to
effects on the prison community, use of resources, and alternative means of satisfying the meal request.214
Although courts may inquire into the costs of accommodating prisoners’ dietary requirements, budgetary
considerations alone cannot excuse a prison from respecting your First Amendment rights. In other words,
your religious dietary habits will be accommodated where prison officials can do so reasonably without
jeopardizing security, or causing significant expense or administrative burden.215
For example, in Johnson v. Horn,216 a federal court of appeals held that the First Amendment required
prison officials to provide Jewish prisoners with kosher meals that were sufficient to keep the prisoners in good
health, even though the prisoners’ “request for a [religious diet] creates legitimate security concerns, including
bringing additional foods from new sources into the Prison and the possible belief by other inmates that
[plaintiffs] are receiving special treatment.”217 Balancing the four Turner factors, the court concluded that the
210. Fawaad v. Jones, 81 F.3d 1084, 1087 (11th Cir. 1996). Though this case was decided under RFRA, the
holding would similarly apply to cases brought under RLUIPA.
211. See, e.g., Fluellen v. Goord, No. 06-CV-602E(Sr), 2007 U.S. Dist. LEXIS 95374, at *19–20 (W.D.N.Y. Mar. 12,
2007) (unpublished) (explaining that the fact that a prison allowed some prisoners to wear dreadlocks indicated refusing
to allow others to wear dreadlocks was not the least restrictive means to achieving compelling government interests).
212. See generally DeHart v. Horn, 227 F.3d 47 (3d Cir. 2000).
213. See Spies v. Voinovich, 173 F.3d 398, 407 (6th Cir. 1999) (holding plaintiff was not entitled to a strict vegan diet
because it was not required by Zen Buddhism and because a vegetarian diet, which the prison already provided, sufficed).
However, the Third Circuit Court of Appeals has refused to follow this analysis of considering whether a religion
requires a practice or diet, finding the judiciary ill equipped to determine the truth and significance of religious beliefs
and practices. Instead, it strictly applied the Turner test. See DeHart v. Horn, 227 F.3d 47, 56–57 n.6 (3d Cir. 2000); see
also McEachin v. McGuinnis, 357 F.3d 197, 203 (2d Cir. 2004) (stating that “a religious practice [need not] be mandated
by a religion” to receive 1st Amendment protection) (citing Levitan v. Ashcroft, 281 F.3d 1313, 1319 (D.C. Cir. 2002)).
214. See DeHart v. Horn, 227 F.3d 47, 49–52 (3d Cir. 2000) (balancing the Turner factors and holding that although
there is a legitimate penological interest in an efficient food system and avoiding prisoner jealousy, accommodating the
Buddhist prisoner’s request for a cup of soy milk with each meal was not administratively prohibitive and not unreasonable
in light of these penological interests, but that on remand the district court was required to examine whether there were
other means available to prisoner for expressing his religious beliefs); see also Williams v. Morton, 343 F.3d 212, 217–18 (3d
Cir. 2003) (holding that the denial of Muslim prisoner’s request for Halal meals with meat, rather than prison-provided
vegetarian meals, was valid in light of legitimate penological interests in “simplified food service, prison security, and
budgetary constraints”). But see McEachern v. McGuinnis, 357 F.3d 197, 203–04 (2d Cir. 2004) (holding that prisoner
who claimed that he was subjected to a disciplinary diet of food “loaf” during Ramadan, when Muslims are required to
break their fast each day with Halal food, stated a claim).
215. See Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1211–14 (10th Cir. 1999) (holding prison’s failure to
accommodate meal requirements during the holy month of Ramadan violated Muslim prisoner’s 1st Amendment rights);
Ashelman v. Wawrzaszek, 111 F.3d 674, 677 (9th Cir. 1997) (holding providing Orthodox Jews with a frozen kosher
dinner supplemented with non-kosher meals violated their right to free exercise, since reasonable alternatives existed).
216. Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998).
217. Johnson v. Horn, 150 F.3d 276, 282 (3d Cir. 1998).
meals did not have to be hot, given that a diet of cold Kosher food “passes constitutional muster because it is
sufficient to keep the inmates in good health.”218
(ii) RLUIPA
Under RLUIPA, a prison can refuse to accommodate your request for a special diet, provided that if the
refusal substantially burdens your religious exercise, the refusal (1) furthers a compelling interest and (2) uses
the least restrictive means. 219
In order for your special diet to be protected, you will first need to show your special diet is a religious
exercise, one that is based on sincerely held religious beliefs and practices and not simply a concern for your
bodily health. 220 Remember that your beliefs do not need to be affiliated with any organized religion to
constitute religious beliefs, nor do you need to show the religion requires you to follow a special diet.221
One way that you may try to prove that a diet is a religious exercise is to submit paperwork from your
religious organization stating that adherents to the religion often choose to follow special dietary restrictions.
For example, in Koger v. Bryan,222 the Seventh Circuit Court of Appeals found that a prisoner who submitted
paperwork from his religious organization, stating that individual members of the faith “may, from time to
time, include dietary restrictions as part of his or her personal regimen of spiritual discipline,” had established
that his dietary request was “squarely within the definition of religious exercise set forth by RLUIPA.”223
When determining whether your religious beliefs are sincerely held, courts have also looked to the length
of time that you sought to have your request for a special diet accommodated. For example, in Koger, the court
pointed to the long time that the prisoner had sought to have his request for a non-meat diet accommodated;
the prisoner had first filed a request nearly eight years before the case reached the court of appeals.224 The
court also noted that the fact that the prisoner had remained committed to his original religious affiliation
throughout this time—rather than changing to another religion that required non-meat diets—indicated that
his religious belief was sincerely held.225
Once you show you are seeking accommodation of a religious exercise rooted in sincerely held beliefs, you
must then show the refusal to provide the diet substantially burdens this religious exercise.226 At least one
court has found that repeated refusal to accommodate a request for a special diet some members of a religion
follow constitutes a substantial burden, even if the religion does not require the diet.227
If you are able to prove that by not providing your requested diet, the prison substantially burdens your
religious exercise, the prison must then show its reason for not fulfilling your request is based on a compelling
government interest and not permitting the diet is the “least restrictive means” of accomplishing these goals.
To date, although courts have recognized orderly administration of a prison dietary system as a valid
concern of prison officials,228 no appellate court has ever found this interest o be compelling.229 Moreover, if the
prison already serves meals that could satisfy your request for a special diet, the court may be more likely to
find the prison did not meet its burden of showing the refusal is based on a compelling government interest.230
218. Johnson v. Horn, 150 F.3d 276, 283 (3d Cir. 1998).
219. Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc-1(a)(1)–(2) (2006).
220. See Koger v. Bryan, 523 F.3d 789, 797 (7th Cir. 2008) (hypothesizing that if a prisoner’s desire for a non-meat diet
“was rooted solely in concerns for his bodily health, it would not be protected by RLUIPA”); see also Wisconsin v. Yoder,
406 U.S. 205, 215, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15, 25 (1972).
221. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-5(7)(A) (2006).
222. Koger v. Bryan, 523 F.3d 789, 797 (7th Cir. 2008).
226 . See Smith v. Nuttal, No. 04-CV-0200(F), 2007 U.S. Dist. LEXIS 18354 (W.D.N.Y. Mar. 14, 2007)
(unpublished) (finding that prison’s refusal to provide Muslim prisoner with a kosher cold alternative meal rather than
the religious alternative meal was not a substantial burden on prisoner’s religious exercise).
228. See, e.g., Resnick v. Adams, 348 F.3d 763, 769 (9th Cir. 2003) (“The legitimate governmental interest at stake
here is the orderly administration of a program that allows federal prisons to accommodate the religious dietary needs of
thousands of prisoners.”) (citations omitted); DeHart v. Horn, 227 F.3d 47, 52 (3d Cir. 2000) (agreeing with prison
officials that “a simplified and efficient food service” is a legitimate penological interest).
229. Koger v. Bryan, 523 F.3d 789, 800 (7th Cir. 2008) (“[N]o appellate court has ever found these [legitimate
concerns for orderly administration of a prison dietary system] to be compelling interests.”).
(f) Special Attire
Under the Free Exercise Clause, a prison may prevent you from wearing certain attire required by your
religion, like prayer hats or head coverings, provided there is a reasonable relationship between the regulation
and a legitimate prison interest.231 Many courts have held the right to wear head coverings must be weighed
against the state’s security concern that weapons and drugs can be concealed under a hat.232
For example, a New York court held that a prison could prohibit prisoners from wearing Rastafarian
“crowns” (loose fitting headgear worn over dreadlocks) in some or all areas of the prison, given the legitimate
security interests of the prison, even though Jewish and Muslim prisoners could wear their respective religious
headgear (that are smaller and closely fitted) throughout the prison.233 The court determined that the prison
had a legitimate security interest in the different treatment because Rastafarian crowns are large and
shapeless enough to conceal weapons and contraband, as compared to the smaller, closely fitting head
coverings worn by members of other religions.234
(ii) RLUIPA
Under RLUIPA, you will first need to show that the prison has substantially burdened your religious
exercise by not permitting you to wear your religious attire.235 If you make such a showing, the court will then
determine whether the restriction furthers compelling governmental interests by the least restrictive means
available. Because prison safety and security are considered compelling governmental interests, the court will
then need to determine whether the challenged regulations are the least restrictive means of accomplishing the
safety and security goal. Ultimately, the outcome may be similar to that of the First Amendment context,
where objects that threaten security are banned while those that do not are permitted.
As with other RLUIPA claims, if you can show that prison officials allow other prisoners to wear the
religious attire you wish to wear, you may be able to convince the court that the restriction is not the least
restrictive means. For example, in Clarke v. Scribner,236 a federal district court found that a prisoner had put
forward a valid claim under RLUIPA when the prisoner argued that a prison official had refused the prisoner
access to the dining hall unless the plaintiff removed his head covering. In Clarke, the prisoner claimed that
non-Muslim prisoners were allowed to wear their religious attire in the hall.
(g) Medical Tests
Under the Free Exercise Clause, a prison may refuse to accommodate your request not to receive medical
procedures, such as the tuberculosis skin test, based on religious objections. To determine whether an
injunction is appropriate, a court will apply the Turner standard. In most cases, courts have upheld mandatory
tuberculosis testing policies as reasonably related to legitimate objectives of prison administration.237
Because medical testing and inoculation requirements affect the welfare of the entire prison population
and not just the rights of an individual prisoner, courts apply an analysis that is slightly different from that
applied to other limitations of prisoners’ rights. Some courts give significant weight to the fact that
immunization and medical testing requirements are general, do not burden or support one religion over any
231. See Davis v. Clinton, 74 F. App’x 452, 455 (6th Cir. 2003) (upholding prison policy prohibiting Muslim
prisoner from wearing religious garb every day due to the policy's reasonable relationship to valid security concerns).
232. See, e.g., Young v. Lane, 922 F.2d 370 (7th Cir. 1991) (Jewish prisoners and yarmulkes); Standing Deer v.
Carlson, 831 F.2d 1525 (9th Cir. 1987) (Native Americans and religious headbands).
233. Benjamin v. Coughlin, 905 F.2d 571, 578–79 (2d Cir. 1990); Bunny v. Coughlin, 187 A.D.2d 119, 122, 593
N.Y.S.2d 354, 357 (3d Dept. 1993).
234. Benjamin v. Coughlin, 905 F.2d 571, 579 (2d Cir. 1990); Bunny v. Coughlin, 187 A.D.2d 119, 123, 593 N.Y.S.2d
354, 357 (3d Dept. 1993).
236. Clarke v. Scribner, No. CIV S-05-00702 ALA P., 2007 U.S. Dist. LEXIS 69836, at *6 (E.D. Cal. Sept. 12, 2007)
(unpublished).
237. See, e.g., Ballard v. Woodard, 641 F. Supp. 432, 437 (W.D.N.C. 1986) (holding that the free religious exercise
rights of a Muslim prisoner were not violated when he was subjected to tuberculosis testing during the holy month of
Ramadan since the state had a “paramount interest in maintaining the health of its prison population”).
others, and are rationally related to maintaining the health and safety of the prison population and officials.238
In McCormick v. Stalder,239 for example, a federal appeals court held prison officials could constitutionally
quarantine a prisoner who tested positive for tuberculosis and force him to undergo treatment.240
Many courts have also upheld a state statute that required a prisoner to provide a deoxyribonucleic acid
(DNA) sample against a religious challenge. For example, in Shaffer v. Saffle,241 an Oklahoma statute required
individuals convicted of certain offenses (sex-related crimes, violent crimes, and other crimes where biological
evidence was recovered) to provide a DNA sample for a state DNA Offender Database for the purpose of
identifying and prosecuting criminals. A prisoner challenged the statute, contending that it would force him “to
submit to a practice that will require him to deny his faith and condemn him to eternal damnation.”242 The
court held that the prisoner’s First Amendment Free Exercise Clause had not been violated because the statute
was a neutral, generally applicable law that did not discriminate against him based on his religious beliefs.243
(ii) RLUIPA
Under RLUIPA, a prison may refuse to accommodate your request not to receive medical procedures,
provided that if such a refusal constitutes a substantial burden on your religious exercise, it (1) furthers a
compelling government interest (2) by the least restrictive means. 244
As in other RLUIPA cases, you must prove the medical testing or inoculation requirement substantially
burdens your religious exercise. 245 The prison must then prove the regulation furthers a compelling
government interest by the least restrictive means.246 Because most medical procedures potentially affect
the entire prison population’s health, and not just the individual prisoner’s rights, the court will likely
conclude the procedure protects the health of the prison population and thus furthers a compelling
government interest. 247 Your best chance of successfully challenging a medical testing or inoculation
requirement may be arguing the specific test is not the least restrictive means of testing you.
In Jolly v. Coughlin, for example, a Rastafarian prisoner was placed in “medical keeplock” for refusing to
take a tuberculosis test.248 The court held that while the government’s interest in preventing the spread of
tuberculosis is compelling, keeping the prisoner in “medical keeplock” violated RFRA because even if the
prisoner had tested positive for latent tuberculosis and refused to take the medication, he would have been
placed back in the general population.249 Results like Jolly, however, are fact-specific, and your chance of
successfully challenging a medical testing or inoculation requirement under RLUIPA, as under the First
Amendment Free Exercise Clause, is probably slim.250
D. Your Rights Under State Statutes
In addition to federal law, many states have statutes ensuring prisoners’ rights to practice their religion.
This Part mentions specific state statutes for New York, Texas, and California in areas that differ from what is
explained in the rest of this Chapter. These statutes provide remedies to state prisoners in state court that are
238. See generally Ballard v. Woodard, 641 F. Supp. 432 (W.D.N.C. 1986).
239. McCormick v. Stalder, 105 F.3d 1059 (5th Cir. 1997).
240. McCormick v. Stalder, 105 F.3d 1059 (5th Cir. 1997).
241. Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998).
242. Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir. 1998).
243. Shaffer v. Saffle, 148 F.3d 1180, 1181–82 (10th Cir. 1998).
247. See Johnson v. Sherman, CIV S-04-2255 LKK EFB P, 2007 U.S. Dist. LEXIS 24098, at *10–11 (E.D. Cal.
Mar. 30, 2007) (unpublished) (finding that prison established a compelling governmental interest in protecting prisoners
and correctional staff from tuberculosis).
248. Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996).
249. Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996).
250. See Johnson v. Sherman, No. CIV S-04-2255 LKK EFB P, 2007 U.S. Dist. LEXIS 24098, at *12 (E.D. Cal.
Mar. 30, 2007) (unpublished) (denying injunction to Rastafarian prisoner challenging prison’s requirement that he
undergo a tuberculin skin test to test for latent tuberculosis because “[t]he tuberculosis skin test is the only medically
accepted test available to discover latent tuberculosis in California’s prisons.”); see also Soder v. Williamson, No. 4:07-
CV-1851, 2008 U.S. Dist. LEXIS 68513, at *14–16 (M.D. Pa. Aug. 7, 2008) (unpublished) (finding no grounds for an
RLUIPA violation where prison officials had tested a prisoner for tuberculosis using a chest X-ray—the method that the
prisoner requested—and observing that the state has a particularly “clear and compelling interest in detecting highly
contagious and potentially dangerous” diseases).
not exclusive of the remedies available in federal court. In other words, you may sue under a state statute, a
federal statute, and/or the U.S. Constitution. Make sure that you check for the most recent version of the law
in your state before you file a claim.
1. New York
Section 610(1) of the New York Corrections Law declares that you are entitled to the “free exercise and
enjoyment of religious profession and worship, without discrimination or preference.”251 Subdivision 3 of this
law provides that the rules and regulations of correctional institutions must allow religious services, spiritual
advice, and private ministration from recognized clergy members.252 But, the law also authorizes correctional
institutions to reasonably restrict this right if necessary for proper institutional management.253
A New York court applying this statute has required the redrafting of the Commissioner of Correction’s
rules and regulations to allow for the admission of clergy into a prison for purposes of conducting religious
services.254 However, this allowance is subject to reasonable limitation by the Commissioner of the Department
of Correctional Services (DOCS) and by wardens for purposes of prison security or other legitimate prison
interests. 255 Note that courts have also interpreted Section 610 to require the presence of a “non-inmate
spiritual leader” at all religious congregations in prison, and the non-inmate spiritual leader must be
registered and approved pursuant to prison directives.256 You should read Section 610 carefully, along with the
cases cited in the corresponding Notes of Decisions, which can be found in the same volume of McKinney’s
Consolidated Laws as the statute, just after the statute’s text.
In addition to Section 610, you may also bring claims under the New York state constitution. In
determining the legality of a restriction limiting your right to free exercise of religion under the New York state
constitution, courts will balance the “importance of the right asserted and the extent of the infringement ...
against the institutional needs and objectives being promoted.”257 In general, New York courts follows the same
analysis as claims brought under the U.S. Constitution. Therefore, if you believe a New York law or DOCS
directive interferes with your right to free exercise of religion, you should be prepared to make an argument
using the constitutional analysis provided earlier in this Chapter.
Although New York state courts follow the same general constitutional analysis as federal courts, there are
some differences that you should be aware of when evaluating whether you have a viable claim.
For example, New York courts and DOCS have adopted a specific rule concerning initial haircuts and
shaves for purposes of obtaining identification photographs.258 Under this rule, a prison may not require all
prisoners to have their haircut upon admission, as there are less intrusive alternatives available that do not
increase any administrative burden (for example, tying one’s hair back).259 An initial haircut requirement is
therefore an unconstitutional violation of religious rights under New York law. But, a prison can still require
prisoners to undergo an initial shave, since there are “no less intrusive alternatives for photographing the
underlying facial features.”260 Note, however, that DOCS seems to recognize computer imaging as a viable
alternative to the initial shave requirement.261
251. N.Y. Corr. Law § 610(1) (McKinney 2003).

252. See generally Brown v. McGinnis, 10 N.Y.2d 531, 536, 180 N.E.2d 791, 793, 225 N.Y.S.2d 497, 501 (1962)
(holding that Muslim prisoner has right to spiritual advice from clergymen of his religion under Section 610).
253. N.Y. Corr. Law § 610(1) (McKinney 2003).
254. See SaMarion v. McGinnis, 55 Misc.2d 59, 61, 284 N.Y.S.2d 504, 507–08 (Sup. Ct. Erie County 1967) (requiring
the redrafting of paragraphs 3, 7, 16, & 17 of § 610 of the Corrections Law to permit the admission of clergy for religious
ministry after Black Muslims alleged denial of their right to practice their religion).
255. SaMarion v. McGinnis, 55 Misc.2d 59, 61, 284 N.Y.S.2d 504, 508 (Sup. Ct. Erie County 1967).
256. State of New York, Department of Correctional Services, Directive No. 4750 (2003) (dealing with “Volunteer
Services Programs”); State of New York, Department of Correctional Services, Directive 4760 (1989) (dealing with “Inmate
Group Activities and Organizations”); State of New York, Department of Correctional Services, Directive 4202 F-2-a-(3)
(1982) (providing that, with specific authorization of the facility Superintendent, prisoners shall be permitted to observe
their congregational worship services when led by employee chaplains or outside religious volunteers, and to attend
religious study, meetings, classes, study groups, or congregational worship of their respective religious faith).
257. Lucas v. Scully, 71 N.Y.2d 399, 406, 521 N.E.2d 1070, 1073, 526 N.Y.S.2d 927, 930 (1988).
258 . See State of New York, Department of Correctional Services, Directive 4914 (2001) (discussing “Inmate
Grooming Standards”).
259. See People v. Lewis, 115 A.D.2d 597, 598, 496 N.Y.S.2d 258, 260 (2d Dept. 1985), aff’d, 68 N.Y.2d 923, 502
N.E.2d 988, 510 N.Y.S.2d 73 (1986).
260. See People v. Lewis, 115 A.D.2d 597, 598, 496 N.Y.S.2d 258, 260 (2d Dept. 1985); see also Phillips v. Coughlin,
586 F. Supp. 1281, 1285 (S.D.N.Y. 1984) (denying Rastafarian’s claim for damages after an initial shave pursuant to
DOCS has also adopted specific rules for facial hair post-admission. Under this rule, although prisoners
cannot grow facial hair longer than one inch from the face, there is a religious exemption for the one-inch
requirement for those whose religious tenets prohibit the cutting of facial hair.262
Likewise, DOCS has adopted specific dietary rules. Prisoners in New York prisons may avoid eating foods
forbidden by their religious beliefs, in which case the prison must provide them with a nutritionally adequate
diet.263 Under these rules, prisons must provide Muslim and Jewish prisoners with a pork-free diet.264 DOCS
policy also provides Muslim, Buddhist, and Orthodox Jewish prisoners special meals during certain
holidays.265 Despite these provisions, there are limitations to the religious meals and ceremonies a prisoner can
demand. For example, a court held a Jewish prisoner could not insist on preparing his meals himself, nor could
he require that only a Jewish or Muslim cook prepare them. Since the prison provided the prisoner with pork-
free meals, it did not have to meet his other preparation demands for valid budgetary reasons.266
2. California
Section 5009(a) of the California Penal Code states that “[i]t is the intention of the Legislature that all
prisoners shall be afforded reasonable opportunities to exercise religious freedom.”267 Section 3210(a) of the
California Administrative Code also states, “[i]nstitution heads shall make every reasonable effort to provide
for the religious and spiritual welfare of all interested inmates.”268
California statutory law also guarantees specific religious rights. Section 3054, for example, says that
“[e]ach facility shall make reasonable efforts ... to accommodate those inmates who have been verified to
require special religious diets,”269 and shall establish a procedure for provision of such meals. Prisoners with
special religious needs may even be transferred to another facility better able to accommodate them.
3. Texas
In contrast to both New York and California, Texas statutory law contains little mention of prisoners’
religious freedoms and offers no specific guarantees. Section 351.0415(c)(1) of the local government code
assigns to sheriffs the authority to use commissary proceeds to “fund, staff, and equip a program addressing
the social needs of the county prisoners, including an educational or recreational program and religious or
rehabilitative counseling.” 270 No other provision under Texas law specifically protects the free exercise of
religion in prison or sets a standard of review for such claims.
E. Faith-Based Rehabilitation Programs
In the past few years, there has been an increase in the number of faith-based rehabilitation programs
within state prison facilities, many initiated by volunteer evangelical Christian organizations (the Prison
Fellowship Ministries in particular). 271 What makes these faith-based programs different from other
religious-based organizations within the prison is their implementation by the state and the “special
treatment” participating prisoners seem to receive.
Directive 4914, since a single shave is the “simplest, quickest and most comfortable method” of satisfying the security need
for a clean-shaven identification photograph).
261. See Helbrans v. Coombe, 890 F. Supp. 227, 230 (S.D.N.Y. 1995) (noting that DOCS and prisoner reached an
agreement in which DOCS allowed a Jewish prisoner to pay for a computer-generated photograph that displayed his
image without his beard as an alternative to the initial shave requirement) .
262. See State of New York, Department of Correctional Services, Directive 4914 III-B-2 (2001).
263. See State of New York, Department of Correctional Services, Directive 4202(b) (1982). But see Bunny v.
Coughlin, 187 A.D.2d 119, 123, 593 N.Y.S.2d 354, 357 (3d Dept. 1993) (holding that a Rastafarian prisoner was not entitled
to dietary restrictions because the prison did not have the resources to accommodate him).
264. See State of New York, Department of Correctional Services, Directive 4202(b) (1982); see also Majid v.
Leonardo, 172 A.D.2d 914, 568 N.Y.S.2d 200, 201 (3d Dept. 1991) (finding that Halal meals for Muslim prisoners are not
required given budgetary constraints and staff resources and because pork-free meals are already provided).
265. See Benjamin v. Coughlin, 905 F.2d 571, 579–80 (2d Cir. 1990) (noting the provision of special meals).
266. Malik v. Coughlin, 158 A.D.2d 833, 834, 551 N.Y.S.2d 418, 419 (3d Dept. 1990).
267. Cal. Penal Code § 5009(a) (West 2000).
268. Cal. Code Regs. tit. 15, § 3210(a) (2008).
269. Cal. Code Regs. tit. 15, § 3054(a) (2008).
270. Tex. Loc. Gov’t. Code Ann. § 351.0415(c)(1) (Vernon 1997).
271. See Daniel Brook,When God Goes to Prison, Legal Affairs, May–June, 2003 at 22; Samantha M. Shapiro,
Jails for Jesus, Mother Jones, Nov.–Dec., 2003 at 54.
These faith-based programs raise serious constitutional questions. While the Supreme Court has not yet
decided the constitutionality of these faith-based rehabilitation programs, several state and federal courts
have done so.272 In Americans United for Separation of Church and State v. Prison Fellowship Ministries,273
an Iowa federal district court held the challenged faith-based program violated the Establishment Clause.274
Much of the court’s decision in that case, however, turned on the fact that the program was state funded,
conducted in a state prison by a private religious organization, and all instruction (with the exception of one
subject) was presented from the viewpoint of Evangelical Christianity.275 It is unclear how a similar case
would come out if the program were privately funded, or if the program was less religiously oriented.
Courts generally treat faith-based prison addiction treatment programs differently (primarily Alcoholics
Anonymous and Narcotics Anonymous, which “are rooted ... in a regard for a ‘higher power’”).276 Rather than
holding that these programs violate the Establishment Clause, courts tend to say simply prisoners cannot be
required to participate in faith-based programs,277 and some go so far as requiring secular alternatives.278
F. Conclusion
The previous Parts indicate that the law is not always clear concerning your right to religious freedom.
This lack of clarity is due to the difficulty of balancing the strongly opposed interests involved. On one side lies
your constitutional and statutory right to freely exercise your religion, combined with the prohibition against
state establishment of religion. On the other side is the prison system’s desire to maintain safety and order in
penal institutions. To bring a claim concerning any of your religious rights in prison, you must be mindful of
the following criteria that courts examine.
If you feel that your prison has violated the Establishment Clause, you must convince the court that the
prison’s regulations fail the Lemon test and the Lee coercion rule. Remember that the courts are recognizing
both tests until the Supreme Court clarifies which one is proper.
To bring a free exercise of religion claim under RLUIPA/RFRA, you must first allege that you fall under
RLUIPA/RFRA’s jurisdiction. In the RLUIPA context, the easiest way to do so is to plead that RLUIPA applies
to you because your prison or prison system receives federal funds. Recall that for federal prisoners to bring a
RFRA claim, you must simply allege that your rights were either violated while you were a federal prisoner, or
violated by an agent of the federal government acting in his or her official capacity.
After making this jurisdictional showing, you must then convince the court that your religious exercise has
been substantially burdened. If you succeed, the court will then require the government to show that the
burden upon your religious exercise furthers a compelling governmental interest by the least restrictive means.
While this is the government’s burden, you will want to argue that the interest is not compelling, the means
used are not the least restrictive, or both.
To bring a free exercise claim under the First Amendment of the Constitution, you must first convince the
court that your religion is authentic and that your beliefs are sincere. The court will then apply the Turner test
to determine (1) whether there is a rational connection between the prison regulation and the governmental
interest claimed to justify it, (2) whether there are other ways of exercising your right despite the regulation,
(3) if allowing you to exercise your right will cause a “ripple effect” on others in the prison and on the allocation
272. See, e.g., Americans United for Separation of Church and State v. Prison Fellowship Ministries, 432 F. Supp.
2d 862, 934 (S.D. Iowa 2006) (holding that a faith-based prison program violated prisoners’ Establishment Clause rights
under the 1st Amendment and the Iowa Constitution), affirmed in part, reversed on other grounds, 509 F.3d 406 (8th Cir.
2007); Williams v. Huff, 52 S.W.3d 171, 192 (Tex. 2001) (holding that a faith-based prison program violated prisoners’
Establishment Clause rights under the 1st Amendment).
273. Americans United for Separation of Church and State v. Prison Fellowship Ministries, 432 F. Supp. 2d 862
(S.D. Iowa 2006), affirmed in part, reversed on other grounds, 509 F.3d 406 (8th Cir. 2007).
274. Americans United for Separation of Church and State v. Prison Fellowship Ministries, 432 F. Supp. 2d 862,
933 (S.D. Iowa 2006), affirmed in part, reversed on other grounds, 509 F.3d 406 (8th Cir. 2007).
275. Americans United for Separation of Church and State v. Prison Fellowship Ministries, 432 F. Supp. 2d 862,
918–21 (S.D. Iowa 2006), affirmed in part, reversed on other grounds, 509 F.3d 406 (8th Cir. 2007).
276. Inouye v. Kemna, 504 F.3d 705, 710 (9th Cir. 2007).
277. See, e.g., Kerr v. Farrey, 95 F.3d 472, 478–80 (7th Cir. 1996) (holding that prisoner could not be required to
participate in Narcotics Anonymous, nor could he have his security classification raised for refusing to do so); Turner v.
Hickman, 342 F. Supp. 2d 887, 895–98 (E.D.Cal. 2004) (holding that requiring prisoner to participate in Narcotics
Anonymous in order to be eligible for parole violated the Establishment Clause).
278. See, e.g., Warner v. Orange County Dep’t of Probation, 115 F.3d 1068, 1081 (2d Cir. 1997) (holding forced
attendance at Alcoholics Anonymous as a probation condition violated the Establishment Clause and requiring county to
make a non-religious treatment alternative available).
of prison resources, and (4) whether there is an easier way for the prison to meet the regulation’s goal without
limiting your right in this way. Remember that unlike in the RLUIPA/RFRA context, you have the burden of
proving the fourth element under the Turner test.
APPENDIX A
LIST OF RELIGIOUS ORGANIZATIONS

Below is a list of organizations that might be able to assist you in practicing your religion in prison. Most of
these organizations do not provide legal assistance, and unless otherwise stated, probably do not have an
outreach program specifically for prisoners. The JLM makes no endorsement or recommendation of any of the
following organizations or religions, nor guarantees they will be able to help you.
Antiochian Orthodox Christian Croatian Catholic

Orthodox Christian Prison Ministry Croatian Church of St. Cyril & Methodius
V. Rev. Father David Ogan 502 W. 41st St.
P.O. Box 1600 New York, NY 10036
Elk Grove, CA 95759 (212) 563-3395; FAX: (212) 868-1203
(916) 714-3455
Roman Catholic (including Spanish and
Armenian Apostolic French-Speaking)
Armenian Church of America, Eastern Diocese Catholic League for Religious and Civil Rights
630 Second Ave. 450 Seventh Ave.
(212) 686-0710; FAX: (212) 252-0681 (212) 371-3191; FAX: (212) 371-3394
This group does not provide legal assistance.
Bahá’í But, it will advocate informally on your behalf
National Spiritual Assembly of the Bahá’ís by contacting your prison warden if you are
of the United States Roman Catholic and prevented in some way
866 U.N. Plaza, Suite 120 from practicing your religion.
New York, NY 10017-1822
(212) 803-2500 Catholic Detention Ministry
2112 North Main St., Suite 220
Buddhist Santa Ana, CA 92706
Tu An Zen Temple (714) 667-2973
4310 W. 5th St. This ministry recruits, trains, and schedules
Santa Ana, CA 92703 volunteers and chaplains to provide Roman
(714) 265-2357 Catholic services in detention facilities and
Vietnamese and Chinese speakers available. focuses on the spiritual care of prisoners.
Byzantine Catholic Asociación Nacional de Sacerdotes

Byzantine Catholic Church Hispanos en USA
Most Rev. Archbishop Basil Schott (The National Association of Hispanic
66 Riverview Ave. Priests of the USA)
Pittsburgh, PA 15214-2253 2472 Bolsover, Suite 442
(412) 231-4000; FAX: (412) 231-1697 Houston, TX 77005
(713) 528-6517; FAX: (713) 528-6379
Chinese Catholic
Ascension Chinese Catholic Church Coptic Christian
4605 Jetty Lane St. Mark’s Coptic Orthodox Church
Houston, TX 77072 1600 S. Robertson Blvd.
(281) 575-8855; FAX: (281) 575-6940 Los Angeles, CA 90035
(310) 275-3050
Greek Orthodox Native American/Indigenous
Greek Orthodox Church See Appendix IV of the JLM for a list of several
Archdiocese of America organizations that work with Native
8 E. 79th St. Americans and address some Native American
New York, NY 10075 religious concerns.
(212) 570-3500; FAX: (212) 570-3569
Serbian Orthodox
Hindu Saint Steven’s Serbian Orthodox Cathedral
Hinduism Today 1621 W. Garvey Ave.
Kauai’s Hindu Monastery Alhambra, CA 91803
107 Kaholalele Rd. (626) 284-9100; FAX: (626) 281-5045
Kapaa, HI 96746-9304
(808) 822-3012; FAX: (808) 822-4351 Shi’a Muslim
Subscriptions are available to Hinduism Shi’a Ithna Asheri Jamaat of New York
Today. 48-67 58th St.
Woodside, NY 11377
Hindu Temple Society of Southern California (718) 507-7680
1600 Las Virgenes Canyon Rd.
Calabasas, CA 91302 Miscellaneous/
(818) 880-5552; FAX: (818) 880-5583 Interdenominational
Prison Ashram Project
Islamic Human Kindness Foundation
American Muslim Council P.O. Box 61619
1005 W. Webster, Suite 3 Durham, NC 27715
Chicago, IL 60614 (919) 383-5160 FAX: (919) 383-514
(773) 248-3390
Islamic Society of North America
P.O. Box 38
Plainfield, IN 46168
(317) 839-8157; FAX: (317) 839-1840
Jainist
Federation of Jain Associations in
North America (JAINA)
JAINA Headquarters
P.O. Box 700
Getzville, NY 14068
(716) 636-5342; FAX: (716) 636-5342
Jewish
Aleph Institute
Executive Director of Legal Affairs
9540 Collins Ave.
Surfside, FL 33154
(305) 864-5553; FAX (305) 864-5675
This organization serves the needs of Jews of all
backgrounds who are in institutional
environments, including the military, hospitals,
and prisons. Volunteers conduct prison visits,
particularly in conjunction with religious
holidays. It provides religious education, legal
advocacy on behalf of religious rights, and
assistance to prisoners’ families.
Manual
Chapter 28:
Rights of Prisoners with
Disabilities

8th Edition 2009
LEGAL DISCLAIMER
CHAPTER 28
RIGHTS OF PRISONERS WITH DISABILITIES∗
A. Introduction
This Chapter explains the right of prisoners with physical and/or mental disabilities to be free from
disability discrimination. As a prisoner with one or more disabilities, you have legal rights based in the U.S.
Constitution, federal civil rights laws, and some state laws. These laws forbid discrimination against you
because of your disability.
Part A of this Chapter gives a summary of the laws protecting prisoners with disabilities. Part B of this
Chapter is about the two major federal laws protecting your rights to be free from disability discrimination:
Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 1 and the Americans with Disabilities Act
(“ADA”).2 It also explains what you need to prove in a legal claim under the ADA.3 Your rights are mostly
the same under Section 504 and Title II of the ADA (“Title II” or “ADA Title II”), so if you file a lawsuit
claiming disability discrimination, you should ask for relief under both statutes.4 Part C of this Chapter
talks about how you can enforce your rights under both Section 504 and Title II, and explains what a court
can and cannot order under the law, including some recently imposed restrictions.
If you are not receiving the services you need or are being discriminated against because of your
disability, you may have a constitutional claim as well as a Section 504 and Title II ADA claim. For example,
prison officials’ treatment of disabled prisoners—particularly denying them medical care—can sometimes be
bad enough to violate the Eighth Amendment’s prohibition against “cruel and unusual punishment.”5 This
Chapter, however, does not talk about your constitutional rights. To learn more about your constitutional
rights, including your right to adequate medical care, you should read these other JLM chapters: Chapter
23, “Your Right to Adequate Medical Care”; Chapter 26, “Infectious Diseases: AIDS, Hepatitis, and
Tuberculosis in Prison”; and Chapter 29, “Special Issues for Prisoners with Mental Illness.” Other chapters
that are especially useful for all prisoners include Chapter 4, “How to Find a Lawyer”; Chapter 14, “The
Prison Litigation Reform Act”;6 Chapter 15, “Inmate Grievance Procedures”; and Chapter 16, “Using 42
U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of Federal Law.”
Although the protections given to you by Section 504 and the ADA have been recently weakened by the
courts, they are still important civil rights and anti-discrimination laws. Prisoners with disabilities have
won important victories using these laws, from class action lawsuits to individual suits in many federal
* This Chapter was revised by Amy E. Lowenstein based on a previous version by Robert Lougy. Special thanks to James
Harrington of the Texas Civil Rights Project for his valuable comments.
1. Rehabilitation Act of 1973, 29 U.S.C. § 794 (2006).
2. Americans with Disabilities Act, 42 U.S.C. §§ 12101–213 (2006).
3. The ADA contains many sections. These sections are called “Titles.” Title II of the ADA will be the most
important ADA section for your claims. Title II of the ADA protects you from discrimination because of your disability by
state and local government entities, including prisons and jails. Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Americans with
Disabilities Act, 42 U.S.C. §§ 12131–34 (2006).
4. Americans with Disabilities Act, 42 U.S.C. § 12133 (2006) (“The remedies, procedures, and rights set forth in
section 794a of title 29 [§ 504 of the Rehabilitation Act of 1973] shall be the remedies, procedures, and rights this
subchapter provides to any persons alleging discrimination on the basis of disability in violation of Title II of the ADA.”).
5. See, e.g., Lawson v. Dallas County, 286 F.3d 257, 263–64 (5th Cir. 2002) (holding a prison’s failure to provide
rehabilitation therapy, adequate toilet facilities, and a bed with an adequate mattress to a paraplegic prisoner was
medical neglect and inhumane treatment that violated the prisoner’s 8th Amendment rights); LaFaut v. Smith, 834 F.2d
389, 392–94 (4th Cir. 1987) (holding deprivation of prescribed rehabilitation therapy and adequate toilet facilities
violated 8th Amendment); see also Miller v. King, 384 F.3d 1248, 1261–62 (11th Cir. 2004) (holding that allegations by a
wheelchair-using paraplegic claiming that the prison failed to provide him wheelchair repairs, physical therapy, medical
consultations, leg braces and orthopedic shoes, wheelchair-accessible showers and toilets, opportunity to bathe, urinary
catheters, and assistance in using the toilet raised a material factual issue under the 8th Amendment), vacated and
superseded on other grounds, 449 F.3d 1149 (11th Cir. 2006); Allah v. Goord, 405 F. Supp. 2d 265, 275–76 (S.D.N.Y.
2005) (holding an allegation by a wheelchair-using prisoner that he was strapped in too loosely in a vehicle and was
injured in sudden stops stated an 8th Amendment claim).
6. This Chapter is particularly important for you to read, as it discusses important restrictions on prisoners’
lawsuits that could affect your § 504 or ADA claim.
courts. This Chapter will explain how you, as a prisoner with a disability, can use these laws to protect your
rights while incarcerated.
B. The Americans with Disabilities Act and Section 504 of the Rehabilitation Act
C. Introduction
The kinds of claims you can file depend partly on whether you are in a state, federal, or private facility.
Section 504 and Title II are two different laws that protect you in similar ways against discrimination.
Section 504, which applies both to the federal government and to state and local entities that receive federal
financial assistance, was enacted by Congress in 1973. In 1990, Congress passed the ADA, which expanded
and strengthened Section 504’s protections.7 The language of Section 504 and Title II is very similar, and
courts read them to prohibit the same basic forms of discrimination. You should start researching your claim
by reading the two laws carefully because most cases focus on how to interpret the statutes. Because these
two laws offer you basically the same protections, much of the discussion of the ADA in this Chapter will
apply equally to Section 504, and vice versa.
If you are a prisoner in a federal prison or a non-citizen detainee in a federal detention center, you can
file suit only under Section 504. You cannot use the ADA because the ADA cannot be used to sue the federal
government.8 Also, if you sue a federal agency under Section 504, you can ask only for an injunction, not
money damages.9 (An injunction is a court order requiring the respondent prison or agency to correct the
violation.)
If you are a prisoner in a privately operated prison, you are probably protected by Title III of the ADA
(“Title III” or “ADA Title III”), which applies to public accommodations,10 but you are probably not protected
by Title II. Title II and Title III are very similar. However, under Title III you must show that the private
prison is a “public accommodation” 11 rather than a “public entity.” Private prisons or other public
accommodations sued under Title III have different legal defenses than states or local governments sued
under Title II lawsuits.12 Although there are these minor differences between Title II and Title III, the
7. The ADA greatly expands the § 504 protections for persons with disabilities in certain areas of the law. For
instance, the ADA requires private stores, restaurants, and banks to accommodate persons with disabilities. The ADA
also provides persons with disabilities protection against employment discrimination because of their disabilities. But for
prisons, jails, and state and local government entities, the ADA and § 504 are quite similar.
8. The ADA defines “public entity” as “any department, agency, special purpose district, or other instrumentality
of a State or States or local government.” 42 U.S.C. § 12131(1)(B) (2006). This definition does not include agencies of the
federal government. See Cellular Phone Taskforce v. FCC, 217 F.3d 72, 73 (2000) (noting that the ADA does not apply to
the federal government); Disability Rights Section, U.S. Dep’t of Justice, Americans with Disabilities Act: Title II
Technical Assistance Manual, II-1.2000, available at http://www.usdoj.gov/crt/ada/taman2.html (last visited Jan. 15,
2009). English and Spanish DOJ printed materials on the ADA are available free of charge by contacting the DOJ by
mail or phone. To order materials by mail, write to: U.S. Department of Justice, Civil Rights Division, 950 Pennsylvania
Ave., NW, Disability Rights - NYAV, Washington, D.C. 20530. In your letter, include the name of the publication you are
seeking. To order materials by phone, call the ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TDD).
Automated phone service is available 24 hours a day for recorded information and to order publications. You may also be
able to reach a live person who will answer specific questions about the ADA in English or Spanish if you call Monday to
Friday, 9:30 am to 5:30 pm EST, except on Thursdays, when the hours are 12:30 pm to 5:30 pm. Publications are
available in standard print, large print, audiotape, Braille, and computer disk for people with disabilities.
9. Lane v. Pena, 518 U.S. 187, 200, 116 S. Ct. 2092, 2100, 135 L. Ed. 2d 486, 497–98 (1996) (holding that Congress
did not waive the federal government’s immunity against awards of monetary damages for violations of the
Rehabilitation Act, which means the federal government can be liable to you and can award you damages).
10. 42 U.S.C. §§ 12181–89 (2006).
11. 42 U.S.C. § 12181(7) (2006) (defining “public accommodation”).
12. Instead of defending itself by arguing that accommodating your disability might create a “fundamental
alteration,” a private prison can defend itself by arguing that correcting the problem is not “readily achievable.” See Part
B(4)(b)(i) of this Chapter to learn more about the fundamental alteration defense. “The term ‘readily achievable’ means
easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is
readily achievable, factors to be considered include: (A) the nature and cost of the action needed under this chapter; (B)
the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such
facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C)
the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the
number of its employees; the number, type, and location of its facilities; and (D) the type of operation or operations of the
covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic
separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.” 42 U.S.C.
§ 12181(9) (2006). See also 42 U.S.C. §§ 12182(b)(2)(A)(iv)–(v) (2006).
discussion of Title II and Section 504 will generally apply to your Title III claim as well. However, you
should still try to read some Title III cases.
Section 504 of the 1973 Rehabilitation Act
Section 504 of the 1973 Rehabilitation Act states:
No otherwise qualified individual with a disability ... shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any [Federal] Executive
agency...13
Section 504 guarantees that individuals who are qualified to participate in a program, service, or activity
will have meaningful access if the service or activity is offered by a state or local recipient of federal funds.14
Under Section 504, a “program or activity” is defined very broadly to include “all of the operations” of a state
or local government.15 Thus, Section 504 applies not only to federal facilities but also to any state, county, or
city prison or jail receiving federal financial assistance directly or through a state or local government.16
This, of course, includes almost every state prison and many jails.17
Title II of the Americans with Disabilities Act
One of the major goals of the ADA was to eliminate discrimination against persons with disabilities by
public and private actors.18 The ADA has three main sections (called “Titles”), only one of which applies to
state and local entities. If you pursue an ADA claim against a state prison or a county jail, you will file under
Title II, which applies to all state and local governments. The protections against discrimination provided by
Title II and Section 504 are very similar, but the ADA has stronger regulations. Title II provides:
[N]o qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.19
The ADA defines many of the terms in the above paragraph, including: “qualified individual with a
disability,” 20 “disability,” 21 and “public entity.” 22 However, the statute does not define the key phrase
13. Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (2006).

14. Alexander v. Choate, 469 U.S. 287, 301, 105 S. Ct. 712, 720, 83 L. Ed. 2d 661, 672 (1985) (noting § 504 requires
state and local governments receiving federal funds to provide “meaningful access to the benefit” they offer).
15. Rehabilitation Act of 1973, 29 U.S.C. §§ 794(b)(1)(A)–(B) (2006) (defining “program or activity” as “all of the
operations of a department, agency, special purpose district, or other instrumentality of a State or a local government; or
the entity of such State or local government that distributes such assistance and each such department or agency (and
each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or
local government”).
16. Rehabilitation Act of 1973, 29 U.S.C. § 794(b) (2006); Bellamy v. Roadway Exp., Inc., 668 F. Supp. 615, 618
(N.D. Ohio 1987) (noting that “the term ‘federal financial assistance’ has been very broadly construed to encompass
assistance of any kind, direct or indirect”); Jim C. v. United States, 235 F.3d 1079, 1081 (8th Cir. 2000) (noting that
acceptance of funds by one state agency does not constitute a waiver by the state as a whole, so the state is still subject
to suit).
17. But see Nolley v. County of Erie, 776 F. Supp. 715, 742–43 (W.D.N.Y. 1991) (holding that a prison that
received money in exchange for housing federal prisoners was not considered to be receiving federal financial assistance,
but was instead receiving money in exchange for performing a service for the federal government), rev’d on other
grounds, 798 F. Supp. 123 (W.D.N.Y. 1992).
18. Americans with Disabilities Act, 42 U.S.C. § 12101(b)(1) (2006) (stating that one of the goals of the ADA is to
“provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with
disabilities”). The ADA also prohibits discrimination against you because of your association with a person with a
disability. 28 C.F.R. § 35.130(g) (2007); Niece v. Fitzner, 922 F. Supp. 1208, 1216 (E.D. Mich. 1996) (finding possible
violation of ADA where prison officials refused to provide accommodation necessary for prisoner to communicate with his
deaf fiancée).
19. Americans with Disabilities Act, 42 U.S.C. § 12132 (2006).
20. Americans with Disabilities Act, 42 U.S.C. § 12131(2) (2006) (defining “qualified individual with a disability”
as anyone “with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the
essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a
public entity”).
“services, programs, or activities.” It is very important that you understand how courts have interpreted and
applied both the defined and the undefined terms to claims made by prisoners with disabilities. Parts B(3)–
(5) of this Chapter will discuss these terms.
Necessary Elements of an ADA Title II and Section 504 Claim
You must include several basic elements in your ADA/Section 504 complaint; if you don’t, the court will
dismiss your lawsuit. Fortunately, most of the elements are the same for both statutes, so a well-pleaded
complaint23 for one statute will likely meet the requirements of the other as well.
To state a Title II ADA claim, your complaint must say that:
(1) You are an individual with a disability;
(2) You are “qualified to participate in or receive the benefit of” the particular program or activity of the
prison or jail that discriminated against you;
(3) You were excluded from participation in or denied the benefits of the prison or jail’s services,
programs, or activities, or were in some other way discriminated against; and
(4) This exclusion, denial of benefits, or discrimination was because of your disability.24
A claim under Section 504 is very similar to a claim under the ADA, but with one additional
requirement. Section 504 covers all federal facilities and only those state or local facilities that receive
federal funding, so your complaint must state that the federal facility or state prison or jail receives federal
funding. 25 Be sure to state in your complaint that the facility receives federal funding. 26 Other than the
federal funding requirement, a Section 504 claim is very much like an ADA claim. So, your Section 504
complaint must say that:
a. You are an individual with a disability;
b. You are “otherwise qualified” for the program, activity, or services from which you were excluded;
c. You were denied benefits or subject to discrimination solely because of your disability; and
d. The program, activity, prison, or jail receives federal financial assistance.27
If your Section 504 claim is about physical access within a prison or jail, you should state that the
facility violated a statute that has been the law for more than thirty years. By pointing this out, you will be
showing that the prison has little basis for arguing that it was not aware that it had to be accessible to
individuals with disabilities.
Many of the terms above will be explained in more detail later, but it is important to remember that both
the ADA and Section 504 are anti-discrimination laws. Your complaint should be clear as to how prison
officials or guards have discriminated against you because of your disability. The rest of Part B of this
Chapter gives more detail about how courts have interpreted the ADA and Section 504 in the prison context.
21. Americans with Disabilities Act, 42 U.S.C. §§ 12102(2)(A)–(C) (2006) (“The term ‘disability’ means ... a
physical or mental impairment that substantially limits one or more of [a person’s] ... major life activities ... ; a record of
such impairment; or being regarded as having such an impairment.”).
22. Americans with Disabilities Act, 42 U.S.C. §§ 12131(1)(A)–(B) (2006) (defining “public entity” as “any State or
local government” or “any department, agency, special purpose district, or other instrumentality of a State or States or
local government”).
23. A well-pleaded complaint is a complaint that “sufficiently sets forth a claim for relief.” It must include
“grounds for the court’s jurisdiction, the basis for the relief claimed, and a demand for judgment.” Black’s Law Dictionary
303 (8th ed. 2004) (definition of “well-pleaded complaint”).
24. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (discussing requirements for ADA Title II claim); see
also Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997) (discussing necessary elements of an ADA Title II claim).
25. See, e.g., Thomas v. Nakatani, 128 F. Supp. 2d 684, 694 (D. Haw. 2000) (dismissing § 504 claim because it did
not allege that state agency received federal funds), aff’d, 309 F.3d 1203 (9th Cir. 2002); Hamilton v. Ill. Cent. R.R., 894
F. Supp. 1014, 1022 (S.D. Miss. 1995) (dismissing § 504 claim because plaintiff failed to allege that private facility
received federal financial assistance).
26. When you file your complaint, you probably will not know for sure whether the jail or prison receives federal
funding. This is something you could learn more about during discovery (the process of obtaining information about your
case in preparation for trial). When you are giving documents to the court and you believe something to be true but are
not sure if it is, you should begin your statement with the phrase, “Upon information and belief.” For example, in your §
504 complaint, you should say something like, “Upon information and belief, [the jail or prison you are suing] receives
federal funding.”
27. Doe v. Pfrommer, 148 F. 3d 73, 82 (2d Cir. 1998) (describing essential elements of § 504 claim).
D. What is Discrimination?
The ADA regulations describe certain categories of action by public entities that are considered
“discrimination” under the ADA. The categories are large, and discussing them may be helpful in
understanding what conduct the ADA prohibits. Keeping in mind the main goals of the ADA—preventing
discrimination, integrating people with disabilities into the mainstream, and providing strong and
consistent enforceable standards addressing discrimination against individuals with disabilities28—can help
you understand why particular actions are considered discrimination. The following paragraphs discuss
types of actions that constitute discrimination under the ADA.
The ADA prohibits public entities from denying an otherwise qualified person with a disability “the
opportunity to participate in or benefit from” a program or service solely because of his disability.29 This is
one of the most common types of discrimination prohibited by the ADA. For instance, under the ADA, if you
meet the requirements for participating in a vocational program, the prison cannot deny you participation in
the program just because of your disability.30
The ADA requires public entities, like prisons and jails, to provide individuals with disabilities with
benefits or services that are equal to those provided to individuals without disabilities.31 For example, the
ADA prohibits the prison from providing only one therapy session per week to a paraplegic prisoner while
providing two sessions per week to prisoners without this disability, if the disability is the only reason for
giving fewer services. Similarly, if a prison offers GED classes for individuals with hearing disabilities, it
cannot offer a lower quality program than that offered to individuals without disabilities. Something to
consider, however, is that the ADA does not prohibit the prison from canceling both programs.
A prison may provide “different or separate aids, benefits, or services” to individuals with disabilities,
but only in order to maximize the effectiveness of the program for the people with the disabilities.32 The
prison cannot exclude individuals with disabilities from the non-disability programs if the prisoner wants to
participate in them.33
It is discrimination if a prison provides “significant assistance to an agency, organization, or person that
discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public
entity’s program.” 34 This prohibition makes clear that not only the prison, but also the state or local
government providing funding for its operations, can be in violation of the ADA by providing “significant
assistance” to a prison—including a private prison—that discriminates on the basis of disability. If you are
in a private prison, this type of claim will help you sue the state or local entity contracting with the prison.
The ADA prohibits public entities from using criteria or methods of administration that have the effect
of defeating or substantially impairing the accomplishment of the objectives of the public entity’s program
with respect to people with disabilities.35 This means that a prison cannot run its programs in a way that
keeps prisoners with disabilities from being able to participate in them, even if disabled prisoners are not
explicitly excluded. For instance, if a vision-impaired prisoner cannot enroll in a business class because the
print on the enrollment application is too small for him to read, this is discrimination under the ADA. The
prison would have to provide another way of enrolling in the business class that doesn’t exclude the prisoner.
Not all of the above categories have been dealt with in the prison context. As discussed in Part C of this
Chapter, courts are generally hostile to prisoner lawsuits, including ADA and Section 504 claims. Although
the ADA regulations prohibit certain types of discrimination, courts may still find ways to avoid enforcing
the law against prisons.
28. Americans with Disabilities Act, 42 U.S.C. §§ 12101(a)(8), (b)(1)–(2) (2006).

29. 28 C.F.R. § 35.130(b)(1)(i) (2007).
30. See, e.g., Montez v. Romer, 32 F. Supp. 2d 1235, 1237 (D. Colo. 1999) (noting prisoners’ claim that they could
not participate in vocational training because the prison did not accommodate their disabilities).
31. 28 C.F.R. § 35.130(b)(1)(ii) (2007).
32. 28 C.F.R. § 35.130(b)(1)(iv) (2007). See also 28 C.F.R. pt. 35, app. A, at 549 (2007) (discussing 28 C.F.R. §
35.130(b)(1)(iv) (2007), which explains that the Department of Justice “recognizes that promoting integration of
individuals with disabilities into the mainstream of society is an important objective of the ADA and agrees that, in most
instances, separate programs for individuals with disabilities will not be permitted”).
33. 28 C.F.R. § 35.130(b)(2) (2007).
34. 28 C.F.R. § 35.130(b)(1)(v) (2007).
35. 28 C.F.R. § 35.130(b)(3)(ii) (2007).
E. What is a Disability?
Under both the ADA and Section 504, you are a person with a disability if: (1) a physical or mental
impairment substantially limits one or more of your major life activities; (2) you have a record of such an
impairment; or (3) you are regarded as having such an impairment.36 If you satisfy any one of these three
tests, you are considered an individual with a disability under the ADA and Section 504. If you currently
have a disability, like an uncorrectable hearing impairment, you would be disabled under the first test.
Under the second test, you might be considered disabled if, for example, you have a record of having cancer
that actually substantially limited your ability to care for yourself in the past, but the cancer is now in
remission.37 Finally, you may have a claim under the third test if prison officials discriminate against you
because they believe you have a mental impairment that substantially limits your ability to learn, when in
fact you do not have a mental impairment, or, if you do, the impairment does not substantially limit your
ability to learn.38
The definition of disability has two parts. First, the disability at issue must be a physical or mental
impairment. The meaning of “physical or mental impairment” is explored in Subsection (a) below. Second,
the impairment must substantially limit one or more major life activities. The meanings of “substantially
limits” and “major life activity” are discussed in Subsection (b).
(a) What is a “Physical or Mental Impairment”?
The implementing regulations (rules spelling out the details of the law) of the U.S. Department of
Justice (“DOJ”) for the ADA define a “physical or mental impairment” to include a wide range of physical
and mental conditions, diseases, and disorders. The list covers almost every major body system and many
mental and psychiatric conditions. 39 The regulations also list specific diseases and conditions that are
physical or mental impairments. The phrase physical or mental impairment includes, but is not limited to,
contagious and non-contagious diseases and conditions, such as orthopedic, visual, speech and hearing
impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether
symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.40 This list is not complete, so
diseases and conditions not listed may still be considered physical or mental impairments if they meet the
definition of impairment given above.
If you are HIV-positive, you should note that the definition of physical impairment includes
asymptomatic HIV (meaning that you are HIV-positive but are not exhibiting any symptoms). 41 For
36. Rehabilitation Act of 1973, 29 U.S.C. § 705(20)(B) (2006 & Supp. 2007); Americans with Disabilities Act, 42
U.S.C. § 12102(2) (2006). Note: although the cases that have defined what kinds of disability and impairment must be
shown in order to qualify a person to bring a claim under the ADA mostly have been employment cases, the rules drawn
from the cases apply fully to any claim brought by prisoners. Cases involving claims brought by prisoners have cited
these employment cases as applying generally to all ADA claims. See, e.g., Carter v. Taylor, 540 F. Supp. 2d 522, 528 (D.
Del. 2008) (citing Toyota Motor Mfg. Inc. v. Williams, 534 U.S. 184, 199, 122 S. Ct. 681, 692, 151 L. Ed. 2d 615, 632
(2002)) (applying the “case-by-case manner” standard to a prisoner’s disability claim under the ADA); Smith v.
Masterson, 538 F. Supp. 2d 653, 657 (S.D.N.Y. 2008) (citing Second Circuit’s adoption of the “major life activity”
requirement in the discussion of a Title II ADA claim brought by a prisoner).
37. See, e.g., EEOC v. R.J. Gallagher Co., 181 F.3d 645, 655–56 (5th Cir. 1999) (noting that a man with a record of
cancer may have a disability under the ADA if the cancer or treatment actually substantially limited him in one or more
major life activities).
38. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S. Ct. 2139, 2150, 144 L. Ed. 2d 450, 466–67 (1999)
(holding that individuals “regarded as” disabled qualify as “disabled,” within the meaning of the ADA, as long as the
prison has “misperceptions” about the person—the prison “must believe either that one has a substantially limiting
impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is
not so limiting”); see also Murdock v. Washington, 193 F.3d 510, 512 (7th Cir. 1999) (dismissing prisoner’s disability
discrimination claim, because the plaintiff said that he was not HIV-positive, and he did not allege that prison officials
regarded him as disabled).
39. 28 C.F.R. § 35.104(1)(i) (2007) (defining “physical or mental impairment” as “any physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological,
musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive,
genitourinary, hemic and lymphatic, skin, and endocrine [or] [a]ny mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities”).
40. 28 C.F.R. § 35.104(1)(ii) (2007).
41. 28 C.F.R. § 35.104(1)(ii) (2007); see also Bragdon v. Abbott, 524 U.S. 624, 637–41, 118 S. Ct. 2196, 2204–07,
example, if you are asymptomatic HIV-positive and the prison denies you trustee status because of your HIV
status, you have possible ADA and Section 504 claims.42 Drug addiction is also considered an impairment, as
long as are not currently using drugs, and have completed or are currently enrolled in a drug rehabilitation
program. In this situation, the prison cannot discriminate against you on the basis of your past drug
addiction.43 However, the laws and regulations do not prohibit discrimination based on a person’s current
illegal use of drugs.44 Other conditions and diseases that courts have found could be physical or mental
impairments in the prison setting include asthma, 45 deafness and other hearing impairments, 46
quadriplegia, 47 paraplegia, 48 amputations or artificial limbs, 49 certain stomach and digestive problems, 50
blindness or other vision impairments, 51 degenerative disk conditions, 52 and other disabilities. 53 It is
141 L. Ed. 2d 540, 556–59 (1998) (holding that, under the ADA, HIV infection is a physical impairment “from the
moment of infection” and on the facts of the case, an asymptomatic HIV-positive woman was disabled under the ADA).
42. Harris v. Thigpen, 941 F.2d 1495, 1524 (11th Cir. 1991) (holding that HIV-positive status is a disability under
§ 504 because the correctional system treated HIV-positive people as if they were disabled); Dean v. Knowles, 912 F.
Supp. 519, 522 (S.D. Fla. 1996) (allowing an asymptomatic HIV-positive prisoner to go forward with his discrimination
case against prison officials who denied him trustee status).
43. 28 C.F.R. §§ 35.131(a)(2)(i)–(iii) (2007) (“A public entity shall not discriminate on the basis of illegal use of
drugs against an individual who is not engaging in current illegal use of drugs and who (i) Has successfully completed a
supervised drug rehabilitation program or has otherwise been rehabilitated successfully; (ii) Is participating in a
supervised rehabilitation program; or (iii) Is erroneously regarded as engaging in such use.”).
44. 28 C.F.R. § 35.131(a)(1) (2007) (“[T]his part does not prohibit discrimination against an individual based on
that individual’s current illegal use of drugs.”). Section 504 contains similar language. Rehabilitation Act of 1973, 29
U.S.C. § 705(20)(C)(i) (2006). “Current illegal use of drugs” is defined as the illegal use of drugs “recent[] enough to
justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem.” 28
C.F.R. § 35.104 (2007). According to the regulation, “[t]he term ‘individual with a disability’ does not include an
individual who is currently engaging in the illegal use of drugs, when the public entity acts on the basis of such use.” 28
C.F.R. § 35.104 (2007).
45. See, e.g., Wesley v. Vaughn, No. 99-1228, 1999 U.S. Dist. LEXIS 18098, at *14 (E.D. Pa. Nov. 18, 1999)
(unpublished) (finding prisoner with asthma could go forward with his ADA claim that alleged prison’s practice of
locking the shower doors at the end of the shower period discriminated against people with respiratory disabilities);
McIntyre v. Robinson, 126 F. Supp. 2d 394, 408 (D. Md. 2000) (finding that though asthma can be considered a disability
in the prison context, it is subject to a case-by-case analysis, because it is an easily controlled ailment).
46. See, e.g., Duffy v. Riveland, 98 F.3d 447, 454–55 (9th Cir. 1996) (finding that a deaf prisoner was disabled
under the ADA and § 504 and allowing him to go forward with claim against prison for failure to provide a qualified
interpreter in prison disciplinary and classification hearings); Calloway v. Glassboro Dep’t of Police, 89 F. Supp. 2d 543,
546 (D.N.J. 2000) (finding that a deaf arrestee could go forward with her ADA and § 504 case for failure to provide a
qualified interpreter during questioning at the police station); Niece v. Fitzner, 922 F. Supp. 1208, 1217 (E.D. Mich.
1996) (recommending that a prisoner be allowed to proceed with his case against the Department of Corrections for
failure to provide a Telecommunications Device for the Deaf (“TDD”), which would allow him to communicate with his
deaf girlfriend over the phone); Clarkson v. Coughlin, 898 F. Supp. 1019, 1036–38 (S.D.N.Y. 1995) (finding that failure of
prison to accommodate deaf and hearing-impaired prisoners violated the ADA and § 504).
47. See, e.g., Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (affirming judgment of damages for a
quadriplegic who was denied access to prison programs based on his disability).
48. See, e.g., Pierce v. County of Orange, 526 F.3d 1190, 1214–22 (9th Cir. 2000) (finding that prisoner with
paraplegia could go forward with his ADA claim).
49. See, e.g., Schmidt v. Odell, 64 F. Supp. 2d 1014, 1032 (D. Kan. 1999) (finding that double amputee could go
forward with his ADA and § 504 claims and argue that he was denied the benefit of the jail’s basic services because of his
disability); Kaufman v. Carter, 952 F. Supp. 520, 533 (W.D. Mich. 1996) (refusing to give summary judgment against
double amputee because of conditions alleged in his complaint); Outlaw v. City of Dothan, No. CV-92-A-1219-S, 1993
U.S. Dist. LEXIS 21063 (M.D. Ala. Apr. 27, 1993) (unpublished) (finding it significant that prison did not disagree that
prisoner who wore an artificial leg was a “qualified individual with a disability”).
50. See, e.g., Scott v. Garcia, 370 F. Supp. 2d 1056, 1074–75 (S.D. Cal. 2005) (holding that eating is a major life
activity, and holding that plaintiff with stomach and digestive problems raised a material factual issue under the ADA
when he submitted evidence that he could not partake of the prison meal service because he did not receive enough time
to eat or the option to eat small frequent meals).
51. See, e.g., Williams v. Ill. Dep’t of Corr., No. 97 C 3475, 1999 U.S. Dist. LEXIS 18190, at *15 (N.D. Ill. Nov. 16,
1999) (unpublished) (holding that defendant’s extreme myopia constituted a disability where the defendant
acknowledged the condition as disabling in the pleading); Armstrong v. Davis, 275 F.3d 849, 857–58 (9th Cir. 2001)
(finding that parole board provided inadequate accommodations to the visually impaired going through the parole
process, which constituted a valid part of an ADA claim).
52. See, e.g., Saunders v. Horn, 960 F. Supp. 893, 901 (E.D. Pa. 1997) (finding that prisoner with degenerative
disk disorder stated a claim under § 504 and the ADA).
53. See, e.g., Raines v. State of Florida, 983 F. Supp. 1362, 1372–74 (N.D. Fla. 1997) (holding that a prison policy
important to note that in many of these cases, either the court did not decide the issue of whether the
individual was disabled, or the court ultimately decided that the particular plaintiff was not disabled. These
cases simply give examples of the types of impairments courts have said could qualify as disabilities as long
as the claims are backed up with facts, and if the impairment substantially limits the particular individual
in a major life activity. (What it means to be substantially limited in a major life activity will be discussed in
Subsection (b) below.)
Being gay, lesbian, bisexual, or transgender is not a “physical or mental impairment” under the ADA.54
(For information on special issues for gay, lesbian, bisexual, and transgendered or transsexual prisoners, see
Chapter 30 of the JLM.) Furthermore, the ADA regulations explicitly exclude certain “conditions” from the
definition of “physical or mental impairment” or “disability,” 55 such as “transvestism, transsexualism,”
“sexual behavior disorders” (such as pedophilia or exhibitionism), and “gender identity disorders not
resulting from physical impairments.”56 If you file a complaint in federal court alleging that one of these
conditions or identities is a disability or impairment, the court will almost certainly dismiss your case.57
However, you may be able to file such a claim under a state statute, so you should consult statutes and case
law for the state in which you live.
(b) When is an Impairment a Disability?
To be considered disabled under the ADA and Section 504, it is not enough for you to prove that you
have a physical or mental impairment. You also will have to show that the impairment substantially limits
you in one or more major life activities.58 The decision about whether an impairment substantially limits a
major life activity is made on a case-by-case basis, meaning the court will look at how an impairment limits
you, not at how an impairment usually limits a person. 59 If you have an impairment (like a vision
impairment) that limits different people in different ways, you must show that your own particular
limitation is substantial.60
Note that the impairment does not have to be current. If you are discriminated against because you have
a record of an impairment, that is considered discrimination under the ADA.61 A record of an impairment is
when you have a history of having an impairment that substantially limits a major life activity, or when you
have been misclassified as having an impairment that substantially limits a major life activity.62 In addition,
even if you have no history of the impairment, you are disabled under the ADA if you are “regarded as
having such an impairment.” 63 There are three instances when you might be “regarded as having” an
impairment: (1) you have an impairment that does not substantially limit a major life activity but you are
treated as if your impairment does limit you in that way; (2) you have an impairment that limits you in a
excluding prisoners physically or mentally unable to perform work from the full benefits of the “incentive gain time”
program may be a violation of the ADA); Armstrong v. Wilson, 942 F. Supp. 1252, 1254 (N.D. Cal. 1996) (finding that a
certified class made up of prisoners with mobility, hearing, vision, kidney, and learning disabilities stated a claim under
the ADA), aff’d, 124 F.3d 1019 (9th Cir. 1997).
54. 28 C.F.R. §§ 35.104(1)(iii), (5)(i) (2007).
55. 28 C.F.R. § 35.104 (2007).
56. 28 C.F.R. § 35.104(5)(i) (2007).
57. See Chapter 14 of the JLM, “The Prison Litigation Reform Act,” for a discussion of the “three strikes rule” and
other negative consequences of filing a suit that is dismissed.
58. Rehabilitation Act of 1973, 29 U.S.C. § 705(20)(B)(i) (2006); Americans with Disabilities Act, 42 U.S.C. §
12102(2)(A) (2006); 28 C.F.R. § 35.104 (2007).
59. Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566, 119 S. Ct. 2162, 2169, 144 L. Ed. 2d 518, 530 (1999) (noting
that there is a “statutory obligation to determine the existence of disabilities on a case-by-case basis”).
60. Toyota Motor Mfg. Inc. v. Williams, 534 U.S. 184, 199, 122 S. Ct. 681, 692, 151 L. Ed. 2d 615, 632 (2002)
(stating that an “individualized assessment of the effect of an impairment is particularly necessary when the
impairment is one whose symptoms vary widely from person to person”); Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555,
566, 119 S. Ct. 2162, 2169, 144 L. Ed. 2d 518, 530–31 (1999) (noting that some impairments may limit people’s major life
activities in different ways and amounts).
61. 28 C.F.R. § 35.104 (2007) (“Disability means ... a physical or mental impairment that substantially limits one
or more of the major life activities ... [or] a record of such an impairment ...”).
62. 28 C.F.R. § 35.104 (2007) (“The phrase has a record of such an impairment means has a history of, or has been
misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.”).
63. 28 C.F.R. § 35.104 (2007).
major life activity only because of other people’s attitudes towards your impairment; or (3) you do not
actually have an impairment that substantially limits a major life activity, but you are treated as if you do.64
The regulations implementing Title II of the ADA do not define “substantially limits” and almost all of
the cases discussing the term have been about employment discrimination under a different section of the
ADA, Title I.65 (Title I covers employment discrimination. As a prisoner with a disability, you will be filing
under Title II, which applies to discrimination by state or local government agencies.) The regulations for
Title I define “substantially limits” as “[u]nable to perform a major life activity that the average person in
the general population can perform” or “[s]ignificantly restricted as to the condition, manner or duration
under which ... the average person in the general population can perform that same major life activity.”66
You will also have to show that you are substantially limited in a major life activity when your impairment
is in its corrected state or when you are able to take steps to reduce the impact of your impairment.67 For
instance, if you have high blood pressure for which you take medication, you will have the burden of showing
that your high blood pressure substantially limits your activities even when you are medicated.68
The Supreme Court defined “major life activities” as “those activities that are of central importance to
[most people’s] daily li[ves].”69 Department of Justice regulations provide examples of major life activities,
including “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.”70 For example, if you have vision problems and are unable to
read regular-size print in books and magazines or require Braille materials, then your condition limits the
major life activity of seeing.71 Courts have found other activities, like eating72 and reproduction,73 to be major
life activities. If you believe that you are substantially limited in the major life activity of “working,” you
should be aware that the Supreme Court has questioned whether working is a major life activity, at least in
64. 28 C.F.R. § 35.104 (2007). It is unclear how easy it will be for you to claim that you are substantially impaired
as a result of other people’s attitudes towards your disability. In Sutton v. United Air Lines, Inc., the Supreme Court
recognized only two ways in which one might be regarded as disabled—when someone mistakenly believes you have an
impairment that substantially limits you, but you do not have such an impairment, or when you have a “nonlimiting
impairment” that someone believes is actually substantially limiting. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489,
119 S. Ct. 2139, 2149–50, 144 L. Ed. 2d 450, 466–67 (1999). However, Sutton was an employment discrimination case
under Title I of the ADA. Your complaint will be under Title II. Since the Department of Justice has defined the meaning
of “regarded as” discrimination in Title II of the ADA as including discrimination caused by other people’s stereotypes or
attitudes, you should cite to the Title II regulations in your complaint.
65. Americans with Disabilities Act, 42 U.S.C. §§ 12111–17 (2006) (Title I of the ADA covering discrimination in
private employment).
66. 29 C.F.R. § 1630.2(j)(1) (2007); see also Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69, 74–75
(2d Cir. 2000) (noting the proper test is whether plaintiff is “substantially limited in the major life activity of reading by
her slow reading speed, or by any other ‘conditions, manner, or duration’ that limits her reading ‘in comparison to most
people’”).
67. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S. Ct. 2139, 2146, 144 L. Ed. 2d 450, 462 (1999)
(holding courts must consider the negative or positive effects of mitigating or corrective measures in determining
whether a person has a disability that substantially limits a major life activity under the ADA); Murphy v. United Parcel
Serv., 527 U.S. 516, 520–21, 119 S. Ct. 2133, 2137, 144 L. Ed. 2d 484, 489–90 (1999) (noting that determinations of
whether a person has a disability under the ADA are made with respect to mitigating and corrective measures).
68. Murphy v. United Parcel Serv., 527 U.S. 516, 521, 119 S. Ct. 2133, 2137, 144 L. Ed. 2d 484, 490 (1999) (finding
that “whether an individual’s impairment ‘substantially limits’ one or more major life activities should be made in
consideration of mitigating measures”).
69. Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184, 197–98, 122 S. Ct. 681, 691, 151 L. Ed. 2d 615, 631 (2002)
(holding that to be considered “substantially limited in performing manual tasks, an individual must have an
impairment that prevents or severely restricts the individual from doing activities that are of central importance to most
people’s daily lives,” and that the impact of the impairment must be permanent or long-term).
70. 28 C.F.R. § 35.104 (2007).
71. Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 642 (2d Cir. 1998) (noting that to determine whether a
particular activity is a “major life activity,” the proper test is whether “that activity is a significant one within the
contemplation of the ADA, rather than whether that activity is important to a particular plaintiff”).
72. See, e.g., Scott v. Garcia, 370 F. Supp. 2d 1056, 1074 (S.D. Cal. 2005) (holding that eating is a major life
activity, and that a plaintiff with stomach and digestive problems must show that his dietary restrictions are serious
enough to constitute a disability).
73. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 637–42, 118 S. Ct. 2196, 2204–07, 141 L. Ed. 2d 540, 556–59 (1998)
(holding that a woman infected with HIV, though she was asymptomatic, is an individual with a disability because her
HIV infection substantially limits her ability to reproduce, but refusing to decide whether HIV infection is always a
disability under the ADA).
employment discrimination cases.74 The current test for whether you are substantially limited in your ability
to work requires that you be limited in performing a “class of jobs” that makes use of your skills, not just
limited to performing a “single, particular job.”75
The Supreme Court has suggested that the negative effects of steps a person takes to correct or reduce
the impact of an impairment should also be considered in determining whether a person is substantially
limited in a major life activity.76 For example, if you take medication for schizophrenia that reduces the
effects of the schizophrenia, but the medication gives you tremors that make it difficult for you to perform
manual tasks, you might be considered substantially limited.
In the prison context, the requirements of “substantially limits” and “major life activities” are very rarely
a focus of cases under either the ADA or Section 504. If you file a lawsuit against the prison or prison
officials alleging discrimination on the basis of your disability, the case will most likely focus on whether you
are (1) a “qualified individual with a disability,” and (2) whether you were “excluded from participation in
or ... denied the benefits of the services, programs, or activities” of the prison, or discriminated against by
the prison.77 The next two Sections discuss how courts have interpreted these two parts of a disability
discrimination claim in the prison context.
F. Is Every Person with a Disability Protected by the ADA and Section 504?: The
Meaning of “Qualified Individual”
Not everybody meeting the definition of “disability” under the ADA and Section 504 is protected from
discrimination. The ADA and Section 504 prohibit discrimination based on disability only if you are a
“qualified individual with a disability.”78 The ADA defines “qualified individual with a disability” as:
[a person] with a disability who, with or without reasonable modifications to rules,
policies, or practices, the removal of architectural, communication, or transportation
barriers, or the provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs or activities
provided by a public entity.79
Thus, in addition to having a disability, you must also be eligible to participate in or benefit from a
particular program, service, or activity. If you decide to file suit under either the ADA or Section 504, your
complaint must, among other things, state (1) generally what your disability is, and (2) that you are a
“qualified individual with a disability” within the meaning of the ADA and Section 504. The prison, in its
answer to your complaint, might say that even if you do have a disability, you are not a “qualified
individual.” If the prison convinces the court that you are not a qualified individual within the meaning of
the ADA or Section 504, then the court will dismiss your case.
Just because you are a prisoner does not mean you are disqualified from programs or services. The
Supreme Court firmly established that a prisoner is not excluded from being considered a qualified
individual just because he is in prison.80 The Court rejected a prison’s argument that the language of the
ADA implies that “qualified individuals” could not include “prisoners who are being held against their
74. Sutton v. United Air Lines, Inc., 527 U.S. 471, 492, 119 S. Ct. 2139, 2151, 144 L. Ed. 2d 450, 468–69 (1999)
(noting that “there may be some conceptual difficulty in defining ‘major life activities’ to include work”).
75. 29 C.F.R. § 1630.2(j)(3)(i) (2007) (“With respect to the major life activity of working ... substantially limits
means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills and abilities. The inability to perform a single,
particular job does not constitute a substantial limitation in the major life activity of working.”); see also Murphy v.
United Parcel Serv., 527 U.S. 516, 523–25, 119 S. Ct. 2133, 2138–39, 144 L. Ed. 2d 484, 491–92 (1999).
76. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S. Ct. 2139, 2146, 144 L. Ed. 2d 450, 462 (1999)
(stating that “if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of
those measures—both positive and negative—must be taken into account when judging whether that person is
‘substantially limited’ in a major life activity and thus ‘disabled’ under the Act”).
77. See Americans with Disabilities Act, 42 U.S.C. § 12132 (2006); see also Rehabilitation Act of 1973, 29 U.S.C. §
794(a) (2006).
78. Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (2006); Americans with Disabilities Act, 42 U.S.C. § 12132
(2006).
79. Americans with Disabilities Act, 42 U.S.C. § 12131(2) (2006) (defining “qualified individual with a disability”).
80. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210–11, 118 S. Ct. 1952, 1955, 141 L. Ed. 2d 215, 219–20 (1998)
(holding that state prisoners are protected by the ADA).
will.”81 The ADA language does not require voluntariness, the Court found, and even if it did, some activities
and services in prisons (such as use of the law library) are voluntary.82 Thus, prisoners are covered by the
ADA and Section 504 as long as they can meet the definition of disability discussed in section B(3) above and
can show they are “qualified individuals.”
Like many aspects of the ADA and Section 504 that will be important to the success of your suit, the
definition of “qualified individual” has several different parts, each of which the prison might use to try to
defeat your case. Subsection (a) below will discuss what it generally means to be a “qualified individual with
a disability.” Subsection (b) describes the meaning of “reasonable modifications” and the factors the courts
look at in deciding what is reasonable. Subsection (c) discusses auxiliary aids and services, and Subsection
(d) discusses the removal of barriers.
(a) The Meaning of “Qualified Individual with a Disability” in General
To be a “qualified” individual with a disability, you must meet “the essential eligibility requirements
for ... participation in programs or activities.”83 For example, if prisoners convicted of certain offenses are not
allowed to participate in work release, then a person with a disability convicted of that same offense is not
“qualified” for that program.
There are some situations where you will not be considered a “qualified individual” even if you meet
program or activity requirements. You are not a “qualified individual” if the prison can show that because of
your disability, your participation in a program or activity makes you a “direct threat to the health or safety
of others.” 84 The appendix to the Department of Justice Title II regulations defines direct threat as “a
significant risk to the health or safety of others that cannot be eliminated by a modification of policies,
practices, or procedures, or by the provision of auxiliary aids or services.”85 If prison officials are trying to
decide whether someone with a disability poses a direct threat, they must determine “the nature, duration,
and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable
modifications of policies, practices, or procedures will” reduce or eliminate the risk. 86 (The meaning of
reasonable modifications is discussed below.) In making this decision, prison officials must use “reasonable
judgment that relies on current medical evidence or on the best available objective evidence.”87 The prison
may not rely on “generalizations or stereotypes about the effects of a disability;” instead, they must assess
you and your particular disability.88
Courts use the direct threat analysis in Title II and Section 504 cases even though the direct threat
language is not clearly stated in the laws.89 Although you will not be considered a “qualified individual” if
you are found to be a direct threat, it is best to look at a direct threat argument as a defense the prison may
raise to try to defeat your claim. Because it is treated as a defense, the prison will have the burden of
proving that you are a direct threat.90
The direct threat defense to discrimination often comes up for people with infectious diseases, especially
those who are HIV-positive. If you are HIV-positive, you should be aware that several courts have decided
that HIV-positive prisoners, although they are “individuals with a disability,” are not “qualified” for various
prison programs or activities. 91 For example, in Onishea v. Hopper, the Eleventh Circuit rejected
83. Americans with Disabilities Act, 42 U.S.C. § 12131(2) (2006).
84. 28 C.F.R. pt. 35, app. A, at 553 (2007) (analyzing the regulations on Title II of the ADA).
85. 28 C.F.R. pt. 35, app. A, at 553 (2007).
86. 28 C.F.R. pt. 35, app. A, at 553 (2007).
87. 28 C.F.R. pt. 35, app. A, at 553 (2007).
88. 28 C.F.R. pt. 35, app. A, at 553 (2007).
89. See, e.g., Doe v. County of Centre, 242 F.3d 437, 447 (3d Cir. 2001) (explaining the “direct threat” analysis in
an ADA Title II and § 504 case); Dadian v. Village of Wilmette, 269 F.3d 831, 840 n.6 (7th Cir. 2001) (stating that
whether an individual is “otherwise qualified” depends on whether he poses a threat to the safety of others that cannot
be reduced by reasonable accommodation); Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d
725, 735 (9th Cir. 1999) (holding that a person who poses a direct threat or “significant risk” to others is not a qualified
individual under Title II of the ADA).
90. Dadian v. Village of Wilmette, 269 F.3d 831, 840–41 (7th Cir. 2001) (holding that the burden of showing a
direct threat due to a disability is on the entity claiming there is a direct threat).
91. See Chapter 26 of the JLM, “Infectious Diseases: AIDS, Hepatitis, and Tuberculosis in Prison,” for additional
information on the rights of HIV-positive prisoners.
constitutional and Section 504 claims of prisoners who were not allowed to participate in prison recreational,
religious, and educational programs because they were HIV-positive.92 These HIV-positive prisoners could
only participate in a limited number of programs separate from the programs available to the general
population.93 The lower court held HIV-positive prisoners were not “otherwise qualified” to participate in
programs with the general population because of the possibility of high-risk behavior, like violence,
intravenous drug use, and sex.94 The Eleventh Circuit agreed, and found the risk of HIV transmission is
“significant” because of the severe consequences of HIV infection, even if the probability of transmission is
low.95 The Onishea opinion allows a prison to disqualify HIV-positive prisoners from participating in many
programs and significantly reduces Section 504 and Title II’s protections for these prisoners.96
Although the Onishea court claimed to require a program-by-program decision about whether HIV-
positive prisoners are qualified for programs, 97 the decision has the effect of preventing HIV-positive
prisoners from participating in most programs with the general population. Other courts have looked more
closely at the requirements of specific programs to decide whether HIV-positive prisoners are qualified. In
Bullock v. Gomez, the court allowed an HIV-positive prisoner who was excluded from participating in the
conjugal visit program with his HIV-positive wife to continue with his ADA claim because there were
disputed facts as to whether he was otherwise qualified for the program.98 In Doe v. Coughlin, the court
looked at specific program requirements before ultimately deciding that an HIV-positive prisoner was not
qualified for the family reunion program because the program required applicants to be free of
communicable diseases.99
Looking at disability discrimination cases brought by HIV-positive prisoners in your circuit (federal
appellate jurisdiction) will help you to get a better idea of how a court in your area may look at your
discrimination claim. Also, for more information on segregation (separation) of HIV-positive prisoners from
the general population, and other issues of concern to HIV-positive prisoners, see Chapter 26 of the JLM,
“Infectious Diseases: AIDS, Hepatitis, and Tuberculosis in Prison.”
(b) Reasonable Modifications
The ADA requires state and local entities to make “reasonable modifications” to policies, rules, and
practices in order to accommodate (make changes for) people with disabilities100 so that they can participate
in public programs and services. A reasonable modification is basically a change in the way things are
normally done that will allow you, as a person with a disability, to take part in a program or activity, or gain
access to a facility. Reasonable modifications may be simple, like changing a rule that forbids prisoners from
storing food in their cells to allow a person who is diabetic to have some food so that he can keep his “blood
sugar at an appropriate level.”101 Other modifications are more complicated.
92. Onishea v. Hopper, 171 F.3d 1289, 1296–97 (11th Cir. 1999) (reading § 504’s definition of “individual with a
disability” as not including a person “who has a currently contagious disease or infection and who, by reason of such
disease or infection, would constitute a direct threat to the health or safety of other individuals”). The Onishea court
relied on 29 U.S.C. § 705(20)(D) (2006), a section of the Rehabilitation Act that excludes from employment people who
are a direct threat to others because they have a currently contagious disease or infection.
93. Onishea v. Hopper, 171 F.3d 1289, 1292–93 (11th Cir. 1999).
94. Onishea v. Hopper, 171 F.3d 1289, 1293, 1295 (11th Cir. 1999).
95. Onishea v. Hopper, 171 F.3d 1289, 1299 (11th Cir. 1999) (holding “that when transmitting a disease inevitably
entails death, the evidence supports a finding of ‘significant risk’ if it shows both (1) that a certain event can occur and
(2) that according to reliable medical opinion the event can transmit the disease ... [E]vidence of actual transmission of
the fatal disease in the relevant context is not necessary to a finding of significant risk”).
96. Onishea v. Hopper, 171 F.3d 1289, 1305 (11th Cir. 1999) (Barkett, J., dissenting). A dissenting opinion is an
opinion, written by a judge on the court, which disagrees with the court’s decision in a particular case. Dissenting
opinions are not controlling law in any jurisdiction, but you may use them to suggest arguments with which other courts
may agree in future cases.
97. Onishea v. Hopper, 171 F.3d 1289, 1293 (11th Cir. 1999).
98. Bullock v. Gomez, 929 F. Supp. 1299, 1305 (C.D. Cal. 1996) (finding that the prison’s reasons for excluding the
prisoner from the conjugal visit program—transmission of tuberculosis and other strains of HIV—may not be justified,
given that evidence showed the risk of such transmission was low).
99. Doe v. Coughlin, 71 N.Y.2d 48, 61, 518 N.E.2d 536, 544, 523 N.Y.S.2d 782, 790 (1987).
100. Americans with Disabilities Act, 42 U.S.C. § 12131(2) (2006).
101. Disability Rights Section, U.S. Dep’t of Justice, Commonly Asked Questions about the Americans with
Disabilities Act and Law Enforcement (2006), available at http://www.ada.gov/q%26a_law.htm. English and Spanish
DOJ printed materials on the ADA are available free of charge by contacting the DOJ by mail or phone. Publications are
Whether a modification is considered “reasonable” will depend on the specific circumstances and the
modification you are requesting. To decide what is a “reasonable modification,” courts balance the needs of
prisoners with disabilities and the structural, financial, and administrative concerns of the prison. In
particular, courts look at: whether the modification will “fundamentally alter” (result in a large change to) a
program or activity,102 the cost of the modification, and the burden that making the modification would have
on administration of the prison.103 Some courts also look at penological (prison) concerns, such as safety.104
The defendant prison has the burden of showing that a modification would “result in a fundamental
alteration in the nature of a service, program, or activity or in undue [extreme] financial and administrative
burdens,”105 but it is important for you to be prepared for the prison to make these kinds of arguments. Keep
in mind that even if the prison succeeds in showing that changes would fundamentally alter a program or
cause an undue financial or administrative burden, it must still “take any other action” that would “ensure
that individuals with disabilities receive the benefits or services provided” by the prison.106 This means they
are supposed to come up with other ways of making sure you get the benefits that are offered. The following
Subsections briefly describe the fundamental alteration defense, the undue burden defense, and the
penological interests defense a prison might use against your ADA and Section 504 claims.
(ii) Modifications That Result in a Fundamental Alteration to the Prison’s
Programs, Services, or Activities are Not Considered Reasonable.
Prisons do not have to make modifications to a service, program, or activity if doing so would
“fundamentally alter the nature of the service, program, or activity.”107 A fundamental alteration is a change
that is so significant that something essential to the service, program, or activity is lost. This allows prisons
to balance the rights of disabled prisoners against the prison’s interest in preserving the integrity of its
programs.108 If you are seeking a change that would make it difficult for the prison to provide the particular
service or program to other prisoners, this could be considered a fundamental alteration that the prison does
not have to provide.109
(ii) Modifications that Cause an Undue Financial or Administrative Burden
are Not Considered Reasonable.
Prisons also do not have to make modifications that would result in “undue financial and administrative
burdens.”110 For example, in Onishea v. Hopper, discussed above, the court found that hiring additional
guards to prevent high-risk behavior so that HIV-positive prisoners could participate in programs with the
also available from the ADA Website at http://www.ada.gov. For instructions on ordering materials by mail or phone, see
footnote 8 above.
102. 28 C.F.R. §§ 35.130(b)(7), 35.150(a)(3), 35.164 (2007).
103. 28 C.F.R. §§ 35.150(a)(3), 35.164 (2007).
104. See, e.g., Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999) (noting that the prison could present
evidence that giving an interpreter to a deaf prisoner at his disciplinary hearings created safety and security concerns);
Love v. Westville Corr. Ctr., 103 F.3d 558, 561 (7th Cir. 1996) (noting that the defendant prison could justify its refusal
to make reasonable accommodations because of the overall needs of running a prison).
105. See 28 C.F.R. § 35.130(b)(7) (2007) (general application of fundamental alteration defense); 28 C.F.R. §
35.150(a)(3) (2007) (fundamental alteration and undue burden defenses for existing facilities); 28 C.F.R. § 35.164 (2007)
(fundamental alteration and undue burden defense to providing effective communication). Furthermore, the “decision
that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her
designee after considering all resources available for use in the funding and operation of the service, program, or activity
and must be accompanied by a written statement of the reasons for reaching that conclusion.” 28 C.F.R. §§ 35.150(a)(3),
35.164 (2007).
106. 28 C.F.R. §§ 35.150(a)(3), 35.164 (2007).
107. 28 C.F.R. §§ 35.130(b)(7), 35.150(a)(3), 35.164 (2007).
108. See Galusha v. N.Y. State Dept. of Envtl. Conservation, 27 F. Supp. 2d 117, 123 (N.D.N.Y. 1998) (noting that
the Supreme Court struck this balance in Alexander v. Choate, 469 U.S. 287, 300, 105 S. Ct. 712, 720, 83 L. Ed. 2d 661,
671 (1985)).
109. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 604, 119 S. Ct. 2176, 2189, 144 L. Ed. 2d 540, 560 (1999)
(“Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation
would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs
would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large
and diverse population of persons with mental disabilities.”).
110. 28 C.F.R. §§ 35.150(a)(3), 35.164 (2007).
general population would not be a “reasonable accommodation” because it would be too expensive and
therefore an undue financial burden.111 In Spurlock v. Simmons, the court said that it would be an undue
burden on prison officials if a deaf prisoner was allowed unlimited access to a TDD (a telephone for people
who are deaf or have limited hearing) since prison staff had to unlock the office containing the TDD every
time the prisoner needed to make a call.112
The DOJ’s view of its ADA regulations indicates that the undue burden test was supposed to be
prisoner-friendly and difficult for a public entity to meet except in “the most unusual cases.”113 However, the
above examples show that prisons have succeeded in defeating requests for modifications with the undue
burden defense in situations that the DOJ may not have anticipated.
(ii) Overall Institutional Concerns and Penological Interests
The ADA regulations only mention fundamental alterations and undue burdens as arguments prisons
can use to avoid making modifications to accommodate a prisoner with a disability. However, courts have
shown hostility to prisoners’ ADA and Section 504 claims, and have said that prisons may justify not making
modifications because of the “overall institutional requirements” of prisons, such as “[s]ecurity concerns,
safety concerns and administrative” needs.114 In considering these types of justifications for not making
modifications, some courts strongly presume (take for granted) that prison policies are acceptable (this
strong presumption is called deference to prison management).115 In jurisdictions that use this approach, you
will have to provide a lot of evidence to overcome this presumption that prison concerns are legitimate.116
(c) The Turner Test in ADA and Section 504 Claims
Federal circuit courts have used the Turner v. Safley117 “reasonably related” test in ADA and Section 504
cases to decide when a prison policy can legally discriminate against prisoners with disabilities. Under this
test, prison policies are valid if “reasonably related to legitimate penological interests,” meaning the policies
111. Onishea v. Hopper, 171 F.3d 1289, 1303–04 (11th Cir. 1999).
112. Spurlock v. Simmons, 88 F. Supp. 2d 1189, 1196 (D. Kan. 2000) (holding a deaf prisoner had “meaningful
access” to TDD when he was allowed to use it at least twice a week and more frequently if he had a legitimate reason).
113. 28 C.F.R. pt. 35, app. A, at 564 (2007) (discussing 28 C.F.R. § 35.150 and noting that “Congress intended the
‘undue burden’ standard in Title II to be significantly higher than the ‘readily achievable’ standard in Title III” and that
“the program access requirement of Title II should enable individuals with disabilities to participate in and benefit from
the services, programs, or activities of public entities in all but the most unusual cases”); see also Disability Rights
Section, U.S. Dep’t of Justice, Commonly Asked Questions about the Americans with Disabilities Act and Law
Enforcement (2006), available at http://www.ada.gov/q%26a_law.htm (noting that new jails and prisons “must be made
fully accessible to, and usable by, individuals with disabilities,” that there is “no undue burden limitation for new
construction,” and that “if an agency alters an existing facility for any reason—including reasons unrelated to
accessibility—the altered areas must be made accessible to individuals with disabilities”). English and Spanish DOJ
printed materials on the ADA are available free of charge by contacting the DOJ by mail or phone. For information on
ordering publications, see footnote 8 above.
114. Love v. Westville Corr. Ctr, 103 F.3d 558, 561 (7th Cir. 1996) (noting that the defendant prison could, but did
not attempt to, justify its refusal to make reasonable accommodations because of the overall needs of running a prison);
Miller v. King, 384 F.3d 1248, 1266 (11th Cir. 2004) (“[C]ourts must be mindful of the necessary balance between the
ADA’s worthy goal of integration and a prison’s unique need for security, safety, and other penological concerns.”),
vacated and superseded on other grounds, 449 F.3d 1149 (11th Cir. 2006).
115. Gates v. Rowland, 39 F.3d 1439, 1448 (9th Cir. 1994) (noting that separation of powers issues, especially in
regards to state penal systems, favors judicial deference to prison authorities).
116. Armstrong v. Davis, 275 F.3d 849, 874 (9th Cir. 2001) (noting the prisoner has the burden of refuting that
there were legitimate interests behind prison action); see also Gates v. Rowland, 39 F.3d 1439, 1447 (9th Cir. 1994).
117. Turner v. Safley, 482 U.S. 78, 89–91, 107 S. Ct. 2254, 2261–62, 96 L. Ed. 2d 64, 79–80 (1987) (setting out a
reasonableness test to use when a court looks at prisoners’ constitutional challenges to prison regulations).
have to make some sense and be related to an actual prison concern or goal.118 Some courts have used this
test to decide what is a “reasonable” modification under the ADA for prisoners with disabilities.119
The Turner test is usually used to decide your constitutional claims, not statutory claims like the ADA
and Section 504. Some experts believe the Turner reasonableness standard is inappropriate in ADA cases.120
It is better for you when courts do not use the Turner standard, because the ADA and Section 504 require
prisons to make reasonable accommodations to your disabilities, including expensive physical renovations or
other expenditures, 121 In comparison, the Turner reasonableness standard requires only minimal-cost
solutions. However, some courts think the two standards should not be very different from one another.
Some cases require that courts interpret the ADA/Section 504 standard to be consistent with122 or informed
by123 the Turner reasonableness standard.
Gates v. Rowland124 is one of the earlier cases where a court used the Turner test for a prisoner’s Section
504 claim. In Gates, HIV-positive prisoners sued under Section 504 to be allowed to work as food preparers
and servers in a prison food service program. The prison argued that excluding the prisoners based solely on
their HIV status was justified on the grounds that other prisoners “frequently have irrational suspicions or
phobias” about people with HIV that will not be stopped by educating them on the real facts about HIV, as
the Gates plaintiffs suggested.125 Prison officials claimed that allowing HIV-positive prisoners to serve food
could lead to violence from other prisoners directed toward the HIV-positive prisoners and the prison staff.126
The Gates court concluded that the Turner test was the correct test for deciding how far-reaching
prisoners’ rights are under Section 504, even though the Turner test is normally only used for prisoners’
118. Turner v. Safley, 482 U.S. 78, 89–91, 107 S. Ct. 2254, 2261–62, 96 L. Ed. 2d 64, 79–80 (1987). In Turner, the
Supreme Court identified four factors used to determine the “reasonableness” of a challenged prison regulation: (1)
whether there is a “‘valid rational connection’ between the prison regulation and the legitimate governmental interest
put forward to justify it”; (2) whether there are other ways a prisoner can exercise the right that is at issue; (3) “the
impact [that] accommodation … will have on guards and other inmates, and on the allocation of prison resources
generally”; and (4) whether there are “ready alternatives” to the regulation. The “Turner test” is generally used when
prisoners claim that their constitutional rights have been violated. See Chapter 16 of the JLM, “Using 42 U.S.C. § 1983
and 28 U.S.C § 1331 to Obtain Relief From Violations of Federal Law” for further discussion of the Turner test.
119. See, e.g., Thompson v. Davis, 295 F.3d 890, 894 n.4 (9th Cir. 2002) (noting that a prison might be able to give
legitimate penological justifications for considering certain disabilities in parole decisions, particularly where the
disability is a history of substance abuse); Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999) (noting that prison
should be allowed to present evidence that giving interpreter to deaf prisoner at disciplinary hearings created safety and
security concerns); Onishea v. Hopper, 171 F.3d 1289, 1300 (11th Cir. 1999) (allowing the use of a test almost identical to
the Turner “reasonably related to legitimate penological interests” test, despite explicitly stating that the Turner test
“does not, by its terms, apply to” the ADA); Crawford v. Ind. Dep’t of Corr., 115 F.3d 481, 487 (7th Cir. 1997) (noting that
what is “reasonable” or an “undue” burden is different in the prison context and that concerns about security are
relevant to whether accommodations for disabled prisoners are “feasible”); Gates v. Rowland, 39 F.3d 1439, 1447–48 (9th
Cir. 1994) (applying Turner test to uphold policy of excluding HIV-positive prisoners from food service assignments);
Kaufman v. Carter, 952 F. Supp. 520, 532 (W.D. Mich. 1996) (noting that the idea that prisoners’ ADA rights are limited
by “legitimate penological interests” is sensible).
120 . See Christopher J. Burke, Note, Winning the Battle, Losing the War?: Judicial Scrutiny of Prisoners’
Statutory Claims Under the Americans with Disabilities Act, 98 Mich. L. Rev. 482, 495–98 (1999) (arguing that (1)
Turner’s rationale regarding the restrictions of constitutional rights are not applicable to statutory rights because
statutes represent congressional determinations of policy and resource allocation; (2) statutory rights allow Congress to
provide guidance to prison administrators as well as allow flexibility and modification if the statute is found unworkable;
and (3) legislation such as the ADA provides a great amount of detail to courts and prison administrators, whereas
constitutional rights are necessarily dependent upon judicial determinations).
121. But see Olmstead v. L.C., 527 U.S. 581, 607, 119 S. Ct. 2176, 2190, 144 L. Ed. 2d 540, 562 (1999) (holding
that a state’s ADA obligations are determined “taking into account the resources available to the State”).
122. Gates v. Rowland, 39 F.3d 1439, 1446–47 (9th Cir. 1994) (holding Turner standard applicable to review of
ADA statutory rights). Compare further with Amos v. Md. Dep’t of Public Safety & Corr. Servs., 178 F.3d 212, 220 (4th
Cir. 1999) (rejecting application of Turner as inconsistent with Yeskey, which noted that statutory privileges need not
always be limited in the same ways as constitutional protections), judgment vacated on other grounds, 205 F.3d 687 (4th
Cir. 2000). But see Pierce v. County of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008) (acknowledging debate over Gates’
application of Turner reasonableness rule, but not reaching the question of whether Yeskey effectively overruled Gates).
123. Onishea v. Hopper, 171 F.3d 1289, 1300–01 (11th Cir. 1999) (en banc) (holding that a court can consider the
Turner standard when applying the ADA).
124. Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994).
125. Gates v. Rowland, 39 F.3d 1439, 1448 (9th Cir. 1994).
126. Gates v. Rowland, 39 F.3d 1439, 1447–48 (9th Cir. 1994).
constitutional claims.127 Using the Turner test, the court upheld the policy that discriminated against HIV-
positive prisoners, stating that the prison authorities had a “reasonable basis for [the] restriction based on
legitimate penological concerns.”128
Courts that follow the Gates approach of deciding whether a prison policy is reasonably related to real
penological interests often uphold challenged discriminatory conduct. However, this is not always the
case.129 In your complaint, be sure to provide the court with the appropriate language from the ADA, Section
504, and the regulations for these laws. The ADA and Section 504 (as written by Congress) and the ADA
regulations (as implemented by the DOJ) are generally more protective of your rights as a prisoner with
disabilities than many courts recognize. You should emphasize the extent to which the laws and regulations
plainly protect your rights.130
(d) Provision of Auxiliary Aids and Services
The ADA and Section 504 also require a prison or jail to provide you with auxiliary aids or services that
will help you, as a prisoner with a disability, to participate in the programs and activities of the prison or
jail. As with modifications, the prison or jail only has to provide these aids or services if they are considered
reasonable. Examples of aids and services for hearing impaired people include
Qualified interpreters, notetakers, transcription services, written materials,
telephone handset amplifiers, assistive listening devices, assistive listening systems,
telephones compatible with hearing aids, closed caption decoders, open and closed
captioning, telecommunications devices for deaf persons (TDD’s), [or] videotext
displays.131
Examples of aids and services for people with visual impairments include “[q]ualified readers, taped
texts, audio recordings, Brailled materials, [or] large print materials.” 132 Other aids and services might
include providing a prisoner who is an amputee with a wheelchair, shower chair, and similar assistive
devices.133
If you meet all of the eligibility requirements for a program, but cannot participate without an aid,
services such as those mentioned above, or other devices and services, then the ADA requires the prison to
provide those aids and services that will allow you to participate. But, as with modifications, a prison may
justify not providing aids and services by saying the request is not reasonable and then using the undue
burden defense or even the Turner test to justify its actions or lack of action.
Prisoners with hearing impairments have been particularly successful with ADA and Section 504 claims
that prisons discriminated against them by failing to provide auxiliary aids and services such as sign
language interpreters and other devices to assist them in communicating. Courts have found that prisons
violate the ADA and Section 504 by failing to provide qualified interpreters during reception and
classification, counseling sessions, administrative or disciplinary hearings, and medical treatment and
diagnosis.134 Some courts have also found that a lack of interpreters in such settings violates prisoners’ due
127. Gates v. Rowland, 39 F.3d 1439, 1447–48 (9th Cir. 1994).

128. Gates v. Rowland, 39 F.3d 1439, 1448 (9th Cir. 1994).
129. See, e.g., Chisholm v. McManimon, 275 F.3d 315, 327 (3d Cir. 2001) (refusing to decide whether the Turner
test is appropriate in ADA and § 504 claims, but noting that the prison’s mention of “security” concerns without evidence
showing these security concerns were legitimate would not be enough under the Turner test even if it were used);
Armstrong v. Davis, 275 F.3d 849, 874 (9th Cir. 2001) (finding that the state failed to meet its burden under the Turner
test by not presenting “any justification, rational or not,” for its parole hearing policies that discriminated against
prisoners and parolees with hearing and vision impairments and learning and developmental disabilities).
130. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843–44, 104 S. Ct. 2778, 2782, 81 L. Ed.
2d 694, 703 (1984) (holding where Congress gives an agency power to interpret a law with regulations, the regulations
have “controlling weight unless they are arbitrary, capricious,” or clearly contrary to the law).
131. 28 C.F.R. § 35.104 (2007).
132. 28 C.F.R. § 35.104 (2007).
133. See Schmidt v. Odell, 64 F. Supp. 2d. 1014, 1031–33 (D. Kan. 1999) (allowing a double amputee prisoner to go
forward with his ADA and § 504 suit against the county jail that delayed in providing him with a shower chair and
refused to transfer him to a jail that had enough space for him to use a wheelchair).
134. Clarkson v. Coughlin, 898 F. Supp. 1019, 1034–35 (S.D.N.Y. 1995) (holding that failure to provide hearing
impaired prisoners with qualified interpreters and other assistive devices for numerous programs, services and activities
violated the ADA and § 504). See also Duffy v. Riveland, 98 F.3d 447, 453–56 (9th Cir. 1996) (allowing deaf prisoner to go
forward with claim that the prison failed to provide him with a qualified interpreter for classification and disciplinary
process, Eighth Amendment, and constitutional privacy rights.135 The term qualified interpreter is defined as
“an interpreter who is able to interpret effectively, accurately, and impartially both receptively and
expressively, using any necessary specialized vocabulary.” 136 Thus, a prison guard with only basic sign
language ability is not a qualified interpreter, because he is not impartial nor is he able to interpret
effectively. Also, an individual who knows Signed English is not a qualified interpreter for a prisoner with a
hearing impairment who primarily communicates in American Sign Language (“ASL”), or vice versa.137
Interpreters are not the only services hearing-impaired prisoners have successfully demanded under the
ADA and Section 504. The ADA also requires public entities to provide persons with disabilities the
opportunity to request chosen auxiliary aids and services and give “primary consideration to the requests of
the individual with disabilities.”138 The regulations also impose duties on the prison to provide persons with
disabilities notice of protections the ADA affords them,139 and to make a grievance mechanism available to
individuals claiming the state or local agency has failed to make programs and services accessible to
disabled individuals.140 In Clarkson v. Coughlin, the court held the prison violated the ADA and Section 504
by failing to provide various adaptations for the deaf, including telephone communication devices (“TDD”),
closed-caption decoders for the televisions, and alarms visually alerting prisoners to fire.141 Other courts
have held that a failure to provide TDD for the deaf fiancée of a prisoner may violate the ADA.142
(e) Architectural Barriers
If your complaint is about physical access within the prison or jail, keep in mind that the regulations
implementing the ADA are prisoner-friendly, because they do not allow the prison to defend its action by
claiming that providing you with the services is an “undue burden.”143 Facilities such as this are considered
“new construction.” For example, if you are housed in a cellblock that was built or changed significantly
since 1992 and you cannot use your wheelchair when accessing the bathrooms or showers because the
entrances are too narrow, the prison cannot say it would cost too much to make modifications that would
allow you to use your wheelchair. If you are in or need to access a unit, cellblock, or compound created or
significantly altered after 1992—even if the rest of the prison was built before 1992—and your complaint is
hearings in violation of the ADA and § 504).

135. Clarkson v. Coughlin, 898 F. Supp. 1019, 1033, 1042 (S.D.N.Y. 1995) (holding that, by failing to provide
qualified interpreters or other needed assistive devices for medical and mental health treatment, the Department of
Corrections and prison officials violated deaf prisoners’ 14th Amendment substantive due process rights, the 8th
Amendment’s ban on cruel and unusual punishment, and the constitutional right to privacy).
136. 28 C.F.R. § 35.104 (2007).
137. Clarkson v. Coughlin, 898 F. Supp. 1019, 1026–27, (S.D.N.Y. 1995) (indicating that an interpreter who uses
Signed English is not qualified to interpret for a prisoner who uses American Sign Language).
138. 28 C.F.R. § 35.160(b)(2) (2007); see Section II-7.1100, Primary consideration, Disability Rights Section, U.S.
Dep’t of Justice, Technical Assistance Manual, Title II, ADA, available at http://www.usdoj.gov/crt/ada/taman2.html (last
visited Oct. 21, 2008) (discussing the importance of considering the choice of aids of the individual with a disability).
139. 28 C.F.R. § 35.106 (2007) (describing requirement that public entities notify people with disabilities of their
rights under the ADA); see also 28 C.F.R. § 35.163(a) (2007) (“A public entity shall ensure that interested persons,
including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible
services, activities, and facilities.”).
140. 28 C.F.R. § 35.107(b) (2007) (“A public entity that employs 50 or more persons shall adopt and publish
grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be
prohibited by this part.”).
141. Clarkson v. Coughlin, 898 F. Supp. 1019, 1047 (S.D.N.Y. 1995). But see Spurlock v. Simmons, 88 F. Supp. 2d
1189, 1196 (D. Kan. 2000) (holding that providing deaf prisoner only limited telephone access, while permitting other
prisoners unlimited access, did not violate the ADA because the request for unlimited access was unreasonable and
prisoner failed to suggest any accommodation). Clarkson also held deaf female prisoners were discriminated against
based on sex because New York had a special prison unit that could accommodate many of the needs of deaf and
hearing-impaired male prisoners, but did not have a similar unit for female prisoners. Clarkson v. Coughlin, 898 F.
Supp. 1019, 1051 (S.D.N.Y. 1995).
142. Niece v. Fitzner, 922 F. Supp. 1208, 1216 (E.D. Mich. 1996) (finding possible violation of ADA in prison
officials’ refusal to provide accommodations necessary for the prisoner to communicate with his deaf fiancée).
143. 28 C.F.R. §§ 35.151(a)–(b) (2007) (“Each facility or part of a facility altered by, on behalf of, or for the use of a
public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the
maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and
usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.”).
about your ability to physically access those parts of the facility, you should point out in your complaint the
fact that significant changes have been made since 1992 and cite to the regulations.
If you have a disability that restricts your mobility or requires that you use a cane, wheelchair, or other
assistive device, many courts have said that prisons must make reasonable accommodations for your
disability. Although some courts have found that the ADA does not create any right for a prisoner to be
housed at a specific prison,144 at least one court has found that where a specific unit exists for treatment of
prisoners with particular disabilities, transfers of eligible prisoners out of, or refusals to transfer eligible
prisoners into, that unit for disciplinary, safety, medical, or mental health reasons violates the ADA and
Section 504 unless the prison can provide the needed services in other facilities.145
Even if no special unit exists for prisoners with disabilities, prisons and jails must make reasonable
accommodations for prisoners with mobility impairments. Courts have found that using the bathroom and
restroom facilities is a basic activity of jail, and that prisons that do not provide shower chairs, handrails, or
guard rails in the shower and toilet, or shower hoses to prisoners with disabilities, violate the ADA and
Section 504.146 An architectural barrier that restricts access or creates risks of injury to prisoners with
disabilities also violates the ADA.147 Make sure to carefully describe any barriers in your complaint with lots
of details, instead of just stating that they exist.148
G. What are “Services, Programs, or Activities”?
Under both the ADA and Section 504, if reasonable modification of the services, programs, or activities
would allow you to participate, prison authorities cannot exclude you on the basis of your disability from
those “services, programs, or activities.” Almost everything you do in prison—from your work assignment, to
your use of the recreation yard, to your use of the library, to your visitation privileges—is a program or
service offered by the prison. 149 Prisoners with disabilities have argued that prisons and jails must
accommodate their needs in the use of the following programs: boot camp,150 conjugal visitation programs,151
144. Garrett v. Angelone, 940 F. Supp. 933, 942 (W.D. Va. 1996), aff’d, 107 F.3d 865 (4th Cir. 1997) (finding that
“inmates have no constitutional right to be housed in any particular prison or housing unit”).
145. Clarkson v. Coughlin, 898 F. Supp. 1019, 1050–51 (S.D.N.Y. 1995) (finding that prison’s transfer and
placement practice violated the ADA by making adequate accommodations conditional).
146. See, e.g., U.S. v. Georgia, 546 U.S. 151, 157, 126 S. Ct. 877, 881 (finding that “it is quite plausible that the
alleged deliberate refusal of prison officials to accommodate Goodman's disability-related needs in such fundamentals as
mobility, hygiene, medical care, and virtually all other prison programs constituted ‘exclu[sion] from participation in or
... den[ial of] the benefits of’ the prison's services, programs, or activities.’”); Pierce v. County of Orange, 526 F.3d 1190,
1196 (9th Cir. 2008) (holding a county in violation of the ADA because disabled prisoners were denied access to prison
facilities like the bathroom and showers by physical barriers); Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 286–88 (1st
Cir. 2006) (holding denial of access to a shower chair (as well as other necessary accommodations) to a prisoner with
disabilities raised an issue of material fact regarding defendant’s failure to provide the prisoner with reasonable
accommodations as required by the ADA); Grant v. Schuman, No. 96-3760, 1998 U.S. App. LEXIS 16852, at *7–8 (7th
Cir. July 16, 1998) (unpublished) (allowing prisoner with left-side paralysis and nerve pain to go forward with ADA
claim regarding lack of hand rails in toilet and shower areas); Cotton v. Sheahan, No. 02 C 0824, 2002 U.S. Dist. LEXIS
20539, at *9 (N.D. Ill. Oct. 23, 2002) (unpublished) (allowing prisoner who used wheelchair to go forward with claim that
he was denied access to shower); Schmidt v. Odell, 64 F. Supp. 2d 1014, 1032–33 (D. Kan. 1999) (noting possible
violation of ADA even though prisoner was able to use most of the services because doing so required exceptional and
painful exertion that was against the orders of his physician); Cooper v. Weltner, No. 97-3105-JTM, 1999 U.S. Dist.
LEXIS 17292, at *19–20 (D. Kan. Oct. 27, 1999) (unpublished) (allowing prisoner who used a wheelchair to go forward
with his ADA claim that prison discriminated against him by failing to provide assistive devices for shower); Kaufman v.
Carter, 952 F. Supp. 520, 532–33 (W.D. Mich. 1996) (allowing bilateral amputee prisoner to pursue claim that jail
violated the ADA by failing to provide accessible shower and commode); Outlaw v. City of Dothan, No. CV-92-A-1219-S,
1993 U.S. Dist. LEXIS 21063, at *11–12 (M.D. Ala. Apr. 27, 1993) (unpublished) (holding that the ADA requires city jail
to make its showers accessible to and useable by disabled prisoners).
147. See, e.g., Montez v. Romer, 32 F. Supp. 2d 1235, 1243 (D. Colo. 1999) (allowing prisoners to go forward with
ADA and § 504 suit that included claim that physical barriers in the prison created safety risks).
148. See, e.g., Barr v. Abrams, 810 F.2d 358, 363 (“[C]omplaints relying on the civil rights statutes are insufficient
unless they contain some specific allegations of fact indicating a deprivation of rights, instead of litany of general
conclusions that shock but have no meaning.”); Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 443 (dismissing
claim because prisoner’s claim did not allege that he was prevented from accessing law library and infirmary).
149. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S. Ct. 1952, 1955, 141 L. Ed. 2d 215, 219 (1998)
(stating that “[m]odern prisons provide inmates with many recreational ‘activities,’ medical ‘services,’ and educational
and vocational ‘programs,’ all of which at least theoretically ‘benefit’ the prisoners”).
150. See, e.g., Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S. Ct. 1952, 1955, 141 L. Ed. 2d 215, 219 (1998)
libraries and law libraries, 152 educational programs, 153 vocational training, 154 job opportunities, 155
commissary and dispensary,156 transition programs,157 dining halls,158 visitation,159 telephone calls,160 church
services, 161 eligibility for trustee status, 162 substance abuse classes, 163 access to reading materials and
television,164 college classes,165 and access to medical care.166 One court has determined that granting parole
is an “activity,” and thus the actions of the parole board must comply with the ADA. 167 Disciplinary
(noting that the prison’s motivational boot camp for first-time offenders is a program).
151. See, e.g., Bullock v. Gomez, 929 F. Supp. 1299, 1303–04 (C.D. Cal. 1996) (noting prisoner was able to show he
was excluded from conjugal visit program, although issue of whether he was “otherwise qualified” was still open).
152 . See, e.g., Love v. Westville Corr. Ctr, 103 F.3d 558, 558–59 (7th Cir. 1996) (upholding decision that
quadriplegic prisoner’s rights under the ADA were violated when he was denied access to the prison library and law
library).
153. See, e.g., Crawford v. Ind. Dep’t of Corr., 115 F.3d 481, 483 (7th Cir. 1997) (“[T]here is no doubt that an
educational program is a program.”). See also Garrett v. Angelone, 940 F. Supp. 933, 942 (W.D. Va. 1996), aff’d, 107 F.3d
865 (4th Cir. 1997) (holding that the ADA does not require a prison to implement a specific type of rehabilitation or
education program that is not already available).
154. See, e.g., Montez v. Romer, 32 F. Supp. 2d 1235, 1237 (D. Colo. 1999) (noting that prisoners argued they were
unable to participate in vocational training because the prison did not accommodate their disabilities).
155. See, e.g., Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (upholding decision that quadriplegic
prisoner’s rights under the ADA were violated when he was denied access to “work programs”).
156. See, e.g., Love v. Westville Corr. Ctr., 103 F.3d 558, 558–59 (7th Cir. 1996) (upholding decision that
quadriplegic prisoner’s rights under the ADA were violated when he was denied access to the prison commissary);
Kiman v. N.H. Dep't of Corr., 451 F.3d 274, 286–87 (1st Cir. 2006) (finding that access to medication is one of the
“services, programs, or activities” covered by the ADA).
quadriplegic prisoner’s rights under the ADA were violated when he was denied access to transition programs).
158. See, e.g., Crawford v. Ind. Dep’t of Corr., 115 F.3d 481, 483 (7th Cir. 1997) (noting that use of the dining hall
is an activity under the ADA); Rainey v. County of Delaware, No. CIV.A.00-548, 2000 U.S. Dist. LEXIS 10700, at *5
(E.D. Pa. Aug. 1, 2000) (unpublished) (allowing claim to go forward that disabled prisoner was given insufficient time to
travel to the dining hall, thereby depriving him of food).
quadriplegic prisoner’s rights under the ADA were violated when he was denied access to “visitation facilities that were
open to the general inmate population”).
160. See, e.g., Clarkson v. Coughlin, 898 F. Supp. 1019, 1030 (S.D.N.Y. 1995) (granting summary judgment under
the ADA where deaf prisoner was denied telephone communication devices for the deaf or amplified headsets).
161. See, e.g., Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (upholding decision that quadriplegic
prisoner’s rights under the ADA were violated when he was denied access to church services).
162. See, e.g., Dean v. Knowles, 912 F. Supp. 519, 522 (S.D. Fla. 1996) (allowing an asymptomatic HIV-positive
prisoner to go forward with discrimination case against prison officials who denied him trustee status).
quadriplegic prisoner’s rights under the ADA were violated when he was denied access to substance abuse programs);
Clarkson v. Coughlin, 898 F. Supp. 1019, 1024, 1030, (S.D.N.Y. 1995) (granting summary judgment under the ADA
where deaf prisoner was denied access to drug and alcohol rehabilitation programs).
164. See, e.g., Walker v. Snyder, 213 F.3d 344, 345 (7th Cir. 2000) (stating that district court had declared prison’s
failure to provide books on tape as a violation of ADA); overruled on other grounds, 324 F.3d 906 (7th Cir. 2003);
Clarkson v. Coughlin, 898 F. Supp. 1019, 1032–33 (S.D.N.Y. 1995) (granting summary judgment under the ADA where
deaf prisoners were denied a closed-caption decoder for televisions).
quadriplegic prisoner’s rights under the ADA were violated when he was denied access to the prison educational
programs).
166. Most courts have held that the ADA does not provide a cause of action for inappropriate medical care. See,
e.g., Moore v. Prison Health Servs., Inc., 24 F. Supp. 2d 1164, 1168 (D. Kan. 1998) (holding that claim of inadequate
medical care is not appropriate under ADA), aff’d, 201 F.3d 448 (10th Cir. 1999). Courts have, however, upheld claims
alleging discriminatory access to medical care because of the prisoner’s disability. See, e.g., Roop v. Squadrito, 70 F.
Supp. 2d 868, 877 (N.D. Ind. 1999) (allowing defendant to go forward with ADA claim that, among other things, alleged
his medication was not dispensed properly by the prison because of his HIV); McNally v. Prison Health Servs., 46 F.
Supp. 2d 49, 50–51 (D. Me. 1999) reh’g denied, 52 F. Supp. 2d 147, 148 (D. Me. 1999) (allowing prisoner to go forward
with claim that prison violated ADA by refusing to administer HIV medication because of his HIV status). The 8th
Amendment may provide an alternative cause of action for inappropriate or inadequate medical care. See, e.g., Clarkson
v. Coughlin, 898 F. Supp. 1019, 1033 (S.D.N.Y. 1995) (holding that failure to provide sign-language interpreters
prevented deaf prisoners from receiving adequate medical care, in violation of their due process and 8th Amendment
rights).
167. Thompson v. Davis, 295 F.3d 890, 898–99 (9th Cir. 2002) (holding that parole proceedings are subject to the
measures—such as shackling—also have been challenged as violating the ADA and constitutional
protections because they affect prisoners with disabilities in a harsher way. 168 In addition, prison
disciplinary hearings are subject to the ADA.169
It is impossible to list all the programs and services that a prison offers, as the programs will be different
in each prison. The ADA and Section 504 define programs and activities very broadly, and courts have rarely
dismissed a prisoner suit because the activity in question did not qualify as a program.170 If you are an
individual with a disability, are qualified for the activity and program (even if it is not listed above), and the
prison refuses to allow you to participate, you may have a claim under the ADA and Section 504.
H. State Accessibility Laws and Regulations
Many states have accessibility and anti-disability discrimination statutes similar to the ADA. If you live
in a state that has a law that provides such protection, you should include a claim under that state law in
your lawsuit as well. Most states do have laws that require public and governmental facilities to be
physically accessible to people with disabilities, 171 and some states have laws that clearly require state
services or programs to provide modifications or accommodations for people with disabilities. 172 When
researching state laws to see if they cover the type of disability discrimination you are encountering, be sure
to read the statutory language carefully and review cases interpreting the statute to see if the law applies to
you. Some of these laws may have broader definitions of “disability” than the ADA so they are more friendly
to you (or more helpful). Also note that the constitutional challenges to the ADA discussed in the very
beginning of this Chapter do not apply to state accessibility statutes.
I. Enforcing Your Rights under the ADA and Section 504
This Part talks about some of the other issues that you should think about when deciding whether to file
a claim. These issues are (1) the possibility of finding an attorney to take your case; (2) filing a complaint
with the DOJ versus filing a claim in court; (3) what kind of damages you can ask for in your lawsuit; and (4)
whether you can use your state’s laws against disability discrimination as well as the federal laws. Before
deciding to file a lawsuit under the ADA, Section 504, or any other civil rights statute, you MUST read
Chapter 14 of the JLM on the Prison Litigation Reform Act (“PLRA”). If you fail to follow the PLRA’s
requirements, you may lose your good time credit and/or your right to bring future claims in federal court
without paying the full filing fee at the time you file your claim. Make sure that your attorney also knows
about the PLRA, since many attorneys do not.
requirements of the ADA).

168. Armstrong v. Davis, 275 F.3d 849, 859 (9th Cir. 2001) (affirming district court’s order stopping prison from
shackling hearing-impaired prisoners or prisoners who used sign language to communicate during parole hearings).
169. Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996) (holding that prison disciplinary hearings are subject to
the requirements of the ADA).
170. But see Aswegan v. Bruhl, 113 F.3d 109, 110 (8th Cir. 1997) (holding that provision of cable television is not a
“service, program or activity” within the meaning of the ADA).
171. See, e.g., Ala. Code §21-4-1 to 4 (2008); Alaska Stat. §35.10.015 (2006); Ariz. Rev. Stat. Ann. §41-1492 et seq.
(2008); Cal. Civ. Code §54 (2007); Conn. Gen. Stat. Ann. §46a-7 (2004); Del. Code Ann. tit. 16 §9502 (2003); Fla. Stat. §§
255.21, 553.501 et seq. (2007); Ga. Code Ann. §30-3-2 to 5 (2007); Haw. Rev. Stat. Ann. §103-50 (2006); Kan. Stat. Ann.
§58-1303 to 1304 (2006); Ky. Rev. Stat. Ann. §198B.260 (2007); La. Rev. Stat. Ann. §§ 40: 1731 et seq. (2007); Me. Rev.
Stat. Ann. Tit. 5, §4591 (2002); Mass. Gen. Laws ch. 22, §13A (2003); Mo. Ann. Stat. §8.620 (2008); Mont. Code Ann. §
50-60-201 (2008); N.J. Stat. Ann. § 52:32-4 (2007); N.M. Stat. §28-7-3 (2008); N.Y. Pub. Bldgs. §51 (2007); N.C. Gen. Stat.
§168-2 (2007); N.D. Cent. Code. §§ 48-01.2–24 (2007); Ohio. Rev. Code. Ann. §3781.1111 (2006); Okla. Stat. tit. 61, §11
(2008); Or. Rev. Stat. §§ 447.210–280 (2007); Pa. Stat. Ann. tit. 35, § 7210.102 (2008); R.I. Gen. Laws § 37-8-15 (2007);
S.C. Code Ann. §§ 10-5-210 to 330 (2007); S.D. Codified Laws § 5-14-12 (2004); Tenn. Code Ann. §§ 68-120-201 to 205
(2006); Tex. Gov’t Code Ann. §§ 469.000 et seq. (2004); Utah Code Ann. §§ 26-29-1 to 4 (2007); Vt. Stat. Ann. tit. 20,
§§2900–2907 (2007); Wash. Rev. Code §§ 70.92.100–170 (2007); Wis. Stat. Ann. § 101.13 (2004). A number of states have
laws simply requiring equal rights of full and free use of facilities for the disabled. See, e.g., Ark. Code Ann. §20-14-303
(2005); Colo. Rev. Stat. §24-34-601 (2008); Iowa Code §216C.3 (2007); Md. Code Ann. Human Servs. §7-704 (2007); Mich.
Comp. Laws. §37.1102 (2008); Minn. Stat. §363A.11 (2008); Neb. Rev. Stat. § 233.010 (2007); Nev. Rev. Stat. § 167-C:2
(2007); N.H. Rev. Stat. Ann. § 20-127 (2007); Va. Code Ann. § 51.5–44 (2006); Wyo. Stat. Ann. § 35-13-201 (2007).
172. See, e.g., Conn. Gen. Stat. § 46a-7 (2008); Fla Stat. § 110.215 (2007); 775 Ill. Comp. Stat. 5/5-101 et seq. (2001
& Supp. 2008); La. Rev. Stat. Ann. §§ 46-2252 to 2256 (2008); Md. Code. Ann., Human Servs. §§ 7-127 to 132 (2007); N.C.
Gen. Stat. §168A-7 (2007); Or. Rev. Stat. § 410.060 (2007); R.I. Gen. Laws § 42-87-2 (2007); S.C. Code Ann. § 43-33-520
(2007); S.D. Codified Laws § 20-13-23.7 (2004); Tex. Hum. Res. Code Ann. §§ 22.010–.011(Vernon 2001); Utah Code Ann.
§ 62A-5-102 (2006); Va. Code Ann. § 51.5-40 (2005).
1. Finding an Attorney
You probably already know that there are not enough lawyers willing and able to represent prisoners
because often prisoner lawsuits do not pay lawyers well enough. But the ADA and Section 504 do allow for
the recovery of attorney’s fees:173 attorneys (and plaintiffs who are representing themselves) can ask for
attorney’s fees from defendants after winning a case. Courts have found that the PLRA, which limits
recovery of attorney’s fees in prisoner lawsuits,174 does not apply to ADA or Section 504 claims.175 If you do
decide to bring a lawsuit to enforce your rights under the ADA and Section 504, you might want to contact
lawyers or disability rights groups in the area to see if they can assist you. Even if you do not have a lawyer,
you should still ask for compensation for lawyer’s fees under the ADA and Section 504. You are also entitled
to recover any court or in pauperis (poor person) fees that you have paid.
You may wish to contact your state’s Protection & Advocacy (“P&A”) organization for advice and/or
representation. P&As are organizations, usually non-profits, that advocate on behalf of persons with
disabilities, including those in criminal and civil institutions. 176 Your P&A may be able to help you by
providing information, referrals or advice, helping you file your complaint, or representing you. To find the
name and contact information of the P&A in your area, contact the National Disability Rights Network, 900
Second Street, NE, Suite 211, Washington, D.C. 20002; Telephone: (202) 408-9514.
2. Filing a Complaint
If you believe you have been discriminated against because of your disability, you may file a complaint
with the DOJ177 and/or bring a lawsuit in court.178 Neither Title II nor Section 504 requires you to file with
the DOJ, but the PLRA may require you to first file with the DOJ. Several federal courts in New York had
held prisoners must file a complaint with the DOJ before filing a complaint in federal court because the
PLRA requires prisoners to exhaust all administrative remedies.179 But, in a 2005 decision by the Second
Circuit Court of Appeals, the New York Department of Corrections (“DOCS”) stated it would stop requiring
prisoners to file their ADA claims with the DOJ before bringing suits in federal court.180 While most courts
173. 29 U.S.C. § 794a(b) (2006) (“In any action or proceeding to enforce or charge a violation of [the Rehabilitation
Act] ..., the court, in its discretion, may allow the prevailing party ... reasonable attorney's fee as part of the costs.”);
Americans with Disabilities Act, 42 U.S.C. § 12205 (2006) (“In any action or administrative proceeding commenced
pursuant to this Chapter, the court or agency, in its discretion, may allow the prevailing party ... a reasonable attorney’s
fee, including litigation expenses, and costs.”); see also 28 C.F.R. pt. 35, app. A., at 572 (2007) (discussing 28 U.S.C. §
35.175 and specifying that “attorneys fees” include “litigation expenses and costs” including “items such as expert
witness fees, travel expenses, etc.”).
174. Prison Litigation Reform Act, 42 U.S.C. § 1997e(d) (2006) (discussing attorney’s fees in suits by prisoners).
175. Armstrong v. Davis, 318 F.3d 965, 974 (9th Cir. 2003) (holding that the restrictions on attorney’s fees
contained in the PLRA do not apply to claims brought under the ADA or § 504 because the two laws have their own
attorney’s fees provisions); Beckford v. Irvin, 60 F. Supp. 2d 85, 88 (W.D.N.Y. 1999) (holding that the PLRA’s restrictions
on attorneys’ fees do not apply to prisoners’ claims brought under the ADA).
176. Protection and Advocacy of Individual Rights (PAIR), 29 U.S.C. § 794e (2006) (supporting “a system in each
State to protect the legal and human rights of individuals with disabilities”); Protection and Advocacy for Individuals
with Mental Illness (“PAIMI”) 42 U.S.C. §§ 10803, 10805 (2006) (requiring the establishment of systems in every state
“designed to protect and advocate the rights of individuals with mental illness; and investigate incidents of abuse and
neglect of individuals with mental illness,” and stating that the system “shall have the authority to ... pursue
administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are
receiving care or treatment in the State”); Protection and Advocacy for Persons with Developmental Disabilities
(“PADD”), 42 U.S.C. § 15043 (2006) (listing the requirements of the system).
177. 28 C.F.R. § 35.170(a) (2007).
178. 28 C.F.R. § 35.172(b) (2007).
179. See, e.g., Porter v. Nussle, 534 U.S. 516, 520. 122 S. Ct. 983, 986, 152 L. Ed.2d 12, 19 (2002) (holding that the
PLRA requires prisoners to exhaust all administrative remedies before filing an ADA claim); Burgess v. Garvin, No. 01-
Civ. 10994, 2004 U.S. Dist. LEXIS 14419, at *3, *9 (S.D.N.Y. Aug. 19, 2003) (unpublished) (holding that the PLRA
requires prisoners to exhaust all administrative remedies, including remedies with the DOJ, before filing an ADA claim:
“The plain language of [the PLRA] requires the prisoner to exhaust ‘such administrative remedies as are available.’ It is
not limited to administrative redress within the prison system in which the prisoner is being held, or to administrative
remedies provided by any particular sovereign.”), reconsideration granted on other grounds, 2004 WL 527053 (S.D.N.Y.
Mar. 16, 2004); William G. v. Pataki, 2005 U.S. Dist. LEXIS 16716, at *4 (S.D.N.Y. Aug. 12, 2005) (unpublished) (“The
DOJ remedies, to the extent that they are available to Plaintiffs, must be exhausted pursuant to the plain language of
the PLRA.”).
180. Rosario v. Goord, 400 F.3d 108, 109 (2d Cir. 2005) (per curiam) (stating that DOCS does not now intend to
have not decided whether the PLRA’s administrative exhaustion requirement requires prisoners to first file
with the DOJ, you may wish to do so in order to avoid having your ADA or Section 504 lawsuit dismissed.
For more information on the PLRA, see Chapter 14 of the JLM, “The Prison Litigation Reform Act.”
3. Filing a Claim with the U.S. Department of Justice (“DOJ”)
You have 180 days from the date of the discrimination you experienced to file a complaint with the
DOJ.181 The DOJ will either investigate the complaint,182 or, if your complaint includes a Section 504 claim
and the DOJ feels that another federal agency can better investigate the complaint, refer your complaint to
that agency.183 If the agency or DOJ finds a violation of your rights, it will try to negotiate with the prison to
get the prison to comply with the law.184 If the prison does not comply, the agency will refer your case to the
U.S. Attorney General’s office.185 The Attorney General can sue the prison, but does not have to—and, in
most cases, will not.
To file a disability discrimination complaint with the DOJ, contact the Department and ask for a “Title
II of the Americans with Disabilities Act Section 504 of the Rehabilitation Act of 1973 Discrimination
Complaint Form.”186 The contact information for the DOJ is:
U.S. Department of Justice - Civil Rights Division
950 Pennsylvania Avenue, NW
Disability Rights Section - NYAV
Tel. (800) 514-0301
TTY (800) 514-0383
If you do not have time to request a form, send a letter to the DOJ that includes the following:
(1) Your name and full address;
(2) The name of the institution that discriminated against you (for example, the prison);
(3) The full address and telephone number of the institution that discriminated against you;
(4) A description of the acts of discrimination including the names of any individuals who discriminated
against you;
(5) The date(s) that you encountered the discrimination (if the discrimination is still going on, indicate
that as well);
(6) Whether you have complained to the prison, filed a formal grievance, and what the status of your
complaint or grievance is;
(7) Whether you have complained to any other agencies (such as a state human rights commission) or
filed with a court about the discrimination, and give the names and addresses of the agencies or
courts you have filed with;
(8) Whether you plan to file with another agency or court, and the address of the agency or court (if you
say you do not plan to file with any other agency or court, you may change your mind later); and
(9) Your signature and the date.187
4. Filing a Lawsuit
challenge lawsuits on the grounds that administrative remedies have not been exhausted because complaints were not
first filed with the DOJ). But see William G. v. Pataki, No. 03 Civ. 8331 (RCC), 2005 U.S. Dist. LEXIS 16716, at *4
(S.D.N.Y. Aug. 12, 2005) (unpublished) (applying the DOJ exhaustion requirement to a proposed class action on behalf of
parole detainees with disabilities housed in New York city jails, where defendants were not DOCS but the State of New
York, the New York State Division of Parole, and Offices of Mental Health and of Alcohol and Substance Abuse
Services).
181. 28 C.F.R. § 35.170(b) (2007).
182. 28 C.F.R. § 35.172 (2007).
183. 28 C.F.R. § 35.171(a)(2)(ii) (2007).
184. 28 C.F.R. § 35.173(a)(2) (2007).
185. 28 C.F.R. § 35.174 (2007).
186. Form DOJ - ADA-II OMB Approval No. 1190-0009 (exp. 4-30-07), Title II of the Americans with Disabilities
Act Section 504 of the Rehabilitation Act of 1973 Discrimination Complaint Form, available at
http://ada.gov/t2cmpfrm.htm (last visited Feb. 4, 2007).
187. Form DOJ - ADA-II OMB Approval No. 1190-0009 (exp. 4-30-07), Title II of the Americans with Disabilities
Act Section 504 of the Rehabilitation Act of 1973 Discrimination Complaint Form, available at
http://ada.gov/t2cmpfrm.htm (last visited Feb. 4, 2007)
As mentioned above, the ADA and Section 504 do not require that you file with the DOJ, although you
may have to because of the Prison Litigation Reform Act. If you are in a jurisdiction that does not require
you to file with the DOJ first, you may go directly to court. If you do file with the DOJ, you can bring a
lawsuit even if the DOJ does not find a violation of your rights. The statute of limitations (deadline) for filing
a lawsuit under Title II and Section 504 depends on your state. Because neither law has its own statute of
limitations, most federal courts use the statute of limitations for personal injury claims in a state.188 Other
federal courts use the statute of limitations for the most similar state law.189 Note: some of these deadlines
are fairly long (six years in Minnesota),190 while others are very short (180 days in North Carolina).191
5. What Kind of Damages You Can Ask for Against a State
(a) Money Damages
There have been many challenges to private individuals’ abilities to sue states in federal court under
Title II and Section 504. While the Supreme Court recently held that Title II suits for money damages are
permitted against the state, at least where the issue involves access to the courts,192 it is not clear whether
courts will permit Title II suits against state prisons.193 If you live within a federal circuit that decides to
prohibit such suits, you can still file a lawsuit against the state, but even if you win, you will be able to
receive only injunctive and declaratory relief, not money.194
Different courts have different rules about whether or not you can bring a lawsuit against a state for
money damages under Section 504. While most Courts of Appeals that have addressed this issue have held
that you may sue the state for monetary damages under Section 504,195 the Second Circuit Court of Appeals
188. See, e.g., Everett v. Cobb County Sch. Dist., 138 F.3d 1407, 1409 (11th Cir. 1998) (holding that Georgia’s two-
year personal injury statute of limitations applies to ADA Title II and § 504 claims, since Georgia does not have its own
law that is “identical to the Rehabilitation Act”); Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 983 (5th Cir. 1992)
(applying Texas’ two-year personal injury statute of limitations to § 504 claim); Noel v. Cornell Univ. Med. Coll. Ctr., 853
F. Supp. 93, 94 (1994) (holding that § 504 claims have a three-year statute of limitations in New York), aff’d without
opinion, 41 F.3d 1502 (2d Cir. 1994).
189. See, e.g., Wolsey v. Med. Coll. of Hampton Roads, 1 F.3d 222, 224 (4th Cir. 1993) (holding that the statute of
limitations for the most similar state statute should also be applied to Rehabilitation Act suits).
190. Faibisch v. Univ. of Minn., 304 F.3d 797, 802 (8th Cir. 2002) (holding that Minnesota’s six-year personal
injury statute of limitations should be used for Rehabilitation Act suits).
191. McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 132 (4th Cir. 1994) (holding that the statute of
limitations for Rehabilitation Act claims is determined by the most similar state law, here a state anti-discrimination
law with a deadline of 180 days, and finding that therefore deadline for filing a § 504 complaint in North Carolina was
180 days). The McCullough court noted that it was following its decision in Wolsky v. Medical College of Hampton Rds.,
1 F.3d 222, 223 (4th Cir. 1993) where it found that because Virginia has its own act protecting disabled individuals with
the same purpose as the Rehabilitation Act, the Virginia Act was the most analogous statute and the one-year statute of
limitations should be used, as opposed to using a personal injury statute of limitations. McCullough v. Branch Banking
& Trust Co., 53 F.3d 127, 130 (4th Cir. 1994).
192. Tennessee v. Lane, 541 U.S. 509, 531, 124 S. Ct. 1978, 1993, 158 L. Ed. 2d 820, 842 (2004) (holding “Title II
unquestionably is valid legislation as it applies to the class of cases implicating the accessibility of judicial services”).
193. Klingler v. Dep't of Revenue, 455 F.3d 888, 891 (8th Cir. 2006) (discussing the uncertainty over whether Title
II can abrogate sovereign immunity for conduct that does not violate the 14th Amendment); United States v. Georgia,
546 U.S. 151, 159, 126 S. Ct. 877, 881–82 163 L. Ed. 2d 650, 660 (2006) (stating that lower courts should determine, “on
a claim-by-claim basis, (1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such
misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not
violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of
conduct is nevertheless valid”).
194. Remember that in lawsuits against the federal government you can ask for only injunctive (a court-ordered
act or prohibition) and declaratory relief (the judge’s determination of each party’s rights), and not monetary damages.
195. See Garrett v. Univ. of Ala., 344 F.3d 1288, 1293 (11th Cir. 2003) (allowing suits under the Rehabilitation Act
to go forward and finding that states waive immunity under all of the acts listed by accepting certain federal funds);
A.W. v. Jersey City Pub. Sch., 341 F.3d 234, 238 (3d Cir. 2003) (rejecting state education department’s claim of
constitutional immunity in suit under the Individuals with Disabilities in Education Act and Rehabilitation Act); Doe v.
Nebraska, 345 F. 3d 593, 604 (8th Cir. 2003) (finding that State waived 11th Amendment immunity by accepting federal
funds for programs under § 504 of the Rehabilitation Act); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003)
(finding that State waived 11th Amendment immunity for suits under the Americans with Disabilities Act and the
Rehabilitation Act); Carten v. Kent State Univ., 282 F.3d 391, 398 (6th Cir. 2002) (holding that State waived 11th
Amendment immunity for suits brought under the Rehabilitation Act); see also Pace v. Bogalusa City Sch. Bd., 403 F.3d
272, 289 (5th Cir. 2005) (en banc) (holding that by accepting federal financial assistance the state could be sued under §
has held that you may not be able to get money damages from states under Section 504 since states only
agreed to be sued for money damages under Title II.196
Remember, this area of the law is rapidly changing, and, if you are planning to file a Title II or Section
504 lawsuit, you should thoroughly research this issue to determine the current law governing the circuit in
which you live. See Chapter 2 of the JLM, “Introduction to Legal Research,” for more information on
determining what is “current law.” Note that even if you are able to sue for money damages, you cannot
receive punitive damages under Title II or Section 504.197
(b) Injunctive Relief
Even if you cannot sue the state for money damages, you can still ask for injunctive relief.198 (Injunctive
relief is when the court orders the prison to take certain actions— such as providing interpreters to hearing-
impaired prisoners during disciplinary hearings199 —or not to take certain actions—for example, to stop
excluding prisoners with HIV from certain programs.200) If you are seeking injunctive relief, you must make
your claim for an injunction against individual prison officials in their official capacities.201 Under the ADA
and Section 504, you cannot sue individual officials in their individual capacities. For example, if you sue
the prison warden you will be suing him as the warden, not as an individual. Although practically speaking
it will be the state that will have to support the relief that is granted, the law insists that the officials be the
ones from whom you request injunctive relief. (If you are suing a county, however, you can ask for injunctive
relief directly from the county or the county jail.)
(c) Eleventh Amendment Immunity
Eleventh Amendment immunity (also called sovereign immunity) only presents a problem if you are
bringing a suit against a state. The immunity does not protect the federal government from suits; nor does it
protect local governments from suits.202
504, which requires states to waive their immunity from suit brought under it if they receive federal funds).
196. Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 114 (2d Cir. 2001) (holding state did not
knowingly waive immunity against suit under remedies provision of the Rehabilitation Act by accepting federal funds for
state university). This case does not say the state can never be sued for money damages under § 504, but it requires that
the state had to have known it could be sued for money damages by accepting federal financial assistance. It is not clear
at what point states will be said to know they can be sued. See Press v. S.U.N.Y. at Stony Brook, 388 F. Supp. 2d 127,
132 (E.D.N.Y. 2005) (discussing subsequent treatment of Garcia). As such, if you are in the Second Circuit, you may
want to include a claim for money damages under § 504 (although you should keep in mind the three strikes provision of
the PLRA). See Chapter 14 of the JLM, “The Prison Litigation Reform Act,” to learn more about the PLRA.
197. Barnes v. Gorman, 536 U.S. 181, 189, 122 S. Ct. 2097, 2102–03, 153 L. Ed. 2d 230, 238–39 (2002) (finding
punitive damages are not compensatory and therefore not within the scope of remedies for invasion of legal rights).
198 . See, e.g., Randolph v. Rodgers, 253 F.3d 342, 345 (8th Cir. 2001) (noting a “private party may seek
prospective injunctive relief in federal court against a state official, even if the state is otherwise protected by Eleventh
Amendment immunity”). When you sue a state official in his official capacity for injunctive relief, this is called an Ex
parte Young suit. In the Ex parte Young case, the Supreme Court ruled that state officials could be sued for injunctive
relief, even if the state itself could not be sued in federal court. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714
(1908).
199. Duffy v. Riveland, 98 F.3d 447, 455–56 (9th Cir. 1996) (holding that a deaf prisoner was disabled and could
make a claim under § 504 and might be entitled to a certified interpreter in disciplinary hearings).
200. See Chapter 16 of the JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of
Federal Law” (discussing the different types of relief and remedies available in a lawsuit).
201. Henrietta D. v. Bloomberg, 331 F.3d 261, 287–88 (2d Cir. 2003) (stating the defendant is “not the state
herself” but is rather “a state officer sued here in her official capacity”); Bruggeman v. Blagojevich, 324 F.3d 906, 912–13
(7th Cir. 2003) (stating a suit “seeking injunctive relief against state officials in their official capacity … is a suit against
the state”); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187–88 (9th Cir. 2003) (stating Title II of the ADA does not
prohibit injunctive relief against state officials acting in their official capacities, because those individuals represent a
“public entity” under Title II); Carten v. Kent State Univ., 282 F.3d 391, 395–96 (6th Cir. 2002) (holding officials who
violate Title II of the ADA may be held responsible in their official capacities, even though they do not represent “the
state,” because Title II applies to public entities); Randolph v. Rodgers, 253 F.3d 342, 345 (8th Cir. 2001) (“[A] state
party may seek prospective injunctive relief in federal courts against a state official, even if the state is otherwise
protected by Eleventh Amendment immunity.”). See also Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374
n.9, 121 S. Ct. 955, 968 n.9, 148 L. Ed. 2d 866, 884 n.9 (2001) (noting that its decision that states may not be sued for
money damages under ADA Title I does not prevent a person from bringing a claim for injunctive relief).
202. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 369, 121 S. Ct. 955, 965, 148 L. Ed. 2d 866, 880
(2001) (noting that “the Eleventh Amendment does not extend its immunity to units of local government” (citing Lincoln
Although the Supreme Court decided in Pennsylvania Department of Corrections v. Yeskey that the ADA
applies to state prisoners,203 the rights of prisoners with disabilities and the protections given to you by the
ADA and Section 504 are the subject of much debate. In recent years, there have been many constitutional
challenges to the application of the ADA and Section 504 to the states. These constitutional challenges argue
that Congress did not have the authority in enacting the ADA and Section 504 to allow states to be sued in
federal court for damages. Under the Eleventh Amendment to the U.S. Constitution, states have what is
called sovereign immunity, and they are free from being sued for money by individuals in federal courts. But,
in some circumstances, Congress does have the power to make states subject to lawsuits for money. The
challenges to the ADA and Section 504 argue that Congress did not have this power when it enacted these
laws, and so people bringing claims under the ADA or Section 504 should not be able to win money damages
against the states. When courts decide states cannot be sued for money damages, individuals suing the
states can receive only injunctive relief, which can be quite difficult to obtain.
States have used the Eleventh Amendment, which restricts Congress’ ability to make states subject to
suit in federal court, to defend themselves against ADA and Section 504 lawsuits. Recently, however, the
Supreme Court held that Title II validly abrogates (takes away) the states’ Eleventh Amendment protection
against prisoners’ damage claims, at least insofar as they involve actual violations of the Constitution.204 In
United States v. Georgia, the plaintiff alleged Eighth Amendment violations, but the decision does not
restrict the constitutional violations that might be actionable under the ADA to the Eighth Amendment.205
The question remains open whether it is also valid as to violations of the ADA that do not independently
violate any constitutional provision. There is no issue of the statute’s validity as to injunctive claims.206
6. Filing an ADA or Section 504 Claim Against a County, City or Town
The constitutional challenges to the ADA and Section 504 do not apply to local entities like counties,
cities, and towns.207 Therefore, you can ask for both compensatory money damages and injunctive relief if
you sue a county, city, or town for violating your rights under these laws. Remember, no punitive damages
are available under Title II or Section 504. 208 Also, if you are in a private prison that receives federal
financial assistance, you can sue the prison for money damages and injunctive relief under Section 504.
J. Filing in State or Federal Court
Most litigation concerning the rights of prisoners with disabilities has occurred in the federal courts.
However, because the Supreme Court continues to weaken the protections of the ADA and as federal courts
show a similar hostility to the protections of those rights, the state courts have become a possible alternative
place to receive relief. As noted above, state laws sometimes incorporate or expand upon the protections of
the ADA and do not have the constitutional vulnerabilities of the ADA and Section 504. If you are in a state
where the controlling federal case law has limited your ability to sue the state, you should research the
possibility of filing in state court using state law.
In Tennessee v. Lane, the Supreme Court recently held that states may be sued for money damages for
violations of Title II, at least when the violation relates to a disabled person’s access to the courts.209 Then, in
County v. Luning, 133 U.S. 529, 530, 10 S. Ct. 363, 363, 33 L. Ed. 766, 767 (1890))).
203. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213, 118 S. Ct. 1952, 1956, 141 L. Ed. 2d 215, 221 (1998) (holding
that Title II of the ADA applied to prisoners in state prisons); Harris v. Thigpen, 941 F.2d 1495, 1522 n.41 (11th Cir.
1991) (ruling that § 504 applies to prisoners in state prisons because state prisons receive money from the federal
government); Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir. 1988) (ruling that § 504 applies to state correctional
institutions which receive federal money).
204. United States v. Georgia, 546 U.S. 151, 153–54, 126 S. Ct. 877, 880–82, 163 L. Ed. 2d 650, 658–59 (2006).
205. United States v. Georgia, 546 U.S. 151, 160–61, 126 S. Ct. 877, 883, 163 L. Ed. 2d 650, 661 (2006) (Stevens,
J., concurring).
206. United States v. Georgia, 546 U.S. 151, 159, 126 S. Ct. 877, 882, 163 L. Ed. 2d 650, 660 (2006); Miller v. King,
384 F.3d 1248, 1263–67 (11th Cir. 2004), vacated and superseded on other grounds, 449 F.3d 1149 (11th Cir. 2006).
207. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 369, 121 S. Ct. 955, 965, 148 L. Ed. 2d 866, 880
(2001) (noting that “the Eleventh Amendment does not extend its immunity to units of local government” and therefore
local entities are “subject to private claims for damages under the ADA”).
208. Barnes v. Gorman, 536 U.S. 181, 189, 122 S. Ct. 2097, 2103, 153 L. Ed. 2d 230, 239 (2002) (stating that,
“[b]ecause punitive damages may not be awarded in private suits brought under Title VI of the 1964 Civil Rights Act, it
follows that they may not be awarded in suits brought under § 202 of the ADA and § 504 of the Rehabilitation Act”).
209. Tennessee v. Lane, 541 U.S. 509, 531, 124 S. Ct. 1978, 1993, 158 L. Ed. 2d 820, 842 (2004).
United States v. Georgia, the Supreme Court held that prisoners may sue states for money damages under
Title II, at least in situations where the misconduct alleged actually violates the Fourteenth Amendment.210
The Supreme Court has taken the middle road between allowing and not allowing state prisons to be
sued for money damages. The current rule established by the Supreme Court in United States v. Georgia is
that prisoners may sue states for money damages under Title II when the state prison’s misconduct actually
violates the Fourteenth Amendment.211 What this means is that if a state prison system violates any of the
rights which are part of the Fourteenth Amendment, in addition to violating Title II, then the state can be
sued for monetary damages. The rights that are part of the Fourteenth Amendment are most of the rights in
the first eight Amendments of the Bill of Rights.
It appears that after Lane and Georgia, lower courts will take a case-by-case approach, considering the
particular circumstances presented, in determining whether the plaintiff can sue the state for money
damages.212 While some courts will generally permit Title II suits for money damages against the State,
others will not.213
It should be noted that, prior to Lane (2004), most Circuit Courts of Appeals and district courts held that
states may not be sued for money damages.214 If you are considering bringing a disability discrimination
210. United States v. Georgia, 546 U.S. 151, 126 S. Ct. 877, 882, 163 L. Ed. 2d 650, 660 (2006).
211. United States v. Georgia, 546 U.S. 151, 126 S. Ct. 877, 882, 163 L. Ed. 2d 650, 660 (2006).
212. See United States v. Georgia, 546 U.S. 151, 159, 126 S. Ct. 877, 882, 163 L. Ed. 2d 650, 660 (2006). In United
States v. Georgia, the Court held that lower courts were in the best position to determine (1) which aspects of the State’s
alleged conduct violated Title II of the ADA; and (2) to what extent such misconduct also violated the 14th Amendment.
Additionally, the Supreme Court held that when lower courts find that the State’s alleged misconduct violated Title II
but did not violate the 14th Amendment, lower courts should determine whether Congress intended that people should
have a right to sue the states for money damages for that type of misconduct anyway. Since United States v. Georgia, a
number of courts have allowed prisoners to sue for money damages when they have been able to establish both that the
state prison system violated Title II of the ADA and that the actions of the state prison system violated the prisoners’
14th Amendment rights. See, e.g., Degrafinreid v. Ricks, 417 F. Supp. 2d 403, 409 (S.D.N.Y. 2006) (ruling a prisoner
could bring a claim for money damages against his prison system for confiscating and destroying his hearing aid because
the prison’s actions may have violated the prisoner’s 8th Amendment right to be free of cruel and unusual punishment).
But, when a State’s actions violate Title II but do not violate a prisoner’s constitutional rights, courts have been hesitant
to allow the prisoner to sue for monetary damages. See, e.g., Miller v. King, 384 F.3d 1248, 1264–65 (11th Cir. 2004),
vacated and superseded on other grounds, 449 F.3d 1149 (11th Cir. 2006) (holding that Title II damages suits may only
be brought where a “fundamental right” is affected and holding that a prisoner may not bring a Title II damages suit
against the state); Flakes v. Franks, 322 F. Supp. 2d 981, 983 (W.D. Wisc. 2004) (noting it was not clear whether
prisoner’s Title II claim for money damages would be proper).
213. See, e.g., Phiffer v. Columbia River Corr. Inst., 384 F.3d 791, 792–93 (9th Cir. 2004) (upholding prior decision
permitting a prisoner to bring a Title II claim for damages against the state); see also Carasquillo v. City of N.Y., 324 F.
Supp. 2d 428, 442 (S.D.N.Y. 2004) (noting that Lane permits Title II claims for money damages against state and local
governments but dismissing claim on other grounds).
214. Prior to Lane, the First, Fourth, Fifth, Seventh, Eighth, and 10th Circuit Courts of Appeals ruled that
individuals may not receive money damages under Title II of the ADA. See Kiman v. N.H. Dep’t of Corr., No.01-134-B,
2001 U.S. Dist. LEXIS 21894 (unpublished) (D.N.H. Dec. 19, 2001) (agreeing with the Second, Fifth, and 10th Circuits
that, under Garrett, the 11th Amendment deprives courts of jurisdictions to hear Title II claims against states), aff’d en
banc, 332 F.3d 29 (1st Cir. 2003), vacated, 541 U.S. 1059, 124 S. Ct. 2387, 158 L. Ed. 2d 961 (2004); Wessel v.
Glendening, 306 F.3d 203, 215 (4th Cir. 2002) (holding that “[a]lthough Congress properly and clearly expressed its
intent to [abrogate state sovereign immunity], it acted on the basis of an inadequate record and imposed a remedy that is
neither congruent nor proportional to the problem it identified.”), overruled by Constantine v. Rectors & Visitors of
George Mason Univ., 441 F.3d 474 (4th Cir. 2005); Reickenbacker v. Foster, 274 F.3d 974, 983 (5th Cir. 2001) (holding
that Title II and § 504 of the Rehabilitation Act are not proportional and congruent responses to legislative findings of
unconstitutional discrimination by the States against the disabled), overruled by Pace v. Bogalusa City Sch. Bd., 403
F.3d 272, 277 n.14 (5th Cir. 2005); Thompson v. Colorado, 278 F.3d 1020, 1022 (10th Cir. 2001) (holding that Title II
cannot be found to be a proportional and congruent response to constitutional violations if Congress has not identified a
history and pattern of unconstitutional discrimination by the states); Walker v. Snyder, 213 F.3d 344, 347 (7th Cir. 2000)
(holding that like Title I, Title II of the ADA is barred by the 11th Amendment), overruled by Bruggeman v. Blagojevich,
324 F.3d 906, 912–13 (7th Cir. 2003); Alsbrook v. City of Maumelle, 184 F.3d 999, 1002 (8th Cir. 1999) (Title II is not a
valid exercise of Congress’ power under § 5 of the 14th Amendment and so Arkansas retains its 11th Amendment
immunity). The Second Circuit ruled that individuals may not receive money damages under Title II of the ADA unless
they can show that the state acted with “discriminatory animus or ill will” toward the disabled. Garcia v. S.U.N.Y.
Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 111 (2d Cir. 2001). The Sixth Circuit only allowed money damages against
the state under Title II if the discrimination amounted to a violation of an individual’s due process rights under the 14th
Amendment. Lane v. Tennessee, 315 F.3d 680, 682 (6th Cir. 2003) (holding that “it was reasonable for Congress to
conclude that it needed to enact [the ADA] to prevent states from unduly burdening” rights protected by the 14th
claim under Title II, it is extremely important that you look at how the decisions in Lane and Georgia are
analyzed and interpreted by other courts, disability rights organizations, and academics. See Chapter 2 of
the JLM for information on performing legal research.
You may also bring constitutional challenges to Section 504, arguing that Congress did not properly
make states open to money damages under that law either. The arguments against money damages under
Section 504 are weaker because the law applies to agencies that receive federal funding in exchange for
complying with Section 504. However, in some courts you also may not be able to get money damages
against a state under Section 504. Thus, as stated above, you should always cite both statutes when filing
your claim. If the Supreme Court rules that Congress exceeded its power in enacting Title II, your complaint
will still be viable against a state prison if it includes claims under Section 504 and you are in a jurisdiction
that allows suits for money damages under Section 504.
K. Conclusion
If you are a prisoner with a physical or mental disability, Section 504 and the Americans with
Disabilities Act (and maybe state law as well) guarantee you certain rights and protections. To realize your
protections under these laws, you will need to make sure you meet the elements of the various statutes. You
may be able to obtain an attorney to assist you with your complaint as both Section 504 and the ADA allow
for the recovery of attorneys’ fees. Although you might not be able to recover money damages, you may be
able to change the practices that are preventing you from participating in particular prison programs or
activities. Before filing your complaint, make sure to refer to Chapter 14 of the JLM for information about
the Prison Litigation Reform Act (PLRA, which may impose additional requirements before filing a lawsuit)
and your state statute of limitations if you are alleging a violation of a state statute.
Amendment), aff’d, 541 U.S. 509, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004). Only the Ninth Circuit had held that
individuals may sue the state for money damages under Title II of the ADA. Hason v. Med. Bd. of Cal., 279 F.3d 1167,
1171 (9th Cir. 2002) (holding that Congress validly abrogated states’ 11th Amendment immunity when enacting Title
II).
Manual
Chapter 29:
Special Issues for Prisoners
with Mental Illness

8th Edition 2009
LEGAL DISCLAIMER
CHAPTER 29
SPECIAL ISSUES FOR PRISONERS WITH MENTAL ILLNESS*

A. Introduction
This Chapter will explain your rights as a prisoner with a mental illness. As you read, you should keep a
few things in mind. First, it is important to notice the type of law that is applied in any cases cited. The
information in this Chapter comes primarily from two sources of law: New York State law and federal law.
Court decisions that interpret New York statutes apply to New York prisoners only. If you are in state
prison in another state, you should check the laws in that state, as those are the laws that apply to you.
Federal statutory law applies to federal prisoners only. However, any court decision based on the U.S.
Constitution will often apply to all prisoners. For more information on the laws of each court system and
whether they apply to you, please read Part B of Chapter 2 of the JLM, “Introduction to Legal Research.”
This Chapter covers several topics. Part A discusses basic information you will need in order to
understand how the law applies to prisoners with a mental illness (including the definitions of important
terms such as “mental illness” and “treatment”). Part B explains your right to receive treatment for a mental
illness. Part C explains how and when you can refuse unwanted treatment and transfers, as well as the
consequences of transfer for hospitalization. Part D details conditions of confinement, and how they intersect
with mental health issues. Part E outlines considerations for pretrial detainees with mental illness. Part F
describes resources available to you as a prisoner.
For more information on topics that might be important to prisoners with mental illness, see Chapter 23
of the JLM, “Your Right to Adequate Medical Care,” and Chapter 28, “Rights of Prisoners with Disabilities.”
You should also read Part E of Chapter 23 to learn more about your right to medical privacy.
In addition, if you decide to pursue any claim based on your rights in federal court, you MUST read JLM
Chapter 14, “The Prison Litigation Reform Act.” Failure to follow the requirements of the Prison Litigation
Reform Act can lead to loss of your good-time credits, loss of your right to bring future claims in federal court
without immediately paying the full filing fee, or other negative consequences. Also, if you plan to bring a
federal constitutional challenge, you SHOULD read Chapter 16, “Using 42 U.S.C. § 1983 and 28 U.S.C. §
1331 to Obtain Relief From Violations of Federal Law.” “Section 1983” (42 U.S.C. § 1983) is the law that
allows you to sue when your constitutional rights are violated. Though this manual is intended to help you
file your own lawsuit, keep in mind that it is always useful, if possible, to get assistance with your claims
from a family member, friend, fellow prisoner, or lawyer. For advice on how to find a lawyer to help with
your civil claims against the prison, please see Part C of Chapter 4 of the JLM, “How to Find a Lawyer.”
B. Defining “Mental Illness” and “Treatment”
What Is Mental Illness?
This Chapter is written for prisoners with behavioral or psychological illnesses and diagnosable
symptoms or risks. You might have heard the terms mental illness, serious mental illness, major mental
illness, mental disorder, mental abnormality, mental sickness, serious and persistent mental illness, or
mentally retarded. Many people (including courts and legislatures) mix up these terms. People use the terms
as if they mean the same thing, but they do not. Many people say “mentally ill prisoners” or “prisoners with
a mental illness” when they are referring to different groups of people, such as those who are not guilty by
reason of insanity (“NGIs”), those incompetent to stand trial, or those with developmental disabilities (low
intellectual function that usually starts at childhood).
There are many kinds of mental illness, but some common types include Bipolar Disorder, Borderline
Personality Disorder, Major Depression, Obsessive-Compulsive Disorder (“OCD”), Panic Disorder, Post-
Traumatic Stress Disorder (“PTSD”), and Schizophrenia. 1 Others include Dissociative Disorders, Dual
Diagnosis or MICA (Mentally Ill and Chemically Addicted—mental illness with substance abuse), Eating
* This Chapter was revised by Katharine Skolnick, based in part on a previous version by Jennifer Moore. Special
thanks to Heather Barr, John Boston, Sarah Kerr, and Amy Lowenstein for their valuable contributions.
1 . Nat’l Alliance on Mental Illness, About Mental Illness,
http://www.nami.org/Content/NavigationMenu/Inform_Yourself/About_Mental_Illness/About_Mental_Illness.htm (last
visited Nov. 6, 2007).
Disorders, Schizoaffective Disorder, Tourette’s Syndrome, and Attention-Deficit/Hyperactivity Disorder. 2
This Chapter will not discuss the separate issues of NGIs, sexual offenders, prisoners with developmental
disabilities or prisoners with with gender identity issues. For a discussion of matters related to sex
offenders, see Chapter 32 of the JLM, “Special Considerations for Sex Offenders.”
Many state laws define mental illness to include only behavioral or psychological problems with
noticeable symptoms. According to the American Psychiatric Association (“APA”), a person has a mental
disorder if he suffers from (1) a behavioral or psychological pattern or series of symptoms, and (2) a present
symptom, disability, or significantly increased risk of suffering death, pain, disability, or an important loss of
freedom.3 This definition of mental disorders does not cover psychological responses to particular events (like
the death of a loved one) or behavior like sexual offenses.4 Mental illnesses may last for varying periods of
time. Some last for a short period and then disappear; others are ongoing. Although courts have recognized
that immediate psychological trauma (sudden, serious stress) also deserves mental health treatment, 5
generally “serious” mental illnesses last longer, affect behavior, and have noticeable symptoms or risks.
To fit within most state law definitions of mental disorder, prisoners must show (1) a behavioral or
psychological problem; (2) an accompanying symptom; and (3) a diagnosis of mental illness by a
professional. 6 For instance, in New York, “mental illness” means having “a mental disease or mental
condition which is [expressed as] . . . a disorder or disturbance in behavior, feeling, thinking, or judgment to
such an extent that the person afflicted requires care and treatment.”7 Like the APA approach, some state
laws specifically exclude sexual offenses, substance abuse, and mental retardation from the definition of
mental illness.8
What the Law and This Chapter Mean by “Treatment”
The definition of “treatment” under the law generally includes three steps: (1) diagnosis (a finding by a
doctor or mental health specialist there is a mental illness), (2) intervention (a decision to treat with
therapy, drugs, or other care), and (3) planning (developing a method to relieve suffering or find a cure).9
Whether a particular medical action/choice qualifies as “treatment” depends on whether it is medically
necessary and whether it will substantially help or cure your medical condition. Medical necessity usually
2 . See Nat’l Alliance on Mental Illness, About Mental Illness: By Illness,

http://www.nami.org/Template.cfm?Section=By_Illness (last visited Nov. 6, 2007).
3. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders at xxi (4th ed. 1994).
4. See, e.g., Kansas v. Crane, 534 U.S. 407, 412–13, 122 S. Ct. 867, 870, 151 L. Ed. 2d 856, 862 (2002) (requiring the
state to distinguish between dangerous sexual offenders with a mental illness who require commitment and “ordinary”
criminals); Seling v. Young, 531 U.S. 250, 253, 121 S. Ct. 727, 730, 148 L. Ed. 2d 734, 740 (2001) (distinguishing for civil
commitment purposes between sexually dangerous individuals and sexually violent offenders who have a mental disorder).
5. See Carnell v. Grimm, 872 F. Supp. 746, 755–56 (D. Haw. 1994) (holding that “an officer who has reason to
believe someone has been raped and then fails to seek medical and psychological treatment for the victim after taking
her into custody manifests deliberate indifference to a serious medical need” (emphasis added)), appeal dismissed in
part, aff’d in part, 74 F.3d 977, 979 (9th Cir. 1996) (finding that the 8th Amendment prohibition of cruel and unusual
punishment, which includes denying medical and psychological care, applies to pretrial detainees).
6. See, e.g., Tex. Health & Safety Code Ann. § 571.003(14) (Vernon 2003 & Supp. 2007) (“[I]llness, disease, or
condition, other than epilepsy, senility, alcoholism, or mental deficiency, that: (A) substantially impairs a person’s
thought, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as demonstrated by recent
disturbed behavior.”); Ga. Code Ann. § 37-3-1(11) (1995 & Supp. 2007) (“[D]isorder of thought or mood which
significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of
life.”); Ala. Code § 22-52-1.1(1) (LexisNexis 2006) (“A psychiatric disorder of thought and/or mood which significantly
impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.”).
7. N.Y. Correct. Law § 400(6) (McKinney 2003). Additionally, the private settlement agreement in the case
Disability Advocates, Inc. v. New York State Office of Mental Health, No. 1:02-cv-04002 (S.D.N.Y. 2007) includes a
definition of “serious mental illness” that provides a heightened level of care for prisoners in Special Housing Units and
keeplock. The heightened level of care is required to begin after several different programs and facilities, including the
residential mental health unit, are constructed. After the settlement, New York passed a statute defining “serious
mental illness” for prisoners who are in disciplinary segregated confinement in a way that closely resembles the
settlement agreement’s definition. The effective date of this part of the new statute is no later than July 1, 2011 and
might be earlier based on when new residential mental health units are completed. See Press Release, Governor Spitzer
Signs Legislation to Enhance the Care and Treatment of Prisoners With Serious Mental Illness (Jan. 29, 2008), available
at http://www.ny.gov/governor/press/0129082.html.
8. See, e.g., Ala. Code § 22-52-1.1(1) (LexisNexis 2006) (stating that mental illness “excludes the primary diagnosis of
epilepsy, mental retardation, substance abuse, including alcoholism, or a developmental disability”).
9. Fred Cohen, The Mentally Disordered Inmate and the Law 6-4 (1998).
involves a serious medical need, which “could well result in the deprivation of life itself” if untreated.10 The
test to determine whether treatment is “necessary” is not whether a prisoner suffers from mental illness but
rather whether that mental illness “requires care and treatment.”11
The law assumes that doctors are best able to make medical choices to treat mental illness. Therefore,
whether something is appropriate treatment is a decision that judges and lawmakers leave to medical
professionals. Just because a prisoner or a judge prefers a particular course of action to treat mental illness
does not mean that this is a necessary course of treatment under the law.12 In New York, the Commissioner
of Mental Health (the head of the New York State department that handles mental illness issues and
certifies psychiatric hospitals) is supposed to establish a specific program within correctional institutions for
treatment other than hospitalization, but these programs need only be as the Commissioner of the
Department of Correctional Services “deem[s] appropriate” for treatment of prisoners with mental illness.13
And, although adequate medical and health services must always be provided,14 states require different
levels of psychiatric care, as not all types of care are necessary for treatment.15
You do not have a right to decide your treatment plan,16 although you do have the right to mental health
care that meets standards of the medical profession,17 the right to information about your treatment’s risks
and alternatives, and a limited right to refuse treatment (see Part C of this Chapter). Once a decision to
treat your mental illness has been made, you cannot specify which care alternatives (such as medication,
counseling, or therapy) you should receive.18 You may, however, be able to protect yourself against unfair
medical treatment by challenging the necessity of a certain treatment.
C. Understanding Treatment Facilities
There are three basic types of psychiatric care that are used to treat prisoners:19
(1) Acute (or crisis) care, which is twenty-four hour care for prisoners whose symptoms of psychosis,
suicide risk, or dangerousness justify intensive care and forced medication;
(2) Sub-acute (or intermediate) care, usually outside of a hospital for prisoners suffering from severe and
chronic conditions that require intensive case management, psychosocial interventions (treatment
that is both social and psychological), crisis management, and psychopharmacology (drugs that affect
the mind) in a safe and contained environment; and
(3) Outpatient care, which is provided in the general population for prisoners who can function
relatively normally. It can—but does not have to—include medication, psychotherapy, supportive
counseling, and other interventions.
10. Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972) (quoting McCollum v. Mayfield, 130 F. Supp. 112, 115
(N.D. Cal. 1955)).
11. See, e.g., U.S. ex rel. Schuster v. Herold, 410 F.2d 1071, 1084 (2d Cir. 1969).
12. See Bowring v. Godwin, 551 F.2d 44, 47–48 (4th Cir. 1977) (“We disavow any attempt to second-guess the
propriety or adequacy of a particular course of treatment.”); see also Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975)
(stating choices in medical care must be capable of characterization as cruel and unusual punishment before they will be
considered “mistreatment”).
14. Estelle v. Gamble, 429 U.S. 97, 103–04, 97 S. Ct. 285, 290–91, 50 L. Ed. 2d 251, 259–60 (1976) (citing Spicer v.
Williamson, 191 N.C. 487, 490, 132 S.E. 291, 293 (1926)) (“It is but just that the public be required to care for the prisoner,
who cannot by reason of the deprivation of his liberty, care for himself.”).
15. See, e.g., Ariz. Rev. Stat. Ann. § 31-201.01(B) (2002) (“In addition to the medical and health services to be
provided pursuant to [this statute], the director may ... provide to prisoners psychiatric care and treatment.” (emphasis
added)).
16. See Barrett v. Coplan, 292 F. Supp. 2d 281, 285–86 (2003) (noting the right to adequate medical care “does not
mean that an inmate is entitled to the care of his or her choice, simply that the care must meet minimal standards of
adequacy”); see also Estelle v. Gamble, 429 U.S. 97, 107–08, 97 S. Ct. 285, 292–93, 50 L. Ed. 2d 251, 262 (1976) (rejecting a
prisoner’s mistreatment claim that more should have been done in the way of diagnosis and treatment, and that there were
better options not pursued).
17. Barrett v. Coplan, 292 F. Supp. 2d 281, 285 (2003).
18. See, e.g., Barrett v. Coplan, 292 F. Supp. 2d 281, 285–86 (2003) (noting the right to adequate medical care “does
not mean that an inmate is entitled to the care of his or her choice, simply that the care must meet minimal standards of
adequacy”); see also Estelle v. Gamble, 429 U.S. 97, 107, 97 S. Ct. 285, 293, 50 L. Ed. 2d 251, 262 (1976) (rejecting a
prisoner’s claim of mistreatment based on the number of care options that were not pursued).
19. These general definitions are taken from Human Rights Watch, Ill Equipped: U.S. Prisons and Offenders with
Mental Illness 136 (2003), available at http://www.hrw.org/reports/2003/usa1003/usa1003.pdf.
The most common type of care prisoners receive is outpatient care. If you require more intensive care,
you may be treated in a hospital within the prison system or at an off-site hospital set up specifically to treat
people with mental illnesses. The severity of mental illness, the types and availability of facilities, and the
doctor’s medical diagnosis will all factor into your placement.
The Division of Forensic Services at the New York State Office of Mental Health (“OMH”) runs the New
York psychiatric facility system. There are four forensic psychiatric care centers. One of them, Central New
York Psychiatric Center, is both a regional forensic unit and the inpatient psychiatric hospital that services
all prisoners in the state prisons and operates the many “satellite mental health units” and “mental health
units” located within New York State prisons.20 You should note that administrative segregation, such as
solitary confinement or disciplinary segregated confinement in “special housing units” (“SHUs”) or
“keeplock,” is not a treatment facility. Many mental health experts, advocates, and clinicians believe that
these forms of isolated confinement make mental health conditions worse, and courts have recognized the
harm they cause. For more information on isolation and mental health, please see Part D(1) of this Chapter.
Treatment Facility Admissions in New York
In New York, whenever the doctor of a prison, jail, or other correctional institution believes you need
hospitalization because of mental illness, the doctor must tell the facility superintendent, who will then
apply to a judge for a commitment order. The judge will require two other doctors to examine you.21 In New
York City, the two doctors may examine you in your prison or you may be transferred to a county hospital
for examination.22 The doctors must certify (agree) that you have a mental illness and are in need of care or
treatment for you to be hospitalized,23 but first they must consider other treatment alternatives.24 They must
also consult your previous doctor if they know that you have been treated for mental illness in the past and
if it is possible to do so.25
If the two doctors certify you need to be hospitalized to treat a mental illness, the prison superintendent
will apply to a judge for permission to commit you.26 You should receive notice of any court order and have
some chance to challenge it.27 In addition, your wife, husband, father, mother, or nearest relative must also
receive notice of the decision to commit you; if you have no known relatives within the state, that notice
must be given to any known friend of yours.28 If you decide to challenge the decision, you have a right to
know what the hospital’s placement procedure is. You also have the right to counsel, a hearing, an
independent medical opinion, and judicial review with a right to a jury trial.29 However, you do not have a
right to a hearing in an emergency, during which two doctors certify that your mental illness is likely to
result in serious harm to you or to other prisoners.30 In that case, you are still entitled to notice, counsel, an
independent medical opinion, a hearing, and the right to a jury trial, but only after you arrive at a hospital.31
D. Your Right to Receive Treatment
This Part explains two doctrines (rules) that relate to your right to psychiatric medical care. Section 1 of
this Part discusses your right to adequate medical care. This includes whether the prison must provide
20. The New York Office of Mental Health’s forensic facilities include Mid-Hudson Forensic Psychiatric Center,
Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit located within Rochester Psychiatric Center, and
Central New York Psychiatric Center and Northeast Regional Forensic Unit located within Central New York
Psychiatric Center. Within State correctional facilities, OMH operates 19 satellite mental health units with crisis beds.
Bureau of Forensic Services & Criminal Procedures, http://www.omh.state.ny.us/omhweb/forensic/BFS.htm (last visited
Mar. 6, 2008).
23. See generally N.Y. Mental Hyg. Law §§ 9.01–9.63 (McKinney 2006); see U.S. ex rel. Schuster v. Herold, 410 F.2d
1071, 1073 (2d Cir. 1969) (suggesting that to be found in need of care and treatment through inpatient hospitalization, you
must be found—after proper procedures—to be so mentally ill that you pose a danger to self or others).
psychiatric care, and whether that care is adequate. Section 1 also mentions special considerations for
prisoners with substance-related disorders and what medical treatment they should receive. Section 2
addresses your rights if psychiatric medical care is delayed or denied, instead of simply being inadequate.
1. Your Right to Adequate Psychiatric Medical Care
i. General Right to Medical Care
You have a right to adequate medical care and treatment. Under the Eighth Amendment of the
Constitution, 32 the government has an obligation to provide medical care to those people whom it is
punishing by incarceration.33 This right includes the regular medical care that is necessary to maintain your
health and safety. Many states also have state statutes requiring prisons to provide medical care to
prisoners.34 For more information about this general right, read Chapter 23 of the JLM, “Your Right to
Adequate Medical Care.”
Your Right to Adequate Psychiatric Care
Mental health care is governed by the same deliberate indifference/serious needs analysis as physical
health care. Most federal circuits have held the right to adequate medical care specifically includes any
psychiatric care that is necessary to maintain your health and safety.35 In Bowring v. Godwin, an important
early decision, the Fourth Circuit explicitly extended the right to medical care to mental illness treatment,
noting that there is “no underlying distinction between the right [of a prisoner] to medical care for physical
ills and its psychological or psychiatric counterpart.”36
The Bowring court developed a three-part test to determine whether psychiatric care is necessary for a
prisoner. Under the test, a prisoner who suffers from a mental illness is likely to have a right to mental
health treatment if a health care provider determines that:
(1) the prisoner’s symptoms are evidence of a serious disease or injury;
(2) that disease or injury is curable, or can be substantially improved; and
(3) the likelihood of harm to the prisoner (in terms of safety and health, including mental health) is
substantial if treatment is delayed or denied.37
However, the right to psychiatric treatment is still subject to reasonable medical costs and a reasonable
length of time for treatment.38 Therefore, psychiatric treatment will be given to the prisoner on the basis of
what is necessary, not what is desirable.39
unusual punishments inflicted.” (emphasis added)).
33. Estelle v. Gamble, 429 U.S. 97, 103–04, 97 S. Ct. 285, 290–91, 50 L. Ed. 2d 251, 259–60 (1976) (holding that the
8th Amendment prohibits denying needed medical care).
34. See, e.g., Ariz. Rev. Stat. Ann. § 31-201.01(D) (2002); Ga. Code Ann. § 42-5-2 (1997 & Supp. 2006).
35. See Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977) (finding prisoner entitled to psychiatric treatment where
a doctor has concluded that the prisoner has a serious disease that might be curable, and where delay might cause potential
harm); Clark-Murphy v. Foreback, 439 F.3d 280, 292 (6th Cir. 2006) (holding that a prisoner’s right to mental health
care, not just physical medical care, is clearly established under the 8th Amendment); Riddle v. Mondragon, 83 F.3d
1197, 1202 (10th Cir. 1996) (“The states have a constitutional duty to provide necessary medical care to their inmates,
including psychological or psychiatric care.”); Woodall v. Foti, 648 F.2d 268, 272 (5th Cir. Unit A June 1981) (“In
balancing the needs of the prisoner against the burden on the penal system, the district court should be mindful that the
essential test is one of medical necessity and not one simply of desirability.”); Doty v. County of Lassen, 37 F.3d 540, 546
(9th Cir. 1994) (“[W]e now hold that the requirements for mental health care are the same as those for physical health
care needs.”); Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991) (“The extension of the Eighth Amendment’s
protection from physical health needs, as presented in Estelle [v. Gamble], to mental health needs is appropriate because,
as courts have noted, there is ‘no underlying distinction between the right to medical care for physical ills and its
psychological or psychiatric counterpart.’” (internal quotation marks omitted)); Langley v. Coughlin, 888 F.2d 252, 254
(2d Cir. 1989) (“We think it plain that from the legal standpoint psychiatric or mental health care is an integral part of
medical care. It thus falls within the requirement of Estelle v. Gamble ... that it must be provided to prisoners.”); Gates v.
Cook, 376 F.3d 323, 343 (5th Cir. 2004) (“[M]ental health needs are no less serious than physical needs.”); Inmates of
Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir. 1979) (holding that prisoners with serious mental illness
have a right to adequate treatment, and that psychiatric or psychological treatment should be held to the same standard
as medical treatment for physical ills).
36. Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977).
37. Bowring v. Godwin, 551 F.2d 44, 47–48 (4th Cir. 1977).
38. Bowring v. Godwin, 551 F.2d 44, 47–48 (4th Cir. 1977) (stating that the right to treatment is limited by
You should note that the Bowring test is the law only in the Fourth Circuit. Other courts are likely to
consider using the standard in similar cases,40 especially because no court has issued a disagreeing opinion.
However, the only courts that must apply the test are federal courts in the Fourth Circuit. You should still
cite to Bowring if you are bringing a case in another federal jurisdiction, because the court in your circuit
might find it persuasive. For more information on what you may cite in your jurisdiction, see Chapter 2 of
the JLM, “Introduction to Legal Research.”
Your Right to Treatment for Substance Abuse
The American Psychiatric Association incorporates in its definition of mental illness “substance-related
disorders,” which include illnesses like substance use, abuse, and withdrawal.41 The law, however, does not
always consider such diseases as rising to the level of seriousness42 needed to require prison authorities to
provide medical care to treat them.43 But, many courts have found that prisoners have the right to treatment
for substance abuse in certain circumstances. The sections below describe these situations.
(ii) No Right to Drug and Alcohol Rehabilitation in Prison
As a general rule, you have no right to rehabilitation while in prison.44 Individual states or corrections
departments may decide that rehabilitation is an important goal and may implement programs to achieve
that aim, but the Constitution does not require them to do so. One application of this rule is that there is no
right to narcotics or alcohol treatment programs in prison.45 However, courts have at times ordered prisons
to implement drug and alcohol treatment programs where their denial would otherwise lead to conditions
that were so bad that they violated prisoners’ rights to medical care; prisoners often raise these issues
successfully in the context of broader claims about unconstitutional conditions of confinement. 46
Additionally, at least one court has found that prisoners should be “free to attempt rehabilitation or the
cultivation of new socially acceptable and useful skills and habits.”47 It might be possible to argue that
failure to receive drug treatment violates that freedom.
reasonable cost and time, and that the test is what is medically necessary, not what is “merely desirable”). But see Kosilek
v. Maloney, 221 F. Supp. 2d 156, 161 (D. Mass. 2002) (noting that it is not permissible to deny a prisoner adequate
medical care just because the treatment is costly).
39. Bowring v. Godwin, 551 F.2d 44, 47–48 (4th Cir. 1977).
40. See Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (citing the Bowring test).
41. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders at 176 (4th ed. 1994).
42. A prisoner having a “serious medical need” triggers an analysis under Estelle v. Gamble, 429 U.S. 97, 104, 97
S. Ct. 285, 291, 50 L. Ed. 2d 251, 260 (1976), which provides that deliberate indifference to that serious medical need
violates the 8th Amendment’s ban on cruel and unusual punishment. Cases like Bowring v. Godwin, 551 F.2d 44, 47 (4th
Cir. 1977), have extended this rule requiring treatment to the psychiatric context, but only where the prisoner has an
illness that might be curable and where delay might cause harm. For more information on your rights when necessary
treatment has been denied or delayed, please see Part B(2) of this Chapter, “Denied or Delayed Treatment.”
43. See, e.g., Pace v. Fauver, 479 F. Supp. 456, 458–59 (D.N.J. 1979) (“The Court does not regard plaintiffs’ desire
to establish and operate an alcoholic rehabilitation program within ... [p]rison as a serious medical need for purposes of
Eighth Amendment and § 1983 analysis.”), aff’d, 649 F.2d 860 (3d Cir. 1981). But see Marshall v. US, 414 U.S. 417, 433
n.3, 94 S. Ct. 700, 709 n.3, 38 L. Ed. 2d 618, 629 n.3 (1974) (Marshall, J., dissenting) (citing Senate Report characterizing
drug addiction as a disease); State v. Sevelin, 554 N.W.2d 521, 524, 204 Wis. 2d 127, 134 (Wis. Ct. App. 1996) (“The
unambiguous meaning of ‘medical care’ includes treatment of all diseases. Alcoholism is a disease.”)
44. Marshall v. United States, 414 U.S. 417, 421–22, 94 S. Ct. 700, 704, 38 L. Ed. 2d 618, 623 (1974) (finding no
“fundamental right” to rehabilitation from narcotics addiction after conviction of a crime and confinement in a penal
institution rather than in a civil facility); see also Hutto v. Finney, 437 U.S. 678, 686 n.8, 98 S. Ct. 2565, 2571 n.8, 57 L.
Ed. 2d 522, 531 n.8 (1979) (“[T]he Constitution does not require that every aspect of prison discipline serve a
rehabilitative purpose.”); Grubbs v. Bradley, 552 F. Supp. 1052, 1124 (M.D. Tenn. 1982) (lack of rehabilitative programs
does not violate the Constitution).
45. See, e.g., Pace v. Fauver, 479 F. Supp. 456, 460 (D.N.J. 1979) (holding that prison authorities and not the court
should decide whether to provide alcoholism treatment to prisoners), aff’d, 649 F.2d 860 (3d Cir. 1981).
46. E.g., Palmigiano v. Garrahy, 443 F. Supp. 956, 989 (D.R.I. 1977) (ordering prison to establish drug and alcohol
treatment program conforming to public health standards); Alberti v. Sheriff of Harris County, 406 F. Supp. 649, 677
(S.D. Tex. 1975) (requiring prison to establish treatment program for prisoners suffering from alcoholism and drug abuse
in consultation with trained specialist); Barnes v. Gov’t of Virgin Islands, 415 F. Supp. 1218, 1235 (D.V.I. 1976) (ordering
prison to introduce drug and alcohol rehabilitation program; see also Laaman v. Helgemoe, 437 F. Supp. 269, 316–17
(D.N.H. 1977) (finding prisons have a duty to provide opportunities to overcome incarceration’s degenerative aspects).
47. Laaman v. Helgemoe, 437 F. Supp. 269, 316–17 (D.N.H 1977) (creating an affirmative right to rehabilitation
programs where their absence causes significant deterioration).
There is also no right to methadone or to establishment of methadone maintenance programs in prison.48
On the other hand, a few courts have found that you do have the right to ongoing drug treatment from
programs in which you already participate.49 This right extends primarily to pretrial detainees unable to
post bail.50 Since such individuals have not yet been found guilty and are instead in jail because they cannot
afford to post bail or have been determined to be a flight risk or danger to the community, they cannot be
punished beyond detention and the necessary restraint of liberty that it entails.51 Forced rehabilitation is
seen as a punishment, as is the pain suffered when methadone is discontinued.52 For more information on
your right to treatment as a pretrial detainee, please see Part E(1) of this Chapter.
(ii) Your Right to Avoid Deterioration (Getting More Sick) While Incarcerated
Many courts have held that even if you do not have an absolute constitutional right to treatment for
certain illnesses like substance abuse, you do have a right to avoid having your illness get worse while you
are in prison.53 Though some courts have not found a right to avoid getting more sick while incarcerated,
several have at least found that where conditions are “so bad that serious physical or psychological
deterioration is inevitable,” you can state an Eighth Amendment claim of cruel and unusual punishment.54
So, if your drug or alcohol addiction is likely to worsen your condition, you might be able to claim failure
to receive adequate treatment violates your right to avoid deterioration while in prison. Even though
different judicial circuits have established differing rules as to the extent of that right, at a minimum, if your
deterioration results from the State’s intent to cause harm,55 you can claim the State violated your rights.
(ii) Your Right to Care for Withdrawal
Another exception to the general rule that prisons do not need to provide medical care for substance-
related disorders is that prisons do need to provide care for withdrawal, which can be excessively painful
and dangerous, and is therefore considered a serious medical condition.56 Because of the seriousness of
withdrawal symptoms, you are entitled to treatment. 57 Most of the cases have arisen in the context of
pretrial detainees going through withdrawal just after arrest, but the courts have not explicitly limited the
48. See, e.g., Norris v. Frame, 585 F.2d 1183, 1188 (3d Cir. 1978) (“There is no constitutional right to methadone
...”); Hines v. Anderson, 439 F. Supp. 12, 17 (D. Minn. 1977) (finding even though prisons cannot take away prescriptions
without doctor’s approval, they are not required to administer methadone as part of a maintenance program).
49. See Norris v. Frame, 585 F.2d 1183, 1189 (3d Cir. 1978) (finding interference with pretrial detainee’s status as
recipient of methadone infringed his rights); Cudnik v. Kreiger, 392 F. Supp. 305, 312–13 (N.D. Ohio 1974) (holding that
it violates due process to deny pretrial detainees methadone that they are already receiving as part of drug treatment).
50. Cudnik v. Kreiger, 392 F. Supp. 305, 312 (N.D. Ohio 1974) (finding that because “[t]he deprivation is not
suffered by bailed methadone addicts who are able to continue to receive specialized treatment for drug addiction,” it is
illegitimate to deny methadone treatment to those who had been receiving it but who are detained pending trial).
51. See Cudnik v. Kreiger, 392 F. Supp. 305, 311 (N.D. Ohio 1974) (explaining that since pretrial detainees are
considered innocent in the eyes of the law, they should be entitled to all liberties they would have were they not
imprisoned, except that which is necessarily lost through detention).
52. Cudnik v. Kreiger, 392 F. Supp. 305, 311–12 (N.D. Ohio 1974).
53. Battle v. Anderson, 564 F.2d 388, 403 (10th Cir. 1977) (“We believe that while an inmate does not have a
federal constitutional right to rehabilitation, he is entitled to be confined in an environment which does not result in his
degeneration or which threatens his mental and physical well-being.”); Ramos v. Lamm, 639 F.2d 559, 566 (10th Cir.
1980) (extending the right to avoid deterioration established in Battle to medical care context); Laaman v. Helgemoe, 437
F. Supp. 269, 316 (D.N.H 1977) (holding prisoners have an interest in avoiding physical and mental deterioration). But
see Reddin v. Israel, 561 F.2d 715, 718 (7th Cir. 1977) (“[T]he state need not avoid conduct which may result in
detrimental psychological effects unless the state acts in a torturous or barbarous manner or with a wanton intent to
inflict pain.”).
54. Grubbs v. Bradley, 552 F. Supp. 1052, 1124 (M.D. Tenn. 1982).
55. See Reddin v. Israel, 561 F.2d 715, 718 (7th Cir. 1977) (providing an exception to the general rule that you
have no right to avoid deterioration where the State acts with “wanton intent to inflict pain”).
56. E.g., Kelley v. County of Wayne, 325 F. Supp. 2d 788, 791 (E.D. Mich. 2004) (“Heroin withdrawal is a serious
medical condition.”); Morrison v. Washington County, 700 F.2d 678, 681 (11th Cir. 1983) (concluding delirium tremens is
a severe form of alcohol withdrawal that should be monitored because of the risk of death).
57. Liscio v. Warren, 901 F.2d 274, 276 (2d Cir. 1990) (finding that failing to examine pretrial detainee for three
days as his health visibly declined because of alcohol withdrawal could constitute deliberate indifference); Pedraza v.
Meyer, 919 F.2d 317, 319–20 (5th Cir. 1990) (finding that pretrial detainee who had not received treatment for his
heroin withdrawal symptoms could have stated a claim of deliberate indifference to serious medical needs); State ex rel.
Walker v. Fayette County, 599 F.2d 573, 576 (3d Cir. 1979) (per curiam) (where pretrial detainee had informed jail that
he was addicted to heroin, failure to treat him for withdrawal could show deliberate indifference).
right to treatment to pretrial detainees; if a convicted prisoner is experiencing a serious medical need due to
withdrawal, he should receive treatment.
2. Denied or Delayed Treatment
The above Subsection discussed situations in which a prisoner claims that the medical care he received
is inadequate. This Subsection instead focuses on your rights when needed treatment has been deliberately
(purposely) denied or delayed.58 Although courts do not like second-guessing doctors’ decisions,59 a prison
official who denies or delays treatment knowing that you need that treatment might be violating your
constitutional right to be free of “cruel and unusual punishment” under the Eighth Amendment.60 A court
that finds this deliberate denial or delay will intervene to help you.
The Deliberate Indifference Standard
To state a successful claim for denial or delay of treatment, you must show that prison officials acted
with “deliberate indifference” to your medical or mental health needs.61 The Supreme Court has decided that
a prison official shows deliberate indifference when he “knows of and disregards an excessive risk to inmate
health or safety.”62 For example, a prisoner might submit evidence that prison officials “refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would
clearly evince a wanton disregard for any serious medical needs.”63
A prison official can be deliberately indifferent by: (1) taking action (doing something); or (2) refusing to
act (not doing something). 64 An example of an act showing deliberate indifference might be knowingly
stopping hormone treatments for a prisoner with Gender Identity Disorder. An example of a deliberate
omission might be refusing to provide a prisoner with essential medication.
Although the deliberate indifference standard has developed in the context of serious medical care, it
also applies to medically necessary treatment for mental illnesses.65 Therefore, deliberate indifference to the
serious mental health needs of a prisoner violates the Eighth Amendment just as much as deliberate
indifference to physical medical needs.66
Many deliberate indifference claims about inadequate prison mental health care are based on the
facility’s lack of adequate and qualified mental health staff.67 Several courts have concluded that the lack of
58. See, e.g., Pinon v. Wisconsin, 368 F. Supp. 608, 610 (E.D. Wis. 1973) (explaining that courts usually refuse to
second-guess whether a prisoner’s treatment is adequate, but it is a different situation altogether where the prisoner
alleges that the facility has denied him treatment). See Part B(3) of Chapter 23 of the JLM, “Your Right to Adequate
Medical Care,” for more information on delayed or denied medical treatment.
59. See, e.g., Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (finding prisoner’s disagreement with medical
treatment did not rise to the level of violating his rights); Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990)
(granting doctor immunity where prisoner disagreed with the doctor-ordered treatment).
60. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 260 (1976) (citing Gregg v. Georgia, 428
U.S. 153, 173, 96 S. Ct. 2909, 2925, 49 L. Ed. 2d 859, 875 (1976)) (“We therefore conclude that deliberate indifference to
serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain ... proscribed by the Eighth
Amendment.”).
61. Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251, 261 (1976) (“[A] prisoner must allege
acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”).
62. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811, 825 (1994) (finding a violation
only if an official knows of facts that demonstrate excessive risk to a prisoner’s health and actually draws an inference of
risk based on those facts, but then disregards that risk).
63. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (refusing to hold for plaintiff where he did not present this
evidence).
64. Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251, 261 (1976) (“In order to state a
cognizable claim [of deliberate indifference], a prisoner must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” (emphasis added)).
65. See Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991) (reiterating that there is no underlying distinction
between medical care for physical and psychological ills); Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994) (the
right to treatment “encompasses a right to psychiatric and mental health care”).
66. See, e.g., Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) (“Th[e] duty to provide medical care
encompasses detainees’ psychiatric needs.”); Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1187 (5th Cir.
1986) (“A serious medical need may exist for psychological or psychiatric treatment, just as it may exist for physical
ills.”).
67. Greason v. Kemp, 891 F.2d 829, 837–40 (11th Cir. 1990) (prison clinic director, prison system mental health
director, and prison warden could be found deliberately indifferent based on their knowing toleration of a “clearly
an on-site psychiatrist in a large prison is unconstitutional.68 The failure to train correctional staff to work
with prisoners with mental illness can also constitute deliberate indifference.69
Among the deficiencies in prison mental health care that courts have held actionable are the lack of or
inadequate mental health screening on intake,70 the failure to follow up with prisoners who have known or
suspected mental disorders,71 the failure to hospitalize prisoners whose conditions cannot adequately be
treated in prison,72 gross departures from professional standards in treatment,73 and the failure to separate
prisoners with severe mental illness from those without mental illness.74 (Mixing prisoners with mental
inadequate” mental health staff); Waldrop v. Evans, 871 F.2d 1030, 1036 (11th Cir. 1989) (doctor’s failure to refer a
suicidal prisoner to a psychiatrist could constitute deliberate indifference); Cabrales v. County of L.A., 864 F.2d 1454,
1461 (9th Cir. 1988) (deliberate indifference was established where mental health staff could only spend “minutes per
month” with disturbed prisoners), vacated, 490 U.S. 1087, 109 S. Ct. 2425, 104 L. Ed. 2d 982 (1989), reinstated, 886 F.2d
235, 236 (9th Cir. 1989); Inmates of Occoquan v. Barry, 717 F. Supp. 854, 868 (D.D.C. 1989) (“woefully short” mental
health staffing supported a finding of unconstitutionality), rev’d in part sub nom. Brogsdale v. Barry, 926 F.2d 1184,
1191 (D.C. Cir. 1991) (finding qualified immunity protected mayor and correctional officials from liability, since they
could not reasonably have known their conduct in permitting overcrowding violated prisoners’ rights); Tillery v. Owens,
719 F. Supp. 1256, 1302–03 (W.D. Pa. 1989) (“gross staffing deficiencies” and lack of mental health training of nurses
supported finding of deliberate indifference), aff’d, 907 F.2d 418 (3d Cir. 1990); Langley v. Coughlin, 715 F. Supp. 522,
539–40 (S.D.N.Y. 1989), appeal dismissed, 888 F.2d 252 (2d Cir. 1989) (use of untrained or unqualified personnel with
inadequate supervision by psychiatrist supported constitutional claims); Inmates of Allegheny County Jail v. Peirce, 487
F. Supp. 638, 643 (W.D. Pa. 1980) (systemic deficiencies in mental health staffing can be held to constitute deliberate
indifference); Ruiz v. Estelle, 503 F. Supp. 1265, 1339 (S.D. Tex. 1980) (setting forth six components of a minimally
adequate mental health treatment program), aff’d in part and rev’d in part on other grounds, 679 F.2d 1115 (5th Cir.
1982), amended in part and vacated in part on other grounds, 688 F.2d 266 (5th Cir. 1982).
68. Balla v. Idaho State Bd. of Corr., 595 F. Supp. 1558, 1577 (D. Idaho 1984) (“There must be at least the
equivalent of one full-time psychiatrist to provide treatment to those inmates capable of deriving benefit and to establish
written procedures whereby inmates are analyzed and their progress monitored.”).
69. Langley v. Coughlin, 709 F. Supp. 482, 483–85 (S.D.N.Y. 1989) (finding deliberate indifference where, among
other reasons, officers lacked proper training); Kendrick v. Bland, 541 F. Supp. 21, 25–26 (W.D. Ky. 1981) (incidents
arising from failure to adequately train staff constituted cruel and unusual punishment); see also Sharpe v. City of
Lewisburg, 677 F. Supp. 1362, 1367–68 (M.D. Tenn. 1988) (upholding jury verdict based on city and county’s failure to
train police to deal with mentally disturbed individuals).
70. Ruiz v. Estelle, 503 F. Supp. 1265, 1339 (S.D. Tex. 1980), aff’d in part and rev’d in part on other grounds, 679
F.2d 1115 (5th Cir. 1982), amended in part and vacated in part on other grounds, 688 F.2d 266 (5th Cir. 1982); Inmates
of Occoquan v. Barry, 717 F. Supp. 854, 868 (D.D.C. 1989), rev’d in part sub nom. Brogsdale v. Barry, 926 F.2d 1184,
1191 (D.C. Cir. 1991) (finding qualified immunity protected mayor and correctional officials from liability, since they
could not reasonably have known their conduct in permitting overcrowding violated prisoners’ rights); Balla v. Idaho
State Bd. of Corr., 595 F. Supp. 1558, 1577 (D. Idaho 1984) (adopting the Ruiz v. Estelle elements of minimally adequate
care, which include screening on intake); Inmates of Allegheny County Jail v. Peirce, 487 F. Supp. 638, 642–44 (W.D. Pa.
1980); Pugh v. Locke, 406 F. Supp. 318, 324 (M.D. Ala. 1976), aff’d in part and modified sub nom. Newman v. Alabama,
559 F.2d 283 (5th Cir. 1977), rev’d in part sub nom. Alabama v. Pugh, 438 U.S. 781, 98 S. Ct. 3057; 57 L. Ed. 2d 1114
(1978).
71. Clark-Murphy v. Foreback, 439 F.3d 280, 289–92 (6th Cir. 2006) (holding certain staff members were not
entitled to qualified immunity for failing to get psychiatric assistance for an obviously psychotic prisoner); Terry ex rel.
Terry v. Hill, 232 F. Supp. 2d 934, 943–44 (E.D. Ark. 2002) (holding lengthy delays in transferring detainees with mental
illness to mental hospital were unconstitutional); Arnold ex rel. H.B. v. Lewis, 803 F. Supp. 246, 257 (D. Ariz. 1992)
(finding 8th Amendment violation in part because of the lack of an adequate system for referring prisoners with
behavioral problems to psychiatric staff).
72. Arnold ex rel. H.B. v. Lewis, 803 F. Supp. 246, 257–58 (D. Ariz. 1992).
73. Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990) (care that “so deviated from professional standards that it
amounted to deliberate indifference” would violate the Constitution); Greason v. Kemp, 891 F.2d 829, 835 (11th Cir.
1990) (“grossly inadequate psychiatric care” can be deliberate indifference); Waldrop v. Evans, 871 F.2d 1030, 1033–35
(11th Cir. 1989) (“grossly incompetent or inadequate care”—here, that prisoner’s medication was discontinued abruptly
and without reason—can constitute deliberate indifference); Langley v. Coughlin, 715 F. Supp. 522, 540–41 (S.D.N.Y.
1989) (“consistent and repeated failures ... over an extended period of time” could establish deliberate indifference).
74. Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 560–61 (1st Cir. 1988) (transferring a prisoner with
mental illness to general population in a crowded jail with no psychiatric facilities constituted deliberate indifference);
Inmates of Occoquan v. Barry, 717 F. Supp. 854, 868 (D.D.C. 1989) (prisoners with mental health problems must be
placed in a separate facility and not in the administrative/punitive segregation area), rev’d in part sub nom. Brogsdale v.
Barry, 926 F.2d 1184, 1191 (D.C. Cir. 1991) (finding qualified immunity protected mayor and correctional officials from
liability); Langley v. Coughlin, 709 F. Supp. 482, 484–85 (S.D.N.Y. 1989) (placement of prisoners with mental illness in
punitive segregation resulted in conditions that might violate the 8th Amendment), appeal dismissed, 888 F.2d 252 (2d
Cir. 1989); Tillery v. Owens, 719 F. Supp. 1256, 1303–04 (W.D. Pa. 1989) (Constitution requires separate unit for those
illness with those who do not have mental illnesses might violate the rights of both groups.75) Courts have
also held that housing prisoners with mental illness under conditions of extreme isolation is
unconstitutional.76 Another recurring situation is stopping psychiatric medications without reason, often
with disastrous results.77
Also remember that the deliberate indifference standard applies to a significant denial or delay78 of
adequate medical care. If you feel that you have been denied mental health treatment, or if you feel that it
has been unnecessarily delayed, and you wish to claim deliberate indifference, you must:
(1) state facts that are sufficient to allege a serious medical need for which medical care has not been
provided; and
(2) assert that a prison official must have been aware of the need for medical care, or at least of facts
which might have led the official to believe there was a need for medical care.79
A court will find you suffered deliberate indifference if you are able to show both of these requirements.
To further explain these elements, we examine each part of a deliberate indifference claim in more detail.
(i) Serious Medical Need
The first part of your deliberate indifference claim must include facts that show you had a serious
medical need for which you did not receive treatment. A medical need is “serious” when there is a
substantial risk that you will suffer serious harm if you do not receive adequate treatment.80 Courts have
with severe mental illness, i.e., those who will not take their medication regularly, maintain normal hygienic practices,
accept dietary restrictions, or report symptoms of illness), aff’d, 907 F.2d 418 (3d Cir. 1990); Finney v. Mabry, 534 F.
Supp. 1026, 1036–37 (E.D. Ark. 1982) (Constitution requires separate facility for the “most severely mentally disturbed”
prisoners); Inmates of Allegheny County Jail v. Peirce, 487 F. Supp. 638, 644 (W.D. Pa. 1980) (jail must establish a
separate area for prisoners who “are seriously disturbed and require observation, protection, or restricted confinement”);
see also Morales Feliciano v. Hernandez Colon, 697 F. Supp. 37, 48 (D.P.R. 1988) (prisoners with mental illness may not
be housed in a jail for more than 24 hours), aff’d on other grounds sub nom. Morales-Feliciano v. Parole Bd. of P.R., 887
F.2d 1 (1st Cir. 1989); Delgado v. Cady, 576 F. Supp. 1446, 1452, 1456 (E.D. Wis. 1983) (upholding the housing of
psychotic prisoners in segregation unit and finding unconstitutional the coerced double celling of suicidal prisoners with
other prisoners: “[I]t is cruel and unusual punishment to force an inmate to share a cell with a suicidal person solely to
act as a prophylactic agent. It is the duty of the staff and not the inmates to provide surveillance over suicidal inmates.”).
75. DeMallory v. Cullen, 855 F.2d 442, 444–46 (7th Cir. 1988) (the allegation of a prisoner without mental illness
that he was knowingly housed in a high-security unit with prisoners with mental illness, who caused filthy and
dangerous conditions, stated an 8th Amendment claim against prison officials); Nolley v. County of Erie, 776 F. Supp.
715, 738 (W.D.N.Y. 1991) (finding that the automatic segregation of an HIV-positive prisoner with prisoners with mental
illness violated the prisoner’s due process rights because of “the stigma associated with being involuntarily placed in [the
segregated ward, which was] known to house inmates who were ... psychologically unstable [in addition to HIV-positive,
because] both of these classifications could have engendered serious adverse consequences for her” therefore, her
confinement “was qualitatively different from the punishment normally suffered by a person convicted of a crime.”), rev’d
in part on other grounds, 798 F. Supp. 123 (W.D.N.Y. 1992); Tillery v. Owens, 719 F. Supp. 1256, 1303 (W.D. Pa. 1989)
(citing increased tension for prisoners without mental illness and danger of retaliation against those with mental
illness), aff’d, 907 F.2d 418 (3d Cir. 1990); Langley v. Coughlin, 709 F. Supp. 482, 484–85 (S.D.N.Y. 1989), appeal
dismissed, 888 F.2d 252 (2d Cir. 1989); Langley v. Coughlin, 715 F. Supp. 522, 543–44 (S.D.N.Y. 1988); see Hassine v.
Jeffes, 846 F.2d 169, 178 n.5 (3d Cir. 1988) (holding prisoners could seek relief from the consequences of other prisoners’
failure to receive adequate mental health services).
76. Jones‘El v. Berge, 164 F. Supp. 2d 1096, 1125–26 (W.D. Wis. 2001) (granting preliminary injunction requiring
removal of prisoners with serious mental illness from “supermax” prison, where inmates spend all but four hours per
week in their cells); Madrid v. Gomez, 889 F. Supp. 1146, 1265–66 (N.D. Cal. 1995) (holding keeping prisoners with
mental illness or those at a high risk for suffering injury to mental health in Pelican Bay isolation unit unconstitutional),
rev’d in part on other grounds, 190 F.3d 990 (9th Cir. 1999). But see Scarver v. Litscher, 434 F.3d 972, 976–77 (7th Cir.
2006) (holding that prison officials who were not shown to have known that keeping a psychotic prisoner under
conditions of extreme isolation and heat would aggravate his mental illness could not be found deliberately indifferent).
77. See Greason v. Kemp, 891 F.2d 829, 831–33 (11th Cir. 1990) (prisoner killed himself); Waldrop v. Evans, 871
F.2d 1030, 1032 (11th Cir. 1989) (prisoner blinded and castrated himself). Cf. Wakefield v. Thompson, 177 F.3d 1160,
1164 (9th Cir. 1999) (holding 8th Amendment requires prison officials to provide prisoners with mental illness with a
supply of medication upon release). But see Campbell v. Sikes, 169 F.3d 1353, 1367–68 (11th Cir. 1999) (holding
discontinuation of medication by doctor who misdiagnosed a prisoner, having not obtained her medical records but
having read a summary, was not deliberate indifference).
78. See, e.g., Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346–47 (3d Cir. 1987) (noting the
“seriousness” of a prisoner’s need may also be determined in reference to the effect of delay of treatment).
79. Farmer v. Brennan, 511 U.S. 825, 845–46, 114 S. Ct. 1970, 1983–84, 128 L. Ed. 2d 811, 831–32 (1994).
80. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811, 823 (1994) (finding prison
also defined a “serious medical need” as one that a doctor has diagnosed as requiring treatment or one that
is so obvious that a non-doctor could easily recognize the need. 81 For example, where a prisoner has
attempted suicide, the court has found a serious medical need.82
(ii) Actual Knowledge of a Serious Medical Need
For the second part of your deliberate indifference claim, you must show prison officials actually knew
you needed mental health care but still failed to treat you.83 In Farmer v. Brennan, the Supreme Court
explained a prison official “knows” of a risk when he is not only aware of facts that would lead to the
conclusion that the prisoner faces a substantial risk of serious harm but also actually comes to that
conclusion.84 In other words, this part of the deliberate indifference test is subjective (from the point of view
of that particular prison official); he must actually believe you will suffer some serious harm before a court
will find he had knowledge of the risk.85 But, if the risk is so obvious, a jury can assume the prison official
knew of the risk. For example, the Farmer Court noted that if a plaintiff shows the risk of prisoner attacks
was “longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the
circumstances suggest that the defendant-official being sued had been exposed to information concerning the
risk and thus ‘must have known’ about it,” that could be enough to show actual knowledge of the risk.86
What Does Not Count as Deliberate Indifference?
Courts will refuse to find deliberate indifference in some situations. The deliberate indifference standard
is meant to address “unnecessary and wanton infliction of pain.”87 Acts or omissions that are not purposeful,
or where the prison officials had no reason to know you might suffer serious harm, will not satisfy the
standard. A complaint alleging inadequate psychiatric care because officials did not pursue treatment the
prisoner would have chosen will not meet the deliberate indifference standard.88 This is because prison
officials have the right to exercise discretion in deciding what treatment is adequate for a serious medical
need. In view of this discretion, courts will not find deliberate indifference when prison officials were merely
negligent,89 made a mistake, or had a difference of opinion regarding adequate medical care.90
Similarly, a complaint based on malpractice (improper or negligent treatment by a doctor) or
misdiagnosis (a medical mistake) will not meet the high deliberate indifference standard. 91 Thus, “a
official must act or fail to act with deliberate indifference to a “substantial risk of serious harm” to a prisoner (emphasis
added)).
81. See, e.g., Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977).
82. E.g., Perez v. Oakland County, 466 F.3d 416, 423–25 (6th Cir. 2006) (finding that the prisoner’s suicide
attempts raised a genuine issue as to whether the treating doctor had been deliberately indifferent to a serious medical
need); Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001) (holding that the “serious need” element was met where
the prisoner suffered from a mental illness that led him to commit suicide, and finding that mental illness more
generally poses a serious medical need).
83. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811, 825 (1994) (adopting a test
requiring finding that a particular official subjectively knew he was disregarding a risk).
85. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811, 825 (1994) (“[T]he official must
both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.”).
86. Farmer v. Brennan, 511 U.S. 825, 842, 114 S. Ct. 1970, 1981–82, 128 L. Ed. 2d 811, 829 (1994) (citing Brief for
Respondents at 22).
87. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 260 (1976) (quoting Gregg v. Georgia,
428 U.S. 153, 173, 96 S. Ct. 2909, 2925, 49 L. Ed. 2d 859, 875 (1976)).
88. See United States v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987) (“[T]hough it is plain that an inmate deserves
adequate medical care, he cannot insist that his institutional host provide him with the most sophisticated care that money
can buy.”).
89. Farmer v. Brennan, 511 U.S. 825, 835, 114 S. Ct. 1970, 1978, 128 L. Ed. 2d 811, 824 (1994) (“[D]eliberate
indifference entails something more than mere negligence, [but] the cases are also clear that it is satisfied by something
less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”).
90. See Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995) (finding that, except in exceptional circumstances, a
prisoner’s disagreement with his medical treatment is not enough for a deliberate indifference claim).
91. See, e.g., Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001) (“It is indisputable that an
incorrect diagnosis by prison medical personnel does not suffice to state a claim for deliberate indifference.”); United States
ex rel. Hyde v. McGinnis, 429 F.2d 864, 867–68 (2d Cir. 1970) (finding that a difference of opinion between the doctor and
the prisoner does not rise to the level of constitutional violation and at most involves the doctor’s negligence).
complaint that a doctor has been negligent in diagnosing or treating a medical condition does not state a
valid claim of medical mistreatment under the Eighth Amendment.”92 You may instead be able to file a
medical malpractice claim alleging negligence. See JLM Chapter 17, “The State’s Duty to Protect You and
Your Property: Tort Actions,” for more information about negligence and how to file a tort claim.
How to Bring a Deliberate Indifference Claim Under Section 1983
If you think your case does meet the standard for deliberate indifference, you may bring a claim of
deliberate indifference to your personal health and well-being under 42 U.S.C. § 1983 (“Section 1983”). You
can use Section 1983 to sue cities and local governments for constitutional violations, including, for instance,
the government body controlling the institution where the violation took place.93 For detailed information on
bringing a claim under this law, please read Chapter 16 of the JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. §
1331 to Obtain Relief from Violations of Federal Law.” If you plan to file your suit in federal court, you
should also read Chapter 14 of the JLM, “The Prison Litigation Reform Act.”
You can also use Section 1983 to challenge inadequate prison medical care as an Eighth Amendment
violation.94 To prove inadequacy, you must show: (1) you have a mental health need that is serious enough
that denial of treatment violates the Constitution; and (2) the prison was “deliberately indifferent” to this
serious mental health need. 95 You must show the policy or custom at the prison directly caused the
constitutional violation.
In the context of a mental health complaint, you should keep a few things in mind. First, if you believe
you suffer from a mental illness and want medical treatment, you should tell prison officials. If you are
afraid you will hurt yourself or other people, you should tell prison officials that too. Prison officials can only
be held accountable under the deliberate indifference standard if they have actual knowledge of, or some
other reason to believe, that you have a mental illness that requires treatment.96
E. Unwanted Treatment
While the previous Parts of this Chapter focused on your right to receive medical treatment for your
mental illness, this Part discusses treatment that you do not want. You should also look at Part C(5)(a) and
(E)(1) of Chapter 23 of the JLM, “Your Right to Adequate Medical Care.”
1. Informed Consent
You have a right to receive enough information about a potential medical treatment to make a
reasonable decision whether to try the treatment.97 After you learn about the treatment, you can choose
whether or not to give permission for the doctor to treat you.98 This right is known as “informed consent,”
and it means that you have the right to learn about all treatment options and the risks associated with each
option BEFORE you allow mental health doctors or other caregivers to treat you. Informed consent is a way
of making sure that you understand, before you start the treatment, what a treatment includes, and what
effects it may have on you.99 Informed consent is an important part of your right to refuse treatment.100 If
92. Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251, 261 (1976).
93. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694–95, 98 S. Ct. 2018, 2037–38, 56 L. Ed. 2d 611, 638 (1978).
94. Farmer v. Brennan, 511 U.S. 825, 834–35, 114 S. Ct. 1970, 1977–78, 128 L. Ed. 2d 811, 823–24 (1994)
(discussing the two-part test as applied to the medical context) .
96. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811, 825 (1994) (adopting a test
requiring finding that a particular official knew he was disregarding a risk).
97. Pabon v. Wright, 459 F.3d 241, 246 (2d Cir. 2006) (holding that prisoner’s constitutionally protected liberty
interest in refusing medical treatment encompasses a right to receive information that would enable a reasonable person
to make that decision). A prisoner must show the following to prove a violation of this right: (1) government officials did
not provide him with such information, (2) this failure caused him to undergo medical treatment that he would have
refused if he had the information, and (3) the officials acted with deliberate indifference to the prisoner's right to refuse
medical treatment. Pabon v. Wright, 459 F.3d 241, 246 (2d Cir. 2006).
98. See In re Ingram, 689 P.2d 1363, 1368, 102 Wash. 2d 827, 836 (1984) (en banc) (finding a person has a right to
choose one medical treatment over another, or to refuse treatment, unless a state interest outweighs that person’s interest);
In re Storar, 52 N.Y.2d 363, 376, 420 N.E.2d 64, 70, 438 N.Y.S.2d 266, 272 (1981) (holding a competent adult has the
common law right to decline or accept medical treatment), superseded by statute on other grounds; Superintendent of
Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 738–39, 370 N.E.2d 417, 424 (1977) (finding the law implicitly
recognizes that a person has a strong interest in being free from nonconsensual invasion of his bodily integrity).
99. Zebarth v. Swedish Hosp. Med. Ctr., 499 P.2d 1, 8, 81 Wash. 2d 12, 23 (1972) (en banc) (stating that patient’s
you do not give your consent, you are refusing treatment; however, informed consent does have some limits.
If you pose a danger to yourself or others, the doctor may be able to treat you in a manner that the doctor
believes will immediately help and benefit you.101
Doctors have a duty to obtain informed consent from patients, including prisoners,102 before treating
them. A doctor must almost always inform you of options and risks when there is penetration of the body
(such as with a scalpel, needle, or pill).103 Also, when the direct side effects of treatment are painful or
serious, your informed consent is usually required.104 Some states specifically require by law that doctors
consider alternative forms of care,105 and inform you of the procedures and risks associated with each. You
should research what the law is in your state.
You should carefully consider whether or not to give your consent to receive treatment. State law varies
as to whether informed consent for one treatment will extend to all risks associated with a particular
procedure or any additional procedures that a doctor believes will help you. In New York, if you have not
consented to a previous treatment, doctors cannot imply consent to a separate course of treatment, even in
an emergency.106 The rule in California is that consent to a previous treatment does not mean consent to
another course of treatment; there, a court held that a prisoner who consented to shock treatment did not
necessarily consent to administration of drugs that produced nightmares.107
F. Medication Over Prisoner’s Objection
Medication is one form of treatment. Prisoners have a limited right to refuse antipsychotic or
psychotropic drugs. 108 Such medications help cure certain symptoms of mental illness but also alter a
person’s perception, emotions, or behavior. For example, psychotropic drugs can have serious side effects,
such as nightmares and muscle tics (sudden movements). The law provides protection against undue
administration of such serious drugs by giving prisoners the right to refuse treatments that interfere to a
great degree with the body. However, this right is not absolute—there are some circumstances when
medication can be administered, even over your objection.109
consent must be competent, knowing, and voluntary for informed consent to be valid); see Clarkson v. Coughlin, 898 F.
Supp. 1019, 1048 (S.D.N.Y. 1995) (referring to New York’s statutory definition of informed consent for purposes of medical
malpractice liability, which requires the medical professional to “disclose to the patient such alternatives [to the treatment
or medication in question] and the reasonably foreseeable risks and benefits involved as a reasonable [medical or dental] . . .
practitioner under similar circumstances would have disclosed in a manner permitting the patient to make a
knowledgeable evaluation”) (citing N.Y. Pub. Health Law § 2805-d(1) (McKinney 1993)).
100. Pabon v. Wright, 459 F.3d 241, 246 (2d Cir. 2006) (holding prisoner’s constitutionally protected liberty interest
in refusing medical care encompasses a right to receive information that would enable a reasonable person to decide).
101. See Washington v. Harper, 494 U.S. 210, 232–33, 110 S. Ct. 1028, 1042, 108 L. Ed. 2d 178, 205 (1990) (holding
that judges will rarely override medical staff’s health care decisions).
102. See U.S. ex rel. Schuster v. Herold, 410 F.2d 1071, 1084 (2d Cir. 1969) (finding a constitutional violation of
prisoner’s rights where he received different procedural treatment than civilians receive).
103. See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 269, 110 S. Ct. 2841, 2846, 111 L. Ed. 2d 224, 236 (1990)
(“[T]his notion of bodily integrity has been embodied in the requirement that informed consent is generally required for
medical treatment.”); N.Y. Pub. Health Law § 2805-d (McKinney 2007).
104. See, e.g., Clites v. State, 322 N.W.2d 917, 922–23 (Iowa Ct. App. 1982) (en banc) (rejecting administration of
“major tranquilizers” to patient with a mental illness without consent where the medical industry standard required
written consent from patient or guardian).
105. N.Y. Correct. Law §§ 402(1)–(2) (McKinney 2003); see also Cobbs v. Grant, 502 P.2d 1, 9–10, 8 Cal. 3d 229, 242–
43 (1972) (finding doctors have a duty to reasonably disclose alternatives to proposed therapy and accompanying dangers).
106. In re Storar, 52 N.Y.2d 363, 376, 420 N.E.2d 64, 70, 438 N.Y.S.2d 266, 272 (1981), superseded by statute on other
grounds.
107. Mackey v. Procunier, 477 F.2d 877, 877–79 (9th Cir. 1973).
108. Washington v. Harper, 494 U.S. 210, 221–22, 110 S. Ct. 1028, 1036–37, 108 L. Ed. 2d 178, 197–98 (1990)
(holding antipsychotic drugs can be administered only if “a mental disorder exists which is likely to cause harm if not
treated” and if one psychiatrist has prescribed and another reviewed the treatment); Cruzan v. Dir., Mo. Dep’t of Health,
497 U.S. 261, 278, 110 S. Ct. 2841, 2851, 111 L. Ed. 2d 224, 242 (1990) (“[P]risoners possess ‘a significant liberty interest
in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth
Amendment.’”) (quoting Washington v. Harper, 494 U.S. 210, 221–22, 110 S. Ct. 1028, 1036, 108 L. Ed. 2d 178, 198
(1990)).
109. Washington v. Harper, 494 U.S. 210, 227, 110 S. Ct. 1028, 1039–40, 108 L. Ed. 2d 178, 201–02 (1990) (holding
that “given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison
inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself
or others and the treatment is in the inmate’s medical interest”). The government may also medicate criminal
i. Your Right to Refuse Medication Under the Due Process Clause
Under the Due Process Clause of the United States Constitution, “no State shall … deprive any person of
life, liberty, or property, without due process of law.” 110 Some deprivations are so important that the
Constitution requires states to establish processes to ensure that you are not deprived unfairly. For example,
in Vitek v. Jones,111 the Supreme Court found that characterizing a prisoner as mentally ill and moving him
to a psychiatric hospital were such serious (“grievous”) losses that the State was required to have procedural
protections in place to make sure that the loss was fair.112 These losses included the harm to the prisoner’s
reputation and the change in conditions of confinement.113
Similarly, before the State can force you to take medication, it must have procedural protections in place
to make sure you are not receiving the medication randomly or unfairly. You must receive procedures,
including notice and a hearing, before you can be involuntarily medicated.114 A decision to treat you with
drugs triggers procedural due process protections because drugs can produce serious and irreversible side
effects115 that represent a significant State intrusion into your body.116
ii. Your Right to Refuse Medication Based on State Law
Your right to refuse medication may come not only from the Constitution, but also from state laws that
specifically require procedural protections (such as notice and a hearing) before you can be forcibly
medicated.117 If your state has such a law, it must follow the procedures set out by the law.118 If the State
wishes to avoid the process that is laid out by state law, it must have a rational reason for doing so, or the
avoidance will be considered a due process violation. In other words, the State must show that it has
legitimate reasons, reasonably related to its interests, before it may take away an expectation that was
granted through its own law.
defendants to make them competent to stand trial for certain serious charges, as long as the treatment is medically
appropriate, unlikely to have serious side effects, and necessary “significantly to further important governmental trial-
related interests.” Sell v. United States, 539 U.S. 166, 179, 123 S. Ct. 2174, 2184, 156 L. Ed. 2d 197, 211 (2003); see
United States v. Baldovinos, 434 F.3d 233, 241–42 (4th Cir. 2006) (on appeal, the court found that involuntarily
medicating a defendant with a mental illness was not in this defendant’s best interests but was solely done to make the
defendant competent to stand trial, but upholding the conviction based on the federal plain error rule after finding that
the mistake did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings), cert. denied,
546 U.S. 1203, 126 S. Ct. 1407, 164 L. Ed. 2d 107 (2006).
110. U.S. Const. amend. XIV, § 1.
111. Vitek v. Jones, 445 U.S. 480, 487–90, 100 S. Ct. 1254, 1261–62, 63 L. Ed. 2d 552, 561–63 (1980).
112. Vitek v. Jones, 445 U.S. 480, 488, 100 S. Ct. 1254, 1261, 63 L. Ed. 2d 552, 561 (1980).
114. Washington v. Harper, 494 U.S. 210, 221–22, 110 S. Ct. 1028, 1036–37, 108 L. Ed. 2d 178, 198 (1990); see, e.g.,
Mills v. Rogers, 457 U.S. 291, 299 n.16, 102 S. Ct. 2442, 2448 n.16, 73 L. Ed. 2d 16, 23 n.16 (1982) (noting that involuntary
administration of psychotropic drugs bears on liberty interests).
115. Washington v. Harper, 494 U.S. 210, 229–30, 110 S. Ct. 1028, 1041, 108 L. Ed. 2d 178, 203–04 (1990)
(describing the side effects of antipsychotic drugs, including severe spasms and neurological dysfunction); see Nat’l
Alliance on Mental Illness, About Medications, http://www.nami.org/template.cfm?section=About_Medications (last
visited Nov. 6, 2007); Nat’l Inst. of Mental Health, U.S. Dep’t of Health & Human Servs., Medications, (2002), available
at http://www.nimh.nih.gov/health/publications/medications/medications.pdf. To order National Institute of Mental
Health publications, call (301) 443-4513 or (866) 615-6464 (toll-free), or (301) 443-8431 (TTY), or write to the National
Institute of Mental Health, Office of Communications, 6001 Executive Blvd., Room 8184, MSC 9663, Bethesda, MD
20892-9663.
116. Youngberg v. Romeo, 457 U.S. 307, 316, 102 S. Ct. 2452, 2458, 73 L. Ed. 2d 28, 37 (1982) (“[Liberty] from bodily
restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary
governmental action.”) (quoting Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 18, 99 S. Ct. 2100,
2109, 60 L. Ed. 2d 668, 682–83 (1979)); Washington v. Harper, 494 U.S. 210, 229, 110 S. Ct. 1028, 1041, 108 L. Ed. 2d 178,
203 (1990) (“The forcible injection of medication into a nonconsenting person’s body represents a substantial interference
with that person’s liberty.”).
117. See, e.g., Wash. Rev. Code Ann. § 71.05.215(1) (West 2002 & Supp. 2007) (“Right to Refuse Antipsychotic
Medication”).
118. Washington v. Harper, 494 U.S. 210, 221, 110 S. Ct. 1028, 1036, 108 L. Ed. 2d 178, 198 (1990) (finding that a
Washington state policy requiring a finding of mental illness and dangerousness before a prisoner can be forcibly medicated
with antipsychotic drugs “creates a justifiable expectation on the part of the inmate that the drugs will not be administered
unless those conditions exist”); Vitek v. Jones, 445 U.S. 480, 488, 100 S. Ct. 1254, 1261, 63 L. Ed. 2d 552, 561–62 (1980)
(“We have repeatedly held that state statutes may create liberty interests that are entitled to the procedural protections of
the Due Process Clause of the Fourteenth Amendment.”).
Unless the State can show both that a prisoner has a mental illness and is dangerous,119 or that a state
rule has so many protections that it is unlikely that the prisoner will receive medication unfairly,120 it cannot
force a prisoner to take medication without some procedural protections.
a. States That Give You the Right to Refuse Medication
Many states have laws or judicial decisions that specifically provide for a prisoner’s right to refuse
treatment, subject to the limits described above in Parts C(2)(a) and C(2)(b).121 In California, for example,
prisoners must receive a judicial hearing to determine their competency to refuse treatment before receiving
psychotropic drugs without consent.122
Either through the U.S. Constitution, or state constitutions and state law, your liberty interest in
avoiding unwanted treatment allows you to challenge a doctor’s decision to treat you with medication if that
decision is arbitrary. In one case, the Arizona Supreme Court held that under the state constitution’s due
process clause, institutional facilities in Arizona were not allowed to treat a prisoner for general security
reasons alone.123 Although acknowledging that forcible medication might be lawful in an emergency, the
Arizona court found that the due process protections entitled prisoners to treatment plans based on evidence
from professionals and consistent with state regulations.124
In New York, prisoners have a state constitutional and statutory right to refuse any care or medication
that they do not want.125 You may only be treated over your objection in an emergency, in order to avoid
serious harm to others or to yourself,126 or pursuant to a valid court order.127 In New York, when the Office of
Mental Health wishes to obtain a court order for medication over objection for a state prisoner, the prisoner
will first be committed to Central New York Psychiatric Center. 128 The superintendent will prepare a
petition for commitment and treatment, and the prisoner will be represented by an attorney from Mental
Hygiene Legal Services.129 Prisoners who are subject to court orders may be kept at Central New York
Psychiatric Center or may be transferred back to the prison with the order for medication over objection
remaining in effect at the prison.130
119. Washington v. Harper, 494 U.S. 210, 232–33, 110 S. Ct. 1028, 1042–43, 108 L. Ed. 2d 178, 204–05 (1990)
(affirming a state policy that required (1) medical professionals to determine that prisoner had a mental illness, (2) because
of the mental illness, prisoner was a danger to himself or others, and (3) constant monitoring of drug dosage, and finding
that “due process requires no more”).
120. Washington v. Harper, 494 U.S. 210, 222, 235, 110 S. Ct. 1028, 1037, 1044, 108 L. Ed. 2d 178, 198, 207 (1990)
(upholding a state policy that required psychiatric evaluation, notice, and hearing for a prisoner before forcible medication);
see also Lappe v. Loeffelholz, 815 F.2d 1173, 1176 (8th Cir. 1987) (finding that prisoner’s constitutional rights were not
violated by a treatment transfer where he had access to written notice, an adversarial hearing with an independent
decision maker, and legal counsel).
121. For examples of judicial decisions, see In re Qawi, 81 P.3d 224, 227–28, 32 Cal. 4th 1, 9–10, 7 Cal. Rptr. 3d 780,
784 (2004) (finding a right to refuse involuntary medication unless prisoner is either incapable of making treatment
decisions or dangerous); Hawaii v. Kotis, 984 P.2d 78, 89–90, 91 Haw. 319, 330–31 (1999) (upholding involuntary
medication only by court order but not generally); see also Wash. Rev. Code Ann. § 71.05.215(1) (West 2002 & Supp. 2007)
(granting the right to refuse antipsychotic drugs unless failure to medicate is substantially likely to result in serious harm,
deterioration, or prolonged length of commitment, and there is no less intrusive course of treatment).
122. Cal. Penal Code § 2600 (West 2000).
123 . Large v. Superior Court, 714 P.2d 399, 408, 148 Ariz. 229, 238 (1986) (“[T]he forced, non-emergency
administration of psychotropic drugs which present serious dangers of significant side effects is not justified by security
considerations alone.”).
124. Large v. Superior Court, 714 P.2d 399, 409, 148 Ariz. 229, 239 (1986).
125. Rivers v. Katz, 67 N.Y.2d 485, 493, 495 N.E.2d 337, 341, 504 N.Y.S.2d 74, 78 (1986) (holding that an
individual’s right to refuse treatment is a fundamental interest in liberty protected by the due process clause of the New
York State Constitution); N.Y. Comp. Codes R. & Regs. tit. 14, § 527.8(c) (2007).
126. Rivers v. Katz, 67 N.Y.2d 485, 495, 495 N.E.2d 337, 343, 504 N.Y.S.2d 74, 80 (1986); N.Y. Mental Hyg. Law §
9.39(a) (McKinney 2006); see also N.Y. Comp. Codes R. & Regs. tit. 14, § 527.8(c)(1) (2007).
127. See N.Y. Comp. Codes R. & Regs. Tit 14, § 527.8(c)(4) (2007).
128. See N.Y. Correct. Law § 402(9) (McKinney 2003) (providing that where two doctors certify that a prisoner has
a mental illness and is a danger to himself or others, he should be transferred to the Central New York Psychiatric
Center and a petition for commitment or medication initiated).
129. See N.Y. Correct. Law § 402(3) (McKinney 2003).
130. One problem that has arisen with “traveling” Rivers orders, which permit the transfer of a prisoner who has
a court order for medication over objection back to the prison is that psychiatric patients who are prisoners might lack
access to lawyers. Because Mental Hygiene Legal Services attorneys provide services to those housed in Central New
York Psychiatric Center but not in prisons, psychiatric patients transferred to prisons do not retain the same access to
Under New York’s laws, you have a right to refuse treatment and to challenge the decision to treat you
with drugs. Furthermore, you may not receive medication over objection without procedural protections in
place to avoid unfairness. While many states allow expressly for a right to refuse and for an appeals process,
each state has different requirements. Research your state’s statutes to see what requirements apply.
(c ) Your Right to Refuse Medication Under the Eighth Amendment
In some circumstances, you also have a right to refuse medication under the Eighth Amendment, which
prohibits cruel and unusual punishment.131 Administration of drugs as a means of punishment (rather than
as treatment) is unconstitutional.132
Forcible treatment with psychotropic medication that causes pain or fright can constitute cruel and
unusual punishment, violating the Eighth Amendment.133 The district court in Souder v. McGuire cited
cases in the Eighth and Ninth Circuits134 that held that treating prisoners with drugs without consent may
raise Eighth Amendment claims. In those cases, the courts found that drugs causing pain or fright could
invade the body and mental processes to an unconstitutional degree.
While some courts have emphasized that an allegation that you were given a particular kind of medicine
is not enough to prove that giving you the drug was cruel and unusual (and thus a violation of the Eighth
Amendment), 135 the Supreme Court has held that states may not avoid the obligations of the Eighth
Amendment just by calling a medical act a “treatment.”136
Limitations on Your Right to Refuse Medication
The right to refuse medication does not mean that the State can never medicate you against your will.
Instead, it means that the State must provide a process (such as a hearing) that reduces the chance that the
decision to medicate you will be random or arbitrary.
One important limitation on a prisoner’s right to refuse medication is danger or emergency. Prisons may
administer psychotropic drugs over a prisoner’s objection if the prisoner poses a danger to himself or others.
Receiving medication against your will is called “medication over objection.” In Washington v. Harper,137 the
Supreme Court upheld a state policy allowing treating a prisoner without consent if a licensed psychiatrist
found that the prisoner suffered from a mental disorder, and the prisoner was “gravely disabled”138 or posed
a “likelihood of serious harm”139 to himself or others. Therefore, situations in which a prisoner presents a
danger to himself or the general prison population are an exception to the right to refuse treatment. A good
Mental Hygiene Legal Services. See Mental Hygiene Legal Servs. ex rel. Christine D. v. Bennett, 297 A.D.2d 308, 310,
746 N.Y.S.2d 308, 310 (2d Dept. 2002) (finding that an order for involuntary medication under Rivers implicitly extends
to other facilities to which a patient is transferred).
132. Washington v. Harper, 494 U.S. 210, 241, 110 S. Ct. 1028, 1047, 108 L. Ed. 2d 178, 211 (1990) (“Forced
administration of antipsychotic medication may not be used as a form of punishment.”).
133. Souder v. McGuire, 423 F. Supp. 830, 831–32 (M.D. Pa. 1976) ( “involuntary administration of drugs which have
a painful or frightening effect can amount to cruel and unusual punishment, in violation of the Eighth Amendment.”).
134. Knecht v. Gillman, 488 F.2d 1136, 1140 (8th Cir. 1973) (holding that a drug that caused prisoners to vomit for
15 minutes to an hour “can only be regarded as cruel and unusual unless the treatment is being administered to a patient
who knowingly and intelligently has consented to it”); Mackey v. Procunier, 477 F.2d 877, 878 (9th Cir. 1973) (finding that
“serious constitutional questions respecting cruel and unusual punishment or impermissible tinkering with the mental
processes” could be raised where a prisoner who had consented to shock treatment was given extra drugs, without his
consent, that caused fright and nightmares).
135. See, e.g., Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970) (“It is only where an inmate’s complaint of
improper or inadequate medical treatment depicts conduct so cruel or unusual as to approach a violation of the Eighth
Amendment’s prohibition of such punishment that a colorable constitutional claim is presented.”).
136. See Trop v. Dulles, 356 U.S. 86, 95, 78 S. Ct. 590, 595, 2 L. Ed. 2d 630, 639 (1958) (finding that substance—not a
label—determines the meaning of a statute).
137. Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990).
138. Wash. Rev. Code Ann. § 71.05.020(16) (West 2002 & Supp. 2007) (defining that term as a condition resulting
from a mental disorder where there is a danger of serious physical harm from inability to provide for one’s “essential
human needs” like health or safety, or where there is a severe decrease in function evidenced by repeated and increasing
loss of control over actions).
139. Wash. Rev. Code Ann. § 71.05.020(21) (West 2002 & Supp. 2007) (defining the term as a substantial risk that a
person will physically harm himself, others, or property of others evidenced by threats or suicide attempts or actual harm to
himself, others, or property).
example is a Kansas prisoner who objected to psychotropic medication but was not allowed to refuse
treatment because he had previously destroyed his prison cell and started fights with other prisoners.140
There are a few other limitations on a prisoner’s right to refuse treatment. A prisoner may receive
medication over objection despite objections or religious beliefs if the State can prove that its interests are
legitimate.141 Also, the State may give drugs to a prisoner over his objections if the court feels that enough
procedural protections are in place to ensure that the decision to treat with drugs was reasonable.142 You
should also note that, in some cases, if a doctor finds that medication is necessary and in the prisoner’s
medical interest, then the State does not have to grant a prisoner’s request to stop taking the drugs so that
he can prove he can do without them.143
A determination of whether the right to refuse is limited in any given case “must be defined in the
context of the inmate’s confinement.”144 This means that the court will review your current prison conditions,
the threat of danger that you pose to yourself or others, and the procedures that the State has in place to
protect you from an unfair decision to treat you with drugs.145
How Do Courts Decide Whether State Interests Are Legitimate?
To determine whether or not the State may rightfully force a prisoner to take medication due to a
situation of danger or emergency, courts apply what is called the Turner v. Safley rational basis test. With
this test, the court tries to see if the State’s decision to treat a non-consenting prisoner with psychotropic
drugs is “reasonably related to legitimate penological interests.”146 Legitimate State interests include the
health and safety of the public, the prisoner, and the general prison population. The rational basis test
presumes that State interests are legitimate. This means that a court will consider the State’s choice to
medicate a prisoner reasonable unless it does not serve one or more of these legitimate State goals.
There are some common arguments that prisoners use to counter the presumption that the State’s
actions are the result of a legitimate interest. One challenge to medication over objection is that the decision
to medicate is unfair or arbitrary (random or not supported by a reason).147 In such cases, courts consider a
competing risk that the determination of danger will be incorrect and may cause harm to the prisoner’s
reputation.148 In order to avoid mistakes in determining if there is a danger, taking the drugs must be in the
prisoner’s medical interest and can only be for treatment purposes.149
In addition, states must provide certain procedural safeguards to ensure that the decision to medicate is
not arbitrary or erroneous. Common safeguards include (1) an administrative hearing before an independent
decision maker (someone not involved in the prisoner’s treatment but who may come from within the
institution);150 (2) written notice;151 (3) the right to be present at an adversary hearing;152 and (4) the right to
140. Sconiers v. Jarvis, 458 F. Supp. 37, 38–39 (D. Kan. 1978).
141. Smith v. Baker, 326 F. Supp. 787, 787–88 (W.D. Mo. 1970) (denying relief to a prisoner who objected to
administration of drugs “against [his] will and religious belief”), aff’d, 442 F.2d 928 (8th Cir. 1971).
142. See, e.g., Lappe v. Loeffelholz, 815 F.2d 1173, 1176 (8th Cir. 1987) (finding that prisoner’s constitutional rights
were not violated by a treatment transfer where he had written notice, an adversarial hearing with an independent decision
maker, and legal counsel).
143. See, e.g., Sullivan v. Flannagan, 8 F.3d 591, 592 (7th Cir. 1993) (finding the Illinois Department of Corrections,
which had forced prisoner to take mind-altering drugs against his will for five years after he was determined to be a danger
to others, was not constitutionally required to give him a chance to stop taking the drugs to prove he didn’t need them).
144. Washington v. Harper, 494 U.S. 210, 222, 110 S. Ct. 1028, 1037, 108 L. Ed. 2d 178, 198 (1990).
145. See Washington v. Harper, 494 U.S. 210, 222, 110 S. Ct. 1028, 1037, 108 L. Ed. 2d 178, 198 (1990).
146. Washington v. Harper, 494 U.S. 210, 223, 110 S. Ct. 1028, 1037, 108 L. Ed. 2d 178, 199 (1990) (citing Turner
v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64, 79 (1987), superseded by statute on other grounds).
147. See, e.g., Washington v. Harper, 494 U.S. 210, 217, 110 S. Ct. 1028, 1034, 108 L. Ed. 2d 178, 195 (1990)
(challenging as arbitrary a decision allowing treatment with antipsychotic drugs against the will of a prisoner with mental
illness without a judicial hearing).
148. Vitek v. Jones, 445 U.S. 480, 494, 100 S. Ct. 1254, 1264, 63 L. Ed. 2d 552, 565–66 (1980) (finding that
characterization of mental illness, transfer, and treatment had “stigmatizing consequences”).
present and cross-examine witnesses.153 While the State may provide a lawyer to represent the prisoner in
administrative hearings, providing a non-attorney adviser may satisfy due process.154
G. Challenging Transfers for Treatment
What Is a Treatment Transfer?
Many treatments are available for prisoners and sometimes these treatments must be administered at a
site outside of the prison, requiring that the prisoner be transferred from his present location in order to be
treated. A prisoner may submit to the transfer or voluntarily agree to various forms of treatment including
medication, counseling, therapy, or commitment to a psychiatric center. Or, in some cases, the prisoner may
be treated involuntarily. This Section explains when the prison can and cannot transfer you for treatment if
you refuse to consent to the transfer.
Prisoners who suffer from a mental illness may be treated at one of several possible locations. For more
detail on these facilities, please see Part A(2) above. Transferring you to a facility that has a significantly
different quality than the general conditions of prison confinement might violate your constitutional rights.
Procedural Safeguards Before Involuntary Transfer
b. What Triggers Procedural Safeguards Under the Due Process Clause?
Lawful imprisonment may take away some of your rights, but you still have a right to basic
protections.155 In certain circumstances, basic procedures must be in place to protect against unfair actions
on the part of the State. For more on procedural due process, see Chapter 18 of the JLM, “Your Rights at
Prison Disciplinary Hearings,” and Chapter 23, “Your Right to Adequate Medical Care.” A hearing and
written notice are two common examples of procedures that might be required, often before a prisoner can be
involuntarily committed to a psychiatric hospital.156
Prison to hospital transfers might mean a significant change in living conditions and type of
confinement. A determination of mental illness by a doctor and subsequent transfer does not automatically
mean that a prisoner has a mental illness for the purposes of other laws in the state.157 Still, there is a
chance that the prisoner might suffer harm to his reputation. When the risk of harm is high, your
constitutional right to due process might be triggered.
In addition, if the State tries to avoid the requirements imposed by its own laws, then a law giving you
the right to procedures before transfer will also trigger due process protections. Where state regulations
require a finding of mental illness before transfer, the State creates an “objective expectation” in the
prisoner that there will be a procedure to determine whether or not a mental illness exists.158 Without such
procedures, the prisoner could suffer a due process violation. In sum, due process protection may be required
because of the risk of harm (physical or reputational) to you from a particular state act or because the State
gave you an expectation through the law it created that some particular act would be followed. The due
process protection to which you are entitled is the same, no matter how your liberty interest is implicated.159
In Vitek v. Jones, the Supreme Court found that a Nebraska statute requiring a finding of mental illness
before transfer to an outside mental facility created an expectation among prisoners that transfer would
occur only if they were found to have mental illness.160
155. Wolff v. McDonnell, 418 U.S. 539, 555, 94 S. Ct. 2963, 2974, 41 L. Ed. 2d 935, 950 (1974) (“[T]hough his rights
may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of
constitutional protections when he is imprisoned for crime.”).
156. Vitek v. Jones, 445 U.S. 480, 495–96, 100 S. Ct. 1254, 1265, 63 L. Ed. 2d 552, 566–67 (1980); see, e.g.,
Washington v. Harper, 494 U.S. 210, 235, 110 S. Ct. 1028, 1044, 108 L. Ed. 2d 178, 207 (1990) (reviewing a Washington
state policy which required a hearing and notice of that hearing).
157. See In re Will of Stephani, 250 A.D. 253, 254–57, 294 N.Y.S. 624, 624 (3d Dept. 1937) (finding that a prisoner
who had died while confined in a mental hospital was not necessarily incompetent to write his will, even though the New
York Surrogate’s Court Act required that to be valid, someone writing his will “at the time of executing it, was in all
respects [mentally] competent to make a will, and not under any restraint”).
158. Vitek v. Jones, 445 U.S. 480, 489–90, 100 S. Ct. 1254, 1262, 63 L. Ed. 2d 552, 562–63 (1980).
159. See Washington v. Harper, 494 U.S. 210, 222, 110 S. Ct. 1028, 1037, 108 L. Ed. 2d 178, 198 (1990) (holding the
Due Process Clause gives a person no greater right than that recognized under state laws that create a liberty interest).
160. Vitek v. Jones, 445 U.S. 480, 489–90, 100 S. Ct. 1254, 1262, 63 L. Ed. 2d 552, 562–63 (1980).
Under Vitek, the State must adequately protect your liberty interests (if it has created them through
state law) in the transfer process by providing:
(1) Written notice that the prison is considering your transfer;
(2) A hearing;
(3) An opportunity to present witness testimony and cross-examine state witnesses at the hearing;
(4) An independent decision maker;
(5) A written statement by the decision maker stating the reasons and evidence relied on for your
transfer;
(6) Legal assistance from the State if you cannot afford your own; and
(7) Effective and timely notice of rights (1) through (6).161
All of these protections are triggered if your liberty interests are implicated and there is a chance that
you will suffer a serious loss. Failure to provide them violates your rights.
(1) Are Your Liberty Interests Implicated?
Courts determine whether the State can deprive you of a liberty interest by balancing the interests of
the State (for example, prison safety) with your liberty interest in freedom from random deprivations (for
example, the right to agree or disagree to medication). If the interest of the prisoner is found to be stronger
than the interest of the State, then the individual is entitled to due process protections.162 Whether or not a
prisoner has a state-created liberty interest depends on whether the loss the prisoner faces is serious.
Liberty interests are limited; prisoners are entitled to freedom from restraint only to the extent that
restraint cannot exceed the conviction sentence in an unexpected manner.163 This is true unless there is an
“atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”164 So, for
due process to apply, you must have both a liberty interest and a deprivation of that liberty that imposes a
significant and atypical (unusual) hardship. Only if both of these factors are present are you entitled to due
process protections165 like written notice and a hearing. Transfer from one prison to another within the
State’s system does not necessarily create a liberty interest.166
The Equal Protection Clause of the Fourteenth Amendment of the Constitution prohibits states from
denying any person equal protection of the laws. In other words, state laws must treat each person in the
same manner as others in similar conditions and circumstances. In the context of mental health, the equal
protection rights of prisoners who are being committed entitle them to substantially the same procedures as
those available to free persons subjected to an involuntary commitment proceeding.167 In United States ex
161. Vitek v. Jones, 445 U.S. 480, 494–95, 100 S. Ct. 1254, 1264–65, 63 L. Ed. 2d 552, 566 (1980).
162. Mathews v. Eldridge, 424 U.S. 319, 334–35, 96 S. Ct. 893, 902–03, 47 L. Ed. 2d 18, 33 (1976) (developing a
three-part balancing test to determine whether state-provided procedural protections are sufficient).
163. Sandin v. Connor, 515 U.S. 472, 483–84, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 429–30 (1995) (recognizing
that while states may create liberty interests, these interests are generally limited to freedom from restraint that is
significant and atypical rather than expected), overruled on other grounds by Cray v. Carey, 2006 U.S. Dist. LEXIS 43286
(E.D. Cal. June 26, 2006) (unpublished).
164. Sandin v. Connor, 515 U.S. 472, 484–45, 115 S. Ct. 2293, 2300–01, 132 L. Ed. 2d 418, 430–31 (1995) (finding
that holding a prisoner in a segregated housing unit for 30 days “though concededly punitive, does not present a dramatic
departure from the basic conditions of [prisoner’s] indeterminate sentence”), overruled on other grounds by Cray v. Carey,
2006 U.S. Dist. LEXIS 43286 (E.D. Cal. June 26, 2006) (unpublished).
165. Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (“To prevail, [the prisoner] must establish both that the
confinement or restraint creates an ‘atypical and significant hardship’ under Sandin, and that the state has granted its
inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.”).
166. See Montanye v. Haymes, 427 U.S. 236, 242, 96 S. Ct. 2543, 2547, 49 L. Ed. 2d 466, 471 (1976) (holding that “no
Due Process Clause liberty interest of a duly convicted prison inmate is infringed when he is transferred from one prison to
another within the State, whether with or without a hearing, absent some right or justifiable expectation rooted in state
law that he will not be transferred except for misbehavior or upon the occurrence of other specified events”); Meachum v.
Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451, 459 (1976) (finding mere transfer of prisoner from one
prison to another within the state’s system does not implicate prisoner’s liberty interests and does not violate due process).
167. U.S. ex rel. Schuster v. Herold, 410 F.2d 1071, 1073 (2d Cir. 1969) (“[W]e believe that before a prisoner may be
transferred to a state institution for insane criminals, he must be afforded substantially the same procedural safeguards as
are provided in civil commitment proceedings ... .”); see also Souder v. McGuire, 516 F.2d 820, 821–22 (3d Cir. 1975) (finding
that “serious equal protection and due process issues” were raised regarding the constitutionality of a Pennsylvania mental
health statute that gave the warden a choice whether or not to adopt certain procedures for the commitment of people
already in a correctional facility even though the same procedures were mandatory for the involuntary commitment of “non-
confined,” civilian adults); Evans v. Paderick, 443 F. Supp. 583, 585 (E.D. Va. 1977) (rejecting defendant’s argument that a
rel. Schuster v. Herold, the Second Circuit found that a New York prisoner who was transferred from prison
to an institution for the criminally insane was deprived of equal protection because there was an unlawful
difference between procedural protections given to civilians facing involuntary commitment and those given
to prisoners. 168 Therefore, to determine the procedural protections that apply in your state, you should
review civil commitment laws in addition to laws that govern corrections facilities. We discuss procedural
protections and treatment transfers later in this Chapter.
(2) What is a Serious Loss?
Courts might consider transfers to be a serious loss because of three factors: (1) there is a high risk of
stigma associated with a declaration of mental illness; (2) there is an actual change in the type of
confinement; and (3) there is actual behavior modification treatment.169 As with challenges to medication
over objection, these changes require that the State provide procedural protections.
The test courts apply to determine if a loss is serious examines whether the loss is “significant and
atypical.”170 Significant and atypical state actions are those actions not similar to prison conditions or those
that substantially alter the environment, duration, or degree of the prison condition. For example, a prisoner
who was placed in segregated confinement did not suffer a serious loss that implicated a liberty interest
because the segregation was of the same duration and degree as that of his normal prison conditions.171
More specifically, under the Vitek standard, “significant and atypical” means that the loss suffered by
the prisoner is different than the loss already suffered as a result of prison confinement.172 So, the loss to the
prisoner in Vitek was “serious” enough to require due process protections because he had reasonably
developed an “objective expectation” based on the state law173 and the risk that mistaken mental illness
could damage the prisoner’s reputation was great. 174 In another case, a loss of good-time credits was
significant because such a loss of credits meant that there was a change in the length of the prison term.175
Finally, confinement in a psychiatric prison unit might be far more restrictive than prison, and therefore
might be considered a serious loss, implicating a liberty interest.176
Virginia civil commitment procedure was not required when the person to be committed is a state prisoner); People v.
Arendes, 86 Misc. 2d 468, 470, 382 N.Y.S.2d 684, 686 (Sup. Ct. Queens County 1976) (“[W]here the issue in the first
instance is mental illness itself or dangerousness, there is no valid ground to distinguish between a civilian and a prisoner
since the issues have no connection to the circumstance of incarceration and the same psychiatric criteria will apply to all
people to determine mental illness.”); cf. Baxstrom v. Herold, 383 U.S. 107, 110, 86 S. Ct. 760, 762, 15 L. Ed. 2d 620, 623
(1966) (holding that a New York state prisoner was denied equal protection of the laws by the statutory procedure that
allowed him to be civilly committed at the expiration of his sentence without jury review available to all other civilly
committed people in New York).
168. U.S. ex rel. Schuster v. Herold, 410 F.2d 1071, 1073 (2d Cir. 1969).
170. Sandin v. Conner, 515 U.S. 472, 486, 115 S. Ct. 2293, 2301, 132 L. Ed. 2d 418, 431 (1995) (holding that
disciplinary segregation of a prisoner “did not present the type of atypical, significant deprivation” of a state-created liberty
interest after comparing conditions inside and outside of disciplinary segregation in the prison and finding that the
placement “did not work a major disruption in his environment”), overruled on other grounds by Cray v. Carey, 2006 U.S.
Dist. LEXIS 43286 (E.D. Cal. June 26, 2006) (unpublished).
171. Sandin v. Conner, 515 U.S. 472, 486, 115 S. Ct. 2293, 2301, 132 L. Ed. 2d 418, 431 (1995) (finding segregated
confinement that “mirrored” prison conditions was not significant and atypical), overruled on other grounds by Cray v.
Carey, 2006 U.S. Dist. LEXIS 43286 (E.D. Cal. June 26, 2006) (unpublished); see also Frazier v. Coughlin, 81 F.3d 313,
317–18 (2d Cir. 1996) (finding no significant deprivation of a liberty interest to prisoner who failed to show that
confinement conditions in a SHU were “dramatically different” from basic prison conditions).
172. Vitek v. Jones, 445 U.S. 480, 493, 100 S. Ct. 1254, 1264, 63 L. Ed. 2d 552, 565 (1980) (finding “transfer of a
prisoner to a mental hospital is [not] within the range of confinement justified by imposition of a prison sentence”).
175. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935, 951 (1974) (holding that a state
law allowing a reduction in sentence for good time, and providing that such credit would only be forfeited for serious
misbehavior, created a recognizable liberty interest).
176. U.S. ex rel. Schuster v. Herold, 410 F.2d 1071, 1078 (2d Cir. 1969) (“Not only did the transfer effectively
eliminate the possibility of [the prisoner’s] parole, but it significantly increased the restraints upon him, exposed him to
extraordinary hardships, and caused him to suffer indignities, frustrations and dangers, both physical and psychological,
[that] he would not be required to endure in a typical prison setting.”).
c. When Due Process Procedures Are Not Required For Transfer
The protections discussed in the previous Subsection might not be necessary if the transfer is voluntary
or on an emergency basis. Additionally, the Due Process Clause does not protect every change in your
conditions of confinement, even if that change has a negative impact on you.177 This is true even if the
prisoner has a reasonable expectation that state actions will produce a particular result. In some
jurisdictions, the law says that the State may not need to have procedures in place for you to participate in
clinical evaluations178 (you are not considered to be under the same great hardship in this case as with
commitment). In a few states, procedural protections do not have to occur before transfer, but may instead
occur promptly after physical transfer.179
As with challenges to medication over objection, there are limits to a transfer challenge. Transfer to a
mental health facility without a hearing is generally not a due process violation when a prisoner poses an
immediate threat to himself or the general population. 180 These transfers are called emergency
commitments. However, a hearing must be held as soon as possible after commitment.181
If it is determined you will be transferred to a psychiatric hospital or unit, you cannot challenge a
transfer back to prison after treatment because no liberty interest existed.182 For example, in Washington,
D.C., prisoners may be moved, with the superintendent’s certification, from psychiatric hospitals back to
prisons after being restored to health.183 In New York, administrative transfers from a state hospital to a
prison do not violate due process because they are not considered to be punishment.184 You should check the
laws in your state to determine the necessary steps the state must take to transfer you back to prison.
H. If You Are Transferred to a Hospital or Other Treatment Facility
If you are transferred or committed to a psychiatric facility, you maintain many of the same rights you
had in prison, including the right to treatment and the right to adequate medical care. Similarly, if you are
confined in a hospital or treatment facility prior to serving your criminal sentence in prison, you may be
entitled to have your time spent there count toward your sentence.
How Long Will I Be Held?
Generally, the duration of commitment is left to the judgment of clinical mental health staff and prison
officials, but it cannot be longer than your criminal sentence unless you are first granted significant due
process protections.185 Under New York State law, for example, the psychiatric hospital director may apply
for a new commitment after your sentence expires. 186 If this happens in a state where there are
requirements set up for a civil commitment proceeding, your criminal sentence is not relevant to any post-
sentence confinement, and the State must provide the same procedural safeguards before committing or
holding you for psychiatric care that it would if you were a non-prisoner.187 This means that if the State
determines you need further commitment and treatment after your prison sentence has ended, you will be
177. Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451, 459 (1976) (“[W]e cannot agree that
any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to
invoke the protections of the Due Process Clause.”).
178. See Trapnell v. Ralston, 819 F.2d 182, 184–85 (8th Cir. 1987) (finding there was no need for a pre-transfer
hearing where the transfer was temporary and for evaluation purposes only); United States v. Jones, 811 F.2d 444, 448 (8th
Cir. 1987) (finding “a temporary transfer for a psychological evaluation places no more of an imposition on a prisoner than
does a transfer for administrative reasons,” and transfers for administrative reasons do not require pre-transfer hearings).
179. Baugh v. Woodward, 808 F.2d 333, 336 (4th Cir. 1987).
180. E.g., Mignone v. Vincent, 411 F. Supp. 1386, 1389 (S.D.N.Y. 1976).
181. E.g., Mignone v. Vincent, 411 F. Supp. 1386, 1389 (S.D.N.Y. 1976).
182. Jackson v. Fair, 846 F.2d 811, 815 (1st Cir. 1988) (holding that as the prisoner did not have a liberty interest in
remaining at a psychiatric hospital, no hearing was required before returning the prisoner to prison).
183. D.C. Code Ann. § 24-503(b) (LexisNexis 2005).
184. Cruz v. Ward, 558 F.2d 658, 660 (2d Cir. 1977).
185. Baxstrom v. Herold, 383 U.S. 107, 110, 86 S. Ct. 760, 762, 15 L. Ed. 2d 620, 623 (1966) (holding that a New York
prisoner “was further denied equal protection of the laws by his civil commitment to an institution maintained by the
Department of Correction beyond the expiration of his prison term without a judicial determination that he is dangerously
mentally ill such as that afforded to all so committed except those, like [the prisoner], nearing the expiration of a penal
sentence”).
187. Baxstrom v. Herold, 383 U.S. 107, 110, 86 S. Ct. 760, 762, 15 L. Ed. 2d 620, 623 (1966).
treated as a non-prisoner. If the psychiatric hospital director successfully extends commitment past your
term sentence, you have the right to another hearing before a jury to determine whether commitment to a
civilian mental health facility is appropriate.188
What Happens to My Good-Time Credits?
In some states, a prisoner may lose the opportunity to earn good-time credits after a mental illness
determination and hospitalization.189 The reasoning that many courts give for this policy is that the goals of
hospitalization differ from the goals of imprisonment. Hospitalization is meant to treat prisoners with
mental illness,190 while incarceration is intended to punish and also rehabilitate.191 However, the Eighth
Circuit found that there is a difference between meritorious credits (credits that are given at the State’s
discretion) and statutory good-time credits (credits that a state statute specifically grants for particular
behavior). Unlike discretionary credits, statutory credits come from state laws. Therefore, a loss of statutory
credits based on a mental health assessment could violate your constitutional right to equal protection under
the Fourteenth Amendment, which prohibits states from applying the law differently to different citizens in
the same condition and circumstances.192
Even if the law in your jurisdiction does not permit you to continue to earn credits while you are
hospitalized, your existing credits may be held in abeyance (paused) during treatment, meaning that all
good-time credits that would have been credited are restored when you are transferred back to prison.193
However, if you have existing credits, in many jurisdictions they will not apply until you are restored to
health; in other words, you are not entitled to early release if you are still hospitalized on your early release
date.194 Other states, in contrast, do permit you to receive good-time credits even while in the hospital. For
example, the Connecticut Supreme Court has found that the language of Connecticut’s statute orders the
corrections commissioner to apply earned good-time credit to any prisoner’s sentence,195 in keeping with the
idea that the law should treat equally prisoners with mental illness confined in hospitals and those
incarcerated in prisons.196 Since the law varies according to the statutes of each jurisdiction, you should
check the law in your state, or the United States Code if you are in federal prison, to determine what
happens to your credits during transfer to a hospital.
Can I Receive Credit for Pre-Sentence Confinement in a Hospital or Treatment
Program?
Though the law varies significantly by state regarding whether you can receive custody or conduct
credits for time spent and good behavior in institutions other than prisons, there are a few general rules you

189. See, e.g., Urban v. Settle, 298 F.2d 592, 593 (8th Cir. 1962) (finding that a prisoner who has “been removed to a
hospital for defective delinquents” under federal law to determine mental competency is not entitled to receive further good
time for conditional release purposes until, in the judgment of the superintendent of the hospital, he has become “restored
to sanity or health”); Bush v. Ciccone, 325 F. Supp. 699, 701 (W.D. Mo. 1971) (holding under the express provisions of 18
U.S.C. § 4241, credit for good time is suspended as to a prisoner who has been found by a Board of Examiners to be insane
or of unsound mind). But see Sawyer v. Sigler, 320 F. Supp. 690, 699 (D. Neb. 1970) (distinguishing between meritorious
good time, which is permissive and may be withheld, and statutory good time, which cannot be denied without violating the
Equal Protection Clause of the 14th Amendment if the withholding does not result from the prisoner’s misconduct), aff’d,
445 F.2d 818 (8th Cir. 1971). The federal law that these cases mention has changed several times, so you should proceed
with care, researching the current case and statutory law. If you are in state custody, you should check your state’s
statutes.
190. See, e.g., People v. Callahan, 50 Cal. Rptr. 3d 677, 683, 144 Cal. App. 4th 678, 687 (Cal. Ct. App. 2006)
(finding that where a prisoner was confined pretrial to treat him to restore his competency to stand trial, he could not
later recover credit for that time).
191. People v. Smith, 175 Cal. Rptr. 54, 56, 120 Cal. App. 3d 817, 822–23 (Cal. Ct. App. 1981) (“The purposes of
the provision for ‘good time’ credits ... are [to encourage prisoners] to conform to prison regulations . . . and to make an
effort to participate in what may be termed ‘rehabilitative activities’ ... The rationale of ‘good time’ credit as a reward for
behavioral conformity does not readily fit the company of the mentally disturbed.” (quoting People v. Saffell, 599 P.2d 92,
97, 25 Cal. 3d 223, 233, 157 Cal. Rptr. 897, 903 (Cal. 1979)).
192. Cochran v. Kansas, 316 U.S. 255, 257, 62 S. Ct. 1068,1070, 86 L. Ed. 1453, 1455 (1942).
193. Dobbs v. Neverson, 393 A.2d 147, 150 n.9 (D.C. 1978)
194. E.g., Dobbs v. Neverson, 393 A.2d 147, 154 (D.C. 1978) (holding a prisoner transferred from a prison to a
hospital under the D.C. transfer statute is not entitled to statutory early release unless restored to mental health).
195. E.g., Murray v. Lopes, 529 A.2d 1302, 1305–06, 205 Conn. 27, 34–35 (Conn. 1987).
196. Murray v. Lopes, 529 A.2d 1302, 1307–08, 205 Conn. 27, 36–38 (Conn. 1987).
can use to determine if you are entitled to custody credit.197 First, if the facility you are in before you receive
your sentence is the “functional equivalent of a jail,” you might be entitled to credit.198 Second, some courts
make distinctions based on whether the program you are in is voluntary199 or involuntary.200 These are
general rules, though, so you should make sure to find out how courts have interpreted the law in your state.
d. Credit for Time in a Mental Hospital
If you were housed in a hospital before being sentenced to prison, you might be entitled to custody credit
for your time there. State statutes and courts’ interpretations of those laws determine whether you can
receive custody credits. Several states have found that, because time in these institutions is similar to being
in jail, you should receive credit.201 As one court stated, “The physical place of confinement is not important
as the [defendant] continu[ing] to be in jail while held in custody at the hospitals. [The prisoner] was not free
on bail, had no control over his place of custody and was never free to leave the hospitals. For all practical
intents and purposes, he was still in jail.”202 But, other courts have found prisoners housed in psychiatric
hospitals pre-sentence underwent treatment rather than incarceration and therefore could not receive
custody credits for that time.203 These courts reason the two types of confinement are different in kind:
imprisonment punishes, while hospitalization or civil commitment provide treatment.204 So, some courts
have found awarding credits for time in non-penal institutions toward prison sentences does not make sense.
197. Custody credit is statutory credit that prisoners may be awarded for their time spent in confinement prior to
trial and sentencing. The reason that many states allow prisoners to count these days as part of their sentence is that it
would be unfair to treat defendants who can post bail differently than those who do not and who therefore have to stay
in jail. See, e.g., People v. Callahan, 50 Cal. Rptr. 3d 677, 680–81, 144 Cal. App. 4th 678, 684 (Cal. Ct. App. 2006) (stating
that the purpose of actual custody credit statute is to eliminate unequal treatment of indigent and non-indigent
defendants). However, courts have taken differing approaches as to whether to grant that time to prisoners detained for
reasons other than inability to post bail or bond, like psychiatric evaluation or drug treatment. This section will discuss
some of these approaches so that you can figure out whether you are entitled to credit for any time you spent pre-
sentence in an institution other than a jail.
198. Maniccia v. State, 931 So.2d 1027,1030 (Fla. Dist. Ct. App. 2006).
199. Pennington v. State, 398 So.2d 815, 816 (Fla. 1981) (noting that the prisoner there was not entitled to credit
for violating the terms of her probation, which included attending live-in drug treatment).
200. Maniccia v. State, 931 So.2d 1027,1030 (Fla. Dist. Ct. App. 2006) (holding that where confinement is coercive,
a prisoner is entitled to credit for pre-sentence time in that facility, even if the prisoner requested treatment there);
Kansas v. Mackley, 552 P.2d 628, 629, 220 Kan. 518, 519 (Kan. 1976) (per curiam) (finding a prisoner in pretrial custody
at a hospital he was not free to leave was effectively in jail and therefore entitled to custody credit for his time there).
201. E.g., State v. Mackley, 552 P.2d 628, 629, 220 Kan. 518, 519 (Kan. 1976) (per curiam) (holding that the word
“jail” meant a place of confinement, and included a hospital that the prisoner was not free to leave); Maniccia v. State,
931 So.2d 1027, 1028 (Fla. Dist. Ct. App. 2006) (pretrial confinement in a “lockdown psychiatric hospital” entitles
prisoner to credit for time served); Murray v. Lopes, 529 A.2d 1302, 1305, 205 Conn. 27, 33–34 (Conn. 1987) (holding
that statute entitles prisoners confined pre-sentence to credit for time served); People v. Smith, 120 Cal. Rptr. 54, 56,
120 Cal. App. 3d 817, 822 (Cal. Ct. App. 1981) (finding prisoner entitled to credits for time spent in hospital when
proceedings were suspended because he was incompetent to stand trial).
202. State v. Mackley, 552 P.2d 628, 629, 220 Kan. 518, 519 (Kan. 1976) (per curiam).
203. Harkins v. Wyrick, 589 F.2d 387, 391–92 (8th Cir. 1979) (finding prisoner’s due process and equal protection
rights were not violated when he was not credited for time undergoing evaluation and treatment at a hospital prior to
serving his sentence); Makal v. Arizona, 544 F.2d 1030, 1035 (9th Cir. 1976) (holding it did not violate prisoner’s rights
to deny him credit for time in a psychiatric hospital, where the purpose was treatment rather than punishment, unless
state law provides otherwise, which it did not); People v. Callahan, 50 Cal. Rptr. 3d 677, 683, 144 Cal. App. 4th 678, 687
(Cal. Ct. App. 2006) (finding that where a prisoner was confined pretrial to treat him to restore his competency to stand
trial, he could not later recover credit for that time); Closs v. S.D. Bd. of Pardons and Paroles, 656 N.W. 2d 314, 317–19
(S.D. 2003) (because the time that prisoner spent in civil commitment was not punitive and because no South Dakota
statute provided a right to credit for time served while awaiting trial, court refused to award credits); State v. Sorenson,
617 N.W. 2d 146, 147, 150 (S.D. 2000) (per curiam) (holding that prisoner was not entitled to credit for pre-sentence
confinement to undergo psychiatric evaluation unless he was confined only because he could not afford to post bail).
204. See Kansas v. Hendricks, 521 U.S. 346, 361–62, 117 S. Ct. 2072, 2082, 138 L. Ed.2d 501, 515 (1997); Harkins
v. Wyrick, 589 F.2d 387, 392 (8th Cir. 1979) (holding that time in hospital was rehabilitative, not punitive); Makal v.
Arizona, 544 F.2d 1030, 1035 (9th Cir. 1976) (“The state hospital was established for the confinement, treatment, and
rehabilitation of the mentally ill ... [not] for purposes of punishment ... .”); People v. Callahan, 50 Cal. Rptr. 3d 677, 683,
144 Cal. App. 4th 678, 687 (Cal. Ct. App. 2006) (prisoner’s confinement was “nonpenal and treatment-oriented”).
e. Credit for Time in Drug Treatment
The law varies as to whether you may receive credit for time you spent in narcotics or alcohol treatment
prior to serving your sentence. Some states permit credit,205 and some states do not.206 Additionally, like in
the hospitalization context, whether you may count the days in treatment toward your sentence often
depends on the nature of the institution and the terms of your confinement there, such as whether or not you
will be returned to prison if you fail to complete the program.207 Typically, the court that sentences you is
free to determine whether to award you credit.208
How Does Commitment Affect Parole?
Although there is no constitutional right to parole,209 the State may not use a mental illness as a reason
to deny a parole hearing to a prisoner.210 Even if you have been determined to have a mental illness, you
have the right to a parole hearing and the same procedures that prisoners without mental illness have at
their hearings.211 You also should not be denied parole because you have a qualifying mental illness212 but
have not been provided with mental health care by the prison.213 If state regulations provide for parole and
specific conditions of parole, then you may have a constitutionally protected liberty interest in the
procedures afforded by the statute.214 For more information, please see Chapter 35: “Getting Out Early:
Conditional & Early Release,” and Chapter 36: “Parole” of the JLM. You should also check the laws of your
state to determine whether procedural protections apply to parole denial.
205. E.g., State v. Sevelin, 554 N.W.2d 521, 523, 204 Wis. 2d 127, 132–33 (Wis. Ct. App. 1996) (finding that state
statute’s definition of in “custody” for the purpose of determining whether the prisoner should get pre-sentence credit
includes those temporarily outside of a correctional institution in order to receive medical care, which included
treatment for alcoholism); Lock v. State, 609 P.2d 539, 543–46 (Alaska 1980) (interpreting statute granting credit for
time “in custody” to include time in non-penal rehabilitation centers, since these institutions also involve restraints on
liberty); People v. Rodgers, 144 Cal. Rptr. 602, 606, 79 Cal. App. 3d 26, 33 (Cal. Ct. App. 1978) (holding “custody”
includes housing in live-in drug treatment, and so defendant was entitled to credit for time spent there); People v.
Strange, 283 N.W.2d 806, 808, 91 Mich. App. 596, 600–01 (Mich. Ct. App. 1979) (“[W]e believe that the circumstances
under which defendant was ordered to the rehabilitation center amounts to a confinement analogous to jail.”).
206. E.g., Pennington v. State, 398 So. 2d 815, 816–17 (Fla. 1981) (holding that because “[h]alfway houses,
rehabilitative centers, and state hospitals are not jails,” prisoner who attended live-in drug treatment was not entitled to
statutory credit for time spent there pretrial); Commonwealth v. Fowler, 930 A.2d 586, 597–98 (Pa. Super. Ct. 2007)
(holding that prisoner was not “in custody,” within the meaning of the statute granting credit for time in custody prior to
sentence, where he participated in drug treatment program that did not involve lock-down but did require reinstatement
of court case if the defendant breached the terms of his program).
207. E.g., Lock v. State, 609 P.2d 539, 546 (Alaska 1980) (holding that prisoner would be returned to prison if he
violated the terms of the drug treatment program).
208. See, e.g., Commonwealth v. Fowler, 930 A.2d 586, 589 (Pa. Super. Ct. 2007) (stating that the sentencing court
acted within its discretion in denying credit for time served in voluntary drug treatment program).
209. Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2104, 60 L. Ed. 2d 668,
675 (1979).
210. See, e.g., Sites v. McKenzie, 423 F. Supp. 1190, 1195 (N.D. W. Va. 1976) (finding a prisoner cannot be denied a
parole hearing afforded to other prisoners solely because he is in a mental hospital); People ex rel. Newcomb v. Metz, 64
A.D.2d 219, 223, 409 N.Y.S.2d 554, 557 (3d Dept. 1978) (finding that mental competency is a factor to be considered during
a parole revocation hearing, not an issue to be determined prior to the hearing).
211. See, e.g., Sites v. McKenzie, 423 F. Supp. 1190, 1195 (N.D. W. Va. 1976) (holding that liberty interest for the
prisoner with mental illness included the right to a parole hearing and also the right to several procedural protections).
212. Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977) (finding there is a right to psychological treatment provided
“(1) that the prisoner's symptoms evidence a serious disease or injury; (2) that such disease or injury is curable or may be
substantially alleviated; and (3) that the potential for harm to the prisoner by reason of delay or the denial of care would
be substantial”).
213. Bowring v. Godwin, 551 F.2d 44, 46 (4th Cir. 1977) (reversing dismissal of prisoner’s complaint that he had been
denied parole in part because of his mental illness, for which he had not received treatment).
214. See Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 7–8, 99 S. Ct. 2100, 2103–04, 60 L.
Ed. 2d 668, 675–764 (1979) (finding Nebraska parole statute created a protected liberty interest a prisoner may enforce).
I. Conditions of Confinement for Prisoners With Mental Illness
2. Isolation and Solitary Confinement
Isolating prisoners with mental illness in Special Housing Units (SHUs) or “keep-lock” for various
reasons—among them protection or discipline—is a practice that courts have recognized as harmful. 215
Although isolation of prisoners with mental illness is not unconstitutional as a rule,216 it is subject to Eighth
Amendment limitations.217 There are certain conditions under which isolating prisoners with mental illness
can cross constitutional bounds. When those conditions exist, courts will be more likely to intervene to help
prisoners. For instance, courts will grow more suspicious if prisoners are segregated indefinitely without
review218 or if psychological harm threatens.219
Several federal courts have found that, even though segregation does not by itself violate the
Constitution, isolation can pose particular risks for those with mental illness or on the verge of developing
mental illness.220 For these groups, isolation can provide extreme stress and worsen their conditions,221 and
215. It has long been known that isolated confinement—the deprivation of human contact and other sensory and
intellectual stimulation—can have disastrous consequences. See In re Medley, 134 U.S. 160, 169, 10 S. Ct. 384, 386, 33 L.
Ed. 835, 839 (1890) (finding that “[a] considerable number of the prisoners fell, after even a short confinement, into a
semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others,
still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not
recover sufficient mental activity to be of any subsequent service to the community”); see also Davenport v. DeRobertis,
844 F.2d 1310, 1316 (7th Cir. 1988) (“there is plenty of medical and psychological literature concerning the ill effects of
solitary confinement (of which segregation is a variant).”). Modern courts have reiterated these consequences in
addressing present-day forms of isolated confinement. See Davenport v. DeRobertis, 844 F.2d 1310, 1313 (7th Cir. 1988)
(“[T]he record shows, what anyway seems pretty obvious, that isolating a human being from other human beings year
after year or even month after month can cause substantial psychological damage, even if the isolation is not total.”);
Langley v. Coughlin, 715 F. Supp. 522, 540 (S.D.N.Y. 1988) (citing expert’s affidavit regarding effects of SHU placement
on individuals with mental disorders); Baraldini v. Meese, 691 F. Supp. 432, 446–47 (D.D.C. 1988) (citing expert
testimony on sensory disturbance, perceptual distortions, and other psychological effects of segregation), rev’d on other
grounds sub nom. Baraldini v. Thornburgh, 884 F.2d 615 (D.C. Cir. 1989); Bono v. Saxbe, 450 F. Supp. 934, 946
(“Plaintiffs’ uncontroverted evidence showed the debilitating mental effect on those inmates confined to the control
unit.”), aff’d in part and remanded in part on other grounds, 620 F.2d 609 (7th Cir. 1980); Madrid v. Gomez, 889 F. Supp.
1146, 1235 (N.D. Cal. 1995) (concluding, after hearing testimony from experts in corrections and mental health, that
“many, if not most, inmates in the SHU experience some degree of psychological trauma in reaction to their extreme
social isolation and the severely restricted environmental stimulation in the SHU”) rev’d in part on other grounds, 190
F.3d 990 (9th Cir. 1999).
216. See, e.g., Jackson v. Meachum, 699 F.2d 578, 583 (1st Cir. 1983) (finding that a prisoner with mental illness
had no constitutional right to contact with other prisoners, even if it would have therapeutic value); Madrid v. Gomez,
889 F. Supp. 1146, 1261 (N.D. Cal. 1995) (“[W]e are not persuaded that the SHU, as currently operated, violates Eighth
Amendment standards vis-à-vis all inmates.”), rev’d in part on other grounds, 190 F.3d 990 (9th Cir. 1999).
217. Prison conditions that “posed an unreasonable risk of harm to [a prisoner’s] future health” may violate the
8th Amendment. Helling v. McKinney, 509 U.S. 25, 34–35, 113 S. Ct. 2475, 2481, 125 L. Ed. 2d 22, 32–33 (1993); Casey
v. Lewis, 834 F. Supp. 1477, 1548–49 (D. Ariz. 1993) (condemning placement and retention of prisoners with mental
illness on lockdown); Langley v. Coughlin, 715 F. Supp. 522, 540 (S.D.N.Y. 1988) (holding that psychiatric evidence that
prison officials fail to screen out from SHU “those individuals who, by virtue of their mental condition, are likely to be
severely and adversely affected by placement there” raises a triable 8th Amendment issue); Inmates of Occoquan v.
Barry, 717 F. Supp. 854, 868 (D.D.C. 1989) (holding that inmates with mental health problems must be placed in a
separate area or a hospital and not in administrative/punitive segregation area), rev’d in part sub nom. Brogsdale v.
Barry, 926 F.2d 1184, 1191 (D.C. Cir. 1991).
218. See Hutto v. Finney, 437 U.S. 678, 685–87, 98 S. Ct. 2565, 2570–71, 57 L. Ed.2d 522, 531–32 (1978) (length of
time in isolation should be considered when determining whether confinement there violates the 8th Amendment ban on
cruel and unusual punishment); Jackson v. Meachum, 699 F.2d 578, 584–85 (1st Cir. 1983) (suggesting courts should be
more willing to inquire where a prisoner has been held for a long period without a time limit).
219. Jackson v. Meachum, 699 F.2d 578, 584–85 (1st Cir. 1983).
220. Madrid v. Gomez, 889 F. Supp. 1146, 1265 (N.D. Cal. 1995) (finding the risk of isolating prisoners with
mental illness or those likely to develop mental illness is unreasonable and violates the 8th Amendment), rev’d in part
on other grounds, 190 F.3d 990 (9th Cir. 1999); Jones’El v. Berge, 164 F. Supp. 2d 1096, 1125–26 (W.D. Wis. 2001)
(granting preliminary injunction requiring removal of those with serious mental illness from “supermax” prison, which
isolates prisoners); Gates v. Cook, 376 F.3d 323, 343 (5th Cir. 2004) (“[T]he isolation and idleness of Death Row
combined with the squalor, poor hygiene, temperature, and noise of extremely psychotic prisoners create an environment
‘toxic’ to the prisoners’ mental health.”); Inmates of Occoquan v. Barry, 650 F. Supp. 619, 630 (D.D.C. 1986) (holding that
housing prisoners with mental illness in segregation unit is inappropriate).
221. Fred Cohen, The Mentally Disordered Inmate and the Law 11-8 (1998) (“Social science and clinical literature
therefore violates their rights.222 However, to succeed on a claim that isolation violated your rights, you will
need to show more than mild or generalized psychological pain.223
A growing number of states have taken steps, either independently or because of litigation, to exclude
prisoners with serious mental illness from some isolated confinement housing areas and to increase mental
health services for prisoners with serious mental illness who are held in restrictive settings. Courts have
approved remedies, many in the form of settlement agreements, for prisoners with mental illness in
isolation. In New Jersey, prisoners must be released from administrative segregation if they have a mental
illness history and it appears that ongoing confinement there would harm them. 224 The Mississippi
Department of Correction was ordered to provide yearly assessments and better mental health care for
death row prisoners, who were subject to conditions of isolation.225 In California, Madrid v. Gomez resulted
in prisoners with serious mental illness being excluded from the Pelican Bay prison’s SHU. 226 In
Connecticut, the settlement of Connecticut Office of Protection & Advocacy for Persons with Disabilities v.
Choinski called for exclusion of prisoners with serious mental illness from the Northern Correctional
Institution.227 Similarly, Austin v. Wilkinson resulted in prisoners with serious mental illness being excluded
from the Ohio State Penitentiary. 228 And, in Wisconsin, the settlement in Jones’El v. Berge excluded
prisoners with serious mental illness from super-maximum security housing.229
In New York, advocates with the goal of improving mental health treatment in state prisons brought the
case Disability Advocates, Inc. v. New York State Office of Mental Health.230 The suit was brought state-wide
and alleged that one of the results of inadequate mental health treatment was that prisoners with mental
illness were trapped in the disciplinary process and ended up in isolated confinement settings, which caused
them to deteriorate psychiatrically. The case resulted in a private settlement agreement that includes
among its provisions a minimum of two hours per day of out-of-cell treatment or programming for prisoners
with serious mental illness confined in SHU, universal and improved mental health screening of all
prisoners upon admission to prison, creation and expansion of residential mental health programs, required
and improved suicide prevention assessments upon admission to SHU, and improved treatment and
conditions for prisoners in psychiatric crisis in observation cells. A stated goal of this agreement is to treat
rather than isolate and punish prisoners with serious mental health needs. This settlement applies only to
New York State prisoners. Also, note that because this is a private settlement agreement, it does not create
an individual cause of action, and a court did not order its terms. If you intend to bring a lawsuit based on
the failure of New York to provide necessary mental health treatment to you in isolation, you must exhaust
your administrative remedies and file a separate lawsuit. If you are a prisoner incarcerated in New York
State and are concerned you are not receiving services required by the settlement, you may write to the
lawyers who are enforcing this agreement. Appendix B contains a list of organizations to contact for help.
In early 2008, the New York Legislature passed and the Governor signed S.333/A.4870.231 This statute
amends various sections of the New York Correction Law, expanding on some of the provisions of the
have consistently reported that when human beings are subjected to social isolation and reduced environmental
stimulation, they may deteriorate mentally.”).
222. Madrid v. Gomez, 889 F. Supp. 1146, 1265 (N.D. Cal. 1995) (holding that confining those with marginal or
full mental illness causes undue suffering for these groups), rev’d in part on other grounds, 190 F.3d 990 (9th Cir. 1999).
223. Madrid v. Gomez, 889 F. Supp. 1146, 1263–64 (N.D. Cal. 1995) (holding prisoners must show more than
loneliness, boredom, or mild depression to state a claim of cruel and unusual punishment), rev’d in part on other grounds,
190 F.3d 990 (9th Cir. 1999).
224. D.M. v. Terhune, 67 F. Supp. 2d 401, 403 (D.N.J. 1999).
225. Gates v. Cook, 376 F.3d 323, 342 (5th Cir. 2004) (ordering mental health examinations and care for death row
prisoners).
227. Connecticut Office of Protection & Advocacy for Persons with Disabilities v. Choinski, No. 3:03-cv-1352 (RNC)
(D. Conn. 2004) (private settlement agreement), available at http://www.aclu.org/FilesPDFs/-f07s2zl.pdf.
228 . Austin v. Wilkinson, No. 01-cv-071 (N.D. Ohio 2004) (private settlement agreement), available at
http://www.aclu.org/FilesPDFs/stipulation%20for%20injunctive%20relief.pdf.
229 . Jones’El v. Berge, 164 F. Supp. 2d 1096, 1125–26 (W.D. Wis. 2001) (granting preliminary injunction
requiring removal of those with serious mental illness from “supermax” prison, which isolates prisoners).
230. Disability Advocates, Inc. v. New York State Office of Mental Health, No. 1:02-cv-04002 (S.D.N.Y. 2007)
(private settlement agreement). A similar case, Disability Law Center, Inc. v. Mass. Dep’t of Corr., et al., No. 07-10463
(D. Mass.), is currently pending in Massachusetts.
231. Press Release, Governor Spitzer Signs Legislation to Enhance the Care and Treatment of Prisoners With
Serious Mental Illness (Jan. 29, 2008), available at http://www.ny.gov/governor/press/0129082.html.
settlement agreement and adopting others. Notably, it defines “serious mental illness,” provides for
prisoners with serious mental illness to be diverted or removed from segregated confinement to residential
mental health units, and provides them with improved mental health care. This law’s passage makes the
improvements to the system permanent, although most of the provisions of the legislation do not go into
effect for several years.232
J. Your Right to Have Mental Health Considered in Disciplinary Proceedings
Mental health may be relevant in a prison disciplinary proceeding in three separate but related ways:
whether the prisoner is mentally competent to proceed with the hearing; whether the prisoner was
responsible for conduct at the time of the incident (or should not be held responsible because of his mental
state at the time); and whether the prisoner’s mental status should be considered to lessen the penalty or in
determining what the penalty should be. When there is a connection between mental illness and disciplinary
misconduct, a prisoner with serious mental illness might commit a disciplinary infraction that jeopardizes
chances for parole, results in lost good time,233 and results in isolated confinement.234 Some states recognize
the relevance of mental health and require that prison administrators consider a prisoner’s mental health
during disciplinary proceedings when deciding whether to sanction prisoners and, if so, how to sanction
them. In New Jersey, the Department of Correction implemented disciplinary regulations following a
lawsuit stating hearing officers must submit the names of any prisoners facing disciplinary hearings to
mental health staff to find out whether mental illness might have played a role in the prisoners’ behavior.235
The hearing officer must decide whether to request a psychiatric evaluation, to take all information into
account, and then to consider referring the prisoner to a mental health unit instead of disciplining him.236
The New York State courts recognize that evidence of a prisoner’s poor mental health at the time of the
incident that resulted in disciplinary charges should be considered at prison disciplinary hearings.237 The
seriousness of the offense or the number of incidents should not interfere with a determination that alleged
misconduct was caused by deteriorating mental health.238 Litigation in New York239 led to amendment of
232. Most of the provisions of the new law, which will be added to N.Y. Correct. Law § 137(6), will not go into
effect until two years after the date that the Commissioner of Correctional Services certifies to the legislative bill
drafting commission that the first residential mental health unit constructed by the Department of Correctional Services
is completed and ready to receive inmates, but no later than July 1, 2011.
233. The effect is a longer period of incarceration for these prisoners because of psychiatric disabilities. Suits
challenging these practices have included claims based on the Americans with Disabilities Act and Rehabilitation Act.
For more information on bringing suit under these acts, see JLM Chapter 28, “Rights of Prisoners With Disabilities.”
234. Some courts clearly recognize the psychological effects of prolonged isolation as relevant to determining
whether the discipline imposed constitutes an atypical and significant hardship under Sandin v. Conner, 515 U.S. 472,
483–84, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 429–30 (1995), overruled on other grounds by Cray v. Carey, 2006 U.S.
Dist. LEXIS 43286 (E.D. Cal. June 26, 2006) (unpublished). See, e.g., Colon v. Howard, 215 F.3d 227, 232 (2d Cir. 2000)
(advising district courts in the Second Circuit that, in cases challenging SHU confinement, evidence of psychological
effects of prolonged confinement in isolation is relevant); Lee v. Coughlin, 26 F. Supp. 2d 615, 637 (S.D.N.Y. 1998)
(finding that 376 days in SHU was atypical and significant and also observing that “[t]he effect of prolonged isolation on
inmates has been repeatedly confirmed in medical and scientific studies”); McClary v. Kelly, 4 F. Supp. 2d 195, 205–08
(W.D.N.Y. 1998) (holding that evidence of psychological harm (both expert and the plaintiff’s own testimony) created a
triable issue under the Sandin “atypical and significant” standard).
237. Huggins v. Coughlin, 155 A.D.2d 844, 844, 548 N.Y.S.2d 105, 107 (3d Dept. 1989) (determining that the
hearing officer is required to consider the prisoner’s mental condition in making the disciplinary disposition when the
inmate’s mental state is at issue because “that principle is in conformity with the well-established proposition that
evidence in mitigation of the penalty to be imposed or that which raises a possible excuse defense to the charged
violation is relevant and material in a disciplinary proceeding”), aff’d 76 N.Y.2d 904, 905, 563 N.E.2d 281, 282, 561
N.Y.S.2d 910, 911 (1990); People ex rel. Reed v. Scully, 140 Misc. 2d 379, 382, 531 N.Y.S.2d 196, 199 (Sup. Ct. Oneida
County 1988) (“[T]he mental competence and mental illness of a prisoner must be considered during the prison
disciplinary process where a Penal Law § 40.15 adjudication has been made or a well-documented history of serious
psychiatric problems calls the prisoner’s mental health into question.”); see also Powell v. Coughlin, 953 F.2d 744, 749
(2d Cir. 1991) (upholding Office of Mental Health policy that testimony at prison disciplinary hearings provided by
clinical staff concerning a prisoner’s mental health status must be done outside the presence of the prisoner, as
reasonably related to legitimate penological interests (citing Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261, 96
L. Ed. 2d 64, 79 (1987), superseded by statute on other grounds); the requirement is now part of New York State
regulations, N.Y. Comp. Codes R. & Regs. tit. 7, § 254.6(c) (2007)).
238. People ex rel. Gittens v. Coughlin, 143 Misc. 2d 748, 750, 541 N.Y.S.2d 718, 719 (Sup. Ct. Sullivan County
state-wide regulations that govern procedures at prison disciplinary hearings. The amendments contain
criteria that establish when a prisoner’s mental state must be considered at the hearing,240 and that the
hearing officer must ask the prisoner and other witnesses about the prisoner’s condition and interview an
Office of Mental Health doctor concerning the prisoner’s condition at the time of the incident and the time of
the hearing.241 The amendments also created committees with full-time mental health staff at the maximum
security prisons.242 The committees review SHU prisoners every two weeks and may recommend restoration
of privileges, reduction of SHU term, housing reassignment, medication adjustment, or commitment to a
psychiatric hospital.243 Mental illness is taken into consideration in determining whether to dismiss, make a
finding of guilt, or less any penalty imposed.244 Recent litigation, Disability Advocates, Inc. v. New York State
Office of Mental Health,245 resulted in a private settlement agreement that provides for additional changes to
the disciplinary process including expansion of case management committees to additional prisons, multiple
reviews of SHU sentences for prisoners receiving mental health services, restrictions on charging prisoners
with serious mental illness for acts of self-harm, and restrictions on punishing prisoners with serious mental
illness with the “loaf” (a restricted diet). These changes are contained in a private settlement agreement.
They apply only to New York State prisoners. Also, note that the private settlement agreement does not
create an individual cause of action and its terms were not ordered by the court. If you intend to bring a
lawsuit based on the failure of New York to follow these procedures, you must exhaust your administrative
remedies and file a separate lawsuit. If you are a prisoner incarcerated in New York State and are concerned
that you are not receiving considerations required by the settlement, you may write to the lawyers who are
enforcing this agreement. Appendix B contains a list of organizations to contact for help.
For more information on your rights at disciplinary hearings, please see Chapter 18 of the JLM, “Your
Rights at Prison Disciplinary Proceedings.” In addition, because much of the information in this section is
specific to New York and New Jersey, you should research the law in your own state if you live elsewhere.
K. Special Considerations for Pretrial Detainees
Pretrial detainees are individuals in custody who have not yet been convicted. Because they are
considered “innocent until proven guilty,”246 they enjoy many of the rights they would have were they not in
jail. Put another way, pretrial detainees, unlike convicted prisoners, may not be punished, and can claim
that jail practices subjecting them to punishment violate their due process rights to be found guilty before
punishment is inflicted.247 In Bell v. Wolfish, the Supreme Court declared that the Due Process Clause of the
Fourteenth Amendment governs whether conditions of confinement violate prisoners’ rights.248 The Court
established in Bell that jail conditions should not be assessed under the Eighth Amendment, which bans
cruel and unusual punishment,249 because pretrial detainees cannot be punished at all.250 Instead, claims
1989) (expunging prisoner’s disciplinary record where at each hearing the prisoner was charged with aggressive
behavior similar to behavior for which he was receiving psychiatric treatment; mental illness was not taken into account;
there was no consideration of whether he was competent to participate in the hearing; his psychiatric history was well-
documented; he had been committed to the forensic psychiatric hospital seventeen times; and the hearing officer did not
inquire, based on his nonattendance at hearings, into whether or not he was competent); Trujillo v. LeFevre, 130 Misc.
2d 1016, 1017, 498 N.Y.S.2d 696, 698 (Sup. Ct. Clinton County 1986) ( “any determination by the mental health unit
that the petitioner’s lack of mental health was a causal factor in his misbehavior should apply equally to all charges.”)
239. Anderson v. Goord, 87-cv-141 (N.D.N.Y. 2003).
240. N.Y. Comp. Codes R. & Regs. tit. 7, § 254.6 (b)(1) (2007).
241. N.Y. Comp. Codes R. & Regs. tit. 7, § 254.6 (c)(3) (2007).
243. N.Y. Comp. Codes R. & Regs. tit. 7, § 310.3. (2007).
244. N.Y. Comp. Codes R. & Regs. tit. 7, § 254.6 (f) (2007).
245. Disability Advocates, Inc. v. New York State Office of Mental Health, No. 1:02-cv-04002 (S.D.N.Y. 2007)
(private settlement agreement).
246. See, e.g., Campbell v. McGruder, 580 F.2d 521, 527 (D.C. Cir. 1978) (pretrial detainees are presumed
innocent and therefore may not be punished).
247. See Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872, 60 L. Ed. 2d 447, 466 (1979) (holding that
conditions of confinement should be evaluated for whether they inflict punishment on prisoners without due process).
248. Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872, 60 L. Ed. 2d 447, 466 (1979) (“[U]nder the Due
Process Clause, a detainee may not be punished prior to an adjudication of guilt.”).
unusual punishments inflicted.” (emphasis added)).
250. Bell v. Wolfish, 441 U.S. 520, 535 n.16, 99 S. Ct. 1861, 1872 n.16, 60 L. Ed. 2d 447, 466 n.16 (1979).
are assessed under the Due Process Clause of the Fourteenth Amendment. For more information about filing
a constitutional claim under the Due Process Clause of the Fourteenth Amendment, see Chapter 16 of the
JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief From Violations of Federal Law.”
Note that the Supreme Court has also made it clear that losing your liberty by confinement before trial
does not violate the Constitution.251 It is only when your loss of liberty goes beyond what necessarily comes
with detention that prisoners may raise claims that their rights have been violated.252 The Bell rule shapes
most of the law surrounding your rights as a pretrial detainee to adequate mental health care and to avoid
unwanted treatment.
3. Your Right as a Pretrial Detainee to Psychiatric Medical Care
General Right to Medical Care
In City of Revere v. Massachusetts General Hospital, the Supreme Court applied to the medical care
context the Bell v. Wolfish rule that pretrial detainees are entitled to be free of punishment under the Due
Process Clause. In that case, the Court found the Due Process Clause requires the government to provide
medical care to pretrial detainees in its custody, and those detainees must receive protections “at least as
great as the Eighth Amendment protections available to a convicted prisoner” (emphasis added).253 Even
though pretrial detainees’ claims that they have been denied adequate medical care are assessed under the
Due Process Clause rather than under the Eighth Amendment,254 many circuits have imported Estelle v.
Gamble’s255 “deliberate indifference” test, which is based on the Eighth Amendment, to evaluate detainees’
claims.256 Some courts have found delaying treatment for pretrial detainees violates due process because it
punishes detainees and shows deliberate indifference to the serious medical needs of the detainees.257
The deliberate indifference test is subjective, not objective.258 This means for an official to be found
“deliberately indifferent,” the official must have been aware there was a substantial risk of serious harm but
failed to respond reasonably to the risk.259 The official’s conduct must go beyond mere negligence.260
251. Bell v. Wolfish, 441 U.S. 520, 533–34, 99 S. Ct. 1861, 1871, 60 L. Ed. 2d 447, 465 (1979) (finding that it is
well-established that the government has an important interest in detaining suspects prior to trial).
252. Bell v. Wolfish, 441 U.S. 520, 538, 99 S. Ct. 1861, 1873, 60 L. Ed. 2d 447, 468 (1979) (“A court must decide
whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate
governmental purpose.”).
253. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 2983, 77 L. Ed. 2d 605, 611 (1983).
254. See Bell v. Wolfish, 41 U.S. 520, 535 n.16, 99 S. Ct. 1861, 1872 n.16, 60 L. Ed. 2d 447, 466 n.16 (1979).
255. Estelle v. Gamble, 429 U.S. 97, 107, 97 S. Ct. 285, 293, 50 L. Ed. 2d 251, 262 (1976). For more information on
the deliberate indifference standard, which requires showing more than negligence, please see Part B(2) of this Chapter.
256. E.g., Elliott v. Cheshire County, 940 F.2d 7, 10 (1st Cir. 1991) (holding that jail officials violate detainees’
right when they exhibit deliberate indifference to medical needs); Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992)
(finding deliberate indifference is the proper standard under which to assess detainees’ rights to medical and mental
health care); Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1186 (5th Cir. 1986) (finding pretrial detainees
entitled to at least the level of medical care required under the deliberate indifference test); Heflin v. Stewart County,
958 F.2d 709, 714 (6th Cir. 1992) (holding that pretrial detainees must show jail acted with deliberate indifference to
serious medical needs), overruled on other grounds by Monzon v. Parmer County, 2007 U.S. Dist. LEXIS 43798 (N.D. Tex.
June 15, 2007) (unpublished); Hall v. Ryan, 957 F.2d 402, 404–05 (7th Cir. 1992) (finding that pretrial detainees are at
least entitled to protection from jailers’ deliberate indifference); Bell v. Stigers, 937 F.2d 1340, 1343 (8th Cir. 1991)
(holding that under either the 8th or 14th Amendments, deliberate indifference is the appropriate standard for assessing
pretrial detainees’ claims); Redman v. County of San Diego, 942 F.2d 1435, (9th Cir. 1991) (en banc) (finding deliberate
indifference is the appropriate test for pretrial detainees’ claims); Howard v. Dickerson, 34 F.3d 978, 980 (10th Cir. 1994)
(holding deliberate indifference test applies to pretrial detainees); Cottrell v. Caldwell, 85 F.3d 1480, 1490–91 (11th Cir.
1996) (applying subjective deliberate indifference standard to pretrial detainee’s mistreatment claim).
257. Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th Cir. 1991) (en banc) (“We therefore hold that
deliberate indifference is the level of culpability that pretrial detainees must establish for a violation of their personal
security interests under the Fourteenth Amendment. We also hold that conduct that is so wanton or reckless with
respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur ... will also suffice to
establish liability ...”); Terry ex rel. Terry v. Hill, 232 F. Supp. 2d 934, 943–44 (E.D. Ark. 2002) (holding it violates due
process and the Eighth Amendment to subject pretrial detainees to an average wait of over eight months for admission
to a hospital for mental health care); Swan v. Daniels, 923 F. Supp. 626, 631 (D. Del. 1995) (finding the court could apply
either the Eighth or 14th Amendment to assess prisoner’s claims, since both amendments provide equivalent protection).
258. E.g., Elliott v. Cheshire County, 940 F.2d 7, 10 (1st Cir. 1991) (“[A] finding of deliberate indifference requires
... that defendant’s knowledge of a large risk can be inferred.”); Hare v. City of Corinth, 74 F.3d 633, 636 (5th Cir. 1996)
(en banc) (“We hold that the episodic act or omission of a state jail official does not violate pretrial detainee’s due process
right to medical care or protection from suicide unless the official acted or failed to act with subjective deliberate
The bottom line is that you, as a pretrial detainee, have at least the same rights that a convicted
prisoner has to adequate and timely medical and psychiatric care. Your right comes from the Fourteenth
Amendment, and may come from state statutes.261 So, before filing your complaint, you should find out what
the law is in your state.
Your Right to Protection From Self-Harm and to Screening for Mental Illness
One application of the right to mental health care is the right to protection from self-harm and suicide.
As a general rule, courts have found that jail staff and administrators have a duty to pretrial detainees to
protect262 and/or provide them with adequate psychiatric care.263 Courts will only find jail officials liable for
failing to prevent a suicide or an attempt, if they knew or should have known that an inmate was suicidal.264
The standard that courts typically apply to determine if the State failed to protect inmates from themselves
or failed to provide mental health care is not negligence but rather deliberate indifference,265 as outlined in
Parts E(1)(a) and B(2) of this Chapter. Moreover, in a case of self-harm, finding “deliberate indifference
requires a strong likelihood, rather than a mere possibility, that self-infliction of harm will occur.”266
Similarly, courts have not established a clear rule requiring screening for mental health problems or
suicidal tendencies upon arrival at a jail. Some courts have held incoming prisoners must be screened so
that they can be provided with mental health care.267 Other courts have found there is no duty to screen.268
Your Right to Continuation of Drug Treatment
Though the general rule is that courts need not compel jails or prisons to provide specific types of
treatment like methadone maintenance,269 you do have a protected liberty interest in treatments that you
indifference to the detainee’s rights.”); Sanderfer v. Nichols, 62 F.3d 151, 154–55 (6th Cir. 1995).
259. Sanderfer v. Nichols, 62 F.3d 151, 154–55 (6th Cir. 1995) (adopting and applying the Farmer v. Brennan
subjective deliberate indifference test to a pretrial detainee’s claim).
260. Sanderfer v. Nichols, 62 F.3d 151, 154–55 (6th Cir. 1995) (adopting and applying the Farmer v. Brennan
subjective deliberate indifference test to a pretrial detainee’s claim).
261. See, e.g., Ark. Code Ann. § 5-2-305 (2006) (establishing a state hospital’s duty to provide care for detainees with
mental illness committed for evaluation or treatment).
262. Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996) (en banc) (holding the State has a duty to protect
pretrial detainees who are suicidal in cases where to ignore their needs would suggest deliberate indifference); Hall v.
Ryan, 957 F.2d 402, 405 (7th Cir. 1992) (because police were aware of prisoner’s mental health problems from previous
encounters, they should have known that he posed a suicide risk and they likely exhibited deliberate indifference by
failing “to take appropriate steps to protect the inmate from that known danger”). But see Bell v. Stigers, 937 F.2d 1340,
1343–44 (8th Cir. 1991) (applying the deliberate indifference standard, finding that jail officials had no reason to suspect
that detainee was suicidal, and therefore that they did not violate his rights); Tittle v. Jefferson County Comm’n, 10 F.3d
1535, 1539 (11th Cir. 1994) (holding that where defendants had no notice of detainee’s suicidal tendencies, they did not
exhibit deliberate indifference in failing to protect him from self-harm).
263. Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996) (en banc) (holding that the state has a duty to
provide mental health care to suicidal pretrial detainees where to deny it would suggest deliberate indifference); Elliott
v. Cheshire County, 940 F.2d 7, 10 (1st Cir. 1991) (“It is clearly established . . . that jail officials violate the due process
rights of their detainees if they exhibit a deliberate indifference to the medical needs of the detainees that is tantamount
to an intent to punish.”); Hill v. Nicodemus, 979 F.2d 987 (4th Cir. 1992) (holding that a pretrial detainee who had
committed suicide was entitled to medical care, and its denial could be assessed under the deliberate indifference
standard); Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1187 (5th Cir.) (holding that jail officials had a
duty not to be deliberately indifferent to an inmate’s psychiatric needs).
264. Elliott v. Cheshire County, 940 F.2d 7, 10–11 (1st Cir. 1991).
265. Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996) (en banc) (adopting a test of deliberate indifference
for episodic acts of inadequate medical care or failure to protect).
266. Elliott v. Cheshire County, 940 F.2d 7, 10 (1st Cir. 1991).
267. Campbell v. McGruder, 580 F.2d 521, 548–50 (D.C. Cir. 1978) (creating an affirmative duty to screen pretrial
detainees displaying unusual behavior for mental illness, and requiring treatment for their medical needs); Alberti v.
Sheriff of Harris County, 406 F. Supp. 649, 677 (S.D. Tex. 1975) (ordering that jail establish an intake screening process
to detect alcohol and drug abuse, and mental illness).
268. Belcher v. Oliver, 898 F.2d 32, 34–35 (4th Cir. 1990) (holding detainee’s right to be free from punishment did
not include right to be screened for mental illness or suicide risk); Gagne v. City of Galveston, 805 F.2d 558, 559 (5th Cir.
1986) (holding arresting officer had no duty to screen for suicidal tendencies); Danese v. Asman, 875 F.2d 1239, 1244
(6th Cir. 1989) (“It is one thing to ignore someone who has a serious injury and is asking for medical help; it is another to
be required to screen prisoners correctly to find out if they need help.”); Estate of Cartwright v. City of Concord, 856 F.2d
1437, 1439 (9th Cir. 1988) (upholding a finding that did not impose liability for failure to screen for mental illness).
are already receiving at the time you begin your incarceration. Since pretrial detainees retain as many of the
rights they would otherwise have were they not detained, any unnecessary deprivation of liberty—like
withdrawing methadone—violates their due process rights. 270 Additionally, withdrawal pain can be
considered punishment, which is not allowed prior to trial or plea.271 The only limit on this right is if the
government can claim that it has a legitimate interest, like jail security or ensuring your presence at trial,272
that would override your liberty interest. In addition to due process, if you are detained rather than released
and are being denied methadone, you may be able to claim that you are not being treated the same as
pretrial defendants who are out on pretrial release.273
L. Unwanted Treatment as a Pretrial Detainee
Just as you have the right to refuse medication while you are in prison,274 you have the right to refuse
treatment if you are a detainee awaiting trial.275 However, your right to refuse medication is not absolute.
Even though you have more rights as a detainee than as a convicted prisoner, the nature of the government
interest in giving you medication is unique in this context. Specifically, the government may give you
medication before trial in order to make you competent to stand trial.276 However, the government may do
this only if several conditions are met.277 Similarly, there are several procedural checks in place to make sure
that medicating you is absolutely necessary.278 If you are a detainee in federal custody, for example, you are
entitled to an administrative hearing for which you had prior notice and are provided representation, and at
which you may appear, present evidence, cross-examine witnesses, and hear the testimony of your treating
mental health professional.279 You also may appeal a decision that you do not like.280 The reason that there
are so many checks is that you have a strong interest in defining your own treatment as well as conducting
your criminal defense,281 and so courts will be careful to make sure that your interests are appropriately
balanced against the government’s.282
269. See Norris v. Frame, 585 F.2d 1183, 1188 (3d Cir. 1978) (“There is no constitutional right to methadone.”);
Hines v. Anderson, 439 F. Supp. 12, 17 (D. Minn. 1977) (finding no requirement that prison administer methadone as
part of a drug maintenance program).
270. Norris v. Frame, 585 F.2d 1183, 1185 (3d Cir. 1978) (finding that the facts in this case did not warrant
depriving pretrial detainee’s rights by refusing to continue his methadone treatment); Cudnik v. Kreiger, 392 F. Supp.
305, 311–12 (N.D. Ohio 1974) (holding that it violates due process to deny prisoner the right to continue methadone
treatment); see generally Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872, 60 L. Ed. 2d 447, 466 (1979) (applying
the Due Process Clause to assess pretrial detainees’ conditions of confinement claims).
271. See Norris v. Frame, 585 F.2d 1183, 1187 (3d Cir. 1978) (“A detainee ... may not be ‘punished’ at all.”);
Cudnik v. Kreiger, 392 F. Supp. 305, 311 (N.D. Ohio 1974) (“[A] pretrial detainee should not be subjected to ...
punishment or loss.”)
272. Norris v. Frame, 585 F.2d 1183, 1189 (3d Cir. 1978) (providing that the state can only override a prisoner’s
liberty interest in limited circumstances: those inherent to confinement, necessary to guarantee jail security, or needed
to ensure defendant’s presence at trial); Cudnik v. Kreiger, 392 F. Supp. 305, 311 (N.D. Ohio 1974) (finding pretrial
detainees should lose only those liberties incident to confinement).
273. Cudnik v. Kreiger, 392 F. Supp. 305, 312 (N.D. Ohio 1974) (holding that those detained pretrial should not
suffer greater deprivations—other than confinement—than those released pending trial).
274. Washington v. Harper, 494 U.S. 210, 221–22, 110 S. Ct. 1028, 1036, 108 L. Ed. 2d 178, 198 (1990) (finding
prisoner had a protected liberty interest under the Due Process Clause in avoiding unwanted medication).
275. Riggins v. Nevada, 504 U.S. 127, 137, 112 S. Ct. 1810, 1816, 118 L. Ed. 2d 479, 490 (1992) (holding lower
court erred by not acknowledging criminal defendant’s liberty interest in avoiding unwanted antipsychotic drugs); see
generally Bell v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861, 1877, 60 L. Ed. 2d 447, 472 (1979) (holding that pretrial
detainees enjoy at least as much protection as convicted prisoners).
276. Sell v. United States, 539 U.S. 166, 169, 123 S. Ct. 2174, 2178, 156 L. Ed. 2d 197, 205 (2003) (concluding that
the government may administer antipsychotic drugs to pretrial detainees in limited circumstances). In prison, in
contrast, the government interest is often defined in terms of avoiding harm to self or others. See Washington v. Harper,
494 U.S. 210, 222, 110 S. Ct. 1028, 1037, 108 L. Ed. 2d 178, 198 (1990).
277. Sell v. United States, 539 U.S. 166, 180–81, 123 S. Ct. 2174, 2185, 156 L. Ed. 2d 197, 211–12 (2003)
(establishing a multi-part test for when a detainee may be medicated to restore competence to stand trial).
278. United States v. Brandon, 158 F.3d 947, 955 (6th Cir. 1998) (requiring judicial hearing on whether to
medicate defendant before trial).
279. 28 C.F.R. § 549.43(a) (2007).
280. 28 C.F.R. § 549.43(a)(6) (2007).
281. E.g., Riggins v. Nevada, 504 U.S. 127, 137, 112 S. Ct. 1810, 1816, 118 L. Ed. 2d 479, 491 (1992) (concluding
that side effects from antipsychotic medication likely unfairly impaired prisoner’s defense at trial); United States v.
Brandon, 158 F.3d 947, 955 (6th Cir. 1998) (holding that courts should consider whether medication will affect
The Sell Test: Conditions the Government Must Meet Before Medicating You
In Sell v. United States,283 the Supreme Court established the test for when it may be appropriate for the
government to forcibly medicate you prior to trial for serious but non-violent crimes, and when it violates
your rights to do so. There, the Court required the government to comply with all of the following conditions
before medicating the pretrial detainee:
a. Important Government Interests Are at Stake.284
The Court has held that determining a defendant’s guilt or innocence for a “serious crime” is an
important government interest.285 However, there is no clear rule defining what “serious” means, though
courts may measure it based on the sentence to which the charged crime exposes you.286 One court, for
instance, declined to fix a clear line defining what crimes are serious, but found that one exposing a
defendant to a maximum of 10 years of imprisonment was serious.287 Therefore, the government had an
interest in trying the detainee in that case.288
b. No Special Circumstances Exist that Lessen the Government’s Interest in
Prosecution.289
If special circumstances exist, the government’s interest in trying you will be less important. But, the
Sell Court noted that, if the detainee is deemed dangerous to himself or others, the State may medicate him
on those grounds instead, and need not reach the question of whether medication is necessary to enable him
to stand trial.290 In such a case, special circumstances might not lessen the government’s interest, which
would involve safety rather than ensuring a detainee could stand trial. You should note that the burden on
the government is lower if it desires to medicate you for dangerousness reasons rather than to stand trial.291
c. Involuntary Medication “Significantly Further[s]” Government Interests,
Making Defendant’s Competence to Stand Trial Substantially Likely.292
Several courts have tried to define what “substantially likely” means. One court found that a 50%
likelihood that the pretrial detainee would regain competency was not enough to justify giving him
medication over his objection.293 Another court held that a 70% success rate among other detainees was
enough.294 Yet another court has stated that an 80% chance was enough.295 Though it is not clear exactly
what counts as “substantially likely,” the greater the percentage chance you will be restored to health—to
which a psychiatrist will testify at your involuntary medication hearing—the smaller the chance you have of
appearance at trial and ability to prepare defense).

282. See United States v. Rivera-Guerrero, 377 F.3d 1064, 1071 (9th Cir. 2004) (finding that detainee has
substantial rights at stake and so his case should be subject to the jurisdiction of federal district courts, not federal
magistrates, to ensure protection of those interests).
283. Sell v. United States, 539 U.S. 166, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003).
284. Sell v. United States, 539 U.S. 166, 180, 123 S. Ct. 2174, 2185, 156 L. Ed. 2d 197, 211 (2003).
286. See United States v. Evans, 404 F.3d 227, 237 (4th Cir. 2005) (looking to the maximum statutory sentence to
determine whether a crime is “serious”); United States v. Dallas, 461 F. Supp. 2d 1093, 1097 (D. Neb. 2006) (“The
seriousness of the crime is measured by its maximum statutory penalty.”).
287. United States v. Evans, 404 F.3d 227, 238 (4th Cir. 2005).
288. United States v. Evans, 404 F.3d 227, 238 (4th Cir. 2005).
289. Sell v. United States, 539 U.S. 166, 180, 123 S. Ct. 2174, 2185, 156 L. Ed. 2d 197, 212 (2003) (finding that
special circumstances, like the fact that the detainee is likely to be civilly confined for a length of time, might lessen the
need to prosecute criminally and therefore lessen the need to medicate to stand trial).
290. Sell v. United States, 539 U.S. 166, 182–83, 123 S. Ct. 2174, 2185–86, 156 L. Ed. 2d 197, 213–14 (2003)
(finding that if the government can instead seek civil commitment, where the detainee may be medicated because of risk
to self or others, it should do that prior to seeking to medicate to stand trial); United States v. Cruz-Martinez, 436 F.
Supp. 2d 1157, 1159 n.2 (S.D. Cal. 2006) (finding that courts should conduct a Washington v. Harper dangerousness
assessment prior to a trial competence one); United States v. White, 431 F.3d 431, 434–35 (5th Cir. 2005) (holding
government should have sought a dangerousness assessment first).
291. See United States v. Rodman, 446 F. Supp. 2d 487, 496 (D.S.C. 2006).
293. United States v. Rivera-Morales, 365 F. Supp. 2d 1139, 1141 (S.D. Cal. 2005)
294. United States v. Gomes, 387 F.3d 157, 161 (2d Cir. 2004).
295. United States v. Bradley, 417 F.3d 1107, 1115 (10th Cir. 2005).
successfully claiming that the government should fail the Sell test on this basis. However, because the
government must meet all of Sell’s conditions, you still might be able to claim that you should not be
medicated for other reasons. Furthermore, some courts have been skeptical of the practice of using
statistical evidence of how likely a defendant is to regain competence,296 and so you might be able to argue
that the statistics themselves are flawed.
Courts are also concerned that side effects, even if not medically harmful, may alter the detainee in ways
that are likely to affect his ability to assist in his defense.297 Whether this will happen is another factor that
courts should consider when deciding whether to allow you to be medicated before trial.
(ii) Involuntary Medication is Necessary to Further Government Interests,
and Less Intrusive Means Are Unlikely to Achieve the Same Result.298
The Supreme Court requires the government to explore alternatives before resorting to the very invasive
practice of giving you medication over your objection.299 These means might include non-drug therapies, or a
court order to the detainee backed by the court’s power to punish him for contempt if he does not comply.300
(ii) Medication is Medically Appropriate (in the Detainee’s Best Interest).301
If the State is trying to medicate you, the drugs must be in your best interest. If the side effects are too
dangerous, for example, a court may deny the government’s request to medicate you.302 And, courts have
held that the government must provide evidence as to how the drugs are likely to affect you specifically,
rather than people generally.303
Other Procedural Requirements
The Sell case involves what is called your “substantive due process” right to avoid unwanted intrusions
into your personal liberty, and assesses your interests against the government’s. You also have the right to
certain procedures before your rights are taken away. For example, you are entitled to a hearing before you
are forcibly medicated. If the government seeks to medicate you for dangerousness, it must give you at
minimum an administrative hearing.304 If, however, it is trying to restore your competence to stand trial,
you are entitled to a full judicial hearing in a court.305 In both cases, you have the right to protections like
notice, representation, and the right to present evidence. The precise procedural requirements vary by state.
Another safeguard that courts have established is the burden of proof that the government must meet
when trying to forcibly administer medication to pretrial detainees. Though not all federal circuits have
ruled on this question, the general rule is that the government must show medication is necessary by “clear
and convincing evidence.”306 Clear and convincing, though not as difficult a standard to meet as “beyond a
reasonable doubt,” which is the standard in criminal cases, is still very hard to meet. Furthermore, the
government may not use conclusory evidence—or evidence that presumes the point it is trying to make—to
296. United States v. Cruz-Martinez, 436 F. Supp. 2d 1157, 1162 (S.D. Cal. 2006) (doubting the “predictive value
and applicability of the government’s statistic regarding the likelihood of success”).
302. See United States v. Evans, 404 F.3d 227, 242 (4th Cir. 2005) (requiring government to state what the likely
side effects will be, and whether the benefits of treatment will outweigh them); United States v. Cruz-Martinez, 436 F.
Supp. 2d 1157, 1163 (S.D. Cal. 2006) (finding antipsychotic drugs can have severe side effects, and the government had
not met its burden of showing that the benefits of giving them to the detainee outweighed the risks).
303. See United States v. Evans, 404 F.3d 227, 241 (4th Cir. 2005) (finding fault with government’s failure to
provide evidence about this particular detainee).
304. See United States v. White, 431 F.3d 431, 435 (5th Cir. 2005) (finding that the federal government set up a
regulatory scheme that entitled pretrial detainee to an administrative hearing on the issue of forcible medication).
305 . United State v. Brandon, 158 F.3d 947, 955–56 (6th Cir. 1998) (finding that judicial, rather than
administrative, hearing is necessary because those with legal training make determinations at a judicial hearing).
306. United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004) (requiring the government to make its case for
involuntary medication with clear and convincing proof); United States v. Bradley, 417 F.3d 1107, 1114 (10th Cir. 2005)
(finding that because important interests are involved, the government must prove its case by clear and convincing
evidence); United States v. Cruz-Martinez, 436 F. Supp. 2d 1157, 1160 n.3 (S.D. Cal. 2006) (“follow[ing] the weight of the
case law in adopting the ‘clear and convincing’ burden of proof.”).
prove its case.307 Though these protections do not offer you an absolute right to avoid treatment, they make
it more difficult for the State to take away your rights.
M. Where to Go for Help
In most states, there are organizations called Protection and Advocacy (“P&A”) agencies that protect and
advocate for the rights of people with mental illnesses, and investigate reports of abuse and neglect in
facilities that care for or treat individuals with mental illnesses. These facilities—which may be public or
private—include hospitals, nursing homes, homeless shelters, jails, and prisons. P&As may advocate for
prisoners and investigate issues that come up during transportation or admission to such treatment
facilities, during residency in them, or within ninety days after discharge from them.308
N. Conclusion
This Chapter explains your rights as a prisoner with mental illness. It covers the basic information you
will need to understand how the law applies to prisoners with mental illness, your right to receive
treatment, and your limited right to refuse unwanted treatment and transfers. For a list of organizations
that might be able to help you with legal issues related to your mental illness, please write to the JLM.
307. See United States v. Evans, 404 F.3d 227, 240 (4th Cir. 2005) (government failed to explain how it reached its
conclusions about alleged necessity to medicate pretrial detainee).
308. This general definition of protection agencies was taken from U.S. Dep’t of Health & Human Servs. Nat’l
Mental Health Info. Ctr., Center for Mental Health Services: Protection and Advocacy,
http://www.mentalhealth.samhsa.gov/cmhs/p&a (last visited Nov. 6, 2007).
APPENDIX A
RESOURCES FOR PRISONERS WITH MENTAL ILLNESS

The following is a list of organizations, including P&As, that you might wish to contact for help with
legal issues related to your mental illness. This list is not complete, and every state should have at least one
P&A that assists people with mental illness. To find out the name and contact information for the P&A in
your area, contact the National Disability Rights Network, 900 Second Street NE, Suite 211, Washington,
D.C. 20002; Phone: (202) 408-9514, TTY: (202) 408-9521, Fax: (202) 408-9520.
National Organization
The Bazelon Center for Mental Health Law New York
1101 15th Street NW, Suite 1212 The Urban Justice Center
Washington, DC 20005 123 William Street, 16th Floor
Phone: (202) 467-5730 New York, NY, 10038
Fax: (202) 223-0409 Phone: (646) 602-5600
http://www.bazelon.org Fax: (212) 533-4598
http://www.urbanjustice.org/
California Counties served: Bronx, Brooklyn, Manhattan,
Protection & Advocacy, Inc. Queens
100 Howe Avenue, Suite 185-N
Sacramento, CA 95825 Disability Advocates, Inc.
Phone: (916) 488-9955 5 Clinton Square, 3rd Floor
Toll Free: (800) 776-5746 Albany, NY 12207
TTY: (800) 719-5798 Phone: (518) 432-7861
Fax: (916) 488-2635 or (916) 488-9962 Toll Free: (800) 993-8982
http://www.pai-ca.org Fax: (518) 427-6561
http://www.disabilityadvocates.info/
Florida Counties served: Albany, Columbia, Dutchess,
Advocacy Center for Fulton, Greene, Montgomery, Orange, Putnam,
Persons with Disabilities, Inc. Rensselaer, Rockland, Saratoga, Schenectady,
2728 Centerview Drive, Suite 102 Schoharie, Sullivan, Ulster, Westchester
Tallahassee, FL 32301
Phone: (850) 488-9071 New York State Commission on Quality of Care
Toll Free: (800) 342-0823 (in-state) and Advocacy for Persons with
TDD (800) 346-4127 Disabilities (“CQCAPD”)
Fax: (850) 488-8640 401 State Street
http://www.advocacycenter.org Schenectady, NY 12305-2397
Toll Free: (800) 624-4143 (V/TTY/Spanish)
Massachusetts http://www.cqcapd.state.ny.us
Disability Law Center, Inc.
11 Beacon Street, Suite 925 Legal Aid Society of Northeastern New York
Boston, MA 02108 100 Court Street, P.O. Box 989
Phone: (617) 723-8455 Plattsburgh, NY 12901
Toll Free: (800) 872-9992 Phone: (518) 563-4022
TTY: (800) 381-0577 Toll Free: (800) 722-7380
Fax: (617) 723-9125 Fax: (518) 563-4058
http://www.dlc-ma.org/index.htm http://www.lasnny.org/
Counties served: Franklin, Clinton, Essex,
Hamilton
Legal Aid Society of Northeastern New York Phone: (315) 475-3127
17 Hodskin Street TTY: (315) 475-3120
Canton, NY 13617 Fax: (315) 475-2706
Phone: (315) 386-4586 http://www.lscny.org/lscny.htm
Toll Free: (800) 822-8283 Counties served: Broome, Cayuga, Chemung,
Fax: (315) 386-2868 Chenango, Cortland, Delaware, Herkimer,
http://www.lasnny.org/ Jefferson, Lewis, Madison, Oneida, Onondaga,
Counties served: St. Lawrence, St. Regis Indian Otsego, Oswego, Schuyler, Tompkins, Tioga
Reservation
Touro College
Legal Aid Society of Northeastern New York Jacob Fuchsberg Law Center
112 Spring Street 225 Eastview Drive
Saratoga Springs, NY 12866 Central Islip, NY 11722
Toll-free: (800) 870-8343 Phone: (631) 761-7080
Phone: (518) 587-5188 Fax: (631) 421-2675
Fax: (518) 587-0959 Counties served: Nassau, Suffolk
http://www.lasnny.org/
Counties served: Saratoga, Warren, Washington Texas
Advocacy, Inc.
Legal Aid Society of Northeastern New York 7800 Shoal Creek Blvd., Suite 171-E
1 Kimball Street Austin, TX 78757-1024
Amsterdam, NY 12010 Phone: (512) 454-4816
Toll-free: (800) 821-8347 Toll Free: (800) 252-9108 (V/TDD)
Phone: (518) 842-9466 Fax: (512) 323-0902
Fax: (518) 843-1792 (only in county and city jails)
http://www.lasnny.org/ http://www.advocacyinc.org
Counties served: Fulton, Montgomery, Schoharie
New York Lawyers for the Public Interest

151 West 30th Street, 11th Floor
New York, NY 10001-4007
Phone: (212) 244-4664
Fax: (212) 244-4570
TDD: (212) 244-3692
http://nylpi.org
Counties served: Bronx, Brooklyn, Manhattan,
Queens, Richmond
Neighborhood Legal Services, Inc.

237 Main Street, 4th Floor
Buffalo, NY 14203
Phone: (716) 847-0650
TTY: (716) 847-1322
Fax: (716) 847-0227
http://www.nls.org/
Counties served: Allegany, Cattaraugus,
Chautauqua, Erie, Genesee, Livingston, Monroe,
Niagara, Ontario, Orleans, Seneca, Steuben,
Wayne, Wyoming, Yates
Legal Services of Central New York, Inc.

The Empire Building, Suite 300
472 South Salina Street
Syracuse, NY 13202
APPENDIX B
CONTACT INFORMATION FOR DISABILITY ADVOCATES, INC. V. NEW YORK

STATE OFFICE OF MENTAL HEALTH
Disability Advocates, Inc.
5 Clinton Square, 3rd Floor
Albany, NY 12207
Prisoners’ Legal Services of New York

114 Prospect Street
Ithaca, NY 14850
Prisoners’ Rights Project

The Legal Aid Society
199 Water Street, 6th Floor
NY, NY 10038
Manual
Chapter 30:
Special Information for
Lesbian, Gay, Bisexual, and
Transgender Prisoners

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 30
SPECIAL INFORMATION FOR

LESBIAN, GAY, BISEXUAL, AND TRANSGENDER PRISONERS*
A. Introduction
Lesbian, gay, bisexual, and transgender (“LGBT”) prisoners face the same challenges as
other prisoners, but due to prejudice about sexual orientation and gender identity, LGBT
prisoners often encounter additional difficulties.
Many of the issues unique to LGBT prisoners have not been litigated extensively.1 And
many of the issues that have been litigated may change significantly in light of a still
relatively new Supreme Court decision. 2 The outcomes of these claims are now hard to
predict. This unpredictability, combined with the fact that homophobia and transphobia may
play a role in many judges’ and juries’ decisions, means that LGBT prisoners face uphill
battles when they bring claims in court. For this reason, you should consider contacting an
LGBT impact litigation organization to see if its lawyers would be willing to take on your
case.3 This is especially important if you are seeking to apply new theories about sexual
orientation or gender identity. Even if such an organization cannot take your case, someone
may be able to refer you to an attorney who has experience working with LGBT plaintiffs.
Throughout this Chapter, the term transgender is used to indicate a broad spectrum of
people whose identity or lived experiences do not conform to the identity or experiences
typically associated with the sex assigned at birth. This includes non-, pre-, and post-
operative transgendered people, people who live part or all of the time as a gender other than
that assigned to them at birth, people with intersex conditions, cross-dressers, masculine
women, and feminine men. Gender identity is used to describe the gender a person identifies
as, whether or not that gender is the same as the gender they were assigned at birth. When
referring to individual people, we have tried to use the names and pronouns that person
prefers.
This Chapter attempts to address the most pressing concerns of LGBT prisoners. Part B
of this Chapter discusses important Supreme Court cases and how they may affect past and
future prison regulations. Part C explains what to do if you are being treated unfairly
because of your sexual orientation or gender identity. Part D discusses your remedies if you
feel that homophobic or transphobic beliefs led to jury bias in your conviction. Part E
addresses your right to control your gender identity while in prison. This Part includes a
discussion of your right to gender-related medical care such as hormone treatment. Part F
* This Chapter was revised by Meredith Duffy, based on previous versions by Jen Higgins and Kari
Hong. Special thanks to Shannon Minter and Courtney Joslin of the National Center for Lesbian
Rights (NCLR), Craig Cowie of the ACLU National Prison Project, Leslie Cooper of the ACLU Gay and
Lesbian Project, Jennifer Levi of the Gay and Lesbian Alliance Against Defamation (GLAAD), and Prof.
Philip Genty of Columbia Law School’s Prisoners and Families Clinic for their valuable comments.
1. Unfortunately, some legal decisions of significance to LGBT prisoners are unreported—that is,
they do not appear in the Federal Reporter or Federal Supplement volumes available in prison law
libraries. In the JLM, these cases have citations like “U.S. App. LEXIS 12345 (unpublished).” Make
sure you read Chapter 2 of the JLM for important information about unpublished cases. At the very
least, even if you cannot cite an unpublished case in your claim, the case may help you predict the
outcome of a similar lawsuit.
2. See the next section for a lengthy discussion of Lawrence v. Texas, 539 U.S. 558, 123 S. Ct.
2472, 156 L. Ed. 2d 508 (2003).
3. Impact litigation organizations litigate cases where the law is unresolved with the hope of
creating favorable law for future cases. A list of such organizations appears in the Appendix to this
Chapter.
explains your right to confidentiality regarding your sexual orientation or gender identity.
Part G addresses assault and harassment by prison officials and other prisoners. Part H
discusses protective custody and housing placements for transgender prisoners. Part I
discusses visitation rights. Finally, Part J discusses your right to receive LGBT literature.
As you read this Chapter, you should always keep in mind 42 U.S.C. § 1983 (known as
“Section 1983”). Section 1983 is a federal statute that permits you to sue a person who, while
acting on behalf of the state, violated either (1) one of your federal statutory rights or (2) one
of your constitutional rights, such as your right to be free from cruel and unusual
punishment under the Eighth Amendment or your right to equal protection under the
Fourteenth Amendment. If you are a state prisoner and your rights have been violated by
prison officials, you should also check state and local laws. Depending on where you are
located, bringing a lawsuit under Section 1983 may be your best option.4 For a more detailed
explanation of Section 1983, see Chapter 16 of the JLM. It is also very important to be aware
of the constraints placed on prisoner litigation by the Prisoner Litigation Reform Act
(“PLRA”). Please read Chapter 14 of the JLM for a more detailed explanation of the PLRA
before filing any lawsuit.
B. Changes in the Law
This part begins by briefly explaining a relatively recent and important Supreme Court
case, Lawrence v. Texas, in which the Court ruled states cannot pass laws prohibiting
homosexual acts. The case that Lawrence overruled, Bowers v. Hardwick,5 is also explained.
Also explained is another case, Romer v. Evans,6 which may affect claims brought by LGBT
prisoners. Finally, the part discusses the general changes to the law that Lawrence and
Romer might bring about. Because many of the cases discussed in this Chapter are based
explicitly on the reasoning in Bowers, the issues may be open to new interpretation because
of Lawrence and Romer. Please note that while both Bowers and Lawrence deal specifically
with sexual orientation, they may also affect claims brought by transgender prisoners
because prison officials may perceive a transgender prisoner to be homosexual, regardless of
actual sexual orientation.
1. Lawrence v. Texas and Due Process Claims
In June 2003, the United States Supreme Court found unconstitutional a Texas law that
made homosexual sex between consenting adults a crime.7 While the practical effect of the
decision may have little immediate impact on you or the conditions of confinement that you
face, the Lawrence decision may ultimately have far-reaching consequences. In the ruling,
the Court held that the right to privacy, as guaranteed under the Fourteenth Amendment,
includes the right to engage in consensual intimate or sexual activity, including same-sex
activity.8
The vast majority of the cases in this Chapter were decided before Lawrence. Because of
this, many cases in this Chapter still use the reasoning in another famous Supreme Court
case, Bowers v. Hardwick. 9 Bowers, decided in 1986, was in many ways the exact legal
opposite of Lawrence and was overruled by Lawrence. This means Bowers is no longer valid
law; cases that would have relied upon the ruling in Bowers may now be decided differently,
since Lawrence is now the law.
4. To challenge the conduct of an official or employee of the federal government, you must bring a
Bivens action. You can find an explanation of how to do this in Chapter 16 of the JLM.
5. Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986).
6. Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996).
7. Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003).
8. Lawrence v. Texas, 539 U.S. 558, 567, 123 S. Ct. 2472, 2478, 156 L. Ed.2d 508, 518 (2003).
9. Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986).
Because of the far reaching consequences of Lawrence and because the decision is still
relatively new, it is hard to know how courts will now treat LGBT claims.
(a) Bowers v. Hardwick
Bowers v. Hardwick was a Supreme Court case that found the constitutional right to
privacy did not extend to homosexual acts between consenting adults. 10 Generally, the
Fourteenth Amendment of the Constitution11 prohibits the government from infringing upon
fundamental rights unless there is a sufficient justification for the government’s interference.
The question of which rights are “fundamental” has been the subject of many court battles.
The Supreme Court has held in the past that very private decisions, such as the decision to
use birth control or have an abortion, are protected under the Fourteenth Amendment
because they involve a fundamental right to privacy.12 In Bowers, the Court held that the
right to engage in consensual homosexual acts is not protected under the right to privacy and
that states could prohibit homosexual acts merely on the basis of views that consider
homosexuality immoral.13
(b) The End of Bowers
When the Supreme Court decided Lawrence v. Texas, it explicitly overruled Bowers v.
Hardwick.14 As a result, many of the cases relying upon Bowers as a reason to refuse to
question the unequal treatment of LGBT prisoners might now be questionable. Several
important issues arise after Lawrence. Keep them in mind if you are thinking about bringing
suit about your treatment in prison.
First, Lawrence says that under the constitution, all adults, including LGBT individuals,
have the right to engage in intimate conduct with another adult in private.15 This means that
private, consensual homosexual sex is no longer a crime. This does not mean that you have
the right to engage in sex in prison, but it probably does mean that prison officials cannot
treat you differently only because you identify as or are perceived to be LGBT.
Second, one Supreme Court Justice wrote in a concurring opinion in Lawrence that moral
disapproval is an insufficient reason to treat people differently, relying on a prior Supreme
Court opinion.16 While that is not the holding of the Lawrence case, its use by a Justice in
10. Bowers v. Hardwick, 478 U.S. 186, 190–91, 106 S. Ct. 2841, 2844, 92 L. Ed. 2d 140, 146
(1986).
11. “No State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal protection of the law.” U.S.
Const. amend. XIV, § 1.
12. Griswold v. Connecticut, 381 U.S. 479, 485–86, 85 S. Ct. 1678, 1682, 14 L. Ed. 2d 510, 515–16
(1965) (articulating the importance of marriage as a right of privacy); Roe v. Wade, 410 U.S. 113, 154,
93 S. Ct. 705, 727, 35 L. Ed. 2d 147, 177–78 (1973) (holding that the abortion decision falls within the
right of personal privacy, but qualifying that it must be considered against some important state
interests).
13. Bowers v. Hardwick, 478 U.S. 186, 196, 106 S. Ct. 2841, 2846–47, 92 L. Ed. 2d 140, 149
(1986).
14. Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 2484, 156 L. Ed. 2d 508, 525 (2003)
(“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding
precedent. Bowers v. Hardwick should be and now is overruled.”).
(“When sexuality finds overt expression in intimate conduct with another person, the conduct can be
but one element in a personal bond that is more enduring. The liberty protected by the Constitution
allows homosexual persons the right to make this choice.”).
(O’Connor, J., concurring) (“Moral disapproval of this group, like a bare desire to harm the group, is an
interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”); see
also Romer v. Evans, 517 U.S. 620, 634, 116 S. Ct. 1620, 1629, 134 L. Ed. 2d 855, 867 (1996) (holding
Lawrence indicates the rule may be useful in court when arguing an infringement of your
rights because of your sexual orientation.
Third, Lawrence makes all the cases that relied on Bowers open to attack. When you are
considering whether or not to bring a claim, pay close attention to whether Bowers played a
role in any negative cases in your jurisdiction. If you feel that a case relied heavily on Bowers
and negatively affects your case, contact one of the impact litigation organizations listed at
the end of this Chapter. It may be possible to argue that the negative case no longer applies
since Bowers was overruled.
(c) The Unknown Effect of Lawrence
Because Lawrence was decided fairly recently, it is hard to know how far-reaching its
effects will be. Because the case holds same-sex conduct is entitled to at least some legal
protections, Lawrence may have the power to influence a vast number of cases regarding
LGBT rights. But courts have been hesitant to read Lawrence broadly enough to establish a
basis for LGBT rights beyond cases that are factually similar to Lawrence. For instance,
sometimes courts will use other precedents—such as Romer v. Evans,17 which is discussed
below and deals with equal protection—to avoid the Lawrence question.18
At least one case post-Lawrence has declined to extend Lawrence to the point where it
would protect all kinds of homosexual conduct in prison. In Willson v. Buss, a prisoner sued
the superintendent of his prison for the right to receive magazines with homosexual
content. 19 The court noted that Lawrence had overruled Bowers and that there was a
constitutionally-protected right in open society to homosexual relationships. However, the
court made a point of saying that the right does not necessarily extend to the prison context,
where constitutional rights may be limited by prison officials for necessary reasons.20
2. Romer v. Evans and the Equal Protection Clause
While the ruling in Lawrence v. Texas was based upon the Due Process Clause of the
Fourteenth Amendment and the right to privacy, an alternative basis for claims affecting
LGBT prisoners is the Equal Protection Clause. The Equal Protection Clause prohibits the
government from treating different classes of people differently unless there is a sufficient,
legitimate governmental purpose in doing so. The leading case affecting LGBT people
bringing equal protection claims is Romer v. Evans.21
In considering equal protection claims, courts apply different legal standards to different
classifications of people. It is more likely that a law will be found unconstitutional under the
Equal Protection Clause of the Fourteenth Amendment when a higher standard of legal
scrutiny applies. For example, if the government makes a distinction based upon race, it
must show that the contested classification based on race is necessary to achieve a compelling
government interest. This is known as a “strict scrutiny” legal standard. For a distinction
based on gender, the contested classification must be substantially related to an important
government objective. This standard is called an “intermediate scrutiny” legal standard.
Other classifications, such as those based on age, only need to be rationally related to a
that action based on a bare desire to harm could not constitute a legitimate government interest, and so
violated the Equal Protection Clause).
18. See, e.g., Johnson v. Johnson, 385 F.3d 503, 532–33 (5th Cir. 2004) (relying on Romer in
holding the law clearly established a denial of protection to a prisoner because of his sexuality violated
the Equal Protection Clause).
19. Willson v. Buss, 370 F. Supp. 2d 782 (N.D. Ind. 2005).
20. Willson v. Buss, 370 F. Supp. 2d 782, 786 (N.D. Ind. 2005). See Part J of this Chapter for
further discussion of your right to receive LGBT literature while in prison.
legitimate government purpose to survive an equal protection challenge. This standard is
known as “rational basis” legal review.
In Romer v. Evans, the plaintiffs challenged an amendment to a state constitution that
invalidated and prohibited local laws that barred discrimination on the basis of sexual
orientation. In hearing the case, the Supreme Court had to decide what level of scrutiny,
from those described above, to apply to distinctions or classifications based on sexual
orientation. While the Court held that classification based on sexual orientation is only
entitled to a rational basis review, the lowest legal standard, the Court still invalidated the
amendment under this rational basis test. The Court found that the only purpose behind the
law was “animus [hatred] toward the class [homosexuals] that it affects,” and held that
neither animus nor hatred were legitimate government purposes. 22
Romer v. Evans is significant for two reasons. First, it establishes that distinctions based
on sexual orientation will be evaluated under the rational basis review test, not a stricter
test. Second, it demonstrates a willingness on the part of the Supreme Court to use the
rational basis test to protect the interests of LGBT people. Previously, it had been very hard
to win an equal protection challenge under the rational basis test. So, while Romer v. Evans
was a disappointment to LGBT people in that the Court did not extend a higher level of
scrutiny to classifications based on sexual orientation, it is helpful because it shows how the
rational basis review can be used to successfully challenge policies that discriminate based
on sexual orientation. In Johnson v. Johnson, for example, the Fifth Circuit relied on Romer
v. Evans in discussing claims against prison officials.23 In this case, a homosexual inmate
alleged that officials failed to protect him from violence and rapes by other prisoners, even
after he alerted officials of the assaults. The Court noted that:
It is clearly established that all prison inmates are entitled to
reasonable protection from sexual assault. ... Neither the Supreme
Court nor this court has recognized sexual orientation as a suspect
classification [a highly protected group]; nevertheless, a state violates
the Equal Protection Clause if it disadvantages homosexuals for
reasons lacking any rational relationship to legitimate governmental
aims.24
3. A Practical Example
In an attempt to help you figure out how Lawrence v. Texas and Romer v. Evans might
work together to protect LGBT rights in prison, it may be useful to briefly examine a past
case about a lesbian prisoner, Doe v. Sparks,25 that was decided before Lawrence and Romer,
and show how it might have been decided differently if it had been decided after both
Lawrence and Romer.
In Doe v. Sparks, a lesbian prisoner was denied a visitation by her girlfriend. 26 The
prison claimed that allowing homosexual visitation could incite anti-gay violence in the
prison. The prisoner tried to bring a federal equal protection claim, saying she was being
unfairly targeted for being gay and the prison’s reasons for denying her girlfriend’s visit were
not rationally related to a legitimate government purpose. The court, in considering the
prisoner’s claim, acknowledged that “the Equal Protection Clause dictates equal
administration of rights and privileges, such as visitation, between similarly situated
persons.”27
22. Romer v. Evans, 517 U.S. 620, 632, 116 S. Ct. 1620, 1627, 134 L. Ed. 2d 855, 865–66 (1996).
Still, the court went on to decide that denying homosexuals visitation rights was not a
violation of the federal Equal Protection Clause. The court determined that Bowers v.
Hardwick prevented LGBT people from being treated as a “class” for equal protection
purposes. The court also found that any group that is defined by sexual preference could not
bring an equal protection claim.28
This case may have been decided differently under Romer v. Evans and Lawrence v.
Texas. In Doe, the Court relied on Bowers v. Hardwick to conclude that since homosexual
acts were not protected activities, homosexuals could not bring an equal protection claim
based upon their sexual orientation. After Romer, a court hearing a case identical to Doe
would instead analyze the visitation policy under the rationality review test to consider the
equal protection claim and might be more likely to inquire more thoroughly into the
government purpose served by the policy. In addition, since Lawrence overruled Bowers and
held that homosexual conduct is entitled to some protection, the prisoner would have a better
chance today of bringing a claim based upon her right to privacy, although as we saw in
Willson v. Buss,29 not all homosexual conduct or activity is protected in the prison context,
even after Lawrence.
Thus, after Lawrence, the prisoner in Doe might now have a much stronger claim that
the policy discriminated against her due to her homosexuality and interfered with her right
to privacy.
C. Unequal Treatment Because of Sexual Orientation or Gender Identity
1. Equal Protection
The Equal Protection Clause prohibits the government from treating different classes of
people differently unless there is a sufficiently legitimate purpose for doing so. 30 If you
believe that benefits are being withheld from you in a way that they are not being withheld
from heterosexual prisoners, you may bring a Section 1983 claim against the prison or prison
officials for violation of your equal protection rights. To do this successfully, you must
convince the court that (1) “similarly situated” prisoners are treated differently by the prison
and (2) the difference between their treatment and your treatment is not justified by being
somehow rationally related to a legitimate penological (prison-related) interest. In other
words, the prison rule or policy that results in your being treated differently must have a
common-sense connection to a valid goal or concern of the prison. For a more thorough
discussion of equal protection claims, see Chapter 16 of the JLM, “Using 42 U.S.C. 1983 and
28 U.S.C. 1331 to Obtain Relief From Violations of Federal Law.”
When faced with claims by LGBT prisoners that they are being treated differently than
heterosexual prisoners, prisons have often tried to justify their actions by claiming different
treatment is necessary to protect LGBT prisoners, who are often more vulnerable to attack
than other prisoners. For instance, two cases in the Sixth Circuit involved LGBT prisoners
who, having been denied the opportunity to participate in religious services while in prison,
brought suit under Section 1983 for violation of their First Amendment rights. In both cases,
the prison argued that because the LGBT prisoner was vulnerable to attack, his
participation in the services posed a security risk. The restriction on the prisoner’s First
28. Doe v. Sparks, 733 F. Supp. 227, 232 (W.D. Pa. 1990) (“We hold that conduct which is not in
itself protected by substantive due process, natural right, or some source of substantive protection
cannot be the basis of an equal protection challenge by the class which engages in the conduct.”).
However, it should be noted that the court did hold that under Pennsylvania state law, homosexuals
could not be discriminated against and thus struck down the visitation policy. Doe v. Sparks, 733 F.
Supp. 227, 232–34 (W.D. Pa. 1990).
29. Willson v. Buss, 370 F. Supp. 2d 782 (N.D. Ind. 2005) (finding that the right to homosexual
relationships does not extend to all contexts, specifically the receipt of homosexual magazines).
30. U.S. Const. amend. XIV.
Amendment rights, the prison argued, served the valid penological interest of prison security
and so was justified.31
Several LGBT prisoners have, with some success, sued prison officials, claiming they
were terminated from their prison jobs because they are LGBT. For instance, in Holmes v.
Artuz, a federal court in New York noted that a gay prisoner who alleged he was removed
from his food service prison job may have stated a claim under Section 1983 for violation of
his equal protection rights. 32 The court did not decide whether the equal protection
guarantee of the Constitution had been violated because the plaintiff, appearing without
counsel, had not presented enough information on which to base that decision.33 However,
the court was clearly sympathetic to the prisoner’s claim, and the opinion contains strong
language indicating that the state would have to show, rather than merely assert, that its
decision was rationally related to the state’s interest in maintaining security.34
31. Brown v. Johnson, 743 F.2d 408, 412–13 (6th Cir. 1984) (holding a prison’s total ban on group
worship services by a church for gay people was reasonably related to the state interest in maintaining
internal security in the prison). But see Phelps v. Dunn, 965 F.2d 93, 100 (6th Cir. 1992) (holding that a
genuine issue of material fact existed as to whether a gay prisoner alleging he was denied permission to
attend religious services was in fact so denied, and whether he posed a security risk because he was
gay). See also Harper v. Wallingford, 877 F.2d 728, 733 (9th Cir. 1989) (affirming summary judgment
for defendant prison because allowing plaintiff prisoner to receive mailings from North American
Man/Boy Love Association would make him a likely victim of inmate violence); Star v. Gramley, 815 F.
Supp. 276, 278–79 (C.D. Ill. 1993) (granting summary judgment to prison that refused to allow a
prisoner in a men’s facility to wear dresses and skirts because it could pose a security threat by
promoting or provoking sexual activity or assault).
32. Holmes v. Artuz, No. 95 Civ. 2309 (SS), 1995 U.S. Dist. LEXIS 15926, at *3 (S.D.N.Y. Oct. 26,
1995) (unpublished). But see Counce v. Kemna, No. 02-6065-CV, 2005 U.S. Dist. LEXIS 4021, at *9–10
(W.D. Mo. Mar. 8, 2005) (unpublished) (granting defendant prison officials qualified immunity in case
where plaintiff alleged job discrimination based on his sexual orientation).
33. The plaintiff was granted leave to replead (plead again). Holmes v. Artuz, No. 95 Civ. 2309
(SS), 1995 U.S. Dist. LEXIS 15926, at *6 (S.D.N.Y. Oct. 26, 1995) (unpublished).
34. The Holmes court reasoned as follows:
Defendants argue that “the decision to reassign plaintiff from his job in food service is
rationally related to a legitimate state interest in preserving order in the correction facility
messhall (sic).” However, defendants proffer no explanation of what this “rational relationship”
might be. A person’s sexual orientation, standing alone, does not reasonably, rationally or self-
evidently implicate mess hall security concerns. It is not sufficient to assert, as defendants do
in their motion papers, that the prison’s exclusionary policy is designed to prevent “potential
disciplinary and security problems which could arise from heterosexual inmates’ reaction to
and interaction with homosexual and/or transsexual inmates who serve and prepare food” in
the mess hall. ... Defendants as yet have offered no evidence that these alleged disciplinary
and security problems are real threats to prison life, or that the exclusionary policy is a
rational response to such threats if they do exist.
Holmes v. Artuz, No. 95 Civ. 2309 (SS), 1995 U.S. Dist. LEXIS 15926, at *4 (S.D.N.Y. Oct. 26, 1995)
(unpublished) (citations omitted). See also Johnson v. Knable, decision reported at 862 F.2d 314 (4th
Cir. 1988), opinion reported in full at No. 88-7729, 1988 WL 119136, at *1 (4th Cir. Oct. 31, 1988)
(unpublished) (vacating lower court’s summary judgment dismissal of an equal protection claim
brought by a gay prisoner after he was allegedly denied a job in the prison’s education department
because he was gay, and remanding for further proceedings, noting that “[i]f [the plaintiff] was denied a
prison work assignment simply because of his sexual orientation, his equal protection rights may have
been violated”); Kelley v. Vaughn, 760 F. Supp. 161, 163–64 (W.D. Mo. 1991) (denying defendant’s
motion to dismiss on the ground that a gay prisoner, bringing an action against the correctional
center’s food service manager to challenge his removal from his job as bakery worker, might have a
valid equal protection claim); Howard v. Cherish, 575 F. Supp. 34, 36 (S.D.N.Y. 1983) (stating, although
it was not the case in the facts before the court, that a gay prisoner who claimed he was punished
because he was gay would have a claim under § 1983 if he had substantiated his claim that he was
discriminated against solely because of his sexual preferences). But see Fuller v. Rich, 925 F. Supp. 459,
463 (N.D. Tex. 1995) (finding that mistaken rumors that a gay prisoner was HIV-positive were enough
to raise a legitimate safety concern that justified firing him from food handling job).
2. Sex Discrimination
Although your chances of prevailing on an equal protection claim may have increased
substantially after Lawrence v. Texas and Romer v. Evans, you might also have a chance of
prevailing if you state your grievance in terms of sex discrimination as opposed to sexual
orientation discrimination.35 Title VII of the Civil Rights Act of 1964 creates a federal cause
of action for “discrimination because of ... sex,” 36 and has been held to prohibit sex
discrimination against both men and women. 37 Sex discrimination is discrimination that
occurs based on whether you are a man or a woman and does not directly cover sexual
orientation or sexual preference discrimination. But, LGBT persons are sometimes able to
use a theory of “sex-stereotyping” to argue they have suffered from sex discrimination. This
is useful because courts subject laws and policies that treat people differently according to
their sex to “intermediate scrutiny.” Intermediate scrutiny is a higher level of scrutiny than
“rational basis scrutiny,” which is the test applied to claims of discrimination for sexual
orientation. Intermediate scrutiny requires the prison to show a substantial relationship
between a prison rule and a legitimate goal of the prison to justify a sex-based
classification.38
Sex-stereotyping claims cover claims of discrimination against people for not conforming
to the expected behavior of their sex. The Supreme Court recognized this cause of action in
Price Waterhouse v. Hopkins, finding sex discrimination when an accounting firm told an
employee she had to “walk, talk, and dress more femininely, style her hair, and wear make-
up and jewelry” to get a promotion. 39 This case is particularly useful for transgender
prisoners who suffer from discrimination in prison. For many years, courts have been
unsympathetic to transgender plaintiffs, particularly in prisons. But, several cases have held
that Price Waterhouse protects transgender people and overrules previous decisions, like
Ulane v. Eastern Airlines, Inc.,40 which denied transgender people protection under Title VII
and similar sex discrimination laws.41
35. There is only one known case that has used a sex discrimination theory in the prisoner
context. See Schwenk v. Hartford, 204 F.3d 1187, 1200–02 (9th Cir. 2000) (discussing claim that attack
by prison guard was at least in part due to sex discrimination, as guard was not interested in prisoner
sexually until his discovery of her “true” sex). It is difficult to predict, then, how courts would respond,
and you should be mindful of the consequences under the Prison Litigation Reform Act of filing claims
deemed frivolous by the court. See Chapter 14 of the JLM, “The Prison Litigation Reform Act.”
Nonetheless, this strategy might be worthwhile if you lack alternatives.
36. 42 U.S.C. § 2000e-2(a)(1) (2000). Numerous state statutes also prohibit sex discrimination;
some apply the same standard as Title VII, while others define discrimination more broadly.
37. See, e.g., Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78, 118 S. Ct. 998, 1001, 140 L.
Ed. 2d 201, 206 (1998); Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682, 103 S.
Ct. 2622, 2630, 77 L. Ed. 2d 89, 101 (1983).
38. See JLM Chapter 16, “Using 42 U.S.C. 1983 and 28 U.S.C. 1331 to Obtain Relief From
Violations of Federal Law.”
39. Price Waterhouse v. Hopkins, 490 U.S. 228, 235, 109 S. Ct. 1175, 1782, 104 L. Ed. 2d 268,
278 (1989).
40. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir. 1984) (construing “sex” in Title
VII narrowly to mean only anatomical sex rather than gender); see also Holloway v. Arthur Andersen,
566 F.2d 659, 661 (9th Circ. 1977) (affirming trial court decision “that Title VII does not embrace
transsexual discrimination”).
41. See Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000) (holding Price Waterhouse’s
logic overruled “the initial judicial approach” in cases like Holloway); Smith v. City of Salem, Ohio, 378
F.3d 566, 573 (6th Cir. 2004) (“It is true that, in the past, federal appellate courts regarded Title VII as
barring discrimination based only on ‘sex’ (referring to an individual's anatomical and biological
characteristics), but not on ‘gender’ (referring to socially-constructed norms associated with a person's
sex) ... However, [this] approach ... has been eviscerated by Price Waterhouse.”); Schroer v. Billington,
525 F. Supp. 2d 58, 63 (D.D.C. 2007) (“Title VII is violated when an employer discriminates against any
employee, transsexual or not, because he or she has failed to act or appear sufficiently masculine or
Sex-stereotyping can also be used by lesbian, gay, and bisexual people in making
discrimination claims. For example, if you are a gay man and you believe you were fired from
your prison job because you are gay, you could argue that you are a man who desires male
sexual partners and therefore you were fired, where a female prisoner who desired male
sexual partners (and who is thus similarly situated to you) would not have been fired.42 By
framing the argument in this way, you can perhaps get the court to be more rigorous in its
review of the prison officials’ actions.
3. State Laws
Many state laws (and constitutions) provide greater protection to LGBT people than the
federal Constitution does, as interpreted by the courts. Examples are the Minnesota State
Constitution43 and California’s Unruh Civil Rights Act.44 You should research your state’s
laws to find out if you could have a stronger statutory claim under those laws than the
constitutional claims (discussed in the above two subsections) you could make. If you are in a
state with LGBT-friendly statutes, you can bring a claim under a state statute as a “pendent
claim” (supplemental to your Section 1983 claim) in federal court, or you can bring the state
claim alone in state court. Also, sometimes state laws have been used by courts to determine
what constitutes a violation of the federal Equal Protection Clause.45
D. Jury Bias
The Sixth Amendment of the United States Constitution guarantees defendants the right
to trial by a fair and impartial jury in all criminal prosecutions. 46 If you suspect that
homophobic or transphobic attitudes among the jurors who delivered the guilty verdict
against you prevented them from making an impartial decision about your conviction, you
may have grounds to challenge your conviction.47
feminine enough for an employer.”); Mitchell v. Axcan Scandipharm, Inc., No. 05-243, 2006 U.S. Dist.
LEXIS 6521, at *3–4 (W.D. Pa. Feb. 17, 2006) (unpublished) (“Plaintiff claims that he was fired because
he began to present as a female. He claims that he was the victim of discrimination and a hostile work
environment created by defendant due to plaintiff's appearance and gender-related behavior. These
allegations, if true, state a claim under Title VII.”); Kastl v. Maricopa County Cmty. College Dist., No.
02-1531-PHX-SRB, 2004 U.S. Dist. LEXIS 29825, at *7 (D. Ariz. June 3, 2004) (unpublished) (finding
plaintiff’s allegation that she was required to use the men’s restroom stated a claim under Title VII
where plaintiff was a biological female born with male genitalia); Tronetti v. TLC Healthnet Lakeshore
Hosp., No. 03-CV-0375E(Sc), 2003 U.S. Dist. LEXIS 23757, at *12 (W.D.N.Y. Sept. 26, 2003)
(unpublished) (“This Court is not bound by the Ulane decisions. More importantly, the Ulane decisions
predate the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775,
104 L. Ed. 2d 268 (1989), which undermined the reasoning of the Ulane decisions.”).
42. See Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 214–15 (1st Cir. 2000) (holding that
it was possible that a bank which refused a loan application made by a man wearing a dress until he
went home and changed into “male attire” had engaged in sex discrimination because it likely would
not have refused a loan application to a woman wearing a dress); Baehr v. Lewin, 852 P.2d 44, 67, 74
Haw. 530, 580 (Haw. 1993) (holding that a state statute restricting the marital relation to one man and
one woman should be subjected to strict scrutiny under the equal protection clause of the state
constitution because it made a sex-based classification).
43. Minn. Const. art. I, § 2.
44. Cal. Civ. Code § 51 (2007).
45. See Doe v. Sparks, 733 F. Supp. 227, 232 (W.D. Pa. 1990) (finding that even though federal
law allowed discrimination based on sexual activity, Pennsylvania State law did not, and Pennsylvania
law could be used to evaluate the decision to bar a lesbian partner from visitation).
46. See Irwin v. Dowd, 366 U.S. 717, 721–22, 81 S. Ct. 1639, 1641–42, 6 L. Ed. 2d 751, 755–56
(1961).
47. There is evidence that lesbians are more likely to be convicted than heterosexual women,
perhaps indicating that jurors’ homophobia regularly plays an inappropriate role in their decision
processes. Lesbians also serve longer sentences than heterosexual women. Ruthann Robson, Sappho
Goes to Law School 36 (1998).
Your right to a fair and impartial jury is supposed to be protected by a process called voir
dire. Voir dire happens before the trial begins. During voir dire, prospective jurors are asked
questions so that the judge and the lawyers can learn more about them. Usually the judge
asks the questions, although in some jurisdictions the lawyers also ask questions, and in
many jurisdictions the lawyers are allowed to submit questions to the judge. Generally, the
lawyers from each side are permitted to “strike,” or exclude, jurors based on their answers to
the questions. The lawyers have an unlimited opportunity to exclude jurors “for cause,”
which means they can exclude those whom they believe to be biased. The judge, too, has an
obligation to exclude any prospective juror she believes to be biased.48
You might have a claim that your right to trial by an impartial jury was violated if:
(1) The court failed or refused to question jurors during voir dire about their attitudes
towards gay or transgender people, and your sexual orientation or gender identity
was raised at trial;49
(2) The court selected a juror even though that juror had indicated that, due to his
homophobia or transphobia, he would have trouble being impartial50; or
(3) The prosecutor conducting the voir dire excluded all the gay or transgender people
from the pool of prospective jurors because they were gay or transgender.51
A handful of prisoners have challenged their sentences or convictions for alleged anti-gay
jury bias, with limited success. For example, in Owens v. Hanks, a Seventh Circuit case, a
gay prisoner whose sexual orientation was raised in testimony during his murder trial
petitioned for a writ of habeas corpus, contending, among other things, that he was denied an
impartial jury because the court chose several jurors who had expressed their bias against
gay people during jury selection.52 The court found these expressions of juror bias did not
48. In New York, a prosecuting attorney or a judge may not assume that a gay juror will be
biased in favor of other homosexuals involved in the trial. So, simply the fact that both a defendant and
a juror are gay should not be “cause” for dismissing the juror. See People v. Viggiani, 105 Misc. 2d 210,
214, 431 N.Y.S.2d 979, 982 (N.Y. Crim. Ct. N.Y. County 1980) (“To say that this entire group of citizens
who may be otherwise qualified, would be unable to sit as impartial jurors in this case, merely because
of their homosexuality is tantamount to a denial of equal protection under the United States
Constitution.”).
49. In conducting voir dire, the trial court judge is required to permit at least some questioning
with respect to any material issue that may actually or potentially arise at trial. Aldridge v. United
States, 283 U.S. 308, 311–13, 51 S. Ct. 470, 472, 75 L. Ed. 1054, 1056 (1931) (finding voir dire unfair
where trial judge “failed to ask any question which could be deemed to cover the subject,” in order to
uncover a “disqualifying state of mind,” in this instance, racial prejudice). The standard of review of
jury voir dire is that the trial court’s discretion must be exercised consistently with “the essential
demands of fairness.” Aldridge v. United States, 283 U.S. 308, 310, 51 S. Ct. 470, 471, 75 L. Ed. 1054,
1056 (1931). Nevertheless, the trial court is given wide latitude to determine how best to conduct the
voir dire, and failure to ask specific questions is reversed only for abuse of this discretion. Rosales-
Lopez v. United States, 451 U.S. 182, 190, 101 S. Ct. 1629, 1635, 68 L. Ed. 2d 22, 29–30 (1981).
50. See State v. Johnson, 706 So. 2d 468, 477–78 (La. Ct. App. 1998) (finding that it was proper
to release one juror for anti-gay bias but improper to release a second juror, who claimed that if he
knew defendant was gay he would “almost automatically” convict, because he was merely parroting the
released juror in an attempt to get out of jury duty and was therefore not actually biased).
51. Some courts have ruled that jurors cannot be removed “for cause” from a jury just for being
gay. See, e.g., People v. Viggiani, 105 Misc. 2d 210, 214, 431 N.Y.S.2d 979, 982 (N.Y. Crim. Ct. N.Y.
County 1980) (“To say that [citizens] who may be otherwise qualified, would be unable to sit as
impartial jurors in this case, merely because of their homosexuality is tantamount to a denial of equal
protection under the United States Constitution.”). Other courts have ruled that homosexuals may
constitute a “class” of individuals that may not be entirely excluded from a jury. See, e.g., People v.
Garcia, 92 Cal. Rptr. 2d 339, 343–44, 77 Cal. App. 4th 1269, 1275–77 (Cal. Ct. App. 2000) (holding that
“exclusion of lesbians and gay men [from the jury pool] on the basis of group bias violates the California
Constitution”).
52 . For example, one impaneled juror stated at voir dire that “she would unwittingly be
influenced by a witness' homosexuality because she believe[d] it [was] morally wrong.” Owens v.
make his trial unfair because there was testimony at trial that witnesses for both the
prosecution and the defense were gay, and so any prejudice on the part of the jurors
regarding sexuality affected both parties.53 If both parties are not affected, such a claim
might be more likely to succeed.
On the other hand, a New Jersey court reversed the conviction of a defendant on appeal,
finding the court that convicted him had deprived him of his fundamental right to be present
during an individual voir dire from which spectators were excluded. At the voir dire,
questions were asked about prospective jurors’ attitudes toward homosexuality. The
defendant had expressly requested to be present. 54 The court held that “[s]ince ... the
evidence suggested that defendant was bisexual because he was a frequent patron of gay
bars, it was important that defendant be present so that he could have formed his own
impressions of the jurors’ demeanor and visceral reactions when they responded to the
questions about homosexuality.”55
Though the case law is sparse, some cases indicate you might be granted a retrial if
homosexuals were purposefully excluded from the jury. In People v. Viggiani, a New York
State case, the court decided jurors could not be excluded from a jury “for cause” merely
because they had a same-sex orientation and so did a participant in the trial. 56 The
California Supreme Court ruled in People v. Garcia that the prosecution could not use its
preemptory challenges to exclude all lesbians from a jury. It found that homosexuals
constitute a “cognizable class” and that completely barring them from a jury violated the
California constitution.57
Although it cannot be predicted with any certainty, the claim that LGBT individuals
form a class that cannot be barred from jury service is probably stronger after Lawrence v.
Texas. Before Lawrence, some courts ruled that homosexuals could be barred from jury
service because they were presumptively criminals. Not only are homosexuals no longer
presumptively criminal in any state, but Lawrence v. Texas and Romer v. Evans also call into
Hanks, No. 96-1124, 1996 U.S. App. LEXIS 15465, at *3 (7th Cir. June 25, 1996) (unpublished).
Another stated that she did not approve of homosexuality and “would be less likely to believe a
homosexual.” Owens v. Hanks, No. 96-1124, 1996 U.S. App. LEXIS 15465, at *3 (7th Cir. June 25,
1996) (unpublished). Please note, however, that Owens v. Hanks is an unpublished opinion and
therefore may not be an acceptable case to cite in some jurisdictions.
53. Owens v. Hanks, No. 96-1124, 1996 U.S. App. LEXIS 15465, at *5–6 (7th Cir. June 25, 1996)
(unpublished). See also Lingar v. Bowersox, 176 F.3d 453, 457–59 (8th Cir. 1999) (finding the admission
of testimony that defendant was gay during the penalty phase of his trial for murder was harmless and
did not contribute to the jury’s finding, because it was brief and because the State did not refer to it
during closing argument); United States v. Click, 807 F.2d 847, 850 (9th Cir. 1987) (finding refusal by
trial court to ask questions of prospective jurors during voir dire to determine if they harbored bias
against gay people did not amount to an abuse of discretion and that the proposed evidence was
irrelevant, where trial judge had believed such questions would “unnecessarily call attention to [the
defendant’s] effeminate mannerisms”); State v. Lambert, 528 A.2d 890, 892 (Me. 1987) (finding no
abuse of discretion where “questions concerning a personal involvement with sexual abuse, presumably
including sexual abuse by a homosexual, were asked of the potential jurors in [a] confidential
questionnaire,” and “additional questions asked [to jurors en masse] did not contain a potential for such
undue embarrassment to a potential juror as to require individual voir dire”).
54. State v. Dishon, 687 A.2d 1074, 1082, 297 N.J. Super. 254, 269 (N.J. Super. Ct. App. Div.
1997).
55. State v. Dishon, 687 A.2d 1074, 1082, 297 N.J. Super. 254, 269–70 (N.J. Super. Ct. App. Div.
1997).
56. See People v. Viggiani, 105 Misc. 2d 210, 214, 431 N.Y.S.2d 979, 982 (N.Y. Crim. Ct. N.Y.
County 1980) (“To say that this entire group of citizens who may be otherwise qualified, would be
unable to sit as impartial jurors in this case, merely because of their homosexuality is tantamount to a
denial of equal protection under the United States Constitution.”).
57. People v. Garcia, 92 Cal. Rptr. 2d 339, 343–44, 77 Cal. App. 4th 1269, 1275–77 (Cal. Ct. App.
2000).
question any government action that is backed by stereotypical beliefs about the inferiority of
a class of people.
If you believe homophobic or transphobic bias played a role in the selection of your jury,
you may be able to convince a court to vacate or reverse the judgment against you, or to set
aside your sentence.
E. Your Right to Control Your Gender Presentation While in Prison
Transgender prisoners often have difficulty expressing their gender while in prison.
These difficulties range from denial of access to gender-related medical care to denial of
access to personal effects like clothes and cosmetics.
1. Access to Gender-Related Medical Care
Many transgender prisoners seek access to gender-related medical care while in prison.
The most common requests are for hormone treatments and gender reassignment surgery.
For general information about your right to adequate medical care while in prison, see
Chapter 23 of the JLM.
(a) Access to Gender Reassignment Surgery
Courts generally do not require a prison to pay for or conduct any surgery, either genital
or non-genital, related to a prisoner’s gender identity or transition.58 Some states have even
gone so far as to legislate a prohibition on prisoner sex-reassignment surgery.59 But, if you
experience health complications as a result of a prior gender-related surgery, you are entitled
to the medical care necessary to treat those complications.
(b) Access to Hormonal Treatment
The federal Bureau of Prisons’ medical policy is to “maintain a transsexual [sic] inmate
at the level of change existing upon admission.” 60 Nevertheless, many federal and state
prisons have refused to provide hormone treatment to transgender prisoners, even though
the cost of hormone treatment does not necessarily exceed the costs of other routine medical
treatments administered to the general prison population.61 In addition, prisons may deny
hormone treatments if you do not have a doctor’s prescription to show that you were
previously taking hormones.
If you were undergoing hormone therapy at the time you were incarcerated, and prison
officials deny you access to the treatment while you are in prison, you can sue those officials
for violation of your constitutional right to medical care. As you will see in the following
58. Darren Rosenblum, “Trapped” in Sing Sing: Transgendered Prisoners Caught in the Gender
Binarism, 6 Mich. J. Gender & L. 499, 543 (2000). See also Lewis v. Berg, No. 9:00-CV-1433, 2005 U.S.
Dist. LEXIS 39571, at *22, *30 (N.D.N.Y. Mar. 10, 2005) (unpublished) (finding it reasonable for prison
grievance committee to deny prisoner’s request for gender reassignment and cosmetic surgery and refer
her back to medical personnel for other appropriate treatment).
59. See Inmate Sex Change Prevention Act, Wis. Stat. § 302.386(5m) (2007).
60. The Bureau’s policy reads as follows:
It is the policy of the [Bureau of Prisons] to maintain a transsexual inmate at the level of
change existing upon admission. Should the Clinical Director determine that either
progressive or regressive treatment changes are indicated, the Medical Director must approve
these prior to implementation. The use of hormones to maintain secondary sexual
characteristics may be continued at approximately the same levels as prior to incarceration
(with appropriate documentation from community physicians/hospitals) and with the Medical
Director’s approval.
Farmer v. Moritsugu, 163 F.3d 610, 611–12 (D.C. Cir. 1998) (citing U.S. Department of Justice, Federal
Bureau of Prisons, Program Statement 6000.04, Health Services Manual, ch. 15, § 4 (1994)).
61. Darren Rosenblum, “Trapped” in Sing Sing: Transgendered Prisoners Caught in the Gender
Binarism, 6 Mich. J. Gender & L. 499, 546 (2000).
subsections, the issue of whether a transgender person is entitled to hormone therapy while
in prison has been litigated extensively. In most cases, courts have found for the prison
officials, but recently several courts have required prisons to provide transgender prisoners
with hormonal treatment as long as they were undergoing such treatment before entering
prison.62
(i) Serious Medical Need and Deliberate Indifference
The Supreme Court established in Estelle v. Gamble that “deliberate indifference” to a
prisoner’s “serious medical needs” violates that prisoner’s Eighth Amendment right to be free
from cruel and unusual punishment.63
Circuit courts have consistently considered “transsexualism,” also known in this context
as “gender dysphoria” or “gender identity disorder,” 64 a “serious medical need” for the
purpose of the Estelle standard.65 Many federal courts have held that, as such, transgender
prisoners are constitutionally entitled to some type of medical treatment for their condition.66
Nevertheless, most of these courts have held transgender prisoners do not have a
constitutional right to any particular type of treatment, so long as they receive some kind of
treatment (which can be psychological counseling), and prison officials do not violate the
Eighth Amendment when, in the exercise of their professional judgment, they refuse to
implement a prisoner’s requested course of treatment.67 Accordingly, most courts that have
62. See Phillips v. Mich. Dep’t of Corr., 731 F. Supp. 792, 800–01 (W.D. Mich. 1990) (granting
transgender prisoner’s request for a preliminary injunction requiring prison officials to provide her
with estrogen therapy where she had taken estrogen for the 16 years prior to incarceration); Gammett
v. Idaho State Bd. of Corr., No. CV05-257-S-MHW, 2007 U.S. Dist. LEXIS 55564 (D. Idaho July 27,
2007) (unpublished) (granting prisoner’s request for a preliminary injunction to provide estrogen
therapy but only after self-castration required the provision of some type of hormone). Because many
prisons refuse to prescribe hormones to prisoners who do not have a previous doctor’s prescription,
prisoners who had been getting hormones through informal means may have an additional challenge in
bringing suit.
63. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 260 (1976). For
general information about your right to adequate medical care while in prison, see Chapter 23 of the
JLM.
64. Activists disagree as to whether characterizing transgender identities as medical conditions
is strategically wise. On the one hand, it sometimes provides transgender people in and out of prison
with access to gender-related medical treatment; on the other hand, these diagnoses often regulate
gender expressions and may limit the ability of transgender people who are unable or choose not to
access gender-related medical care to have their gender recognized. See, e.g., Dean Spade, Resisting
Medicine, Re/modeling Gender, 18 Berkeley Women's L.J. 15 (2003).
65. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000) (finding that inmate who
claimed her constitutional rights were violated because she was denied estrogen treatments did have a
serious medical need as a transsexual); White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988) (finding that
“transsexualism is a very complex medical and psychological problem” that constitutes a serious
medical need); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (finding a transgender
prisoner who is entitled to some type of medical care does have a serious medical need); Kosilek v.
Maloney, 221 F. Supp. 2d 156, 162 (D. Mass. 2002) (holding plaintiff ’s transgender healthcare was a
serious medical need and prison officials were required to provide treatment, including psychotherapy
with a professional experienced in treating gender identity disorder; further holding this treatment
could potentially include hormone therapy or gender reassignment surgery). But see Long v. Nix, 86
F.3d 761, 765 n.3 (8th Cir. 1996) (noting that court’s holding in White that transgenderism is a “serious
medical need” may be in doubt in light of Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed.
2d 811 (1994)).
66 . See, e.g., Meriwether v. Faulker, 821 F.2d 408, 413 (7th Cir. 1987) (holding that a
transgender prisoner is entitled to some type of medical treatment but has no constitutional right to
any one particular type of treatment where another form of treatment is made available).
67. See De’Lonta v. Angelone, 330 F.3d 630, 635 (4th Cir. 2003) (finding prisoner with gender
identify disorder was entitled to treatment for compulsion to self-mutilate after her hormone treatment
was stopped); Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996) (holding a prison official was not
considered the question have denied transgendered prisoners’ requests for hormonal
treatment while still upholding their right to medical care.68
Several more recent federal court decisions, however, suggest that courts are beginning
to carve out a limited exception and recognize circumstances in which the provision of
hormonal therapy by prisons should be mandatory. In Phillips v. Michigan Department of
Corrections, for example, a Michigan federal court granted a preliminary injunction directing
deliberately indifferent for choosing a different course of treatment than the hormone therapy
recommended by the prisoner’s expert where other types of treatment were offered and the prisoner
failed to cooperate); White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988) (reversing grant of summary
judgment to prisoner after finding material issues of fact as to whether prison officials who denied
prisoner’s request for female hormones were deliberately indifferent to prisoner’s medical needs);
Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (holding a transgender prisoner is entitled to
some type of medical treatment but has no constitutional right to any one particular type of treatment
where another form of treatment is made available); Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir.
1986) (holding that although prison officials must provide some treatment such as psychological
counseling to address the medical needs of transgender prisoners, the law does not require prison
officials to administer estrogen or provide any other particular treatment); Kosilek v. Maloney, 221 F.
Supp. 2d 156, 162 (D. Mass. 2002) (holding plaintiff ’s transgender healthcare was a serious medical
need and prison officials were required to provide treatment, including psychotherapy with a
professional experienced in treating gender identity disorder; further holding this treatment could
potentially include hormone therapy or gender reassignment surgery); Madera v. Corr. Med. Sys., No.
90-1657, 1990 U.S. Dist. LEXIS 11878, at *10 (E.D. Pa. Sept. 5, 1990) (unpublished) (“[T]here is no
absolute constitutional right to hormonal treatments for a transsexual any more than there is for any
other specific therapy requested by a prisoner.”); Farmer v. Carlson, 685 F. Supp. 1335, 1340 (M.D. Pa.
1988) (finding denial of plaintiff’s estrogen medication did not stem from a deliberate indifference to
her medical needs but instead resulted from an informed medical opinion, and granting summary
judgment to prison officials); Lamb v. Mascher, 633 F. Supp. 351, 353 (D. Kan. 1986) (granting
summary judgment for defendants who provided psychological treatment to a transgender prisoner but
refused to provide hormones, stating, “the key question in this case is whether defendants have
provided plaintiff with some type of treatment, regardless of whether it is what plaintiff desires”). The
courts’ refusal to recognize a specific right to hormone therapy, and the recognition instead of a broader
right to medical care, has on at least one occasion prevented prison officials from avoiding liability by
claiming qualified immunity. In a Ninth Circuit case, prison officials sued by a prisoner whose
hormonal therapy they had terminated argued that because prisoners suffering from gender dysphoria
have no clearly established right to female hormone therapy, the officers were entitled to qualified
immunity. The Ninth Circuit rejected the officials’ claim, holding that “with respect to prisoner medical
claims, the right at issue should be defined as a prisoner’s Eighth Amendment right ‘to officials who are
not deliberately indifferent to serious medical needs,’” and not as a right to something more specific.
South v. Gomez, decision reported at 211 F.3d 1275 (9th Cir. 2000), opinion reported in full at No. 99-
15976, 2000 U.S. App. LEXIS 3200, at *4 (9th Cir. Feb. 25, 2000) (unpublished). See Chapter 16 of the
JLM for an explanation of qualified immunity and other defenses to § 1983 suits.
68. In Maggert v. Hanks, 131 F.3d 670, 671–72 (7th Cir. 1997), a court recognized what these
other courts have not: that, at least sometimes, no treatment other than hormone therapy will be
effective for transsexual prisoners. Nevertheless, the Maggert court held prisons should not be required
to provide hormonal therapy—not because other treatments would work, but because such therapy
exceeds the minimal treatment prisons are required to provide. Though a prison is required by the 8th
Amendment to provide a prisoner with medical care, it need not provide care as good as the prisoner
would receive if he were a free person; prisoners are entitled only to minimum care. Maggert v. Hanks,
131 F.3d 670, 671–72 (7th Cir. 1997) (citing Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 1000,
117 L. Ed. 2d 156, 167 (1992)). The Maggert court held that because neither public nor private health
insurance programs typically pay for sex reassignment, it would be inaccessible to most transgender
prisoners even if they were not in prison. “Making the treatment a constitutional duty of prisons would
give prisoners a degree of medical care that they could not obtain if they obeyed the law. ... [This would
lead to] transsexuals committing crimes because it is the only route to obtaining a cure.” Maggert v.
Hanks, 131 F.3d 670, 672 (7th Cir. 1997). See also Praylor v. Tex. Dep’t of Criminal Justice, 430 F.3d
1208, 1209 (5th Cir. 2005) (per curiam) (assuming, without deciding, that transsexualism is a serious
medical need but determining that denial of hormone therapy was not deliberate indifference under the
circumstances).
prison officials to provide estrogen therapy to a thirty-four-year-old transgender woman. The
prisoner had been taking estrogen since she was a teenager and had been experiencing
physical transformation and severe depression since being prevented from continuing her
estrogen treatment in prison.69 The Phillips court held that denying hormonal treatment in
this case caused “irreparable harm” and violated the Eighth Amendment:
It is one thing to fail to provide an inmate with care that would
improve his or her medical state, such as refusing sex reassignment
surgery or to operate on a long-endured cyst. Taking measures which
actually reverse the effects of years of healing medical treatment ... is
measurably worse, making the cruel and unusual determination
much easier.70
A recent New York district court case is especially encouraging, as it found a prison
denying a transgendered prisoner hormone therapy violated the Eighth Amendment. In
Brooks v. Berg, the plaintiff only began to identify himself officially as a transgendered
person while in prison and so was not using hormonal therapy when he entered prison. The
court therefore did away with the distinction, which centers on whether the prisoner was
using hormonal therapy at the time of entry into prison, used by other courts.71
Despite these encouraging developments in a few federal courts, courts in many other
jurisdictions have continued to deny claims by transgender prisoners for hormonal
treatment.72 Prisoners who are unable to demonstrate that they previously received hormone
treatment before becoming incarcerated face a particularly uphill battle. For example, in
Brown v. Zavaras, the court held that estrogen treatment specifically was not necessary
69. Phillips v. Mich. Dep’t of Corr., 731 F. Supp. 792 (W.D. Mich. 1990).
70. Phillips v. Mich. Dep’t of Corr., 731 F. Supp. 792, 800 (W.D. Mich. 1990); see also De’Lonta v.
Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (holding that termination of a transgender prisoner’s
hormone treatment, which led to her attempts to mutilate herself, could constitute deliberate
indifference); South v. Gomez, decision reported at 211 F.3d 1275 (9th Cir. 2000), opinion reported in
full at No. 99-15976, 2000 U.S. App. LEXIS 3200, at *5–6 (9th Cir. Feb. 25, 2000) (unpublished)
(distinguishing between failing to provide hormonal therapy in the first instance and abruptly
terminating an existing prescription; the court considered the latter context to be critically different
and “far narrower”); Wolfe v. Horn, 130 F. Supp. 2d 648, 653 (E.D. Pa. 2001) (ruling that where a
prison doctor discontinued a patient’s hormone treatment that she had been receiving for almost a
year, there was “at least a fact question as to whether each of the defendants was deliberately
indifferent to treating [the plaintiff’s] gender identity disorder”). The Wolfe court found that, while it
may be defensible for a prison to reject demands for hormonal therapy by transgender prisoners who
did not take hormones outside of the prison setting, courts have found that the case is different when
prison officials terminate medical treatment that was previously recommended and administered by a
medical professional.
71. Brooks v. Berg, 270 F. Supp. 2d 302, 312 (N.D.N.Y. 2003) (finding an 8th Amendment
violation and granting prisoner permission to begin hormonal therapy while in prison, stating that
“prison officials are ... obliged to determine whether Plaintiff has a serious medical need and, if so, to
provide him with at least some treatment. Prison officials cannot deny transsexual inmates all medical
treatment simply by referring to a prison policy which makes a seemingly arbitrary distinction between
inmates who were and were not diagnosed with GID prior to incarceration”). Defendants also admitted
that the New York Department of Correctional Services’ policy did not prevent a prisoner who first
manifested Gender Dysphoria while incarcerated from potentially receiving hormone replacement
treatments.
72. See, e.g., Praylor v. Tex. Dep’t of Criminal Justice, 430 F.3d 1208, 1209 (5th Cir. 2005)
(holding that denial of hormone therapy and sex change operation does not constitute deliberate
indifference when the prison’s medical director found no medical necessity for such treatment and the
prison was unable to perform a sex change operation); Farmer v. Moritsugu, 163 F.3d 610, 615 (D.C.
Cir. 1998) (denying prisoner’s claim because medical director complied with Bureau’s constitutional
medical policy); Maggert v. Hanks, 131 F.3d 670, 672 (7th Cir. 1997) (holding that prisons are not
required to provide hormone therapy).
because the plaintiff had not received such treatment prior to incarceration.73 Nevertheless,
receiving hormone therapy prior to incarceration does not guarantee access to similar
treatment while incarcerated.74 Recent cases indicate that the original determination made
by prison medical personnel, rather than prior treatment history, will be given the greatest
weight by the courts.75
2. Access to Personal Items Associated with Gender Identity
Clothing, cosmetics, jewelry, and personal care products are often significant components
of a person’s gender presentation. Prisons vary as to whether they permit prisoners to access
the clothing of their choice and other personal items.76 Prisoners have, under Section 1983,
challenged prison policies that deny them access to certain kinds of clothing and products, as
well as specific refusals of prison staff to provide them with such property. In both situations,
prisoners allege that the prison policies and refusals violate their constitutional rights. These
challenges have been largely unsuccessful, however, because courts show significant
deference to prison officials’ decisions about how to oversee the incidents of daily life in
prison.
Claims under the First Amendment generally fail in the face of arguments by prisons
that restrictions on dress, jewelry, and makeup are justified by legitimate penological
interests. 77 Several courts have noted that such deprivations are simply not of a
constitutional nature.78
73. Brown v. Zavaras, 63 F.3d 967, 970 n.2 (10th Cir. 1995).
74. See, e.g., Stevens v. Williams, No. CV-05-1790-ST, 2008 WL 916991, at *12–13 (D. Or. Mar.
27, 2008) (unpublished) (finding that prisoner, who had received hormone therapy in the past, had
previously and unsuccessfully litigated his denial of continued hormone therapy while in prison and,
therefore, was barred from further attempts to use the courts to secure treatment); Scribner v.
Surapaneni, No. 1:05-CV-642, 2006 WL 3761976, at *5 (E.D. Tex. Dec. 21, 2006) (unpublished) (holding
that despite prisoner’s prior hormone therapy treatment, including treatment while incarcerated, he
was not entitled to continued treatment after treating physician found sex-reassignment surgery highly
unlikely and prisoner’s age increased concerns about the negative side effects of continued treatment).
75. See, e.g., Praylor v. Tex. Dep’t of Criminal Justice, 430 F.3d 1208, 1209 (5th Cir. 2005)
(deferring to treating physician’s recommendations).
76. See, e.g., Tates v. Blanas, No. CIV S-00-2539, 2003 U.S. Dist. LEXIS 26029, at *31 (E.D. Cal.
Mar. 11, 2003) (unpublished) (permitting a transgender prisoner, who would otherwise suffer
psychological harm, to wear a bra while requiring otherwise all male clothing); Lucrecia v. Samples,
No. C-93-3651-VRW, 1995 U.S. Dist. LEXIS 15607, at *1–2, *15–16 (N.D. Cal. Oct. 16, 1995)
(unpublished) (noting that transgender prisoner was permitted access to “female clothing and
amenities” in one prison, but denying relief for second facility’s refusal of permission to wear female
undergarments because of significant penological interests and lack of demonstration that wearing the
female undergarments was a medical necessity).
77. See, e.g., Star v. Gramley, 815 F. Supp. 276, 278–79 (C.D. Ill. 1993) (holding that restrictions
on clothing prisoners can wear are reasonably related to a legitimate penological interest and hence do
not violate the 1st Amendment; and permitting denial of permission to prisoner to wear women’s
makeup and apparel on the ground that the prisoner would be more vulnerable to attack if he dressed
that way); Lamb v. Maschner, 633 F. Supp. 351, 353 (D. Kan. 1986) (holding that, in denying request
by transgender prisoner for cosmetics and female clothing, “prison authorities must have the discretion
to decide what clothing will be tolerated in a male prison”); Ahkeen v. Parker, No.
02A01-9812-CV-00349, 2000 Tenn. App. LEXIS 14, at *25 (Tenn. Ct. App. Jan. 10, 2000) (unpublished)
(upholding prison policy denying men the right to wear earrings, which was challenged on equal
protection grounds, because the policy discouraged transsexual dressing and therefore discouraged
sexual assaults); see also Claybrooks v. Tenn. Dep’t of Corr., No. 98-6271, 1999 U.S. App. LEXIS 15174,
at * 3 (6th Cir. July 6, 1999) (unpublished) (affirming lower court’s dismissal of transgender prisoner’s §
1983 claim for denial of female clothing, not on constitutional grounds, but on the grounds that the
Tennessee Department of Corrections is immune from suit in federal court under the 11th Amendment
because it is a state agency and the state has not waived immunity).
78. Remember that in order to bring a successful § 1983 claim, you must allege a violation of a
federal constitutional or statutory right. See Lamb v. Maschner, 633 F. Supp. 351, 353 (D. Kan. 1986)
As one court stated:
[B]ecause routine discomfort is part of the penalty that criminal
offenders pay for their offenses against society, only those
deprivations denying the minimal civilized measures of life’s
necessities are sufficiently grave to form the basis of an Eighth
Amendment violation. ... [C]osmetic products are not among the
minimal civilized measure of life’s necessities.79
Additionally, courts have held that different grooming regulations for male and female
prisoners do not trigger a prisoner’s equal protection rights.80
F. Your Right to Confidentiality Regarding Your Sexual Orientation or
Gender Identity
If you are an LGBT prisoner, you may not have disclosed your sexual orientation or
transgender status to fellow prisoners. The disclosure by a prison official of your sexual
orientation or gender identity could subject you to harassment or abuse by other officials or
fellow prisoners. If a prison official has told others that you are gay, lesbian, transgender, or
bisexual, you might have a claim under Section 1983 that the official violated your Eighth
Amendment right to be free from cruel and unusual punishment and/or your right to privacy
under the Fourteenth Amendment.
1. Disclosure of Sexual Orientation or Gender Identity as an Eighth
Amendment Violation
(a) Sexual Orientation
One case specifically addresses a prisoner’s Eighth Amendment right to be free from
disclosure of his or her sexual orientation. Thomas v. District of Columbia involved a
corrections officer at the Maximum Security Facility in Lorton, Virginia, who allegedly
sexually harassed a prisoner and spread rumors that the prisoner was gay and a “snitch.”81
As a result of these rumors, the prisoner claimed, he suffered emotional distress and feared
for his safety when confronted and threatened with bodily harm by other prisoners. The
prisoner sued the corrections officer under Section 1983, claiming the officer had violated his
Eighth Amendment rights, and the officer moved to dismiss the complaint.82
(finding itself “not convinced that a denial of female clothing and cosmetics is a constitutional
violation”); Ahkeen v. Parker, No. 02A01-9812-CV-00349, 2000 Tenn. App. LEXIS 14, at *22 (Tenn. Ct.
App. Jan. 10, 2000) (unpublished) (holding that confiscation of the prisoner’s earrings by prison officials
did not violate the prisoner’s privacy rights, as “loss of freedom of choice and privacy are inherent
incidents of confinement” (quoting Hudson v. Palmer, 468 U.S. 517 , 528, 104 S. Ct. 3194, 3201, 82 L.
Ed. 2d 393, 404 (1984))); Murray v. U.S. Bureau of Prisons, No. 95-5204, 1997 U.S. App. LEXIS 1716,
at *7–8 (6th Cir. Jan. 28, 1997) (unpublished) (holding that denial of access to hair and skin products
that transgender prisoner claimed were necessary for her to maintain a feminine appearance did not
state a constitutional claim).
79. Murray v. U.S. Bureau of Prisons, No. 95-5204, 1997 U.S. App. LEXIS 1716, at *7–8 (6th Cir.
Jan. 28, 1997) (unpublished) (quoting Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 1000, 117 L.
Ed. 2d 156, 167 (1992)).
80. See, e.g., Hill v. Estelle, 537 F.2d 214, 215–16 (5th Cir. 1976) (holding that difference in
application of state prison regulations, in failing to enforce hair length regulations against female
prisoners, impinged on no fundamental right, created no suspect classification, and did not constitute
violation of equal protection); Poe v. Werner, 386 F. Supp. 1014, 1019 (M.D. Pa. 1974) (holding that
state prison hair length regulation does not violate the Equal Protection Clause, even though it does
not restrict female hair length or style).
81. Thomas v. District of Columbia, 887 F. Supp. 1, 3 (D.D.C. 1995). See also Montero v. Crusie,
153 F. Supp. 2d 368, 378 (S.D.N.Y. 2001) (denying summary judgment for correctional officers who
spread rumor that prisoner was gay and tried to incite fight between him and other prisoners).
82. Thomas v. District of Columbia, 887 F. Supp. 1, 2–3 (D.D.C. 1995).
The U.S. District Court for the District of Columbia found that the prisoner had stated a
valid Eighth Amendment claim against the officer.83 The court held that the officer’s “alleged
conduct, the physical harm with which [the prisoner] was threatened, and the psychic
injuries that are alleged to have resulted from such unnecessary, cruel, and outrageous
conduct, are sufficiently harmful to make out an Eighth Amendment excessive force claim.”84
The rumors about the prisoner’s homosexuality were just one part of the abuse the officer
allegedly visited on the prisoner, and it is impossible to know whether in the absence of the
other allegations the court would have reached the same conclusion. However, there is
language in Thomas that, when read in the context of other Section 1983 cases, could be
useful to prisoners bringing suits against prison officials who have revealed their sexual
orientation or gender identity to other prisoners.
(b) Gender Identity
If you are a transgender prisoner, you might have a stronger desire for privacy when
bathing and changing clothes than traditionally gendered prisoners. If this is not provided,
you may bring a claim against the prison for violating your privacy and/or Eighth
Amendment rights. The court will balance your interests against the prison’s interest in
security and will usually find in favor of the prison.85
2. Disclosure of Sexual Orientation or Gender Identity as
Fourteenth Amendment Violation
The Supreme Court has held that the Fourteenth Amendment to the U.S. Constitution
guarantees the right to privacy regarding disclosure of certain personal information.86 If a
prison official discloses private information about you, you could be subject to harassment or
abuse by other officials or fellow prisoners. If this has happened to you, you might be able to
83. Thomas v. District of Columbia, 887 F. Supp. 1, 5–6 (D.D.C. 1995) (denying the defendant’s
motion to dismiss and allowing the case to go to trial).
84. Thomas v. District of Columbia, 887 F. Supp. 1, 4 (D.D.C. 1995).
85. See Hudson v. Palmer, 468 U.S. 517, 525–27, 104 S. Ct. 3194, 3200, 82 L. Ed. 2d 393, 402–03
(1984) (holding that a prisoner’s expectation of privacy always yields to what must be considered the
paramount interest in institutional security). See, e.g., Pollock v. Brigano, 720 N.E.2d 571, 576, 130
Ohio App. 3d 505, 511–12 (Ohio App. 1998) (relying on Hudson v. Palmer to hold that “privacy
concerns” of transgender prisoner who was forced to shower, change clothes, and use the toilet in front
of other prisoners “[did not] rise above the paramount need for institutional security for the other
prisoners and the staff” of the prison and that claimed “lack of privacy do[es] not constitute cruel and
unusual punishment under the 8th Amendment, because prison policy” was not without penological
justification).
86. See, e.g., Whalen v. Roe, 429 U.S. 589, 599–600, 97 S. Ct. 869, 876–77, 51 L. Ed. 2d 64, 73–74
(1977) (holding a New York statute requiring the state be provided with a copy of prescriptions for
certain drugs violated the constitutional right to privacy of those prescribing the drugs); Bloch v. Ribar,
156 F.3d 673, 685 (6th Cir. 1998) (“[P]ublicly revealing information regarding [sexuality and choices
about sex] exposes an aspect of our lives that we regard as highly personal and private.”); Eastwood v.
Dep’t. of Corr., 846 F.2d 627, 631 (10th Cir. 1988) (finding the right to privacy is “implicated when an
individual is forced to disclose information regarding personal sexual matters,” in this case her sexual
history, requested by plaintiff’s former employer after she complained of assault); Thorne v. City of El
Segundo, 726 F.2d 459, 468 (9th Cir. 1983) (“The interests [plaintiff] raises in the privacy of her sexual
activities are within the zone protected by the constitution.”). The cases involving prisoners’ rights to
privacy largely pertain to disclosure of HIV status. See, e.g., Powell v. Schriver, 175 F.3d 107, 110–13
(2d Cir. 1999) (finding the gratuitous disclosure of an prisoner’s confidential medical information as
humor or gossip is not reasonably related to a legitimate penological interest and therefore violates
prisoner’s constitutional right to privacy); Nolley v. County of Erie, 776 F. Supp. 715, 728–36 (W.D.N.Y.
1991) (finding that segregation violated constitutional and statutory rights to privacy because
prisoner’s HIV status was disclosed); Doe v. Coughlin, 697 F. Supp. 1234, 1240–41 (N.D.N.Y. 1988)
(holding the involuntary segregation of prisoners with HIV and/or AIDS from other prisoners violates
the right to privacy).
bring a claim under Section 1983 against the official who made the disclosure for violating
your constitutional right to privacy.
(a) Privacy Regarding Gender Identity
The Second Circuit has found a person’s transgender status is among those
constitutionally protected personal matters and that a prison official may not violate a
prisoner’s right to privacy through disclosure of gender identity unless that disclosure is
“reasonably related to legitimate penological interests.”87
Because it is so hard to imagine a situation in which a prison could claim a legitimate
interest in “outing” an LGBT prisoner, you might succeed if you bring a Section 1983 claim
arguing a prison official who told others you were LGBT violated your right to privacy. In
Powell v. Schriver, a transgender prisoner charged that a corrections officer had violated her
constitutional right to privacy when he told another corrections officer in the presence of
other prison staff and prisoners that she had undergone gender reassignment surgery. The
Second Circuit held the corrections officer’s “gratuitous disclosure” of the prisoner’s
“confidential medical information as humor or gossip ... [was] not reasonably related to a
legitimate penological interest” and therefore violated her right to privacy.88
(b) Privacy Regarding Sexual Orientation
Importantly, at least one court has held that sexual orientation is one of those “personal
matters” protected by the Fourteenth Amendment. 89 There is also at least one case
containing such a privacy claim brought by a prisoner specifically related to sexual
orientation,90 though it is important to recognize that the novelty of your claim makes it
somewhat unlikely to succeed. Keep in mind, however, that in Lawrence v. Texas, 91 the
Supreme Court held that homosexual activity was within the zone of privacy protected by the
Constitution. After Lawrence, a privacy claim might be much stronger.
3. Potential Obstacles to Suit
It is important to remember that the Prison Litigation Reform Act (“PLRA”) prohibits
actions for emotional distress without related physical injury (that rises above a de minimis,
or minimal, level), so a prison official’s violation of your right to confidentiality would have to
87. Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999).
88. Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999) (emphasis added). Despite this finding,
the Powell court ultimately found for the corrections officer because that officer was protected by
qualified immunity. Qualified immunity shields government officials from liability for damages on
account of their performance of discretionary official functions “insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have known.”
Powell v. Shriver, 175 F.3d 107, 113 (2d Cir. 1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982)). The Powell court found that the right of a prisoner
to maintain the privacy of her “transsexualism” was not clearly established at the time the defendant
in Powell made the disclosure, so he could not be held liable. Since the Powell case was decided,
however, a court (at least one within the Second Circuit) would likely find that the right to privacy
about one’s gender identity is “clearly established.”
89. See Sterling v. Borough of Minersville, 232 F.3d 190, 196 (3d Cir. 2000) (holding that the
disclosure—or even threat of disclosure—of a person’s sexual orientation by a state actor constitutes a
violation of the person’s constitutional right to privacy because “it is difficult to imagine a more private
matter than one’s sexuality and a less likely probability that the government would have a legitimate
interest in disclosure of sexual identity”).
90. See Johnson v. Riggs, No. 03-C-219, 2005 U.S. Dist. LEXIS 44428, at *36 (E.D. Wis. Sept. 15,
2005) (recognizing Sterling’s right to privacy in one’s sexual orientation in the prison context and
denying any sort of legitimate penological purpose in disclosing this information without prisoner’s
consent).
have created a risk of serious harm to be actionable under the U.S. Constitution. For more
information, review JLM Chapter 14 on the PLRA.
If this rule prevents you from bringing suit under the U.S. Constitution, you may still
have a state law remedy available to you. Many states recognize the tort of invasion of
privacy. If the state in which you are incarcerated recognizes this tort, and has waived
Eleventh Amendment sovereign immunity, you can sue for disclosure of your sexual
orientation or gender identity under state law.92
G. Assault and Harassment
1. Assault93
LGBT prisoners are often more vulnerable than other prisoners to assault (including
sexual assault), at the hands of both fellow prisoners and guards, and to illegal searches by
prison guards. If you have experienced such assault, you may be able to bring a Section 1983
claim for violation of your Eighth Amendment rights against prison officials either for
assaulting you or for failing to protect you from assault.
You should read Chapter 14, “The Prison Litigation Reform Act, Chapter 16: Using 42
U.S.C. 1983 and 28 U.S.C. 1331 to Obtain Relief From Violations of Federal Law,” and
Chapter 24 ”Your Right to Be Free From Assault” of the JLM if you are considering bringing
a suit against prison officials for assault.
(a) Assault by Prison Employees
The Eighth Amendment protects you from punishment that is cruel or unusual.94 Courts
have been reluctant to find constitutional violations when prison officials use force to
maintain or restore security within the prison.95 However, if the force has no identifiable
purpose and is simply meant to harm the prisoner, an official may be found to have used
excessive force.
To show that an assault by a prison official violates the Eighth Amendment, you must
prove that (1) the prison official acted “maliciously and sadistically,” and (2) the injury you
suffered was sufficiently severe (this means the injury is not de minimis).96 This standard
was explained by the Supreme Court in Hudson v. McMillian, and is known as the Hudson
standard.
To determine whether an official acted maliciously and sadistically, courts will consider
factors like:
(1) The extent of the injury suffered;97
(2) The need for the official to have used force under the circumstances;
(3) The relationship between the need to use force and the amount of force that was
actually used;
(4) The size of the threat as a prison official would reasonably perceive it; and
(5) Efforts made by prison guards to lessen the severity of a serious use of force.98
92. For more information on state tort actions, see Chapter 17 of the JLM.
93. See Chapter 24 of the JLM for information on assault in prisons generally.
95. See Hudson v. McMillian, 503 U.S. 1, 6–7, 112 S. Ct. 995, 998–99, 117 L. Ed. 2d 156, 166 (1992).
97. While the injury does not have to be “significant” to prevail on an 8th Amendment claim, the
extent of the injury “may suggest ‘whether the use of force could plausibly have been thought necessary’ in
a particular situation ‘or instead evinced such wantonness with respect to the unjustified infliction of
harm as is tantamount to a knowing willingness that it occur.’” Hudson v. McMillian, 503 U.S. 1, 7, 112 S.
Ct. 995, 999, 117 L. Ed. 2d 156, 166 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 321, 106 S. Ct. 1078,
1085, 89 L. Ed. 2d 251, 261–62 (1986)).
Under the Hudson standard, you do not need to show you suffered serious injury, but you
must have suffered some physical injury. The extent of injury is one of the factors a court will
consider in determining whether the use of force violated the Eighth Amendment’s ban on
cruel and unusual punishment. Also, the PLRA prohibits actions for emotional distress
without some accompanying physical injury.99
(b) Assault by Other Prisoners
If you have been attacked or feel at risk of attack by fellow prisoners, you may bring suit
under Section 1983 to claim that your Eighth Amendment right to be free from cruel and
unusual punishment has been violated by prison officials who failed to protect you.100
To show that a prison official violated the Eighth Amendment by failing to protect you
from assault by other prisoners, you must prove that (1) the prison official exhibited
“deliberate indifference” to your health or safety by disregarding an excessive risk to it, and
(2) the injury you suffered was severe.101
Deliberate indifference is a standard that is harder to meet than “negligence,” but not as
difficult as the standard of “malicious and sadistic intent.”102 Generally, if prison officials
were negligent, it would mean that they should have known of a danger or failed to take the
precautions a reasonable person would have taken. If prison officials were acting with
malicious and sadistic intent, it would mean that they acted with the intention of causing
you harm. Deliberate indifference is in between those two standards; generally, it means
that the prison officials were aware of a substantial risk to your safety and ignored it.
The leading case for Section 1983 claims involving assault and deliberate indifference is
Farmer v. Brennan, in which a transgender prisoner brought a Section 1983 suit based on
the failure of prison officials to protect her from attacks from other prisoners because of her
feminine appearance.103 The Supreme Court defined “deliberate indifference” as the failure of
prison officials to act when they know of a “substantial risk of serious harm.”104 The Court
went on to say that an “inference from circumstantial evidence” could be used to demonstrate
that prison officials had knowledge of a risk.105 Circumstantial evidence is evidence that
tends to show something as being true. This means that a prisoner can present evidence
showing that it is likely that the prison officials knew of the risk, even if there is no direct
evidence (such as statements from the officials or documented complaints from the prisoner)
that shows the risk.
One important thing to keep in mind is the “inference from circumstantial evidence” does
not mean an official can be held responsible for something he should have known but did not
know. Rather, it means the circumstantial evidence should demonstrate the official actually
knew of something he denies knowing.
99. The Prison Litigation Reform Act (PLRA) also requires that you exhaust administrative
options before bringing an action under § 1983. See Chapter 14 of the JLM for more information on the
PLRA and its requirements.
100. See Farmer v. Brennan, 511 U.S. 825, 826, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811, 837
(1994) (holding unanimously that prison officials can be liable for damages if they are deliberately
indifferent in failing to protect prisoners from harm caused by other prisoners).
(holding a prison official cannot be liable under the 8th Amendment for denying a prisoner humane
conditions of confinement unless the official knows of and disregards an excessive risk to prisoner’s
health or safety; the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and must draw that inference).
103. Famer v. Brennan, 511 U.S. 825, 831, 114 S. Ct. 1970, 1975, 128 L. Ed. 2d 811, 821 (1994).
Under Farmer, you do not have to wait until you have actually been attacked to have a
viable Section 1983 claim of deliberate indifference. If prison officials did not protect you
from a mere risk of harm, they may still have deprived you of your rights under the Eighth
Amendment. Your status as gay, lesbian, bisexual, or transgendered may make it easier for
you to prove you are at risk of harm. If prison officials know of your status, then they know
you are at a higher risk for harm. For example, in Greene v. Bowles, the Sixth Circuit
recognized an Eight Amendment deliberate indifference claim where the warden admitted
knowing that the plaintiff was placed in protective custody because she was transsexual and
that a “predatory inmate” was being housed in the same unit.106 The court held a vulnerable
(e.g. gay or transsexual) prisoner could prove prison officials knew of a substantial risk to his
safety by showing the officials knew of the prisoner’s vulnerable status and of the general
risk to his safety from other prisoners, even if they did not know of any specific danger.107
Although it may be easier to prove you are at risk if you are such a vulnerable prisoner, you
should still report any threats against you so that officials know about any specific problems
because there must be a substantial risk to actually prove deliberate indifference.108
In your complaint, you should ask for a temporary injunction while your case is pending.
An injunction is an order from a court making the prison officials take or not take a certain
action. In your case, you may seek an injunction to be immediately transferred into
protective custody while your claim is pending. Note, however, that for the court to grant
temporary injunctive relief you will have to show that you are likely to prevail, or win, in
your case. You should also be aware that, under the Prison Litigation Reform Act (“PLRA”),
any temporary injunction granted to you is likely to expire before your case is resolved.
Because the PLRA also bars prisoners from suing for emotional or mental distress
without an accompanying physical injury, and punishes prisoners who file multiple lawsuits
that courts deem “frivolous” or that fail to state a claim, you should be certain your claim is
one a court will recognize as valid. Be sure to review Chapter 14 of the JLM on the PLRA
and Chapter 16 of the JLM on Section 1983 suits.
(c) Sexual Assault
Sexual assault includes rape and unwanted physical contact of a sexual nature, like
fondling of breasts and/or genitals. Generally, bringing a Section 1983 suit for sexual assault
in prison requires the same elements of proof explained above for physical assaults.109 That
is, if a prison official sexually assaults you, you must show that the prison official acted
106. Greene v. Bowles 361 F.3d 290, 294 (6th Cir. 2004). Note that the plaintiff in Greene was
actually attacked and severely beaten by the other prisoner.
107. Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004) (“[A] prison official cannot ‘escape
liability ... by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did
not know that the complainant was especially likely to be assaulted by the specific prisoner who
eventually committed the assault.’” (quoting Farmer v. Brennan, 511 U.S. 825, 843, 114 S. Ct. 1970,
1982, 128 L. Ed. 2d 811, 829 (1994))). The court also noted that deliberate indifference can be shown
alternatively by proving that prison officials knew that a predatory prisoner presented a substantial
risk to a large class of prisoners without segregation or other protective measures.
108 . See Purvis v. Ponte, 929 F.2d 822, 825–26 (1st Cir. 1991) (per curiam) (stating 8th
Amendment was not violated when prisoner alleged general fear of “gay bashing” and suspicions that
homophobic cellmates threatened his physical safety, since he did not show likelihood that violence
would occur and officials had tried six different cellmates).
109. See Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (holding that there are 8th
Amendment limitations to imprisonment and that sexual abuse is unconstitutional); Hovater v. Robinson,
1 F.3d 1063, 1068 (10th Cir. 1993) (stating that “an inmate has a constitutional right to be secure in her
bodily integrity and free from attack by prison guards” (citing Alberti v. Klevenhagen, 790 F.2d 1220,
1224 (5th Cir. 1986))).
maliciously, and that you suffered harm. If another prisoner assaulted you, you need to show
prison officials acted with deliberate indifference and you suffered harm.110
In addition, 18 U.S.C. § 2243 criminalizes sexual intercourse or any type of sexual
contact between persons with “custodial, supervisory or disciplinary” authority and prisoners
in federal correctional facilities.111 Section 2241 makes it a felony to use or threaten force to
engage in sexual intercourse in a federal prison.112 Many states also have laws criminalizing
sexual contact between prison officials and prisoners. See Chapter 24 of the JLM for more
information about assaults.
2. Harassment
(a) Sexual Harassment
Sexual harassment is common in prisons, and LGBT prisoners are often even more
vulnerable to such harassment than are others.113 Federal courts have recognized that sexual
harassment of prisoners by prison staff can constitute a constitutional tort, violating
prisoners’ Eighth Amendment right to be free from cruel and unusual punishment. 114 A
constitutional tort is an action for damages that can be brought against a government or
individual defendants for violation of a constitutional right. A prisoner can state an Eighth
Amendment claim for sexual harassment only if the alleged harassment is so harmful that it
could be considered a departure from “the evolving standards of decency that mark the
progress of a maturing society,” and only if the defendant acted with intent to harm the
prisoner. 115 As explained below, claims by prisoners against prison staff for sexual
110. See, e.g., Johnson v. Johnson, 385 F.3d 503, 527 (5th Cir. 2004) (finding a deliberate
indifference claim where prison officials continued to house a gay prisoner in the general population
where he was gang raped and sold as a sexual slave for over 18 months); Taylor v. Mich. Dep’t of Corr.,
69 F.3d 76, 77, 84 (6th Cir. 1995) (holding that a warden who knows of a risk of physical and sexual
assault posed to a vulnerable prisoner and fails to take reasonable steps to protect against such abuse
may be found to have acted with deliberate indifference).
111. 18 U.S.C. § 2243 (2006).
112. 18 U.S.C. § 2241 (2006).
113. “In a questionnaire ... administered to eighty self-identified homosexual inmates, fifty-three
percent reported that they had been frequently victimized via ‘sexual innuendo, sexual harassment,
verbal and physical threats.’” James E. Robertson, Cruel and Unusual Punishment in United States
Prisons: Sexual Harassment Among Male Inmates, 36 Am. Crim. L. Rev. 1, 17 (1999) (quoting Wayne S.
Wooden and Jay Parker, Men Behind Bars 22 (1982)). The Wooden & Parker study also found white
prisoners were more likely to be sexually harassed than Latino or African-American ones.
114. See Daskalea v. District of Columbia, 227 F.3d 433, 441, 450 (D.C. Cir. 2000) (finding the
District of Columbia deliberately indifferent to a pattern of particularly heinous and widespread sexual
harassment and abuse of female prisoners, including forced stripteases); Schwenk v. Hartford, 204 F.3d
1187, 1196–97 (9th Cir. 2000) (holding that a pre-operative male-to-female transsexual inmate’s 8th
Amendment rights were violated by a guard’s attempted rape, which constituted sexual assault
offensive to human dignity); Boddie v. Schnieder, 105 F.3d 857, 860–61 (2d Cir. 1997) (noting that
sexual abuse by corrections officers could be an 8th Amendment violation, but ultimately holding that
the particular allegations of verbal harassment and bodily contact made by prisoner were not
sufficiently serious to be a violation); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (recognizing
sexual harassment as a constitutional claim where plaintiff alleges that the harassment objectively
caused physical or psychological pain and that officer acted with sufficiently culpable state of mind);
Johnson v. Phelan, 69 F.3d 144, 147 (7th Cir. 1995) (noting that “a prisoner has a remedy for deliberate
harassment, on account of sex, by guards of either sex”); Minifield v. Butikofer, 298 F. Supp. 2d 900,
904 (N.D. Cal. 2004) (dismissing plaintiff’s sexual harassment claim because, although the Ninth
Circuit has recognized that sexual harassment may constitute a claim for an 8th Amendment violation,
the court has specifically differentiated between sexual harassment that involves verbal abuse and that
which involves allegations of physical assault, finding only the latter to violate the Constitution). See
also James E. Robertson, Cruel and Unusual Punishment in United States Prisons: Sexual Harassment
Among Male Inmates, 36 Am. Crim L. Rev. 1, 19–23 (1999).
115. Thomas v. District of Columbia, 887 F. Supp. 1, 3–4 (D.D.C. 1995) (citing Hudson v.
harassment involving words alone are usually not successful in the courts. However, claims
against prison staff for sexual harassment that did involve repeated physical touching or
assault or that threatened the prisoner’s safety have been successful.116
The passage of the Prison Litigation Reform Act (“PLRA”) in 1996 made it much harder
for a prisoner to succeed in a claim of sexual harassment against prison staff. While the
PLRA does not explicitly state prisoners cannot sue for sexual harassment, it does say they
cannot recover damages “for mental or emotional injury ... without a prior showing of
physical injury.”117 Many courts have interpreted this to mean you cannot receive money
damages for sexual harassment unless you were physically hurt by the harasser.118 But,
other sorts of relief, like injunctions (where you ask the court to order someone to stop or
start some action other than the payment of money damages), may be available to you.119 For
this reason it is important to learn about the PLRA, particularly its physical injury
requirement, before filing your suit.120
(b) Verbal Harassment
Prisoners trying to sue based on verbal harassment face two obstacles: an interpretation
of the Eighth Amendment’s prohibition of cruel and unusual punishment exempting verbal
harassment and the PLRA’s physical injury requirement. Courts often find words alone, no
matter how abusive, do not violate the Eighth Amendment.121 So, claims by prisoners against
prison staff for harassment consisting only of words generally have not succeeded.122
McMillian, 503 U.S. 1, 8 (1992)).

116. Watson v. Jones, 980 F.2d 1165, 1165–66 (8th Cir. 1992) (finding a valid 8th Amendment
claim where correctional officer sexually harassed two prisoners on an almost daily basis for two
months by conducting deliberate examination of their genitalia and anuses); Webb v. Foreman, No. 93
Civ. 8579, 1996 U.S. Dist. LEXIS 15227, at *9–10 (S.D.N.Y. Oct. 16, 1996) (unpublished) (refusing to
hold that when a guard conducts a strip search that includes grabbing the prisoner’s genitals, the
conduct does not constitute an 8th Amendment claim as a matter of law); Thomas v. District of
Columbia, 887 F. Supp. 1, 4–5 (D.D.C. 1995) (finding a valid 8th Amendment claim where correctional
officer harassed prisoner and spread rumors that he was gay, thereby endangering him).
117. 42 U.S.C. § 1997e(e) (2006).
118. Cobb v. Kelly, No. 4:07CV108-P-A, 2007 WL 2159315, at *1 (N.D. Miss. July 26, 2007)
(unpublished) (finding PLRA’s physical injury requirement not met when plaintiff’s case manager
fondled his genitals); Smith v. Shady, No. 3:CV-05-2663, 2006 U.S. Dist. LEXIS 24754, at *5–6 (M.D.
Pa. Feb. 8, 2006) (unpublished) (finding PLRA’s physical injury requirement not met when correctional
officer held and fondled prisoner’s penis); Ashann-Ra v. Virginia, 112 F. Supp. 2d 559, 565–66 (W.D.
Va. 2000) (finding PLRA’s physical injury requirement not met when corrections officers viewed
prisoner naked and encouraged him to masturbate). But see Kemner v. Hemphill, 199 F. Supp. 2d 1264,
1266–67 (N.D. Fla. 2002) (finding prisoner who was forced to perform oral sex on fellow prisoner
suffered physical injury sufficient to satisfy PLRA's physical injury requirement).
119. Zehner v. Trigg, 133 F.3d 459, 462–63 (7th Cir. 1997) (finding that even where the PLRA
bars recovery of monetary damages, injunctive relief remains available).
120. See Chapter 14 of the JLM, “The Prison Litigation Reform Act,” for more information.
121. See, e.g., Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir. 1995) (holding that a jail
deputy who had made comments to a female prisoner about her body and his own sexual prowess, and
entered her cell, stood over her bed, and told her she had nice breasts, had engaged in “outrageous and
unacceptable” conduct, but that the conduct did not violate the 8th Amendment because it did not
include “physical intimidation”); Minifield v. Butikofer, 298 F. Supp. 2d 900, 903 (N.D. Cal. 2004)
(“Allegations of verbal harassment and abuse fail to state [an 8th Amendment] claim cognizable under
42 U.S.C. § 1983.”); Ellis v. Meade, 887 F. Supp. 324, 329 (D. Me. 1995) (holding that a correctional
officer allegedly tapping or spanking a prisoner’s buttocks and asking “How’s the little guy doing?” did
not violate the 8th Amendment because the comment was isolated and carried no threat of violence);
Maclean v. Secor, 876 F. Supp. 695, 698–99 (E.D. Pa. 1995) (holding that threats alone do not
constitute a constitutional claim even if the threatened prisoner has a particular vulnerability to
assault).
122. See, e.g., Austin v. Terhune, 367 F.3d 1167, 1171–72 (9th Cir. 2004) (holding that a guard’s
Additionally, even where prisoners have alleged valid Eighth Amendment violations,
courts have often determined the PLRA bars the suits in the absence of a physical injury.123
For instance, harassment by prison staff has been found to violate the Eighth Amendment
when it includes threats of attack with a lethal weapon.124 But where no physical injury
results, some courts have determined these cases are barred by the PLRA’s physical injury
requirement.125 Also, some courts have held the PLRA blocks the recovery of money damages
in cases where harassing language or threats are accompanied by groping or abusive
touching.126
H. Housing and Protective Custody
1. Housing Issues for Transgender Prisoners127
Like most institutions on the outside, prisons are structured around the assumption that
all people are easily classified as either male or female, gender is assigned at birth, and a
person’s gender remains constant throughout life. These assumptions present extraordinary
hardship for transgender, intersex, and other gender variant prisoners as the overwhelming
exposure of genitalia to a prisoner from a glass-walled control booth for a 30–40 second “isolated
incident” was not sufficiently serious to constitute an 8th Amendment violation, and noting generally
that “[a]lthough prisoners have a right to be free from sexual abuse, whether at the hands of fellow
inmates or prison guards, the Eighth Amendment's protections do not necessarily extend to mere
verbal sexual harassment”); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (finding that a guard’s
use of sexually explicit and racially derogatory language was not a constitutional violation, stating that
“[s]tanding alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive
a prisoner of a protected liberty interest, or deny a prisoner equal protection of the laws”); Barney v.
Pulsipher, 143 F.3d 1299, 1310 n.11 (10th Cir. 1998) (holding that verbal harassment and intimidation
alone, without allegations of sexual assault, was insufficient to state an 8th Amendment cause of
action); Blueford v. Prunty, 108 F.3d 251, 254–55 (9th Cir. 1997) (holding that prison guard engaging in
“vulgar same-sex trash talk” with prisoners was entitled to qualified immunity because a prisoner’s
right to be free from such behavior was not clearly established at the time the behavior took place). In
some cases, allegations of touching may still fail to rise to the level of a constitutional violation. See,
e.g., Boddie v. Schnieder, 105 F.3d 857, 859-61 (2d Cir. 1997) (finding that a prisoner’s claim that
female officer touched his genitals and pushed her breasts and genitals against his body did not rise to
a violation of the prisoner’s constitutional rights). See, however, Chapter 24 of the JLM, which cites a
few cases holding that prisoners may recover for psychological injury inflicted by prison staff.
123. See Chapter 14 of the JLM for more information on the PLRA.
124. See, e.g., Northington v. Jackson, 973 F.2d 1518, 1523–25 (10th Cir. 1992) (finding some
forms of verbal harassment can inflict cruel and unusual punishment when they involve threatened use
of lethal weapons); Burton v. Livingstone, 791 F.2d 97, 99–100 (8th Cir. 1986) (same); Douglas v.
Marino, 684 F. Supp. 395, 397–98 (D.N.J. 1988) (same).
125. See, e.g., Walker v. Akers, No. 98-C-3199, 1999 U.S. Dist. LEXIS 14995, at *15–16 (N.D. Ill.
Sept. 22, 1999) (unpublished) (holding that the PLRA’s physical injury requirement bars the recovery of
monetary damages where corrections officer threatened prisoner and held electric stun gun to his
head).
126. See, e.g., Cobb v. Kelly, No. 4:07CV108-P-A, 2007 WL 2159315, at *1 (N.D. Miss. July 26,
2007) (unpublished) (finding PLRA’s physical injury requirement not met when plaintiff’s case manager
fondled his genitals); Smith v. Shady, No. 3:CV-05-2663, 2006 U.S. Dist. LEXIS 24754, at *5–6 (M.D.
Pa. Feb. 8, 2006) (unpublished) (finding PLRA’s physical injury requirement not met when correctional
officer held and fondled prisoner’s penis); Ashann-Ra v. Virginia, 112 F. Supp. 2d 559, 566 (W.D. Va.
2000) (finding PLRA’s physical injury requirement was not met when female corrections officers viewed
male prisoner naked and encouraged him to masturbate).
127. All known transgender prisoners who have filed lawsuits contesting their conditions of
imprisonment that have resulted in reported opinions have been male-to-female (MTF) transgender
people. This of course does not mean that female-to-male (FTM) transgender prisoners do not face
challenges while incarcerated. If you are a FTM prisoner who wishes to sue officials of the prison where
you are housed, the lack of precedent for such cases should not deter you from doing so. But, it might be
advisable to contact an impact litigation organization specializing in transgender rights for help in
preparing your claim. See Appendix A of this Chapter for information on these organizations.
majority of prisons—federal and state, maximum security and minimum security—recognize
only two genders and segregate male from female prisoners.
Prison authorities rarely recognize the gender identity of transgender prisoners.
Transgender prisoners are generally housed either according to the gender they were
assigned at birth or by their genitalia.128 Because few transgender people are able to access
genital gender reassignment surgery, this results in large numbers of transgender prisoners
being housed in facilities for a gender with which they do not identify.
To date, the gendered housing policies of prisons placing transsexual prisoners in
housing for genders they do not identify with have not been successfully challenged in
court.129 The Supreme Court has explicitly held prisoners do not have a constitutional right
to choose their place of confinement.130 Moreover, courts generally show great deference to
prison officials’ choices about how to manage their institutions,131 and classification within
prisons has not been found to implicate a liberty interest.132
Courts have been particularly hostile towards the requests of transgender prisoners for
transfer to gender-appropriate facilities. 133 Thus, it is unlikely that you will be able to
128. See, e.g., Farmer v. Brennan, 511 U.S. 825, 829, 114 S. Ct. 1970, 1975, 128 L. Ed. 2d 811,
820 (1994) (noting that a preoperative male-to-female transgender prisoner was housed in male
housing despite receiving hormone treatments and dressing femininely); Farmer v. Haas, 990 F.2d 319,
320 (7th Cir. 1993) (noting plaintiff’s incarceration with the male population despite undergoing
estrogen therapy and receiving silicone breast implants.) But see Crosby v. Reynolds, 763 F. Supp. 666,
669–70 (D. Me. 1991) (upholding placement of pre-operative transgender person undergoing hormone
treatment, at her request and on the recommendation of the jail’s contract physician, within the female
population, even in the face of a challenge by the prisoner’s female cellmate, who alleged it was a
violation of her right to privacy); Lucrecia v. Samples, No. C-93-3651-VRW, 1995 U.S. Dist. LEXIS
15607, at *1–2 (N.D. Cal. Oct. 16, 1995) (unpublished) (noting that prisoner who “had not as yet
completed the transformation” from male to female, while incarcerated in a federal prison, “lived within
a female housing unit as a female”).
129. See, e.g., Meriwether v. Faulkner, 821 F.2d 408, 415 (7th Cir. 1987) (denying transgender
prisoner’s equal protection claim for not being classified as a woman and housed with female prisoners
on ground that a prison administrative decision may give rise to an equal protection claim only if the
plaintiff can establish “state officials had purposefully and intentionally discriminated against” her);
Lucrecia v. Samples, No. C-93-3651-VRW, 1995 U.S. Dist. LEXIS 15607, at *14–15 (N.D. Cal. Oct. 16,
1995) (unpublished) (holding a transgender prisoner’s legal challenge alleging that her incarceration in
a male cell violated due process must fail because no liberty interest was infringed and “housing
decisions are within the discretion of prison officials”); Lamb v. Maschner, 633 F. Supp. 351, 353 (D.
Kan. 1986) (“Prison authorities must be given great deference to formulate rules and regulations that
satisfy a rational purpose and segregation of the sexes is a rational purpose.”). See Chapter 22 of the
JLM for more information on challenging administrative decisions.
130. Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) (reversing lower
court decision ruling in favor of plaintiff prisoners who sought injunctive and declaratory relief for
being transferred to prisons with less desirable conditions following a fire at their previous facility).
131. See, e.g., Sandin v. Conner, 515 U.S. 472, 482, 115 S. Ct. 2293, 2299, 132 L. Ed. 2d 418, 429
(1995) (“[F]ederal courts ought to afford appropriate deference and flexibility to state officials trying to
manage a volatile environment.”); Grayson v. Rison, 945 F.2d 1064, 1067 (9th Cir. 1991) (“When prison
officials have legitimate administrative authority, such as the discretion to move inmates from prison
to prison or from cell to cell, the Due Process Clause imposes few restrictions on the use of that
authority.”); McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir. 1975) (“The federal courts are extremely
reluctant to limit the freedom of prison officials to classify prisoners as they in their broad discretion
determine appropriate.”).
132. For example, prisoners who have challenged their classification on other bases, such as
security or gang classifications, have also been unsuccessful. See Chapter 31 of the JLM for a detailed
discussion of legal challenges to security classification decisions and the definition of liberty interests in
the prison context.
133. As one federal court noted in response to a male-to-female transgender prisoner’s request
for transfer to a women’s prison, “A male prisoner cannot be housed in a women’s prison. Even though
a transfer may relieve plaintiff’s anxieties, clearly a violation of the women’s rights would be at issue.”
successfully challenge your housing classification in court. If being housed with the general
population is intolerable for you, you might consider requesting to be placed in segregation or
protective custody.
2. Segregation and Protective Custody
Many state prisons segregate LGBT prisoners from the general prison population, either
at the request of the prisoner or based on prison officials’ independent decisions. In the past,
the separation of LGBT-identified prisoners from heterosexual prisoners was used as a
means to punish LGBT people or was sometimes based on the false assumption that because
a prisoner was not heterosexual, he would be more likely to sexually assault other prisoners
in the general population.
Today, segregation of LGBT prisoners in state or municipal institutions is often
motivated by a desire to protect LGBT prisoners, who might be more vulnerable to attack
from other prisoners. While protecting LGBT prisoners may be good, the conditions of
protective custody often are not.134 By law, the warden in a federal prison may not segregate
an LGBT prisoner solely for his or her own protection.135 This really means that, absent
other circumstances or threats, a warden may not segregate someone solely for being LGBT.
Segregation means different things in different prisons. Some prisons house a high
enough number of LGBT prisoners that they maintain a wing for people identifying
themselves as LGBT; other prisons can offer only single rooms, or certain cells within a
larger segregation unit, for the occasional LGBT prisoner.136
(a) Getting Into Protective Custody
If you have been placed in general population and have experienced ill treatment there
(attack or threat of attack), you may request to be transferred into protective custody
through administrative channels.137
If such a request is not granted when brought through administrative channels,
including all administrative appeals processes, you may bring a Section 1983 claim against
prison officials for violating your Eighth Amendment right to be free from cruel and unusual
punishment. As explained in Part G of this Chapter, a prison official may be held liable
under Section 1983 for violating the Eighth Amendment if he or she acted with “deliberate
indifference” to your health or safety—that is, if he or she knew you faced a substantial risk
Lamb v. Maschner, 633 F. Supp. 351, 353 (D. Kan. 1986).

134. Furthermore, at least one federal court has found the practice of placing LGBT prisoners in
isolation wards to violate the Due Process Clause of the Constitution. See R.G. v. Koller, 415 F. Supp.
2d 1129, 1155 (D. Haw. 2006).
135. “The Warden may not refer an inmate for placement in a control unit ... (2) On the basis
that the inmate is a protection case, e.g., a homosexual, an informant, etc., unless the inmate meets
other criteria as described in paragraph (b) of this section.” 28 C.F.R. § 541.41(c)(2) (2007).
136. The New York City prison system, for example, provides separate housing for gay inmates.
Darren Rosenblum, “Trapped” in Sing Sing: Transgender Prisoners Caught in the Gender Binarism, 6
Mich. J. Gender & L. 499, 524 (2000). The Los Angeles County Jail includes a “homosexual ward”
separate from the general prison population where (as of 1990) 350 gay prisoners were housed. Patricia
Klein Lerner, Jailer Learns Gay Culture to Foil Straight Inmates, L.A. Times, Dec. 27, 1990, at B1. See
also Falls v. Nesbitt, 966 F.2d 375, 376 (8th Cir. 1992) (describing a “special section of the prison
reserved for those prisoners who are slight of build, physically weaker than the typical inmate, preyed
upon, or, in many cases, homosexuals”); McCray v. Bennett, 467 F. Supp. 187, 190 (M.D. Ala. 1978)
(describing segregation unit housing for, among others, “known homosexuals,” inmates who have
histories of institutional violence, and those who are being punished for violating prison rules); Inmates
of Milwaukee County Jail v. Peterson, 353 F. Supp. 1157, 1161 (E.D. Wis. 1973) (describing cell block
housing for, among others, homosexuals and narcotic addicts undergoing treatment or detoxification).
137 . See Chapter 31 of the JLM, “Security Classification and Gang Validation,” for more
information on requesting protective custody.
of serious harm but disregarded that risk by failing to take reasonable measures to stop it.138
In general, the more severe the threats or attacks against you and the more evidence you can
produce that the prison officials knew about the risk but did nothing, the better your chances
of winning in court.
Few Section 1983 suits about the failure to house a prisoner in protective custody have
been brought by LGBT prisoners,139 but several courts have recognized the vulnerability in
prison of people who do not conform to traditional gender norms. 140 Before Farmer v.
Brennan, the few such claims that were filed had very limited success.141 The Farmer Court’s
extensive discussion of the meaning of “deliberate indifference,” however, may make it easier
to prevail on such claims. 142 Also strengthening the deliberate indifference argument of
LGBT prisoners is the fact that courts have acknowledged the heightened vulnerability of
prisoners known to be LGBT or who might be perceived to be LGBT in justifying lighter
sentences, 143 and prison officials have argued that LGBT prisoners are particularly
138. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811, 825
(1994). See Chapter 16 of the JLM for more information about § 1983 and the deliberate indifference
standard.
139. But see Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)
(allowing an 8th Amendment claim by a transgender prisoner to go forward where she was placed in
the general population and subsequently sexually assaulted, even though the prisoner did not express
safety concerns beforehand).
140. See, e.g., Taylor v. Michigan Dep’t of Corr., 69 F.3d 76, 82–84 (6th Cir. 1995) (noting that
“small, youthful prisoners are especially vulnerable to sexual pressure”); Young v. Quinlan, 960 F.2d
351, 362 (3d Cir. 1992) (noting that “fellow inmates subjected [plaintiff] to sexual assault on several
documented occasions, most likely because of [plaintiff]'s youthful appearance and slight stature”);
United States v. Gonzalez, 945 F.2d 525, 526–27 (2d Cir. 1991) (noting that “even if [plaintiff] is not
gay or bisexual, his physical appearance, insofar as it departs from traditional notions of an acceptable
masculine demeanor, may make him ... susceptible to homophobic attacks”). See also Chapter 24 of the
JLM and Part G(1) of this Chapter.
141. See, e.g., Purvis v. Ponte, 929 F.2d 822, 825–27 (1st Cir. 1991) (holding that the 8th
Amendment rights of a prisoner were not violated even after he stated a general fear of “gay bashing”
and a suspicion that homophobic cellmates threatened his physical safety, since prisoner presented no
evidence of strong likelihood that violence would occur and officials had tried six different cellmates);
Falls v. Nesbitt, 966 F.2d 375, 380 (8th Cir. 1992) (holding that guard who failed to protect gay prisoner
from a cellmate who ultimately stabbed him was not deliberately indifferent). But see Young v.
Quinlan, 960 F.2d 351, 362–63 (3d Cir. 1992) (holding that the rights of a prisoner described as small,
young, and effeminate may have been violated when he was subjected to sexual assaults by other
prisoners after officials in the federal prison where he was housed ignored his requests for protection),
superseded by statute on other grounds.
142. But see Poole v. Yeazel, No. 94-3199, 1995 U.S. App. LEXIS 16195, at *3–4 (7th Cir. June
29, 1995) (unpublished) (holding that a guard who knew prisoner had been “labeled a homosexual” did
not exhibit deliberate indifference when he failed to protect him from attack, rather “at best the
defendants negligently failed to recognize a potential assault,” a failure that does not rise to the level of
a constitutional deprivation).
143. The U.S. Sentencing Guidelines are advisory guidelines that assist judges’ decisions in
sentencing for federal crimes. Prior to 2005, federal courts had to follow the U.S. Sentencing
Guidelines, but federal courts permitted what were called “downward departures” from the Guidelines
in sentencing defendants known to be gay or who might be perceived to be gay, in order to protect these
defendants from prison abuse. See United States v. Gonzalez, 945 F.2d 525, 526 (2d Cir. 1991) (finding
downward departure of convicted homosexual’s sentence was authorized, under the U.S. Sentencing
Guidelines as interpreted in United States v. Lara, 905 F.2d 599 (2d Cir. 1990), to ensure his safety in
prison due to his feminine features which would make him vulnerable to attack by other prisoners); see
also United States v. Wilke, 156 F.3d 749, 754–55 (7th Cir. 1998) (departing from sentencing guidelines
because of prisoner’s sexual orientation and demeanor). Note that the Federal Sentencing Commission
has discouraged, but not prohibited, the use of physical appearance alone in determining a prisoner’s
potential for victimization and thus reduction in sentence. See Koon v. United States, 518 U.S. 81, 107,
116 S. Ct. 2035, 2050–51, 135 L. Ed. 2d 392, 418 (1996).
vulnerable in order to justify denying them benefits or services.144 These cases may make it
more difficult for a prison official to prove he did not have the requisite knowledge that
LGBT prisoners are at risk. If you plan to bring a Section 1983 claim for violation of your
Eighth Amendment rights, be sure to also read Chapter 16 of the JLM.
(b) Getting Out of Protective Custody
Although segregation from the general prison population may afford LGBT prisoners
protection from harassment and assault, the conditions of segregated cells are often worse
than those in general population. Also, segregation may make you ineligible for work detail
and may deny you access to libraries and other facilities, visitation, proper medical
treatment,145 and other privileges available in general population.146
If you have been placed in segregation and wish to be housed among the general
population, you may request transfer through administrative channels.147 If unsuccessful,
you may file a complaint under Section 1983 and claim that the physical conditions of your
segregation violate your Eighth Amendment rights or that the decision to place you in
segregation is a violation of your equal protection rights. A Section 1983 claim seeking
transfer out of protective custody is far less likely to succeed than an administrative claim
requesting transfer into protective custody. Courts have held involuntary segregation—even
for non-punitive reasons—does not infringe a liberty interest except in narrow
circumstances.148
For example, in one Seventh Circuit case, the court noted that, while it sympathized with
the prisoner’s desire not to be segregated, it had to take into account that there might not be
feasible alternatives to the prisoner’s prolonged segregation.149 Nevertheless, the court did
not dismiss the plaintiff’s claim as a matter of law and remanded the case to the district
court to determine the actual conditions of the prisoner’s confinement and the existence of
any feasible alternatives.150
144. See Part B(3) of this Chapter.

145. If you are in protective custody and believe you are being denied proper medical treatment,
read Chapter 23 of the JLM on medical treatment.
146 . See, e.g., Hansard v. Barrett, 980 F.2d 1059, 1065 (6th Cir. 1992) (finding evidence
insufficient to establish that gay inmates were denied equal opportunity to discretionary reductions in
sentences, in violation of equal protection, after being moved to administrative segregation). However,
the Hall of Justice Jail for gay prisoners in Los Angeles is “better in many respects than in the main
jail,” in that “[t]elevisions and telephones are on every row. The atmosphere is more relaxed and it is
less crowded. The Hall of Justice Jail has 60 fewer prisoners than the 1,800 for which it was designed.
The County Jail, designed for 5,276 inmates, has 6,482.” Patricia Klein Lerner, Jailer Learns Gay
Culture to Foil Straight Inmates, L.A. Times, Dec. 27, 1990, at B1.
147. See Chapter 31 of the JLM, “Security Classification and Gang Validation.”
148 . See, e.g., Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998) (holding that “‘absent
extraordinary circumstances, administrative segregation as such, being an incident to the ordinary life
of a prisoner, will never be a ground for a constitutional claim’ because it ‘simply does not constitute a
deprivation of a constitutionally cognizable liberty interest’” (quoting Pichardo v. Kinker, 73 F.3d 612,
612–13 (5th Cir. 1996))); Collins v. Sullivan, 392 F. Supp. 621, 626 n.12 (M.D. Ala. 1975) (holding that
placing an allegedly gay prisoner in a one-man cell for medical reasons was legitimate). See also
Chapter 18 of the JLM, “Your Rights at Prison Disciplinary Hearings.”
149. Meriwether v. Faulkner, 821 F.2d 408, 417 (7th Cir. 1987) (“Given her transsexual identity
... it is unlikely that prison officials would be able to protect her from the violence, sexual assault and
harassment about which she complains.”).
150. Meriwether v. Faulkner, 821 F.2d 408, 417–18 (7th Cir. 1987).
(c) Challenging the Conditions of Protective Custody
If you cannot or do not want to secure a transfer out of protective custody, but the
conditions under which you are living in such custody are bad, you may bring a claim under
Section 1983 for:
(1) Violation of your Eighth Amendment right against cruel and unusual punishment (if,
for example, the cell is unsanitary, or you are not being provided with food and water
often enough);151 or
(2) Violation of your equal protection rights (if conditions in protective custody are much
worse than those in the cells where the general population is housed and the
difference is not justified by a legitimate interest, such as security).152
I. Visitation Rights: Special Issues for LGBT Prisoners
Most state prisons and all federal prisons have policies that, subject to restrictions, allow
prisoners to visit with their family members. Unfortunately, because many of these policies
define “family” narrowly, LGBT prisoners whose partners wish to visit them in prison may
face special difficulties. Prisoners do not have an absolute right to visitation.153 Even though
prisons may place limitations on visitation or exclude visitation all together, those
limitations can only be put in place if the prison has a legitimate penological objective for
them. The rehabilitation of prisoners and the security of the prison are justifications that
will be accepted by a court if they are proven.154 A prison official cannot merely assert that
limitations on your visitation privileges serve security or rehabilitation interests; the officials
must instead show that the visitation policies actually further the objectives they claim and
that prisoners are given adequate procedural safeguards. 155 This means that if a prison
forbids you to visit with your partner on the grounds that homosexuality poses a security
risk to the institution, you can challenge the policy on the grounds that this objective is not
actually advanced by the denial of visitation. Although the visitation policies vary from state
to state, and state policies vary from the policies in federal prison, the justifications prison
officials use are similar everywhere. The rest of this part will help explain why prisons have
151. See Wilson v. Seiter, 501 U.S. 294, 303, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d. 271, 282 (1991)
(holding that challenges to physical living conditions of prisons are governed by the deliberate
indifference standard). For an explanation of the deliberate indifference standard, see Part G(1)(b) of
this Chapter.
152. See, e.g., Williams v. Lane, 851 F.2d 867, 881–82 (7th Cir. 1988) (holding state provisions for
programming and living conditions for protective custody prisoners violated the Equal Protection
Clause because they were unequal in comparison with general population prisoners, and not justified
by security concerns). But see Griffin v. Coughlin, 743 F. Supp. 1006, 1009–16 (N.D.N.Y. 1990) (holding
that differences in treatment of protective custody prisoners at Clinton Correctional Facility with those
in other protective custody units in New York State and with those in special programs did not violate
equal protection rights of protective custody prisoners). For more information about what you need to
prove to prevail on a § 1983 equal protection claim in prison, see Chapter 16 of the JLM and Part C(1)
of this Chapter.
153. Block v. Rutherford, 468 U.S. 576, 585–89, 104 S. Ct. 3227, 3232–34, 82 L. Ed. 2d 438, 446–
49 (1984) (finding the denial of visitation appropriate when the denial furthered legitimate
governmental purposes and was not for the purpose of punishment).
154. Bell v. Wolfish, 441 U.S. 520, 547, 99 S. Ct. 1861, 1878, 60 L. Ed. 2d 447, 473 (1979) (“Even
when an institutional restriction infringes a specific constitutional guarantee, such as the First
Amendment, the practice must be evaluated in the light of the central objective of prison
administration, safeguarding institutional security.”).
155. See Rudolph v. Locke, 594 F.2d 1076, 1077 (5th Cir. 1979) (stating that courts must
determine if given justifications actually further stated purposes); Hamilton v. Saxbe, 428 F. Supp.
1101, 1112 (N.D. Ga. 1976) (stating that officials may not arbitrarily deny a prisoner’s visitation
request but must provide a meaningful written response).
denied LGBT prisoners the right to visitation and whether or not those policies can be
challenged.
1. Federal Prison Visiting Guidelines
If you are in a federal prison and you want to have regular visitors, you must submit a
list of proposed visitors to prison staff members. 156 When prison officials are deciding
whether to allow the people on your list to visit you, they will divide your visitors into three
categories: (1) members of the immediate family; (2) other relatives; and (3) friends and
associates.
Members of your immediate family include your spouse and children. In order to exclude
a member of your immediate family, prison officials would have to show “strong
circumstances” which justify excluding them.157 To exclude a relative who is not a member of
your immediate family (including aunts, uncles, and cousins), the prison must have a specific
reason.158 To exclude friends and associates, a prison official only needs to show that they
“could reasonably create a threat to security.”159
Unfortunately for LGBT prisoners, federal law prohibits treating a same-sex partner as
either a member of the immediate family or as another relative. The federal regulations do
not explicitly preclude prisons from counting same-sex partners as immediate family
members. Instead, same-sex partners simply do not appear on the list of immediate family
members, presumably indicating that they cannot be given the designation of immediate
family member.160 Even in states like Vermont, where domestic partners are recognized as
spouses for many state purposes, domestic partners will still not be treated as spouses by
federal prisons in those states. 161 In May 2004, Massachusetts began issuing marriage
licenses to same-sex couples.162 In May 2008, California began issuing marriage licenses to
same-sex couples as well,163 and Connecticut followed in November 2008.164 None of these
marriages will count as “marriages” for federal purposes, including in federal prisons, though
court challenges are likely to be brought. The Defense of Marriage Act mandates that no
state need recognize same-sex unions from other states and also, for federal purposes,
defines “spouse” as “a person of the opposite sex who is a husband or a wife.” 165 Because of
this law, anyone who is not related to you—including your partner or your
girlfriend/boyfriend—will be classified in the third category as a friend or associate.
Classification in the third category means that prison officials only need to reasonably
fear that your visitor will harm security or your rehabilitation in order to exclude them. In
the past, prison officials have generally given two reasons for strict visitation policies for
LGBT prisoners. The first reason was rehabilitation. Since homosexual sex was illegal in
156. 28 C.F.R. § 540.44 (2007).

157. 28 C.F.R. § 540.44(a) (2007).
158. 28 C.F.R. § 540.44(b) (2007).
159. 28 C.F.R. § 540.44(c) (2007).
160. 28 C.F.R. § 540.44 (2007).
161. Baker v. State, 744 A.2d 864, 170 Vt. 194 (1999).
162. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 440 Mass. 309 (2003). See also Pam
Belluck, Massachusetts Arrives at Moment for Same-Sex Marriage, N.Y. Times, May 17, 2004, at A1.
163. In re Marriage Cases, 183 P.3d 384, 76 Cal. Rptr. 3d 683 (Cal. 2008). See also Jesse
McKinley, A Landmark Day in California as Same-Sex Marriages Begin to Take Hold, N.Y. Times, Jun.
17, 2008, at A19. However, same-sex marriages were later banned in California by the passage of
Proposition 8 during the 2008 elections, and the fate of those same-sex marriages performed prior to
the ban remains uncertain. See Jesse McKinley and Laurie Goodstein, Bans in 3 States on Gay
Marriage, N.Y. Times, Nov. 6, 2008, at A1.
164. Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008). See also Lisa W. Foderaro,
Gay Marriage Begins in Connecticut, N.Y. Times, Nov. 12, 2008, at A1.
165. 1 U.S.C. § 7 (2006).
several states and could be outlawed by the federal government, it was possible for prison
officials to claim that allowing prisoners visitation with same-sex partners harmed their
rehabilitation. After Lawrence v. Texas,166 this reason is inadequate. Lawrence held that a
state cannot outlaw homosexual sex. Since a state cannot outlaw homosexual sex, it is
difficult to imagine how a state could have a rehabilitative interest in preventing homosexual
activity.
The other more common justification given for restricting a homosexual prisoner’s
visitation was security. Prison officials have sometimes tried to claim that allowing a
homosexual’s partner to visit or allowing homosexuals to show affection during visitation
would open the gay prisoner up to possible violence and retribution. 167 While this
justification has worked in other contexts (notably the right to receive LGBT literature—see
Part J of this Chapter), courts have often been harsh on prison officials who try to restrict
visitation policies. In Doe v. Sparks,168 prison officials had a policy that allowed heterosexual
boyfriends or girlfriends to visit prisoners but did not allow same-sex partners to visit. The
prison officials claimed that the policy against homosexual visitation furthered the purpose
of promoting the internal security of the prison. Although this case challenged a state prison
policy, the case was decided under constitutional equal protection standards. The court
looked closely at the “security” reasons given by the prison. In this case, visitors were not
allowed any physical contact, nor was the relationship between the prisoner and the visitor
announced in any way. The court said that there was no way for other prisoners to know of
the same-sex relationship between the prisoner and the visitor, and therefore any threat to
the security of the prison was “so remote as to be arbitrary.”169 The court found that the
prison policy was not reasonably related to security concerns and therefore violated the
Fourteenth Amendment.
A similar outcome was reached in a case where prison officials denied a gay prisoner the
ability to kiss and hug his visiting partner. In Whitmire v. Arizona,170 prison policy allowed
prisoners to kiss and hug family members and heterosexual partners briefly at the beginning
and end of visits. The prison claimed that allowing a homosexual prisoner to hug and kiss his
partner would cause other prisoners to label him as gay and therefore open him up to attack
from other prisoners. In this case, the prisoner was openly gay—he both told other prisoners
and the court felt that it was implied since he had no problem showing homosexual affection.
The court held the prison policy lacked “a common-sense connection” to security since the
prisoner was already labeled as gay—or was at least willing to be so labeled.171 The court
thus determined that the prison was potentially in violation of the prisoner’s First, Third,
Fifth, and Fourteenth Amendment rights.
These cases show that if a federal prison denies you the same visitation privileges as
heterosexual prisoners merely because of your sexual orientation, you may have a strong
claim.
2. New York Visitation Policies
New York State’s visitation policies are very similar to those of the federal government,
with some notable differences. A New York prison’s visitation policies should allow visits at
times designed to “encourage maximum visiting;” contact visits are generally to be allowed
167. See Whitmire v. Arizona, 298 F.3d 1134, 1136 (9th Cir. 2002) (holding that there is no
common sense basis for prisons to prevent, for safety reasons, displays of affection between same sex
couples when a prisoner is openly gay).
170. Whitmire v. Arizona, 298 F.3d 1134, 1135 (9th Cir. 2002).
171. Whitmire v. Arizona, 298 F.3d 1134, 1136 (9th Cir. 2002).
and encouraged; and the prison should not limit the number of visits unless the safety and
security of the prison is threatened.172
Also like federal prisons, New York prisons require that prisoners submit a list of visitors
they would like to have visit.173 These visitors will be admitted unless prison officials can
show some legitimate security reason for excluding them.174 While prison officials generally
have a lot of discretion in deciding what constitutes a safety concern, keep in mind that your
prison will probably have to follow the same general rules as federal prisons. Merely stating
that your same-sex partner would cause a security concern is likely not enough.175
New York prisons generally allow physical contact between prisoners and visitors. 176
This contact can involve a small amount of kissing, hugging, and hand-holding (as long as it
all takes place in plain view). All of this can occur at the beginning and end of a visit, and
brief kisses and embraces should also be allowed during the course of the visit as long as it
does not offend other prisoners’ sense of decency.177 The “decency” exception in the New York
visitation guidelines might mean that a prison official could try to deny you physical contact
with your same-sex partner. If prison officials try to prevent you from engaging in the same
physical contact with your partner that heterosexual prisoners are allowed to engage in, you
may have a valid claim under both federal and state law.178
(a) New York’s Family Reunion Program
Currently, New York has a Family Reunion Program that allows close family members a
chance for more private visits with prisoners.179 Unfortunately, the program only applies to
close relatives and spouses who are in legal marriages and so does not apply to same-sex
partners.180
Because of the way the law is written, partners of homosexual prisoners are not eligible
for the Family Reunion Program. New York State courts have upheld treating prisoners
differently based on whether or not they are married,181 but these cases generally involve
treatment of heterosexual, unmarried prisoners. No challenge to the Family Reunion
Program by homosexual partners based on federal or New York law has been reported to
date. If you are a homosexual prisoner with a domestic partner who is being denied visitation
under the Family Reunion Program, it might be worth contacting one of the impact litigation
groups listed at the end of this Chapter about possible federal or state equal protection
claims.
172. N.Y. Comp. Codes R. & Regs. tit. 7, § 200.2(b)(2) (1995).

175. See Doe v. Sparks, 733 F. Supp. 227, 234 (W.D. Pa. 1990) (striking down prison policy
against visits by homosexual prisoners’ partners on grounds that the connection between the policy and
the supposed security concerns the policy is supposed to address is too remote).
176. N.Y. Comp. Codes R. & Regs. tit. 7, § 200.4(k) (1995).
177. N.Y. Comp. Codes R. & Regs. tit. 7, § 200.4(k)(1)–(4) (1995).
178. See generally Whitmire v. Arizona, 298 F.3d 1134, 1135–36 (9th Cir. 2002) (holding that
there is no common-sense basis for prisons to prevent, for safety reasons, displays of affection between
same sex couples when a prisoner is openly gay and similar displays of affection are permitted for
heterosexual couples).
180. N.Y. Comp. Codes R. & Regs. tit. 7, § 220.3 (1995). Note, however, that the governor of New
York issued an executive order on May 14, 2008, requiring all state agencies to recognize same-sex
marriages legally performed in other jurisdictions. See Jeremy W. Peters, New York to Back Same-Sex
Unions from Elsewhere, N.Y. Times, May 29, 2008, at A1. Though not all agencies have enacted these
changes yet, if you married your same-sex partner in Massachusetts, for instance, but are now in
prison in New York, you could be eligible for this program.
181. See, e.g., Mary of Oakknoll v. Coughlin, 101 A.D.2d 931, 475 N.Y.S.2d 644 (3d Dept. 1984).
(b) New York City’s Domestic Partnership Laws
Unlike the rest of New York State and the federal government, New York City’s
Domestic Partnership Law requires city correctional facilities to give registered domestic
partners of prisoners the same visitation rights as those granted to married couples.182 This
not only means that your domestic partner can visit you under the same rules governing
married couples but also that domestic partners may visit other family members in the same
way that heterosexual spouses may.
Very little case law involving the Domestic Partnership Law exists. This may reflect the
fact that prisons are treating domestic partners in the same manner as heterosexual spouses,
or it may reflect the relative newness of the Domestic Partnership Law. At the very least, the
law has been upheld under challenges from various opposition groups.183
J. Right to Receive LGBT Literature184
Under Thornburgh v. Abbott, prisons may restrict your right to receive publications that
may cause a threat to the daily operation of the prison. 185 In other words, you may not be
able to receive publications if the prison administration decides that the publication could
cause problems with security, order, or discipline. This rule has posed special problems for
LGBT prisoners.
1. Sexually Explicit Material with Homosexual Content
(a) Federal Prisons
In Thornburgh, the Supreme Court found constitutional a federal prison regulation that
gave prison officials discretion to withhold from prisoners—among other types of mail—
sexually explicit publications, if they reasonably believed that those publications posed a
threat to prison order or security.186 The Thornburgh Court also upheld as constitutional a
1985 Bureau of Prisons program statement that, in providing guidance on the meaning of the
term “sexually explicit,” specifically listed “homosexual (of the same sex as the institution
population) material” as material a warden could decide not to allow prisoners to receive.
The Court justified its decision on two grounds: (1) “homosexual” material would, once in the
prison, circulate and lead to “disruptive conduct”; and (2) if prisoners observed a fellow
prisoner reading such material, they might draw inferences about the prisoner’s sexual
orientation and “cause disorder by acting accordingly.” 187 After Thornburgh, then, all
182. Admin. Code of the City of N.Y. § 3-244 (2002).

183. See, e.g., Slattery v. City of New York, 179 Misc. 2d 740, 686 N.Y.S.2d 683 (Sup. Ct. N.Y.
County 1999) (holding that New York City had the statutory power to enact the Domestic Partnership
Law).
184. For general information about your right to communicate with the outside world, including
your rights to engage in non-legal correspondence, your right to communicate with your lawyer, your
right to receive non-gay publications, your right to have access to news media, and your access to
visitation while in prison, see JLM Chapter 19.
185. Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989). Note that the
Thornburgh standard has replaced the previous and more relaxed standard articulated in Procunier v.
Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974). Therefore, cases decided before 1989
are unlikely to be helpful to you because courts will probably only take into account precedent decided
under the currently prevailing Thornburgh test.
(1989).
73 (1989). Other courts have upheld similar state prison policies on the grounds that pornographic
material leads to security risks. See, e.g., Frost v. Symington, 197 F.3d 348, 357–58 (9th Cir. 1999)
(upholding prison regulation banning sexually explicit materials depicting sexual penetration on
grounds that such material could lead to sexual harassment of female guards); Mauro v. Arpaio, 188
sexually explicit material is potentially censorable, but it is even easier and more defensible
for a warden to censor homosexual sexually explicit material.
Note that the holding in Thornburgh does not necessarily mean that you may never
receive publications with explicit homosexual sexual content while in prison. The
Thornburgh court merely held that a warden may exercise discretion to restrict your access
to such material. The decisions of different wardens will result in different regulations in
different prisons.
Further, though federal regulations allow the censorship of heterosexual sexually explicit
material and several courts have, since Thornburgh, upheld restrictions on such material,188
if wardens in the prison where you are incarcerated are exercising their discretion selectively
(for example, allowing prisoners to receive heterosexual explicit material and not homosexual
explicit material), you may be able to bring a claim under Section 1983 to challenge this
conduct on equal protection grounds. 189 If a warden in a federal prison is censoring
homosexual content and not heterosexual content, keep in mind how some of the cases from
earlier in this Chapter might help you make an equal protection challenge. First, it is not
clear whether courts will allow prisons to make life more difficult for you simply because
other prisoners dislike your sexual orientation.190 Second, if you are openly gay, lesbian, or
bisexual already, the warden will have a difficult time justifying a decision based on the idea
that other prisoners who observe you reading homosexual magazines would make life more
difficult for you.191
Finally, in 1999, the Bureau of Prisons issued a new Program Statement to replace the
one on which the Thornburgh Court ruled. The new Program Statement does not include
“homosexual” in the list of types of sexually explicit material the warden may reject, as the
1985 Program Statement did. A court could still allow censorship of sexually explicit
homosexual material if the prison could demonstrate legitimate penological justifications for
restricting the material. However, it would not be as easy for the court as it was when
“homosexual material” was enumerated in the Program Statement. A prisoner challenging a
F.3d 1054, 1060 (9th Cir. 1999) (upholding regulations prohibiting prisoners from possessing sexually
explicit materials on grounds that regulation was “reasonably related to legitimate penological
interests”); Allen v. Wood, 970 F. Supp. 824, 831 (E.D. Wash. 1997) (granting defendant prison’s motion
for summary judgment on ground that prison regulations prohibiting certain sexually explicit materials
satisfied the reasonable relation standard).
188. See, e.g., Frost v. Symington, 197 F.3d 348, 358 (9th Cir. 1999) (holding that a prison’s
restrictions on a prisoner’s possession of images depicting heterosexual penetration did not violate the
prisoner’s 1st Amendment rights); Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999) (upholding
regulation prohibiting prisoners from possessing sexually explicit materials on grounds that regulation
was “reasonably related to legitimate penological interests”); Amatel v. Reno, 156 F.3d 192, 202 (D.C.
Cir. 1998) (holding that regulation banning use of Bureau of Prisons funds to distribute sexually
explicit material to prisoners was reasonable means of advancing penological interests); Snelling v.
Riveland, 983 F. Supp. 930, 936 (E.D. Wash. 1997) (rejecting prisoner’s claim that prison policy
banning receipt of written or graphic sexually explicit material violated his 1st Amendment rights),
aff’d,165 F.3d 917 (9th Cir. 1998).
189. The state could counter such a claim by showing that it has a rational basis for its
regulation; for example, that explicit material depicting men engaged in sexual acts with each other is
more likely to lead to “disorder” in an all-male prison than is material depicting heterosexual acts
because the acts depicted in the heterosexual material cannot be performed in prison the same way
that the acts in the homosexual material can.
190. See Watkins v. U.S. Army, 875 F.2d 699, 729–30 (9th Cir. 1989) (showing that, under
Palmore v. Sidoti, 466 U.S. 429, 104 S. Ct. 1879, 80 L. Ed. 2d 421 (1984), the court is unwilling to allow
the Army to use the private prejudice of heterosexuals as grounds for discriminating against
homosexuals, even for their protection).
191. See Whitmire v. Arizona, 298 F.3d 1134, 1136 (9th Cir. 2002) (finding prison officials could
not justify a discriminatory policy based on protecting prisoner from rumors of his homosexuality where
prisoner was already “out” in prison).
warden’s decision to restrict his access to sexually explicit homosexual publications, then,
might have a stronger case under the new Program Statement than under its predecessor.
(b) State Prisons
Regulations governing many state prisons also contain provisions that permit censorship
of sexually explicit homosexual material, and courts have similarly found state prisons’
regulations prohibiting explicit homosexual literature to be constitutional.192 For example,
the New Hampshire Department of Corrections Policy and Procedure Directive governing
prisoner mail service in New Hampshire State Prisons bans “[o]bscene material, including
publications containing explicit descriptions, advertisements, or pictorial representations of
homosexual acts, bestiality, bondage, sadomasochism, or sex involving children.”193
2. Non-Sexually Explicit LGBT Publications
(a) Federal Prisons
The 2003 Program Statement on incoming publications, elaborating on the Federal
Bureau of Prisons regulations, provides that “[s]exually explicit material does not include
material of a news or information type. Publications concerning research or opinions on
sexual, health, or reproductive issues, or covering the activities of gay rights organizations or
gay religious groups, for example, should be admitted unless otherwise a threat to legitimate
institution interests.” 194 This language seems to indicate that you should be allowed to
receive a wide variety of LGBT publications with political, religious, social, and fictional
content while you are in prison. Because prejudice against LGBT people often creates the
view that everything about sexual orientation is sexual, and anything related to
homosexuality is about sex, even if it explicitly is not, prison wardens may attempt to keep
you from receiving issues of magazines such as The Advocate or Out on the grounds that they
are sexually explicit. Under the 2003 Program Statement quoted above, such conduct in
federal prisons is impermissible and open to challenge.195
(b) State Prisons
The right of prisoners to receive non-sexually explicit LGBT publications in state prisons
is less clear and possibly less strong than in the federal context.196 Most states do not have
192. See Willson v Buss, 370 F. Supp. 2d 782, 790–91 (N.D. Ind. 2005) (upholding prison
supervisor’s denial of plaintiff’s sexually explicit homosexual literature, claiming a legitimate
penological interest in prison security).
193. Lepine v. Brodeur, No. CV 97-72-M, 1999 WL 814277, at *5 (D.N.H. Sept. 30, 1999)
(unpublished) (finding prison regulations forbidding prisoners from receiving pornographic publications
depicting homosexual intercourse constitutional).
194 . U.S. Department of Justice, Federal Bureau of Prisons, Program Statement 5266.10,
Incoming Publications 4 (2003).
195 . It is worth mentioning that publishers also have 1st Amendment rights regarding
subscribers’ ability to receive publications in prison. This can become important in the prison context
because, unlike prisoners, publishers are not subject to the Prison Litigation Reform Act and its
exhaustion procedures and fee caps, and so would be able to sue the prison more freely.
196. See, e.g., Harper v. Wallingford, 877 F.2d 728, 730 (9th Cir. 1989) (holding that prisoner’s
1st Amendment rights were not violated when a non-sexually explicit membership application and
organization bulletin for the North American Man/Boy Love Association was withheld from him,
primarily because the materials posed a threat to the prisoner’s safety, since if the prisoner was seen
reading the material by other prisoners and presumed to be gay, he might be “subject to violent attacks
from inmates”); Espinoza v. Wilson, 814 F.2d 1093, 1099 (6th Cir. 1987) (finding that censorship was
justified because homosexual activity had presented security problems at prison in the past and
homosexual publications posed a danger to institutional security); Willson v. Buss, 370 F. Supp. 2d 782,
787–90 (N.D. Ind. 2005) (finding prisoner did not have right to receive two gay advocacy magazines,
although lacking in sexually explicit material, and that the prison regulation banning “blatant
statements similar to the federal one, and the discretion given to prison officials in
Thornburgh v. Abbott may result in many different decisions and regulations even within the
same state.197
K. Conclusion
Being lesbian, gay, bisexual, or transgender can make the experience of incarceration
especially hard, and the lack of case law involving prisoners who are LGBT may make you
hesitant to bring a claim due to uncertainty about how a court will rule on it. Contact the
legal organizations in the Appendix for help with your case and send information about the
challenges you face in prison to the non-legal, advocacy groups listed there. You are in a
better position than anyone else to educate LGBT activists about the challenges LGBT
prisoners face so that they can better advocate for laws and policies that will improve your
situation.
homosexual materials” was constitutional).

475 n.15 (1989) (noting that “[t]he exercise of discretion called for by these regulations may produce
seeming ‘inconsistencies’ ... [but that given the] likely variability within and between institutions over
time ... greater consistency might be attainable only at the cost of a more broadly restrictive rule”).
APPENDIX A
LGBT RESOURCES
American Civil Liberties Union Lambda Legal Defense & Education
Lesbian, Gay, Bisexual, Transgender Fund
& AIDS Project National Headquarters
125 Broad Street, 18th Floor 120 Wall Street, Suite 1500
(212) 549-2627 (212) 809-8585
Western Regional Office
Gay & Lesbian Advocates & 3325 Wilshire Boulevard, Suite 1300
Defenders (GLAD) Los Angeles, CA 90010
30 Winter Street, Suite 800 (213) 382-7600
Boston, MA 02108 Midwest Regional Office
(617) 426-1350 11 East Adams, Suite 1008
GLAD is a public interest legal Chicago, IL 60603
organization working to defend and (312) 663-4413
expand the rights of gay men, lesbians, Southern Regional Office
bisexuals, transgender individuals and 730 Peachtree Street, NE, Suit 1070
people with HIV. GLAD responds to over Atlanta, GA 30308
3,000 requests for information and (404) 897-1880
assistance each year and litigates impact Lambda is a national organization
cases. committed to achieving full civil rights of
lesbians, gay men, and people with
Gay Men’s Health Crisis HIV/AIDS through impact litigation,
119 West 24th Street, 7th Floor education, and public policy work.
New York, NY 10011
Hotline: 1-800-AIDS-NYC (1-800-243- National Center for Lesbian Rights
7692) 870 Market Street, Suite 370
Legal Services & Advocacy: (212) 367- San Francisco, CA 94102
1040. (415) 392-6257
NCLR is a progressive, feminist,
GenderPAC multicultural legal center devoted to
1731 Connecticut Avenue, N.W., 4th Floor advancing the rights and safety of lesbians
Washington, DC 20009 and their families through direct litigation
(202) 462-6610 and advocacy.
GenderPAC focuses on congressional
advocacy, education and impact litigation. National Gay and Lesbian Task Force
National Headquarters
Immigration Equality 1325 Massachusetts Ave., NW, Suite 600
40 Exchange Place, 17th Floor Washington, DC 20005
New York, NY 10005 (202) 393-5177
(212) 714-2904 New York Office
Immigration Equality is a coalition of 80 Maiden Lane, Suit 1504
immigrants, lawyers and other activists New York, NY 10038
providing education, outreach, legal (212) 604-9830
services, information and referrals, to NGLTF is a national progressive
combat discrimination in immigration organization working for the civil rights of
law. gay, lesbian, bisexual and transgender
people.
Sylvia Rivera Law Project
322 8th Avenue, 3rd Floor
New York, NY 10001
(212) 337-8550; (212) 337-1972
Sylvia Rivera Law Project fights
discrimination against gender non-
conforming people, particularly intersex
and transgender people, and focuses on
people of color and poor people.
Manual
Chapter 31:
Security Classification and
Gang Validation

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 31
SECURITY CLASSIFICATION AND GANG VALIDATION*

A. Introduction
Upon entering prison, all prisoners are assigned a security classification, which is
reevaluated regularly. Your security classification largely determines where you are
incarcerated and what sort of treatment you receive while in prison. A lower security
classification is better because it means you have more freedoms and fewer restrictions. You
can think of gang validation as a subset of security classification. Gang validation is the
process prison officials use to identify prisoners they suspect of being members of gangs or
“Security Threat Groups” (“STGs”). If you have been validated as a gang member, it means
prison officials have classified you as someone posing a particular security risk and may
isolate you from other prisoners.
Part B of this Chapter covers general security classification. It starts with a description
of the guidelines for prisoner classification in the Federal Bureau of Prisons (“BOP”), New
York State, and California and follows with a discussion of some of the legal challenges
prisoners have raised to classification decisions in the past. Keep in mind, these challenges
have been largely unsuccessful. Part B ends with a description of administrative options for
challenging a particular security classification. Part C covers gang validation and begins
with a general discussion of the process, followed by a summary of the ways that prisoners
have used the Fourteenth Amendment, the Eighth Amendment, the Fifth Amendment, and
equal protection claims to challenge their validation as gang members. Because these legal
challenges have been largely unsuccessful, the Chapter concludes with some suggestions for
challenging gang validation using administrative options.
B. General Security Classification
1. Introduction
In all states, you will be assigned a security classification shortly after entering the
prison system. This Chapter focuses on the classification guidelines operating in the Federal
Bureau of Prisons, in New York’s Department of Correctional Services (“DOCS”), and in
California’s Department of Corrections and Rehabilitation (“CDCR”). It also focuses on
attempts that prisoners have made to challenge their classification under these guidelines in
court. Most prison systems use a similar classification system. They evaluate prisoners in
terms of both public and private risk, and the courts in most jurisdictions, including New
York and California, are reluctant to interfere in what they view as administrative matters.
You should, however, investigate the details of your own state’s procedures.
You should be able to obtain a copy of the classification manual for the system in which
you are incarcerated. The classification manual should allow you to verify that the criteria
used to evaluate you are accurate. But, in some states, like New York, the classification
manual is primarily a set of guidelines for entering data into a computer program. Without
access to that computer program, the classification manual will not be very useful, although
you may find it helpful to examine the classification criteria in detail.
* This Chapter was written by Ben Van Houten based in part on a previous version by Daniel Green.
2. Federal Bureau of Prisons Classification Guidelines1
In the federal prison system, new prisoners are assigned a security level score by a
Community Corrections Manager in the Bureau of Prisons (“BOP”). This score is used by
Regional and Central Office Designators to assign new prisoners to an institution with a
corresponding level of security, as determined by the security measures in place at the
institution.2
At a prisoner’s first program review following initial classification, which usually takes
place about seven months after the prisoner arrives at the institution, the prisoner will be
given a custody classification score. This score refers to “how much staff supervision is
required for the prisoner within and beyond the confines of the institution.” It determines,
among other things, the types of work assignments and activities a prisoner may participate
in and the level of staff supervision required.3 Note that the custody level score is different
from the security level score, which is used to match a prisoner with a specific type of
institution based on the institution’s security features.
A prisoner’s custody classification must be reviewed at least every twelve months and is
usually reviewed at the same time as program reviews.4 Also, a prisoner’s security level and
custody level will usually be reviewed when a new sentence is imposed, when a sentence is
reduced, when a disciplinary action occurs, or when there is a “change in external factors”
that “might affect the security or custody level.”5
The calculation of a new prisoner’s security level score is based on the prisoner’s Pre-
Sentence Investigation Report (“PSI”), a copy of the judgment from the prisoner’s case, and
the Individual Custody and Detention Report provided by the U.S. Marshals Service. Where
no PSI has been prepared, a Post-Sentence Investigation Report will be prepared. In some
cases, a Magistrate Information Sheet may be used. The BOP has identified several factors
that are considered in the determination of the security level score:
(1) The “level of security and supervision the inmate requires;”
(2) The “level of security and staff supervision the institution is able to provide;”
(3) The prisoner’s program needs (including substance abuse, medical/mental health
treatment, educational training, group counseling and other programs); and
(4) Various administrative factors, including the level of overcrowding in a prison, its
distance from the prisoner’s release residence, and any recommendations that the
judge may have offered.6
In considering these factors, the BOP uses a detailed scoring system including elements
based on the severity of the current offense, any past offenses, and other relevant details.
Scores in various elements are entered into a database known as SENTRY. This database
then calculates a prisoner’s security level score; for a detailed breakdown of this calculation,
refer to the BOP Program Statement.
1. The Federal Bureau of Prisons classification guidelines are documented in U.S. Department of
Justice, Federal Bureau of Prisons, Program Statement 5100.08, available at
http://www.bop.gov/policy/progstat/5100_008.pdf (last visited Oct. 27, 2008).
2. U.S. Department of Justice, Federal Bureau of Prisons, Program Statement 5100.08, Inmate
Security Designation and Custody Classification Manual, ch. 3, at 3 (2006).
Security Designation and Custody Classification Manual, ch. 1, at 1–2 (2006).
In addition to the scoring system, the BOP may also identify any of eleven “public safety
factors” present in the prisoner’s case. These factors are (1) validated membership in a
“disruptive group” identified in the Central Inmate Monitoring System (males only); (2)
current term of confinement in the “Greatest Severity” range according to the Offense
Severity Scale (males only); (3) sex offender status; (4) Central Inmate Monitoring
assignment of threat to government official; (5) deportable alien status; (6) remaining
sentence length (males only); (7) violent behavior (females only); (8) involvement in a serious
escape; (9) prison disturbance; (10) juvenile violence; and (11) serious telephone abuse.7 A
prisoner may receive up to three public safety factors; if more than three apply, those
providing the greatest public safety and security threat will be utilized.8 If these factors are
present, they raise a prisoner’s security classification despite a score that would, on its own,
produce a lower classification.9 Also, the Regional Director may waive these factors.
In addition, the Regional Director may find that any of eleven “management variables”
apply, which would result in a prisoner’s placement at an institution not at the same security
level as the prisoner’s security level score. 10 Examples of Management Variables include
population management, medical or psychiatric history, and greater security concerns. 11
Management variables generally relate to administrative considerations that might result in
a prisoner’s placement in a specific institution, while Public Safety Factors are
considerations that relate to BOP’s concern with a prisoner’s threat to society.
Custody classification evaluations are calculated in a similar way, using a scoring system
based primarily upon a prisoner’s criminal history and behavior within the institution. The
warden has discretion to assign a prisoner a custody level different from the one indicated by
the scoring system. If this is done, an explanation must be noted on the prisoner’s custody
classification form. Public safety factors and management variables may be used in this
determination.
There are different scoring systems for calculating the security levels of male and female
prisoners. Persons under age eighteen are not subject to this classification system. In
addition, certain special cases have special designation procedures, including military
prisoners and some medical or mental health cases. Please consult the Program Statement
for a full list of descriptions of these special cases.
3. New York’s Classification Guidelines
In New York, new prisoners are assigned an initial classification score at a reception
facility. Reclassification hearings occur periodically. In New York, the initial reclassification
screening occurs six months after a prisoner is taken into custody and every three months
thereafter. 12 The counselor assigning the classification enters numerical factors into a
computer program, which then calculates a score. The information used to determine the
factor values comes from evidence presented in the Commitment Paper, the Pre-sentence
12 . State of New York, Department of Correctional Services, Office of Classification and
Movement, Classification Manual, II-85 (1996). To acquire a copy of this manual, you may need to file a
request under the Freedom of Information Act. Please refer to Chapter 7 of the JLM, “Freedom of
Information,” for more information on FOIA requests.
Report (“PSR”), warrants, the Division of Criminal Justice Services (“DCJS”) Summary Case
History (“Rap Sheet”), sentencing minutes (when available), your interview, and, if you have
served a prior DOCS term, any available Department records from that term.13 Both official
and unofficial documents may be relied upon, though evidence from unofficial documents
“should be evaluated in relation to official documents and used only where appropriate.”14 If a
counselor cannot resolve differences between documents, he or she should use the “most
cautious alternative,” which may result in a higher security classification15
New York’s Security Classification Guidelines identify two security risk types: (1) public
risk, which is the likelihood a prisoner will escape and endanger the public; and (2)
institutional risk, which is the likelihood a prisoner will endanger staff, other prisoners, or
himself. The Guidelines use four characteristics to determine public risk: (1) history of
criminal violence; (2) history of escape and abscondence (hiding to avoid legal proceedings);
(3) time until earliest possible release; and (4) family, employment, school, and military
history.16 The Guidelines identify two characteristics to decide institutional risk: (1) family,
employment, school, and military history; and (2) institutional disciplinary history.17
These four characteristics are all evaluated by point scores. The point scores are then
combined to produce your security classification. More specific descriptions of each
characteristic can be found in the State of New York DOCS Classification Manual. The
Classification Manual also describes the procedures used for assigning point values and how
a score is calculated from these values.18
In addition to these four characteristics, you should know there are thirty-five additional
characteristics that are difficult to assign point values to, or that are not used very often, but
that can affect the classification you receive and may qualify you for a higher classification
level, even if you receive point totals that might alone produce a lower classification.19
Be aware that the characteristics for male and female prisoners may have different
elements. 20 Men and women are evaluated against different classification schemes. The
elements for minor and adult prisoners may also differ. Finally, there are some cases in
which the counselor will feel the point score does not accurately represent your security risk
and may adjust the security classification, although must provide an explanation for doing
so.21 Most other state prison systems have similar provisions that let a counselor or other
official assign a security classification to you that differs from the one the scoring system
produces.22

Movement, Classification Manual, II-43 (1996).
Movement, Classification Manual, II-1 (1996); see also N.Y. Comp. Codes R. & Regs. tit. 7, app. 1-E
(2008).
Movement, Classification Manual, II-1–2 (1996).
Movement, Classification Manual, II-3–4 (1996).
22. See, e.g., State of California, Department of Corrections & Rehabilitation, Operations Manual
§§ 61010.8, 61020.13 (2004) (authorizing department officials to depart from the classification scoring
4. California’s Classification Guidelines
In California, new prisoners are assigned a classification score when committed to a state
prison.23 This classification determines the type of institution the prisoner is placed in. In
California, there are four levels of prisons, with Level 1 housing the least dangerous
prisoners and Level 4 housing the most dangerous. In order to fill out an inmate
classification score sheet, a counselor will first review documents, such as probation reports,
and interview the prisoner. 24 A committee will then hold a hearing to determine your
classification.25 The committee will review the counselor’s score sheet and consider many
things during the hearing, including (1) background factors like age at first arrest, current
prison term, street gang affiliation, mental illness, prior sentences, and prior incarcerations;
and (2) prior behavior while incarcerated.26 These factors are assigned point scores, which
are then added up to give a classification. Sometimes, the law requires a mandatory
minimum score for certain sentences or crimes, which will replace your score if it is below the
mandatory minimum.27 In other cases, prison officials can adjust your score if necessary for
safety or other institutional needs, like prison overcrowding. 28 A score of 0–18 means
placement in a Level 1 institution; a score of 19–27 means placement in a Level 2 institution;
a score of 28–51 means placement in a Level 3 institution; and a score higher than 51 means
placement in a Level 4 institution.
The committee will reclassify you and recalculate your score at least once a year.29 When
possible, the committee should give you notice before any hearing so you have time to
prepare for the hearing.30 At the hearing, the committee will consider two things: (1) your
favorable behavior since the last review, such as six-month periods without any serious
disciplinary actions and six-month periods with average or above average performance in
certain programs; and (2) any unfavorable behavior since the last review, such as serious
misbehavior, assault, possession of a deadly weapon, drug distribution, or starting a riot.31
Favorable behavior will reduce your score and unfavorable behavior will increase your score.
Remember, a lower score means a lower classification and placement in a less secure
institution.
system in individual cases); 103 Mass. Code Regs. 420.08(f) (1995) (authorizing override of scored
classification level); N.J. Admin. Code § 10A: 9-2.14 (Supp. 2007) (providing for override of the initial
classification determined by scoring); Or. Admin. R. 291-078-0020(4) (2008) (providing for either
decreases or increases in the level of supervision from that determined through the risk assessment
score).
23. Cal. Penal Code § 5068 (2008).
24 . State of California, Department of Corrections & Rehabilitation, Operations Manual §
61010.9 (2004). This manual is available at
http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/DOM/Ch_6_Printed_Final_DOM.pdf (last
visited Jan. 21, 2009). To acquire a print copy, you may need to file a request under the Freedom of
Information Act. Please refer to Chapter 7 of the JLM, “Freedom of Information,” for more information
on FOIA requests.
25. Cal. Code Regs. tit. 15, §§ 3375–76 (2003).
26. Cal. Code Regs. tit. 15, § 3375.3 (2003).
27 . Cal. Code Regs. tit. 15, § 3375.3 (2003); see also State of California, Department of
Corrections & Rehabilitation, Operations Manual § 61010.11.5 (2004).
28. State of California, Department of Correction & Rehabilitation, Operations Manual § 61010.8
(2004).
29. Cal. Code Regs. tit. 15, § 3376 (2003); see also State of California, Department of Corrections
& Rehabilitation, Operations Manual § 61020.14 (2004).
30. Cal. Code Regs. tit. 15, § 3375 (2003).
31. Cal. Code Regs. tit. 15, § 3375.4 (2003).
5. Legal Challenges to Classification Decisions
Generally, legal claims made to improve the conditions of imprisonment are filed under
42 U.S.C. § 1983 (“Section 1983”). Because security classification determines the conditions
of imprisonment, most prisoners who challenge their security classification file their claims
under Section 1983. The U.S. Constitution and various other federal statutes provide many
individual rights; Section 1983 is a federal statute that protects you from violations of these
rights by allowing you to sue the individuals responsible in federal court.32 Federal court is
probably a better place to seek a remedy than state court, especially if a state remedy does
not exist, or if the federal remedy would override the state remedy. 33 For detailed
instructions on how to file a claim under Section 1983, see Chapter 16 of the JLM, “Using 42
U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of the Federal Law.” As
a prisoner, however, it is also crucial that you read JLM Chapter 14 on the Prison Litigation
Reform Act (“PLRA”). The PLRA requires you to exhaust administrative remedies before
filing suit and imposes substantial penalties for a failure to exhaust them.
The Due Process Clause of the Fourteenth Amendment protects individuals, including
prisoners, from the loss of “life, liberty, or property” at the hands of the government without
due process of law.34 Because the Constitution itself does not provide prisoners the right to be
housed at any particular classification level, a prisoner must rely on state law to create a
liberty interest to have a valid claim for denial of due process.
In 1995, in Sandin v. Conner, the Supreme Court created a new standard for
determining whether conditions of imprisonment constitute a due process violation.35 The
new standard emphasizes the nature of the deprivation suffered by the prisoner. You should
be careful when researching this issue as much of the case law on prisoner classification was
decided under an old standard. You must make sure that the cases you research use the
current Sandin standard.
In Sandin, the Court held that state-created liberty interests “will be generally limited to
freedom from restraint which … imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life,” 36 and the hardship imposed upon the
prisoner must be of “real substance.” 37 Following Sandin, courts have been extremely
reluctant to find a particular security classification constitutes a deprivation of a
constitutional liberty interest.38 It is no longer enough to merely show that prison officials
32. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961) (applying § 1983
to illegal search of civilian home and detention of citizen by police).
33. See, e.g., Monroe v. Pape, 365 U.S. 167, 174, 81 S. Ct. 473, 477, 5 L. Ed. 2d 492, 498 (1961)
(explaining an aim of § 1983 is to provide a federal remedy where the state remedy, though enough in
theory, was not available in practice).
34. U.S. Const. amend. XIV, § 1. For a more detailed discussion of “liberty interests” and the
degree of due process rights owed to prisoners, see Chapter 18 of the JLM, “Your Rights at Prison
Disciplinary Proceedings.”
35. Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995) (finding no liberty
interest in prisoner’s administrative segregation absent atypical, significant deprivation).
See, e.g., Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999) (finding that a due process claim was
meritless because the prisoner had no protectible interest in custodial classification and did not allege
physical injury in claim for damages); Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998) (holding under
ordinary circumstances administrative segregation will never be grounds for a constitutional claim
because it does not constitute deprivation of a constitutional liberty interest).
38. See, e.g., Iqbal v. Hasty, 490 F.3d 143, 161 (2d Cir. 2007) (holding that a prisoner has a
protected liberty interest “only if the deprivation ... is atypical and significant and the state has created
the liberty interest by statute or regulation”); Morales v. Chertoff, No. 06-12752, 2006 U.S. App. LEXIS
31846, at *3–4 (11th Cir. Dec. 27, 2006) (unpublished) (finding that the issue of custodial classification
does not implicate an atypical or significant deprivation); Portley-El v. Brill, 288 F.3d 1063, 1065 (8th
did not follow the classification guidelines, as it was before 1995. Instead, you will have to
convince the court that the officials’ decision to classify you in a particular way constituted
an atypical and significant liberty deprivation. So far, no prisoner has succeeded in doing so.
But, prisoners have had some success challenging long-term placement, without procedural
due process, in administrative segregation.39
As the above discussion suggests, it is extremely unlikely that you will be able to
convince courts that prison officials gave you an unfair classification based on their
evaluation of the information contained in the Commitment Paper, the Pre-Sentence Report
(“PSR”), warrants, the DCJS Summary Case History (“Rap Sheet”), sentencing minutes, the
interview, or any available Department records of a prior term. But, it may be possible to
convince the court that some of the information in these documents was incorrect, or that a
clerical error was made in transferring the information from these documents to a
classification worksheet or a computer program, in which case any security classification
derived from them was not only unfair but also invalid, since it would be based on false
information.40 Be aware you may face difficulties in obtaining these documents for review,
and you may be unsuccessful in doing so even if you bring the matter to court.41
6. Administrative Options
Given the court’s reluctance to interfere with security classification, the most realistic
approach to getting your classification lowered may be through the prison’s internal appeals
process. Keep in mind that an unsuccessful legal appeal could have consequences for you
under the Prison Litigation Reform Act (“PLRA”).42 Additionally, the PLRA requires that you
exhaust administrative options before bringing a legal action under Section 1983.43 Be sure
to read Chapter 14 of the JLM, “The Prison Litigation Reform Act.”
Cir. 2002) (holding that “administrative and disciplinary segregation are not atypical and significant
hardships under Sandin”); Leamer v. Fauver, 288 F.3d 532, 546 (3d Cir. 2002) (holding that, “[u]nder
Sandin, the mere fact of placement in administrative segregation is not in itself enough to implicate a
liberty interest”); Hatch v. District of Columbia, 184 F.3d 846, 856 (D.C. Cir. 1999) (finding that,
following Sandin, “a deprivation in prison implicates a liberty interest protected by the Due Process
Clause only when it imposes an ‘atypical and significant hardship’ on an inmate in relation to the most
restrictive confinement conditions that prison officials, exercising their administrative authority to
ensure institutional safety and good order, routinely impose on inmates serving similar sentences”);
Freitas v. Ault, 109 F.3d 1335, 1337–38 (8th Cir. 1997) (holding administrative detention and prison
transfer do not meet the “atypical and significant hardship” required to implicate a liberty interest).
39. See Giano v. Selsky, 238 F.3d 223, 226 (2d Cir. 2001) (finding an aggregated period of
confinement in administrative segregation of 762 days is a “sufficient departure from the ordinary
incidents of prison life to require procedural due process protections under Sandin” (quoting Colon v.
Howard, 215 F.3d 227, 231 (2d Cir. 2000))). In New York, at least, when looking at whether placement
in administrative segregation constitutes an “atypical and significant” hardship, federal courts will
aggregate separate special housing unit and disciplinary segregation sentences where they constitute a
sustained period of confinement. Sims v. Artuz, 230 F.3d 14, 23–24 (2d Cir. 2000). This means they will
consider time spent in administrative segregation, regardless of whether it was in a different facility, if
the confinement is continuous. In Giano, for instance, the court combined the prisoner’s 92-day
confinement at one institution with his 670-day confinement at another.
40. Udzinski v. Coughlin, 592 N.Y.S.2d 801, 802, 188 A.D.2d 716, 717 (3d Dept. 1992) (ordering
that petitioner’s crime and sentence report, upon which his security classification was based, be
corrected because Department of Correctional Services employees inaccurately transcribed information
from pre-sentence report into their documents).
41. Kilgore v. People, 710 N.Y.S.2d 690, 274 A.D.2d 636 (3d Dept. 2000) (finding prisoner’s bare
assertion that he required the pre-sentence report in order to properly prepare for an appearance before
the Board of Parole was insufficient to constitute a showing of need for the report).
42. See Chapter 14 of the JLM, “The Prison Litigation Reform Act,” for more information on the
PLRA.
43. The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (2006).
No matter where you are incarcerated, your security classification should be periodically
reviewed. In New York State, you should have regular opportunities to discuss your security
classification during scheduled interviews with your assigned counselor.44 You should notify
your counselor of any information you think could impact your security classification, like a
change in your rap sheet. You should also give copies of any relevant documents to your
counselor, who must then respond to you within seven days. If the counselor’s response is
unsatisfactory, you have the option of appealing to the Senior Counselor in writing. You
should clearly identify your request as a “Security Classification Guideline Appeal.” The
Senior Counselor must respond to your appeal within seven days.
Finally, if you have exhausted internal administrative options, and you are imprisoned in
the state of New York, you can institute an Article 78 court proceeding. Article 78 provides a
procedure for challenging administrative decisions in court. Article 78 only applies to the
state of New York, but if you are imprisoned elsewhere, you should research whether or not
your state has a similar law. For detailed instructions on bringing an Article 78 proceeding,
see Chapter 22 of the JLM, “How to Challenge Administrative Decisions Using Article 78 of
the New York Civil Practice Law and Rules.” There are very strict rules and time limits to
remember when bringing an Article 78 proceeding, so it is important that you read this
Chapter carefully.
C. Gang Validation
1. Definition and Discussion
Gang validation is the process by which prison officials determine that a prisoner is an
associate or a member of a gang or Security Threat Group (“STG”). Once that decision has
been made, the prisoner is “administratively segregated,” meaning that he is housed
separately from and receives different treatment than prisoners who have not been validated
as gang members or associates. Although the specific procedures vary from state to state,
Arizona, California, Colorado, Connecticut, Florida, Illinois, Massachusetts, Michigan,
Nebraska, New Jersey, Oregon, Tennessee, Texas, and Wisconsin all segregate suspected
gang members from the rest of the prison population.45 While a state prison system may use
a standard written definition of what constitutes a gang member, the process for actually
proving that someone is a gang member, and the amount of proof required, may vary by
state.46
Generally, the only way to be declassified as a gang member, other than getting paroled,
is to “debrief.” “Debriefing” is a process that may involve informing prison officials of the
44 . State of New York, Department of Correctional Services, Directive No. 4020, Security
Classification Guideline Appeal (1999).
45 . See Ariz. Dep’t of Corr., Dir. Instruction No. 67 (2001), available at
http://www.azcorrections.gov/adc/policy/index.asp (follow “DI 67 Protective Segregation” hyperlink);
Cal. Code Regs. tit. 15, § 3341.5 (2008); Colo. Dep’t of Corr., Admin. Reg. No. 600-07 (2008), available at
https://exdoc.state.co.us/secure/comboweb/weblets/index.php/regulations/home; Conn. Dep’t of Corr.
Admin., Directive No. 6.14 (2008), available at http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0614.pdf; Fla.
Dep’t of Corr., Gang and Security Threat Group Awareness, available at
http://www.dc.state.fl.us/pub/gangs/index.html (last visited Oct. 17, 2008); Ill. Admin. Code tit. 20, §
505.40 (2008); 103 Mass. Code Regs. 421.09 (2008); Mich. Dep’t of Corr., Pol’y Directive No. 04.04.113
(2007), available at http://www.michigan.gov/documents/corrections/0404113_216357_7.pdf; Neb. Corr.
Servs., Admin. Reg. No. 201.05, available at http://www.corrections.state.ne.us/policies/files/201.05.pdf
(last visited Oct. 17, 2008); N.J. Admin. Code § 10A:5-6.3 (2008); Or. Admin. R. 291-069-0270 (2008);
Tenn. Dep’t of Corr. Admin., Pol’y No. 404.10 (2007), available at
http://www.tennessee.gov/correction/pdf/404-10.pdf; Tex. Dep’t of Corr., Offender Orientation Handbook
26 (2004), available at http://www.tdcj.state.tx.us/publications/cid/OffendOrientHbkNov04.pdf; Wis.
Admin. Code DOC § 303.20 (2008).
46. Claire Johnson et al., Nat’l Criminal Justice Reference Serv., Prosecuting Gangs: A National
Assessment (1995), available at http://www.ncjrs.gov/txtfiles/pgang.txt.
identities and activities of “fellow” gang members. Obviously, debriefing places the suspected
gang member’s well-being at risk, as it may subject him to retaliation. This Section discusses
the failures that individuals who have tried to challenge their gang validation in court have
experienced and offers some suggestions for challenging gang validation through
administrative proceedings rather than in court.
California’s system of gang validation is one of the most developed and harshest in the
nation. California has been segregating suspected gang members since at least 1984, and
other states have studied California in developing their own gang validation procedures.47 In
California and states with similar procedures, you are validated as a gang member if you
meet any three of several criteria. 48 These criteria include, but are not limited to: gang
tattoos, correspondence to or from known gang members or correspondence containing
references to gang activity, wearing gang colors, association with known gang members,
possession of gang-related literature, possession of a photograph of known gang members,
and identification by a fellow prisoner as a gang member. Misconduct is not necessarily
required to be labeled a gang member.
Most of the case law on gang validation comes from California, where prisoners have
been most active in using the courts to challenge their classification as gang members. For
that reason, the following discussion addresses claims regarding gang validation filed in
California in both state and federal court. Federal courts have not been receptive to prisoner
claims, declining to decide whether prisoners have a constitutionally protected “liberty
interest” in being classified a particular way because the due process afforded to prisoners by
the California system would be sufficient even if such an interest was found to exist.49 For
this reason, the courts have rejected Fourteenth Amendment claims that classification as a
gang member violates a prisoner’s due process rights.50 The courts have also rejected Eighth
Amendment claims that the debriefing requirement subjects a prisoner to cruel or unusual
punishment51 and claims that it violates a prisoner’s Fifth Amendment protection from self-
incrimination.52 The courts have generally held prison officials should have broad discretion
47. Scott N. Tachiki, Indeterminate Sentences in Supermax Prisons Based Upon Alleged Gang
Affiliations: A Reexamination of Procedural Protection and a Proposal for Greater Procedural
Requirements, 83 Cal. L. Rev. 1115, 1129 (1995).
48 . Madrid v. Gomez, 889 F. Supp. 1146, 1242 (N.D. Cal. 1995) (quoting the California
Department of Corrections Operations Manual § 55070.19.2, which requires at least three “original,
independent source items of documentation indicative of actual membership” in a gang).
49. Castañeda v. Marshall, No. C-93-03118 CW, 1997 U.S. Dist. LEXIS 4612, at *14 (N.D. Cal.
Mar. 10, 1997) (unpublished) (finding that “even assuming that [the prisoner] has a liberty interest in
being free from administrative segregation, it is clear … that he received all the process that is
required,” namely notice of charges, informal hearing, and an opportunity to respond to the charges);
Galvaldon v. Marshall, No. C-95-1674-MHP, 1997 U.S. Dist. LEXIS 21500, at *14–15 (N.D. Cal. Nov.
12, 1997) (unpublished) (refusing to decide whether there is a liberty interest in avoiding segregation
because “the process afforded [the prisoner] satisfied the minimum requirements of the Due Process
Clause”).
Mar. 10, 1997) (unpublished) (finding that, even assuming a liberty interest, the administrative
segregation of a prisoner confidentially validated as a prison gang member did not violate the 14th
Amendment because all due process necessary was given); Galvaldon v. Marshall, No. C-95-1674-MHP,
1997 U.S. Dist. LEXIS 21500, at *14 (N.D. Cal. Nov. 12, 1997) (unpublished) (refusing to determine
whether there is a liberty interest in being free from administrative segregation because minimum due
process was given).
Mar. 10, 1997) (unpublished) (rejecting prisoner’s claim of an 8th Amendment violation stemming from
the fact that his life would be at risk if he implicated other prisoners as gang members during
debriefing because there were no specific threats against him and prison officials took reasonable
precautions through housing decisions).
52. Griffin v. Gomez, No. C-92-1236 EFL, 1995 U.S. Dist. LEXIS 9263, at *19 (N.D. Cal. June 29,
in such administrative matters, and the California courts have disposed of most gang
validation complaints at summary judgment (before both sides have a full chance to look for
evidence).
Before you bring any action, you should consider the possibility that the court where you
argue your case will follow the lead of the California courts. You should also consider the
implications that dismissal of your case could have for you under the Prison Litigation
Reform Act.53 Finally, before taking any action, it is important that you also read Part B of
this Chapter, which is devoted to general security classification and contains additional
information that you may find relevant.
2. Fourteenth Amendment Claims
The Due Process Clause of the Fourteenth Amendment protects individuals, including
prisoners, from loss of “life, liberty, or property” at the hands of government without due
process of law.54 However, courts in California have found that administrative segregation
does not violate the Due Process Clause itself. They have generally determined that it is not
necessary to decide whether or not a prisoner has a valid state-created liberty interest in
being free from administrative confinement because the due process provided to prisoners by
the California system would be sufficient even if this liberty interest were found to exist.55
In California, the due process provided in classification and administrative segregation
proceedings is considered adequate. The courts have found California procedures provide the
prisoner with some notice of the charges against him, and with an opportunity to present his
views and concerns to the official charged with deciding whether to transfer him to
administrative segregation. Due process requires that, following a prisoner’s administrative
segregation, officials also engage in periodic review of his confinement.56 Although prison
officials are not required by due process to provide the names of persons providing
information relied upon in validating a suspected gang member, if they fail to do so, the
1995) (unpublished) (“While the debriefing process may require petitioner to incriminate himself and
others with respect to gang activities, the 5th Amendment is not violated because the information
revealed during the debriefing may not, by the terms of the [prison’s] policy, be used in any later
criminal proceedings.”); Castañeda v. Marshall, No. C-93-03118 CW, 1997 U.S. Dist. LEXIS 4612, at
*23–24 (N.D. Cal. Mar. 10, 1997) (unpublished) (noting that the 5th Amendment is not implicated in
debriefing because the information is not intended for and cannot, due to lack of Miranda warnings, be
used in criminal proceedings); Medina v. Gomez, No. C-93-1774 TEH, 1997 U.S. Dist. LEXIS 12208, at
*16–17 (N.D. Cal. Aug. 14, 1997) (unpublished) (holding that the 5th Amendment is not implicated in
debriefing because its purpose is not to gather information for subsequent criminal prosecution, and
procedural safeguards prevent its use in this way).
53. See Chapter 14 of the JLM for a discussion of the PLRA.
54. U.S. Const. amend. XIV, § 1. For a more detailed discussion of “liberty interests” and the
degree of due process rights owed to prisoners, see Chapter 18 of the JLM, “Your Rights at Prison
Disciplinary Hearings.”
Mar. 10, 1997) (unpublished) (finding that “even assuming that [the prisoner] has a liberty interest in
being free from administrative segregation, it is clear … he received all the process that is required,”
namely notice of charges, informal hearing, and an opportunity to respond to the charges); Galvaldon v.
Marshall, No. C-95-1674-MHP, 1997 U.S. Dist. LEXIS 21500, at *14–15 (N.D. Cal. Nov. 12, 1997)
(unpublished) (refusing to decide whether a liberty interest in avoiding segregation exists because “the
process afforded [the prisoner] satisfied the minimum requirements of the Due Process Clause”).
56. Rojas v. Cambra, No. C 96-2990 VRW, 1997 U.S. Dist. LEXIS 7610, at *11 (N.D. Cal. May 20,
1997) (unpublished) (noting due process requirement of periodic review in the administrative context of
gang segregation); Castañeda v. Marshall, No. C-93-03118 CW, 1997 U.S. Dist. LEXIS 4612, at *13
(N.D. Cal. Mar. 10, 1997) (unpublished) (“A prisoner in administrative segregation must also receive a
periodic review of his or her confinement.”); see also Hewitt v. Helms, 459 U.S. 460, 477 n.9, 103 S. Ct.
864, 874 n.9, 74 L. Ed. 2d 675, 692 n.9 (1983) (noting that prison administrators must engage in some
sort of periodic review of whether the prisoner remains a security threat), as modified by Sandin v.
Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995).
record must contain a prison official’s statement that safety considerations prevented
disclosure of the informant’s name.57
The Ninth Circuit has found that the Due Process Clause does not require
(1) Detailed written notice of charges;
(2) Representation by counsel or counsel-substitute;
(3) An opportunity to present witnesses;
(4) A written description of the reasons for placing the prisoner in administrative
segregation; or
(5) The disclosure of the identity of any person providing information leading to the
placement of the prisoner in administrative segregation.58
Placement in segregation for an indeterminate period based upon gang membership does
not require any procedure or protections beyond those required in regular administrative
segregation cases.59 But a prisoner may not be confined separately for gang affiliation “unless
the record contains some factual information from which prison officials can reasonably
conclude that the information supporting [segregation] is reliable.” 60 In California, under
statute, information is considered reliable if one of the following five criteria is met:
(1) The confidential informant has previously given information that has proven to be
true;
(2) Other confidential sources have independently provided the same information;
(3) Other information provided by the confidential informant is self-incriminating;
(4) Part of the information provided is corroborated through investigation or information
by non-confidential sources; or
(5) The confidential informant is the victim.61
Finally, a further due process-related claim that you might make is that your validation
as a gang member has been made in retaliation for some other unrelated legal activity that
you have engaged in, such as filing an appeal. To state the prima facie case,62 you have the
burden of showing that retaliation for the exercise of protected conduct was the “substantial”
or “motivating” factor behind the prison officials’ conduct.63 Additionally, you must show that
57. Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987) (holding that due process requires
the affirmative statement of a prison official where safety considerations prevent the disclosure of the
informant’s name); Castañeda v. Marshall, No. C-93-03118 CW, 1997 U.S. Dist. LEXIS 4612, at *16 n.6
(N.D. Cal. Mar. 10, 1997) (unpublished) (“[I]f prison officials wish to keep the informant's identity
confidential, the record must contain a prison official's statement that safety considerations prevented
the disclosure of the informant's name.”).
58. Toussaint v. McCarthy, 801 F.2d 1080, 1100–01 (9th Cir. 1986) (detailing those things not
required by due process); see also Medina v. Gomez, No. C-93-1774 TEH, 1997 U.S. Dist. LEXIS 12208,
at *9 (N.D. Cal. Aug. 14, 1997) (unpublished) (detailing those things not required by due process);
Castañeda v. Marshall, No. C-93-03118 CW, 1997 U.S. Dist. LEXIS 4612, at *13 (N.D. Cal. Mar. 10,
1997) (unpublished) (detailing those things that the Due Process Clause does not require).
1997) (unpublished) (citing Madrid v. Gomez, 889 F. Supp. 1146, 1275 (N.D. Cal. 1995)).
1997) (unpublished) (emphasis added); see also Koch v. Lewis, 96 F. Supp. 2d 949, 965 (D. Ariz. 2000)
(noting that there must be some reliable evidence of current gang/STG membership before the state
may impose indefinite administrative segregation), vacated as moot, Koch v. Schriro, 399 F.3d 1099
(9th Cir. 2005).
61. Cal. Code Regs. tit. 15, § 3321(c) (2004).
62. To state a prima facie case is to state sufficient facts to allow the judge or jury to find in your
favor if everything you said is true and undisputed.
63. Koch v. Lewis, 96 F. Supp. 2d 949, 956 (D. Ariz. 2000) (finding a prima facie case of
retaliation where prisoner was subjected to a sham gang validation hearing with flimsy and outdated
evidence after he had successfully pursued legal remedies for various prison conditions), vacated as
moot, Koch v. Schriro, 399 F.3d 1099 (9th Cir. 2005).
the retaliatory action did not advance legitimate prison management or prisoner treatment
goals (referred to as “penological goals”)64 or was not tailored narrowly enough to achieve
such goals. Arbitrary targeting of prisoners for gang validation is not an action narrowly
tailored to achieve valid penological goals. In fact, you may convincingly argue that gang
validations without good cause misdirect prison resources away from other proceedings and
compromise prison security. Once you have established a prima facie case of retaliation and
demonstrated that the retaliatory action does not advance a legitimate penological goal, the
burden shifts to the prison officials to establish that they would have validated you as a gang
member even if you had not engaged in the legally protected conduct.
3. Eighth Amendment Claims
The Eighth Amendment of the Constitution prohibits “the unnecessary and wanton
infliction of pain”65 and punishment that is “grossly out of proportion to the severity of the
crime.”66 California courts have rejected the argument that the debriefing process constitutes
an Eighth Amendment violation because it could subject a prisoner to retaliation from other
gang members, thereby placing his life and well-being at risk. They have generally found this
allegation to be speculative, and the argument has not survived summary judgment without
evidence of a particular threat to the prisoner bringing the case or without evidence that
prison officials are indifferent to his well-being.67
4. Fifth Amendment Claims
The Constitution’s Fifth Amendment provides no person “shall be compelled in any
criminal case to be a witness against himself.”68 Debriefing generally requires a prisoner to
disclose information regarding himself and other gang members and their gang-related
activities. Prison officials have argued, and courts have agreed, that debriefing is necessary
to determine whether a prisoner is sincere in his repudiation of the gang, since other gang
members are unlikely to tolerate a “snitch.” Officials also argue debriefing helps determine if
a gang member’s information is reliable and provides further information about the gang.69
California courts have held that debriefing does not violate the Fifth Amendment
protection against self-incrimination because, while the prisoner may be required to
From Violations of Federal Law,” and Chapter 27 of the JLM, “Religious Freedom in Prison,” for more
information on the “legitimate penological goals” language and the Turner standard.
(quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925, 49 L. Ed. 2d 859, 875 (1976)).
(quoting Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861, 2866, 53 L. Ed. 2d 982, 989 (1977)
(plurality opinion)).
Mar. 10, 1997) (unpublished) (rejecting prisoner’s claim of an 8th Amendment violation stemming from
the fact that his life would be at risk if he implicated other prisoners as gang members during
debriefing because there were no specific threats against him and prison officials took reasonable
precautions through housing decisions).
68. U.S. Const. amend. V.
69. Griffin v. Gomez, No C-92-1236 EFL, 1995 U.S. Dist. LEXIS 9263, at *5 (N.D. Cal. June 29,
1995) (unpublished) (“[D]ebriefing is necessary to determine whether the inmate is sincere in his
repudiation of the gang, since once an inmate has debriefed, he is unlikely to be welcomed back into the
gang. Debriefing is also necessary to determine if the inmate's information is reliable, and to allow
prison officials to gather information about the gang.”); Castañeda v. Marshall, No. C-93-03118 (CW),
1997 U.S. Dist. LEXIS 4612, at *22 (N.D. Cal. Mar. 10, 1997) (unpublished) (“Defendants claim that
the debriefing process is necessary to test the sincerity of the inmate and to gather information about
prison gang activity.”); Medina v. Gomez, No. C-93-1774 (TEH), 1997 U.S. Dist. LEXIS 12208, at *15
(N.D. Cal. Aug. 14, 1997) (unpublished) (“The primary purposes of debriefing are to test the sincerity of
the inmate's gang renunciation and to gather information about gang activities.”).
incriminate himself with respect to gang activities, that information is not, under
California’s policy, to be used in later criminal proceedings.70 The debriefing procedure does
not have to provide prisoners with immunity because the courts have held the right against
self-incrimination “does not arise in the debriefing processing.” 71 Remember, the right
against self-incrimination is a personal protection and may not be invoked to prevent the
implication of others.
Keep in mind, however, that, as a California prisoner, the policy provides you with only
thin protection. Though the regulations state debriefing is “not for the purpose of acquiring
incriminating evidence against the subject,”72 they do not explicitly forbid the evidence being
used in later legal proceedings. Partly as a result of prisoners challenging the debriefing
process, the regulations also provide that if a prisoner “makes a statement that tends to
incriminate the subject in a crime,” the subject must waive his right against self-
incrimination “prior to questioning ... about the incriminating matter.”73 However, the prison
official or gang investigator conducting the debriefing determines when a statement “tends to
incriminate,” and the debriefing prisoner has no attorney or representative present at the
debriefing. If you are currently appealing your conviction or sentence and considering
debriefing, you should talk to your appellate attorney about the possible implications
debriefing may have on your appeal.
If you are not in California, you should investigate whether the system in which you are
incarcerated has a policy on the use of information gathered through gang debriefings in
future criminal proceedings. If it does not have such a policy, then the debriefing
requirement may present a valid Fifth Amendment issue.
5. Equal Protection and Free Exercise of Religion Claims
To prevail on an equal protection claim, a prisoner usually must prove that (1) the
government has intentionally treated similarly situated prisoners differently; and (2) there is
no rational relationship between this dissimilar treatment and any legitimate penological
interest.74 This standard is frequently called “rational basis review.” If, however, you allege
you were treated differently than other similarly situated prisoners because of your race,
some courts, including California, will apply “strict scrutiny” to the government’s policy.
“Strict scrutiny” is a significantly higher standard than “rational basis review” and,
therefore, is more difficult for the government to meet (and more favorable to prisoners). To
survive “strict scrutiny,” the government must prove that the treatment you are challenging
70. Griffin v. Gomez, No C-92-1236 EFL, 1995 U.S. Dist. LEXIS 9263, at *19 (N.D. Cal. June 29,
1995) (unpublished) (“While the debriefing process may require petitioner to incriminate himself and
others with respect to gang activities, the 5th Amendment is not violated because the information
revealed during the debriefing may not, by the terms of the [prison’s] policy, be used in any later
criminal proceedings.”); Castañeda v. Marshall, No. C-93-03118 CW, 1997 U.S. Dist. LEXIS 4612, at
*23–24 (N.D. Cal. Mar. 10, 1997) (unpublished) (noting that the 5th Amendment is not implicated in
debriefing because the information is not intended for and cannot, due to lack of Miranda warnings, be
used in criminal proceedings); Medina v. Gomez, No. C-93-1774 TEH, 1997 U.S. Dist. LEXIS 12208, at
*16 (N.D. Cal. Aug. 14, 1997) (unpublished) (holding that the 5th Amendment is not implicated in
debriefing because its purpose is not to gather information for subsequent criminal prosecution, and
procedural safeguards prevent its use in this way).
71. Griffin v. Gomez, No. C-92-1236 EFL, 1995 U.S. Dist. LEXIS 9263, at *19 (N.D. Cal. June 29,
72. Cal. Code Regs. tit. 15, § 3378.1(b) (2001).
73. Cal. Code Regs. tit. 15, § 3378.2 (2001).
74. Harbin-Bey v. Rutter, 420 F.3d 571, 576 (6th Cir. 2005); see Turner v. Safley, 482 U.S. 78, 89,
107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64, 79 (1987) (establishing the “legitimate penological interests”
test).
both: (1) promotes a compelling state interest; and (2) is narrowly or suitably tailored to that
interest.75
An example of a policy of different treatment based on race was found in Johnson v.
California.76 In Johnson, the court applied a strict scrutiny standard of review with regard to
the prison’s policy of placing new or transferred prisoners with cellmates of the same race
during the initial sixty-day evaluation period. In Harbin-Bey v. Rutter, however, the Sixth
Circuit Court of Appeals held that a prison’s decision to designate a prisoner as a member of
a Security Threat Group without a hearing did not involve different treatment based on
race.77 The court in Harbin-Bey held that this policy applied to all prisoners and therefore
was not a decision based on race.78
Claims that a debriefing policy impedes the free practice of a prisoner’s religion have
tended to fail in California courts because the policy does not “substantially burden” free
exercise.79 To prove interference with free exercise of religion, you must show that the policy
substantially interferes with a central principle of the religion. 80 The policy will still be
allowed, however, if it is the least restrictive means of furthering a compelling government
interest, like security in a prison.81 In Rojas v. Cambra, a prisoner claimed the debriefing
process, which involved admitting gang membership and was the only way to exit
administrative segregation, violated the First Amendment because as a devout Catholic he
could not confess to anyone but a priest.82 The court dismissed the claim because the prisoner
could choose to debrief or not debrief; thus, the exercise of his religion was not substantially
burdened.83
6. Administrative Options
Given courts’ general hostility toward gang validation claims, the most effective way to
challenge classification is probably through administrative procedures within the prison. You
should be granted periodic review of your status as an alleged gang member, at which time
you should have the opportunity to express your views on your classification. This is your
opportunity to ensure that officials are following the proper administrative procedures that
the California courts have relied upon in dismissing prisoners’ due process claims. For
example, as discussed above, all anonymous testimony must be accompanied by an official
statement that the identity of your accuser has been withheld for security reasons and that
testimony should be as complete as it can possibly be without identifying the source. You
should challenge prison officials to adhere to this standard.
75. Johnson v. California, 543 U.S. 499, 505, 125 S. Ct. 1141, 1146, 160 L. Ed. 2d 949, 958 (2005);
see also Comfort v. Lynn Sch. Comm., 418 F.3d 1, 13 (1st Cir. 2005) (discussing the race-conscious
transfer policy of the “Lynn Plan” to improve the quality of schools in the district and eliminate
minority isolation); Jana-Rock Constr., Inc. v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195, 205 (2d Cir.
2006) (clarifying that extrinsic showing of discriminatory animus or effect is not necessary to trigger
strict scrutiny).
76. Johnson v. California, 543 U.S. 499, 505, 125 S. Ct. 1141, 1146, 160 L. Ed. 2d 949, 958 (2005).
But see Medina v. Gomez, No. C-93-1774 TEH, 1997 U.S. Dist. LEXIS 12208, at *19 (N.D. Cal. Aug. 14,
1997) (unpublished) (holding that debriefing neither “burdens a fundamental right nor targets a
suspect class”).
77. Harbin-Bey v. Rutter, 420 F.3d 571, 576 (6th Cir. 2005).
78. Harbin-Bey v. Rutter, 420 F.3d 571, 576 (6th Cir. 2005).
80. Religious Freedom Restoration Act (RFFA), 42 U.S.C. § 2000bb-1(a) (2006).
81. Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1(b) (2006).
82. Rojas v. Cambra, No. C 96-2990 VRW, 1997 U.S. Dist. LEXIS 7610, at *19–20 (N.D. Cal. May
Chapter 15 of the JLM, “Inmate Grievance Procedures,” contains detailed instructions on
how to pursue administrative remedies. The focus of Chapter 15 is on the state of New York’s
Internal Grievance Program (“IGP”), but you will also find information on locating the
guidelines and procedures for filing grievances in other states. You may also find Chapter 18
of the JLM, “Your Rights at Prison Disciplinary Proceedings,” helpful in challenging your
classification. Finally, if you have exhausted all of the administrative options and you are
imprisoned in the state of New York, you can file an Article 78 proceeding. Article 78
provides a procedure for challenging administrative decisions in court. For instructions on
how to bring an Article 78 proceeding, see Chapter 22 of the JLM.
D. Conclusion
Your security classification is important because it influences where you are incarcerated
and what sort of treatment you will receive. If you have undergone gang validation and been
designated a member of a Security Threat Group, it may be possible to challenge this
designation, although such challenges are difficult to win. While you may have some room to
raise a challenge on equal protection grounds if the prison used a race-based policy to
designate you, you are probably more likely to be successful challenging your security
classification through your prison’s administrative procedures.
Manual
Chapter 32:
Special Considerations for
Sex Offenders

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 32
SPECIAL CONSIDERATIONS FOR SEX OFFENDERS*

A. Introduction
Prisoners who have been convicted of or who pled guilty to one or more sex offenses
should be aware of a number of issues that apply uniquely to them. Sex offenses range in
seriousness and are defined differently in each state. Common sex offenses include sexual
intercourse with another person or touching another person,1 where that other person is
(1) Forced to act;
(2) Incapacitated (and therefore unable to agree to sexual behavior); or
(3) Under the age of consent (a child).
The vast majority of sex offenses are felonies, although some lower-level offenses, such as
sexual misconduct,2 forcible touching,3 and sexual abuse in the third degree,4 are classified as
misdemeanors. Definitions of what constitutes sex offenses are different in each state. In
New York State, most sex offenses appear in Article 130 of the Penal Law of the State of New
York.5 This Chapter will focus mainly on felony sex offenses and on New York law. However,
laws from other states are sometimes mentioned as examples or noted if they are unusual.
As each state has very specific laws on this topic, be sure to check the laws for the state in
which you were convicted.
It is important to know that some sex offender laws may only affect certain kinds of sex
offenders, while other laws may apply to people who have committed crimes that might not
normally be considered sex offenses. For example, the New York Sex Offender Registration
Act6 imposes requirements, in certain circumstances, on persons convicted of offenses not
included in section 130 of the Penal Code. This includes, but is not limited to, persons
convicted under Articles 135 (kidnapping offenses), 7 230 (prostitution offenses), 8 or 250
(offenses against the right to privacy, particularly unlawful surveillance).9 It is important to
know that laws relating to sex offenses and sex offenders are always changing. Therefore,
you must read the relevant statutes carefully in order to determine whether a particular
section applies to you.
* This Chapter was revised by Mia Gonzalez, based on previous versions by Jennifer Parkinson,
Lynnise Phillips, and Kristen Heavey. Special thanks to Al O’Connor of the New York State Defenders
Association, and Susan Hendricks and Laura Johnson, both of The Legal Aid Society of New York, for
their valuable comments.
1. While the Supreme Court has not decided this question, it appears merely speaking obscenely
to someone you think is a minor is not enough to be a criminal attempt to molest a child. U.S. v.
Gladish, 536 F.3d 646 (7th Cir. 2008).
2. N.Y. Penal Law § 130.20 (McKinney 2004) (sexual misconduct is a class A misdemeanor).
3. N.Y. Penal Law § 130.52 (McKinney 2004) (forcible touching is a class A misdemeanor).
4. N.Y. Penal Law § 130.55 (McKinney 2004) (sexual abuse in the third degree is a class B
misdemeanor).
5. N.Y. Penal Law §130 (McKinney 2004 & Supp. 2008).
6. N.Y. Corr. Law § 168 (McKinney 2003 & Supp. 2008).
7. N.Y. Penal Law § 135 (McKinney 2004).
8. N.Y. Penal Law § 230 (McKinney 2000 & Supp. 2008). Specifically, the New York Sex Offender
Registration Act requires registration for persons convicted of sections 230.04 (patronizing a prostitute
in the third degree), 230.05 (patronizing a prostitute in the second degree), 230.06 (patronizing a
prostitute in the first degree), 230.30 (promoting prostitution in the second degree), 230.32 (promoting
prostitution in the first degree), and 230.33 (compelling prostitution).
9. N.Y. Penal Law § 263 (McKinney 2000 & Supp. 2008).
Because the relevant laws are constantly being added and revised, this Chapter attempts
to cover issues of special importance for sex offenders, based upon the laws in effect at the
time of publication. This Chapter begins with the topics most important to your everyday life
in prison, such as protective custody if you believe that you are in danger of being harmed by
other prisoners, counseling (and the consequences of not going to counseling), and good-time
credits.
Next, this Chapter discusses other issues that might be important to your case, like HIV
and post-conviction DNA testing. A court may require these tests based upon your status as
a sex offender or even if you have only been accused but not convicted of the offense for which
you are incarcerated.
Finally, this Chapter discusses issues relevant to your release from prison and life after
your release from prison. These topics include special parole conditions for sex offenders,
community registration, the Adam Walsh Act, and civil confinement.
Some of these topics are addressed in more detail for the general prison population
elsewhere in the JLM. 10 You should consult other chapters in the JLM for additional
information on a particular topic.
B. Protective Custody
It is possible that if other prisoners discover you were convicted of a sex offense, you may
become a target for abuse. Most prisons have specific procedures under which you can seek
protective custody if you have reason to believe that your safety is at risk.
Protective custody allows certain prisoners, for good cause, to be restricted from
communication with the general prisoner population. Examples of prisoners who are placed
in protective custody include a prisoner who is a potential victim, a witness likely to be
intimidated, or a prisoner who, for one reason or another, is unable to live safely in the
general population. Protective custody can be voluntary or involuntary depending on
whether the prisoner agrees to protective custody status.11 Although protective custody is for
the prisoner’s protection, not punishment, prisoners in protective custody may have limited
opportunities for such things as scheduling out-of-cell time, access to library services, and
use of the commissary. 12 Despite these limitations, you might be better off in protective
custody if you feel threatened or in danger. See JLM, Chapter 17, “The State’s Duty to
Protect You and Your Property: Tort Actions,” for more information on protective custody.
C. “Recommended” Counseling and the Loss of Good-Time Credits
The New York Department of Correctional Services (“DOCS”) has established the Earned
Eligibility Program, which provides eligible prisoners with an incentive to address the
reasons behind their incarceration.13 Under New York law, you may be able to reduce your
sentence (“good-time credit”) for “good behavior and efficient and willing performance of
duties” assigned to you while in prison. It may also include “progress and achievement in an
10. See, for example, Chapter 11 of the JLM, “Using Post-Conviction DNA Testing to Attack
Your Conviction or Sentence,” and Chapter 35 of the JLM, “Getting Out Early: Conditional and Early
Release.”
11. See generally N.Y. Comp. Codes R. & Regs. tit. 7, § 330.2 (2004) (defining voluntary and
involuntary protective custody prisoners as potential victims or witnesses likely to be intimidated, or
prisoners who cannot live in the general prison community); Fla. Admin. Code Ann. r. 33-602.221(1)(j)
(2004) (defining Florida’s “protective management” of inmates as “the protection of inmates from other
inmates”).
12. For specific details about conditions of confinement for New York prisoners in protective
custody, see N.Y. Comp. Codes R. & Regs. tit. 7, § 330.4 (2004).
13. N.Y. Comp. Codes R. & Regs. tit. 7, § 2100.2 (2006) (describing the Earned Eligibility
Program’s policy).
assigned treatment program.” 14 Assigned treatment programs can include sex offender
counseling.15 If you do not attend counseling, you risk losing your good-time credits.
As described in JLM Chapter 35, “Getting Out Early: Conditional & Early Release,” each
New York State prison has its own Time Allowance Committee (“TAC”). The TAC at your
prison reviews your file and recommends to the superintendent the amount of good-time
credit it thinks you should have.16 The superintendent then reviews the recommendation and
forwards it to the Commissioner of Correctional Services, who makes the final decision.17
According to New York law, a prisoner does not have the right to demand good-time
credits, and the Commissioner’s decision will be final unless it is not made “in accordance
with the law.”18 Although courts have repeatedly said TACs should suggest the amount of
good-time credits based on a prisoner’s entire institutional experience and not an automatic
rule,19 at the time of this writing, DOCS seems to follow a policy of withholding good time
from sex offenders failing to participate in “recommended” sex offender treatment
programs.20 This is true even though the statute describing the conditions under which good-
time credit is given refers only to “assigned” (required) treatment programs, and not
“recommended” ones.21 Courts have said there is no statutory rule prohibiting the TAC from
considering a prisoner’s failure to participate in recommended programs as a reason to deny
credits.22
So, if you are interested in earning good-time credit, it is very important to attend
counseling programs and comply with any other recommendations DOCS makes. New York
courts have repeatedly upheld DOCS’s policy of denying good-time credits to sex offenders
failing to complete recommended programs. Many prisoners have appealed these good-time
credits denials using Article 78 proceedings,23 but courts have repeatedly denied them.24 The
14. N.Y. Corr. Law § 803(1)(a) (McKinney Supp. 2006 & Supp 2007). Note that this law expires
on September 1, 2009 but, according to the 2007 Supplement, will be replaced with law that goes into
effect on September 1, 2009. For further information about good-time credits, including a detailed
explanation of the requirements and procedures for earning good-time credits, see JLM Chapter 35,
“Getting Out Early: Conditional & Early Release.”
15. Approximately 15 facilities in New York State currently offer sex offender counseling. It is an
approximately six-month program (ranging from 24–26 weeks). Enrollees have 10 hours a week of
counseling, which does not include homework, which must be done on your own time. If you are
considered a sex offender, or you request counseling, or your need for sex offender counseling is
identified, you may be transferred to one of the institutions where counseling is offered. There is
usually a wait list, and wait times vary. Telephone call with New York Department of Correctional
Services, Office of Correctional Program Services, Mar. 14, 2002.
18. N.Y. Corr. Law § 803(4) (McKinney 2008). This law is scheduled to expire on September 1,
2009. If you are reading this after September 1, 2009, you should check to see whether the law has been
re-enacted.
19. N.Y. Comp. Codes R. & Regs. tit. 7, § 261.3(c) (2000). See also Amato v. Ward, 41 N.Y.2d 469,
474, 362 N.E.2d 566, 570, 393 N.Y.S.2d 934, 937 (1977) (citing N.Y. Comp. Codes R. & Regs. tit. 7, §
261.3 (2008)) (holding that the TAC should appraise the entire institutional experience of the prisoner
in making its decision).
20. Benjamin v. N.Y. State Dep't of Corr. Servs., 19 A.D.3d 832, 833, 796 N.Y.S.2d 747, 748
(2005) (citing Burke v. Goord, 273 A.D.2d 575, 575, 710 N.Y.S.2d 136, 137 (3d Dept. 2000)) (affirming
the prison TAC withholding of three years and four months of a sex offenders good-time credits because
the sex offender failed to participate in a recommended treatment program); Pfeifer v. Goord, 272
A.D.2d 886, 708 N.Y.S.2d 217, 218 (4th Dept. 2000) (upholding the denial of prisoner’s good-time
credits because he failed to participate in recommended sex offender treatment programs).
21. N.Y. Corr. Law § 803(1)(a) (McKinney Supp. 2006).
22. Ferry v. Goord, 268 A.D.2d 720, 721, 704 N.Y.S.2d 315, 316 (3d Dept. 2000); see also JLM,
Chapter 18, “Your Rights at Prison Disciplinary Hearings.”
23. For further information, see JLM Chapter 22, “How to Challenge Administrative Decisions
Using Article 78 of the New York Civil Practice Law and Rules.”
reasoning behind these denials is often that denying prisoners good time is reasonable if they
refuse to accept treatment for the behavior resulting in their incarceration.25 Courts have
been strict in upholding such denials even where:
(1) The petitioner was on a wait-list for such a program;26
(2) The petitioner had previously participated in a behavior intervention program and
some sex offender counseling but “refused to sufficiently participate in and complete
certain recommended offender and aggression counseling programs”27;
(3) The prisoner who was told he needed additional counseling was denied a transfer to a
facility with an appropriate sex offender therapy program.28
These cases strongly suggest that you should make every attempt to get counseling, if it
is recommended to you.
Courts have also rejected the argument that requiring participation in sex offender and
aggression therapy programs violates a petitioner’s Fifth Amendment rights against self-
incrimination.29
D. HIV Testing
Currently, almost every state has a statute allowing or requiring courts to order
defendants charged with sex offenses or convicted sex offenders to submit to testing for HIV,
the virus that causes AIDS.30 Additionally, the federal government may perform HIV testing
24. See Benjamin v. N.Y. State Dep’t of Corr. Servs. 19 A.D.3d 832, 833, 796 N.Y.S.2d 747, 747
(3d Dept. 2005) (citing Bolster v. Goord, 300 A.D.2d 711, 713, 752 N.Y.S.2d 403, 405 (3d Dept. 2002)
(upholding prison’s Time Allowance Committee’s revocation of prisoner’s good-time credits on the
ground that the prisoner refused to participate in the prison’s sex offender treatment program));
Lamberty v. Schriver, 277 A.D.2d 527, 528, 715 N.Y.S.2d 510, 511 (3d Dept. 2000) (holding that Time
Allowance Committee’s decision to withhold good-time credit from defendant for failure to attend
recommended treatment programs was not “irrational or contrary to law” and therefore was not subject
to judicial review); Ferry v. Goord, 268 A.D.2d 720, 721, 704 N.Y.S.2d 315, 316 (3d Dept. 2000) (holding
that the withholding of good-time credits because prisoner failed to participate in recommended
counseling programs was reasonable); Jones v. Coombe, 269 A.D.2d 632, 632, 703 N.Y.S.2d 554, 554 (3d
Dept. 2000) (finding it was not irrational to withhold good-time credits when prisoner refused to
participate in recommended counseling programs); Coleman v. Boyle, 270 A.D.2d 739, 739–40, 705
N.Y.S.2d 419, 420 (3d Dept. 2000) (holding that withholding of prisoner’s good-time credits was not
unreasonable nor contrary to law where prisoner delayed seeking counseling); Staples v. Goord, 263
A.D.2d 943, 944, 695 N.Y.S.2d 190, 191 (3d Dept. 1999) (upholding prison’s Time Allowance
Committee’s denial of prisoner’s request for good-time credits because he had not completed sex
offender counseling, even though he was on the wait list, because he had twice before decided not to
participate in a counseling program).
25. Majeed v. Goord, 279 A.D.2d 832, 833 (3d Dept. 2001).
26. Staples v. Goord, 263 A.D.2d 943, 944, 695 N.Y.S.2d 190, 191 (3d Dept. 1999) (upholding
prison’s Time Allowance Committee’s denial of prisoner’s request for good-time credits because he had
not completed sex offender counseling, even though he was on the wait list, because he had twice before
decided not to participate in counseling).
27. Jones v. Coombe, 269 A.D.2d 632, 632, 703 N.Y.S.2d 554, 554 (3d Dept. 2000).
28. Coleman v. Boyle, 270 A.D.2d 739, 740, 705 N.Y.S.2d 419, 420 (3d Dept. 2000) (holding that
belated requests for counseling following petitioner’s refusal to participate in similar programs do not
constitute sufficient participation with regard to good time allowance credit).
29. Lamberty v. Schriver, 277 A.D.2d 527, 527, 715 N.Y.S.2d 510, 511 (3d Dept. 2000) (finding it
does not violate the 5th Amendment to require participation in sex offender and aggression therapy
programs); Burke v. Goord, 273 A.D.2d 575, 575, 710 N.Y.S.2d 136, 137 (3d Dept. 2000) (holding that
withholding of good-time credits for failure to participate in sexual offender programs does not violate
the 5th Amendment).
30. See, e.g., Ala. Code § 22-11A-17 (2008) (requiring anyone convicted for 30 days or more to be
tested for sexually transmitted diseases); Alaska Stat. § 18.15.300 (2004) (testing at the court’s
discretion and victim’s request); Alaska Stat. § 18.15.310 (2004); Ariz. Rev. Stat. Ann. § 13-1415 (2001
& Supp. 2005) (giving courts discretion to order HIV testing); Ark. Code Ann. § 16-82-101 (2005) (giving
on any prisoner who has a sentence of at least six months if the health services staff
determines that the prisoner is at risk for HIV infection. The federal government may also
perform an HIV test on any prisoner who may have transmitted HIV (intentionally or
courts discretion to order testing); Cal. Penal Code § 1202.1 (West 2004) (requiring court to order
testing for convicted sex offenders); Cal. Penal Code § 1524.1 (West 2000 & Supp. 2006) (giving courts
discretion to order HIV testing of accused sex offenders at the request of the victim); Colo. Rev. Stat. §
18-3-415 (2004) (requiring court to order testing); Conn. Gen. Stat. Ann. § 54-102a (West 2001) (giving
courts discretion); Conn. Gen. Stat. Ann. § 54-102b (West 2001) (giving courts discretion to order at
victim’s request); Del. Code Ann. tit. 10, § 1077(a) (1999) (requiring testing at request of victim); Del.
Code Ann. tit. 11, § 3911 (2001) (requiring judge to inform defendant of availability of testing); Del.
Code Ann. tit. 11, § 3912 (2001) (requiring testing at request of victim); Fla. Stat. Ann. § 960.003 (West
Supp. 2006) (requiring court to order test); Ga. Code Ann. § 17-10-15 (2004) (giving judge discretion to
order testing on victim’s request); Haw. Rev. Stat. Ann. § 801D-4(b) (Lexis 2003) (describing victim’s
“right to be informed” of the prisoner’s HIV status); Idaho Code Ann. § 39-601 (2002); Idaho Code Ann.
§ 39-604 (2002) (requiring testing for all infectious diseases, including HIV and AIDS, for all person
charged with and convicted of sex offenses); 730 Ill. Comp. Stat. Ann. § 5/5-5-3(g) (West 2007 & Supp.
2005) (requiring testing for HIV and AIDS); Ind. Code Ann. § 35-38-1-10.5 (Lexis 1998 & Supp. 2005)
(requiring testing of convicted sex offenders); Ind. Code Ann. § 35-38-1-10.6 (Lexis 1998 & Supp. 2005)
(requiring notification of victim); Ind. Code Ann. § 35-38-1-10.7 (Lexis 1998 & Supp. 2005) (requiring
test of alleged offender at victim’s request); Iowa Code Ann. § 915.42 (West 2003) (requiring testing
only if petitioner/victim has proved certain facts); Kan. Stat. Ann. § 65-6009 (2002) (requiring testing
upon victim’s request); Ky. Rev. Stat. Ann. § 510.320 (Lexis 1999 & Supp. 2005) (requiring testing upon
conviction); La. Rev. Stat. Ann. § 15:535 (2005) (requiring testing upon conviction); La. Code Crim.
Proc. Ann. art. 499 (2003) (requiring testing upon conviction); Me. Rev. Stat. Ann. tit. 5, § 19203-F
(1964) (requiring testing upon victim’s petition); Md. Code Ann., Crim. Proc. § 11-112 (Lexis 2001 &
Supp. 2005) (requiring testing upon conviction at request of victim); Mich. Comp. Laws Ann. § 333.5129
(West 2001 & Supp. 2006) (testing at court’s discretion); Minn. Stat. Ann. § 611A.19 (West 2003 &
Supp. 2006) (requiring testing upon the consent or petition of victim); Miss. Code Ann. § 99-19-203
(2000) (requiring testing); Mo. Ann. Stat. § 191.663 (West 2004) (requiring testing upon conviction);
Mont. Code Ann. § 46-18-256 (2004) (requiring testing at victim’s request); Neb. Rev. Stat. § 29-2290
(1995) (requiring testing at request of victim); Nev. Rev. Stat. Ann. § 441A.320 (Lexis 2005) (requiring
testing “as soon as practicable” after arrest for a crime involving sexual penetration); N.H. Rev. Stat.
Ann. § 632-A:10-b (1996) (requiring testing upon conviction); N.J. Stat. Ann. § 2A:4A-43.1 (West 1987 &
Supp. 2003) (requiring testing of juveniles charged and convicted of sexual offenses); N.J. Stat. Ann. §
2C:43-2.2 (West 2005) (requiring testing on request of victim); N.M. Stat. § 24-2B-5.1 (2000) (requiring
testing at petition of crime victim); N.Y. Crim. Proc. Law § 390.15 (McKinney 2005) (requiring testing
for certain Article 130 crimes); N.C. Gen. Stat. Ann. § 15A-534.3 (West 2005) (requiring testing upon
finding of probable cause of exposure); N.D. Cent. Code § 23-07.7-01 (2002) (giving discretion to the
court); Ohio Rev. Code Ann. § 2907.27 (West Supp. 2006) (requiring testing at request of victim or
prosecutor); Okla. Stat. Ann. tit. 63, § 1-524 (West 2004) (requiring testing after arrest); Okla. Stat.
Ann. tit. 63, § 1-525 (West 2004); Or. Rev. Stat. § 135.139 (2001) (requiring upon request of victim); Or.
Rev. Stat. § 137.076 (2001) (allowing the District Attorney or victim to request testing of a defendant
after being charged with a crime that could involve transmission of fluids); 35 Pa. Cons. Stat. Ann. §
7608 (West 2003) (testing allowed when certain conditions are met); R.I. Gen. Laws § 11-34-10 (2002)
(requires testing); R.I. Gen. Laws § 11-37-17 (2002) (requiring testing at the request of victim); S.C.
Code Ann. § 16-3-740 (2003) (testing at discretion of court, upon request by victim); S.C. Code Ann. §
16-15-255 (Law Co-op. 2003); S.D. Codified Laws § 23A-35B-3 (Michie 1998) (requiring testing at
request of victim); S.D. Codified Laws § 23A-35B-5 (2004); Tenn. Code Ann. § 39-13-521 (2003)
(requiring testing); Tex. Code Crim. Proc. Ann. art. 21.31 (Vernon Supp. 2005) (testing at discretion of
the court); Utah Code Ann. § 76-5-502 (1999); Utah Code Ann. § 76-5-504 (2003) (requiring testing); Vt.
Stat. Ann. tit. 13, § 3256 (Supp. 2005) (requiring testing at victim’s request); Va. Code Ann § 18.2-62
(Supp. 2005) (allowing defendant to refuse test before conviction, in which case probable cause hearing
will be held; after conviction, testing required if victim requests it); Wash. Rev. Code Ann. § 70.24.340
(West 2002) (placing responsibility for pretest counseling, HIV test, and post-test counseling on local
health departments); W. Va. Code Ann. § 16-3C-2(f) (Lexis 2001) (requiring testing after conviction for
a sex offense); Wis. Stat. Ann. § 968.38 (West Supp. 2005) (testing discretionary at request of victim);
Wyo. Stat. Ann. § 7-1-109 (2005) (requiring testing at victim’s request).
unintentionally) to prison employees or other non-prisoners, regardless of the length of the
prisoner’s sentence.31
Testing laws generally fall into two categories: informational testing and evidentiary
testing. Informational testing laws require testing criminal defendants so the state can (1)
disclose the defendant’s HIV status to the crime victim, (2) disclose the defendant’s HIV
status to someone who had contact with the defendant’s fluids during arrest, or (3) develop a
database of HIV-infected prisoners. Evidentiary testing laws are specific state criminal
statutes that criminalize HIV transmission. Under these testing laws, a defendant may be
tested for HIV in order to produce evidence for the prosecution.
For more detailed information about HIV testing and testing for other infectious disease,
see Chapter 26 of the JLM, “Infectious Diseases.”
1. Informational Tests
State statutes that require informational HIV tests vary in a number of ways, including
when a test is required, to whom your test results may be disclosed, and whether the results
can be used in criminal proceedings. For instance, some statutes allow the court to decide if
you should be tested for HIV, while other statutes require the court to order testing if the
victim requests it.
Some state statutes do not allow test results to be revealed to the court32 or used in
criminal or civil proceedings against the defendant,33 whereas some statutes permit the use
of HIV test results in a prosecution.34 Be sure to read the statute from your state in order to
learn what the law requires of you.
Although defendants have challenged statutes that allow pre- or post-conviction HIV
testing against the defendant’s wishes, on the ground that these statutes violate the Fourth
Amendment’s prohibition on unreasonable searches, many courts have determined that
these statutes are constitutional.35 For example, several courts have held that compelled HIV
testing does not violate the Fourth Amendment under the “special needs doctrine,” which
applies when “special needs ... make the warrant and probable-cause requirement [of the
Fourth Amendment] impracticable.”36 This doctrine requires determining (1) whether the
31. 28 C.F.R. § 549.12 (2005).

32. See, e.g., N.Y. Crim. Proc. Law § 390.15(6)(a)(ii) (McKinney 2005) (limiting disclosure to
victim, victim’s immediate family, guardian, physicians, attorneys, medical professionals, and past and
future contacts to whom there was or is a reasonable risk of HIV transmission).
33. See, e.g., N.Y. Crim. Proc. Law § 390.15(8) (McKinney 2005) (information on HIV status
obtained by consent, hearing, or a court order may not be used against you in a criminal or civil
proceeding relating to the events resulting in your conviction); Tex. Code Crim. Proc. Ann. art. 21.31
(Vernon 1989 & Supp. 2005) (preventing use of test results in any criminal proceeding arising out of the
alleged offense).
34. See, e.g., Alaska Stat. § 18.15.310(e)(2) (2006) (allowing use of HIV test results in civil
proceedings against a defendant); Cal. Penal Code § 1202.1(c) (West 2004) (allowing disclosure of HIV
test results to the prosecution for use in an additional criminal charge or to increase a defendant’s
sentence).
35. See, e.g., Connor v. Foster, 833 F. Supp. 727, 730–31 (N.D. Ill. 1993) (permitting prisoner to
be tested involuntarily under the 4th Amendment when his hypodermic needle pricked an officer’s
finger during a frisk search); Virgin Islands v. Roberts, 756 F. Supp. 898, 898 (D.V.I. 1991) (requiring
an alleged rapist to undergo an HIV test), aff’d, 961 F.2d 1567 (3d Cir. 1992); People v. Adams, 597
N.E. 2d 574, 584–86, 149 Ill. 2d 331, 352–54 (Ill. 1992) (finding that an Illinois statute requiring
prisoners convicted of sex offenses to undergo HIV testing was constitutional, and did not violate the
4th Amendment or the Equal Protection Clause); In re Juveniles A, B, C, D, E, 847 P.2d 455, 463, 121
Wn.2d 80, 98 (Wash. 1993) (en banc) (allowing juveniles found to have committed sexual offenses to be
tested for HIV).
36. See In re Juveniles A, B, C, D, E, 847 P.2d 455, 459, 121 Wn.2d 80, 91 (Wash. 1993) (en banc)
(quoting Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619, 109 S. Ct. 1402, 1414, 103 L. Ed. 2d
639, 661 (1989)); see also United States v. Ward, 131 F.3d 335, 342 (3d Cir. 1997) (holding that a
need for the test arises from a special need beyond ordinary law enforcement, and (2)
whether the special need justifies the privacy intrusion of the mandatory test without
probable cause or an individualized suspicion of HIV infection.37 For more information, see
Chapter 26 of the JLM, “Infectious Diseases.”
(a) New York
New York law provides that where a defendant is convicted of certain sex offenses, the
court must order the defendant to submit to HIV testing if the victim requests it.38 The
victim must request the test before or within ten days of the defendant’s conviction,39 and the
court-ordered test must be performed within fifteen days of the order.40 According to a court
ruling, such orders can only be made against defendants convicted of the offenses that are
specifically listed in the statute.41
Disclosure of the defendant’s confidential HIV-related information is limited to the victim
and the “victim’s immediate family, guardian, physicians, attorneys, medical or mental
health providers,” and the victim’s past and future sexual partners where there is a risk of
HIV transmission. 42 Disclosure is not permitted to any other person or to the court. 43
Information about your HIV status obtained under the New York statute may not be used as
evidence against you in any criminal or civil proceeding that relates to events that were the
basis for the conviction.44 This means that if you have been tested under a New York court
order under New York Criminal Procedure Law section 390.15, the results of the test cannot
be used against you in a court of law. This statute also requires that you be convicted before
you can be forced to submit to a test, and New York courts have been generally reluctant to
order HIV testing of defendants who have not yet been convicted.45
convicted rapist had to undergo a mandatory HIV test because notifying the victim of a potential HIV
infection and preventing the spread of HIV were “special needs” justifying the blood test).
37. In re Juveniles A, B, C, D, E, 847 P.2d 455, 459, 121 Wn. 2d 80, 91 (Wash. 1993) (en banc)
(citing Johnetta J. v. Mun. Court, 267 Cal. Rptr. 666, 677, 218 Cal. App. 3d 1255, 1274 (Cal. Ct. App.
1990)); see also Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 634, 109 S. Ct. 1402, 1422, 103 L.
Ed. 2d 639, 671 (1989) (holding that mandatory alcohol and drug testing of a federal railroad employee
did not violate the employee’s 4th Amendment rights because of the special need to prevent railroad
accidents and the fact that this special need outweighed the employee’s privacy interest); State v.
Superior Court, 930 P.2d 488, 493, 187 Ariz. 411, 416 (Ariz. Ct. App. 1996) (holding that a convicted
juvenile sex offender was required to take an HIV test because the special need for aiding the crime
victim outweighed the privacy interest of the sex offender).
38. N.Y. Crim. Proc. Law § 390.15(1)(a) (McKinney 2005). The specific offenses that can lead to a
mandatory HIV test include any felony offenses under Article 130 of New York Penal Law, or any
offenses under section 130.20 of the same law, where the offenses include "sexual intercourse," "oral
sexual conduct," or "anal sexual conduct."
41. See Matter of McClain v. Grosso, 31 A.D.3d 765, 766, 820 N.Y.S.2d 93, 94 (2d Dept. 2006)
(citing Donald P. v. Palmieri, 246 A.D.2d 597, 599, 668 N.Y.S.2d 218, 220 (2d Dept. 1998) (determining
that a defendant convicted of attempted sexual abuse could not be forced to take an HIV test because
attempted sexual abuse was not one of the crimes specifically listed in section 390.15 of New York
Criminal Procedure Law)). Section 390.15 does not list specific felonies that result in mandatory
testing. Instead, it provides that where a person is convicted of a felony that “where an act of sexual
intercourse, oral sexual conduct or anal sexual intercourse ... is required as an essential element for the
commission [of the crime], the court must, upon request of the victim,” require the defendant to be
tested for HIV-related diseases. N.Y. Crim. Proc. Law § 390.15(1)(a) (McKinney 2005 & Supp. 2006).
45. See, e.g., In re Garinger, 305 A.D.2d 677, 678, 759 N.Y.S.2d 550, 552, (2d Dept. 2003) (citing
In re Michael W., 203 A.D.2d 763, 764, 611 N.Y.S.2d 47, 48 (3d Dept. 1994) (denying order to compel
testing of suspect accused of sexually abusing a boy, and stating that even if the allegations were
New York law usually protects you from being forced to submit to an HIV test unless you
have already been convicted of a sex offense. But, if you tell your victim about your HIV
status, then a court may be willing to force you to take a test before conviction, because the
court may find you have made your medical condition an issue and therefore have given up
your right to confidentiality.46
(b) Federal
According to federal law, a victim may also request HIV testing of a convicted sex
offender. The 1994 Violence Against Women Act (VAWA) allows victims of certain sex
offenses the right to obtain an order in federal district court requiring that the defendant be
tested for HIV, and requiring that the results of the test be communicated to both the victim
(and/or the victim’s parent or legal guardian) and the defendant.47 There are two important
features of VAWA. First, VAWA differs from New York law in one important way: VAWA
allows a court to order testing of a defendant before he/she is convicted of the act in question,
whereas New York State only authorizes testing the defendant after conviction. Second,
although VAWA is a federal law, it applies to accused sex offenders who are being prosecuted
in state court under state criminal laws.48
Despite VAWA’s increased chances for victims to compel defendant HIV testing, most
victims in New York have continued to file under the more restricted New York State statute
governing defendant HIV testing. This trend is probably because New York State law is
generally considered sufficient.
Some provisions of VAWA have been challenged in federal courts.49 At the time of this
writing, the federal testing provision still applies and has been upheld specifically for sex
offenders by the Third Circuit Court of Appeals.50 But, another VAWA provision regarding
federal remedies for victims of gender-motivated violence has been invalidated by the
Supreme Court in United States v. Morrison. 51 In light of United States v. Morrison, a
challenge to the VAWA’s informational testing might succeed. You should, therefore, look for
proven, the only way to tell if the victim had been infected with HIV would be to test the victim
himself)); Doe v. Connell, 179 A.D.2d 196, 199–200, 583 N.Y.S.2d 707, 710 (4th Dept. 1992) (holding
that prosecution could not force the defendant, who was charged with rape and sodomy but not yet
convicted of the crimes, to provide blood for an HIV test sought by the alleged victim and her husband);
In re Harry G., 157 Misc. 2d 959, 960–61, 599 N.Y.S.2d 425, 426 (Fam. Ct. Broome County 1993)
(denying request to require the defendant, accused of sexually assaulting a young boy, to submit to an
HIV test on the grounds that there needed to be evidence suggesting the accused had HIV, and a
general fear on the part of the alleged victim was not enough).
46. People v. Durham, 146 Misc. 2d 913, 916, 553 N.Y.S.2d 944, 946 (Sup. Ct. Queens County
1990) (ordering defendant to be tested for HIV after he disclosed to his rape victim that he had HIV and
thus placed his medical condition at issue); In re Gribetz, 159 Misc. 2d 550, 553, 605 N.Y.S.2d 834, 836
(County Ct. Rockland County 1993) (holding that test results were needed to prove defendant had acted
recklessly and with depraved indifference to human life, and that the defendant had waived her right
to privacy since she had already discussed her HIV status).
47. 42 U.S.C. § 14011(b)(1) (2006). Note that VAWA consists of several subtitles, which can be
found throughout the United States Code. Only the subtitle relevant to HIV testing of prisoners is cited
here.
48. 42 U.S.C. § 14011(b)(2)(a) (2000).
49. For example, in United States v. Morrison, 529 U.S. 598, 626–27, 120 S. Ct. 1740, 1758–59,
146 L. Ed. 2d 658, 681–82 (2000), the Supreme Court invalidated 42 U.S.C.A. § 13981(c), the portion of
VAWA that provides a civil remedy to victims of gender-motivated violence.
50. United States v. Ward, 131 F.3d 335, 342–43 (3d Cir. 1997).
51. Under the U.S. Constitution, Congress may only enact laws pursuant to specific powers
listed in the Constitution. See United States v. Morrison, 529 U.S. 598, 627, 120 S. Ct. 1740, 1759, 146
L.Ed.2d 658, 682 (2000) (holding that neither the Commerce Clause nor section 5 of the 14th
Amendment gave Congress the authority to create a federal civil remedy under 42 U.S.C. § 13981 for
the victims of gender-motivated violence).
recent case law on this testing provision of VAWA to be sure it still applies. Also, VAWA was
amended in 2006. Be sure to consult the most recent version of the statute if you believe it
applies to your case.
2. Evidentiary Testing Laws
In many states it is a crime for a person who knows he is HIV positive to engage in
intimate contact with another person without disclosing his HIV status. 52 States
criminalizing HIV transmission generally focus on whether a person who knows he is
infected with HIV exposes another person to the HIV virus through:
(1) sexual behavior;
(2) sharing hypodermic needles or other drug paraphernalia; or
(3) donating blood or other bodily fluids.53
In states that criminalize HIV transmission, the court must order an HIV test in order to
prove one element of the crime (that is, that you are HIV positive). In such situations, the
HIV test results may be used against you in your criminal case.54
E. Post-Conviction DNA Testing
Far more than for other crimes, investigations of sex offenses often involve the collection
of bodily fluids such as semen or blood. These fluids can then be submitted for DNA tests,
which may provide information used to identify likely perpetrators. If you have been
convicted of a sex offense and you are contesting your conviction, DNA evidence may be
available to you to help prove your innocence. In recent years, post-conviction DNA testing
has attracted national attention because a number of prisoners have been released after
demonstrating their innocence using DNA testing of evidence associated with their trials.
Many of those defendants were convicted before DNA technology became available. See JLM
Chapter 11, “Using Post-Conviction DNA Testing to Attack Your Conviction or Sentence,” for
more detailed information.
F. Special Parole Considerations
1. Parole Generally
Parole refers to the discretionary release of a prisoner from prison before he has served
his full sentence.55 In New York and elsewhere, if you are released on parole, the state parole
52. See, e.g., Fla. Stat. Ann. § 775.0877(3) (West 2005) (allowing a defendant who was previously
convicted of a sexual offense and tested positive for HIV, who then committed a second sexual offense,
to be charged with criminal transmission of HIV); Ga. Code Ann. § 16-5-60 (2003) (criminalizing
behavior by a person who knows that he is HIV positive, and then exposes another person to HIV
through sexual behavior, sharing drug paraphernalia, or donating blood or other bodily fluids); 720 Ill.
Comp. Stat. Ann. 5/12-16.2 (West 2002) (allowing a defendant to be charged with criminal transmission
of HIV, a class 2 felony, if defendant knows he is HIV positive and then engages in sexual contact,
donates blood or other bodily fluids, or shares intravenous drug paraphernalia with another person);
Iowa Code Ann. § 709C.1 (West 2003) (criminalizing as a class B felony the knowing transmission of
HIV positive bodily fluids or drug paraphernalia previously used by the person infected with HIV);
Mich. Comp. Laws Ann. § 333.5210 (West 2001) (criminalizing “sexual penetration” by a person who
knows he is infected with HIV or AIDS and who does not tell his sexual partner about his infection).
53. See, e.g., Ga. Code Ann. § 16-5-60(c) (2003).
54. See, e.g., People v. C.S., 222 Ill.App.3d 348, 164 Ill.Dec. 810, 583 N.E.2d 726 (2d Dist. 1991)
(noting that the positive results of the HIV test performed on defendant would be essential to a future
prosecution under state statute that prohibits those who know they are infected with AIDS from having
certain conduct that has the potential of transmitting the virus.)
55. Black’s Law Dictionary 1149 (8th ed. 2004); see also N.Y. Exec. Law § 259-a (McKinney 2005
& Supp. 2006) (describing generally the organization and duties of the New York State Division of
Parole).
division will supervise you and make sure you do not violate parole from the time of your
early release until your sentence is finished.56 During this time, the division is also required
to assist you in reintegrating into the community.57 Note that in New York, in most cases,
you are not eligible for discretionary release on parole if you have received one or more
determinate sentence (that is, a sentence where the court specifies a fixed period of
incarceration, as opposed to a sentence with a minimum and maximum range).58 If you have
received a determinate sentence, you will be subjected to a period of “post-release
supervision.”59 However, the state board of parole supervises prisoners released under parole
and post-release supervision. See JLM, Chapter 36, “Parole,” for more information about
general parole and post-release conditions.
2. Special Parole Conditions for Sex Offenders
If you have been convicted of a sex offense and released on parole, your parole officer will
probably impose special conditions or restrictions on you because of your sex offense
conviction. These special conditions do not necessarily apply to other parolees.
In New York State and elsewhere, additional regulations and restrictions may apply to
parolees convicted of sex offenses. These regulations can limit the control a parolee has over
decisions related to his life after he is released. In New York, for example, the Division of
Parole has issued a special pamphlet to parole officers titled “Guidelines for the Supervision
of Sex Offenders.”60 The pamphlet, among other things:
(1) Advises parole officers that high-risk sex offenders61 should be identified as early in
the parole process as possible;
(2) Details risk factors that parole officers are to consider;62
(3) Instructs parole officers with regard to community notification; and
(4) Notes that curfews and travel restrictions must be imposed on supervised sex
offenders.63
56. N.Y. Exec. Law § 259-a (McKinney 2005 & Supp. 2006) (describing the supervisory duties of
New York State Division of Parole).
57. See, e.g., N.Y. Exec. Law § 259-a (McKinney 2005 & Supp. 2006) (describing the reintegration
duties of New York State Division of Parole).
58. N.Y. Penal Law § 70.41(a)(ii) (McKinney Supp. 2006). For example, if you received both an
indeterminate and a determinate sentence, you may be eligible for parole. If you received sentences
that can be served concurrently (that is, at the same time) then you may be paroled after you have
served the minimum period of the indeterminate sentence or after you have served six-sevenths of the
determinate sentences, whichever is later. N.Y. Penal Law § 70.41(a)(iii) (McKinney Supp. 2006). If you
received sentences that have to be served consecutively (that is, one after another), then you may be
paroled after you have served the minimum amount of time in the indeterminate sentence plus six-
sevenths of the total term. N.Y. Penal Law § 70.41(a)(iv) (McKinney Supp. 2006).
59. N.Y. Penal Law § 70.45 (McKinney Supp. 2006).
60. Raul Russi, New York State Division of Parole, Guidelines for the Supervision of Sex
Offenders (1994); see also New York State Parole Handbook: Questions and Answers Concerning Parole
Release and Supervision (September 2007), available at http://parole.state.ny.us/Handbook.pdf.
61. High-risk sex offenders are defined as those persons who are likely to be repeat offenders or
who present a threat to public safety. N.Y. Correct. Law § 168-i (6)(c) (McKinney 2006).
62. These factors include “persistence of behavior, associated drugs, associated alcohol, use of
weapons and violence, age of the offender at the time of the commission of the first sex crime (not
always significant), mental instability (not always significant).” The characteristics of the victim that
should be considered, according to the pamphlet, include “gender (pedophiles often offend against either
sex), infant, child, adolescent, adult, elderly.” Raul Russi, New York State Division of Parole,
Guidelines for the Supervision of Sex Offenders (1994).
Offenders (1994).
The pamphlet includes a “menu” of special conditions to be imposed “which reduce[s] the
opportunity for the offender to become re-involved in negative behavior.” According to the
guidelines, all special conditions “must be related to the releasee’s pattern of criminal
behavior” and a memorandum detailing the conditions “must explain th[is] relationship.” The
pamphlet states this is because, “[i]f we [the Parole Board] have to defend these Special
Conditions in court, it is critical that the reason for imposing the Special Condition be well
explained and documented. That is how we won the Gerena case.”64
In Gerena, the court found that special conditions imposed on a parolee convicted of
sodomy and attempted sodomy, which prohibited him from obtaining a driver’s license or
operating a motor vehicle without prior approval from his parole officer, were within the
lawful discretion of the parole officer and the parole officer’s supervisor.65 The court also
determined that when the Division of Parole is making decisions concerning release of a
prisoner to parole supervision, the Division of Parole may consider the crime for which the
prisoner was convicted and the manner in which he committed the crime.66
The menu of special conditions in the Division of Parole pamphlet includes:
(1) Participation and cooperation with therapy and counseling (the Parole Board
encourages prisoners on parole to sign a waiver allowing their therapists to discuss
their cases with parole officers);
(2) No contact with children under age eighteen without prior approval from a parole
officer;
(3) Prohibitions on contact with victims;
(4) Limits on proximity to places where children may congregate;
(5) Limits on the possession of children’s toys;
(6) Curfews;
(7) Prohibitions on going to adult nightclubs, bookstores, and participating in other
forms of adult entertainment;
(8) Limits on the scope of Internet use;
(9) Requirements of notifying the parole officer when the releasee enters a significant
relationship; and
(10) Alcohol or substance abuse treatment (if applicable).67
Additional special conditions may be imposed if they can be linked specifically to the
releasee’s past behavior. It should be noted that many sex offenders have engaged in only
one type of sexual offense, whereas other sex offenders may have been convicted of many
different offenses (for example, rape, incest, or pedophilia). As a result, not all of the special
conditions set out in the pamphlet will apply to you. Some restrictions however, such as
curfews or prohibitions on contacting victims, will apply to almost all sex offenders.
Additionally, any sex offender who wishes to travel outside the geographic boundaries
imposed on him by his parole officer must have a travel permit. Parole officers will only
grant permits for sex offenders to travel outside the bounded area in the case of verified
family emergencies or special circumstances such as family illness, weddings, and funerals.68
Offenders (1994). In addition to regular curfews imposed in certain situations, in New York, New
Jersey, Illinois, Virginia, and Texas (among other states) a special curfew is imposed on Halloween.
Anahad O’Connor, Sex Offenders See New Limits on Halloween, N.Y. Times, Oct. 25, 2006.
65. Gerena v. Rodriguez, 192 A.D.2d 606, 607, 596 N.Y.S.2d 143, 144 (2d Dept. 1993).
66. Gerena v. Rodriguez, 192 A.D.2d 606, 606–07, 596 N.Y.S.2d 143, 144 (2d Dept. 1993).
Offenders (1994).
Offenders (1994).
In the event of travel, another parole officer will supervise the sex offender while outside of
the usual bounded area.69
New York courts have so far upheld special parole conditions on convicted sex offenders.
The courts have found that the decision of the Division of Parole to impose special conditions
on a prior offender is not subject to court supervision. 70 As a parolee, you are under
administrative supervision of officials whose decisions are final and beyond review by a
court, so long as they do not violate any statutory requirements and are reasonable and not
arbitrary when considered in the context of your record.71
3. Incarceration Beyond Your Conditional Release Date
When you are incarcerated and nearing release in New York State, the Parole Board will
require that you inform them of where you plan to live after you leave prison.72 Additionally,
the Parole Board has the power to deny approval of your planned living arrangements.73
Prisoners who fail to obtain the required approval from the Division of Parole may be held
beyond their conditional release date.74 New York courts have consistently found that it is
within the discretion of the Division of Parole to impose special conditions upon a prisoner
even after his release. The courts have further held that a condition of parole that requires
that a parolee reside in an approved residence has a rational basis because of (1) a prisoner’s
status as a sex offender, (2) a prisoner’s failure to participate in available sex offender
treatment programs, 75 or (3) a prisoner’s previous violent conduct. 76 Common restrictions
imposed by the Parole Board include restrictions prohibiting you from living in areas near
schools or institutions that care for children under the age of 18. 77 Because residency
restrictions are sometimes determined by the state and sometimes by local (county, city,
Offenders (1994).
70. See Ahlers v. N.Y. State Div. of Parole, 1 A.D.3d 849, 849, 767 N.Y.S.2d 289, 289 (3d Dept.
2003) (determining that a parole officer was allowed to require that a convicted sex offender attend
substance and alcohol abuse treatment programs as a condition of the offender’s parole and that this
decision was “beyond judicial review”); Gerena v. Rodriguez, 192 A.D.2d 606, 606, 596 N.Y.S.2d 143,
144 (2d Dept. 1993) (holding that decisions of the New York State Division of Parole concerning the
release of an inmate to parole supervision, including imposition of any special conditions, are
discretionary and beyond review of the courts if made in accordance with the law).
71. M.G. v. Travis, 236 A.D.2d 163, 167, 169, 667 N.Y.S.2d 11, 14 (1st Dept. 1997) (citing
Briguglio v. N.Y State Bd. of Parole, 24 N.Y.2d 21, 28, 246 N.E.2d 512, 516, 298 N.Y.S.2d 704, 710
(1969) to support the proposition that decisions of the parole board cannot be reviewed by the courts, as
long as the parole board does not violate any statutory obligations, and reviewing the board’s decision
to determine whether it was arbitrary or capricious).
72. N.Y. Exec. Law § 259-c (McKinney 2005 & Supp. 2006) (describing generally the functions,
powers, and duties of the State Board of Parole).
73. See Monroe v. Travis, 280 A.D.2d 675, 676, 721 N.Y.S.2d 377, 378 (2d Dept. 2001) (holding
that the Parole Board was justified in refusing to grant conditional release to a convicted sex offender
until the prisoner found housing that was satisfactory to the Parole Board).
74. Monroe v. Travis, 280 A.D.2d 675, 676, 721 N.Y.S.2d 377, 378 (2d Dept. 2001) (holding Parole
Board was justified in refusing to grant conditional release to convicted sex offender until he found
satisfactory housing).
75. People ex. rel. Wilson v. Keane, 267 A.D.2d 686, 686, 700 N.Y.S.2d 408, 409 (3d Dept. 1999)
(finding that due to petitioner’s history as a sex offender and his failure to participate in available sex
offender treatment programs, the condition that petitioner reside in an approved residence was
rationally based).
76. Billups v. N.Y. State Div. of Parole, 18 A.D.3d 1085, 795 N.Y.S.2d 408 (3d Dept. 2005)
(holding that due to petitioner’s prior violent acts with his daughter, the condition that he reside in an
approved residence was rational).
77. New York State Parole Handbook: Questions and Answers Concerning Parole Release and
Supervision 22 (Sept. 2007), available at http://parole.state.ny.us/Handbook.pdf .
town, and village) authorities, be sure to check the zoning laws for the area where you intend
to live following release from prison.
You should be aware that at the time of this writing the Division of Parole appears to
have a “zero tolerance” policy for parole violations by sex offenders.78 Complying with the
requirements and conditions the Parole Board imposes is very important to avoid parole
withdrawal and return to prison.
G. Community Registration and Notification Laws (Megan’s Law)
1. Generally
Community Registration and Notification laws, commonly known as “Megan’s Laws,”
were first passed as state laws in 1989 in response to a few highly publicized sex crimes
against children. All fifty states have enacted sex offender registration laws.79 These laws
vary significantly in a number of important ways. Federal law requires states to enact sex
offender registration statutes that provide for a centralized database of the names,
fingerprints, and current addresses of all released sex offenders.80 States must also provide
notice to offenders of the duty to register, annually verify the offender’s address, notify law
enforcement agencies when an offender moves, and “release relevant information that is
necessary to protect the public.”81 Note that under federal law, if you are a sex offender, the
state must notify you about how and when to register.
The Supreme Court has recently upheld various Megan’s Law provisions against
challenge. In Smith v. Doe, the Court ruled that Alaska could apply its Megan’s Law
requirements retroactively; that is, the law’s requirements applied to sex offenders who were
convicted before the state law took effect.82 And in Connecticut Department of Public Safety v.
78. See, e.g., Farrell v. Burke, 97 Civ. 5708 (DAB), 2004 U.S. Dist. Lexis 24658, at *19–26
(S.D.N.Y. Dec. 8, 2004) (unpublished) (granting defendants’ motion to dismiss Fourteenth Amendment
claim by a parolee who was re-arrested and re-incarcerated for violation of a special condition
prohibiting him from owning pornography).
79. See Ala. Code §§ 13A-11-200 to 13A-11-202 (2008); Alaska Stat. §§12.63.010 to 12.63.100
(2008); Ariz. Rev. Stat. Ann. §§ 13-3821 to 13-3828 (2008); Ark. Code Ann. §§ 12-12-901 to 12-12-922
(2008); Cal. Penal Code §§ 290-293 (2008); Colo. Rev. Stat. § 16-22-101 to 16-22-114 (2008); Conn. Gen.
Stat. Ann. §§ 54-250 to 54-261 (2008); Del. Code Ann. tit. 11, § 4120 (2008); Fla. Stat. Ann. § 775.21
(Lexis 2008); Ga. Code Ann. § 42-1-12 (2008); Haw. Rev. Stat. Ann. §§ 846E-1 to 846E-13 (YEAR);
Idaho Code Ann. §§ 18-8301 to 18-8329 (2008); 730 Ill. Comp. Stat. Ann. 105/1 to 150-12, 152/101 to
152/121 (Lexis 2008); Ind. Code Ann. §§ 11-8-8-1 to 11-8-8-20 (Lexis 2008); Iowa Code Ann. §§ 692A.1 to
692A.16 (2008); Kan. Stat. Ann. §§ 22-4901 to 22-4912 (2007); Ky. Rev. Stat. Ann. §§ 17.500–17.580
(Lexis 2008); La. Rev. Stat. Ann. §§ 15:540–15:550 (2008); Me. Rev. Stat. Ann. tit. 34-A, §§ 11201–
11256; Md. Code Ann. Crim. Proc. §§ 11-701 to 11-726 (2008); Mass. Gen. Laws ch. 6, §§ 178D-Q (2008);
Mich. Comp. Laws Ann. §§ 28.721–.732 (2008); Minn. Stat. Ann. §§ 243.166, 243.167 (2007); Miss. Code
Ann. §§ 45-33-21 to 45-33-57 (2008); Mo. Ann. Stat. §§ 589.400–589.425 (2008); Mont. Code Ann. §§ 46-
23-501 to 46-23-570 (2007); Neb. Rev. Stat. 29-4003 to 29-4013 (2008); Nev. Rev. Stat. §§ 179D.010–
179D.850 (2008); N.H. Rev. Stat. Ann. §§ 651-B:1 to 651-B:12(2008) (effective until 2009); N.J. Stat.
Ann. §§ 2C:7-1 to 2C:7-19 (2008); N.M. Stat. Ann. §§ 29-11A-1 to 29-11A-10 (2008); N.Y. Corr. Law §§
168 to 168-v (2008); N.C. Gen. Stat. §§ 14-208.5 to 14-208.32 (2008); N.D. Cent. Code § 12.1-32-15
(2008); Ohio Rev. Code Ann. § 2950.1–2950.99 (Lexis 2008); Okla. Stat. Ann. tit. 57, §§ 581–89 (2008);
Or. Rev. Stat. §§ 181.592–181.608 (2007); 42 Pa. Cons. Stat. Ann. §§ 9791-9799.9 (West 2008); R.I. Gen.
Laws §§ 11-37.1-1 to 11-37-20 (2008); S.C. Code Ann. §§ 23-3-400 to 23-3-550 (2007); S.D. Codified
Laws §§ 22-24B-1 to 22-24B-32 (2008); Tenn. Code Ann. §§ 40-39-201 to 40-39-211 (2008); Tex. Rev.
Code Crim. Pro. Ann. art. 62.051–62.408 (Vernon 2008); Utah Code Ann. § 77-27-21.5 (2008); Vt. Stat.
Ann. tit. 13, §§ 5401–14 (2007); Va. Code Ann. §§ 9.1-901 to 9.1-920 (2008); Wash. Rev. Code Ann. §§
9A.44.130– 9A.44.145 (2008); W. Va. Code §§ 15-12-1 to 15-12-10 (Lexis 2008); Wis. Stat. Ann. §§
301.45–301.46 (2007); Wyo. Stat. Ann. §§ 7-19-301 to 7-19-307 (2008); D.C. Code Ann. §§ 22-4001 to 22-
4017 (Lexis 2008).
80. 42 U.S.C. § 14071 (2006).
81. 42 U.S.C. § 14071 (2006).
82. Smith v. Doe, 538 U.S. 84, 102–03, 105–06, 123 S. Ct. 1140, 1152, 1154, 155 L. Ed. 2d 164,
Doe, the Court determined that Connecticut does not have to provide a convicted sex offender
with a hearing and the chance to prove that he is not dangerous before the state posts the
sex offender’s picture and identifying information on a website available to the public.83 The
Court concluded in this case that the Connecticut law did not deny a sex offender procedural
due process, because sex offenders were included on the website due to a past conviction, and
the sex offender already had an opportunity to contest this past conviction. Under the Court’s
reasoning, the Connecticut sex offender registry did not make any determinations about a
sex offender’s future dangerousness, rather, the registry just listed sex offenders based on
previously established facts (that is, a prior conviction for a sex offense). In Connecticut
Department of Public Safety, the Court did leave open the question of whether Megan’s Law
violates substantive due process, as protected by the Fourteenth Amendment of the United
States Constitution.84 Substantive due process means that that the due process clauses of the
Fifth and Fourteenth amendments require that laws must be fair and reasonable and must
further a legitimate governmental goal. 85 However, given that many challenges to the
Megan’s Laws of various states have generally failed, it might be difficult to succeed on a
substantive due process challenge in court.86
Though it was not a Supreme Court case, the substantive due process question has been
discussed in Doe v. Michigan Department of State Police. That case allowed Michigan to
require sex offenders under age twenty-one to register for the Public Sex Offender Registry
after being designated “youthful trainees” and completing a “diversion” program, even
though the youthful trainee designation led to their criminal proceedings being dismissed
with no guilty verdict.87 The Court found that there was some harm done to the offenders,
but not enough for it to be a substantive due process violation.88
In Georgia, the court in Mann v. Georgia Department of Corrections found that the state
could bar convicted sex offenders from living with 1000 feet of any childcare facility, but only
under certain circumstances.89 It was important that the sex offender owned the home, and
183, 185 (2003) (holding that the sex offender registration law had a legitimate civil purpose to increase
public safety and was not an additional, after-the-fact criminal sanction on convicted sex offenders).
83. Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4, 123 S. Ct. 1160, 1162–63, 155 L. Ed. 2d 98,
103 (2003).
84. See U.S. Const. amend. XIV, § 1 (prohibiting any state from depriving “any person of life,
liberty, or property, without due process of law”). In contrast with procedural due process, which may
require that a state provide you with hearing and/or a notice before the state can take some action
against you, substantive due process protects certain fundamental rights that the state cannot interfere
with, such as privacy or family.
85. Black’s Law Dictionary 539 (8th ed., 2004).
86. See, e.g., Paul P. by Laura L. v. Verniero, 170 F.3d 396, 405 (3d Cir. 1999) (holding that New
Jersey’s version of Megan’s Law did not violate a sex offender’s constitutionally protected privacy
interest); Russell v. Gregoire, 124 F.3d 1079, 1094 (9th Cir. 1997) (holding that Washington’s Megan’s
Law did not violate a sex offender’s substantive due process right to privacy).
87. Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 494–97, 506 (6th Cir. 2007). The appellants
had been charged under Michigan’s Holmes Youthful Trainee Act (HYTA), which is only available for
certain sex crimes and which seals their criminal records once they plead guilty and complete the
diversion program. They were then required to register as convicted sex offenders under Michigan’s Sex
Offender Registration Act, which makes information about the charges publicly available. The court
held that individuals’ substantive due process rights do not entitle them to individual hearings on
whether they should be required to register, if the statute requires all sex offenders to register. Doe v.
Mich. Dep’t of State Police, 490 F.3d 491, 494–97 (6th Cir. 2007). Offenders charged after October 31,
2004 are only required to register if youthful trainee status is revoked and they are found guilty. Doe v.
Mich. Dep’t of State Police, 490 F.3d 491, 495–96 (6th Cir. 2007).
88. Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 499–502 (6th Cir. 2007).
89. Mann v. Ga. Dep’t of Corr., 653 S.E.2d 740, 740–46, 282 Ga. 754, 754–62 (Ga. 2007). Mr.
Mann bought his house before the child care facility existed, but the Court ruled that that did not
matter.
did not just live there.90 The court found that Georgia had taken the sex offender’s property
without compensating the sex offender, which is unconstitutional—if Georgia had bought the
house from the sex offender, its action would be acceptable.91 Georgia also barred convicted
sex offenders from working at places of business within 1000 feet of any child care facility,
and the Court found this acceptable because the sex offender could do what he was hired to
do without being in that particular building.92 The Court suggested that the statute would be
acceptable if, as in other states, it included an exception allowing the sex offender to stay
where he was living if a childcare center moved there after he purchased the home.93
2. New York
The New York version of Megan’s law, the Sex Offender Registration Act of 1996
(“SORA”) established registration and notification provisions and requires the classification
of convicted sex offenders using a three-tiered system.94 The New York Division of Criminal
Justice Services maintains a file of individuals required to register. The file includes
information such as:
(1) The sex offender’s name;
(2) All aliases used;
(3) Date of birth;
(4) Sex;
(5) Race;
(6) Height;
(7) Weight;
(8) Eye color;
(9) Driver’s license number;
(10) Home address and/or expected place of residence (“domicile”);
(11) Any Internet accounts belonging to the offender and any screen names used by the
offender;
(12) A photograph of the offender;
(13) Fingerprints;
(14) A description of the crime of which the offender was convicted; and
(15) Any other information deemed important by the division.95
(a) Offenses
All persons who are “sex offenders” for the purposes of SORA must register before their
release with the Division of Criminal Justice Services.96 You are designated a sex offender for
the purposes of SORA if you have been convicted of a New York State offense listed below.97
90. Mann had challenged the same statute previously, while living rent-free at his parents’
house, and it was not found an unconstitutional taking. Mann v. Georgia Dep’t of Corrections, 653
S.E.2d 754, 755, 282 Ga. 740, 742 (2007).
91. Mann v. Ga. Dep’t of Corr., 653 S.E.2d 740, 745, 282 Ga. 754, 761 (Ga. 2007).
92. Mann v. Ga. Dep’t of Corr., 653 S.E.2d 740, 746, 282 Ga. 754, 761 (Ga. 2007).
93. Mann v. Ga. Dep’t of Corr., 653 S.E.2d 740, 742, 744, 282 Ga. 754, 755, 759 (Ga. 2007).
94. N.Y. Corr. Law §§ 168–168-v (McKinney 2003 & Supp. 2008).
95. N.Y. Corr. Law § 168-b (McKinney 2003 & Supp. 2008).
96. N.Y. Corr. Law § 168-f (McKinney 2003 & Supp. 2008).
97. Sex offense in this context means a conviction of, or a conviction for an attempt to commit,
any of the following provisions of the New York Penal Law: §§ 130.20, 130.25, 130.30, 130.40, 130.45,
130.60, 250.50, 255.25, or 255.26, 255.27, 263; § 130.52 or 130.55 if the victim of the offense is under
eighteen years old; §§ 130.52 or 130.55 regardless of the age of the victim if the offender has previously
been convicted of another listed sex offense; §§ 135.05, 135.10, 135.20, or 135.25 relating to kidnapping,
provided that the victim of the kidnapping is less than 17 years old and the offender is not the parent of
the victim; § 230.04, where the person patronized is in fact less than 17 years old; § 230.05, 230.06,
You MUST register as a sex offender if you have been convicted of committing or attempting to commit
one or more of the following sections of the New York Law
Code Section(s) Condition (if any)
130.20, 130.25, 130.30, 130.40, 130.45, None.
130.60, 235.22, 250.50, or 255.25
130.52 or 130.55 Where the victim of the offense was under 18 years old.
130.52 or 130.55 Regardless of the age of the victim if you had previously
been convicted of another listed sex offense.
135.05, 135.10, 135.20, or 135.25 Relating to kidnapping, provided that the victim of the
kidnapping is less than 17 years old and you are not the
parent of the victim.
230.04 Where the person patronized is in fact less than 17 years
old.
230.05, 230.06, 230.30(2), 230.32 None.
Note that in New York a person who has been arrested or charged with a sex offense is not required to
register unless the arrest or charge results in a conviction for a qualifying sex offense.
Sex offenders sentenced to probation, local jail, or state prison after January 21, 1996 must register
upon their return to the community. SORA also requires registration of those individuals convicted in
another jurisdiction if the offense is equivalent to a New York State registerable offense and they move to
the state of New York, or if the offender was required to register as a sex offender in the jurisdiction from
which they moved.98 Additionally, any person convicted of a qualifying offense who was incarcerated or
under parole or probation supervision on the date SORA was enacted is included in the Sex Offender
Registry. Registration is required where you have been convicted of, or pleaded guilty to, a listed offense or
an attempt to commit a listed offense.
SORA requires a sex offender to register with the Division of Criminal Justice upon release and every
year for a period of at least ten years. Level Three (high-risk offenders) must register for life unless a court
orders otherwise and must verify their address with local law enforcement every ninety days.99
(b) Risk Assessment Hearing and Right to Appointed Counsel
The three-tiered system was implemented to assess a prior offender’s future risk to the community. As
a general rule, the sentencing court will determine an offender’s risk level under SORA either at the time of
sentence (in probation cases) or when the offender is released from custody (in jail or prison cases).100 A
risk level is the court’s assessment of the risk that you, as a sex offender, will commit other sex offenses in
the future and therefore threaten public safety. Because the court may not possess up-to-date information
on an offender who is being released from prison or jail, SORA established a Board of Examiners of Sex
Offenders to evaluate these cases and recommend risk levels to the court.101
230.30(2), 230.32, 230.33. N.Y. Corr. Law § 168-a(2)(a)–(c) (McKinney 2003 & Supp. 2008). Sex offense
also means a conviction of or a conviction for an attempt to commit any of the previously listed sections
where the crimes were committed or attempted as a hate crime as defined in section 485.05 of the
Penal Law or as a crime of terrorism defined in section 490.25 of the Penal Law. N.Y. Corr. Law § 168-
a(2)(a)(ii) (McKinney 2003 & Supp. 2008). Furthermore, a sexually violent offense includes a conviction
of or a conviction for an attempt to commit any of the provisions of §§ 130.35, 130.50, 130.53, 130.65,
130.65-a, 130.66, 130.67, 130.70, 130.75, 130.80, 130.95 or 130.96 of the New York Penal Law. N.Y.
Corr. Law § 168-a(3)(a) (McKinney 2003 & Supp. 2008).
98. N.Y. Corr. Law §§ 168-a(2)(d), 168-a(3)(b) (McKinney 2003 & Supp. 2008).
99. N.Y. Corr. Law § 168-h (McKinney 2003 & Supp. 2008).
100. See New York Board of Examiners of Sex Offenders, Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary (2006), available at
http://www.nysda.org/Hot_Topics/Megan_s_Law/06_SORAGuidelines.pdf.
101. N.Y. Corr. Law § 168-l (McKinney Supp. 2009) (describing generally the organization and
duties of the Board of Examiners of Sex Offenders).
Using the Sex Offender Registration Act Risk Assessment Instrument,102 risk level recommendations
are made to the sentencing court by the Board of Examiners of Sex Offenders at the risk classification
hearing. The worksheet designates a numerical value to “risk factors” that are then tallied. Factors
evaluated will include your current offense, criminal history, post-offense behavior, and planned release
environment.103
The guidelines also contain four “overrides” that result in a presumptive risk assessment of level 3:
(1) Whether you have a prior felony conviction for a sex crime;
(2) Whether you inflicted serious physical injury or caused death;
(3) Whether you have made a recent threat that you will re-offend by committing a sexual or violent
crime; or
(4) That there has been a clinical assessment that you have a psychological, physical, or organic
disorder that decreases ability to control impulsive sexual behavior, like pedophilia or sexual
sadism.104
The initial SORA legislation did not include procedures for risk classification hearings. However,
under the amendments made to the Act in 1999, sex offenders now have a clear right to assigned counsel at
risk classification hearings.105 Under the new language, if you are a sex offender who is “financially unable
to retain counsel,” you have a right to appointed counsel at your risk classification hearing.106 In fact,
courts must automatically assign you a lawyer if appointed counsel previously represented you in your
criminal case.107 If you were initially represented by retained counsel, but have since become indigent, you
may apply for assigned counsel in advance of the risk classification hearing.
The hearings are now also governed by several other procedural protections. Once the Board of
Examiners of Sex Offenders has made an initial recommendation about your risk level, the sentencing court
holds a hearing. The district attorney must provide evidence supporting your proposed risk level and the
amount of time you will need to register. If the district attorney wishes to pursue a different risk level
determination than the one recommended by the Board, she must notify you and provide you with a
statement of reasons for the alternative determination at least ten days before the hearing.108
The 1999 changes also established broad discovery rights, so any information the Board considers will
be available to the defense at the risk classification hearing. Those materials, following the amendments,
may include information from state or local correctional facilities, hospitals, institutions, district attorneys,
law enforcement agencies, probation departments, the Division of Parole, courts, and child protective
agencies.109
The amendments also require courts to adjourn the risk assessment hearing until after your release date
whenever necessary for proper adjudication of the issues. This alleviates the problems caused by the short
time-frames established by the original Act, which required that the Board issue its recommendation at
least sixty days prior to a sex offender’s scheduled release from prison, and that the court render a decision
within thirty days of the release date.110
104. New York Board of Examiners of Sex Offenders, Sex Offender Registration Act: Risk
105. N.Y. Corr. Law § 168-n(3) (McKinney 2003 & Supp. 2008).
109. N.Y. Corr. Law § 168-m (McKinney 2003).
110. N.Y. Corr. Law §§ 168-l(6) to l(8), 168-n(2) (McKinney 2003 & Supp. 2008).
(c) Registration and Notification
Upon release, the correctional facility or the court must inform the law enforcement agency which has
jurisdiction of the contemplated release or discharge of a sex offender (e.g., the Division of Parole). The
risk level determines the amount of information about you that law enforcement is authorized to release to
the public using various types of community notification.111
If you are classified as level 1 (low risk), only law enforcement is notified of your presence in the
community. If you are classified as level 2 (moderate risk), law enforcement is notified, and if it is
determined that you pose a risk to public safety, the following information may be released to groups
(individuals or organizations, such as schools) with vulnerable populations: your exact name and aliases,
your approximate address based on zip code, a photograph, and background information including the
crime you were convicted of, mode of operation, type of victim targeted, and a description of any special
restrictive conditions imposed on you (such as saying you are not allowed to be around children).112
If you receive a level 3 (high risk) designation, all the information released for level 2 risk, in addition
to your exact address, and place of employment, may be released to relevant individuals or organizations,
or to the public at large.
The law also establishes a telephone number (1-900-288-3838), which citizens can call to determine
whether a named person is a convicted sex offender. 113 The 900 number includes all registered sex
offenders in New York (levels 1–3). A person calling this number will learn only that a level 1 offender is
listed in the registry; far more detailed information is available about level 3 offenders. Callers must
identify themselves and must also provide identifying information about the sex offender in order to secure
information by telephone. They must know the sex offender’s social security number, license number,
address, and date of birth. People may also call 1-800-262-3257. If you call this 800 number, you will also
need similar information about the suspected sex offender as listed above.114
In addition, each police department in New York is required to have a publicly accessible book, the
“Subdirectory of High-Risk (Level 3) Sex Offenders,” which can be viewed upon written request. The
subdirectory provides detailed information about level 3 sex offenders residing in New York, including the
offender’s address, photograph, modus operandi (that is, the offender’s usual manner of committing past
crimes), and offense description.115
The New York state sex offender registry is also available online at
http://criminaljustice.state.ny.us/nsor/index.htm. While the online registry includes only shortened
information on level 3 offenders (largely because of its graphic content), parents from at least one private
organization have copied additional information and made it available in an online database.116
(d) Legal Challenges
Federal court litigation has largely prohibited enforcement of the Act’s community notification
provisions against persons who committed their crimes before January 21, 1996.117 A federal district court
in 1996 banned NY state from undertaking community notification concerning any sex offender who
committed his or her crime prior to January 21, 1996, until the offender was afforded a full judicial hearing
regarding the risk level proposed by the state. For that reason, defendants who committed their crime and
were sentenced for it before January 21, 1996, and were assigned a risk level prior to January 1, 2000,
cannot be included in the directory (see below).
111. N.Y. Corr. Law § 168-l(6) (McKinney Supp. 2008).

112. N.Y. Corr. Law § 168-l(6) (McKinney Supp. 2008).
113. N.Y. Corr. Law § 168-p (McKinney Supp. 2008).
114 . Information regarding the 800 number is available at
http://criminaljustice.state.ny.us/nsor/800info.htm (last visited Nov. 24, 2008).
115. N.Y. Corr. Law § 168-q (McKinney 2003).
116 . The online data is available at
http://www.parentsformeganslaw.org/offender/offenderSearch.jsp (last visited Nov. 26, 2008).
117. Doe v. Pataki, 940 F. Supp. 603, 604, 609 (S.D.N.Y. 1996) rev'd in part, 120 F.3d 1263 (2d
Cir. 1997), remanded to 3 F. Supp. 2d 456 (S.D.N.Y. 1998). See also Doe v. Pataki 120 F.3d 1263, 1268–
69, 1272–85 (2d Cir. 1997), remanded to 3 F. Supp. 2d 456 (S.D.N.Y. 1998) (while publishing the names
of sex offenders was not a punishment and did not violate the Ex Post Facto Clause, offenders were
entitled to hearings on their level of classification).
(e) Additional Amendments
A number of amendments effective on January 1, 2000, however, brought the SORA into compliance
with the federal district court decision in Pataki. Therefore, all sex offenders who were assigned a risk level
on or after January 1, 2000, can be included in the directory. See Figure 1, below.
Date Crime Committed Date Assigned a Risk Level In Directory?
Before January 21, 1996 Before January 1, 2000 No
Before January 21, 1996 On or After January 1, 2000 Yes
After January 21, 1996 Any time Yes

Figure I: Table Determining an Offender’s Risk Level and Inclusion in the Sex Offender Directory
The amendments that went into effect on January 1, 2000, also define a person who has committed a
“sexually violent offense” 118 as a “sexually violent offender,” or as a “sexual predator” if the person
“suffers from a mental abnormality or personality disorder that makes him or her likely to engage in
predatory sexually violent offenses.” 119 This new language in the statute guarantees an individualized
review of the perceived risk of committing an offensive act again, however, to a sex offender, there is no
substantive difference between “sex offenses” and “sexually violent offenses” under the Act. All sex
offenders, even those convicted of misdemeanor offenses, face the possibility of a level 3 designation.
Additional amendments to the Act now give sex offenders the right to a civil appeal from the trial
court’s risk level determination and the right to a lawyer on appeals.120 A right to counsel also now extends
beyond the direct appeal, so you have the right to appointed counsel at post-judgment motions for
downward modification of the risk level score, which sex offenders may seek on grounds of changed
circumstances. It should be noted that none of the amendments are retroactive and that sex offenders who
already have been classified will remain classified until new legislation presents itself. In the meantime, the
state cannot proceed with community notification against sex offenders who were in prison, or on probation
or parole, on the original effective date of Megan’s Law (January 21, 1996).121
3. Title I of the Adam Walsh Act: The Sex Offender Registration and
Notification Act122
In July 2006, Congress passed the Adam Walsh Child Protection and Safety Act. Title I of the Act set
out a national system for the registration of sex offenders called the Sex Offender Registration and
Notification Act (“SORNA”).123 States may adopt this scheme, but adoption is not mandatory.
In New York, for example, there has been no move to adopt the registration system set out in the
Adam Walsh Act as of the writing of this Chapter. Therefore, if you live in New York, you are still subject
to the New York state registration system (New York Sex Offender Registration Act of 1996) described
above in Section G(2) of this Chapter. It is important to check to see if your state has adopted the Adam
Walsh registration system for sex offenders or has kept its own registration system.124
118. N.Y. Corr. Law § 168-a(3) (McKinney Supp. 2006).

119. N.Y. Corr. Law § 168-a(7)(b) (McKinney Supp. 2006).
120. N.Y. Corr. Law § 168-n(3) (McKinney Supp. 2006).
121. Doe v. Pataki, 120 F. 3d 1263 (2d Cir. 1997) (refusing to apply certain aspects, including
community notification, against those convicted before the law went into effect).
122. For more information on the Adam Walsh Act, see Section H below.
123. The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat.
587 (2006). SORNA created a new sex offender registry law at 42 U.S.C. §§ 16901-16962 and created
new criminal offenses and penalties for failure to register at 18 U.S.C. § 2250.
124. For a list of state laws, see footnote 79.
(a) If my state adopted the SORNA system, to whom does SORNA
apply?
If your state has adopted the SORNA system, SORNA applies to all persons convicted of a “sex
offense” in your state.125 Sex offense is defined broadly as any criminal act involving a sexual act or sexual
conduct.126
For the first time in federal law, SORNA requires certain juvenile offenders to register as well. The
governing section of the Act, 42 U.S.C. §16911(8), provides that juveniles (fourteen years old or older at
the time of the offense) adjudicated delinquent for “aggravated sexual abuse,”127 or for a comparably severe
crime, or for the attempt or conspiracy to commit aggravated sexual abuse, must follow SORNA’s
registration requirements. Note: this does not include “consensual sexual conduct” if the victim was an
adult and not under the offender’s “sexual authority” and/or the victim was at least thirteen years old and
the offender was not more than four years older.128
It is very important to be aware of the Attorney General’s “interim” provision that SORNA applies
retroactively, meaning that anyone charged with a crime listed in SORNA at any time, must follow its
mandates.129 This provision will remain in effect until the Attorney General makes a final decision about
125. See 42 U.S.C. § 16911(1) (2006).

126. Specifically, 42 U.S.C. § 16911(5) (2008) defines a sex offense as:
(A) Generally. Except as limited by subparagraph (B) or (C), the term "sex offense" means-
(i) a criminal offense that has an element involving a sexual act or sexual contact with
another;
(ii) a criminal offense that is a specified offense against a minor;
(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of title
18, United States Code [18 U.S.C. § 1152 or 1153]) under section 1591 [18 U.S.C. § 1591], or
chapter 109A [18 U.S.C. §§ 2241 et seq.], 110 [18 U.S.C. §§ 2251 et seq.] (other than section
2257, 2257A, or 2258 [18 U.S.C. § 2257, 227A, or 2258]), or 117 [18 U.S.C. §§ 2421 et seq.], of
title 18, United States Code;
(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i)
of Public Law 105-119 (10 U.S.C. 951 note); or
(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).
(B) Foreign convictions. A foreign conviction is not a sex offense for the purposes of this
title if it was not obtained with sufficient safeguards for fundamental fairness and due process
for the accused under guidelines or regulations established under section 112 [42 U.S.C. §
16912].
(C) Offenses involving consensual sexual conduct. An offense involving consensual sexual
conduct is not a sex offense for the purposes of this title if the victim was an adult, unless the
adult was under the custodial authority of the offender at the time of the offense, or if the
victim was at least 13 years old and the offender was not more than 4 years older than the
victim.
127. 18 U.S.C. § 2241 (2006).
128. 42 U.S.C. § 16911(5)(C) (2006).
129. The rule, at 28 C.F.R. § 72.3, states as follows:
The requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including
sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.
Example 1. A sex offender is federally convicted of aggravated sexual abuse under 18 U.S.C. § 2241 in 1990
and is released following imprisonment in 2007. The sex offender is subject to the requirements of the Sex
Offender Registration and Notification Act and could be held criminally liable under 18 U.S.C. § 2250 for
failing to register or keep the registration current in any jurisdiction in which the sex offender resides, is an
employee,
or is a student.
Example 2. A sex offender is convicted by a state jurisdiction in 1997 for molesting a child and is released
following imprisonment in 2000. The sex offender initially registers as required, but disappears after a couple
of years and does not register in any other jurisdiction. Following the enactment of the Sex Offender
Registration and Notification Act, the sex offender is found to be living in another state and is arrested there.
The sex
offender has violated the requirement under the Sex Offender Registration and Notification Act to register in
each state in which he resides, and could be held criminally liable under 18 U.S.C. § 2250 for the violation
because he traveled in interstate commerce.
who SORNA applies to, and the deadline for this decision is July 27, 2009. This provision is also discussed
in the following “Challenges to SORNA” section.
Finally, the new AG guidelines may broaden definitions of sex offenses (Congress specifically gave
the AG the power to change, add to, and/or widen the scope of SORNA in certain cases under an
“expansion authority”).130 The following list of “apparent or possible broadening” of offenses comes from
an article on the Federal Defenders website:131
(1) “Attempt” and “conspiracy” specified in SORNA, see 42 U.S.C. § 16911(5)(A)(v), supposedly
include offenses that are not defined as attempts or conspiracies, but “in substance amount to”
attempt or conspiracy, such as “assault with intent to commit rape.”
(2) “Kidnapping” and “false imprisonment” specified in SORNA, see 42 U.S.C. § 16911(7)(A), (B),
supposedly include abduction and unlawful restraint, and while the statute explicitly excludes
kidnapping and false imprisonment committed by a parent or guardian, the guideline states that
“[i]t is left to jurisdictions’ discretion” whether to require registration if the offender is a parent or
guardian. True, the jurisdiction could require registration, but a federal failure to register
prosecution could not be based thereon.
(3) “Solicitation to engage in sexual conduct” specified in SORNA, see 42 U.S.C. § 16911(7)(C),
“should be understood broadly to include any direction, request, enticement, persuasion, or
encouragement of a minor to engage in sexual conduct. ‘Sexual conduct’ should be understood to
refer to any sexual activity involving physical contact.” Registration for “solicitation” under 42
U.S.C. § 16911(7)(C) or (E) must be required for a conviction under any “general attempt or
solicitation provision,” or “whose elements include soliciting or attempting.”
(4) “Criminal sexual conduct involving a minor” under 42 U.S.C. § 16911(7)(H) also includes
“pandering,” “procuring,” and “pimping” apparently even if no “sexual conduct” occurred, and “is
not limited to cases where the victim’s age is an element of the offense,” but requires registration
“whenever the victim was in fact below the age of 18.”
(5) “Any conduct that by its nature is a sex offense against a minor,” see 42 U.S.C. § 16911(7)(I), we
are told, “is intended to ensure coverage of convictions under statutes defining sexual offenses in
which the status of the victim as a minor is an element of an offense, such as specially defined
child molestation or child prostitution offenses, and other offenses prohibiting sexual activity with
underage persons.” The latter clause would encompass consensual statutory rape and so not
“against” anyone, thus foreclosing a potential factual issue for trial. See Adam Walsh II: Sex
Offender Registration and Notification / Failure to Register at 19–20 (Nov. 2006).
(b) If my state adopted the SORNA system, how do I register under
SORNA?
Shortly before your release from prison or, if you were not in custody, immediately after sentencing,
you will need to register as a sex offender. If you are in prison, prison officials are responsible for your
registration. You will be notified of your duties under SORNA and be required to sign a form stating you
understand the requirements.132 The regulations repeatedly emphasize the need for specific notice of
SORNA requirements, signing of the form to confirm the offender understands the registration, and the
jurisdiction’s duty to register offenders.133
The guidelines state that the jurisdiction has the duty to inform and explain “his or her duties under
SORNA” to the person being registered, and must require the person to read and sign the form which states
that he or she has had the duties explained, and that he or she understands the duties.134 The jurisdiction
then must actually “obtain the required registration information for the sex offender and submit that
information for inclusion in the registry.”135
130. See 42 U.S.C. §§ 16914(a)(7), (b)(8) (2006); Fed. Reg. at 30217-18.

131. Amy Baron-Evans, Second Supplement to Adam Walsh Act: Part II, 15 (Sept. 1, 2007),
http://www.fd.org/odstb_AdamWalsh.htm.
132. See 42 U.S.C. § 16917 (2006).
133. 72 Fed. Reg. 30226.
134. 72 Fed. Reg. 30226.
135. 72 Fed. Reg. 30226.
Under SORNA, you must register in each jurisdiction where you live (home or where you habitually
live), are employed (including self-employment and regardless if you are paid or not), are a student
(enrolled in or attending), or were convicted of a sex offense (for initial registration only, if convicted in a
different jurisdiction than where you live).136 An initial registration is required before a prisoner is released
from jail. An “appropriate official” is required to inform the person “of the duties of a sex offender under
this title,” explain such duties, have the person sign a form stating those duties have been explained and is
understood, and register the person before release or within three days of sentencing if he is not being
sentenced to incarceration.137 If an offender is not in jail, he must register within three days of
sentencing.138
If you were convicted before SORNA was enacted, the issue becomes more complicated. The AG’s
guidelines acknowledge that it will take longer to identify those sex offenders with pre-SORNA
convictions who remain in the prisoner, supervision, or registered sex offender populations, and
“jurisdictions should endeavor to register them in conformity with SORNA as quickly as possible,
including fully instructing them about the SORNA requirements, obtaining signed acknowledgements of
such instructions, and obtaining and entering into the registry all information about them required under
SORNA.”139 The guidelines also make it clear that jurisdictions will not be able to identify those covered
by the interim rule that “have left the justice system and merged into the general population long ago.”140
Therefore, the only persons with old convictions who can be identified are those who “remain in (or
reenter) the system because:
(1) They are incarcerated or under supervision, either for the predicate sex offense or some other
crime;
(2) They are already registered or subject to a pre-existing sex offender registration requirement under
the jurisdiction’s law; or
(3) They hereafter reenter the jurisdiction’s justice system because of conviction for some other crime
(whether or not a sex offense).”141
(c) What happens if my state adopted the SORNA system and I don’t
register?
SORNA created a new federal criminal offense for failure to register, which has a maximum penalty of
ten years in jail and/or a fine up to $250,000.142 To be convicted, an offender must knowingly fail to
register or fail to update a registration.143 The person must 1) stand convicted 2) of a sex offense 3) that
occurred at a time covered by SORNA. You may also be liable if you travel across state and international
lines without proper notification to authorities. If you are unable to register for some reason, note that there
is a limited exception from liability for offenders who had uncontrollable circumstances not of their own
creation prevent them from registering, as long as the offender registered as soon as the circumstances
ended.144
(d) What do I have to do after registering for the first time?
SORNA divides sex offenders in three tiers, based on the seriousness of their crime, and places
different restrictions on each. Tiers are assigned in consideration of the length of imprisonment, the age of
the victim of the offense, and the nature of the offense committed.
Which tier you are assigned makes a difference in how long you have to register, how often you have
to appear in person for verification, and the extent of the information about you disclosed on the state’s
Web site.145 States do not have to categorize their offenders into the three tiers, as long as sex offenders are
136. See 42 U.S.C. § 16913(a) (2006).

137. 42 U.S.C. § 16917(a) (2006).
138. 42 U.S.C. § 16913(b) (2006).
139. See 72 Fed. Reg. at 30212.
140. 72 Fed. Reg. at 30212.
141. 72 Fed. Reg. at 30212.
142. 18 U.S.C. § 2250(b) (2006); 18 U.S.C. § 3571 (2006).
143. 18 U.S.C. § 2250(a) (2006).
144. 18 U.S.C. § 2250(a) (2006).
145. See 42 U.S.C. § 16911 (2006) for definitions of which offenses fall into which tier. Generally,
subject to “at least the duration of registration, frequency of in-person appearances for verification, and
extent of Web site disclosure that SORNA requires for that tier.”146 Therefore, if a state decided to require
lifetime registration of all sex offenders, quarterly verification and a full Web site appearance, then the state
would be in compliance with SORNA and not have to divide their sex offenders into tiers.
How long you have to register as a sex offender with the government depends on which Tier sex
offender you are. Tier I offenders must register for fifteen years; Tier II offenders must register for twenty-
five years; and Tier III offenders must register for their entire life.147
SORNA requires all sex offenders periodically personally appear before the government to verify their
registration information. Appearances also allow the government to update your photograph for your
registration. How often you have to appear before the government is determined by which Tier offender
you are. Tier I offenders must appear in person at least once a year; Tier II offenders have to appear at least
every six months; and Tier III offenders must appear at least every three months.148
If anything changes during the period of time you must register, you must notify the government
within three days of any changes to your name, address, employment, and student status.149
SORNA is an extremely complicated law, and many jurisdictions have complained about the difficulty
of implementing it by the “due date” of July 27, 2009. If you’d like more information about how this law is
supposed to work, check out the “SMART” Guidelines, posted at
http://www.fd.org/odstb_AdamWalsh.htm.
(e) What information must I give when I register with SORNA?
According to the statute, when you register as a sex offender, you must provide this information:
(1) The name of the sex offender (including any alias used by the individual).
(2) The Social Security number of the sex offender.
(3) The address of each residence at which the sex offender resides or will reside.
(4) The name and address of any place where the sex offender is or will be an employee.
(5) The name and address of any place where the sex offender is or will be a student.
(6) The license plate number and a description of any car the sex offender owns or operates.
(7) Any other information required by the Attorney General.150
Both sections of the statute allow the Attorney General to add additional requirements, and the recent
SMART guidelines instituted by the AG add the following requirements:151
(1) All designations used by sex offenders for purposes of routing or self-identification in Internet
communications or postings;
(2) Telephone numbers and any other designations used by sex offenders for purposes of routing or
self-identification in telephonic communications;
(3) False or purported social security numbers;
(4) Where homeless or otherwise mobile sex offenders habitually live with whatever definiteness is
possible under the circumstances;
(5) Information about any temporary lodging where the sex offender is staying for seven or more
days, including identifying the place and the period of time the sex offender is staying there, that
is, vacation for a week or more;
if your offense is not punishable by more than one year, then you are classified under Tier 1. Tier III is
generally limited to aggravated sex offenses, kidnapping and repeat offenders. Tier II is for offenders
who fall under neither of the other categories.
146. Department of Justice, National Guidelines for Sex Offender Registration and Notification,
16–17, (May 30, 2007), available at
http://www.fd.org/pdf_lib/SMART%20GUIDELINES%20published%20for%20cmt%205.30.07.pdf.
147. 42 U.S.C. § 16915 (2006).
148. 42 U.S.C. § 16916 (2006).
149. 42 U.S.C. § 16913(c) (2006).
150. 42 U.S.C. § 16914(a) (2006).
151. Amy Baron-Evans, Second Supplement to Adam Walsh Act: Part II, 17 (Sept. 1, 2007),
available at http://www.fd.org/odstb_AdamWalsh.html. For more information see Part VII, 72 Fed. Reg.
at 30223–26.
(6) Information about passports, if they have passports, and, for registrants who are aliens,
information about documents establishing their immigration status;
(7) For sex offenders without a fixed place of employment, places where they work with whatever
definiteness is possible under the circumstances;
(8) All licensing authorizing the registrant to engage in an occupation or carry out a trade or business;
(9) Real and any false date of birth.
In addition to the information you provide, the jurisdiction where you are registering is required to also
provide the following information:
(1) A physical description of the sex offender;
(2) The text of the provision of law defining the criminal offense for which the sex offender
is registered;
(3) The criminal history of the sex offender, including the date of all arrests and convictions;
the status of parole, probation, or supervised release; registration status; and the existence
of any outstanding arrest warrants for the sex offender;
(4) A current photograph of the sex offender;
(5) A set of fingerprints and palm prints of the sex offender;
(6) A DNA sample of the sex offender;
(7) A photocopy of a valid driver’s license or identification card;
(8) Any other information required by the Attorney General.152
All of this information will be contained, along with the information you have provided, in the
jurisdiction’s registry.
(f) Who can access this information and how?
(i) The Public through the Jurisdiction’s Website
All of the information contained in the registry will be available to the public except for the following
mandatory and optional exemptions:153
Mandatory exemptions:
(1) Victim identity;
(2) Offender’s social security number;
(3) Any reference to arrests that did not result in conviction; and
(4) Any other information exempted from disclosure by the AG.
Optional exemptions:
(1) Any information about a Tier I offender convicted of an offense other than a “specified offense
against a minor;
(2) Employer’s name;
(3) School name; and
(4) Any other information exempted from disclosure by the AG.
Note: 42 U.S.C. §16918 specifies two requirements for each site. Each must include directions on how
to change “erroneous” information, and each must include a warning to those who seek to use the site’s
information to “unlawfully injury, harass, or commit a crime” that such action “could result in civil or
criminal penalties.”
(ii) The Public through the FBI National Registry
Each sex offender and any other person required to register will also be included on the National Sex
Offender Registry maintained by the FBI.
152. 42 U.S.C. § 16914(b) (2006).

153. 42 U.S.C. § 16918 (2006).
(iii) The Public through the National Website
The Dru Sjodin National Sex Offender Public Website (named after a young woman who was sexually
assaulted and killed by a convicted sex offender) will be maintained by the AG and shall include “relevant
information for each sex offender and other person listed on a jurisdiction’s website,” making “relevant
information” publicly accessible.154 The website’s address is http://www.nsopr.gov/.
(iv) The Public through Community Notification
SORNA requires an “appropriate official in the jurisdiction” to provide information immediately after
an offender registers or updates information to the following parties:155
(1) The Attorney General, so that he or she can include the information in appropriate databases;
(2) Law enforcement agencies in each school and public housing agency, in each area where the
offender resides, is an employee, or is a student;
(3) Each jurisdiction where the offender resides, is an employee, or is a student, and each jurisdiction
from or to which a change of residence, employment, or student status occurs;
(4) Any agency responsible for conducting employment-related background checks,
(5) Child welfare social service entities;
(6) Any volunteer organization in which contact with minors “or other vulnerable individuals” might
occur; and
(7) “Any organization, company, or individual who requests such notification pursuant to procedures
established by the jurisdiction.”
(v) National Crime Information Databases
Certain child protective organizations must be provided with access to the national crime information
databases. 156 These organizations include the National Center for Missing and Exploited Children, and
governmental social service agencies with child protection responsibilities.157 The information must only be
used to assist and support law enforcement, or in connection with an investigation or to respond to reports
of child abuse, neglect, or exploitation.158
H. The Adam Walsh Child Protection and Safety Act
1. General Overview
The Adam Walsh Act is a federal law Congress passed in 1996 that aims to punish and deter sex
offenders. In addition to creating SORNA, it added new crimes, changed sentencing for existing crimes,
and increased penalties.159
2. New Crimes
The Act establishes new crimes or expands federal jurisdiction over existing crimes in nine areas,
including child abuse, kidnapping, obscenity, child pornography, use of the Internet to distribute obscenity
or drugs, and record-keeping. For example, the Act creates five new crimes relating to the sexual
exploitation of children, including “child exploitation enterprise,” which refers to certain enumerated sex
crimes that occur as part of a series (“in three or more separate incidents”), involve multiple victims, and
are committed with “three or more other persons.”
The new Internet crimes include a ten-year maximum penalty for any person who “knowingly embeds
words or digital images into the source code of a website with the intent to deceive a person into viewing
material constituting obscenity”—which applies even if the material is not viewable, as long as it is
154. 42 U.S.C. § 16920 (2006).

155. 42 U.S.C. § 16921 (2006).
156. 28 U.S.C. § 534 (2006).
157. 42 U.S.C. § 16921 (2006).
158. 42 U.S.C. § 16921 (2006).
159. See Part G(3) of this Chapter for a discussion of the Adam Walsh Act’s national sex offender
registration system, which states must officially adopt to apply in that state. Many states, including
New York, have not adopted this part of the Adam Walsh Act; therefore, you should check to see what
sex offender registration system your state uses.
contained in the website coding.160 Also, the Act criminalizes using the Internet to distribute a date rape
drug if one has knowledge or reasonable cause to believe that the drug will be used in “criminal sexual
conduct” or that the purchaser is not “authorized.”161 Finally, a new crime has been established for failure
to register, which is discussed in Part G(3)(c) above.
3. Sentence Increases: Mandatory Minimums
A mandatory minimum sentence is the shortest, or least severe, possible sentence a court can give you
if you are convicted of a certain crime. The Act established new mandatory minimums for a number of
sexual crimes, including:
(1) New mandatory minimums for a “crime of violence against the person of an individual who has
not attained the age of 18,” including murder, kidnapping, acts that result in serious bodily injury,
and others;162 and
(2) New mandatory minimum of fifteen years for sex trafficking accomplished through force, fraud,
or coercion involving a minor under fourteen.163
4. Sentence Increases: Statutory Maximums
A statutory maximum is the longest, or most severe, possible sentence a court is allowed to give you if
you are convicted of a certain crime. The Act established new statutory maximums (increasing the previous
statutory maximums) for a number of sexual crimes, including:
(1) Sexual abuse, which can now result in a life imprisonment sentence, whereas previously the
maximum sentence was twenty years;164
(2) Sexual abuse of a ward, which now carries a maximum sentence of fifteen years;165
(3) Coercing or transporting a minor to engage in criminal sexual activity, which can now result in a
life imprisonment sentence;166
(4) Child pornography-related charges if death results, which can now lead to life imprisonment;167
(5) Using a misleading domain name on the Internet with intent to deceive a minor into viewing
harmful content, which now carries a maximum sentence of ten years;168
(6) Using a minor located outside of the U.S. to produce a sexually explicit depiction to be imported
into the U.S., which could have a maximum sentence of thirty years, if the perpetrator has no prior
convictions and the conduct did not result in death;169
(7) Failure to report child abuse, which now carries a maximum sentence of one year;170 and
(8) Murder in the course of committing an enumerated sex crime,171 which can now result in the death
penalty.
5. Statute of Limitations
A statute of limitations is the amount of time within which the legal proceedings against a defendant
must take place. The amount of time begins on the date of the alleged offense, and varies usually depending
on the severity of the offense. However, the Act has done away with this rule for certain offenses, meaning
that the legal proceedings against a defendant can begin at any time, regardless of when the alleged crime
took place.
Under the Act, there is no longer a statute of limitations for any felony listed in Chapter 109A (Sexual
Abuse), Chapter 110 (Sexual Exploitation and Other Abuse of Children) except for violations of the record-
160. 18 U.S.C. § 2252C(a) (2006).

161. 21 U.S.C. §§ 841(g)(1)(A)–(B) (2006).
162. 18 U.S.C. §§ 3559(f)(1)–(3) (2006).
163. 18 U.S.C. §§ 1591(b)(1)–(2) (2006).
164. 18 U.S.C. § 2242 (2006).
165. 18 U.S.C. § 2243(b) (2006).
166. 18 U.S.C. §§ 2422(b), 2423(a) (2006).
167. 18 U.S.C. § 2251(e) (2006).
168. 18 U.S.C. § 2252B (2006).
169. 18 U.S.C. §§ 2260(c)(1), 2251(e) (2006).
170. 18 U.S.C. § 2258 (2006).
171. 18 U.S.C. § 2245 (2006).
keeping requirements set forth in sections 2257 and 2257A, and Chapter 117 (Transportation for Illegal
Sexual Activity and Related Crimes), or for charges under sections 1201 (kidnapping of a minor) or 1591
(sex trafficking). This provision may violate the Ex Post Facto Clause of the United States Constitution.
6. Bail
The Act adds certain sex offenses to the list of those for which a court must hold a hearing (upon
motion of the government) to determine whether the prisoner can be released on bail, based on whether the
terms of release “will reasonably assure the appearance of the person as required and the safety of any other
person and the community.”172 The offenses that trigger one of these bail hearings now include “any felony
that is not otherwise a crime of violence that involves a minor victim, or that involves the possession or use
of a firearm … or any dangerous weapon, or involves the failure to register [as a sex offender].”173
7. DNA Collection
The Adam Walsh Act broadened the group of people from which DNA can be collected without their
consent. Individuals who are “facing charges” may be compelled by the Attorney General to give a DNA
sample. The term “facing charges” includes those who are currently charged by indictment, information, or
complaint, but are not currently under arrest. Individuals who are “convicted” also must give samples to the
AG; this requirement covers those who are convicted of offenses that are not felonies or crimes of violence,
but these individuals must at least be “in custody.”174
8. Discovery
18 U.S.C. §3509(m) restricts defense access to property or material that constitutes child pornography.
This section mandates that these materials remain in the “care, custody, or control” of the government or
the court. In addition, this section prohibits reproduction of these materials. However, the government must
make the evidence “reasonably available” to the defendant, and the defendant must be allowed “ample
opportunity for inspection, viewing, and examination.”
9. Probation/Supervised Release
The Act creates a discretionary condition of probation or supervised release (meaning that the judge
can choose to impose this condition but does not have to), that a defendant who is required to register under
SORNA must submit his/her “person, and any property, house, residence, vehicle, papers, computer,
electronic communications or data storage devices or media, and effects to search at any time, with or
without a warrant, by any law enforcement or probation officer with reasonable suspicion concerning a
violation of a condition of probation or unlawful conduct by the person, and by any probation officer in the
lawful discharge of the officer's supervision functions” [emphasis added].175
10. Sex Offender Management and Treatment Programs
The Bureau of Prisons (“BOP”) is required to make available “appropriate treatment to sex offenders
who are in need of and suitable for treatment.”176 Options include sex offender management programs and
sex offender treatment programs. Sex offender management programs are very different from treatment
programs. For example, management programs are supposed to provide “appropriate treatment, monitoring,
and supervision of sex offenders and to provide aftercare during pre-release custody,” but they often do not
provide actual treatment.177 These programs usually focus on monitoring sex offenders’ mail, phone calls,
and behavior for any content the BOP deems “inappropriate” for a sex offender. By contrast, sex offender
treatment programs do provide therapeutic treatment, but are hard to find and difficult to get into.
172. 18 U.S.C. § 3142(f)(1)(E) (2006).

173. 18 U.S.C. § 3142(f)(1)(E) (2006).
174. 42 U.S.C. §§ 14135a(a)(1)(A), (B), (a)(5), (d) (2006).
175. 18 U.S.C. § 3563(b)(23) (2006).
176. 18 U.S.C. § 3621(f)(1) (2006).
177. 18 U.S.C. § 3621(f)(1) (2006).
11. Victim Rights
The Act now permits minor victims of sex crimes to initiate civil actions (to sue the person who
allegedly offended them) regardless of whether the victim suffered the injury while the victim was a
minor.178 Furthermore, the Act triples the amount of damages available to the victim, from $50,000 to
$150,000.179
The Act also gives victims specific rights in state prisoner habeas corpus proceedings (proceedings that
determine whether the prisoner’s custody violates the U.S. Constitution or U.S. laws): the right to be
reasonably heard, the right to proceedings free from unreasonable delay, and the right to be treated with
fairness and respect.180
I. Civil Commitment
Civil commitment is the practice of confining an individual involuntarily and
indefinitely, even after the criminal sentence is completed, following a determination that
the person is likely to commit future sexually violent acts. Many states have a general civil
commitment statute, which allows for the commitment of persons who fall into various
categories of mental illness. Civil commitment of sex offenders is often specifically addressed
in separate statutory provisions. In addition, the Adam Walsh Act of 2006 created the Jimmy
Ryce Civil Commitment Program for Dangerous Sex Offenders, discussed in detail in Part
I(2)(b) below.
Civil commitment of sex offenders typically occurs after the completion of a criminal
sentence. While some sexually violent individuals can be committed under more general civil
commitment statutes, many cannot because their behavior often does not fit within the
narrow definitions of mental illness under these statutes. In response to the narrow
definitions of general civil commitment statutes, states have passed laws providing for the
involuntary civil commitment of sexually violent predators. 181 The Supreme Court has
indicated involuntary civil commitment does not violate due process as long as the state
shows the person has a mental illness and presents a risk of future danger to others.182
Courts have generally upheld civil commitment statutes where a number of
requirements have been met. The U.S. Supreme Court in Kansas v. Hendricks upheld the
Kansas sexually violent predator statute, holding that the law did not violate substantive
due process, equal protection, or double jeopardy provisions of the Constitution.183 Critical to
the Court’s decision was that the challenged act clearly required that the state prove that a
person was dangerous either to himself or to others. The court determined that the Kansas
statute was a civil remedy (i.e., not criminal), which only applied to the “dangerously
mentally ill,” and that the statute was not an additional criminal punishment for sex
offenders.184 The Supreme Court further held in Seling v. Young that once a commitment
statute has been found to be civil, it cannot be considered punitive (or for purposes of
punishment) “as applied” to a single individual, and therefore it does not violate the
178. 18 U.S.C. § 2255(a) (2006).

179. 18 U.S.C. § 2255(a) (2006).
180. 18 U.S.C. § 3771(b)(2)(A) (2006).
181. For example, New York State recently passed a civil commitment statute for sex offenders.
See generally N.Y. Mental Hyg. Law § 10 (McKinney 2007) (establishing standards and procedures for
involuntary commitment of dangerous sex offenders).
182. Kansas v. Hendricks, 521 U.S. 346, 357, 371, 117 S. Ct. 2072, 2079–80, 2086, 138 L. Ed. 2d
501, 512, 521 (1997) (finding that a Kansas act satisfied due process requirements because it
unambiguously required a finding of dangerousness either to one’s self or to others as a prerequisite to
involuntary confinement).
183. Kansas v. Hendricks, 521 U.S. 346, 371, 117 S. Ct. 2072, 2086, 138 L. Ed. 2d 501, 521
(1997).
184. Kansas v. Hendricks, 521 U.S. 346, 363, 117 S. Ct. 2072, 2082, 138 L. Ed. 2d 501, 516
(1997).
Constitution.185 In that case, the Washington Supreme Court held that the statute was civil
in nature and therefore constitutional;186 the Supreme Court deferred to the Washington
court’s judgment.
The Supreme Court recently refined its Kansas v. Hendricks decision, setting a
constitutional limit on the growing state practice of keeping convicted sexual predators in
extended civil confinement after their criminal sentences expire.187 In Kansas v. Crane, the
Court said that states must prove not only that an offender remains dangerous and is likely
to repeat the crime, but also that a psychiatric diagnosis found “serious difficulty in
controlling behavior.” 188 The Court held that the Constitution’s guarantee of due process
required this additional finding to make certain that an offender subjected to civil
confinement was not simply a “typical recidivist convicted in an ordinary criminal case.”189 A
recidivist is defined as “someone who has been convicted of multiple criminal offenses,
usually similar in nature,” commonly called a “repeat offender.” 190 The Court also
emphasized in Crane that civil commitment statutes must be applied on a case-by-case basis.
Civil commitment must be tied to a psychiatric diagnosis of the sexual offender’s lack of
control, because otherwise the practice would not be sufficiently different from criminal
punishment. The idea of the civil commitment statutes is that sex offenders will not only be
confined, but also treated. Sex offenders who are civilly confined are usually held in mental
health facilities—either separate from a correctional facility or part of a larger correctional
facility. Under New York law, these facilities must have staff from “the office of mental
health or the office of mental retardation and developmental disabilities for the purposes of
providing care and treatment to persons confined.”191
If you are civilly committed, civil commitment will affect your life in many ways. Besides
having to live in the civil commitment facility, sex offenders in civil commitment facilities
will, starting in July 2009, be unable to receive federal Pell grants to pay for their
education.192
A number of other states besides New York also have civil commitment statues.193 These
statutes all require that the sexual offender has engaged in some criminal sexual conduct,
185. Seling v. Young, 531 U.S. 250, 263, 121 S. Ct. 727, 735, 148 L. Ed. 2d 734, 746 (2001).
186. See In re Young, 857 P.2d 989, 999 , 422 Wn.2d 1, 23 (Wash. 1993) (determining that the
Washington State civil commitment statute was civil and not punitive based on the Washington
Supreme Court’s interpretation of the legislative intent in enacting the statute).
187. Kansas v. Crane, 534 U.S. 407, 411, 413, 122 S. Ct. 867, 869, 870, 151 L. Ed. 2d 856, 861,
862 (2002) (finding that where a sexual offender suffered from both exhibitionism and antisocial
personality disorder, the state was required to prove a serious difficulty related to controlling the
sexual offender’s behavior in order to commit him).
188. Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870, 151 L. Ed. 2d 856, 862 (2002).
189. Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870, 151 L. Ed. 2d 856, 863 (2002).
191. N.Y. Mental Hyg. Law § 10.03 (McKinney 2007).
192. Private Student Loan Transparency and Improvement Act of 2008, Public Law No. 110-315
(amending 20 U.S.C. 1070a(b)(2)(A)).
193. See, e.g., Ariz. Rev. Stat. Ann. §§ 36-3701 to 3717 (2003); Cal. Welf. & Inst. Code §§ 6600 to
6609.3 (West 1998 & Supp. 2006); Fla. Stat. Ann. §§ 394.910 to .931 (West 2002 & Supp. 2006); 725 Ill.
Comp. Stat. Ann. 207/1 to /99 (West 2002 & Supp. 2005); Iowa Code Ann. §§ 229A.1 to .16 (West 2002 &
Supp. 2005); Kan. Stat. Ann. §§ 59-29a01 to 29a20 (2005); Mass. Gen. Laws Ann. ch. 123A, §§ 1–16
(Lexis 2003 & Supp. 2006); Minn. Stat. Ann. §§ 253B.01 to .23 (West 2003 & Supp. 2006); Mo. Ann.
Stat. §§ 632.480 to .513 (West 2000 & Supp. 2006); N.J. Stat. Ann. §§ 30:4-27.24 to –27.38 (West 1997
& Supp. 2006); N.D. Cent. Code §§ 25-03.3-01 to -23 (2002); S.C. Code Ann. §§ 44-48-10 to -170 (2002);
Tex. Health & Safety Code Ann. §§ 841.001 to .007 (Vernon 2003 & Supp. 2005); Va. Code Ann. §§ 37.2-
900 to -919 (2005); Wash. Rev. Code Ann. §§ 71.09.010 to 71.09.902 (West 2002 & Supp. 2006); Wis.
Stat. Ann §§ 980.01 to .13 (West 1998 & Supp. 2005). This list may not be complete. Be sure to consult
your own state’s code.
has a specified mental condition, and that as a result of that mental disease or defect, the
sexual offender is likely to engage in criminal sexual conduct in the future.194
12. Procedures
Under a typical statute, the state must follow a multi-step process in order to have you
civilly committed. As noted, civil commitment of sex offenders usually follows criminal
incarceration. Typically, if you are viewed as a likely candidate for civil commitment, the
state attorney general’s office and various other agencies will be notified when you are
nearing release from prison. One or more state committees, usually composed of mental
health experts, review prisoner records in order to recommend commitment for prisoners
they have determined to be sexually violent predators.195
Following such a recommendation, the attorney general, state prosecutors, or other state
officials will file a petition alleging that you are a sexually violent predator. Following the
filing of that petition, you will have a trial in front of a judge or jury. In most states, you are
entitled to assistance of counsel at all stages of these proceedings.196 You may also be entitled
to be examined by a psychological expert of your choice, at the state’s expense.197
If you are found to be a sexually violent predator, in most states you have the right to
appeal this determination.198 If you lose the appeal and are civilly committed, you will likely
be committed to a facility specifically dedicated to the detention and treatment of sex
offenders. You will be detained there indefinitely, and typically there will be a set procedure
by which your psychological health and danger to the community are evaluated once a year
to determine whether you should be released.199
Because of the wide variations in state civil commitment schemes, you should consult
your state’s criminal code to determine whether your state has a civil commitment statute,
and to learn its details.
13. Statutes
Following Hendricks and Crane, many states have adopted statutes modeled after the
language of the constitutionally upheld Kansas statute. The statutes tend to have three main
requirements. Generally, for a person to be eligible for commitment as a sexually violent
predator, the following conditions must be met:
194. See generally, Fla. Stat. Ann. §§ 394.910 to .931 (West 2002 & Supp. 2006); N.J. Stat. Ann.
§§ 30:4-27.28 (West 2008); Tex. Health & Safety Code Ann. §§ 841.022 to .023 (Vernon 2008).
195 . See, e.g., Fla. Stat. Ann. § 394.913 (West 2002 & Supp. 2006) (describing the
multidisciplinary team that evaluates record); Va. Code Ann. § 37.2-902 (2005) (stating that records are
reviewed by committee); Cal. Welf. & Inst. Code § 6601 (West 2008); Tex. Health & Safety Code Ann. §§
841.022 to .023 (Vernon 2008.
196. See, e.g., Fla. Stat. Ann. § 394.916 (West 2002 & Supp 2006) (stating an accused person is
entitled to counsel); Va. Code Ann. § 37.2-901 (2005) (specifying person’s right to counsel); N.J. Stat.
Ann. §§ 30:4-27.29 (West 2008); 725 Ill. Comp. Stat. Ann. 207/25 (West 2008); Iowa Code Ann. §§
229A.5(2)(d) (West 2008); Tex. Health & Safety Code Ann. §§ 841.005 (Vernon 2008).
197. See, e.g., Fla. Stat. Ann. § 394.916 (West 2002 & Supp. 2006) (stating that person may
retain own professional); 725 Ill. Comp. Stat. Ann. 207/25 (West 2002 & Supp. 2005) (stating that
person may appoint own expert); N.Y. Mental Hyg. Law § 10.06 (McKinney 2008); Va. Code Ann. §
37.2-907 (2008).
198. See, e.g., Fla. Stat. Ann. § 394.917 (West 2002 & Supp. 2006) (providing right to appeal
determination); Wash. Rev. Code Ann. §§ 71.09.080 (West 2002 & Supp. 2006) (providing that nothing
in the chapter prohibits a person from exercising a right available elsewhere); 725 Ill. Comp. Stat. Ann.
207/35 (West 2008); Wash. Rev. Code Ann. §§ 71.09.060 (West 2008).
199. See, e.g., Fla. Stat. Ann. § 394.918 (West 2002 & Supp. 2006) (providing individual (a person
committed to a state facility) will be evaluated yearly); Ariz. Rev. Stat. Ann. §§ 36-3708 (2003) (stating
civilly committed sex offender will be evaluated every year); 725 Ill. Comp. Stat. Ann. 207/55 (West
2008); Va. Code Ann. §§ 37.2-910 to 912 (2008).
(1) The person must have engaged in some criminal sexual conduct;
(2) The person must have a specified mental condition; and
(3) As a result of that mental disease or defect the person must be likely to engage in
criminal sexual conduct in the future.200
Although state statutes follow this general pattern, they differ in a number of ways.
Regarding the first requirement, some states require a sex offense conviction, while others
require only that a person be charged with a sex offense, and a few simply require that the
person have “committed” an illegal sexual act.201 States also vary on whether the case must
be heard in front of a judge or jury and the burden of proof that the state must meet with
regard to a person’s risk of committing future offenses in order to commit that person as a
sexually violent predator.202 The statutes either require proof beyond a reasonable doubt or
by clear and convincing evidence.
In addition, the Adam Walsh Act established the Jimmy Ryce Civil Commitment
Program for Dangerous Sex Offenders, discussed in Part I(2)(b) below.
(a) New York
Until April 2007, New York State did not have a civil commitment statute for sex
offenders. Even without specific civil commitment legislation aimed at sex offenders, in some
cases state officials had succeeded in civilly committing sex offenders under the regular civil
commitment scheme (mainly used for those with mental illness).203 The state typically brings
the commitment action as the offender is about to be released on parole. For the last few
years, New York State officials have relied upon mental hygiene laws to civilly commit sex
offenders to psychiatric hospitals just before they were scheduled to be released from prison.
In November 2006, the New York State Court of Appeals unanimously decided that these
mental health laws were inappropriately applied to sex offenders. The court said that the
State should instead use Correction Law § 402 because the prisoner is still in custody at the
time of the transfer to the psychiatric hospital. The importance of using correction laws
rather than mental hygiene laws is that the prisoner is afforded greater procedural
protections under the correction laws. 204 After the Harkavy case in 2007, the New York
Legislature passed the Sex Offender Management and Treatment Act, which can be found at
N.Y. Mental Hyg. Law § 10 (McKinney 2008). The Act lays out a procedure for the civil
commitment of dangerous sex offenders, discussed below. The Court of Appeals of New York
has recently upheld the Act as applied to people charged with sex offenses, convicted of sex
offenses, or people who were patients at a state mental hospital since September 1, 2005.205
New York State’s civil commitment statute resembles that of many other states and has
similar features to those described above. Generally, the procedure is as follows:
200. See, e.g., Cal. Welf. & Inst. Code §§ 6600(a)(1) (West 1998 & Supp. 2006).
201. See, e.g., Kan. Stat. Ann.§ 59-29a02(a) (2006) (defining sexually violent predator as “any
person who has been convicted of or charged with a sexually violent offense and who suffers from a
mental abnormality or personality disorder which makes the person likely to engage in repeat acts of
sexual violence”).
202 . See, e.g., Kan. Stat. Ann.§ 59-29a06(c) (2006) (providing that a jury trial in a civil
commitment proceeding may be requested by one of the parties or the court, but, if no jury is requested,
the trial will be before the court).
203. See, e.g., Doe v. Pataki, 120 F.3d 1263, 1281, 1285 (2d Cir. 1997) (this case has been vacated
Doe v. Pataki, 481 F. 3d 69 (2d Cir. 2007)). See generally N.Y. Mental Hyg. Law §§ 9.27-9.37 (McKinney
2008) (describing the procedure for involuntary hospital admissions for mental illness).
204. State of N.Y. ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 825 N.Y.S.2d 702, 859 N.E.2d
508(N.Y. 2006). See Chapter 29 of the JLM, “Special Issues for Prisoners with Mental Illness,” for more
information on the law concerning the rights of prisoners with mental illnesses.
205. State of N.Y. ex rel. Harkavy v Consilvio, 8 N.Y.3d 645, 652–53, 870 N.E.2d 128, 132–33
(NY 2007).
(1) Approximately 120 days before a sex offender is released from prison, the parole
board give notice to the commissioner of health, who determines if the prisoner is a
sex offender who requires civil commitment.206
(2) After this finding, the Attorney General may file a petition seeking commitment,
which the prisoner may contest in a hearing.207
(3) If after the hearing the court finds there is probable cause that the prisoner is a sex
offender requiring civil commitment, the court will conduct a trial to determine if the
prisoner is a danger to others and likely to commit future sex offenses.208
(4) If the court finds the prisoner is a danger, he will be committed to an institution
indefinitely, where he is entitled to an examination of his mental condition at least
once a year to determine if he is eligible for release.209
(b) Federal Civil Commitment: The Adam Walsh Act210
Title III of the Adam Walsh Act established the Jimmy Ryce Civil Commitment Program for
Dangerous Sex Offenders, codified at 18 U.S.C. §§ 4247, 4248. Under this section of the Act, the Attorney
General, Director of the Bureau of Prisons, or anyone the Attorney General authorizes, can seek to civilly
commit anyone in Bureau of Prisons custody by “certifying” the offender as “sexually dangerous.” This is a
serious designation because, practically speaking, commitment may become a “life sentence” for those in
custody.
(i) Who can be civilly committed?
Anyone in Bureau of Prisons custody is susceptible to being civilly committed—even if the prisoner is
not incarcerated for a sexual offense. Though it is much more common for a prisoner convicted of a sexual
crime to be considered for civil commitment, nowhere in the law does it require this type of classification.
In addition, there need not be any question of competency or insanity in order to civilly commit a person.
(ii) What is the definition of a “sexually dangerous person”?
According to the statute, a “sexually dangerous person” is “a person who has engaged or attempted to
engage in sexually violent conduct or child molestation and who is sexually dangerous to others.”211 A
person is “sexually dangerous to others” if he “suffers from a serious mental illness, abnormality, or
disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or
child molestation if released.”212 Some of the key terms are not defined within the statue, such as “sexually
violent conduct,” “child molestation,” and “serious difficulty.” The definition of “sexually dangerous
person” has been criticized for being overly broad and overly inclusive.
(iii) What is the procedure for determining whether a prisoner is
“sexually dangerous”?
The BOP is currently undergoing a review of all prisoners, working backward from those due to be
released immediately to those due to be released later. If the BOP finds a prisoner whom it wishes to
review more carefully, BOP staff will conduct an evaluation. A prisoner is not provided with an attorney at
this point, and no Miranda warnings are given.
The prisoner is given a form to sign stating (1) he consents to an evaluation consisting of interviews,
review of records, and testing, (2) he understands it will be used to determine his eligibility for civil

208. N.Y. Mental Hyg. Law § 10.07 (McKinney 2008) (“If the court finds by clear and convincing
evidence that the respondent has a mental abnormality involving such a strong predisposition to
commit sex offenses, and such an inability to control behavior, that the respondent is likely to be a
danger to others and to commit sex offenses if not confined to a secure treatment facility, then the court
shall find the respondent to be a dangerous sex offender requiring confinement.”)
210. For more information on the Adam Walsh Act, see Part H above.
211. 18 U.S.C. § 4247(a)(5) (2006).
212. 18 U.S.C. § 4247(a)(6) (2006).
commitment as a sexually dangerous person after he serves his sentence, (3) he understands the results will
be related to BOP officials and “others with a need to know,” including the court, the government, and his
lawyer, and (4) the evaluation will be completed whether or not he participates. Prisoners have made
statements during this process used to support a sexually dangerous certification.
(iv) What happens after a prisoner is found to be “sexually
dangerous”?
If the BOP certifies a prisoner as sexually dangerous, the certificate is filed with the court in the district
in which the prisoner was confined.213 The filing of the certificate stays the prisoner’s release (meaning that
the release is delayed) until a decision is reached about him possibly being civilly committed. This is a
particular concern because these certificates are often filed immediately before a prisoner is due to be
released—often within days or even hours.
J. Conclusion
Sex offenders face special concerns both while in prison and after release. In prison, these issues
include HIV testing, post-conviction DNA testing, protective custody, and the importance of attending sex
offender counseling programs to receive good-time credit. Upon release, prisoners should be aware of
special parole conditions, community registration laws, and the possibility of civil commitment to
psychiatric hospitals.
213. 18 U.S.C. § 4248(a) (2006).

Manual
Chapter 33:
Rights of Incarcerated Parents

8th Edition 2009
LEGAL DISCLAIMER
CHAPTER 33
RIGHTS OF INCARCERATED PARENTS*

A. Introduction
This chapter discusses the childcare and custody rights of incarcerated parents. According to the U.S.
Department of Justice, an estimated 809,800 parents of children under eighteen were serving time in state
and federal prisons in 2007.1 1,706,600 minor children had parents in prison.
As a parent in prison, you may fear that your child will not be cared for, that you will lose your child, or
that your relationship with your child will suffer while you are incarcerated. This Chapter focuses on New
York State law and describes how the law provides parents in prison with various legal tools to prevent
these things from happening.
First, though, you should be aware that federal laws regulate the rights of incarcerated parents whose
children are within the child welfare system (but not if your child is under private custody or guardianship).
In 1997, Congress passed the Adoption and Safe Families Act (“ASFA”),2 a law making it much harder for
incarcerated parents to keep their parental rights. States have passed laws applying ASFA in different
ways, so it is important for you to know the ASFA laws in your state. Some significant changes in New York
state law include:
(1) In some cases, the State no longer has to try to reunite children who are in foster care with parents
who are currently incarcerated;3
(2) The State must file to terminate parental rights4 for children who have been in foster care for fifteen
out of the last twenty-two months, unless certain exceptions apply.5 This rule only applies to an
incarcerated parent whose child is in foster care;6 and
(3) People with certain criminal convictions or who live with an adult who has a criminal record cannot
be foster parents.7
All of these provisions will be discussed more fully below.
As a parent in prison, you may find yourself in one of three situations:
(1) Your child is living with friends or family members who receive no state supervision or funding other
than welfare.
o This practice is known as private placement and will be discussed in Part B of this
Chapter. ASFA does not apply to these placements.
(2) You chose to place your child in foster care.
o Again, your child may be living with foster parents who are relatives or persons unrelated to
you. The state will supervise and provide funding to these foster parents for the care of your
* This Chapter was written by Angélica Cházaro based in part on previous versions by Valentina Morales, Kai-lin Hsu,
and Lisa Rios. Special thanks to Prof. Philip M. Genty, Clinical Professor of Law and Director, Prisoners and Families
Clinic, Columbia University School of Law.
1. Press Release, U.S. Dep’t of Justice, Office of Justice Programs, An Estimated 809,800 Inmates in the Nation’s
Prisons Were Parents to 1,706,600 Minor Children at Midyear 2007 (Aug. 26, 2008), available at
http://www.ojp.usdoj.gov/bjs/pub/press/pptmcpr.htm (last visited Sept. 2, 2008).
2. ASFA can be found at 42 U.S.C. §§ 670–679b (2000).
3. N.Y. Soc. Serv. Law § 358-a(3)(b) (McKinney 2003).
4. Termination of parental rights is when the state permanently ends your rights as a parent and either takes on
those rights itself or grants them to another person through the adoption of your child.
5. The formula used to determine how long your child has been placed in foster care may depend on where you
and your child are located. In New York, the Department will start counting from two months after either the date of
placement or the date the child was removed from the home, whichever comes earlier. This means that the amount of
time counted for ASFA purposes may be different than the amount of time your child has actually spent under the
custody of the Department. For example, if your child were placed under custody of the Department upon your
incarceration, but it took the Department one month to find placement for your child, you would have sixteen months
before the State had to initiate proceedings to terminate your parental rights. So starting from the date of your
incarceration, you may have up to seventeen months before the State will begin proceedings. Note that other states may
calculate the time period that a child has been in foster care somewhat differently, so you should always be sure to
determine what the law says in your state. For more information on legal research, see JLM Chapter 2, “Introduction to
Legal Research.”
6. N.Y. Soc. Serv. Law § 384-b(3)(l)(i) (McKinney 2003).
7. N.Y. Soc. Serv. Law § 378-a(2)(e) (McKinney 2003).
child. This practice is known as voluntary placement and will be discussed in Part C of this
Chapter. If your child is in foster care and you would like to put her up for adoption, your
options are discussed in Part F of this Chapter.
(3) Your child was taken from your home by either the Office of Children and Families (a New York
STATE agency) or by the Administration for Children’s Services (a New York CITY agency)8 and
placed in foster care.
o Your child may be living with foster parents who are relatives or persons unrelated to you.
Again, the state will supervise and provide funding to these foster parents for your child’s
care. This practice is known as involuntary foster care and will be discussed in Part C
below.
New York law supports parents who want to take custody of their children after being in jail. The law
says that the child should “be returned to the birth parent [after the parent is released from prison] because
the child’s need for a normal family life will usually best be met in the [natural] home, and ... parents are
entitled to bring up their own children unless the best interests of the child would be thereby endangered.”9
Note that the law protects your parental rights but only if you show interest and involvement in your child’s
welfare and a commitment to parenting upon your release.
The beginning of this Chapter discusses how your child will be cared for while you are in prison, both
under private placement (Part B) and foster care (Part C). Part C explains placement in both voluntary and
involuntary foster care. It describes the procedures for voluntary and involuntary placement, including court
hearings and reviews. Part C then discusses placement of and planning for your child, which are the same
under both foster care plans. Part C then describes your rights and obligations as well as the obligations of
the Department of Social Services (“DSS”),10 while your child is in foster care. Finally, Part C explains how
your child will be returned to you after your release.
Part D explains involuntary termination of your parental rights, a process that allows another person to
adopt your child when she is in foster care. It details the ways you can defend yourself against involuntary
termination and lists the steps you should take while your child is in foster care to make sure that your
parental rights are not terminated. The end of Part D discusses the difficulties long-term prisoners face in
preventing involuntary termination.
Part E discusses challenges unique to incarcerated fathers, explaining the extra steps fathers in prison
must take in order to protect their rights. Part F discusses the procedure for voluntarily terminating your
parental rights and putting your child up for adoption. Finally, Parts G and H explain your right to an
attorney for different proceedings.
B. Private Placement of Your Child with a Relative or Friend
Many incarcerated parents try to place their child in the home of a relative or friend without involving
the foster care system. This practice is called private placement. Private placement is the best way for
parents in prison to keep their parental rights because the strict ASFA rules do not apply to children in
private placementsthey only apply to children in foster care. The main advantage to private placement is
that your child will be cared for by someone you know and trust. It also allows your child to live in familiar
surroundings, which can lessen the trauma that a child may feel from being separated from her parent. If
you want a relative or friend (sometimes called a “caretaker”) to care for your child, you should, if possible,
enter into a written agreement signed by both you and by the relative or friend. The agreement should
include three important points:
8. The Office of Children and Family Services (“OCFS”) is the state agency responsible for supervising and
managing foster care in New York State. The Administration for Children’s Services (“ACS”) handles these duties in
New York City, while county departments of social services manage foster care for areas outside of New York City. For
simplicity, this Chapter uses “DSS” (Department of Social Services) to refer to all local child protective agencies that are
responsible for foster care placement. Each county in New York has a social services department. For questions about
foster care generally, you can call (800) 345-KIDS, a free phone number for OCFS. Also see the end of this chapter for
more contact information for OCFS and county-specific DSS offices.
9. N.Y. Soc. Serv. Law § 384-b(1)(a)(ii) (McKinney Supp. 2003); see also Ruth v. Beaudoin, 55 A.D.2d 52, 53–54,
389 N.Y.S.2d 473, 474 (3d Dept. 1976) (stating that this “law contains the presumption that the best interests of the
child will be promoted by returning the child to the custody of its natural parent” (quoting People ex rel. Patricia “BB” v.
Albany County Dep’t of Soc. Serv., 47 A.D.2d 974, 974, 366 N.Y.S.2d 692, 694 (3d Dept. 1975))).
10. According to the State of New York, the Departments of Social Services—there are 58 across the state—are
responsible for all publicly funded social services and cash assistance programs. Families qualify for DSS assistance
based on income and other criteria. DSS assistance includes subsidies for childcare costs.
(1) You are giving temporary custody of your child to that person while you are in prison;
(2) Your child will be returned to you when you are released; and
(3) The caretaker (the relative or friend) will bring your child to visit you in prison.
This agreement will allow your child’s caretaker (relative or friend) to register the child for school, get
public assistance, and receive medical care for the child. It will also help secure the return of your child to
your custody when you are released from prison. Note that you may have to fill out paperwork or releases in
order legally to allow the caretaker to register your child for school and other public services.
If you know someone who is willing to care for your child but does not have the money to do so, she may
be eligible to receive public assistance, food stamps, and Medicaid, so long as she assumes custody or
guardianship. Your child can also be placed with a close relative through DSS, a practice called “kinship
foster care.” Under this arrangement, your child will be considered in foster care even though he or she is
living with a relative. This arrangement, which is different from a private placement, is discussed in Part
C(1)(d) of this Chapter. Granting custody or guardianship does not mean that you are permanently giving up
your parental rights. The terms only mean that you are giving permission for someone else to care and be
responsible for your child for a temporary period until you can resume caring for her yourself. It is worth
checking with each agency to find out what paperwork you must fill out in order for the caretaker to receive
assistance both for herself and for your child.
C. Foster Care
If private arrangements with your relatives or friends do not work out, you may choose to apply through
DSS to have your child placed in foster care, either with a relative or with a certified foster parent who is not
related to you (which can include a friend). Either way, you must make sure that someone will be caring for
your child while you are in prison. If you do not arrange for the care of your child during your incarceration,
permanent neglect proceedings can be initiated against you.11 Foster care is a way of providing for children
whose parents cannot care for them. The State has legal custody of children in foster care, which means that
the State takes responsibility for the child. The State may hire a private foster care agency that will work
with you and your child to find a placement in foster care. Foster care is not supposed to be a permanent
solution; it is meant to help families through difficult times and to make sure that children are living in safe
and healthy environments.
There are several different ways children can be placed in foster care. When the parent or parents them-
selves choose to place their children in foster care, it is called voluntary placement. When a judge orders
the child to be placed in foster care because the child’s previous caretakers were abusive or neglectful, it is
called involuntary placement. Children may be placed with relatives (kinship foster care), with an
agency-approved foster family, in a group home, or in a residential facility. All foster care parents receive
funding and supervision from either DSS directly or any separate foster care agency involved in the
particular case.
1. Voluntary Placement
If you cannot arrange for the care of your child with family or friends or if you are not satisfied with the
care your child is receiving, you may choose to place your child in foster care. Furthermore, under New York
law, children may have to be placed in foster care if their parents are “unavailable” due to, among other
things, “arrest, detainment, or imprisonment.”12
You do not permanently give up your parental rights by placing your child in foster care. You are still
legally her parent. It does not mean that you are giving up or abandoning your child, and it does not show
that you are unfit as a parent. It only means that you are temporarily unable to provide your child with the
care you think she needs. If you fulfill your foster care obligations and if you are released within a relatively
short time, you will have a good chance of getting your child back after your release.
However, if you are going to be in prison for more than twelve months, then placing your child in foster
care may create a risk of involuntary termination of your parental rights. You should seriously consider your
decision to place your child in foster care because ASFA generally requires the state to file for termination of
parental rights for children who have been in foster care for fifteen out of the last twenty-two months.
11. See Part D(1)(b) of this Chapter for a discussion of permanent neglect.
12. N.Y. Comp. Codes R. & Regs. tit. 18, § 430.10(c) (1995). This section states that children are removed from
their homes and placed in foster care so they can receive proper care, nurturance, or treatment. It explains that those
steps may be essential to ensuring proper care, nurturance, or treatment, when, among other things, parents are
incarcerated.
In summary, if you are able to privately place your child with a friend or relative, it may be the best way
for you to protect your parental rights. It is important to consider all of your options carefully before placing
your child in foster care for fifteen months or longer.
(a) Initial Placement Process
To arrange for your child’s foster care, you should first contact the Department of Social Services
(“DSS”).13 Either you, or someone you have entrusted with the care of your child, can transfer your child to a
foster care arrangement.14 However, you should contact DSS yourself because if a relative or friend places
your child in foster care for you, the agency might only communicate with that other person. Also, a foster
care arrangement made by someone else does not affect your rights and obligations as a parent. DSS must
consult with you regarding your child. If you are not being contacted, inform DSS and/or the foster care
agency that you are the parent and tell them that you wish to make the decisions about your child’s care.
When you make contact with DSS, a caseworker will arrange to meet with you to explain the process of
placing your child in the custody of DSS and the available foster care options. He or she will also ask you to
sign a Voluntary Placement Agreement,15 a contract between you and DSS that places your child in foster
care. By signing the Agreement, you temporarily transfer the custody and care of your child to the Commis-
sioner of DSS. Read the form carefully because it will state what DSS must do for your child while she is in
foster care. The Agreement also lists the responsibilities of DSS, as well as your obligations while the child is
in foster care.16 The Agreement must say that the agency may be required to file for termination of parental
rights if your child remains in foster care for fifteen out of the most recent twenty-two months.17
The Agreement is a standard form, which means it is the same for everyone. If you want to add
something to the agreement that you feel is important, you have a right to suggest changes. For instance,
you may wish to add any or all of the following: a release date for your child (perhaps the date of your
release from prison); that your children, if you have more than one, be kept together; a request that your
child remain in his current school; that the child be kept near the home neighborhood; or the minimum
number of hours per month that you wish to visit with your child. You should strongly consider adding these
items to the Agreement form because DSS is obligated to try to provide your child with the care established
in the form.18 Note that although you have the right to suggest changes, you do not have the right to require
that those changes actually be included in the final agreement.19 You should be aware that DSS might resist
making changes to the standard form. If you want the Agreement changed to fit your child’s needs, speak to
your caseworker about it.
Whether or not you add specific conditions to the Placement Agreement, it is very important to ask for a
copy of the final Agreement that you sign. You should keep your own personal file, which should include a
copy of the Agreement as well as any other letters sent to you by DSS or letters that you write to DSS.
In your initial visit with the caseworker, you may also be asked to sign a Designation of Religious
Preference for Children.20 On this form, you may state whether you wish for your child to be placed with
an independent foster care agency that is affiliated with a particular religion. You can state whether you
want your child to receive religious training while in foster care. If you write down a religious preference and
if you say that you want your child to be cared for by a family of that religion, DSS must either (1) place your
child with a family practicing that religion, (2) show your child’s faith will be protected in the family in
which she is placed, or (3) show why finding a placement with such a family was not “practicable” or “in the
13. Contact the county department of social services for the county in which your child is living, or ACS if your
child lives in New York City. See the end of this Chapter for contact information for ACS and all other New York
counties.
14. N.Y. Soc. Serv. Law § 384-a(1) (McKinney 2003).
15. You can obtain a New York City Voluntary Placement Agreement Form (Form W-864) by writing to the
Administration for Children’s Services (ACS), 150 Williams Street, 18th Floor, New York, New York 10038, or by calling
ACS at (212) 341-0900. The website for ACS is www.nyc.gov/html/acs/home.html (last visited Sept. 15, 2008).
16. These obligations are described in Part C(4) of this Chapter.
17. N.Y. Soc. Serv. Law § 384-a(2)(c)(ix) (McKinney 2003).
18. If you believe that the care your child is receiving in foster care does not satisfy the requirements set forth in
the Voluntary Placement Agreement, you should first tell your caseworker. Then you or your lawyer, if you have one,
should petition the family court judge who signed your child’s placement order to review the care the agency is providing
for your child and to order the agency to follow the Agreement.
19. N.Y. Soc. Serv. Law § 384-a(2)(a) (McKinney 2003).
20. The New York City Designation of Religious Preference for Children (Form M-309) is similar to forms used
throughout the state. You can get the appropriate form from the agency handling your case.
best interests of the child.”21 This means if DSS does not place your child with a family practicing your
chosen religion, DSS must be able to prove that it was practically impossible to find such a family or they
must be able to give a good reason why it would be better for your child not to be in such a family. If DSS
does not place your child in such a family and fails to give a good reason why not, you can demand that they
place your child with a family that practices your religion.
Your caseworker may ask you to sign a form in which you agree you will be legally responsible for some
of the costs of maintaining your child. You must write down on this form whether or not you can contribute
to your child’s expenses while she is in foster care. Even though you are in prison, you still have a duty to
financially support your child. However, DSS could take your situation into consideration and not expect you
to contribute to your child’s expenses because you are in prison and probably have little or no income.
You and the caseworker will develop a plan to help keep a close relationship between you and your child.
This plan, which includes the rights and obligations of both you and the agency, is discussed in Part C(4) of
this Chapter.
Finally, DSS should provide you with a list of lawyers or legal services groups to help you in placing your
child. One source of help may be Prisoners’ Legal Services.22 Unfortunately, it is extremely unlikely that you
will be able to find a free lawyer for a voluntary placement case, so do not be afraid to take as much time and
ask as many questions as you need in order to understand the forms that DSS will make you fill out since
you will probably be the person making the decisions for the voluntary placement of your child.
(b) Court Approval of the Placement—358a Hearing
The next step in voluntary placement is court approval. New York State law requires a family court
judge to review and approve every voluntary placement of a child in foster care lasting longer than thirty
days.23 This proceeding is called a 358a hearing because it is required by Section 358a of the Social Services
Law. DSS is responsible for filing a petition with the court asking for approval of the placement. The petition
will include a notice “in conspicuous print”—which means it must be clear, obvious, and not in very small
print—stating that if a child remains in foster care for fifteen of twenty-two months, the agency may be
required to file for a termination of parental rights.24
The judge must give you notice of the hearing. In order to be present at the hearing, you should write a
letter, similar to the one shown in Appendix A of this Chapter, asking the court to instruct the prison to
bring you to the hearing.
Your caseworker may ask you to sign a waiver of your right to attend.25 A waiver means you formally
agree to give up a particular right. You do not have to sign a waiver. Sometimes people choose to waive
certain rights in court as part of a deal they make with the State through the attorney representing the
State because they might get something from the State in return for signing the waiver. If you do choose to
sign a waiver of your right to attend, the court does not have to make sure that you can attend the hearing.
Generally, signing a waiver is not a good idea because once you sign, you give up the valuable opportunity to
inform the judge of your problems or questions during the voluntary placement process.
You have a right to a lawyer for purposes of the hearing. When you are brought to court for the hearing,
the judge will assign a lawyer to represent you at no cost if you cannot afford your own lawyer.26 As with any
court proceeding, make sure you have the name and phone number of your lawyer. A lawyer is meant to be
your voice during these proceedings, so if you have any questions or requests or if you are concerned about
something, be sure to ask your lawyer.
At the hearing, the court is supposed to ensure that your child will be put in foster care only if the “best
interest and welfare of the child would be promoted by the removal of such child from such home,”27 meaning
your child will only be put in foster care if it is dangerous or harmful for her to stay at home. Foster care is
appropriate only when a child would not otherwise receive proper care, nurturing, or treatment.28 DSS must
try to find relatives who can take care of your child.29 This arrangement, called kinship foster care, is not
21. N.Y. Comp. Codes R. & Regs. tit. 18, § 430.11(c)(2)(iii) (2007).
22. See Appendix IV of the JLM for addresses of legal services organizations.
26. N.Y. Fam. Ct. Act § 262(a)(iv) (McKinney 1999). See Part H of this Chapter for more on your right to counsel.
27. N.Y. Soc. Serv. Law § 358-a(5) (McKinney 2003); N.Y. Soc. Serv. Law § 358a(1)(a) (McKinney Supp. 2008).
28. N.Y. Comp. Codes R. & Regs. tit. 18, §§ 430.8(a)(2), 430.10(c) (2007).
29. N.Y. Soc. Serv. Law § 384-a(1-a) (McKinney 2003).
the same as the private placement discussed in Part B. Kinship foster care is explained in Part C(1)(d) of
this Chapter. Apart from trying to find relatives, DSS must try to find and record information about your
child’s other parent.30
The judge must also verify that you knowingly and voluntarily signed the Voluntary Placement
Agreement. 31 If you have any questions or problems regarding the placement process or the Voluntary
Agreement, you should state them at this hearing.
Any problems with the agency can be communicated to the judge at the hearing. Problems may include
that the agency refuses to add your requests to the Voluntary Placement Agreement; there are not enough or
have been no visits between you and your child; the agency has broken many of its promises; or it is difficult
for you to communicate with the agency (in other words, the caseworker does not return your calls, the
prison will not allow you to make calls, etc.). If you have signed a waiver and do not attend a 358a hearing,
the judge will review the papers submitted by DSS, including the Voluntary Placement Agreement, and will
generally approve the Agreement as you signed it.32
(c) Court Review of Placement—Permanency Hearings
(i) Automatic Review
Once a placement has been approved in a 358a hearing, the agency is required to check in with the
family court from time to time for review of your child’s situation in foster care. The agency must report to
the family court within eight months of the date your child was removed from his home and then every six
months thereafter.33 The court may order the agency to ask for review at any time.34 Also, you can ask the
court for a review at any time.35 If a court decides for any of the reasons listed in the statute36 that the
agency does not have to make reasonable efforts to reunite your family, then a permanency hearing must
take place within thirty days.37 See Part C(4)(a) of this Chapter for a discussion of “reasonable efforts.”
These reviews are called permanency hearings, since they decide a permanent plan for your child.38 A
permanent plan considers (1) whether your child will be returned to you, placed with a relative, or released
for adoption, (2) whether termination of parental rights will be filed against you, and (3) what services have
been provided to reunite the family where appropriate.39 The State may create an alternative permanent
placement and must use reasonable efforts to find a placement if family reunification is not in the child’s
best interests.40
The court must notify you at least fourteen days before each of these hearings, and you have a right to
attend. 41 As with the 358a hearing, you must ask the judge to order the prison to take you to the
permanency hearing. You or your lawyer, if you have one, should write to the judge as soon as you know
when your hearing is scheduled. Information on getting to court is included in Part H of this Chapter. Also
see the sample letter included in Appendix A of this Chapter.
At the hearing, explain to the judge any problems you have with the foster care your child is receiving.42
By law, the judge has to look at what is in the “best interests” of the child, so if there is a problem, you
30. N.Y. Soc. Serv. Law § 384-a(1-b) (McKinney Supp. 2007).

31. N.Y. Soc. Serv. Law. § 358-a(3)(a) (McKinney 2003).
32. N.Y. Soc. Serv. Law. § 358-a(5) (McKinney 2003).
33. N.Y. Fam. Ct. Act § 1089(a)(2)–(3) (McKinney Supp. 2007).
34. See N.Y. Fam. Ct. Act § 1088 (McKinney Supp. 2007) (providing the family court with the express power to
rehear the case whenever it deems rehearing necessary or desirable).
35. See N.Y. Fam. Ct. Act § 1088 (McKinney Supp. 2007) (providing the family court with the power to rehear the
case when another party to the case makes a motion to do so).
38. N.Y. Fam. Ct. Act § 1012(k) (McKinney Supp. 2008).
39. See N.Y. Fam. Ct. Act § 1089(c) (McKinney Supp. 2008) for a full description of what needs to be included in
the permanency plan.
40. N.Y. Soc. Serv. Law § 384-b(1)(a)(iv) (McKinney 2003).
41. N.Y. Fam. Ct. Act § 1089(b)(1)(i) (McKinney Supp. 2008).
42. Although you may wait until your court appearance to voice your complaints, you should try to write out any
problems you have with your child’s foster care ahead of time. You can discuss your concerns with your lawyer, if you
have one. You may mail the concerns to the judge, DSS, or the child’s law guardian (lawyer). You should also take a copy
of the list of complaints to court. You or your lawyer should mention your complaints in court so that they are not
overlooked.
should try to explain how your child’s “best interests” are suffering.43 The judge can order DSS to provide a
variety of services for you and your child, such as arranging additional visits.44
(ii) Requested Review
After the initial permanency hearing, you do not need to wait for another scheduled hearing to complain
about your child’s foster care. You may request a permanency hearing to address problems that arise
between scheduled hearings and cannot be resolved with your caseworker.45 In a motion to the court, you
must explain why you need a new hearing, the type of problem you are having, the steps you have taken to
resolve the problem, and what changes you believe are necessary. You may also file a motion to force the
agency to obey court orders or to live up to agreements it has made with you.
(d) Kinship Foster Care
DSS will sometimes approve close relatives to become kinship foster parents.46 If you have a relative
who would like to care for your child, you may be able to arrange for kinship foster care. The technical name
for this arrangement is “approved relative home” or “relative foster boarding home.”47 Under this program,
your child lives with your relative. However, unlike in the private placement described above in Part B, DSS
has legal custody of children in kinship foster care, just as it does in any foster care arrangement.
ASFA has made it more difficult for people with certain kinds of criminal records to be approved as
foster parents. The ASFA restrictions may affect your decision to place your child in kinship foster care
because the relatives you choose may no longer be allowed to be foster parents. In New York, a criminal
history check will be performed on potential foster parents and on anyone over eighteen who is living in the
home before the home can be certified as a foster home.48 The criminal history check will also be repeated
every time that the foster parents apply for re-certification.49
A prospective foster parent can be denied for several reasons, including:
(1) conviction at any time of a felony involving child abuse or neglect, spousal abuse, a crime against a
child including child pornography, a violent crime including rape, sexual assault, or homicide;50 or
(2) felony conviction within the past five years for assault, battery, or a drug-related offense;51 or
(3) charge for an above-listed crime that has not been resolved yet;52 or
(4) felony conviction that may be for an above listed crime, when it is unclear whether such a crime was
involved.53
If it is found that a prospective foster parent has been convicted of one or more of the crimes listed above,
the foster care agency will remove any foster child living with the foster parent.54
Requests to become a foster parent can also be denied if:
(1) the prospective foster parent has a criminal history consisting of crimes other than those specified
above;55 or
(2) any other person over eighteen living in the proposed foster home has a criminal history (including a
criminal charge or conviction).56
43. The court must determine how to protect the best interests of children placed in the State’s care under a
voluntary placement agreement. See, e.g., Sykia Monique G. v. Little Flower Children’s Servs., 208 A.D.2d 534, 535, 616
N.Y.S.2d 806, 807 (2d Dept. 1994) (explaining that the court was required to conduct a limited “best interests” hearing to
determine whether the child’s emotional and physical well-being required continuation of foster care).
44. N.Y. Fam. Ct. Act § 1089(d)(2)(viii)(F) (McKinney Supp. 2008).
45. N.Y. Fam. Ct. Act § 1088 (McKinney Supp. 2008).
46. A relative may be approved as a foster parent as the most appropriate means for DSS to maintain continuity
in the child’s environment or to make sure the child’s environment remains as similar as possible.
47. This arrangement is approved by N.Y. Soc. Serv. Law §§ 371, 375 (McKinney 2003). “Approved relative home”
is defined in N.Y. Comp. Codes R. & Regs. tit. 18, §§ 443–44 (2007).
50. N.Y. Soc. Serv. Law § 378-a(2)(e)(1)(A) (McKinney 2003).
51. N.Y. Soc. Serv. Law § 378-a(2)(e)(1)(B) (McKinney 2003).
54. N.Y. Soc. Serv. Law § 378-a(2)(h) (McKinney 2003).
If any of these factors are found, the agency will check the safety of the home, including whether the
person who committed the crime lives there, the amount of contact the person has with the child, and the
nature of the charge.57 Removing the child may be required to protect the child’s health and safety.58
A disadvantage of kinship foster care in comparison with private placement is that DSS will be involved
in your relationship with your child. DSS could decide to have your child removed from your relative’s home
to another foster home. It also means that you will not be able simply to ask the relative for your child’s
return when you are released from prison, but must instead petition DSS to get your child back.59 Also, DSS
may attempt to terminate your parental rights so that your relative or another person can adopt the child.60
An advantage of kinship foster care is that your child’s caretaker is eligible for the same foster care
payments available to unrelated foster care parents.61 You and the potential kinship foster parent should
consult DSS together about the funds available to him or her. Another advantage is DSS’s obligation to
support you with services, including providing regular visitation, parenting training, counseling for you or
your child, and other services. For incarcerated parents, DSS’s duty to you is generally limited to services
offered by your facility, although your child is entitled to any services offered by the agency.
DSS should support your wishes for your child to be in kinship foster care because it is obligated to
search for a relative to take care of your child.62 If you disapprove of a particular relative that DSS is
considering, you can tell the judge your concerns and ask that your child be placed with a different family
member. At the hearing, you will have to convince the judge that the placement DSS wishes to make is not
in the best interest of your child or that the individual is unfit to care for your child. If you can arrange for
the relative of your choice to attend the court hearing, the judge may have an opportunity to meet him.
2. Involuntary Placement
In some circumstances, your child may be placed in foster care without your consent, a practice known
as involuntary placement. Involuntary placement can occur prior to, or as a result of, your incarceration.
If you do not consent in writing to the removal of your child and a preliminary hearing has not yet been held,
your child can be removed only if there is an immediate danger to her life or health. In such an emergency
situation, a court may order a removal without a hearing, or DSS may remove your child before receiving a
court order.63
Involuntary placement does not mean that your child has been permanently taken from you. However,
in order to avoid termination of your parental rights, you must fulfill certain obligations and demonstrate
some responsibility for your child. The State also has a duty to make “diligent efforts”—or try very hard—to
foster a close relationship between you and your child and to help you fulfill your duties as a parent so that
you can get your child back. ASFA has created some exceptions to the State’s duty to show “diligent efforts.”
These obligations, rights, and exceptions are discussed below in Part C(4)(a) of this Chapter.
(a) Preliminary Hearing
DSS must petition the family court to hold a preliminary hearing during which the judge will decide
whether your child must be removed from your home temporarily. The judge will look to see if there is an
immediate risk to your child’s health or life.64 This hearing must be held the day after the petition to hold
the hearing is filed.65 If your child has already been removed, the judge will determine whether the child
should remain in care outside of the home by also looking to see if there is an immediate risk to your child’s
health or life.66 As in voluntary foster care placements, the State must search for a suitable relative to take

59. Petitioning for return of your child is discussed in Part C(5) of this Chapter.
60. Involuntary termination of parental rights is discussed in Part D of this Chapter.
61. Before relatives can get such payments, the DSS Commissioner must complete a foster care certification study
of the relative’s home. But, in an emergency, a relative can receive funds immediately. The caretaker can also receive
Medicaid for the child but cannot get other forms of public assistance because foster care payments would replace them.
62. New York State law requires that the State attempt to locate adequate living arrangements with a relative or
friend of yours before it places your child with strangers. N.Y. Comp. Codes R. & Regs. tit. 18, § 430.10(b)(2) (2007); see
N.Y. Comp. Codes R. & Regs. tit. 18, § 430.11(c)(1)(i) (2001) (describing continuity in the child’s environment); N.Y. Soc.
Serv. Law § 384-a(1-a) (McKinney 2003) (describing voluntary placement); N.Y. Fam. Ct. Act § 1017 (McKinney 1999)
(describing involuntary placement).
63. N.Y. Fam. Ct. Act §§ 1022, 1024 (McKinney 1999).
64. N.Y. Fam. Ct. Act § 1027(a)(i) (McKinney Supp. 2006).
65. N.Y. Fam. Ct. Act § 1027(a)(i) (McKinney Supp. 2006).
66. N.Y. Fam. Ct. Act § 1027(b)(i) (McKinney 1999 & Supp. 2006).
your child. The court can order DSS to locate your child’s other parent and any relatives and to inform them
of the procedure for seeking custody or becoming foster parents of your child.67
DSS must try to notify you of the petition and proceedings, and you are allowed to attend them, but the
judge may proceed with the hearing even if you are not present.68 If your child is removed, a date will be set
for a permanency hearing.69 It is important to note this date, which will be included in the court’s order
removing your child.
(b) Fact-finding Hearing
After the preliminary hearing, the court will hold a full hearing to decide whether or not your child was
neglected or abused, or is at risk of being neglected or abused.70 This part of the case is called the fact-
finding hearing. Since you will not be in the home while you are in prison, the State can easily show that
your child is at risk of neglect, unless you have arranged for a relative or a friend to take care of your child in
your absence.
The judge must make sure that you are present at the hearing or that every reasonable effort has been
made to notify you of it.71 If you choose not to appear, the court will proceed without you.72 If you do not have
money to retain a lawyer, the judge must appoint a free lawyer to represent you at this hearing (and the
later dispositional and permanency hearings) and must also appoint a law guardian (a lawyer for your child)
to represent your child.73
To ensure you will be at the hearing, you or your lawyer should ask the judge to order the prison, using
an Order to Produce, to bring you to court that day. Appendix A has a sample letter requesting that the
judge submit an Order to Produce to your prison. If, because of your incarceration, you cannot be at the
hearing on the day it is scheduled, you or your lawyer should explain that to the judge. The judge should
change the date to make sure you can be there.
(c) Dispositional Hearing
If the court makes a finding of abuse or neglect, it will hold another hearing, called the dispositional
hearing. This hearing may take place directly after the fact-finding hearing, but it usually happens after an
adjournment74 (when the court makes a decision to postpone or suspend the hearing until a later date). You
and your lawyer have the right to participate in the dispositional hearing, and the judge cannot proceed
without proof that the agency actually notified you of the hearing. After hearing the case, the judge can
make several rulings: return your child to you, adjourn the case for several months with the intention of
dismissing the case later, or order placement of your child in foster care.75
The judge should inform you that if you fail either to maintain contact with your child or plan for your
child’s future, your parental rights may be terminated. Your duties as the natural parent are discussed in
Section (C)(4)(b), and termination of parental rights is discussed in Part D of this Chapter.
Also, at the dispositional hearing or at the permanency hearing, (discussed in Subsection (d) of this
Part), the court can order the foster care agency to make “diligent efforts” to “encourage and strengthen the
parental relationship.”76 For example, the judge can order the agency to arrange visits between you and your
child by bringing your child to visit you. You or your lawyer should ask the judge to order this visitation
because visiting with your child will strengthen your relationship and will help you when you ask for your
child to be returned to you. The judge can also order the agency to assist you with housing, employment,
67. N.Y. Fam. Ct. Act § 1017 (McKinney 1999 & Supp. 2006).
68. N.Y. Fam. Ct. Act §§ 1023, 1027(a)(iv), (b) (McKinney 2005).
69. N.Y. Fam. Ct. Act § 1027(h) (McKinney 2006); see also Subsection (d), “Permanency Hearings.”
70. A child is “neglected” if he has suffered or is in danger of suffering physical, mental, or emotional harm
because the parent cannot or will not provide the proper care. N.Y. Soc. Serv. Law § 371(4-a) (McKinney 2003); N.Y.
Fam. Ct. Act § 1012(f) (McKinney 1999). A child is “abused” when the parent causes, allows, or creates a risk of serious
emotional or physical injury that is likely to cause death or serious physical harm, and the parent does not do so
accidentally. A child is also considered abused when a parent commits or allows to be committed a sex offense against
the child. N.Y. Soc. Serv. Law § 371(4-b) (McKinney 2007); N.Y. Fam. Ct. Act § 1012(e) (McKinney 1999).
71. N.Y. Fam. Ct. Act § 1041 (McKinney 1999).
72. N.Y. Fam. Ct. Act § 1042 (McKinney 1999). If you did not willfully refuse to appear at the hearing, you may
petition the court for a rehearing, which the court should grant.
73. N.Y. Fam. Ct. Act §§ 249 , 262 (McKinney 1999).
74. N.Y. Fam. Ct. Act § 1047(a) (McKinney 1999).
75. N.Y. Fam. Ct. Act § 1052(a) (McKinney 1999).
76. N.Y. Fam. Ct. Act § 1089(d)(2)(viii)(F) (McKinney Supp. 2007).
counseling, medical care, psychiatric treatment, and any other appropriate services that your prison facility
can provide. The dispositional order:
(1) will include a description of the visitation plan;
(2) will state that you have a right to attend planning conferences (with a lawyer) about your child’s
foster care and that you should be told when those meetings will occur;77 and
(3) must contain a notice that if your child remains in foster care for fifteen of the most recent twenty-
two months, the agency may be required to file a termination of your parental rights.78
You have a right to a copy of this order, so remember to ask for a copy if one is not provided.79
(d) Permanency Hearings
The agency with custody of your child must conduct a permanency hearing within eight months of your
child’s removal.80 The permanency hearing should have been scheduled during the original hearing when it
was decided that your child would be removed, and it is assumed you will already know this date.81 Still, the
law requires that you be re-notified of the date of the permanency hearing at least fourteen days in
advance.82 The court has to hold a permanency hearing to decide what the permanency plan for your child
should be.83 The court will also examine whether you and the agency have been going along with the plan for
your child and whether the plan should be adjusted because of changed circumstances.84 In considering
whether extension of placement is in the best interests of your child, the court will look at the permanency
goal.85 As a result of the ASFA, the statute was changed to allow alternative permanent plans to be made for
the child, like discharge to a “fit and willing relative.”86
As the natural parent, you are a necessary party to the hearing, and you have a right to be present and
to have the court appoint a lawyer to represent you. It is very important to attend the permanency hearing.
You should receive both a notice of the hearing and a copy of the agency’s permanency hearing report,87 a
document that includes an update on your child’s well-being and on the agency’s recommendation for your
child’s future placement.88
If you are released from prison and want your child back immediately, or before the next permanency
hearing, you should request that the agency return your child. If the agency does not fulfill your request
within thirty days, you can move the court to terminate your child’s placement.89 But, this motion does not
mean that the court will return your child immediately. The court will first have a hearing to determine
whether your child should be returned.
77. N.Y. Fam. Ct. Act § 1089(d)(2)(vii)(B) (McKinney Supp. 2007).

78. N.Y. Fam. Ct. Act § 1089(d)(2)(vii)(D) (McKinney Supp. 2007).
79. N.Y. Fam. Ct. Act § 1089(e) (McKinney Supp. 2007).
80. N.Y. Fam. Ct. Act § 1089(a)(2) (McKinney Supp. 2007). The statute states that the permanency hearing must
take place “no later than six months from the date which is 60 days after the child was removed from his or her home …
[and] shall be completed within thirty days of commencement.” Adding the six months and 60 days requirement means
that the hearing must happen within eight months from the day your child was removed from your home.
81. N.Y. Fam. Ct. Act § 1089(a)(2) (McKinney Supp. 2007).
82. N.Y. Fam. Ct. Act § 1089(b)(1)(i) (McKinney Supp. 2007); see In re Frederick W., 120 Misc. 2d 335, 342, 465
N.Y.S.2d 828, 833 (Fam. Ct. Queens County 1983) (requiring dismissal of agency’s petition to extend the placement of
the child where the agency failed to give notice to parent).
83. N.Y. Fam. Ct. Act § 1089(a) (McKinney Supp. 2007).
84. N.Y. Fam. Ct. Act § 1089(c)(5)(i) (McKinney Supp. 2007).
85. N.Y. Fam. Ct. Act § 1089(c)(1) (McKinney Supp. 2007).
86. N.Y. Fam. Ct. Act § 1089(c)(1)(iv) (McKinney Supp. 2007).
87. N.Y. Fam. Ct. Act. § 1089(b)(1)(i) (McKinney Supp. 2007); see also In re Frederick W., 120 Misc. 2d 335, 341,
465 N.Y.S.2d 828, 833 (Fam. Ct. Queens County 1983); In re Three Children Free for Adoption, 138 Misc. 2d 584, 586,
525 N.Y.S.2d 135, 137 (Fam. Ct. Delaware County, 1988) (dismissing petition for a permanency hearing as it would
require the notice of parents even for children freed from adoption).
88. N.Y. Fam. Ct. Act § 1087(e) (McKinney Supp. 2007); see also In re Frederick W., 120 Misc. 2d 335, 465
N.Y.S.2d 828, 833 (Fam. Ct. Queens County 1983).
89. N.Y. Fam. Ct. Act § 1062 (McKinney 1999 & Supp. 2007). You or your lawyer should go to the Petition Room
at the family court. Someone there will help you put your case on the court calendar, which schedules a hearing to
determine whether your child will be returned to you.
3. Other Steps in Both Voluntary and Involuntary Placements
(a) Placement of Your Child in an Agency
Soon after your child enters the foster care system, responsibility for the case may be transferred from
DSS to an authorized private foster care agency. This transfer is often done in New York City cases, but
usually not in the rest of New York State. The transfer does not mean your child will be moved but only that
an agency other than DSS will supervise the placement.
If your child is placed with a private agency, you should receive its name and the name of your child’s
new caseworker. Until you receive this notice, you should maintain contact with the caseworker from DSS.90
If you do not hear from the new caseworker, write to the new agency and DSS to inform them that you have
not heard from or about your child. You should let them know that you are concerned about your child’s well-
being and that you want to be kept informed of your child’s whereabouts. The more interest and concern you
show for your child, the less likely it is that DSS will seek, or the court will approve, termination of your
parental rights. It may also make the foster care agency more open to using one of the ASFA exceptions to
the requirements for terminating parental rights. Termination of parental rights is discussed fully in Part D
of this Chapter.
(b) Development of a Service Plan
When you are assigned a caseworker from DSS or a private agency, the caseworker should contact you to
arrange a meeting to discuss your child’s service plan. However, this is not usually done while you are
incarcerated. You should request a meeting in writing. It may be possible to arrange a conference by
telephone. You should also try to keep the agency caseworker informed about programs you are participating
in while incarcerated, such as drug treatment or parenting skills classes.
If you and the caseworker are able to meet, you will develop a plan for your child’s time in foster care.91
It is more likely, though, that the agency will develop the plan in your absence. If you voluntarily placed
your child in foster care, the Voluntary Agreement Form might be the basis for this plan. The plan:
(1) will include guidelines for the treatment your child will receive;
(2) will state that a termination of parental rights proceeding may be filed against you by the agency if
your child remains in foster care for fifteen out of twenty-two months;92
(3) will outline the agency’s program for helping to reunite you and your child;
(4) should describe the care and services your child will receive while in foster care;
(5) should state how often you will receive visits from your child;93
(6) will state what you need to do to get your child back; and
(7) will list your obligations for working to achieve a permanent home for your child.94
It is not always easy to get a copy of the plan. You should request it in writing. If the agency still does
not provide you with the service plan for your family, you should inform the DSS case manager immediately
in writing, as well as the judge at the next permanency hearing. When you get a copy of the plan, be sure to
keep it for your records.
4. Rights and Obligations Under Either Voluntary or Involuntary Foster Care
Both you and the agency have obligations toward each other and your child. If you do not fulfill your
obligations, the agency may go to court to try to terminate your parental rights, which means that someone
else could adopt your child without your consent. In a termination of parental rights proceeding charging
permanent neglect, the agency will first have to prove that it fulfilled its own obligations before the judge
would consider ending your parental rights.
(a) The Department of Social Services’ (“DSS”) Obligations
DSS has certain responsibilities when it takes custody of your child. As previously discussed, its first
obligation is to try to find a home for your child with a relative.95 Again, if you know someone who can take
good care of your child and whom your child likes, you can suggest this person or family member to DSS.
90. See N.Y. Soc. Serv. Law § 384-a(2)(c)(v) (McKinney 2003) (describing parents’ obligations when they have a
child in foster care).
92. N.Y. Soc. Serv. Law § 384-a(2)(c)(ix) (McKinney 2006).
93. N.Y. Soc. Serv. Law § 384-a(2)(c)(iv) (McKinney 2006).
94. N.Y. Soc. Serv. Law § 384-a(2)(c)(v) (McKinney 2006).
If DSS cannot find family members with whom your child might be able to live, it must do the following
(1) place your child in a setting that is the most like your home, if possible (for example, in your
neighborhood or with someone of the same religion);96
(2) keep a record of your child’s progress;97
(3) provide a caseworker who will regularly meet with you, your child, and your child’s foster parents
and who, with your help, will write a plan for the care of your child;98
(4) make every effort to follow the plan;99 and
(5) provide reasonable care for and supervision of the child during the course of the placement.100
More importantly, in most cases, DSS has a general legal obligation to make what the law calls “diligent
efforts” to encourage a relationship between you and your child, with some exceptions created by ASFA.101
“Diligent efforts” include
(1) keeping you informed of your child’s progress;102
(2) making arrangements with your correctional facility for your child to visit you regularly in the
facility;103 and
(3) providing counseling or other services to resolve problems that may prevent your child’s eventual
return to you.104
The exact meaning of “diligent efforts” will depend on the individual case. The agency may be required to
investigate your financial problems, maintain regular contact with you, and make you aware that failure to
contact and plan for your child may result in a termination of your parental rights.105 In one case, the court
found an agency did not make diligent efforts when it did not help parents satisfy agency requirements for
the return of their child. Although the parents did not fulfill the agency’s plan, which included finding a
suitable home, having the means to support the child, and going to family counseling, the court held the
agency should have made efforts to address problems, such as poverty, that kept the parents from fulfilling
the requirements.106 In another case, an agency did not satisfy its statutory requirement when it failed to
95. N.Y. Soc. Serv. Law § 384-a(1-a)(a) (McKinney 2003 & Supp. 2008); N.Y. Comp. Codes R. & Regs. tit. 18,
§ 430.10(b)(2) (2001) (describing standard for necessary activities prior to placement); N.Y. Fam. Ct. Act § 1017(1)
(McKinney Supp. 2008) (describing placement of children).
96. N.Y. Comp. Codes R. & Regs. tit. 18, § 430.11(c)(1)(i), (d)(1) (2001).
97. N.Y. Comp. Codes R. & Regs. tit. 18, § 428.3(b)(1)(vi) (2001).
99. N.Y. Soc. Serv. Law § 384-a (McKinney 2003 & Supp. 2008); N.Y. Comp. Codes R. & Regs. tit. 18, § 428.1
(2001).
100. See Andrews v. County of Otsego, 112 Misc. 2d 37, 39, 446 N.Y.S.2d 169, 171 (Sup. Ct. Otsego County 1982)
(holding that a county with custody of a foster care child has a continuing obligation to protect the child’s health, safety,
and welfare and can be held liable for negligent placement or supervision of a child).
101. N.Y. Soc. Serv. Law § 384-b(7)(f) (McKinney 2003); see also In re Sheila G., 61 N.Y.2d 368, 385, 462 N.E.2d
1139, 1148, 474 N.Y.S.2d 421, 430 (1984) (explaining that the agency must make “affirmative, repeated, and meaningful
efforts to assist” a parent before initiating a parental rights termination proceeding); In re Jamie M., 96 A.D.2d 737, 737,
465 N.Y.S.2d 339, 340 (4th Dept. 1983) (finding that the agency failed to make “diligent efforts” to help parents solve the
very problems requiring removal of the children and causing the termination proceedings), aff’d, 63 N.Y.2d 388, 472
N.E.2d 311, 482 N.Y.S.2d 461 (1984); In re Erika M., 285 A.D.2d 986, 986, 727 N.Y.S.2d 234, 234 (4th Dept. 2001).
102. N.Y. Soc. Serv. Law § 384-b(7)(f)(4) (McKinney 2003).
103. N.Y. Soc. Serv. Law § 384-b(7)(f)(5) (McKinney 2003 & Supp. 2008). The agency is also responsible for
making arrangements to transport your child to and from the facility to visit with you.
104. N.Y. Soc. Serv. Law § 384-b(7)(f)(5) (McKinney 2003 & Supp. 2008) (requiring the agency to coordinate with
the prison to provide “rehabilitative services to resolve or correct the problems, other than incarceration itself, that
impair the incarcerated parent’s ability to maintain contact with the child”); see also In re Sheila G., 61 N.Y.2d 368, 373,
462 N.E.2d 1139, 1140–41, 474 N.Y.S.2d 421, 422–23 (1984) (approving dismissal of permanent neglect petition filed by
foster care agency where father had made visits regularly, established paternity, and developed a plan to take custody of
the child but the agency did not fulfill its “diligent efforts” requirement).
105. See In re Shannon U., 210 A.D.2d 752, 753–54, 620 N.Y.S.2d 851, 852 (3d Dept. 1994) (holding that agency
was found to satisfy its duty because it had maintained regular contact with parents by phone, mail, home visits, and
meetings and had arranged visits, counseling, and parenting classes), leave to appeal denied, 85 N.Y.2d 807, 651 N.E.2d
918, 628 N.Y.S.2d 50 (1995); In re Suzanne N.Y., 102 Misc. 2d 215, 223, 423 N.Y.S.2d 394, 400 (Fam. Ct. N.Y. County
1979) (dismissing petition for termination of parental rights because the agency failed to assist the mother with her
financial problems and inform her of her obligations in order not to lose her child), rev’d on other grounds, 86 A.D.2d 556,
446 N.Y.S.2d 81 (1st Dept. 1982), aff’d 54 N.Y.2d 824, 427 N.E.2d 1187, 443 N.Y.S.2d 722 (1981).
106. See In re Jamie M., 63 N.Y.2d 388, 394–95, 472 N.E.2d 311, 314, 482 N.Y.S.2d 461, 464 (1984) (dismissing
petition for termination of parental rights because the agency failed to show diligent efforts in addressing the
unemployment and financial instability of parents).
offer counseling to a child’s incarcerated father, made no effort to help the father get visitation rights, and
made no attempt to involve the father in his child’s life.107
In defining “diligent efforts” the highest court of New York has said that the foster care agency must
have made “meaningful efforts” to:
(1) provide you and/or your child with counseling for any problem, such as drug or alcohol abuse, that
might be an obstacle to your child’s eventual return to you;
(2) help you find housing or employment;
(3) help you plan for your child’s future; and
(4) provide opportunities for you and your child to visit with each other.108
Until the agency has demonstrated “some attempt” to assist you in these ways, a termination of parental
rights should not be granted.109
However, ASFA has changed the Department of Social Services’ obligation to provide reasonable, and
therefore diligent, efforts to preserve the family in some circumstances. In New York, the law states that if
an incarcerated parent has failed more than once while incarcerated to cooperate with the agency in its
efforts to assist the parent to plan for the future of the child (or in the agency’s efforts to plan and arrange
visits with the child), then the agency will not have to present evidence that they made “diligent efforts.”110
Additionally, the law states that in making determinations involving reasonable or diligent efforts, “the
child’s health and safety” is the most important concern.111 Reasonable efforts should be made to prevent
removal of the child or to make it possible for the child to return home safely.112 Reasonable efforts should
also be made if it is in the best interests of the child’s health and safety and would probably result in
reunification of the parent and child in the near future.
But reasonable efforts to prevent the removal of a child or to reunite a child with the birth family are not
required in the following situations:
(1) when a court has determined that the parent has subjected the child to aggravated circumstances,
defined in New York as severe or repeated abuse;113
(2) when a court has determined that a parent has committed a serious act of violence, including murder
or voluntary manslaughter of one of the parent’s children; attempted, conspired, or solicited to
commit such murder or voluntary manslaughter; or committed assault or aggravated assault on a
child under eleven years old, resulting in serious bodily harm to the child or another child of the
parent;114 or
(3) when the parent’s rights to one of the child’s siblings (including half-siblings) have been terminated
involuntarily.115
If the agency decides not to make reasonable efforts to reunite your family, it must file a motion in court
and the judge will decide if the agency can stop such efforts.116 You should be notified of and given a copy of
the motion. The statute does not say whether a hearing has to be held by the court to decide the matter, nor
does it say what the burden of proof to stop reasonable or diligent efforts would be.
107. See In re Jennifer Ann W., 198 A.D.2d 881, 882, 605 N.Y.S.2d 698, 699 (4th Dept. 1993).
108. In re Sheila G., 61 N.Y.2d 368, 384, 462 N.E.2d 1139, 1147, 474 N.Y.S.2d 421, 427 (1984).
109. N.Y. Fam. Ct. Act § 614(1)(c) (McKinney 2003 & Supp. 2008); In re Jamie M., 63 N.Y.2d 388, 395, 472 N.E.2d
311, 314, 482 N.Y.S.2d 461, 464 (1984).
110. N.Y. Soc. Serv. Law § 384-b(7)(e)(ii) (McKinney 2003 & Supp. 2008).
111. N.Y. Soc. Serv. Law § 358-a(3)(c) (McKinney 2003).
112. N.Y. Soc. Serv. Law § 358-a(2) (McKinney 2003 & Supp. 2008).
113. N.Y. Soc. Serv. Law § 358-a(12). Severe abuse is defined to include conviction for (1) committing or soliciting
murder or manslaughter of another child of the parent or another child for whom the parent is legally responsible; (2)
assault against a child less than eleven years old; and (3) conviction for an above crime in any other jurisdiction. N.Y.
Soc. Serv. Law § 384-b(8)(a) (McKinney 2003 & Supp. 2008). Repeated abuse is defined to include (1) a finding of abuse
against the child, child’s sibling, or any other child for whom the parent is legally responsible within the past five years;
and (2) a finding that diligent efforts by the agency to encourage the parental relationship and to rehabilitate the
respondent have been unsuccessful and are “unlikely to be successful in the foreseeable future.” N.Y. Soc. Serv. Law §
384-b(8)(b) (McKinney 2003 & Supp. 2008).
115. N.Y. Soc. Serv. Law § 358-a(3)(b)(6) (McKinney 2003).
(b) The Parent’s Obligations
Like DSS, you must meet certain obligations while your child is in foster care. If you fail to satisfy these
requirements, DSS may claim that you have abandoned or permanently neglected your child and may ask a
court to terminate your parental rights. New York law states that a parent who wishes to be reunited with a
child in foster care has the following obligations:
(1) to visit with the child;
(2) to plan for the future of the child;117
(3) to consult with the foster agency about the child’s foster care plan;
(4) to contribute financially to the support of the child, if the parent is able;
(5) to inform the agency of the parent’s address every six months, even if it remains the same, and to
inform the agency immediately of any change of name or address; and
(6) to cooperate with the agency.118
The courts interpret these requirements, some vague, based on “the particular facts and totality of
circumstances.”119 Thus, the court will look at the facts of your particular case when deciding whether you
are living up to your obligations. Also, the law says that, at the very least, an incarcerated parent has to
“cooperate with [the agency] in its efforts to ... plan for the future of the child.” 120 If an incarcerated parent
on more than one occasion fails to cooperate or has failed to inform the agency of his or her address for six
months, the agency does not have to continue making diligent efforts to preserve the family, including
providing for visitation.121
If you want to retain your parental rights, you should make every effort to fulfill your obligations. In a
termination proceeding, DSS has the burden of proof to show, by clear and convincing evidence, that you
failed to fulfill your obligations.
(i) Visiting with Your Child
The law recognizes that incarcerated parents may have a difficult time arranging to visit with their
children and planning for their children’s futures. It will not be held against you if you cannot visit with your
child as often as you would like or if the agency fails to provide you with visits.122 Remember, though, that
visiting regularly is one of the most effective ways to maintain a healthy relationship with your child and to
avoid termination of your parental rights. It is generally accepted that visitation and other parental
contacts, such as letters and phone calls, are in the best interests of the child.
Not visiting with your child can be proof of abandonment or permanent neglect and can lead to
termination of your parental rights. For example, one court held that a parent who failed to substantially
maintain contact with her children during a period of over one year had not lived up to her foster care
obligations.123 You should try very hard to maintain contact with your child. Whether your child is in the
custody of a relative, a friend, your ex-spouse, or in foster care, that person should bring your child to visit
you.124 Your parental rights are at stake, so make sure that you continuously try to visit with your child even
if the foster parents or agency are making it more difficult for you to see your child. If the judge sees that
you did all that you could to try and maintain contact with your child, it will help in regaining custody of
your child when you are released. Some prisons have programs to help prisoners keep in contact with their
117. For a definition of planning for the future of the child, see N.Y. Soc. Serv. Law § 384-b(7)(c) (McKinney 2003
& Supp. 2008), and the discussion in Part C(4)(b)(ii) below.
118. N.Y. Soc. Serv. Law §§ 384-a(2)(c)(v), 384-b(5), 384-b(7) (McKinney 2003 & Supp. 2008).
119. In re Orlando F., 40 N.Y.2d 103, 111, 351 N.E.2d 711, 716, 386 N.Y.S.2d 64, 68 (1976) (holding that finding of
permanent neglect and termination of parental rights was appropriate where mother maintained contact with son but
failed to plan for his future by not getting stable housing for three years).
120. N.Y. Soc. Serv. Law § 384-b(7)(e)(ii) (McKinney 2003 & Supp. 2008).
121. N.Y. Soc. Serv. Law § 384-b(7)(e) (McKinney 2003 & Supp. 2008).
122. N.Y. Soc. Serv. Law § 384-b(7)(f)(5) (McKinney 2003 & Supp. 2008).
123. See In re Comm’r. of Soc. Servs., 84 Misc. 2d 253, 258–59, 376 N.Y.S.2d 387, 393 (Fam. Ct. Ulster County
1975); see also In re I.R., 153 A.D.2d 559, 561, 544 N.Y.S.2d 216, 217–18 (2d Dept. 1989) (explaining that incarceration
alone does not excuse a parent from maintaining contact with his child).
124. See Wise v. Del Toro, 122 A.D.2d 714, 714–15, 505 N.Y.S.2d 880, 881 (1st Dept. 1986) (reversing denial of
visitation to an incarcerated father because he did not have the opportunity to present evidence and because
incarceration alone does not make visitation inappropriate); R.J. v. D.J., 133 Misc. 2d 883, 887, 508 N.Y.S.2d 838, 841
(Fam. Ct. Broome County 1986) (holding that while incarceration alone does not prevent visitation with parent’s child,
here frequent visits were unnecessary because of stress to the mother who had to take the child to visits).
children.125 You should look into any such programs available at your facility and tell your caseworker that
you and your child wish to participate in the programs.
The foster care agency has a legal duty to make “diligent efforts” to encourage frequent and regular
visits between you and your child.126 The agency is typically under an obligation to provide biweekly visits if
the permanency plan for the child is eventual reunification with the parents (returning the child to you).127
But, because of difficulties that come up when arranging visits for incarcerated parents, the State has
determined that visitation can be monthly. 128 The agency must provide financial assistance, arrange
transportation, or do anything else in its power to ensure you and your child meet.129 A court may even order
that you be allowed to visit with your child in a different facility if that will make it easier for your child to
visit you, but this will generally be a day trip with a guard and not a permanent arrangement.130
Because prisons generally restrict visitation hours, it may be difficult for a caseworker to arrange for
your child to meet with you in prison. If you are having difficulty arranging visits, remember that the law
requires both the caseworker to set up visits and corrections officials to cooperate with the caseworker in
making suitable visitation arrangements.131 But, prison officials do not have to set up visits between you and
your child outside of your correctional facility unless it is “reasonably feasible” (possible) and is in the best
interests of your child.132
A court can also determine that visitation is harmful to the child’s welfare and order that no visits occur.
In New York, “[t]he denial of visitation to a natural parent is a drastic remedy and should be done only
where there are compelling reasons and substantial evidence that such visitation is detrimental to the
children’s welfare.” 133 This means there has to be an extremely important reason why visits would be
harmful to the child, and the agency must be able to prove that such a reason actually exists and that it is
truly harmful. Also, if visitation is not permitted, then the fact that you have not visited with your child
cannot be the basis for a permanent neglect or abandonment proceeding.134
(ii) Planning for Your Child
Courts recognize that your ability to participate in your child’s upbringing is limited because you are
incarcerated. Nevertheless, they still require that you think ahead and plan for your child. This may include
finding a home for your child among friends or relatives or preparing yourself for reunification with your
child.
According to one parental rights specialist, plans should include the following:
(1) how you will support yourself and your child after your release (for example, by getting public
assistance or finding a job);
(2) where you and your child will live;
(3) where your child will go to school;
(4) how you will provide for your child’s medical needs (for example, with Medicaid);
(5) what kind of religious upbringing, if any, you want for your child;
125. You may, for example, be eligible to apply for the Family Reunion Program (“FRP”) if it is offered by your
correctional facility. See N.Y. Comp. Codes R. & Regs. tit. 7, § 220.2 (2001).
127. N.Y. Comp. Codes R. & Regs. tit. 18, § 430.12(d)(1)(i) (2001).
128. The Department of Social Services has issued an administrative directive regarding the agency’s obligation to
provide for monthly visitation between incarcerated parents and their children. See Department of Social Services,
Administrative Directive 85-ADM-42 (Sept. 3, 1985) (“According to Departmental utilization review regulations, …
visitation should be at least monthly, if the permanency planning goal is to discharge the child to his parents.”).
130. See In re Gadson, 124 Misc. 2d 1024, 1026–27, 478 N.Y.S.2d 498, 500 (N.Y. Fam. Ct. Onondaga County 1984)
(permitting visitation at a facility different from the one where parent was incarcerated because it was in the best
interests of the child, the alternate facility allowed for meaningful visitation, and transportation was feasible).
131. N.Y. Soc. Serv. Law § 384-b(7)(f)(5) (McKinney 2003 & Supp. 2008); N.Y. Correct. Law § 619 (McKinney
2003).
133. Parker v. Ford, 89 A.D.2d 806, 807, 453 N.Y.S.2d 465, 465 (4th Dept. 1982) (holding that petitioner father,
despite alcohol abuse, was improperly denied supervised visitation, where there was no evidence that supervised
visitation would be detrimental to the child’s welfare). But see Sullivan County Dep’t of Soc. Servs. v. Richard C., 260
A.D.2d 680, 682–83, 687 N.Y.S.2d 470, 472 (3d Dept. 1999) (denying visitation between father and child where
psychologist and child’s therapist recommended that visits be suspended until child developed the strength to deal with
family problems, since child consistently showed regression after contact with father).
(6) who will watch your child if you are out of the house; and
(7) how you will provide for any special needs your child may have.135
It is important that you plan ahead for how you will appropriately care for your child after your release
from prison. This planning will be viewed as a sign that you care about child and have an interest in being
her parent.
To prepare yourself as a parent, you should take part in any parenting courses available at your
institution, attend vocational training classes that will improve your chances of getting a job, and join drug
or alcohol rehabilitation classes if necessary or ordered by a court. You should make every effort to
participate in programs that your caseworker suggests.
It is also important to understand that if you are incarcerated for an extended period of time, arranging
long-term foster care (as opposed to adoption) may not be considered an acceptable plan for your child’s
future. The State will not excuse you from the responsibility of planning for your child’s future just because
you are incarcerated.136 In such a situation the State has the authority to terminate your parental rights.
(iii) Contact with Your Child and the Foster Care Agency
In addition to visiting with your child whenever you can, you should maintain contact by sending letters,
birthday and holiday cards, and gifts to your child. If the child is too young to read, draw a picture or send a
note that someone else can read aloud. These actions will show the court that you are interested in, and are
planning for, your child’s future and that you have made an effort to fulfill your foster care obligations. You
should also contact your caseworker regularly both to inform him of your progress in prison and to ask about
your child. If you fail to keep the agency informed of your address for six months or more, even if the address
remained the same, the agency is not required to make diligent efforts to encourage and strengthen the
relationship between you and your child.137 Keep a record of all communications, with both your child and
your caseworker, such as copies of letters and cards and a list of phone calls you make. Keeping accurate
records is very important because if the agency ever petitions to terminate your parental rights, you will
have proof that you were, in fact, fulfilling your obligations.
5. Return of Your Child
If you voluntarily place your child in foster care, your Voluntary Placement Form may include a specific
release date for your child. In that case, the agency must return the child to you on that date.138 If you will
still be incarcerated on the release date specified in the Voluntary Placement Form, you should inform your
caseworker. A new release date can be established, and your child can remain in foster care until then.139
You may wish to have your child returned earlier than the date listed on the Voluntary Placement Form.
If so, send a written request to the agency stating the new date of return and your reasons for changing the
date.140 The agency may either return the child or, within ten days, deny your request.141 If your request is
denied, you can challenge the decision in court.142
If the Placement Form does not mention a specific release date, you can request the return of your child
at any time by writing a letter to the agency. The agency must return your child to you within twenty days
135. Philip M. Genty, Memorandum for Incarcerated Parents with Children in Foster Care 3 (1988) (on file with
the Columbia Human Rights Law Review).
136. In re Gregory B., 74 N.Y.2d 77, 90, 542 N.E.2d 1052, 1058, 544 N.Y.S.2d 535, 541 (1989) (upholding
termination of parental rights for incarcerated parents who made arrangements for long-term foster care until children
were no longer minors); In re “Female” V., 21 A.D.3d 1118, 1119, 803 N.Y.S.2d 636, 637–38 (2d Dept. 2005) (upholding
termination of parental rights for an incarcerated father who, among other things, “was unable to provide any ‘realistic
and feasible’ alternative to having” his children remain in foster care until they became adults or he was released from
prison (quoting N.Y. Soc. Serv. Law § 384-b(7)(c) (McKinney 2003))).
137. N.Y. Soc. Serv. Law § 384-b(7)(e)(i) (McKinney 2003 & Supp. 2008).
138. N.Y. Soc. Serv. Law § 384-a(2)(a) (McKinney 2003 & Supp. 2008).
139. See N.Y. Soc. Serv. Law § 384-a(3) (McKinney 2003 & Supp. 2008) (describing how to amend a Voluntary
Placement Form).
140. N.Y. Soc. Serv. Law § 384-a(2)(a) (McKinney 2003 & Supp. 2008). Valid reasons for changing the date of your
child’s release from foster care might include a shorter prison sentence than originally anticipated or your decision to
place your child with a relative or friend.
142. N.Y. Soc. Serv. Law § 384-a(2)(a) (McKinney 2003 & Supp. 2008); see also N.Y. Soc. Serv. Law § 358-a(8)
(McKinney 2003) (pointing out that any order by a family court can be appealed pursuant to Article 11 of the Family
Court Act).
or get a court order extending the care, in which case the agency probably will bring neglect proceedings.143
Generally, the agency will have to prove that you would not be able to provide for your child—meaning that
your child would be at risk of neglect or abuse—before it can get an order extending your child’s care.
If you did not voluntarily place your child in foster care, but were forced to do so by the State
involuntarily, you may file a motion with the court to terminate the involuntary placement.144 However, you
may file the motion with the court only after you have first applied to the agency for a termination of the
placement and were denied.
Whether your child has been placed in foster care voluntarily or involuntarily, you may be eligible for
assistance from DSS once you are released from prison and have regained custody of your child. After your
release, DSS must provide supportive and rehabilitative services, called preventive services, to you and
your family if there is a serious risk that you cannot care for your child and that he will be put in foster care
again.145 You should discuss getting additional assistance with your caseworker before your release from
prison. If you fail to do this, and then return home and realize you need additional assistance, you still have
an opportunity to discuss this with your caseworker afterwards because your caseworker must meet with
you at least three times after your child is released from foster care.146
If you require housing after your release from prison, you may be eligible for a housing subsidy of up to
$300 every month for up to three years. This subsidy is provided by DSS when the primary reason that a
child is kept in foster care is that parents cannot find adequate housing. 147 If you are in need of such
assistance, ask your caseworker about the subsidy and explain that you want to apply for it.
D. Involuntary Termination of Parental Rights
DSS, foster parents, or the child’s legal guardian may begin proceedings to convince a court that
terminating your parental rights and placing your child up for adoption is the best solution for your child.148
New York state law specifically says that the State cannot terminate your parental rights just because you
are in prison.149 The law also recognizes that incarcerated parents have special circumstances that judges
should consider when looking at a parent’s efforts to maintain contact with and plan for their children.150
However, ASFA has made it easier for the State to terminate your rights as a parent.
If you do not consent to the adoption of your child, a court can terminate your parental rights only if it
finds that at least one of the following things is true:
(1) you have abandoned your child for a period of at least six months immediately prior to the date on
which the termination petition was filed;151
(2) you permanently neglected your child;152
144. See N.Y. Fam. Ct. Act § 1062 (McKinney 2008).
145. You may be eligible for any of the services described in N.Y. Comp. Codes R. & Regs. tit. 18, § 423.2 (2007),
which include daycare, housekeeper/chore services, psychiatric counseling, and parent training services. See also N.Y.
Soc. Serv. Law §§ 409, 409-a (McKinney 2003 & Supp. 2008) (defining preventive services); N.Y. Soc. Serv. Law §§ 384-
a(2)(c)(iv)–(vii) (McKinney 2003 & Supp. 2008) (describing the terms for transfer of care and custody of children).
146. N.Y. Comp. Codes R. & Regs. tit. 18, § 423.4(h) (2007).
147. N.Y. Soc. Serv. Law § 409-a(5)(c) (McKinney 2003 & Supp. 2008).
148. N.Y. Soc. Serv. Law § 384-b(3)(b) (McKinney 2003 & Supp. 2008).
149. N.Y. Soc. Serv. Law § 384-b(2)(b) (McKinney 2003 & Supp. 2008) (stating that the term parent “shall include
an incarcerated parent unless otherwise qualified”). But see In re Love Russell J., 7 A.D.3d 799, 800, 776 N.Y.S.2d 859,
859 (2d Dept. 2004) (finding that termination of parental rights due to permanent neglect was proper against an
incarcerated father whose only plan for his children’s welfare was extended placement in foster care, especially when he
had been warned by the agency that this plan was insufficient).
150. See N.Y. Soc. Serv. Law § 384-b(4)(b) (McKinney 2003 & Supp. 2008); see also In re Custody & Guardianship
of Sasha R., 246 A.D.2d 1, 7, 675 N.Y.S.2d 605, 609 (1st Dept. 1998) (discussing how the New York legislature
acknowledged that incarcerated parents have “special circumstances” that should be taken into account when evaluating
the parent's efforts to meet the statutory contact and planning requirements (citing In re Gregory B., 74 N.Y.2d 77, 89,
542 N.E.2d 1052, 1057, 544 N.Y.S.2d 535, 540–41 (1989))).
151. N.Y. Soc. Serv. Law § 384-b(4)(b) (McKinney 2003 & Supp. 2008). Under New York State law, a parent
abandons a child when he shows “an intent to forego his or her parental rights and obligations … by his or her failure to
visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from
doing so by the agency.” N.Y. Soc. Serv. Law § 384-b(5)(a) (McKinney 2003 & Supp. 2008).
152. N.Y. Soc. Serv. Law § 384-b(4)(d) (McKinney 2003 & Supp. 2008). A parent permanently neglects a child
when he “continuously or repeatedly” fails for a period of either one year, or fifteen out of the most recent twenty-two
months, “to maintain contact with or plan for the future of the child, although physically and financially able to do so.”
N.Y. Soc. Serv. Law § 384-b(7)(a) (McKinney 2003 & Supp. 2008).
(3) you cannot and will not be able to provide proper care because of mental illness or mental
retardation;153 or
(4) you have severely or repeatedly abused your child;154
Under ASFA in New York, if any of the following are true, the foster care agency must file for
termination of parental rights:
(1) the child has been in foster care for fifteen of the most recent twenty-two months;155
(2) the child has been determined by a court to be abandoned;156
(3) the parent has been convicted of a crime including conspiring, soliciting, attempting, or committing
murder or manslaughter of another of his or her children for whom the parent is legally
responsible;157 attempting or committing assault on a child under eleven years of age who is a child
of the parent or a child for whom the parent is legally responsible;158 or
(4) the parent has been convicted of any of the above crimes in another jurisdiction.159
The State is still required to prove its case in order to actually terminate your rights. But even if any of
the four above grounds are present (where the agency is required to file under AFSA), the agency does not
need to file for termination proceedings if any of the following are also present:
(1) the child is being cared for by a relative;160
(2) the agency has documented in the plan a compelling reason that filing a petition to terminate
parental rights would not be in the best interest of the child;161 or
(3) the agency has not provided the parent(s) with adequate reunification services in cases where those
services are part of the reasonable efforts requirement.162
When the foster care agency alleges in a petition that your case falls into one of the four categories listed
above and files for termination of parental rights, the court will first hold a fact-finding hearing to see if the
agency’s allegation is correct. Then, in all cases involving permanent neglect or severe or repeated abuse, it
will hold a dispositional hearing.163 In the dispositional hearing, the judge will decide whether terminating
your parental rights is in the best interests of your child. In cases of abandonment or mental illness,
dispositional hearings are not required, and your parental rights may be terminated automatically upon a
finding of abandonment or mental illness in the fact-finding hearing. However, the court may choose to hold
a dispositional hearing.
One possible compromise in a proceeding to terminate parental rights is a suspended judgment for one
year.164 A suspended judgment means the actual judgment won’t be given for a year so the court can monitor
the situation during that time and see what to do. It is a type of probation that contains a number of
conditions you must satisfy, like communication and visits with your child, enrollment in counseling
programs, and cooperation with the agency in planning for your child’s future. If you do not comply with the
conditions of the order, the court may withdraw the suspended order and terminate your parental rights.
1. DSS-Initiated Termination Proceedings
Most termination proceedings against incarcerated parents charge the parent with abandonment or
permanent neglect. These terms are defined below.
153. N.Y. Soc. Serv. Law § 384-b(4)(c) (McKinney 2003 & Supp. 2008).
154. N.Y. Soc. Serv. Law § 384-b(4)(e) (McKinney 2003 & Supp. 2008). See Part C(4)(a) of this Chapter for a
definition of severe and repeated abuse. Under N.Y. Soc. Serv. Law § 384-b(8)(b)(ii)(A) (McKinney 2003 & Supp. 2008),
repeated abuse for the termination of parental rights also includes a parent committing or “knowingly” allowing a felony
sex offense to be committed against his child.
155. N.Y. Soc. Serv. Law § 384-b(3)(l)(i) (McKinney 2003 & Supp. 2008).
156. N.Y. Soc. Serv. Law § 384-b(3)(l)(i) (McKinney 2003 & Supp. 2008).
157. N.Y. Soc. Serv. Law § 384-b(8)(a)(iii)(A)–(B) (McKinney 2003 & Supp. 2008).
158. N.Y. Soc. Serv. Law § 384-b(8)(a)(iii)(C) (McKinney 2003 & Supp. 2008).
159. N.Y. Soc. Serv. Law § 384-b(8)(a)(iii)(D) (McKinney 2003 & Supp. 2008).
160. N.Y. Soc. Serv. Law § 384-b(3)(l)(i)(A) (McKinney 2003 & Supp. 2008).
161. N.Y. Soc. Serv. Law § 384-b(3)(l)(i)(B) (McKinney 2003 & Supp. 2008). Compelling reasons are defined in
N.Y. Soc. Serv. Law § 384-b(3)(l)(ii) (McKinney 2003 & Supp. 2008).
162. N.Y. Soc. Serv. Law § 384-b(3)(l)(i)(C) (McKinney 2003 & Supp. 2008).
163. N.Y. Soc. Serv. Law § 384-b(3) (McKinney 2003); N.Y. Fam. Ct. Act § 623 (McKinney Supp. 2008).
164. N.Y. Fam. Ct. Act § 633 (McKinney 1999 & Supp. 2007); see also Comm’r v. Rufelle C., 156 Misc. 2d 410, 416,
593 N.Y.S.2d 401, 405 (Fam. Ct. Kings County 1992) (granting respondent parent a rehearing to determine whether
respondent had fulfilled the conditions of the suspended judgment).
(a) Abandonment
In a proceeding based on abandonment, DSS only has to prove that for a period of six months prior to the
date on which the termination petition was filed, the parent failed to communicate and visit with the child165
“although able to do so and not prevented or discouraged from doing so by the agency.”166 In order to prove
abandonment, the agency does not have to show that it attempted to help the parent.167 Thus, it is good to
keep records of your attempts to communicate with the child and with the agency.
(b) Permanent Neglect
Under New York law, a parent permanently neglects his child when, although physically and financially
able to do so, he fails to maintain contact with or plan for the future of the child for a period of either one
year or fifteen out of the most recent twenty-two months while the child is in the care of an authorized
agency, even though the agency has made diligent efforts to strengthen the parental relationship.168 The
agency does not have to make diligent efforts where a court has previously decided that reasonable efforts
are not necessary.169
In cases charging permanent neglect, the law and the courts require that the court must first examine
the DSS actions in your case before they examine your behavior. DSS must prove that, where required, it or
the foster care agency involved made diligent efforts (as discussed in Part C(4)(a) to strengthen the
relationship between you and your child and to reunite your family.170 If you believe that the agency has not
made diligent efforts, explain this to the judge. Your lawyer will need to show that diligent efforts have not
been made. Perhaps you can show that the agency never brought your child to the prison for visits, despite
your repeated requests, or that you did not receive the help that you asked for on another problem. Use
telephone logs and copies of bills to establish that you made these efforts. Ask your lawyer to subpoena
people from the prison to testify on your behalf.
Once a court has found permanent neglect, it will hold a dispositional hearing to consider the best
interests of the child. A child’s best interests (legally speaking) involve her physical and emotional well-
being, including a permanent home and a normal, stable family atmosphere.171
(c) Defending Yourself Against Termination of Parental Rights
It is very important that you be present at the termination hearing. The agency must serve you with
notice (to let you know the time and location) of the hearing,172 and you have a right to attend.173 At the
166. N.Y. Soc. Serv. Law § 384-b(5)(a) (McKinney 2003 & Supp. 2008).
168. N.Y. Soc. Serv. Law § 384-b(7)(a) (McKinney 2003 & Supp. 2008); compare further In re Sheila G., 61 N.Y.2d
368, 380, 462 N.E.2d 1139, 1145, 474 N.Y.S.2d 421, 427 (1984) (finding that the foster care agency did not exercise
diligent efforts in fostering the relationship between a biological father and his child). But see In re Demetrius F., 176
A.D.2d 940, 941, 575 N.Y.S.2d 552, 553 (1991) (finding that it is unnecessary for the agency to show that it exercised
diligent efforts to foster the relationship where the grounds for termination are mental illness).
169. N.Y. Soc. Serv. Law § 384-b(7)(a) (McKinney 2003 & Supp. 2008).
170. N.Y. Soc. Serv. Law § 384-b(7)(f) (McKinney 2003 & Supp. 2008).
171. In re Michael B., 80 N.Y.2d 299, 311–12, 314–15, 604 N.E.2d 122, 129–31, 590 N.Y.S.2d 60, 67, 69 (1992)
(concluding that awarding legal custody to respondent foster parents instead of biological father was error because the
Appellate Division had used an erroneous “best interest” test; the Appellate Division relied on the child’s length of stay
and bonding with foster parents, instead of considering the fitness of the biological parent, the agency’s plan for the
child, and the child’s emotional well-being); In re Suzanne N.Y., 77 A.D.2d 433, 434, 433 N.Y.S.2d 580, 581–82 (1st Dept.
1980) (granting termination of parental rights where an eight-year-old child had lived with her foster parents since the
age of four months and mother was a schizophrenic who required medication to remain minimally functional), rev’d on
other grounds, 54 N.Y.2d 824, 427 N.E.2d 1187, 443 N.Y.S.2d 722 (1981).
172. N.Y. Soc. Serv. Law § 384-b(3)(e) (McKinney 2003).
173. New York courts have recognized the right to attend termination proceedings. See In re Daniel Aaron D., 49
N.Y.2d 788, 790, 403 N.E.2d 451, 452, 426 N.Y.S.2d 729, 730 (1980) (ruling that the mother should have been present at
the hearing during the testimony of the court-appointed psychiatrist since mother had not waived her right to be
present); see also In re Cleveland W., 256 A.D.2d 1151, 1151–52, 684 N.Y.S.2d 121, 121 (4th Dept. 1998) (finding family
court abused its discretion by proceeding with termination hearing even though respondent mother had called the court
to inform them that she was too ill to attend, her attorney appeared and also told the court, and mother supplied a note
from a doctor documenting her illness); In re Kendra M., 175 A.D.2d 657, 658, 572 N.Y.S.2d 583, 585 (4th Dept. 1991)
(finding that family court erred in conducting fact-finding hearing on a date when incarcerated parent could not attend
and should have made arrangements to have parent brought from jail to be present at the hearing); In re Robert Allen
V., 52 N.Y.2d 1071 (1981) (affirming the right of a father of a child born out of wedlock to participate and be heard at all
hearing, DSS will challenge your capabilities as a parent, and you should be there to respond to any issues
raised. If you are not at the hearing, you will not be able to defend yourself, and it might look like you are
not interested in protecting your parental rights.
Although you have a right to attend the hearing, if you are in a facility outside of the state where the
hearing will be held, the officials at your correctional facility probably will not bring you to the hearing. In
one such case, a court held that a hearing could proceed without the presence of the incarcerated parent
because the interests of the State and the child outweighed the parent’s interest in being at the hearing.174
Thus, the court found that the reasons for the State and child to go on with the hearing were stronger than
the reasons to wait for the parent. Other ways to participate in the hearing include testifying by deposition
(a deposition is a special legal document where you answer questions or make statements in another place
and it is brought before the court in writing instead of you being there in person), aggressive representation
by your attorney (get your lawyer to really advocate for you), and a telephone conference call during the
hearing.
To find that you have not “abandoned” or “permanently neglected” your child, the court must find that
you (a) made an effort to keep in contact with your child (which includes contact with the agency); and (b)
planned for your child’s future during your incarceration. These two conditions were discussed above.
In New York, you have a right to a lawyer for the termination hearing.175 The lawyer will help you argue
your case for keeping your parental rights. You can either hire a lawyer yourself or ask the judge to assign
one to you. Unfortunately, in New York State, the family court is unlikely to appoint an attorney if you do
not appear at the hearing. You may try to write to the court and respond to the allegations in the petition or
ask to have an attorney appointed.
(i) Maintaining Contact
The best way to demonstrate that you have maintained contact with your child is to give the judge copies
of all letters and proof of other communications that you have had with DSS, the caseworker, your child, the
family court, the foster parent, and anyone else involved in your child’s foster care. You should keep a file
with photocopies or carbon copies of all of these documents to help with this task. If you cannot photocopy
the letters, keep a written record of each letter and a brief summary of what you wrote in the letter. You
should also keep a telephone log of all of the calls you make. If you get charged and pay for phone calls that
you make, make sure to get and save receipts to show the judge.
Incarceration does not justify not staying in contact with your child. An incarcerated parent who does
not make an effort to keep in touch with the child may be charged with permanent neglect or
abandonment.176 A parent must personally make contact and cannot rely on a relative to make contact.177
stages of the proceeding regarding the child’s foster care status); In re Tyrell M., 283 A.D.2d 500, 501, 724 N.Y.S.2d 874,
875 (2d Dept. 2001) (finding that the family court erred in not allowing the mother to testify on her own behalf at the
next court date prior to finding that she had neglected her children). The only other states that have found such a right
are Arizona, California, and Florida. Texas has held specifically that a prisoner has no right to be at the termination
hearing. See Philip M. Genty, Procedural Due Process Rights of Incarcerated Parents in Termination of Parental Rights
Proceedings: A Fifty State Analysis, 30 J. Fam. L. 757, 774–75 (1991/92).
174. See In re A.O., 157 Misc. 2d 177, 179, 596 N.Y.S.2d 971, 973 (Fam. Ct. Bronx County 1993) (finding that
hearing could proceed because incarcerated father’s correctional facility in Connecticut refused to produce him and
father refused alternate methods for out-of-court participation, such as telephone conference and written sworn
testimony); see also In re James Carton K., III, 245 A.D.2d 374, 376–77, 665 N.Y.S.2d 426, 428–29 (2d Dept. 1997)
(affirming termination of parental rights despite parent’s absence because a parent’s right to be present for fact-finding
and dispositional hearings in termination cases is not absolute since the child whose guardianship and custody is at
stake also has a fundamental right to a prompt and permanent adjudication), appeal denied, 91 N.Y.2d 809, 693 N.E.2d
750, 670 N.Y.S.2d 403 (1998). All the states that have decided this issue have ruled that a prisoner incarcerated out of
state does not have a right to be produced for the termination hearing. See Philip M. Genty, Procedural Due Process
Rights of Incarcerated Parents in Termination of Parental Rights Proceedings: A Fifty State Analysis, 30 J. Fam. L. 757,
775–76 (1991/92).
175. N.Y. Fam. Ct. Act § 262(a)(iv) (McKinney 1999). See Part H of this Chapter for more information on your
right to counsel.
176. See In re Antia Siami D., 192 A.D.2d 389, 389, 596 N.Y.S.2d 64, 64 (1st Dept. 1993) (terminating incarcerated
parent’s rights because parent had failed to contact child for more than six months); In re Ravon Paul H., 161 A.D.2d
257, 257, 555 N.Y.S.2d 49, 49 (1st Dept. 1990) (finding termination of parental rights to be in the best interests of the
child where incarcerated parent did not write, send gifts, telephone, or otherwise try to keep a relationship with the child
or the agency; stating that “sporadic and minimal attempts to maintain a parental relationship are insufficient to
prevent a finding of abandonment”); see also In re Shannon Q., 262 A.D.2d 679, 680, 690 N.Y.S.2d 788, 789 (1999)
(stating that “incarceration alone does not excuse respondent's failure to contact his child” where parent did not try to
contact Social Services to ascertain location of daughter).
Also, visitation and contact may not be enough if the court finds the quality of the visits or contacts poor or
too infrequent.178
The court may decide not to terminate your parental rights if you can show a good reason for failing to
communicate with your child and the agency. The standard generally requires that it was impossible for you
to communicate.179 However, in one case, an abandonment proceeding failed where an incarcerated father
adequately explained his failure to contact the child or agency for six months.180 The father argued that he
was concerned that his child would be upset by visiting him in a prison setting, that the child was an infant
and therefore could not have read letters or talked on the telephone, and that he was scared to contact the
agency because he was incarcerated. Also, he had once attempted to contact the agency (although this
attempt was not successful), had made plans for his child’s future, and had sent a woman with whom he had
a relationship to seek visitation with and information about the child. The court concluded that the father’s
conduct did not demonstrate an intent to give up his rights and responsibilities.181
(ii) Planning for Your Child
The second requirement you must satisfy to maintain your parental rights is planning for your child.
Planning for your child is discussed above in Part C(4)(b)(ii). Your plan must be reasonable and
achievable.182
Efforts that can demonstrate planning for you and your child’s future include participating in whatever
programs your facility offers for parents, such as parenting courses and drug and alcohol abuse counseling.
It is critical that you have evidence of such participation, so you should get a certificate of participation in or
completion of the program, if you can. Otherwise, you can ask your lawyer to subpoena a supervisor or
counselor who can testify at the hearing about your progress and participation in a program.
2. Termination Proceedings Against Prisoners with Long-Term Sentences
Prisoners with long-term sentences are at a particular disadvantage with respect to maintaining their
parental rights. A plan for long-term foster care, even with adequate visitations and contacts, is insufficient
to fulfill the obligation of planning for one’s child.183 ASFA’s time limits make the protection of parental
rights especially difficult in this context.
New York’s highest court has held that parents who will be in prison for ten to twenty years or twenty-
five years to life, and who have no plan for their children other than to have the children remain in long-
term foster care, should lose their parental rights.184 The court found that the legislature did not mean “to
approve a plan of indefinite foster care for the child of an incarcerated parent who is serving a lengthy prison
term and who cannot provide the child with an alternative living arrangement.”185 In other words, foster
care was not intended to care for other people’s children when it is obvious that those parents will never be
able to care for their children and have not arranged on their own for another person to raise their children
while they are in prison. The court noted that even though there is a legislative concern for the rights of
incarcerated parents, the law states that a child deserves a “normal family life in a permanent home” with a
177. See In re Custody and Guardianship of Thomas G., Jr., 165 A.D.2d 729, 730, 564 N.Y.S.2d 32, 33 (1st Dept.
1990) (refusing to consider communication between paternal grandmother and agency to satisfy the incarcerated father’s
obligation to make contact with his child); see also In re Christopher MM., 210 A.D.2d 767, 767, 620 N.Y.S.2d 853, 854
(3d Dept. 1994) (finding father’s contacts “minimal and insubstantial” for purposes of abandonment proceeding when the
only attempts to contact the child were three phone calls placed to child’s grandparents), appeal denied, 85 N.Y.2d 807,
651 N.E.2d 918, 628 N.Y.S.2d 50 (1995).
178. See In re Cecelia “A,” 199 A.D.2d 582, 583, 604 N.Y.S.2d 327, 329 (3d Dept. 1993) (finding “sporadic and
insubstantial contacts” insufficient to defeat an abandonment petition supported by “clear and convincing evidence”); In
re Tasha Monica B., 156 A.D.2d 247, 247, 548 N.Y.S.2d 508, 509 (1st Dept. 1989) (finding visitation alone insufficient to
show parent was fulfilling obligations where the quality of visitation was poor).
179. See In re Trudell J.W., 119 A.D.2d 828, 829, 501 N.Y.S.2d 453, 453 (2d Dept. 1986) (finding termination of
parental rights appropriate where the mother did not produce evidence that her failure to contact the child or agency
was a result of circumstances that made it impossible for her to do so).
180. See In re Baby Girl I., 210 A.D.2d 601, 619 N.Y.S.2d 832 (3d Dept. 1994).
181. See In re Baby Girl I., 210 A.D.2d 601, 602–03, 619 N.Y.S.2d 832, 833 (3d Dept. 1994).
182. See In re Leon RR, 48 N.Y.2d 117, 125–26, 397 N.E.2d 374, 379, 421 N.Y.S.2d 863, 868–69 (1979) (finding
parents’ plans for child’s future adequate where they solved personal problems that had led to the child’s initial removal,
found employment, found suitable housing, and sought psychological counseling).
183. See In re Gregory B., 74 N.Y.2d 77, 90, 542 N.E.2d 1052, 1058, 544 N.Y.S.2d 535, 541 (1989).
184. See In re Gregory B., 74 N.Y.2d 77, 90, 542 N.E.2d 1052, 1058, 544 N.Y.S.2d 535, 541 (1989).
185. In re Gregory B., 74 N.Y.2d 77, 89, 542 N.E.2d 1052, 1058, 544 N.Y.S.2d 535, 541 (1989).
nurturing family relationship.186 In the court’s eyes, a parent who will be incarcerated for more than ten
years cannot provide one.
Another case terminating the parental rights of a long-term prisoner involved a father who would be
eligible for parole in seven years. The court reached a similar conclusion, holding long-term foster care was
not an appropriate plan.187 Likewise, a father’s plan for his child to remain in foster care for six years or
more while he was incarcerated was found to be inappropriate. The father’s parental rights in that case were
terminated for permanent neglect.188
A plan for long-term foster care is not adequate for a parent to keep his parental rights even when that
parent has maintained contact and a close relationship with the child. If you are serving a long sentence and
your child is in foster care, it is very important that you attempt to remove your child from foster care by
privately placing her with a relative or other person. If relatives are found who will care for the child,
termination of your parental rights might not be ordered.189 Otherwise, you risk losing your parental rights.
3. What to Do Now: Practical Tips
(1) Know the Legal Status of Your Child in Placement. Is he in foster care or private custody? If he
is in foster care, what type is it? Was your child voluntarily or involuntarily placed? Gather all
documents relating to your child’s placement in one place, and keep safe and precise records.
(2) Maintain Contact with Your Child. Write letters and cards. If possible, telephone your child. Try
to arrange for visitation as often as possible. Keep copies of everything you send and a log of your
phone calls.
(3) Maintain Contact with Your Caseworker or Your Child’s Guardian. Write or telephone him
often. Ask about your child’s progress in school, interests, health, problems, etc. Also ask to establish
a regular schedule for visitation. Again keep accurate records of your contact with caseworkers and
guardians.
(4) If Your Child Is in Foster Care, Maintain Contact with the Social Services Agency. At least
once every six months, notify the agency of your current address in writing. Cooperate with the
foster care agency if it attempts to arrange visits or help you plan for your child’s future by asking
you to attend classes or complete programs at your facility.
(5) Attend Court Hearings. Make sure that the judge knows you are involved and are concerned about
your children. If you learn that a court hearing has been scheduled, send a letter to the family court
clerk asking that you be produced in court and asking to have legal representation assigned to you.
Once your lawyer is assigned, make sure you know his name, address, and telephone number.
(6) Most Importantly, Keep Records. Make a record of every phone call you make to your children,
your caseworker, a court, or foster care agency. If possible, make copies of every letter you send. This
is very, very important and might mean the difference between keeping and losing your child after
you are released.
E. Incarcerated Fathers with Children in Foster Care
Incarcerated fathers with children in foster care face unique challenges. As a father, your biological link
to your child is not enough to protect your rights as a parent.190 You must take affirmative actions to protect
your rights, such as maintaining contact with your child while he is in foster care. Without these actions,
186. In re Gregory B., 74 N.Y.2d 77, 89, 542 N.E.2d 1052, 1058, 544 N.Y.S.2d 535, 541 (1989) (quoting In re Joyce
T., 65 N.Y.2d 39, 47, 478 N.E.2d 1306, 1311–12, 489 N.Y.S.2d 705, 711 (1985) (emphasis added)); see also N.Y. Soc. Serv.
Law § 384-b(1)(a) (McKinney 2003) (describing legislative intent behind guardianship and custody statutes).
187. See In re Omar Garry G., 198 A.D.2d 149, 149, 603 N.Y.S.2d 860, 860 (1st Dept. 1993) (finding termination of
parental rights appropriate where incarcerated parent’s only plan for his child was to have the child remain in foster
care until his release and he never told the agency that he had relatives who were “ready, willing, and able” to care for
the child during his incarceration), appeal denied, 83 N.Y.2d 753, 634 N.E.2d 603, 612 N.Y.S.2d 107 (1994).
188. See In re Guardianship and Custody of Latasha C., 196 A.D.2d 756, 756, 602 N.Y.S.2d 11, 11 (1st Dept. 1993).
189. See In re Omar Garry G., 198 A.D.2d 149, 149, 603 N.Y.S.2d 860, 860 (1st Dept. 1993); see also In re Gregory
B., 74 N.Y.2d 77, 88, 542 N.E.2d 1052, 1057, 544 N.Y.S.2d 535, 540 (1989).
190. In re Robert O., 80 N.Y.2d 254, 604 N.E.2d 99, 590 N.Y.S.2d 37 (1992) (holding that the biological link of the
father is insufficient to create a constitutionally protected interest and that the unwed biological father must
demonstrate some action for him to enjoy protection of his parental rights); see also Caban v. Mohammad, 441 US 380,
392, 99 S. Ct. 1760, 1768, 60 L. Ed. 2d 297, 307 (1979) (finding that where the father has not taken action to “participate
in the rearing of his child, nothing in the Equal Protection Clause precludes the State from withholding from him the
privilege of vetoing the adoption of that child”).
you risk losing your child to adoption without the court seeking your consent or even notifying you of its
actions.
1. Establishing Paternity—Becoming a “Legal Father”
In order to exercise the parental rights described in this Chapter, you must establish paternity by
proving to a court that you are the legal father of your child. Apart from giving you rights, establishing
paternity also gives you responsibilities. One of the major responsibilities that goes along with a court
finding that you are a child’s father is a possible obligation to pay child support.191
Establishing paternity is only necessary if your child was born out of wedlock. If you were or are married
to the mother of your child, you are automatically considered to be the father for all children conceived or
born to the mother during the marriage, and you do not have to establish paternity. However, if you are
unmarried, even if you lived with the mother of your children for a number of years, you are not the child’s
legal father. Additionally, having your name on your child’s birth certificate does not automatically make
you the child’s legal father.192 Therefore, if you were not married to the mother of your child when your child
was conceived or born, you will have to prove your paternity. This requirement extends to fathers who
married their child’s mother after the child was born.
To prove your paternity, you should file a petition for an order of “filiation” 193 (another word for
paternity) in family court in the county where either the child or the child’s mother lives.
Your paternity petition:
(1) Must be in writing. You must write or type the petition.
(2) Must state that you (“petitioner”) are the father of the child. You must say you are the father of the
child and why. This is done by alleging that you had sexual intercourse with the child’s mother
during a time about nine months prior to the child’s birth.
(3) Must be verified. You must have a notarized statement that the reasons you give in the petition and
the claims you make about paternity are true.
(4) Must be served on the respondent. This means you must have someone over the age of eighteen
deliver a copy of the petition to your child’s mother. This will inform the mother of the paternity
proceedings in family court so that she may be present.194
If on the court date the mother agrees that you are the child’s father, the judge may find that paternity
has been proven. If the mother disputes that you are the father, the judge may order DNA testing to prove
paternity, which you may be required to pay for. Once your paternity is established, you have the right to
request visits with your child and to be involved in planning for your child’s future (permanency planning)
while he is in foster care. If paternity is not proven, you do not have a legal right to visits or to a say in
permanency planning.
Even if paternity is proven, you may not necessarily have the right to stop your child’s adoption
proceedings. The following Section outlines the steps you can take to become a “consent” father (one who has
the right to consent to adoption). It also explains the requirements for being considered a “notice” father (one
who has a right to be notified of termination of parental rights and subsequent adoption).
2. Types of Fathers
As explained in Part D, while your child is in foster care, proceedings may begin to convince the court
that terminating parental rights and placing your child for adoption is the best option for your child. Your

192. See In re Strong's Estate, 168 Misc. 716, 723, 6 N.Y.S.2d 300, 306 (Sur. Ct. N.Y. County 1938) (“The fact of
birth may be established by a birth certificate, although such certificate is not admissible to establish parentage”), aff'd,
256 A.D. 971, 11 N.Y.S. 2d 225 (1st Dept. 1939); Stanford v. Union Labor Life Ins. Co., 74 Misc. 2d 781, 786, 345
N.Y.S.2d 928, 934 (Sup. Ct. Monroe County 1973) (“It is the rule in New York that a birth … certificate is admissible as
a public document only to show the fact of birth …, and not as evidence of the additional facts recited therein pursuant
to law.” (citation omitted)).
194. This step may be both difficult and expensive, but it is required. If you do not do this, the court will dismiss
your petition and you will have to start all over again. However, if reasonable and numerous attempts are made to serve
the mother and these are documented with affidavits of attempted service, the court can authorize “service by
alternative means,” which can include sending a letter to her last known address, putting an advertisement in a local
paper, or posting a legal notice in the local post office. See New York City, Administration for Children’s Services, Out of
Sight, Not out of Mind: Important Information for Incarcerated Parents Whose Children Are in Foster Care (February 5,
2005). You can obtain a copy of this pamphlet by writing to the Administration for Children’s Services, 150 Williams
Street, 18th Floor, New York, New York 10038, or by calling ACS at (212) 341-0900.
permission, or consent, may or may not be required for these proceedings to go forward. Your right to
consent to adoption or even be notified about it depends on how the law classifies you as a father.
(a) Married Fathers
Married fathers have all the rights and obligations that a biological mother would have.195 If you are a
married father, your consent will be needed before any adoption takes place, and you have the right to be
present at all hearings, as well as to initiate hearings, as described generally in Part D of this Chapter.
(b) Consent Fathers
If your child was born out of wedlock, you will retain your right to withhold consent for your child’s
adoption only if you fulfill the obligations of a consent father. As a consent father, you will have the right to
be present at all proceedings concerning your child, and, unless your parental rights have been terminated,
you must give consent for your child to be adopted.196 In order to be considered a consent father, you must
maintain substantial and continuous contact with your child. 197 Substantial and continuous contact is
demonstrated by paying a reasonable sum to support the child.198 Additionally, you must demonstrate that
you have either:
(1) Visited the child at least monthly when physically and financially able to do so and not prevented by
the person or authorized agency having custody of the child; OR
(2) Had regular communication with the child or with the person or agency having custody of the child,
when you have been unable to visit the child.199
Even if you are a consent father, if the court rules that you have abandoned your child (see Part D(1)(a)
of this Chapter), the court will say that you have lost your right to consent to the adoption and will not
require your consent for the adoption to proceed.200
(c) Notice Fathers
Being a notice father means that the court must inform you if proceedings to terminate parental rights
of your child and/or free him for adoption are initiated. As a notice father, your consent will not be required
before your child is adopted, but you will be able to present evidence to the court about what you believe is in
the best interest of your child. If you do not satisfy the requirements to be considered a consent father, but
you meet one of the following requirements, you may be considered a notice father:
(1) If you have been “adjudicated” by a court to be the father of your child;201
(2) If you have filed a notice to claim paternity of your child;202
(3) If you are on the child’s birth certificate;203
(4) If you were openly living with your child and his mother when the proceedings started, and you hold
yourself out as the father;204
(5) If the mother has identified you as a father in a written sworn statement;205
(6) If you were married to the child’s mother within six months after the birth;206 or
195. See N.Y. Fam. Ct. Act § 417 (McKinney 1999) (“A child born of parents who at any time prior or subsequent
to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both
parents for all purposes of this article regardless of the validity of such marriage.”); N.Y. Dom. Rel. Law § 111(1)(b)
(McKinney 1999) (“[C]onsent to adoption shall be required … of the parents or surviving parent, whether adult or infant,
of a child conceived or born in wedlock.”).
196. Note that until your child is six months old, if you are not married to the mother of your child, she can place
the child for adoption without your consent. In this case, you can attempt to block the adoption only by seeking full
custody of the child. In re Raquel Marie X, 76 N.Y.2d 387, 408, 559 N.E.2d 418, 428, 559 N.Y.S.2d 855, 865 (1990).
197. N.Y. Dom. Rel. Law § 111(1)(d) (McKinney 1999).
198. N.Y. Dom. Rel. Law § 111(1)(d)(i) (McKinney 1999).
199. N.Y. Dom. Rel. Law § 111(d) (McKinney 1999).
200. N.Y. Dom. Rel. Law § 111(2)(a) (McKinney 1999); see In re Eugene “MM,” 132 A.D.2d 780, 780, 517 N.Y.S. 2d
326, 327 (3d Dept. 1987) (holding that father, who had minimal contact with mother and child, had failed to pay any
child support, and had not ever requested visitation while incarcerated, failed to meet the threshold criteria needed to
require his consent to the adoption); In re Joshua II, 296 A.D.2d 646, 647–48, 745 N.Y.S.2d 112, 113 (3d Dept. 2002)
(holding that incarcerated father’s consent to adoption was not required because father abandoned child).
201. N.Y. Dom. Rel. Law § 111-a(2)(a) (McKinney 1999).
202. N.Y. Dom. Rel. Law § 111-a(2)(c) (McKinney 1999).
203. N.Y. Dom. Rel. Law § 111-a (2)(d) (McKinney 1999).
204. N.Y. Dom. Rel. Law § 111-a(2)(e) (McKinney 1999).
205. N.Y. Dom. Rel. Law § 111-a(2)(f) (McKinney 1999).
(7) If you have filed an Acknowledgement of Paternity (a sworn statement on a prescribed form) with
the Putative Father Registry.207
Note that these categories include persons who are listed on the child’s birth certificate and persons who
have been found to be “legal fathers” by the court. Therefore, even if you are the legal father or the father on
the birth certificate, your consent may not be required before your child is adopted, unless you meet the
additional requirements listed above for consent fathers. Your status as a notice father or consent father is
not permanent. You can move from the notice category to the consent category by maintaining substantial
and continuous contact with your child. Likewise, if you stop maintaining contact with your child, the court
will consider you a notice father, even if at one point you may have qualified as a consent father.
If you have had minimal or no contact with your child and you do not fall under any of the above
categories (married, notice, consent, or legal father), you have no rights or duties respecting your child. The
court need not notify you or ask for your consent before placing your child for adoption.
F. Voluntary Adoption
You might decide that the best choice for your child is adoption. In order to do this, you must “surrender”
your child, which generally means that you give up all of your parental rights to that child. Generally, you
give up the right to visit your child, call your child, or even learn how your child is doing.208 However, it may
be possible to negotiate some conditions to the surrender of your child, such as naming the person who
adopts your child or preserving your right to see your child after adoption. 209 This option is called a
conditional surrender. If you negotiate these conditions and the person who adopts your child prevents
you from seeing him, you may petition a court for visitation. The court would then conduct a hearing to
determine if visitation is in the best interests of the child.210
Whether you choose a total or conditional surrender, this is a serious decision and you should get all the
advice and help that you think you need. You have the right to talk with a lawyer before you sign a
Surrender Instrument, which is the form you sign to give up your child. If your child is in foster care, you
have the right to supportive counseling before you sign the surrender instrument.211 Make sure you have
read and fully understand any and all documents that you are asked to sign. If you do not understand
something in the document, ask your lawyer to explain it. Do not sign anything until you are sure that you
understand what the consequences of signing will be and are sure that this is what you want to do and what
you think is best for your child.
The adoption process is different depending on whether your child is in foster care or has been placed
privately with friends or relatives.
1. If Your Child Is in Private Placement
If your child is living with a friend or relative through a private arrangement, you can surrender your
child either by giving her to a foster care or adoption agency or by making a private adoption agreement.212
The surrender is made by signing the form in or out of court.
After you have surrendered your child to the agency, you have thirty days to change your mind.213 If you
change your mind after thirty days, you may regain your parental rights only if the child has not yet been
placed in an adoptive home.214 If you change your mind about the surrender and the child is already in an
adoptive home, the judge will decide who has rights to the child based on the “best interests of the child.”215
206. N.Y. Dom. Rel. Law § 111-a(2)(g) (McKinney 1999). Note that marriage within six months of the child’s birth
makes you a notice father, but not necessarily a consent father. You can become a consent father by maintaining
substantial and continuous contact with your child.
207. N.Y. Dom. Rel. Law § 111-a(2)(h) (McKinney 1999).
208. N.Y. Soc. Serv. Law § 383-c(3)(b) (McKinney 2003 & Supp. 2008). However, a surrender of a child in foster
care may include a provision for visitation with the child after adoption.
209. N.Y. Soc. Serv. Law § 383-c(2) (McKinney 2003 & Supp. 2008).
210. See In re Sabrina H., 245 A.D.2d 1134, 1135, 666 N.Y.S.2d 531, 531 (4th Dept. 1997) (finding that a biological
mother can petition the court for enforcement of conditions in the surrender agreement). However, an adoptive parent’s
refusal to let a biological parent see the child would not allow the biological parent to automatically revoke the
surrender.
211. N.Y. Soc. Serv. Law §§ 383-c(3)(b), (5)(b)(i) (McKinney 2003 & Supp. 2008).
212. N.Y. Dom. Rel. Law §§ 115–16 (McKinney 1999 & Supp. 2008). A private adoption involves a contract
between the birth parents and adoptive parents without agency involvement.
213. N.Y. Soc. Serv. Law § 384(5) (McKinney 2003 & Supp. 2008).
2. If Your Child Is in Foster Care
If your child is in foster care, contact your child’s caseworker and explain that you are interested in
giving up your child for adoption. The surrender in this case can take place in one of two ways. The first way
to surrender your child is to “execute and acknowledge” the surrender instrument in court before a judge.216
If the surrender takes place in court, the termination of your parental rights is irrevocable.217 This means
you cannot change your mind and regain the rights to your child. The second type of surrender takes
place outside of court and is called an extra-judicial surrender. If you sign the surrender instrument
outside of court, you have forty-five days after signing the surrender to change your mind.218
As with foster parents, ASFA requires that the agency check the criminal records of prospective adoptive
parents. The requirements for approval or denial of an adoptive parent are the same as for a foster parent.219
G. Getting to Court
Parents have a right to attend all court proceedings involving the foster care and adoption of their child.
For parents who are prisoners, you will have to arrange to be brought to court. You should request
permission to attend such proceedings from your correctional facility as far in advance of the court date as
possible. You should also contact your caseworker and tell him or her you wish to attend. You have to write
to the judge well in advance of the hearing date and explain why your presence at the hearing is essential
and request that the judge order the Department of Correctional Services to produce you in court. See
Appendix A of this Chapter for a sample letter asking the judge to order you be produced for the hearing.
H. The Right to Counsel
Even though the U.S. Supreme Court has held that there is no constitutional guarantee of a right to a
lawyer in proceedings for termination of parental rights or foster care, New York State law guarantees this
right.220 In most other states, the right to a lawyer in such proceedings has been granted either by the state
constitution or by state law. Usually, if you cannot afford to hire your own attorney, the court will appoint
what in New York is called an 18-b attorney when you get to court.221 “18-b” is just the section of the law
that allows the State to hire these attorneys to appoint to clients. They are no different in what they do from
other attorneys. You also can try to contact a legal services organization for help, but attorneys at those
organizations are generally unavailable for these kinds of cases. See Appendix B of this Chapter, as well as
Appendix IV of the JLM, for a list of legal service organizations.
I. Conclusion
If you are incarcerated and have a child, it is important for you to know the options you have in order to
maintain your relationship with your child. First, you should decide whether you want your child in private
placement (with a family or friend) or in foster care. Different benefits attach to different situations, so it is
important to weigh all of your options. In order to have the best opportunity possible to retain custody of
your child when you are outside of prison, you should maintain contact with your child and with your
caseworker. You should also keep records of all of the contact you have with both your child and caseworker
in case you need to prove your efforts. You should also maintain contact with the custodian of the child and
keep records of all contact.
216. N.Y. Soc. Serv. Law § 383-c(3)(a) (McKinney 2003 & Supp. 2008).
217. N.Y. Soc. Serv. Law § 383-c(3)(b)(McKinney 2003 & Supp. 2008).
218. N.Y. Soc. Serv. Law § 383-c(5)(d)(ii) (McKinney 2003 & Supp. 2008).
219. See N.Y. Soc. Serv. Law § 378-a (McKinney 2003 & Supp. 2008); see also Part C(1)(d) of this Chapter.
220. N.Y. Fam. Ct. Act § 262 (McKinney 2003 & Supp. 2008).
221. “18-b” refers to a free attorney assigned by the court under Article 18-b of the County Law. N.Y. County Law
§ 722 (McKinney 2004).
APPENDIX A
REQUEST FOR AN ORDER TO PRODUCE

Date:________, 20__
ATTENTION: Court Clerk

Family Court
State of New York
County of [Name of County]
[Street Address]
[City or Town], New York, [Zip Code]
RE: [Child’s Name], [Child’s Birth Date]
Dear Sir or Madam:
I respectfully request to be present for the hearing that is to be held on the [##] day of [month], 20[##},
for my child/children, [Name of Children]. I am presently incarcerated at [name of facility], located at the
below address. Please submit an “Order to Produce” upon this institution, so that I may be available for this
pending hearing.
I am also requesting that the court assign an attorney to represent me in the above proceeding and that
all court proceedings be adjourned until I am able to be physically present.
[If applicable: I have not been informed of the date that my child/children will be appearing before your
court. Would you kindly notify me of the date and enter this into the record as a Notice of Appearance and
request to be produced.]
NOTIFY: [Warden’s Name]

[Your Name and Address]
Sworn to me on the [##] day of [month] of 20[##].
Name of Parent (Print): ___________
NYSID #:___________
Signature of Parent: ___________
Notary Public Signature: __________

APPENDIX B
SERVICES FOR INCARCERATED PARENTS
Edwin Gould Services for Children support group, information, referrals, case
Incarcerated Mothers Program management, child care, gifts for children,
1968 Second Avenue family reunification support, public
New York, NY 10029 information, and advocacy.
Phone: (212) 876-0367
The purpose of this organization is to prevent Administration for Children‘s Services
placement of children in foster care. This (“ACS”)
organization provides counseling for mothers Office of Advocacy
incarcerated in New York City or New York Parents’ and Children’s Rights Unit
State, makes monthly visits to your children, 150 Williams Street, First Floor
and encourages visits between mothers and New York, NY 10038
children. To be eligible for these services, your Phone: (212) 676-9421
child or children must be under 18 years old You can contact this branch of ACS if your
and must not already be in foster care. child is in foster care in New York City and
your child‘s foster care agency is refusing to
Women in Prison Project bring your child to visit you in prison.
Correctional Association of New York, Inc.
135 East 15th Street Community Project For Reintegration
New York, NY 10003 166 Montague Street
Phone: (212) 254-5700 ext. 306 Brooklyn, NY 11201
Phone: (718) 422-2864
Families First Area Served: Brooklyn and Manhattan
2013 East Genesee Street, Suite 1 Provides legal services and information to
Syracuse, NY 13210 formerly incarcerated women.
(315) 475-4822
www.afsc.org/midatlantic/familes.htm Family Resource Center
Area served: Onondaga County 175 Remsen Street, 8th Floor
Provides transportation assistance, self-help Brooklyn, NY 11201
support group, information, referrals, Phone: (718) 637-6560
mentoring, group activities, gifts for children, www.osborneny.org
family reunification support, public education, Area Served: New York State
and advocacy. Provides toll free hotline serving New York
State and a support group.
Legal Action Center
153 Waverly Place, 8th Floor Family Works
New York, NY 10014 175 Remsen Street, 8th Floor
Phone: (212) 243-1313 Brooklyn, NY 11201
Debbie Mukamal, Staff Attorney Phone: (718) 637-6560
Area Served: New York Area Served: New York
Provides legal information for people with Provides a parent education program for
criminal records. incarcerated fathers and a children’s center in
the visiting area at Sing Sing, Woodbourne,
Even Start and Shawangunk Correctional Facilities.
6264 Route 88
Sodus, NY 14551 Hour Children
Phone: (315) 483-5294 36-11A 12th Street
www.evenstart.org Long Island City, NY 11106
Area Served: Wayne County (718) 433-4724
Provides a family literacy program for Area Served: New York State
incarcerated parents, their children, and their Provides five community residential programs
children’s caregivers. Services include for female ex-offenders and their children.
transportation, parent education, self-help Provides parent education, enhanced visiting,
and transportation assistance for women Women’s Prison Association and Home,
incarcerated in two New York State prisons. Inc.
110 Second Avenue
P.E.A.C.E. Inc. Early Head Start New York, NY 10003
808 North McBride Street Phone: (212) 674-1163
Syracuse, NY 13203 Area served: New York City
Phone: (315) 470-3300 ext.52 Provides comprehensive services to
Area Served: Onondaga County incarcerated and formerly incarcerated
Provides parent education, information, women. Services include parent education,
referrals, family reunification support, case self-help support group, information, referrals,
management, public education, and advocacy case management, mentoring, group activities,
for pregnant and postpartum women gifts for children, nursery family reunification
incarcerated in Onondaga County Correctional support, family therapy, community
Center, their children, and their children’s residential services, and legal services and
caregivers. information.
The following organizations provide free legal services in New York City. Contact them if you
need to take some action for your child and you cannot afford a lawyer. For a more extensive list of
legal services organizations throughout New York State, turn to Appendix IV of the JLM.
Legal Services for New York City Prisoners’ Legal Services

350 Broadway, 6th Floor 118 Prospect Street, Room 307
New York, NY 10013 Ithaca, NY 14850
Phone: (212) 431-7200 Phone: (607) 273-2283
Poughkeepsie Office: (914) 473-3810
Albany Office: (518) 438-8046
REGIONAL OCFS OFFICES
ALBANY REGIONAL OFFICE ROCHESTER REGIONAL OFFICE
155 Washington Avenue, 3rd Floor 259 Monroe Avenue, Room 307
Albany, NY 12210 Rochester, NY 14607
Phone: (518) 486-7078 Phone: (585) 238-8201
Fax: (518) 486-7625 Fax: (585) 238-8289
Counties served: Albany, Clinton, Columbia, Counties served: Chemung, Livingston,
Delaware, Essex, Franklin, Fulton, Greene, Monroe, Ontario, Schuyler, Seneca, Steuben,
Hamilton, Montgomery, Otsego, Rensselaer, Wayne, Yates
Saratoga, Schenectady, Schoharie, Warren,
Washington SYRACUSE REGIONAL OFFICE
BUFFALO REGIONAL OFFICE The Atrium

2 Clinton Square, Suite 350
Ellicott Square Building, Room 838 Syracuse, NY 13202
295 Main Street Phone: (315) 423-1200
Buffalo, NY 14203 Fax: (315) 423-1198
Phone: (716) 847-3145 Counties served: Broome, Cayuga, Chenango,
Fax: (716) 847-3742 Cortland, Herkimer, Jefferson, Lewis,
Counties served: Allegany, Cattaraugus, Madison, Oneida, Onondaga, Oswego, St.
Chautauqua, Erie, Genesee, Niagara, Orleans, Lawrence, Tioga, Tompkins
Wyoming
YONKERS REGIONAL OFFICE
NEW YORK CITY REGIONAL OFFICE
525 Nepperhan Avenue, Suite 203
80 Maiden Lane, 24th Floor Yonkers, NY 10703
New York, NY 10038 Phone: (914) 377-2080
Phone: (212) 383-1788 Fax: (914) 377-2083
Fax: (212) 383-1811 Counties served: Dutchess, Nassau, Orange,
Counties served: 5 Boroughs of New York City Putnam, Rockland, Suffolk, Sullivan, Ulster,
Westchester
CONTACT INFORMATION FOR COUNTY DEPARTMENTS OF SOCIAL

SERVICES
Albany County DSS Hudson, NY 12534
162 Washington Avenue Phone: (518) 828-9411
Albany, NY 12210
Phone: (518) 447-7300 Cortland County DSS
County Office Building
Allegany County DSS 60 Central Avenue
County Office Building Cortland, NY 13045-5590
7 Court St. Phone: (607) 753-5248
Belmont, NY 14813-1077
Phone: (585) 268-9622, Delaware County DSS
(716) 268-9303 111 Main Street
P.O. Box 469
Broome County DSS Delhi, NY 13753-1265
36-42 Main Street Phone: (607) 746-2325
Binghamton, NY 13905-3199
Phone: (607) 778-8850 Dutchess County DSS
60 Market Street
Cattaraugus County DSS Poughkeepsie, NY 12601-3299
One Leo Moss Drive, Suite 6010 Phone: (845) 486-3000
Olean, NY 14760-1158
Phone: (716) 373-8065 Erie County DSS
Rath County Office Building
Cayuga County DSS 95 Franklin Street, 8th Floor
County Office Building Buffalo, NY 14202-3959
160 Genesee Street, 2nd Floor Phone: (716) 858-8000
Auburn, NY 13021-3433
Phone: (315) 253-1011 Essex County DSS
7551 Court St.
Chautauqua County DSS P.O. Box 217
Hall R. Clothier Building Elizabethtown, NY 12932
Mayville, NY 14757 Phone: (518) 873-3441
Phone: (716) 753-4421
Franklin County DSS
Chemung County DSS 355 West Main Street, Suite 331
Human Resource Center Malone, NY 12953
425 Pennsylvania Avenue Phone: (518) 483-6770
Elmira, NY 14902
Phone: (607) 737-5309 Fulton County DSS
4 Daisy Lane
Chenango County DSS P.O. Box 549
5 Court Street Johnstown, NY 12095
Norwich, NY 13815 Phone: (518) 736-5600
Phone: (607) 337-1500
Genesee County DSS
Clinton County DSS 5130 East Main St., Suite #3
13 Durkee Street Batavia, NY 14020-3700
Plattsburgh, NY 12901-2911 Phone: (585) 344-2580
Phone: (518) 565-3300
Greene County DSS
Columbia County DSS 411 Main Street
25 Railroad Avenue P.O. Box 528
P.O. Box 458 Catskill, NY 12414-1716
Phone: (518) 943-3200
Hamilton County DSS New York, NY 10013-3403
White Birch Lane Phone: (212) 274-2664
P.O. Box 725
Indian Lake, NY 12842-0725 NYC Administration for Children's
Phone: (518) 648-6131 Services
150 William Street, 18th Floor
Herkimer County DSS New York, NY 10038
301 North Washington Street, Suite 2110 Phone: (212) 341-0900
Herkimer, NY 13350
Phone: (315) 867-1291 Human Resources Administration
180 Water Street, 25th Floor
Jefferson County DSS New York, NY 10038
Human Services Building Phone: (212) 331-6000
250 Arsenal Street Toll-free: (877) 472-8411
Watertown, NY 13601
Phone: (315) 782-9030 Niagara County DSS
20 East Avenue
Lewis County DSS P.O. Box 506
Outer Stowe Street Lockport, NY 14095-0506
P.O. Box 193 Phone: (716) 439-7600
Lowville, NY 13367
Phone: (315) 376-5400 Oneida County DSS
Livingston County DSS 800 Park Avenue
3 Murray Hill Drive Utica, NY 13501-2981
Mt. Morris, NY 14510-1699 Phone: (315) 798-5733
Phone: (585) 243-7300
Onondaga County DSS
Madison County DSS Onondaga Co. Civic Center
North Court Street 421 Montgomery Street
P.O. Box 637 Syracuse, NY 13202-2923
Wampsville, NY 13163 Phone: (315) 435-2985
Phone: (315)366-2211
Ontario County DSS
Monroe County DSS 3010 County Road #46
111 Westfall Road, Room 660 Canandaigua, NY 14424-1296
Rochester, NY 14620-4686 Phone: (585) 396-4060
Phone: (716) 274-6000 Toll-free: (877) 814-6907
Montgomery County DSS Orange County DSS

County Office Building 11 Quarry Road, Box Z
P.O. Box 745 Goshen, NY 10924-0678
Fonda, NY 12068 Phone: (914) 291-4000
Phone: (518) 853-4646
Orleans County DSS
Nassau County DSS 14016 Route 31 West
101 County Seat Drive Albion, NY 14411-9365
Mineola, NY 11501 Phone: (716) 589-7000
Phone: (516) 571-4444
Oswego County DSS
New York City DSS 100 Spring Street
250 Church Street, Room 1500 Mexico, NY 13114
Phone: (315) 963-5000
Otsego County DSS Steuben County DSS
County Office Building 3 East Pulteney Square
197 Main Street Bath, NY 14810
Cooperstown, NY 13326-1196 Phone: (607) 776-7611
Phone: (607) 547-4355
Suffolk County DSS
Putnam County DSS 3085 Veterans Memorial Highway
110 Old Route Six Center, Building #2 Ronkonkama, NY 11779
Carmel, NY 10512-2110 Phone: (631) 854-9700
Phone: (845) 225-7040
Sullivan County DSS
Rensselaer County DSS 16 Community Lane
133 Bloomingrove Drive P.O. Box 231
Troy, NY 12180-8403 Liberty, NY 12754
Phone: (518) 283-2000 Phone: (845) 292-0100
Rockland County DSS Tioga County DSS

Building L, Sanatorium Road P.O. Box 240
Pomona, NY 10970 Owego, NY 13827
Phone: (845) 364-3100 Phone: (607) 687-8300
St. Lawrence County DSS Tompkins County DSS

Harold B. Smith County Office Building 320 West State Street
6 Judson Street Ithaca, NY. 14850
Canton, NY 13617-1197 Phone: (607) 274-5252
Phone: (315) 379-2111
Ulster County DSS
Saratoga County DSS 1061 Development Court
152 West High Street Kingston, NY 12401-1959
Ballston Spa, NY 12020 Phone: (845) 334-5000
Phone: (518) 884-4140
Warren County DSS
Schenectady County DSS Warren Co. Municipal Center
487 Nott Street 1340 State Route 9
Schenectady, NY 12308 Lake George, NY 12845-9803
Phone: (518) 388-4470 Phone: (518) 761-6300
Schoharie County DSS Washington County DSS

P.O. Box 687 Municipal Building
Schoharie, NY 12157 383 Broadway
Phone: (518) 295-8334 Fort Edward, NY 12828
Phone: (518) 746-2300
Schuyler County DSS
County Office Building Wayne County DSS
105 Ninth Street 77 Water Street
Watkins Glen, NY 14891 P.O. Box 10
Phone: (607) 535-8303 Lyons, NY 14489-0010
Phone: (315) 946-4881
Seneca County DSS
1 DiPronio Drive
P.O. Box 690
Waterloo, NY 13165-0690
Phone: (315) 539-1800
Westchester County DSS
County Office Building #2
112 East Post Road
White Plains, NY 10601-5113
Phone: (914) 995-5000
Wyoming County DSS

466 North Main Street
Warsaw, NY 14569-1080
Phone: (716) 786-8900
Yates County DSS

417 Liberty Street, Suite 2122
Penn Yan, NY 14527-1118
Phone: (315) 536-5183
Manual
Chapter 34:
Temporary Release Programs

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 34
TEMPORARY RELEASE PROGRAMS*

A. Introduction
If you are a New York State prisoner, this Chapter will help you understand various
temporary release programs for which you might be eligible. In general, this Chapter tells
you about the different types of temporary release programs in New York State, summarizes
the application procedures you must follow, and explains what rights you have regarding
temporary release programs. Part B explains the temporary release programs available. Part
C addresses eligibility requirements. Part D discusses how to apply for temporary release
programs. Part E concerns what you must do if your temporary release request is either
denied or revoked. Finally, Part F describes the features of state and federal temporary
release programs that the Second Chance Act of 2007 modified. Previous editions of the JLM
had a special Chapter for New York City temporary release programs, but as of January 1,
1995, New York City stopped all of its temporary release programs. Therefore, this Chapter
deals only with New York State provisions.
New York State temporary release programs allow prisoners to leave the prison for short
periods of time before they are paroled or serve their full sentence. There are several
programs, each organized for a specific purpose, and there are separate rules to qualify for
each program. The laws authorizing the State Department of Correctional Services to
establish release programs can be found in the New York Correction Law (N.Y. Correct. Law)
Sections 851 to 861 and 870 to 879. Regulations establishing the specific programs can be
found in the Official Compilation of Codes, Rules and Regulations of the State of New York
(N.Y. Comp. Codes R. & Regs.), title 7, Chapter IV (part 200) and Chapter XII (parts 1900–
04).
The superintendent of each New York State correctional institution and a Temporary
Release Committee (“TRC”) administer the day-to-day operations of the various programs.
The TRC is composed of a chairperson and two staff members, representing the parole,
program services, and security departments. The superintendent nominates the TRC
members and three alternates, and the Commissioner of Corrections approves them. The
TRC must meet at least once a week to consider temporary release applications.
B. Overview of Temporary Release Programs
First, you should know that not all facilities have temporary release programs. Those
facilities that do offer temporary release may not have every type of program. You should ask
at your facility to see what programs it offers. As will be explained in detail later, you may be
transferred to another facility in order to take part in a temporary release program.1
There are both short-term release programs and continuous temporary release programs.
The short-term programs allow prisoners to leave the facility for only a specified period of
time (often for seven days or less) and only for certain narrow purposes. The continuous
temporary release programs allow prisoners to leave the facility for up to fourteen hours per
day until the purpose of the program has been fulfilled.
You should also be aware that getting into these programs is hard, depending on which
program you are interested in and your particular history. Over the past ten years, the
* This Chapter was written by Anna Moody based in part on a previous version by Judith M.
Shampanier. Special thanks to Bill Gibney of The Legal Society of New York City, Special Litigation
Unit for reviewing this Chapter.
percentage of applicants accepted into all of the temporary release programs in the state has
dropped from about twenty-five to under ten percent. 2 Furthermore, the total number of
participants in these programs has dropped every year since 1995, when there were 23,951
prisoners participating in these programs.3 In 2007, the number was just 2,515.4
1. Short-Term Temporary Release Programs
There are three types of short-term temporary release programs: (a) leaves of absence, (b)
community service programs, and (c) furloughs. Participation in a community service
program may be short-term or continuous.
(a) Leaves of Absence
Leaves of absence are different from other release programs because you do not need to
be within two years of being eligible for release on parole in order to qualify. A leave of
absence, according to Section 851.6 of the N.Y. Correction Law, is a privilege granted to you
to leave the facility for a certain period of time for one of three specific purposes:
(1) If death appears to be imminent, you may leave to visit your spouse, child, brother,
sister, grandchild, parent (natural or legally adoptive), grandparent, or ancestral
aunt or uncle during their last illness;
(2) To attend a funeral of such individual; or
(3) To undergo surgery or to receive medical or dental treatment not available at the
facility, but only if it is absolutely necessary to your health and well-being.
For the third type of leave of absence, the Commissioner or his or her representative
must approve the leave. 5 This approval depends on your criminal history and your
institutional behavior, which is reflected in a point system that the Department of
Correctional Services uses to determine your eligibility for programs. The point system is
discussed in detail in Part D(2)(a) below. You will need thirty points to participate in a short-
term program and thirty-two to participate in a continuous program. Having the necessary
number of points does not guarantee that you will be allowed to participate, but it is
necessary for you to be considered. Leaves of absence are available at all facilities in the
state except shock incarceration facilities.6 On the other hand, it is important to be aware
that leaves are fairly rare, mostly because very few prisoners apply for them. In 2007, fifteen
leaves were granted out of thirty-two applications.7
One deathbed visit may be granted for each terminally ill relative. If you have already
had one escorted visit, you will not get another visit to the same person. The facility will
verify the facts of your case, and in doing so, may contact the patient’s doctor or funeral home
director. Once the TRC is sure you have a relative who is ill or deceased, it will make a
decision. If it approves your leave, the superintendent must also do so in order for you to get
the leave of absence. You will be granted only the minimum length of time necessary to
2. Brian S. Fischer, Department of Correctional Services, Temporary Release Program: 2006

Annual Report 14 (2006).
Annual Report 6
(2006).
accomplish the purpose of the leave. Out-of-state leaves of absence will be granted only with
the Commissioner’s approval.8
If you have applied for a medical or dental leave, you must be willing to get such
treatment nearby and from a doctor selected by the institution. You must get TRC Form
4188 filled out and signed by the facility Health Services Director.9 All medical or dental
leaves of more than one day in duration, even when the prisoner is not a Central Review case
(see Part D(2)(c) of this Chapter for an explanation of Central Review), require approval from
the Director of Temporary Release Programs.
(b) Community Services Program
Under the community services program, eligible prisoners may be granted the privilege
of leaving the facility for up to fourteen hours on any day in order to volunteer at nonprofit
organizations or public agencies (for example, hospitals or charities). These organizations
must have an established volunteer program with a definite job description outlining the
duties and responsibilities of a volunteer. You may not fill a position ordinarily taken by a
paid worker. Participants in a volunteer work program will receive an allowance from the
facility’s Temporary Release Program appropriations. 10 You may also be allowed to
participate in religious services and athletic or cultural events if they are not available at
your facility.11
(c) Furloughs
A furlough program allows eligible prisoners to leave an institution for up to seven days
in order to:
(1) Solve family problems or maintain family ties;
(2) Attend a short educational course;
(3) Look for a job; or
(4) Seek post-release housing.12
Thus, if you can convince the TRC of your need to see your family (for example, because
you have children, or because your parents are going through a divorce), you may be allowed
to take a furlough only for the narrow purpose of seeing your family. You may not take an
out-of-state furlough.13
Furloughs are available at all facilities throughout the state except for shock
incarceration locations.14 Be aware, though, that furloughs are rarely granted and ninety-
eight percent of applications are rejected.15 In 2007, there were 105 applications for furlough,
out of which just two were granted.16
General confinement prisoners who have been accepted for previous furloughs may apply
subject to these limitations:
(1) You cannot take more than twenty-eight days in any furlough year;
8. N.Y. Comp. Codes R. & Regs. tit. 7, § 1901.1(a)(1)(i)(e) (1995).

9. N.Y. Comp. Codes R. & Regs. tit. 7, § 1901.1(a)(2)(v)(a) (2001).
10. N.Y. Comp. Codes R. & Regs. tit. 7, § 1901.1(b)(1)–(3) (2001).
12. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.3(c)(v) (2001).
(2) You cannot take more than fourteen days in the first six months of any furlough year;
and
(3) You cannot take more than seven days in any twenty-eight day period.
(4) A furlough year begins on the day you take your first furlough and ends 365 days
later.
(5) No furlough can be longer than seven days.
If you apply and do not fit into this timing, the TRC may defer your application.17 Please
note that if you want to take a furlough during a holiday season, you must submit your
application at a time determined by the Director of Temporary Release at your facility.18
(i) Family-Tie Furlough
If you are applying for a family-tie furlough, you must go to an approved residence. This
must be the home of a relative by blood or legal adoption, a verifiable guardian, or a spouse.
If your family lives out-of-state, you may request that the TRC and Central Office approve a
different in-state location.19 That is, you will still be allowed to meet with your family to
maintain family ties even if your family resides out-of-state, but the meeting must take place
in the state in which you are incarcerated and at an approved residence.
(ii) Job-Search and Post-Release Housing Furloughs
The job-search furlough and the post-release housing furlough are available to prisoners
preparing for release from prison. There is no pre-approved residence requirement for a one-
day furlough, although for a longer furlough you must meet the same residence requirements
(home of a relative by blood or legal adoption) as for the family-tie furlough.20
(iii) Short Educational/Vocational Training Course Furlough
The short educational/vocational training course furlough program serves one of two
purposes:
(1) One-day rehabilitation therapy in order to provide the prisoner with counseling and
therapy for problems such as drug, alcohol, or gambling addictions; or
(2) An educational furlough in order to take an entrance exam or attend an educational
conference, short course, or seminar.
This program can be for one day or for an extended period of time. Educational furloughs
require Central Office approval.21
All furlough approvals will be continuous unless the decision says that the furlough is for
a specific period of time. After the first furlough, later requests will be scheduled by the
superintendent as long as the TRC says that you are still qualified. If you are only approved
for a furlough, though, you are not approved for any other temporary release program.22
If you have a pending transfer to a work release or educational release program facility,
you will be eligible for furlough from the transferring facility after Central Office approval.
Remember that furlough approval, like approval for other temporary release programs, is
entirely discretionary. If the Commissioner of Corrections approves you for a work or
educational furlough, the superintendent of the prison facility can postpone the furlough in
the interest of “the efficient and orderly operation of the transferring facility.”23

19. N.Y. Comp. Codes R. & Regs. tit. 7, § 1901.1(c)(2)(i)(a)–(b) (2001).
20. N.Y. Comp. Codes R. & Regs. tit. 7, § 1901.1(c)(2)(ii)–(iii) (2001).
21. N.Y. Comp. Codes R. & Regs. tit. 7, § 1901.1(c)(2)(iv)(2) (2001).
22. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 1901.1(d)(1), (9) (2001).
23. N.Y. Comp. Codes R. & Regs. tit. 7, § 1901.1(d)(7)–(8) (2001). See Part D(2)(c) of this Chapter
2. Short-Term Temporary Release Procedures
As soon as you are approved for participation in a short-term temporary release program,
you will be notified so that you may make the arrangements necessary to complete the
program. If the TRC feels that there is not enough information about your requested
residence, the individuals with whom you will be staying, or any other part of your case, it
will investigate the problem. If the result of the investigation is negative, you may be denied
that residence.24
You will usually be allowed to bring no more than $100 over and above your
transportation costs on a short-term release. If you cannot afford transportation, your release
may be postponed until you have the money. If you are leaving the facility on short-term
release, you must cover all expenses of the trip. In exceptional cases, however, the facility
may grant you an advance in order to cover the costs of the trip.25
You will receive a photo identification card to carry for the duration of your temporary
release. This card must be with you at all times when you are out of the facility.26 You will
also be required to sign a “Memorandum of Agreement” before you leave, which lists the
rules and regulations that you must follow while on temporary release, as well as any special
conditions that apply specifically to you.27 You will not be allowed to return to the facility
with any item that you did not take out with you.28 The law requires that you be supervised
by a parole officer during your short-term temporary release.29
3. Continuous Temporary Release Programs
There are four different types of continuous temporary release programs. These releases
allow eligible and approved prisoners to leave prison grounds for up to fourteen hours a day
on a continuous basis. They are granted to let prisoners work, volunteer for community
service, get educational or vocational training, or participate in an industrial training leave
program. If the Central Office approves you for any long-term temporary release program,
that approval also implies that you are approved for all other temporary release programs at
the discretion of the TRC and the facility superintendent. There are no out-of-state
continuous release programs. 30 As stated before, not every institution offers each release
program. Where programs are offered, the number of available spots may be limited. You
will need to check this at your facility.
(a) Work Release
The work release program allows an eligible prisoner to leave a facility for up to fourteen
hours in any one day to work, get on-the-job training, or do any activity that will make
employment possible, like shopping for work clothes. One of the purposes of work release is
to make it possible for you to accumulate savings prior to your release on parole, in the hope
that this will make your return to the community easier.
Prisoners are expected to secure their own employment, which most are able to do fairly
quickly. Prisoners at the Rochester Correctional Facility, for example, have secured positions
over the years with hundreds of different employers in the area, including Xerox, Kodak, the
for more information.

26. N.Y. Comp. Codes R. & Regs. tit. 7, § 1901.2(a)(7)(i) (2001).
27. For a copy of a typical Memorandum of Agreement, see N.Y. Comp. Codes R. & Regs. tit. 7,
§ 1902.1 (2002).
28. N.Y. Comp. Codes R. & Regs. tit. 7, § 1901.2(a)(7)(ii) (2001).
29. N.Y. Comp. Codes R. & Regs. tit. 7, § 1901.2(b)(2)(i) (2001).
University of Rochester, and Strong Memorial Hospital.31 In addition to their full working
schedules, those prisoners are responsible for cleaning their rooms and the facility’s
communal areas. Dinner is provided every night at the Rochester facility, but those
prisoners prepare their own breakfasts and lunches, and do their own laundry.
Work release is by far the most popular temporary release program, both in the number
of applications and in the number of prisoners who are approved. Work release figures from
2007 show 33,400 applications were received, and only around 2,300 prisoners ended up
being able to participate.32 To participate in this program, you must be physically, mentally,
and emotionally capable of seeking and maintaining steady employment, and satisfying the
other temporary release eligibility requirements outlined below in Part C.33
(b) Educational Leave
The educational leave program allows a prisoner to leave a facility for up to fourteen
hours in any day to attend school or vocational training. Before you can apply for an
academic college release program in New York City, Long Island, Westchester, Rockland,
Suffolk, or Nassau Counties, you must have completed six semester hours of college level
study with a passing grade and have applied to a college within commuting distance of a
participating facility. However, to participate in an educational release program from an
upstate correctional facility or in a vocational training program upstate or in the New York
metropolitan area, you do not have to complete six credit hours of college level study. For
either program, you must submit your temporary release application to the facility TRC by
July for the fall semester, November for the spring semester, and April for the summer
semester.
Educational leave is one of the most rare temporary release programs. In 2006, for
example, only eighteen prisoners applied, and not a single prisoner was approved.34 This
should not discourage you from applying if you are qualified, but you should at least be
aware that it may be difficult to get.
If you are approved to participate in an educational release program and are transferred
to a correctional facility in New York City in order to take part in such a program, but your
application for admission is rejected by the college, you will be considered approved for the
work release program as long as you are physically capable of maintaining employment.35
(c) Community Services Program
As described in Part B(1)(b) above, the community services program allows prisoners to
leave the facility for up to fourteen hours a day in order to participate in religious services,
athletic events, volunteer work, or cultural events not offered at the facility. An example of
the volunteer work that is available is the work done by prisoners in Syracuse. They
commute to the fairgrounds there and work with the staff to maintain the grounds and
repair the buildings.36 The advantage of participating in the continuous community services
program is that once accepted, you will not have to reapply in order to get released. That is,
so long as your disciplinary record remains the same, you will be able to leave your facility
31 . Rochester: First Among Work Release Centers, available at

http://www.geocities.com/MotorCity/Downs/3548/facility/rochester.html (last visited Oct. 4, 2008).
for up to fourteen hours a day, week after week. The short-term program has fewer benefits
(for example, you can only leave the facility for a maximum of seven days at a time before
reapplying for temporary release privileges), but, as discussed in Part C below, it has less
stringent requirements.37 The reality is, however, that the short-term version of this program
is almost never used; 2006 and 2007 statistics show that not a single prisoner applied for it,
although over five hundred prisoners did apply for the continuous version for the same time
period. About a quarter of those applicants were approved.38
(d) Industrial Training Leave
This program allows an eligible prisoner to leave the facility for up to fourteen hours in
any day to participate in an industrial training program. An industrial training program
assigns a prisoner to the supervision of a federal, state, county, or local government
employee, who is not a corrections officer, and allows the prisoner to assist that employee in
performing his job assignment.39 To qualify for this program, you must have either a high
school diploma or a GED.40
Currently the only locations with industrial training programs are the Hudson and
Wyoming Correctional Facilities.41 The prisoners participating in this program work at the
DOCS warehouses located in Menands.42 Prisoners accepted into this program will work and
learn how to take inventory, complete bills of loading, operate forklifts, and repair furniture;
others will work in the office learning business procedures.43 This allows the prisoners to
both develop good work habits and to acquire job skills and familiarity with the distribution
industry that can be a great help after release from prison.44
4. Continuous Temporary Release Procedures
In order to qualify for a continuous temporary release, you must first apply and be
approved at the facility level. If you are approved, you may be transferred to a different
correctional facility that has the temporary release program for which you applied. When you
arrive at the new facility, you will be interviewed by a corrections counselor and a temporary
release parole officer. You will participate in an orientation program that will introduce you
to the facility and to the program.45
If you have no money when you arrive at the program facility, prison administrators may
give you an advance. You can use the advance to cover the costs of your job search, tuition or
related expenses, transportation costs for a weekend furlough, or an emergency leave of
absence. You must repay the advance as soon as possible. Prisoners in a work release
program will earn money. All other prisoners may receive an incentive allowance, or the

Annual Report 17 (2006); Brian S. Fischer, Department of Correctional Services, Temporary Release
Program: 2007 Annual Report 17 (2007).
40. New York State Department of Correctional Services, Industrial Training Program, available
at http://www.docs.state.ny.us/ProgramServices/industries.html#indu (last visited Oct. 12, 2008).
at http://www.docs.state.ny.us/ProgramServices/industries.html#indu (last visited Oct. 4, 2008); see
also Corcraft Products, available at http://www.corcraft.org/ (last visited Oct. 4, 2008).
at http://www.docs.state.ny.us/ProgramServices/industries.html#indu (last visited Oct. 4, 2008).
45. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 1903.2(a), (b)(2) (2001).
equivalent, provided they satisfactorily perform their institutional duties. All money coming
into your control while you are in a continuous temporary release program must be turned
over to the facility processing officer to be deposited into your account. If you are in a work or
educational release program, you must pay for all expenses related to participation in that
program. If you do not have money or other educational funds (like a scholarship), you will
not be allowed to enroll in college.46
Just as with short-term temporary release programs, you must have a photo
identification card and a signed “Memorandum of Agreement.” The identification card must
be carried with you at all times.47
There are many restrictions on the types of jobs that you may take. If you are accepted
into a work release program, the facility will help you determine what employment you may
accept. If necessary, you may be granted an eight-hour, non-continuous job search furlough.
If you have not found employment within six weeks after orientation and the TRC decides
you are unwilling or unable to secure a job, you may be removed from the program.48
5. Family Reunion Program
If you do not qualify for either the leave of absence for funeral/deathbed visits, or the
furlough family-ties programs, you may still have another chance to visit with your family.
The Family Reunion Program allows selected prisoners and their families to meet privately
for an extended period of time.49 This program has nothing to do with the temporary release
program. Rather, it is part of visitation and is only available to those prisoners who are not
eligible for the temporary release program. Any prisoner may apply if his facility offers the
program.50 Twenty locations currently fall into this category: Attica, Auburn, Bedford Hills,
Clinton, Collins, Eastern, Elmira, Fishkill, Great Meadow, Green Haven, Shawangunk, Sing
Sing, Sullivan, Taconic (at Bedford Hills), Wallkill, Wende, Woodbourne (at Sullivan),
Downstate Cadre (at Fishkill and Green Haven), Southport Cadre (at Elmira), and Ulster
Cadre (at Eastern).51
The rules state that to be eligible, the prisoner:
(1) Must have been in the department’s custody for at least ninety days and be a
resident for at least thirty days of a facility that offers the program;52 and
(2) Must have shown a pattern of good institutional adjustment and have not recently
had any major disciplinary problems, nor an extended history of disciplinary
problems.53
The prisoner must also maintain satisfactory behavior throughout the application
process and the visit.54 Further, a prisoner is not eligible for the Family Reunion Program if
he:
(1) Is eligible for the Temporary Release Program, unless the prisoner’s application for
temporary release has been denied;
(2) Has a higher security designation than permitted at the program site;
(3) Is assigned to a special housing unit for disciplinary reasons; or
(4) Has violated the Family Reunion Program rules within the past ninety days.55
46. N.Y. Comp. Codes R. & Regs. tit. 7, § 1903.2(f)(ii) (2001).

48. N.Y. Comp. Codes R. & Regs. tit. 7, § 1903.2(d)(2)(vi) (2001).
48. New York State Department of Correctional Services, Family Reunion Program, available at
http://www.docs.state.ny.us/ProgramServices/ministerial.html#frp (last visited Oct. 12, 2008).
Applicants who have violated Family Reunion Program rules in the past must be
approved and reviewed by the Central Office.56 For more information about which family
members may participate in the program, the procedures for applying, and the instructions
for conducting the visit, please see N.Y. Comp. Codes R. & Regs. title 7, Section 220.
C. Eligibility Requirements for Temporary Release Programs
If you were ever convicted of any of the following offenses, you are ineligible for
temporary release:
(1) Escape—first, second, and third degree;
(2) Absconding—first and second degree; and
(3) Absconding from furlough or from a community treatment facility.57
If you are currently serving a sentence for one of these crimes, you are ineligible for
temporary release:
(1) Criminally negligent homicide;
(2) Vehicular manslaughter—first and second degree;
(3) Manslaughter—first and second degree;
(4) Aggravated manslaughter—first and second degree;
(5) Murder—first and second degree;
(6) Aggravated murder;
(7) Abortion—first and second degree;
(8) Self-abortion—first and second degree;
(9) Issuing abortional articles;
(10) Sexual misconduct;
(11) Rape—first, second, and third degree;
(12) Criminal sexual act—first and second degree;
(13) Forcible touching;
(14) Persistent sexual abuse;
(15) Sexual abuse—first, second, and third degree;
(16) Aggravated sexual abuse— first, second, third, and fourth degree;
(17) Course of sexual conduct against a child—first and second degree;
(18) Female genital mutilation;
(19) Facilitating a sex offense with a controlled substance;
(20) Sexually motivated felony;
(21) Predatory sexual assault—also against a child;
(22) Aggravated harassment of an employee by an inmate;
(23) Incest—first, second, and third degree;
(24) Use of a child in a sexual performance;
(25) Promoting an obscene sexual performance by a child;
(26) Promoting a sexual performance by a child;
(27) Soliciting or providing support for an act of terrorism—first and second degree;
(28) Making a terrorism threat;
(29) Crime of terrorism
(30) Hindering prosecution of terrorism—first and second degree;
(31) Criminal possession of a chemical weapon or biological weapon—first, second,
and third degree;
(32) Criminal use of a chemical weapon or biological weapon—first, second, and third
degree58

57. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(c)(2)(i) (2001). Absconding refers to failing to
report to or moving without informing your Parole Officer.
In addition, if your conviction was for a crime that involved either the use or threatened
use of a deadly weapon or a dangerous instrument, or the crime involved the infliction of
serious physical injury, you will not be eligible for temporary release.59
You are eligible to participate in temporary release programs (short-term or continuous)
only if you are within twenty-four months of your next scheduled appearance before the
parole board.60 If you have been held by the parole board, you must be within twenty-four
months of your parole date (except for leaves of absence). 61 If you are serving an
indeterminate sentence, you will be considered eligible for temporary release if you have
served the minimum period of imprisonment set by either the court or the parole board.62
You will not be eligible for a temporary release program if:
(1) You have an outstanding warrant;63
(2) You are subject to concurrent or consecutive commitment to a local, state, out-of-
state, or federal jurisdiction;64
(3) You have an outstanding charge;65
(4) You are the subject of a Bureau of Immigration and Customs Enforcement (ICE)66
deportation proceeding;67
(5) You were eligible for the shock incarceration program and either chose not to
participate or failed to complete it;68 or
(6) In the eight weeks prior to your application, you committed a serious disciplinary
infraction.69

59. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(c)(1)(ii) has been amended in conformity with
Executive Order 5.1, which was issued by Governor Pataki in December 1995. As this has already been
challenged in the N.Y. Court of Appeals in Dorst v. Pataki, 90 N.Y.2d 696, 699, 687 N.E.2d 1348, 1349,
665 N.Y.S.2d 65, 66 (1997), and upheld, no further challenges to it are expected.
60. N.Y. Correct. Law § 851(2) (McKinney Supp. 2003).
61. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(c)(1)(i) (2001).
62. N.Y. Correct. Law § 851(2) (McKinney Supp. 2003).
63. If you have one of the following warrants, from any jurisdiction, you will be ineligible: (1)
family court warrant (except alimony, child support, or paternity); (2) out-of-state or federal criminal
detainer; (3) felony arrest warrant for a crime which is not barred by the statute of limitations, as
provided by N.Y. Crim. Proc. Law, § 30.10; (4) misdemeanor arrest warrant for a crime committed on or
after your current conviction, and which is not barred by the statute of limitations, as provided by N.Y.
Crim. Proc. Law, § 30.10; (5) bench warrant; (6) probation violation warrant, in or out-of state, or out-
of-state parole warrant; (7) immigration warrant; (8) military warrant; (9) securing order; or (10) if
there is an indication of an active warrant, and the warrant has not been filed at the facility, the
interviewer must contact the issuing agency to determine the status of the warrant. If no response is
received within 30 days, the warrant will be considered inactive, and the prisoner will not be barred
from temporary release. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(c)(7)(i)(2001).
64. But, you will be eligible if the sentencing court has indicated in writing that there is no
objection to your participating in a temporary release program. N.Y. Comp. Codes R. & Regs. tit. 7,
§§ 1900.4(c)(7)(ii)(a)–(b) (2001).
65. Your interviewer must write to the appropriate court to make sure that the charge is still
outstanding. If the court does not reply within 30 days, it will be assumed that the charge is no longer
outstanding. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(c)(7)(iii)(c) (2001).
66. ICE is the agency formerly known as INS. See the JLM Supplement on Immigration and
Consular Access for more information on immigration agencies.
67 . You will be ineligible for temporary release consideration if ICE indicates (1) that
deportation proceedings are underway; (2) a show cause order for deportation has been issued; and (3)
there is an actual ICE warrant on file. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(c)(7)(iii)(d)(3)
(2001). Your prison facility must write to ICE asking it about your alien status. If ICE does not respond
within 30 days, your facility will assume that ICE does not intend to deport you. N.Y. Comp. Codes R.
& Regs. tit. 7, § 1900.4(c)(7)(iii)(d)(2) (2001).
69. Serious disciplinary infractions include all those that result in loss of good-time credit,
Repeat parole violators (“RPVs”) must serve at least six months after their most recent
return before they can apply for temporary release.70
Each prisoner receives a certain number of points depending on his criminal history and
institutional behavior. You must meet the minimum number of points required for any
program in which you want to participate. The scoring system will be explained in Part
D(2)(a). You will not have to worry about how many points you have if you have been
convicted as a youthful offender. Youthful offenders will be treated as if they have scored the
necessary number of points that each program requires. If you are a youthful offender, you
will simply appear before the TRC, which will then make the decision.71
Because temporary release is a privilege, you should be aware that approval to
participate in any program is conditional until participation actually begins. Approval is
contingent upon your continuing good behavior from the time conditional approval is granted
until the time you begin the period of temporary release. Conditional approval will be
revoked if:
(1) Following the conditional approval, you are found guilty at a disciplinary or
superintendent’s hearing;
(2) There is a deterioration in your program participation; or
(3) If the TRC receives new, significant, negative information about you.
If your conditional approval has been revoked, you may re-apply immediately unless you
have had a recent serious disciplinary infraction (been confined in a special housing unit
(“SHU”), confined in keeplock for longer than thirty days, or had any loss of good time). In
that case, you may not reapply for eight weeks. If your eligibility for temporary release
changes, your new application will be processed as if it were the first one you had
submitted.72
If you are approved for a continuous temporary release program, you are also approved
for all other temporary release programs at the discretion of the TRC and facility
superintendent. This means that if you have been approved for any continuous program
(such as a continuous educational release program), and you wish to do a different program,
you may do so as long as the TRC and the superintendent agree. There is no formal
procedure to change programs once you have been approved for one continuous release
program.73
D. How to Apply for Temporary Release Programs
1. Application Procedures
To participate in a temporary release program, ask your counselor or parole officer for
information about the types of programs your facility offers and for a form called the
“Notification to the TRC.” When you complete this form, you must indicate the type of
program for which you are applying and explain your reasons for applying. (If you are
physically unable to submit your application, the facility health services director or other
staff person may submit the application for you.)74 You should be as specific as possible in
explaining what type of release you are seeking, and why that particular program fits your
needs and qualifications. You should apply as far in advance as possible because the
application process takes a while.
confinement in the special housing unit (“SHU”), or confinement in keeplock for more than 30 days.
N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(c)(8) (2001).
70. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(c)(9)(iii) (2001).
Prisoners whose applications have been denied must wait at least eight weeks from the
date their application is turned down before they can re-apply for the same type of release.
The eight-week waiting period does not apply to leaves of absence.75
2. How the Department Handles Applications
(a) The Point System
Unless you are a youthful offender (in which case the point system does not apply),76 you
must have a certain number of points to qualify for a particular program, even after you have
met all the other requirements. The point system was developed to provide a standard way to
measure your willingness to comply with the rules of temporary release. The system rewards
good behavior in prison and in prison programs, but it is also based in part on your criminal
history and the crime for which you have been convicted. Still, if you have a good disciplinary
record in prison, or if you are granted a temporary release and abide by the rules, your
chances of getting a release in the future are better.
After you have filled out your application, it will go to an interviewer, who will score the
application. There are eleven items in point system scoring. Six are based on your criminal
history, and five are based on your behavior while in custody.77 At the end of Part D(2)(a) of
this Chapter is a chart that summarizes this point system and the points that may be
accrued or lost. You can use this chart to easily tally up your score, but it is important to
read through these more detailed explanations first as the chart does not include every
detail. Please pay special attention to the time periods applicable to each section, as some
items extend as far back as ten years while others only apply to things that have happened
in the last year.
The items in the point system scoring are as follows:
(i) Criminal History78
1. Previous Sentences
You will get one point (+1) if you have not been incarcerated as the result of a conviction
within the ten years before your current sentence began. You will get zero points (0) if in the
last ten years you have been incarcerated for only misdemeanor or youthful offender
convictions. You will lose one point (-1) if you have been incarcerated as the result of a felony
conviction within the last ten years. Sentences to time served are counted as incarceration
after adjudication.
2. Number of Felony Convictions
This item penalizes you for felony convictions either before or during your current
incarceration. If the sentence you are serving is your only felony conviction in the last ten
years, you will get two points (+2). If, during the last ten years, you were convicted of one
other felony, you will get zero points (0); if you have had, including the current conviction,
two or more felony convictions, you will lose two points (-2). If you received your first felony
conviction for an act committed during your current incarceration and have no other prior
felony convictions, you will get zero points (0). If you then get two or more felony convictions,
you will lose two points (-2).

78. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(e)(1) (2001).
3. Number of Misdemeanor Convictions
This item penalizes you for misdemeanor convictions either before or during your present
conviction. If you have not been convicted of a misdemeanor within the last ten years, you
will get one point (+1). If you have been convicted of three or fewer misdemeanors in the last
ten years, including the one you are serving time for now, you will get zero points (0). If you
have been convicted of four or more misdemeanors in the last ten years, including the one
you are serving time for now, you will lose one point (-1). If you received your first
misdemeanor conviction during the sentence you are serving, you will get zero points (0).
4. Outstanding Warrants
You will get two points (+2) if you have no outstanding warrants. You will get zero points
(0) if you have one or more outstanding criminal warrants. A criminal warrant does not
include alimony, child support, or a paternity warrant. If you can clearly show that the
outstanding warrant against you was cleared because of lack of evidence or mistaken
identity, then that warrant will not count against you.
5. Previous Arrests and Conviction or Revocation on
Parole or Probation
If within the last ten years you have never had parole or probation revoked because you
were rearrested, you absconded (failed to report or moved without telling your Parole
Officer), or you technically violated the program, you will get two points (+2). If you have had
parole or probation revoked one or more times, you will get zero points (0).
6. Nature of Prior, Current, and Subsequent Convictions
This category concerns the nature of the crimes that you have committed within the last
ten years. The more serious the crime, the more points you will lose. If the crime for which
you are incarcerated is not one listed below, you will get zero points (0). Note that the point
system treats attempted crimes the same as completed ones. If you have been convicted of
more than one of these crimes, you will be scored according to the most serious of them. If
you also were convicted as a youthful offender, that conviction will not be included in the
point score.
You will lose six points (-6) if you have been convicted of any of the following crimes
within the last ten years: murder, first or second degree; kidnapping, first or second degree;
rape, first, second, or third degree; sodomy, first, second, or third degree; sexual abuse, first
degree; incest; use of a child in sexual performance; or promoting a sexual performance by a
child (including an obscene sexual performance).
You will lose four points (-4) if you have been convicted of any of the following within the
last ten years: assault, first degree; manslaughter, first or second degree; arson, first or
second degree; burglary, first degree; robbery, first degree; sexual misconduct; sexual abuse,
second or third degree; or endangering the welfare of a child.
You will lose two points (-2) if in the last ten years you have been convicted of any of the
following: criminal trespass, first degree; robbery, second or third degree; criminally
negligent homicide; assault, second or third degree; possession of firearms and other
dangerous weapons; menacing; reckless endangerment, first degree; unlawful imprisonment;
coercion, first degree; riot, first degree; arson, third or fourth degree; vehicular assault; or
vehicular manslaughter.
If you have been convicted of more than one of these crimes during the last ten years,
then you will lose points only for the most serious one. Thus, if you have been convicted of
kidnapping (-6) and vehicular assault (-2), you will lose six points (-6).
(ii) Institutional Behavior79
Participation months are used to calculate your institutional behavior score. A
participation month is a thirty-day period of regular participation. Regular participation
requires at least one out of three segments of a day, five days per week, four weeks per
month. The three segments are morning, afternoon, and evening. The participation month
must be in either a program or a work assignment, supervised by a certified instructor or
teacher within the two years prior to applying for the release program. Prisoners in
involuntary protective custody (“IPC”) who have not had a chance to participate in programs
will get one point (+1) for every six months spent in IPC during the last two years.
1. Program Participation I
You can get a maximum of sixteen points (+16) under this category for participating in
programs and/or work assignments. You can earn up to two points (+2) for each three-month
period: one point (+1) for participating in a work assignment and one point (+1) for
participating in a program. If you have been in IPC and have not had an opportunity to
participate, you will be awarded one point (+1) for every six months in IPC during the two
years prior to your application.
2. Program Participation II80
You can get a maximum of one point (+1) under this category. You can get this extra
point by accumulating eight months of participation in a program or work assignment within
the period of twenty-five to thirty-six months prior to application. In other words, Program
Participation I provides points for programs and/or work assignments completed within the
two-year period before submission of your application, while Program Participation II
provides an extra point for any program completed during the year immediately prior to the
beginning of the Program Participation I period. Accordingly, you cannot earn the extra point
unless you have been incarcerated for more than twenty-four months.
3. Discipline I81
You can get a maximum of four points (+4) if you have had only a limited number of
disciplinary proceedings that impose a loss of privileges for fourteen days or more, or any
term of special housing or keeplock in a certain time period. Room and dorm restrictions are
equivalent to keeplock for the purposes of this calculation. If you have had no disciplinary
proceedings in the last three months before you apply for temporary release, you will get one
point (+1). You will get a second point if you have had one or no disciplinary proceedings in
the last six months. You will get a third point for having two or fewer proceedings over the
last nine months. You will get the full four points if you have had three or fewer proceedings
over the last twelve months.
4. Discipline II82
You will get another point (+1) if you have had three or fewer disciplinary proceedings of
the same type as above in the twelve to twenty-four months prior to application, as long as
you have been a prisoner for at least twenty-four months.
79. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(e)(2)(i) (2001).

80. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(e)(2)(ii) (2001).
81. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(e)(2)(iii) (2001).
82. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(e)(2)(iv) (2001).
5. Temporary Release Record83
This section only applies if you previously have been on temporary release. If you have
been convicted or arrested for a crime while on temporary release during the past year, you
will lose six points (-6). If you have been removed from work release or educational leave for
disciplinary reasons other than re-arrest within the last year, you will lose three points (-3).
You will lose three points (-3) if convicted or arrested while on temporary release within the
twelve to twenty-four months prior to application. You will lose two points (-2) if within the
last six months, you returned late or under the influence of drugs or alcohol, or violated any
temporary release program rules. However, if any of these violations took place over six
months ago, you will lose no points (0). You will gain two points (+2) if you have successfully
completed your last temporary release, if it was within the last year. You will get four points
(+4) if your two most recent releases in the past year were successful.
You will get zero points (0) if: none of the above applies to you; your last release was over
a year ago, or was an escorted or supervised group activity; or you have had your parole
revoked since your last successful participation in temporary release. Anyone found to be an
absconder (failed to report or moved without telling your Parole Officer) will be ineligible for
temporary release.
(iii) Total Score84
After each prisoner has been scored, twenty-six points (+26) are added to the score to
make sure the score is not negative.85 You need thirty points to participate in a short-term
temporary release program,86 and thirty-two points to participate in a continuous program.
So, while you could participate for one day in a community service program with a score of
thirty, a score of thirty-two lets you participate on a daily basis.87
However, just because you have scored at least thirty points does not mean that you
automatically get the release. Having sufficient points only means that you can meet with
the interviewer.88
(b) Point System Chart
As you go through this chart, write the points that apply to you in the right-hand column.
Remember to refer back to the previous sections if the short-hand explanations included here
are unclear. This chart is meant to streamline the process of calculating your own score
rather than replacing the in-depth explanations provided in Part D(2)(a)(iv) and Part
D(2)(a)(v) of this Chapter.
(i) Criminal History
Possible Your
Points Point
available subtotal
per each
category
Previous Sentences (last ten years only)
No prior incarceration due to conviction +1
Prior incarceration due to misdemeanor or youthful offense only 0
Incarcerated due to a felony conviction -1
83. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(e)(2)(v) (2001).

Number of Felony Convictions (last ten years only)
Current sentence is your only felony conviction +2
First felony conviction was for act committed during your current 0
incarceration
One previous felony conviction 0
Two or more felony convictions -2
Number of Misdemeanor Convictions (last ten years only)
No misdemeanor convictions +1
Three or fewer misdemeanor convictions, 0
counting your current sentence
First misdemeanor conviction was for an act committed during your current 0
incarceration
Four or more misdemeanor convictions -1
Outstanding Warrants
No outstanding warrants +2
One or more outstanding criminal warrants 0
Previous Arrests (last ten years only)
You have never had parole or probation revoked due to re-arrest, +2
absconding, or violation of program rules
You have had parole or probation revoked one or more times 0
Nature of Convictions (last ten years only; apply only the most severe)
Convicted of murder (1st or 2nd degree), kidnapping (1st or 2nd degree), rape -6
(1st, 2nd, or 3rd degree), sodomy (1st, 2nd, or 3rd degree), sexual abuse (1st
degree),
incest, use of a child in a sexual performance, or promoting a sexual
performance by a child (including an obscene sexual performance)
Convicted of assault (1st degree), manslaughter (1st or 2nd degree), arson (1st -4
or 2nd degree), burglary (1st degree), robbery (1st degree), sexual misconduct
or sexual abuse (2nd or 3rd degree), or endangering the welfare of a child
Convicted of criminal trespass (1st degree), robbery (2nd or 3rd degree), -2
criminally negligent homicide, assault (2nd or 3rd degree), possession of
firearms and other dangerous weapons, menacing, reckless endangerment
(1st degree), unlawful imprisonment, coercion (1st degree), riot (1st degree),
arson (3rd or 4th degree), vehicular assault, or vehicular manslaughter
WRITE YOUR TOTAL HERE FOR (i) Criminal History:
(ii) Institutional Behavior
Program Participation I (last two years only) Points Your
Available Points
Each three-month period of participation in a work assignment (max. of +8) +1
Each three-month period of participation in a program (max. of +8) +1
Each six months in IPC in which you have not had the chance to participate in +1
a program (max. of +4)
Program Participation II
Eight months of participation in a program or work assignment in the twenty- +1
five to thirty-six month period prior to application
Discipline I (max. of +4)
No disciplinary proceedings in the last three months +1
One or no disciplinary proceedings in the last six months +1
Two or fewer disciplinary proceedings in the last nine months +1
Three or fewer proceedings over the last twelve months +1
Discipline II
Three or fewer disciplinary proceedings in the twelve to twenty-four months +1
prior to application
Temporary Release Record
Convicted or arrested for crime while on temporary release during the last year -6
Convicted or arrested for a crime while on temporary release during the -3
twelve to twenty-four month period prior to application
Removed from work release or educational leave during the last year -3
for other disciplinary reasons
Returned late or under the influence or violated any other temporary release -2
rules within the last six months
Successfully completed your last temporary release within the last year +2
Successfully completed your last two temporary releases within the last year +4
None of the above apply 0
WRITE YOUR TOTAL HERE FOR (ii) Institutional Behavior:
Grand Total of (i) Criminal History and (ii) Institutional Behavior
Once you have added up the scores from both the Criminal History and Institutional
Behavior sections of the chart, add another twenty-six points (+26) to find your total score.
Remember that short-release programs require thirty points, and continuous programs
require a score of thirty-two, though no score alone guarantees that your application will be
successful.
(c) Department Procedures for Considering Your Application
After scoring the application, the interviewer will conduct a preliminary review.89 The
interviewer will verify the information in your application and determine if you are eligible
based on your point score, your crime, and any other factors that were discussed in Part C
above.90 After the interview, you will have two work days to challenge the information used
in the point score.91 Once any challenges have been resolved, the interviewer will refer the
scored application to the TRC chairperson.92 For further information on contesting scoring
information, see Part E of this Chapter on appeals.
The chairperson of the TRC will review your file and check to see if you have either low-
point status or are included in a special review category.93 If you are considered a low-point
prisoner, you may be considered for release by the TRC when one of the following conditions
applies:
(1) You have been given community preparation open date status by the parole board,
and central office approval has been obtained;
(2) You are a graduate of the shock incarceration program;
(3) You are a graduate of the CASAT annex program; or
(4) You are a first felony offender, who legally would have been eligible to get a sentence
of probation instead of the sentence of imprisonment that was actually imposed.94
You will be notified of your official point score, the range into which it falls, and when
you will appear before the TRC.95 If you are in either the regular consideration or low-point
range, the TRC will decide whether or not to approve your application.
If you receive a score of forty or more, you will automatically receive furlough approval as
long as:

90. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(b)–(c) (2001).
93. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(j) (2001).
94. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(j)(1)(i)–(iv) (2001).
95. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(k) (2001).
(1) You are not serving a sentence for a crime involving infliction of serious physical
injury upon another, a sex offense involving forcible compulsion, or any other offense
involving the use or threatened use of a deadly weapon;
(2) You are not designated as a CMC (central monitoring case);
(3) Yours is not a “low-O.D. case” (defined in Part D(2)(d) below); and
(4) You are not in a special review category (see Part D(2)(d) below).96
Once your application has gone to the TRC and has been reviewed, the TRC will schedule
a personal interview with you. After the committee members have met with you, they will
approve or deny your application. A decision to approve must be supported by at least two of
the three committee members. In making its decision, the TRC must look at your score on
the eleven items in the point system, your interview, and the other factors used to evaluate
prisoners, including recommendations of the professional staff. The committee can also take
into account aspects of your record that are not addressed by the point system, such as the
quality of your performance in programs or on work assignment. In addition, the TRC must
weigh what it sees as your ability to profit from participating in temporary release against
any risk to the community or program from your participation.97
All applications for temporary release submitted to the TRC will be forwarded to the
superintendent for review. Each application will be accompanied by either:
(1) A statement of reasons for its denial by the TRC, or
(2) A memo setting out the proposed temporary release program, stating the bounds of
confinement, and any other relevant information.
If the superintendent rejects the application or rejects the specific program that the TRC
approved, he or she must give reasons in writing. You will get a copy of the reasons, and
another copy will go to the Central Office for immediate review by the Commissioner. You
will not have to make any other appeals. The Commissioner will inform you whether he
accepts the superintendent’s decision.98 If you are denied, see Part E below for legal remedies
that may be available to you.
(d) Applications that Require Central Office Approval
There are a number of categories of prisoners whose applications for temporary release
must be reviewed and approved by the Central Office. 99 The first category that requires
special approval is the statutory review category, which includes prisoners serving time for:
(1) Possession, use, or threatened use of a weapon;
(2) A case resulting in prolonged physical injury, disability, or death of the victim; or
(3) A sexual offense involving force.
The second category of prisoners that requires special approval is “central monitoring
cases” (“CMCs”). Generally, central monitoring cases are prisoners convicted of sophisticated
or highly publicized criminal activity, whose release would pose special monitoring
problems.100 CMCs require approval of the Deputy Commissioner for correctional facilities.
Prisoners considered to have a “low-O.D.” must also have the Commissioner approve
their applications. Low-O.D. cases are those prisoners receiving the lowest point score
possible, but who have been given an O.D. or community preparation open date status by the
96. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(l)(1) (2001).

97. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(l) (2001).
98. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(m)(1) (2001).
99. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(n) (2001).
100. See Pugliese v. Nelson, 617 F.2d 916, 918–19 (2d Cir. 1980) (discussing central monitoring
cases); see also Abed v. Armstrong, 209 F.3d 63, 67 (2d Cir. 2000) (holding that the mere opportunity to
earn good time credit is not a protected liberty interest and upholding discretion of prison officials to
deny such opportunity to prisoners classified as safety threats due to prison gang membership).
parole board. If the parole board has given you O.D. status, you will have a better chance of
getting approval, even though your point score is the lowest possible.101
The fourth group of prisoners requiring Central Office approval is the Special Review
category. This includes prisoners who have
(1) Any convictions for arson;
(2) Any convictions for sex-related felonies;
(3) Any convictions for conspiracy, criminal facilitation, or criminal solicitation in a
statutory case;
(4) Three or more felonies;
(5) Any parole or temporary release violations;
(6) A history of mental instability;
(7) Any kidnapping convictions; or
(8) Victim(s) or bystander(s) who required medical attention as a result of the instant
offense.
If you fall into any of these categories, your chances of being granted temporary release
are much lower, since your entire application must be re-reviewed by the central office and
approved by both the Director of Temporary Release Programs and the Commissioner 102
(except for Special Review applications, which only need final approval from the Director of
Temporary Release).103 The more people who review your application, the less likely it is to
receive approval by all of them.
E. What to Do if Your Temporary Release Application Is Denied or Revoked
1. Denial of Temporary Release
(a) Appeals Within the Department
You can appeal your point score if the interviewer calculates your point score
inaccurately and disqualifies you on that basis, or if the information he or she uses is wrong.
You can also appeal the decision of the TRC or the decision of the Central Review Office. To
appeal your point score or the TRC’s decision, you must submit Form 4145 and any other
relevant information within ten working days of the date that the notice of denial of your
application is sent to the TRC chairperson. A completed appeal must be received by the
chairperson within thirty days of the denial. If your appeal application is made within the
thirty-day limit, the chairperson will send your appeal package to the Central Office,
including any information not available in Central Office files. The Central Office reviewer
will notify you and the TRC of his findings.104
If you think the disapproval by the Central Review Office was unfair or unreasonable,
you may appeal the decision by applying to the Director of the Central Office to review your
case. You should only do this when TRC accepted, but Central Office denied, your
application. All denials by the superintendent must be referred directly, as explained in Part
D(2)(b) above, to the Central Office for an automatic Commissioner review. You do not have
to do anything in this case.105
If the Deputy Commissioner or the Commissioner denies your application at any point in
the proceeding, your administrative remedies are exhausted. 106 If your case has been
designated a “central monitoring case” (“CMC”), you may only appeal by using existing
101. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 1900.4(j)(1)(i), (l)(1), (n)(3) (2001 & Supp. 2007).
102. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(n)(1-4) (2001).
103. N.Y. Comp. Codes R. & Regs. tit. 7, § 1900.4(n) (2001).
105. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 1900.6(a)(2), (b) (2001).
departmental policy. CMC appeals are not handled by Central Office temporary release
staff.107
You cannot re-apply for the same program until the appeals process on a prior
application is complete. You may withdraw a pending appeal at any time.108
(b) Other Forms of Review if Your Application Is Denied
If your application is denied, you can appeal to the courts under Article 78 of the New
York Civil Practice Law and Rules (“C.P.L.R.”). See JLM Chapter 22, “How to Challenge
Administrative Decisions Using Article 78 of the New York Civil Practice Law and Rules” for
guidance regarding how to appeal. However, New York courts have addressed this question
often and now apply a test that makes it difficult for a claim to be successful. In Grant v.
Temporary Release Committee, the court said that because participation in temporary release
programs is a privilege, the courts would only look at claims where the temporary release
committee either violated a statutory requirement (such as failing to give you an interview if
you have the right amount of points, or failing to inform you of the committee’s decision), or if
its decision was affected by “irrationality, bordering on impropriety.”109 Because the TRC has
such enormous discretionary power, it is very difficult to convince a court that its decision
was irrational and unfair. The TRC only has to say that it thinks you might pose a threat to
society, or that it does not think you will work hard, and the court will accept its findings.
You also do not have the right to challenge the legislature or executive’s decision to make you
ineligible for temporary release based upon the crime for which you were convicted, if you
have not yet participated in the program.110
However, it is possible to win, as seen in Lopez v. Coughlin.111 In that case, an HIV-
positive prisoner applied for work release. The TRC approved the application because the
facility doctor, who was familiar with the prisoner’s condition, said his medical condition
would not affect his ability to be in work release. The Central Office reversed and denied the
application solely on the basis of the prisoner’s condition. The Albany County Supreme Court
held that this was completely irrational since the doctor had already given his approval for
work release. The court said that the Central Office’s findings “were based on generalizations
and possibly inaccurate assumptions” and ordered the TRC to reevaluate its decision.112 In
Flaherty v. Coughlin, the prisoner alleged that he had been denied temporary release
privileges in retaliation for filing a class action suit. 113 His class action challenged a

109. Grant v. Temp. Release Comm., 209 A.D.2d 617, 617, 619 N.Y.S.2d 106, 106 (2d Dept. 1994)
(quoting Young v. Temporary Release Comm., 122 A.D.2d 606, 606, 505 N.Y.S.2d 279, 280 (4th Dept.
1986)).
110. Lee v. Governor of New York, 87 F.3d 55, 59–60 (2d Cir. 1996) (finding neither an interest
in participation in the temporary release programs for prisoners excluded based on their crime, nor an
equal protection or a retroactive punishment violation); see also Moore v. New York State Dep’t of Corr.
Servs., No. 01-0064, 2001 U.S. App. LEXIS 23192, at *2 (2d Cir. Oct. 23, 2001) (unpublished) (holding
that the nature of a prisoner’s crime and his failure to accept full responsibility for it were rational
bases for denying the prisoner’s participation in a family reunion program and that such denial did not
therefore violate due process).
111. Lopez v. Coughlin, 139 Misc. 2d 851, 529 N.Y.S.2d 247 (Sup. Ct. Albany County 1988); see
Dorst v. Pataki, 167 Misc. 2d 329, 337, 633 N.Y.S.2d 730, 735 (2d Cir. 2001) (holding that an executive
order flatly eliminating all felons from participation in temporary release programs was
unconstitutional, although upholding power of the executive to impose other limits on temporary
release participation), aff’d, 90 N.Y.2d 696, 699, 687 N.E.2d 1348, 1349, 665 N.Y.S.2d 65, 66 (1997); see
also Flaherty v. Coughlin, 713 F.2d 10, 14 (2d Cir. 1983).
112. Lopez v. Coughlin, 139 Misc. 2d 851, 854, 529 N.Y.S.2d 247, 249 (Sup. Ct. Albany County
1988).
113. Flaherty v. Coughlin, 713 F.2d 10, 11 (2d Cir. 1983).
statewide prison lockdown, and shortly after filing the suit, Flaherty applied for temporary
release privileges. The TRC accepted him, but the Commissioner of Corrections, whose
approval was legally required in 1983 (the time of the suit), reversed the TRC
recommendation. Flaherty alleged retaliation and asked for TRC and Commissioner office
documents. The district court dismissed his request, but the Second Circuit said that because
factual evidence existed that retaliation may have been a factor, the documents Flaherty
needed should be given to him so that he could prepare his case.114
2. Revocation of Temporary Release
(a) How Your Temporary Release Can Be Revoked
Your temporary release may be suspended or revoked by the superintendent or director
of your correctional institution upon recommendation of the TRC or the Commissioner of the
Department of Correctional Services.115 This suspension or revocation can be made at any
time if the Superintendent or Director has information that:
(1) Your continued participation in the program is not in the interest of community
safety and goes against your best interests; or
(2) There is a substantial likelihood that you cannot successfully complete the temporary
release program.116
Some factors that will be considered indicators that you are unsuited for temporary
release include
(1) Arrest and/or convictions for crimes committed while participating in the program;
(2) Absconding, or attempting to abscond, from the program;
(3) Violations of departmental, institutional, or temporary release program rules;
(4) Threats made by you against yourself or others;
(5) Threats made against you that require protective custody;
(6) Changes in your physical or mental status that resulted in your inability to
successfully complete the program;
(7) Poor attitude on your part as shown by a failure to participate successfully;
(8) Your lack of motivation;
(9) Significant change in employment or student status; and
(10) Failure to get a job six weeks after orientation in a work release program.117
Any employee of the Department of Correctional Services or Division of Parole, who is
assigned to the facility of your confinement and has firsthand knowledge of your
unsatisfactory or worsening progress in the temporary release program, can help remove you
from the program. The employee who thinks you are not doing well in your program may file
a written statement to the Chairperson of the facility’s TRC, requesting the Temporary
Release Committee to review your unsatisfactory or deteriorating adjustment to the
temporary release program. The TRC will then evaluate your progress.118 If you have not yet
been transferred from the temporary release facility because of disciplinary problems, you
will be allowed to appear before the TRC to explain your side of the story.119 The TRC will
then make a recommendation to the superintendent on whether you should continue in
temporary release. 120 The superintendent will then either approve or disagree with the
114. Flaherty v. Coughlin, 713 F.2d 10, 14 (2d Cir. 1983).

recommendation of the TRC. If the superintendent approves the recommendation of removal
from the program, your temporary release participation privilege is revoked.121
If your unsatisfactory progress appears to be caused by departmental, institutional, or
temporary release rule violations, these rule violations must be referred to either a
disciplinary or a superintendent’s hearing. If you do something to be considered a security
risk, you can be transferred to a more secure facility before the TRC has time to review the
complaint.122
If a temporary release participant is charged with misbehavior, the hearing disposition
cannot recommend removal from the temporary release program as a disciplinary penalty.
The TRC cannot use a report as a reason for recommending that you be removed from a
temporary release program unless you are found guilty at a disciplinary hearing.123
(b) How to Appeal a Revocation of Your Temporary Release
Once you have been granted the privilege of participating in temporary release, you have
a constitutionally protected interest in ensuring that your liberty is not deprived, and that
you are not re-incarcerated without fair procedures. That is, if you have not violated any
rules, and your temporary release is still revoked, you may be protected under the Due
Process Clause of the Fourteenth Amendment to the U.S. Constitution or the state laws
governing your confinement. Due process, under the Fourteenth Amendment, means that the
government must follow certain procedures—including giving you notice and an opportunity
to be heard—before it can take away your liberty earned through the temporary release
program. You can be removed from the program only if the facility’s temporary release
administrators follow the required procedures. Note, however, that the Supreme Court’s
decision in Sandin v. Conner makes it rather difficult for you to prove that your removal
from the program has caused you harm that is “atypical” of what you should expect as a
prisoner.124 The Second Circuit has held that removal from temporary release programs and
work release programs are liberty interests protected by the U.S. Constitution for New York
State prisoners.125
Unfortunately, the regulations governing temporary release leave much discretion to the
facility’s temporary release administrators. They will be able to make many decisions as they
see fit, as long as they are considered fair and impartial. You will only be entitled to the
minimum due process requirements if your temporary release is denied. The Dutchess
County Supreme Court stated in Roman v. Ternullo that correctional facility
superintendents were required to extend the procedural due process safeguards that the
Supreme Court outlined in Wolff v. McDonnell126 and that the New York Code spells out in
121. N.Y. Comp. Codes R. & Regs. tit. 7, § 1904.2(p) (2001).

122. For a list of factors that are considered security risks, see N.Y. Comp. Codes R. & Regs. tit.
7, § 1904.2(c) (2001).
124. Sandin v. Conner, 515 U.S. 472, 486–87, 115 S. Ct. 2293, 2301–02, 132 L. Ed. 2d 418, 431–
32 (1995) (holding that a prisoner is not deprived of a liberty interest when he is removed from the
general prison population and placed in segregated confinement for 30 days because discretionary
discipline by prison officials in response to misconduct falls within the expected boundaries of the
prisoner’s sentence).
125. See Anderson v. Recore, 446 F.3d 324, 328 (2d Cir. 2006) (holding that a prisoner has a
liberty interest in continuing his participation in his temporary release program); Friedl v. City of New
York, 210 F.3d 79, 84–85 (2d Cir. 2000) (holding that due process protections apply to the revocation of
work release participation); Gutierrez v. Joy, 502 F. Supp. 2d 352, 357 (S.D.N.Y. 2007) (affirming that
the Second Circuit recognizes that due process protects the liberty interest in continued participation in
temporary release programs).
126. Roman v. Ternullo, 81 Misc. 2d 1023, 1024–25, 367 N.Y.S.2d 197, 198 (Sup. Ct. Dutchess
County 1975); Wolff v. McDonnell, 418 U.S. 539, 563–66, 94 S. Ct. 2963, 2978–80, 41 L. Ed. 2d 935,
955–57 (1974); see also Marciano v. Goord, 38 A.D.3d 217, 218, 830 N.Y.S.2d 552, 553 (1st Dept. 2007)
detail. These requirements include a hearing presided over by an impartial observer, prior
notice of the hearing, help in preparing a defense, the right to preserve evidence, and a copy
of the decision made at the hearing.127 You are able to call witnesses and may be able to
cross-examine adverse witnesses. 128 The Second Circuit has applied the due process
requirements set out by the Supreme Court to release revocation hearings. 129 These
requirements include (1) written notice of the claimed violations of parole; (2) disclosure to
the parolee of evidence against him; (3) opportunity to be heard in person and to present
evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a "neutral and
detached" hearing body such as a traditional parole board; and (6) a written statement by the
factfinders as to the evidence relied on and reasons for revoking parole.130 However, you must
be able to prove that the wrong conclusion was reached in your TRC hearing and that the
procedure was incorrect.131
If you feel your rights have been violated in a revocation of temporary release, you can
file a lawsuit. In order to do this, you must base your complaint on a particular statute or law
that will give a judge power to hear how the prison authorities have treated you. There are
two different ways that you can do this.
The two ways to get a judge to hear your complaint about the revocation of your
temporary release are by using one of these statutes: (1) Article 78 of the New York Civil
Practice Law and Rules (called Article 78 of the C.P.L.R.) in New York courts, or (2) 42
U.S.C. § 1983 (called Section 1983) in either state or federal court. Both of these statutes will
be explained in further detail below.
(i) Article 78
If you think that prison officials used either improper procedures or obviously incorrect
information in deciding your case, you should bring a proceeding under Article 78 of the New
York Civil Practice Law and Rules. Bringing a state court action can have advantages over a
federal action because it is easier for a state court judge to order a state agency to correct its
actions than it is for a federal court judge to do the same. This is the most common and best
way to fight to get reinstated in a temporary release program. If you choose to proceed under
Article 78, however, money damages cannot be awarded. Something else to keep in mind is
that if you are going to file a pro se (on your own behalf) motion, proceedings under Article 78
will be much easier for you than the complicated federal court procedure needed for a Section
1983 claim. For more information on Article 78 proceedings, see JLM Chapter 22, “How to
(discussing a prisoner’s due process rights and the requirements for removal of a prisoner from a
temporary release program, including requirements of prior hearing, notice, and opportunity to be
heard); MacCowan v. Cummings, 99 Misc. 2d 914, 916–917, 417 N.Y.S.2d 366, 367–68 (Sup. Ct.
Orleans County 1978) (holding that “any removal [of the prisoner] from the [work release] program
should be as a result of a hearing following the rationale and procedures set forth in Wolff v.
McDonnell”). See JLM Chapter 36, “Parole,” for a more detailed explanation of the due process rights
guaranteed under Wolff. The U.S. Supreme Court has also held that due process requires certain
procedural protections for prisoners participating in a state-created pre-parole conditional supervision
program. See Young v. Harper, 520 U.S. 143, 146–47, 117 S. Ct. 1148, 1151, 137 L. Ed. 2d 270, 276
(1997).
127. N.Y. Comp. Codes R. & Regs. tit. 7, § 1904.2(h) (2007).
128. N.Y. Comp. Codes R. & Regs. tit. 7, § 1904.(2)(h)(5) (2007).
129. Friedl v. City of New York, 210 F.3d 79, 84–85 (2d Cir. 2000) (noting that the due process
requirements of Morrissey have been extended to revocation of probation and loss of good-time credits
and therefore should be extended to work release revocation (citing Morrissey v. Brewer, 408 U.S. 471,
489, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972))); Kroemer v. Joy, 2 Misc. 3d 265, 268, 769 N.Y.S.2d 357,
360 (Sup. Ct. Yates County 2003) (applying the procedural due process requirements of Morrissey,
including the right to confront adverse witnesses, to a Temporary Release Program revocation hearing).
130. Morrissey v. Brewer, 408 U.S. 471, 489, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972).
131. See Roucchio v. Coughlin, 29 F. Supp. 2d 72, 79–80 (E.D.N.Y. 1998).
Challenge Administrative Decisions Using Article 78 of the New York Civil Practice Law and
Rules.”
(ii) Section 1983132
42 U.S.C. § 1983 (“Section 1983”) can only be used if a right protected by the Constitution
or federal statute is violated by an officer or agent of the government.133 Section 1983 allows
you to be awarded money damages if you win your case. Remember that you must first try
the prison’s administrative remedies before using Section 1983.134 Section 1983 can also be
used only if you are not asking to be released completely from prison. Even if you are on
temporary release, you are still considered to be in prison. Please see JLM Chapter 16 on
using Section 1983, as well as JLM Chapter 14 on the Prison Reform Litigation Act
(“PLRA”), for more information. Remember, however, that the court pays strong deference to
the TRC. The TRC is given substantial discretion to strike “unsuitable” prisoners from the
temporary release program. As long as the TRC follows procedural due process guidelines (as
outlined in Wolff135) and its decision is found to be rational, the courts will not overturn its
decision.
F. The Second Chance Act of 2007 and Federal Bureau of Prisons
Temporary Release Programs
The Second Chance Act of 2007136 made some important developments in expanding the
types of opportunities available to prisoners upon release, improving upon the existing
programs in prisons, and modifying how prisoners can serve sentences in community
facilities. It allows for government agencies and nonprofit groups to receive grants of money
from the federal government in order “to assist offenders reentering the community from
incarceration to establish a self-sustaining and law-abiding life by providing sufficient
transitional services.”137 However, these agencies and groups must apply for the money to
receive it and must also comply with certain requirements in order to be selected to receive
the grant money.138 This section will discuss, as established by the Second Chance Act, (1)
The Federal Prisoner Reentry Program and Services; (2) Drug Treatment Programs; and (3)
Alternatives to Incarceration.
132. If you would like to file a § 1983 claim, you must read Chapter 14 of the JLM, which
discusses the Prison Litigation Reform Act (“PLRA”). Under the PLRA, prisoners must satisfy certain
requirements before filing § 1983 actions in federal court. For more information about § 1983 claims,
see JLM Chapter 16, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief From Violations of
Federal Law.”
133. Please note that some officials cannot be sued under § 1983. See JLM Chapter 16, “Using 42
U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief From Violations of Federal Law,” for more
information.
134. See Hill v. Chalanor, 419 F. Supp. 2d 255, 257 (N.D.N.Y. 2006) (holding that no action
challenging prison conditions can be brought under federal law by a prisoner until all available
administrative remedies are exhausted); Francis v. Zavadill, No. 06 Civ. 249 (SAS), 2006 U.S. Dist.
LEXIS 79323, at *13 (S.D.N.Y. Oct. 30, 2006) (unpublished) (“Failure to exhaust is an absolute bar to
an inmate’s action in federal court.”); Garcia v. Payne, 97 Civ. 0880 (DAB), 1998 U.S. Dist. LEXIS 1274,
at * 9–10 (S.D.N.Y. Feb. 6, 1998) (unpublished) (dismissing prisoner’s claims for the failure to pursue
state remedies prior to filing).
135. Wolff v. McDonnell, 418 U.S. 539, 563–66, 94 S. Ct. 2963, 2978–80, 41 L. Ed. 2d 935, 955–57
(1974).
136. Pub. L No. 110-199 (codified at 42 U.S.C. § 17501 et seq.). When the JLM went to print, the
Second Chance Act had not yet been published in the 2006 edition of the U.S. code (U.S.C.), which is
why the citation includes LexisNexis (see below). Before you use this citation that includes LexisNexis,
you should check to see if there is a later edition of the U.S.C. that has published these sections.
137. 42 U.S.C.S. § 17501 (LexisNexis 2008).
138. 42 U.S.C.S. § 3797w (LexisNexis 2008).
1. Federal Prisoner Reentry Program and Services
The Second Chance Act established a federal prisoner reentry program under the Bureau
of Prisons to help you adjust to life outside prison.139 This program is meant to provide you
with information regarding health and nutrition, employment, literacy and education,
personal finance and consumer skills, community resources, personal growth and
development, as well as release requirements and procedures.140 Once you are released, the
Re-entry Courts, at the state and local level, will monitor you and help you access support
programs. Such programs include drug and health counseling, case management, and “any
other services needed for reentry,” after your release.141 Nonprofit organizations may also
provide programs to help you after your release. If you have never been convicted of a violent
or sex-related crime, you may be eligible for programs that give you mentoring, job training,
and job placement services for the first 180 days after your release.142 There may also be
mentoring programs available to you during your incarceration, run through nonprofit
organizations (as opposed to the state or the Bureau of Prisons itself).143 These mentoring
programs can give you mentoring services, services to help you transition to life after your
release, and training regarding offender and victim issues. 144 These services take place
during or shortly after your imprisonment. 145 The Second Chance Act requires that the
Bureau of Prisons allow anyone who provided you with mentoring services during your
incarceration to continue those services after your release.146 Remember, it is not yet clear
which nonprofit organizations or government agencies will be receiving grant money and
how the programs will function.
Before you leave prison, the Bureau of Prisons is required to help you prepare for your
release. The Bureau of Prisons is required to ensure your eligibility for state and federal
benefits such as Social Security, Medicare, Medicaid, and Veterans benefits, and to support
parent-child relationships; and where the law permits, the Bureau must help you secure
those benefits for which you are eligible prior to release.147 For the three years before you are
released from prison, you may have access to programs that would train you for technology-
based jobs and careers.148 Earlier in your incarceration the Bureau of Prisons is required, if it
has sufficient funding, to offer a program to assess your skill level in various areas. It also is
required to help you to improve in certain areas, including academic, health, and
interpersonal skills.149 It will determine whether you have any special reentry needs and
help you maintain relationships with your family and children during your imprisonment.150
This program will also help you obtain an official form of photo identification, a social
security card, and/or a birth certificate as your release nears.151
2. Drug Treatment Programs
139. 42 U.S.C.S. § 17541 (LexisNexis 2008).

140. 18 U.S.C.S. § 4042(a) (LexisNexis 2008).
141. 42 U.S.C.S. § 3797w–2(b) (LexisNexis 2008).
143. 42 U.S.C.S. § 17531(a)–(b) (LexisNexis 2008).
147. 18 U.S.C.S. § 4042(a)(6) (LexisNexis 2008).
148. 42 U.S.C.S. § 17511(b) (LexisNexis 2008).
149. 42 U.S.C.S. § 17541 (LexisNexis 2008).
150. 42 U.S.C.S. § 17541 (LexisNexis 2008).
151. 42 U.S.C.S. § 17541 (LexisNexis 2008).
The Second Chance Act allows state and local prosecutors to set up comprehensive drug-
treatment programs as an alternative to imprisonment.152 Depending on what state you are
in, there may be Demonstration Drug Treatment Programs at which you can get treatment
for drug dependence or addiction.153 These programs would basically let you enter a drug
treatment program rather than staying in prison. To be eligible, you must meet certain
requirements, including never having been charged with or convicted of an offense during
which you possessed or used a dangerous weapon, or during which you used force against
another person; you also must be officially determined to need drug or alcohol addiction
treatment.154 If you are in a community confinement center rather than a regular prison, the
Bureau of Prisons is required to ensure that you have any necessary medical care, mental
health care, and medicine.155
The Second Chance Act provides for Prison-Based Family Treatment Programs.156 To be
eligible for a Prison-Based Family Treatment Program, you must have a child under 18 years
of age and you must have been convicted of nonviolent drug-related felony. 157 These
programs require that you serve your term in prison, and they provide substance-abuse
treatment, family counseling, legal services, medical care, nursery and preschool, parenting
skills training, pediatric care, and other services.158 The Second Chance Act also changed the
Residential Substance Abuse Treatment for State Offenders Program (“RSAT”), which
provides drug treatment in a facility set apart from the general prison population.159 If you
are involved in an RSAT program, the state may be required to give you a wide range of
support services after your release from prison, including case management services.160
3. Alternatives to Incarceration
Though you do not have an absolute right to do so, you may be able to spend some or all
of the last twelve months of your sentence in a community confinement facility, or under
other conditions that help you adjust to release.161 You also may be able to spend six months
or ten percent of your sentence, whichever is shorter, in home confinement. 162 Courts,
however, are not allowed to require or guarantee that your sentence be served in a civil
confinement facility. Therefore, authority to make this decision is left in the hands of the
Bureau of Prisons.163 Again, it is unclear just yet what this will look like in practice.
G. Conclusion
Each temporary release program has its own set of requirements for eligibility, as well as
many different rules for participating. The law treats participation in these programs as a
privilege, not a right. The Department of Correctional Services is not required to create
release programs, and the eligibility and approval rules are strict. The Constitution protects
you against discrimination or an unfair denial of access to temporary release. This protection
does not mean that you must be allowed to participate. Instead, it means that the temporary
release officials must show that they have good cause for not allowing you to participate or
152. 42 U.S.C.S. § 3797q(a) (LexisNexis 2008).

154. 42 U.S.C.S. § 3797q-6 (LexisNexis 2008).
155. 18 U.S.C.S. § 3621(g) (LexisNexis 2008).
156. 42 U.S.C.S. §§ 3797s, s-6(3) (LexisNexis 2008).
157. 42 U.S.C.S. § 3797s-6 (LexisNexis 2008).
158. 42 U.S.C.S. § 3797s-6 (LexisNexis 2008).
159. 18 U.S.C.S. § 3621(e)(1)–(e)(5)(A) (LexisNexis 2008).
160. 18 U.S.C.S. § 3621(e)(1)–(e)(5)(A) (LexisNexis 2008).
161. 18 U.S.C.S. § 3624(c)(1) (LexisNexis 2008).
162. 18 U.S.C.S. § 3624(c)(2) (LexisNexis 2008).
163. 18 U.S.C.S. § 3621(b) (LexisNexis 2008).
for removing you from participation. The officials must also conform to standards of due
process, which the New York courts have ordered them to provide in cases such as Roman v.
Ternullo.164 However, because your participation is deemed a privilege and not a right, it is
very difficult to successfully appeal a decision regarding a temporary release program.
164. Roman v. Ternullo, 81 Misc. 2d 1023, 1025, 367 N.Y.S.2d 197, 198 (Sup. Ct. Dutchess
County 1975).
Manual
Chapter 35:
Getting Out Early: Conditional
and Early Release

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 35
GETTING OUT EARLY: CONDITIONAL AND EARLY RELEASE*

A. Introduction
This Chapter explains the different ways you can be released from prison before serving
your maximum (full) sentence. Part B of this Chapter discusses New York State law, which
only applies to state prisoners in New York State. If you are a state prisoner in another state,
look at your state’s appropriate statutes and regulations. Part C discusses federal law, which
applies to federal prisoners imprisoned for federal crimes.
B. New York State
There are four main ways that you can be released from state prison in New York before
serving your full or maximum sentence: parole, conditional release, early release, and
presumptive release. This Part of the Chapter will provide you with information about the
last three categories: Section C explains conditional release, Section D discusses early
release, and Section E discusses presumptive release. This Chapter does not, however,
discuss parole. If you are looking for information about parole, see JLM Chapter 36.
To determine if you are eligible for these release programs, you first need to figure out
which type of sentence you are serving and how much, if any, good-time credit you have
earned. Sections A and B will help you make this determination: Section A explains the
different types of sentences in New York and how they relate to conditional, early, and
presumptive release; Section B explains good-time credit.
There are other ways you can be released from state prison before serving your full
sentence, including clemency and compassionate release. But, clemency and compassionate
release are harder to obtain than conditional, early, and presumptive release. If pursuing
these options interests you, see Section F, which explains clemency, with a focus on battered
women, and Section G, which discusses compassionate release.
Section A. Sentencing Structure in New York
1. Definite, Determinate, and Indeterminate Sentences
There are three kinds of sentences in New York: (1) definite sentences, (2) determinate
sentences, and (3) indeterminate sentences. Knowing which kind of sentence you have is
important because it will affect your eligibility for good-time credit, early release, conditional
release, and presumptive release.
A definite sentence is the type of sentence given to someone who is convicted of a
misdemeanor or violation.1 A definite sentence is fixed. For example, if you were convicted of
a violation and you received a sentence of ten days, then your sentence is a definite
sentence.2 A definite sentence is served in a county or regional jail, unless you also received
an additional sentence that was either determinate or indeterminate.3
* This Chapter was revised by Holly Chen, based in part on previous versions by Natasha Korgaonkar,
Joe McFadden, Margo Eakin, Emily O’Connor, and Bartram S. Brown. Special thanks to Professor
Philip Genty and Steve Statsinger for their comments.
2. N.Y. Penal Law § 70.15 (McKinney 2004). For example, a Class A misdemeanor has a
maximum definite sentence of one year, and a Class B misdemeanor has a maximum definite sentence
of three months.
3. N.Y. Penal Law § 70.20(2) (McKinney 2004 & Supp. 2007).
A determinate sentence is what must be given to someone convicted of most violent
felonies, 4 drug felonies, 5 and felony sex offenses. 6 Like a definite sentence, a determinate
sentence’s term is fixed. For example, if you were convicted of a violent felony and received a
two-year sentence, your sentence is determinate. But, unlike a definite sentence, the shortest
determinate sentence is one and a half years,7 while a definite sentence cannot exceed one
year. You usually serve a determinate sentence in state prison.8
An indeterminate sentence is the type of sentence given to someone convicted of a felony
not requiring a determinate sentence.9 An indeterminate sentence is not a fixed period of
time. Instead, an indeterminate sentence is a range of time that includes (1) a minimum
term and (2) a maximum term. For example, a sentence of “five to ten years” is an
indeterminate sentence, for which the minimum term is five years and the maximum term is
ten years. The minimum term must be at least one year. The maximum term in an
indeterminate sentence must be at least three years, although it can be as much as life
imprisonment.10 If you have an indeterminate sentence, and there are no reductions to your
sentence and you are not paroled, then you must serve the maximum term. An
indeterminate sentence is generally served in a state prison.11
As mentioned above, it is important to determine what type of sentence or sentences you
are serving because the rules for when and how you can become eligible for release are
different for each of the three types of sentences. Although the rest of this Part will discuss
these release programs in more detail, here is a brief overview of good-time credit,
conditional, early, and presumptive release.
2. Good-Time credit
A good-time credit is a credit that you can earn in prison for good behavior.12
If you are serving a definite sentence, and you earn good-time credit, you can use this
credit to shorten your sentence. You cannot, however, use it to obtain conditional release.
On the other hand, if you are serving a determinate or indeterminate sentence, and you
earn good-time credit, you can use this credit to obtain conditional release. Note, however,
that if are serving an indeterminate sentence with a maximum term of life imprisonment or
an “intermittent sentence” (a sentence only requiring that you be in jail on certain days of
the week or at certain hours of the day), you are ineligible for good-time credit.13 Part B,
Section B of this Chapter discusses good-time credit.
4. N.Y. Penal Law § 70.02(2)(a)–(c) (McKinney 2004 & Supp. 2007); N.Y. Penal Law § 70.04(2)
(McKinney 2004 & Supp. 2007). However, starting September 1, 2009, if you are convicted of a Class B
or Class C violent felony offense, your sentence must be indeterminate. N.Y. Penal Law §§ 70.02(2)(a),
70.04(2) (McKinney 2004 & Supp. 2007).
7. N.Y. Penal Law § 70.02(3)(d) (McKinney 2004 & Supp. 2007).
8. N.Y. Penal Law § 70.20(1)(a) (McKinney 2004 & Supp. 2007).
12. N.Y. Correct. Law §§ 804(1), 803(1) (McKinney 2003 & Supp. 2007).
13. N.Y. Correct. Law § 803(1) (McKinney 2003 & Supp. 2007); N.Y. Penal Law § 85.00(3)
(McKinney 2004); see also Ferrara v. Jackson, 99 A.D.2d 545, 546, 471 N.Y.S.2d 629, 630 (2d Dept.
1984) (holding that individuals serving intermittent sentences in accordance with Article 85 of the New
York Penal Law are ineligible for good behavior allowances pursuant to Section 804 of the New York
Correction Law).
3. Conditional Release
Conditional release is a way that you can be released from prison before you serve your
full or maximum sentence. Your rights and responsibilities while on conditional release will
be very similar to those of someone on parole. If you get out on conditional release, you will
sign the same agreement signed by parolees. You will have to follow rules set by the parole or
probation department, or you will risk losing your conditional release. For more information,
see JLM Chapter 36, “Parole.”
Although New York State law uses the same word to refer to conditional release from a
definite sentence and conditional release from determinate and indeterminate sentences,
they are not actually the same thing. Conditional release is discussed in Part B, Section C of
this Chapter.
4. Early Release and Presumptive Release
Early release and presumptive release are other ways you can be released from prison
before serving a full sentence. Early release is discussed in Part B, Section D of this Chapter.
Presumptive release is available to non-violent prisoners who are serving one or more
indeterminate sentences, have not committed any serious disciplinary violations, and have
not filed or continued frivolous (not serious) legal claims. Presumptive release functions like
parole and conditional release. But, unlike these programs, it allows you to leave prison
without appearing before the parole board. Presumptive release is discussed in Part B,
Section E of this Chapter.
Section B. Good-Time credit
1. How to Earn Good-Time Credit
You can earn good-time credit for “good behavior and efficient and willing performance of
duties” assigned to you in prison, or for “progress and achievement in an assigned treatment
program.” 14 On the other hand, you can lose good time for “bad behavior, violation of
institutional rules or failure to perform properly” any duties or programs assigned to you in
prison.15 Keep in mind: though the statute only refers to “assigned” programs, if you fail to
complete a “recommended” program, officials may withhold good time.16
Prison officials do not have to give you good-time credits, and it is not something you can
demand as a right.17 But, if officials think your behavior in prison is acceptable, they will
probably grant you good time.
You can earn good-time credit only while you are in prison and not while you are on
parole, conditional release, or supervised release. In most jurisdictions, prisons do not have
to, and will not, accept credits that you earned from a different state prison or a federal
prison.18
16. See Ferry v. Goord, 268 A.D.2d 720, 721, 704 N.Y.S.2d 315, 316 (3d Dept. 2000) (finding good-
time credit withheld where prisoner refused to enroll in recommended sex offender counseling); Burke
v. Goord, 273 A.D.2d 575, 575, 710 N.Y.S.2d 136, 137 (3d Dept. 2000) (same); Lamberty v. Schriver, 277
A.D.2d 527, 528, 715 N.Y.S.2d 510, 511 (3d Dept. 2000) (holding that the fact that treatment program
was “recommended” instead of “assigned” did not prevent time allowance committee from withholding
good-time credit).
17. See Bradley v. Ward, 81 Misc. 2d 713, 716, 366 N.Y.S.2d 841, 844 (Sup. Ct. Albany County
1975) (finding no statutory right to good behavior time under N.Y. Correct. Law §§ 803(4), 804(3)); N.Y.
Correct Law §§ 803(4), 804(3) (McKinney 2003).
18. See Thomas v. Brewer, 923 F.2d 1361, 1368 (9th Cir. 1991) (refusing to give credit toward
reduction in federal sentence for time spent in state prison); Holtzinger v. Estelle, 488 F.2d 517, 518
(5th Cir. 1974) (holding that based on Texas statutes, Texas prisoner was not entitled to good-time
Depending on the type of sentence you are serving, you can use good-time credit to
shorten your sentence, earn unconditional early release, or, in the case of determinate and
indeterminate sentences, earn conditional release.
(a) Good-Time Credit in Definite Sentences
If you are serving a definite sentence and earn good-time credit, prison officials will use
the credit to shorten your sentence and determine if and when you are eligible for
unconditional early release. The process by which prison officials decide whether to grant you
credit depends on the type of facility where you are imprisoned. If you are serving your
definite sentence in a county or regional jail, the sheriff, warden, or other person in charge of
the facility will decide whether to give you good-time credit.19 If you are serving your definite
sentence in a state prison, the prison’s Time Allowance Committee (“TAC”) will recommend
to the superintendent the amount of good-time credit it thinks you should receive.20 The
prison superintendent will review the TAC’s recommendation and may add comments to it.
He or she will then forward the recommendation to the Commissioner of Correctional
Services, who will make the final decision.21
(b) Good-Time Credit in Determinate and Indeterminate Sentences
If you are serving a determinate or indeterminate sentence and you earn good-time
credit, prison officials will use the credit to decide if are eligible for conditional release.
Unlike definite sentences, if you are serving a determinate or indeterminate sentence, you
cannot use good-time credit to shorten your sentence or earn unconditional early release.
Four months before you would be entitled to conditional release if you were to receive the
maximum good-time credit allowed, the TAC will review your entire file to determine
whether you should in fact receive the maximum good-time credit.22 In deciding whether to
grant the maximum good-time credit, the committee will look for good behavior, efficient and
willing performance of assigned duties, and progress and achievement in an assigned
treatment program, in light of (1) your attitude; (2) your capacity; and (3) the efforts you
made within your capacity.23 Although the committee will review your entire file, it is not
required to interview you at this stage.24
After it reviews your file, the TAC will either: (1) recommend to the superintendent that
you receive the maximum good-time credit allowance; or (2) delay making a recommendation
because it believes that there might be a sufficient reason not to grant you the maximum
good-time credit allowance.
If the TAC decides that there is sufficient reason not to grant you the maximum good-
time credit allowance, a time allowance hearing will be held.25 You will be notified at least
forty-eight hours before the hearing.26 After you receive formal notice, you will be given the
opportunity to raise any factual matter that you believe the TAC should consider in making
credit earned for time spent in California).

23. N.Y. Comp. Codes R. & Regs. tit.7, § 260.3(b)(1)–(3) (2007).
24. TAC is required to interview you if you have had a recommended loss of good behavior time
from a prior superintendent’s hearing. N.Y. Comp. Codes R. & Regs. tit. 7, § 261.3(b) (2007).
25. N.Y. Comp. Codes R. & Regs. tit.7, § 261.4(a) (2007). This hearing will not be held if the only
good time you lost was from a superintendent’s disciplinary hearing, since you already appeared before
the committee to respond to this recommendation as required by Section 261.3(b). See also People ex
rel. Moore v. Jones, 77 A.D.2d 679, 679, 430 N.Y.S.2d 16, 18 (3d Dept. 1980) (holding a hearing is not
required if the only time lost was from superintendent hearing).
its decision. You will also be given the opportunity to have the matter investigated. At the
hearing, the TAC will reconsider your entire file and consider any factual matter you or your
designated assistant brought to its attention. It can also hear witnesses.27 After the hearing,
the TAC will make its recommendation to the superintendent.28
The superintendent will review the committee’s recommendation, add any comments he
or she has, and then forward the report to the Commissioner.29 The Commissioner can (1)
accept the recommendation, (2) change the amount of time granted, or (3) send the report
back to the committee for reevaluation.30 Once the Commissioner decides, you will receive a
copy of the determination.31
If the Commissioner does not grant the maximum amount of good-time credit, you can
file suit in state court under Article 78. For more information about bringing an action in
court, you should read JLM Chapter 22, “How to Challenge Administrative Provisions Using
Article 78 of the New York Civil Practice Law and Rules” and JLM Chapter 18, “Your Rights
at Prison Disciplinary Hearings.”
If you decide to pursue a claim in federal court because you believe you unlawfully lost
good-time credits, you MUST read JLM Chapter 14, which discusses the Prison Litigation
Reform Act (“PLRA”). If you do not follow the requirements in the PLRA, you may lose your
good-time credit, become unable to receive presumptive release (see Part B, Section E of this
Chapter), or lose your right to bring future claims in federal court without paying the full
filing fee at the time you file your claim.
2. How Much Good-Time Credit You Can Earn
The amount of good time you can earn is based on statutes, which vary widely across
jurisdictions. In New York State , the amount of good time you can earn depends on your
type of sentence.
(a) Good-Time Credit for Definite Sentences
If you are serving a definite sentence, the most good-time credit that you can earn is
equal to one-third of the length of your sentence. If you are serving consecutive definite
sentences (one after the other), you can earn one-third of the total of the terms.32
(b) Good-Time Credit for a Single Determinate or Indeterminate
Sentence
If you are serving a single determinate or indeterminate sentence, you can receive good-
time credit, as long as your maximum term is not life imprisonment.33 If you are serving a
determinate sentence, the most good-time credit that you can earn is one-seventh of your
sentence.34 For example, if you are serving a determinate sentence of twenty-one years, the
most good-time credit that you can earn is three years (one-seventh of twenty-one).
If you are serving an indeterminate sentence, the most good-time credit you can earn is
one-third of your maximum sentence.35 For example, if you are serving an indeterminate
sentence of fifteen to thirty years, the most good-time credit that you can earn is ten years
(one-third of thirty years).

32. N.Y. Correct. Law § 804(2) (McKinney 2003 & Supp. 2008).
33. N.Y. Correct. Law § 803(1)(a) (McKinney 2003 & Supp. 2008).
35. N.Y. Correct. Law § 803(1)(b) (McKinney 2003 & Supp. 2008).
The calculation is more complicated if you are serving more than one sentence, as shown
below.
(c) Good-Time Credit for Concurrent Determinate Sentences
If you are serving more than one determinate sentence concurrently (at the same time),
the most good-time credit that you can earn is one-seventh of the determinate sentence that
ends the latest.36 For example, if you are serving one determinate sentence of seven years
and another of fourteen years, the most good-time credit you can receive is two years—one-
seventh of the longer sentence. If you received the maximum credit of two years, you would
be entitled to conditional release after serving twelve years of your sentence (because, at that
point, your two-year credit would be equal to the amount of time you had left to serve).
(d) Good-Time Credit for Consecutive Determinate Sentences
If you are serving more than one determinate sentence consecutively (one after the
other), the maximum good-time credit that you can earn is one-seventh of the combined
sentences. 37 For example, if you are serving a seven-year sentence and a fourteen-year
sentence consecutively, you can earn three years of good-time credit (one-seventh of twenty-
one, the total of your two sentences). If you received the maximum credit, you would be
entitled to conditional release after eighteen years (the total time of your sentences minus
the maximum credit).
(e) Good-Time Credit for Concurrent Indeterminate Sentences
If you are serving more than one indeterminate sentence concurrently (at the same time),
the most good-time credit that you can earn is one-third of the total term of the latest ending
indeterminate sentence.38 For example, if you are serving a sentence of one to three years
and another sentence of three to six years, you can earn up to two years of good-time credit—
one-third of the longest maximum sentence of six years. If you received the maximum credit,
you would be entitled to conditional release after four years (the longest maximum sentence
minus the maximum credit).
(f) Good-Time Credit for Consecutive Indeterminate Sentences
If you are serving more than one indeterminate sentence consecutively (one after the
other), the most good time you can earn is one-third of the combined maximum terms.39 For
example, if you are serving two consecutive indeterminate sentences, one sentence for one to
three years and another for three to six years, you could earn up to three years of good-time
credit—one-third of the total maximum sentence of nine years (one-third of three plus six
years). If you received the maximum credit you would be entitled to release after six years
(the total of the maximum sentences minus the maximum credit).
(g) Good-Time Credit for Combined Concurrent Determinate and
Indeterminate Sentences
If you are serving one or more determinate and one or more indeterminate sentences
concurrently (at the same time), the most good-time credit that you can earn is either one-
seventh of the latest ending determinate sentence, or one-third of the maximum term of the
latest ending indeterminate sentence—whichever allowance is larger. 40 For example,
suppose you are serving a determinate sentence of fourteen years at the same time as an
37. N.Y. Correct. Law § 803(2)(d) (McKinney 2003 & Supp. 2008).
38. N.Y. Correct. Law § 803(2)(a) (McKinney 2003 & Supp. 2008).
39. N.Y. Correct. Law § 803(2)(b) (McKinney 2003 & Supp. 2008).
40. N.Y. Correct. Law § 803(2)(e) (McKinney 2003 & Supp. 2008).
indeterminate sentence of six to nine years. You could earn either one-seventh of the
determinate sentence (one-seventh of fourteen years, which is two years) or one-third of the
indeterminate sentence (one-third of nine years, which is three years). Since the allowance
for the indeterminate sentence (three years) is larger than the allowance for the determinate
sentence (two years), you could earn a total of three years of good-time credit. If you received
the maximum credit, you would receive conditional release after eleven years—three years
less than your maximum sentence of fourteen years (the maximum indeterminate sentence
minus the maximum credit).
(h) Good-Time Credit for Combined Consecutive Determinate and
Indeterminate Sentences
If you are serving one or more determinate sentences and one or more indeterminate
sentences consecutively (one after the other), the most good-time credit that you can earn is
one-third of the maximum terms of the indeterminate sentences added together, plus
one-seventh of the terms of the determinate sentences added together. 41 For example,
suppose you are serving a determinate sentence of fourteen years consecutively with an
indeterminate sentence of six to nine years. You could receive up to two years of good-time
credit from the determinate sentence (one-seventh of fourteen years) and up to three years of
good-time credit for the indeterminate sentence (one-third of nine years). You could receive a
total of five years of good-time credit, and could be entitled to conditional release after
eighteen years (the total of your maximum sentences—twenty-three years—minus the total
of your good-time credit—five years).
Suppose your state legislature passes a new law to reduce the good-time credit that you
could have received under an older law. If your offense occurred before the enactment of the
new law, then the new law cannot apply to you because it would violate ex post facto
principles. Ex post facto principles mean that you can only be punished under a law that was
in effect at the time when you committed the offense, and your punishment cannot be
increased if stricter laws are passed after you committed the offense.42 If you received a
harsher punishment based on a law that was passed after the commission of your offense,
you may have a valid constitutional claim.43
3. Loss of Good-Time Credit
You can lose good-time credit in two ways. First, TAC may decide not to grant you the
maximum good-time credit. TAC is not required to recommend that you receive the
maximum credit allowed by the law.44 Second, officials can file a formal charge against you
and then hold a disciplinary hearing.45 JLM Chapter 18 “Your Rights at Prison Disciplinary
Hearings,” explains some of your rights in these proceedings. These proceedings are usually
only held in cases of serious misconduct.
Even if you lose some good-time credit in a disciplinary hearing, you may regain it later:
the loss is not permanent until it actually affects your consideration for parole, conditional
41. N.Y. Correct. Law § 803(2)(f) (McKinney 2003 & Supp. 2008).
42. See Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 22 (1981)
(applying new requirements for good-time credit to a prisoner whose crime occurred before the date of
the statute is a violation of the Ex Post Facto Clause). But see In re Ramirez, 39 Cal. 3d 931, 936, 705
P.2d 897, 901, 218 Cal. Rptr. 324, 328 (Cal. 1985) (finding that a law is not a violation of the ex post
facto principle when applied to prison misconduct that occurred after the new law’s enactment, even if
the original crime occurred before the enactment of the law).
43. For more information, see JLM Chapter 9, “Appealing Your Conviction or Sentence” and
JLM Chapter 20, “Using Article 440 of the NY Criminal Procedural Law to Attack Your Unfair
Conviction or Illegal Sentence.”
45. N.Y. Comp. Codes R. & Regs. tit. 7, § 254.7(a)(1)(vii) (2008).
release, or other release.46 When TAC reviews your file for the last time before your earliest
possible parole or conditional release date, it may decide that you should get back the time
you “lost.” A record of good behavior since the time you “lost” your time increases the chance
of regaining good-time credit.
Note: if you are released early on conditional release or parole, and you later violate the
terms of your release or parole and return to prison, you cannot use the good time you earned
before release: if you are sent back to prison for a violation, you must start earning good-time
credits all over again.47
4. Challenging the Loss of Good-Time Credit
In Wolff v. McDonnell, the Supreme Court ruled that because good-time credits lead to a
shorter time in prison, procedures to take away good-time credit must meet the requirements
of the U.S. Constitution’s Due Process Clause. 48 This means if prison officials have not
followed the appropriate procedures, then you have the right to challenge their decision
under Article 78, state habeas proceedings, or federal habeas proceedings. To determine how
to do this, see JLM Chapter 22, “How to Challenge Administrative Proceedings Using Article
78 of the New York Civil Practice Law and Rules;” JLM Chapter 21, “State Habeas Corpus;”
and JLM Chapter 13, “Federal Habeas Corpus.” JLM Chapter 18, “Your Rights at Prison
Disciplinary Hearings,” also explains your right to good time.
As noted above, if you decide to pursue any claim in federal court, you MUST read JLM
Chapter 14, which discusses the Prison Litigation Reform Act (“PLRA”). If you do not follow
the requirements in the PLRA, you may lose your good-time credit, you may become unable
to receive presumptive release (see Part B, Section E of this Chapter), or you may lose your
right to bring future claims in federal court without paying the full filing fee at the time you
file your claim.
Section C. Conditional Release
1. Conditional Release from a Definite Sentence
For a definite sentence, you are eligible for conditional release after you have served
sixty days of your sentence.49 Conditional release is at the discretion of the Board of Parole.
The Board can also impose certain conditions for your release.50
Conditional release from a definite sentence lasts for one year no matter how much time
you had remaining in your sentence when you were released. Also, if you violate the terms of
your conditional release at any time during that year, you may be returned to prison and
must finish out your full sentence as if never released.51
2. Conditional Release from a Determinate or Indeterminate
Sentence
Based on the type of determinate or indeterminate sentence or sentences you are serving,
you may be eligible for conditional release from prison as soon as the good-time credit you
have earned in prison is equal to the amount of time that you have left to serve on your
46. N.Y. Comp. Codes R. & Regs. tit.7, § 260.4(b) (2008).

48. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935, 951 (1974); see
also Sandin v. Conner, 515 U.S. 472, 478, 115 S. Ct. 2293, 2297, 132 L. Ed. 2d 418, 426 (1995) (holding
that neither the Due Process Clause nor the Hawaii regulations created a liberty interest in avoiding
disciplinary confinement for 30 days; restating the holding in Wolff v. McDonnell that good-time credits
could not be revoked without adequate procedures because the statute had created a “liberty interest”).
51. N.Y. Penal Law § 70.40(3)(b) (McKinney 2004 & Supp. 2008).
maximum sentence or sentences. 52 For example, if you are serving an indeterminate
sentence of three to six years and you have two years of good-time credit, you cannot be
released until you have served four years of your sentence.
Note that if you are serving one or more determinate sentences, along with one or more
indeterminate sentences at the same time, you cannot be granted conditional release until
you have served six-sevenths of the determinate sentence with the longest time to run.53 For
example, if you are serving a determinate sentence of twenty-one years at the same time as
an indeterminate sentence of ten to twenty-one years, you cannot be released until you have
served eighteen years (six-sevenths of your determinate sentence), even if you have earned
more than three years of good-time credit against your indeterminate sentence.
If you satisfy these conditions specific to your type of sentence, you should submit a
request for release, and you must be released.54
If you are requesting to be released from an indeterminate sentence, you should submit
your request to the New York State Division of Parole.55 The forms necessary for making this
request are available through the Division of Parole. You can also obtain these forms from a
parole representative at your facility. 56 If you are requesting to be released from a
determinate sentence, you will need to read Part B, Section C(4) of this Chapter on Jenna’s
Law.
Unlike conditional release from a definite sentence, for which release is at the Board of
Parole’s discretion, you do not need permission to get conditional release from a determinate
or indeterminate sentence. If the Department of Correctional Services (DOCS) refuses to
release you, you can file an Article 78 petition in New York Supreme Court. See JLM
Chapter 22 to learn how to use Article 78 actions to force an agency or official to perform a
legally required act, such as releasing you from prison.
3. The Release Agreement
Before you can leave prison on conditional release, you will have to sign a release
agreement. This agreement explains the conditions of your release. The agreement will also
explain the consequences of violating any of these conditions.57 By signing the agreement,
you promise to obey all of the listed rules.
If you are conditionally released from a definite sentence, the Board of Parole will
determine the terms of the release agreement.58 If you are conditionally released from an
indeterminate sentence, the terms of your release will be the same as those imposed on
prisoners on parole.59 This agreement requires a parole officer to supervise you. Note: the
conditions of the conditional release may change any time before your sentence has ended.
Also, a parole officer may add special conditions, such as a curfew or attendance at an alcohol
abuse treatment program. A possible condition may require you to find housing before
release.60 See JLM Chapter 36, “Parole,” for an explanation of parole in New York.
55. N.Y. Exec. Law § 259-g(1) (McKinney 2005 & Supp. 2008).
60. People ex rel. Travis v. Coombe, 219 A.D.2d 881, 881–82, 632 N.Y.S.2d 340, 340 (4th Dept.
1995) (conditions of release included requirement that parolee find housing, and when potential parolee
failed to do so, he was not released); People ex rel. DeFlumer v. Strack, 212 A.D.2d 555, 555, 623
N.Y.S.2d 1, 1 (2d Dept. 1995) (conditions of release included that parolee must live in approved
housing, which here was the home of parolee’s sister).
If you are conditionally released from a determinate sentence as a violent felony offender
or a drug offender serving a sentence other than life in prison, you will be required to sign a
post-release supervision agreement that will extend your supervision for three to five years.
4. Jenna’s Law and Post-Release Supervision for All Determinate
Sentences and Drug Offenses
In 1998, the New York State legislature passed Jenna’s Law. This law imposes a period
of mandatory post-release supervision for all prisoners sentenced to determinate sentences.
The Drug Law Reform Act of 2004 created new sentencing provisions for felony drug offenses
to include determinate sentences that must also include a period of post-release
supervision.61 Unlike prisoners serving definite sentences, who are conditionally released to
one year’s supervision, and unlike prisoners serving indeterminate sentences, who are
conditionally released on terms very similar to parole, those serving determinate sentences
are subject to mandatory post-release supervision.62
Previously, not everyone who had a conditional release from a determinate sentence was
subject to post-release supervision. The law on this has changed—now, everyone serving a
determinate sentence must complete post-release supervision. If you receive a determinate
sentence for a crime committed on or after September 1, 1998, you will be subject to post-
release supervision. For felony offenses that are not sex offenses, the period of post-release
supervision for determinate sentences is five years, except for the drug offenses and first-
time violent felony offenses listed below that may have shorter periods of supervision. 63
Unless the court specifies otherwise, you will most likely be subject to the maximum possible
post-release supervision time available for the particular crime of which you were convicted.
However, the court does have the power to set your post-release supervision period anywhere
between the minimum and the maximum possible periods under the law.
(a) Length of Post-Release Supervision
Three groups of offenses have different lengths of post-release supervision: felony drug
offenses, first-time violent felony offenses, and felony sex offenses committed after April 13,
2007. For more information on felony sex offenses see JLM Chapter 32, “Special
Considerations for Sex Offenders.” The tables below show possible post-release supervision
time, depending on your sentence’s type and class.
Drug Offenses
First Time Non-first Time
Class D or E 1 year64 1 – 2 years65
Class B or C 1 – 2 years66 1 ½ – 3 years67
First-Time Violent Felony Offenses
First Time
Class D or E 1 ½ – 3 years68
Class B or C 2 ½ – 5 years69
61. See N.Y. Penal Law §§ 70.70(2)(a), (3)(b), (4)(b) (McKinney 2004 & Supp. 2007); N.Y. Penal
Law §§ 70.71(2)(b), (3)(b), (4)(b) (McKinney 2004 & Supp. 2007).
65. N.Y. Penal Law § 70.45(2)(c) (McKinney 2004 & Supp. 2007).
68. N.Y. Penal Law § 70.45(2)(e) (McKinney 2004 & Supp. 2007).
69. N.Y. Penal Law § 70.45(2)(f) (McKinney 2004 & Supp. 2007).
Felony Sex Offenses
First Time Non-first Time
Class D or E 3 – 10 years70 5 – 15 years71
Class C 5 – 15 years72 7 – 20 years73
Class B 5 – 20 years74 10 – 25 years75
Child Sexual Assault 10 – 20 years76
(b) Results of Violating a Condition of Post-Release Supervision
If you violate any of the terms of your post-release supervision, you will receive a
revocation hearing. The rules for revocation hearings for post-release supervision are the
same as the rules for parole revocation.77 See JLM Chapter 36, “Parole,” for an explanation
of parole revocation hearings in New York. If your post-release supervision is revoked at the
hearing, and you are not a felony sex-offender, then you may be sent back to prison for more
time. This time is no longer than the amount of post-release supervision remaining to be
served and can never be longer than five years.78
If you were convicted of a felony sex offense, the maximum amount of time that you can
be sent back to prison is the remainder of time on your period of post-release supervision,
even if longer than five years.79 If you have less than three years remaining of post-release
supervision, you will be released after you serve the additional three year sentence. If you
have three or more years of supervised release left when you are given an additional term of
imprisonment for violating the terms of your supervised release, you will not be
automatically released after serving three years. Instead, after serving three years, your case
will be reviewed by the board of parole. The board will determine whether you can be
released to post-release supervision or whether you should stay in prison and have your case
reviewed a second time at a date not more than twenty-four months away.80
If your post-release supervision is revoked, you may be sentenced for a period longer than
the maximum times listed above if you were given both determinate and indeterminate
sentences.81 If you had more time left on the combined amount of your indeterminate and
determinate sentences when you left prison on supervised release, you may be sentenced to
serve that remaining amount of time instead of the shorter period of supervised release.
Your post-release supervision time will not count if the board of parole declares you
“delinquent” for having violated a condition of your release.82 The clock will remain stopped
until you are released back to supervision or incarcerated for a new criminal conviction or for
violating a release condition The time you spend in custody while awaiting the decision of
whether or not your post-release supervision is revoked will be credited towards your
maximum or aggregate maximum sentence or sentences for which you were released. If that
is zero, it will then be credited against your remaining period of post-release supervision.83 If
70. N.Y. Penal Law § 70.45(2-a)(a), (d) (McKinney 2004 & Supp. 2007).
71. N.Y. Penal Law § 70.45(2-a)(g) (McKinney 2004 & Supp. 2007).
72. N.Y. Penal Law § 70.45(2-a)(b), (e) (McKinney 2004 & Supp. 2007).
73. N.Y. Penal Law § 70.45(2-a)(h) (McKinney 2004 & Supp. 2007).
74. N.Y. Penal Law § 70.45(2-a)(c), (f) (McKinney 2004 & Supp. 2007).
75. N.Y. Penal Law § 70.45(2-a)(i) (McKinney 2004 & Supp. 2007).
76. N.Y. Penal Law § 70.45(2-a)(j) (McKinney 2004 & Supp. 2007).
77. N.Y. Exec. Law § 259-i(3) (McKinney 2005 & Supp. 2007).
80. N.Y. Penal Law § 70.45(1-a) (McKinney 2004 & Supp. 2007).
82. N.Y. Penal Law § 70.45(5)(d)(i) (McKinney 2004 & Supp. 2007).
you are sentenced to a new determinate or indeterminate sentence, your remaining period of
post-release supervision will be on hold until you are re-released from prison, at which time
you will begin serving that period of post-release supervision again.84
(c) Other Ways of Challenging Post-Release Supervision
If you have received a term of post-release supervision, you should read this section
carefully to ensure your sentence is valid, as there have been a number of important changes
in New York law that will affect many prisoners.
First, if you pleaded guilty and received a sentence that included post-release
supervision, you may be able to vacate (take back) your guilty plea if you were not informed
that your sentence would include post-release supervision. In New York v. Catu, the State of
New York Court of Appeals held that a defendant who pleaded guilty without being informed
that he would be subject to post-release supervision could vacate his guilty plea, because the
plea was not a “voluntary and intelligent choice.”85
Note that if you were not informed of the post-release supervision, although you can
vacate your plea, you will not be able to vacate the guilty judgment against you.86 This means
that you will either be given a new trial or re-sentencing. However, if you are re-sentenced,
you will likely get the same sentence, so only use Catu if you want to go to trial instead of
keeping your plea. Even if you do not wish to vacate your plea or have already served your
sentence, however, you may be able to use Catu to challenge your post-release supervision
without setting aside your sentence.
Second, only a judge can impose post-release supervision. 87 In the past, DOCS has
sometimes imposed a mandatory period of post-release supervision for prisoners when they
are released. In 2008, the court of appeals held that DOCS may not do this—only a judge can
impose post-release supervision.88 In addition, the Court of Appeals also held that prisoners
can get writs of prohibition, prohibiting DOCS from imposing these kinds of administrative
sentences.89 This change in the rule might affect thousands of prisoners in New York State.
Because the rules have changed, if you were given post-release supervision, you should check
to be sure that this was given to you by your sentencing judge and not by DOCS. However,
even if DOCS has imposed post-release supervision, a judge may still re-sentence you and
impose a term of post-release supervision.90
84. N.Y. Penal Law §§ 70.45(5)(e), (f) (McKinney 2004 & Supp. 2007).
85. New York v. Catu, 4 N.Y.3d 242, 245, 825 N.E.2d 1081, 1082, 792 N.Y.S.2d 887, 888 (2005).
86. People v. Louree, 8 N.Y.3d 541, 546, 869 N.E.2d 18, 21–22, 838 N.Y.S.2d 18 (2007).
87. Garner v. N.Y. State Dep’t of Corr. Servs., 10 N.Y.3d 358, 362, 889 N.E.2d 467, 469, 859
N.Y.S.2d 590, No. 57, slip op. at 3–4 (Apr. 28, 2008) (pending publication, page numbers subject to
change) (barring DOCS from administratively imposing a five-year term of post-release supervision and
holding that only the sentencing judge was authorized to pronounce a term of post-release supervision);
People v. Sparber, 10 N.Y.3d 457, 468, 889 N.E.2d 459, 463, 859 N.Y.S.2d 582, No. 53, slip op. at 7 (Apr.
29, 2008) (pending publication, page numbers subject to change) (finding the procedure through which
post-release supervision was imposed did not comply with the statutory mandate and remanding to
trial court for re-sentencing).
88. People v. Sparber, 10 N.Y.3d 457, 468, 889 N.E.2d 459, 463, 859 N.Y.S.2d 582, No. 53, slip
op. at 7 (Apr. 29, 2008) (pending publication, page numbers subject to change) (finding the procedure
through which post-release supervision was imposed did not comply with the statutory mandate and
remanding to trial court for re-sentencing).
89. Garner v. N.Y. State Dep’t of Corr. Servs., 10 N.Y.3d 358, 362, 889 N.E.2d 467, 469–70, 859
N.Y.S.2d 590, No. 57, slip op. at 3–4 (Apr. 28, 2008) (pending publication, page numbers subject to
change).
90. People v. Sparber, 10 N.Y.3d 457, 470, 889 N.E.2d 459, 464, 859 N.Y.S.2d 590, No. 53, slip
op. at 7 (Apr. 29, 2008) (pending publication, page numbers subject to change) (finding the procedure
through which post-release supervision was imposed did not comply with the statutory mandate and
remanding to trial court for re-sentencing).
Third, even if a judge gave you post-release supervision, it may still be invalid. In Earley
v. Murray, the Second Circuit has held that it is a violation of the Due Process Clause for a
prisoner to be given post-release supervision unless the post-release supervision was
included in the oral sentence of the trial judge or a sentencing court has re-sentenced the
defendant.91 New York law gives the state one year after your sentencing to file a motion to
set aside an “invalid” so that the court can “re-sentence the defendant in accordance with the
law.”92 Following Earley, there have been varied and conflicting interpretations of how to
deal with the later addition of a period of post-release supervision the judge did not announce
in the original sentence. The second, third, and fourth departments of the appellate division
have expressly followed Earley, and have held that only judges can impose post-release
supervision. 93 The first department has not directly followed Earley, but recently cited
Earley’s holding as quoted in a second department case in ruling that DOCS does not have
authority to add a period of post-release supervision if it was not included in the oral
sentence or the order of commitment.94
Courts have reached different decisions when dealing with these cases on remand. Some
courts have declined to add a period of post-release supervision not part of the plea
agreement and not part of the sentence.95 But other courts have held that the offender can be
91. Earley v. Murray, 451 F.3d 71, 75–76 (2d Cir. 2006), reh’g denied, 462 F.3d 147 (2006)
(stating that “a later addition to the sentence by an employee of the executive branch cannot [alter the
sentence imposed by the court]. Only the judgment of a court, as expressed through the sentence
imposed by a judge, has the power to constrain a person’s liberty,” but recognizing that where a
“mandatory component” of a sentence has been omitted, a sentencing court may re-sentence the
defendant to correct the omission without violating the Double Jeopardy Clause). But see People ex rel.
Joyner v. N.Y. State Div. of Parole, No. 75045/07, 2007 N.Y. Misc. LEXIS 3335 (Sup. Ct. Bronx County,
May 8, 2007) (unpublished) (stating New York state courts are not bound by Earley, and that “it is
questionable whether any trial judge in the First Department should be looking to Earley at all.”). In
Joyner, the court also disagreed with the Earley court’s reasoning, and held that any part of the
sentence statutorily required does not have to be stated by the judge.
92. N.Y. Crim. Proc. Law § 440.40.
93. People ex rel. Gerard v. Kralik, 44 A.D.3d 804, 804–05, 843 N.Y.S.2d 398, 399, No. 2007-
05890, slip op. at 1–2 (2d Dept. Oct. 9, 2007) (pending publication, page numbers subject to change)
(holding that the New York State Division of Parole could not impose post-release supervision
conditions when the terms were not part of the prisoner’s original sentence); People ex rel. McBride v.
Alexander, 46 A.D.3d 849, 850, 848 N.Y.S.2d 284, 286, No. 2007-09555, slip op. at 1–2 (2d Dept. Dec.
18, 2007) (pending publication, page numbers subject to change) (holding that where the sentencing
court’s order of commitment and the sentencing minutes did not mention any period of post-release
supervision, the sentence did not then or now include any period of post-release supervision), (vacated),
54 A.D.3d 423 (2d Dept. 2008); People v. Holder, 46 A.D.3d 577, 577, 845 N.Y.S.2d 916, 916, No. 2006-
06948, slip op. at 1 (2d Dept. Dec. 4, 2007) (pending publication, page numbers subject to change)
(same); People v. Guare, 846 N.Y.S.2d 247, 247–48, 45 A.D.3d 697, 697, No. 2004-02869, slip op. at 1–2
(2d Dept. Nov. 17, 2007) (pending publication, page numbers subject to change) (same); In re Quinones
v. N.Y. State Dep’t of Corr. Servs., 46 A.D.3d 1268, 1269, 848 N.Y.S.2d 757, 758, No. 502156, slip op. at
2 (3d Dept. Dec. 27, 2007) (pending publication, page numbers subject to change) (holding that only a
judge can impose a sentence and alter its terms); Matter of Dreher v. Goord, 46 A.D.3d 1261, 1262, 848
N.Y.S.2d 758, 759–60, No. 501929, slip op. 10430 at 1–2 (3d Dept. 2007) (pending publication, page
numbers subject to change) (holding same for a second felony offender); Burch v. Goord, 48 A.D.3d 1306,
1307, 853 N.Y.S.2d 756, 757, No. 257 KAH 07-01086, slip op. at 1–2 (4th Dept. Feb. 20, 2008) (pending
publication, page numbers subject to change) (holding that a post-release supervision period is a part of
a defendant’s sentence, and thus, only a court may impose it).
94. People v. Figueroa, 45 A.D.3d 297, 298, 846 N.Y.S.2d 87, 87–88, No. 1520, 10382/98, slip op.
at 1–2 (1st Dept. Nov. 8, 2007) (pending publication, page numbers subject to change).
95. People v. Rodriguez, No. 1736/99, 2007 N.Y. Misc. LEXIS 6238 (Sup. Ct. Bronx County Sept.
7, 2007) (unpublished) (declining to impose post-release supervision); People v. Davis, No. 8222/00,
2007 N.Y. Misc. LEXIS 6153 (Sup. Ct. Kings County Sept. 4, 2007) (unpublished) (finding the court had
no authority to add a post-release supervision period because the judge failed to notify the defendant at
the time of sentencing that, because of his plea, he would be subject to a period of post-release
re-sentenced at any time after the original conviction.96 One court has held that a court could
not retroactively correct DOCS’s addition of a period of post-release supervision by adding a
period of post-release supervision to one of its past decisions when the court did not state
that it intended its decision to do so.97 If a period of post-release supervision was added to
your original sentence, you must check for updates on this area of the law, as it is constantly
changing.
Fourth, if you were placed on post-release supervision, the terms of that post-release
supervision were imposed by DOCS, not a judge, and you are then charged with violating the
terms of your post-release supervision, you cannot be re-incarcerated for violating those
terms.98 If you are incarcerated for these reasons, you are entitled to immediate release.
5. Length of Your Conditional Release
If you are conditionally released from a definite sentence, you will be on conditional
release for one yearno matter how little time you have left on your sentence.99 During this
time, you must continue to follow the terms of your conditional release agreement and the
Board of Parole will supervise you.100
If you are conditionally released from an indeterminate sentence, your conditional
release will last for the maximum amount of time left on your sentence.101 For example, if
you gain conditional release after serving nineteen years of a twenty-one-year determinate
sentence, you will be on conditional release for two years. If you get out on conditional
release after twenty years of an indeterminate sentence of fifteen to thirty years, you will be
on conditional release for ten years. For the rest of your conditional release, you will be in the
legal custody of the Board of Parole. You will have to obey the conditions of your release, and
you will have to report regularly to a parole officer, just like a person on parole.102 For more
information about parole, see Chapter 36 of the JLM.
If you are granted conditional release from a determinate sentence, you will be under
supervision for six months to five years. For more information about Jenna’s Law, see Part
B, Section C(4) above.
If you are granted conditional release from a determinate or indeterminate sentence, you
may be able to get an early discharge from conditional release supervision. The Board of
Parole has the power to grant a merit termination (as of September 1, 2009 an absolute
discharge) to some people on conditional release, unless the person was convicted of certain
specific charges, including violent felony offenses, sex offenses,103 some murder charges, hate
supervision was not a “mere mistake of fact or an inadvertent misstatement”).

96. See, e.g., People v. Giles, No. 1514/01, 2006 N.Y. Misc. LEXIS 3622, at *6–7 (Sup. Ct. Kings
County 2006 Dec. 1, 2006) (unpublished); People v. Keile, No. 9917-98, 2006 N.Y. Misc. LEXIS 2336
(Sup. Ct. N.Y. County Sept. 5, 2006) (unpublished) (recognizing that a court lacks inherent power to re-
sentence the defendant unless the judge misspoke but deciding to re-sentence the defendant in order to
give appellate courts a chance to review the issue).
97. People ex rel. Santos v. Warden, George R. Vierno Ctr., No. 75123-07, 2007 N.Y. Misc. LEXIS
7180 (Sup. Ct. Bronx County, Oct. 23, 2007) (unpublished).
98. People ex rel. Lucas Foote v. Piscotti, 51 A.D.3d 1407, 1408, 857 N.Y.S.2d 515, 515, No. 925
KAH 07-00912, slip op. at 1 (4th Dept. May 23, 2008) (pending publication, page numbers subject to
change); People ex rel. Gerard v. Kralik, 51 A.D.3d 1045, 1046, 858 N.Y.S.2d 771, 772, No. 2008-02692,
slip op. at 1–2 (2nd Dept. May 27, 2008) (pending publication, page numbers subject to change); see also
Prendergast v. N.Y. State Dep’t of Corr. Servs., 51 A.D.3d 1133, 1133–34, 856 N.Y.S.2d 725, 726, No.
503884, slip op. at 1–2 (3d Dept. May 1, 2008) (holding that only a court may impose post-release
supervision).
102. See N.Y. Penal Law § 70.40(1) (McKinney 2004 & Supp. 2007).
103. But see N.Y. Exec. Law § 259-j(4) (McKinney 2005 & Supp. 2007) which allows for a
crimes, terrorism, and some crimes involving youths.104 This relief is not available for anyone
required to register as a sex offender. This kind of merit termination satisfies all remaining
time on your sentence, as if you had served it all in prison.
The Board of Parole has the discretion to grant or withhold merit terminations. When
you become eligible for a merit termination is determined by the offense of your conviction. If
your conviction was for a Class A felony controlled substance offense, the Board of Parole
may grant you a merit termination after two years of uninterrupted conditional release. If
you were convicted of any other eligible offense, the Board of Parole has discretion to grant
you a merit termination from conditional release after one year of continuous release. The
Board of Parole also has discretion to grant you an absolute discharge from the remainder of
your conditional release after you have served three straight years of conditional release.105
Like a merit termination, an absolute discharge satisfies the remainder of your sentence.
After three straight years of conditional release, ask your parole officer about early
discharge. This option is unavailable if you are on conditional release from a definite
sentence, a sentence with a maximum term of life imprisonment, or a controlled substances
felony.
6. Revocation of Conditional Release
Conditional release can be revoked in the same way that parole can be revoked. Both the
Conditional Release Commission and the Board of Parole have broad discretion to revoke
conditional release.106 If an officer of the Conditional Release Commission (applicable if your
conditional release is from a definite sentence) or a parole officer (applicable if your
conditional release is from a determinate or indeterminate sentence) has reasonable cause to
believe that you have violated the conditions of release in an important respect, your
conditional release may be revoked.107 Examples of such violations include failure to appear
for a scheduled meeting with your parole officer or participation in criminal activities.
However, before your conditional release can be revoked, your parole officer must report your
actions to a member of the board, who may then issue a warrant for temporary detention.
The government must notify you within three days of the execution of the warrant issued
for the alleged violation, and the written notice must state the date, place, and purpose of the
hearing. 108 The notice must also inform you of which conditions you are alleged to have
violated, your right to appear and speak on your own behalf, your right to present evidence,
and your right to confront the witnesses who testify against you.109 The government will hold
a preliminary revocation hearing, which you are required to attend, within fifteen days of the
execution of the warrant.110 At this hearing, the government will determine whether there is
probable cause to believe that you violated the conditions of your release.111 If probable cause
is not found, the case will be dismissed, and you will be released again. 112 However, if
probable cause is found, the government must hold a revocation hearing within ninety
discharge of post-release supervision after three years if certain conditions are met.
104. N.Y. Exec. Law § 259-j (McKinney 2005 & Supp. 2007). For a complete list of offenses, see
N.Y. Exec. Law § 259-j(1) (McKinney 2005 & Supp. 2007).
105. N.Y. Exec. Law § 259-j(4) (McKinney 2005 & Supp. 2007).
106. See Hyser v. Reed, 318 F.2d 225, 234, 115 U.S. App. D.C. 254 (D.C. Cir. 1963) (en banc)
(finding statute gives Board of Parole broad discretion to both grant and revoke parole, without
requiring adversarial hearings).
107. N.Y. Exec. Law § 259-i(3)(a)(i) (McKinney 2005 & Supp. 2007).
108. N.Y. Exec. Law § 259-i(3)(c)(iii) (McKinney 2005 & Supp. 2007).
109. N.Y. Exec. Law § 259-i(3)(c)(iii) (McKinney 2005 & Supp. 2007).
110. See N.Y. Exec. Law § 259-i(3)(c)(iv) (McKinney 2005 & Supp. 2007).
111. N.Y. Exec. Law § 259-i(3)(c)(iv) (McKinney 2005 & Supp. 2007).
112. N.Y. Exec. Law § 259-i(3)(c)(vii) (McKinney 2005 & Supp. 2007).
days. 113 The government must notify you in writing at least fourteen days before the
revocation hearing of the date, place, and time of the hearing.114
The Conditional Release Commission or the Board of Parole must provide you with due
process before permanently revoking your conditional release. 115 In order to satisfy the
requirements of the Constitution’s Due Process Clause, there must be a finding by a
“preponderance of the evidence” (meaning that it must be “more likely than not”) that you
violated a term of your conditional release, and you must be given an opportunity to be
heard.116 You are also entitled to a lawyer at the hearing.117 At the hearing, you will be given
the opportunity to make a statement.118 You also have the right to present evidence on your
own behalf and to confront and cross-examine witnesses testifying against you.119 If it cannot
be determined by a “preponderance of the evidence” that a violation occurred, the case will be
dismissed, and you will again be released on parole.120 However, if it is determined that you
violated one or more conditions of your release in an important respect (such as failing to
appear for a scheduled meeting with your parole officer), your conditional release may be
revoked, and you will again be detained or your release may be modified. 121 If you are
released again, the time you spent in detention will be credited against the time you must
serve.122
7. Disadvantages of Conditional Release for Prisoners Serving
Definite Sentences
Although getting out of prison before the expiration of your maximum sentence seems
like the best possible outcome, under some circumstances, you may want to stay in prison
instead. If you are a definite-sentence prisoner, and you are conditionally released, you will
have to remain under the supervision of the Conditional Release Commission for a full year,
no matter how little time was left on your original sentence.123 When you are near the end of
a definite sentence (which could even be shortened by good-time credit), you might have to
choose between conditional release now (followed by a year of supervision) or another month
113. N.Y. Exec. Law §§ 259-i(3)(d), (f)(i) (McKinney 2005 & Supp. 2007).
114. N.Y. Exec. Law § 259-i(3)(f)(iii) (McKinney 2005 & Supp. 2007).
115. See Morrissey v. Brewer, 408 U.S. 471, 484, 92 S. Ct. 2593, 2601–02, 33 L. Ed. 2d 484, 495
(1972) (holding that because a parolee faces a severe loss of liberty if his parole is revoked, due process
is required before parole can be revoked). Although this ruling dealt with parole revocation, one can
argue the reasoning should apply equally to the conditional release revocation. See Kroemer v. Joy, 2
Misc. 3d 265, 268, 769 N.Y.S.2d 357, 360 (Sup. Ct. Yates County 2003) (finding prisoners in temporary
release status have a due process right to a hearing before their status is revoked since it would be a
loss of liberty.); Friedl v. City of New York, 210 F.3d 79, 84 (2d Cir. 2000) (finding that prisoner on work
release is entitled to procedural due process before his status can be denied to prevent a deprivation of
his liberty); Anderson v. Recore, 446 F.3d 324, 333–34 (2d Cir. 2006) (inmates have a protected liberty
interest in continuation in a temporary release program that affords them due process rights including
notice and a hearing before its revocation).
116. N.Y. Crim. Proc. Law §§ 410.70(1)(b), (3) (McKinney 2005); N.Y. Exec. Law § 259-i(3)(f)(v)–
(vi) (entitlement to hearing), (viii)–(ix) (requiring preponderance of evidence) (McKinney 2005 & Supp.
2007).
117 . N.Y. Crim. Proc. Law § 410.70(4) (McKinney 2005); N.Y. Exec. Law § 259-i(3)(f)(v)
119. N.Y. Crim. Proc. Law § 410.70(3) (McKinney 2005); N.Y. Exec. Law § 259-i(3)(f)(iv)-(vi)
120 . N.Y. Crim. Proc. Law § 410.70(5) (McKinney 2005); N.Y. Exec. Law § 259-i(3)(f)(ix)
121 . N.Y. Crim. Proc. Law § 410.70(5) (McKinney 2005); N.Y. Exec. Law § 259-i(3)(f)(x)
122. N.Y. Exec. Law § 259-i(3)(h) (McKinney 2005 & Supp. 2008).
or so in prison (followed by complete freedom from supervision). The local Conditional
Release Commission may grant conditional release near the end of your sentence just to keep
you under supervision for a year. Prisoners will often apply for conditional release when they
first become eligible for it, but will find that their requests are denied until shortly before
their sentence ends. If you are serving a definite sentence and the Commission agrees to
grant you conditional release, be sure you know exactly how much time you would have to
serve in order to finish your sentence in prison. Think about whether you would rather serve
your short additional time in prison, or spend what might be a longer time (one year) under
parole supervision. There are different reasons to make either of these choices, so neither is a
“wrong” decision. However, it is important to be aware of your options, and to realize how
much of your life you are committing to supervision (either by being incarcerated or by being
under post-release supervision). You are in the best position to decide which option makes
the most sense for you.
Section D. Early Release From a Definite Sentence
If you are serving a definite sentence but do not get out on conditional release, you can
still get out before the end of your sentence if you have earned good-time credit. Remember,
good-time credit is not used to determine eligibility for conditional release from a definite
sentence.
As soon as the amount of good-time credit that you have earned equals the time
remaining on your definite sentence, you should request to be unconditionally released.
Because you cannot earn good-time credit for more than one-third of your definite sentence,
you will have to serve at least two-thirds of your definite sentence before being eligible for
this automatic early release. 124 For example, if you were sentenced to nine months and
earned three months of good-time credit, your sentence can be reduced by three months,
making it a six month sentence.
As soon as you are eligible and request to be released, your sentence will be over: there is
no post-release supervision. Accordingly, unlike prisoners released on parole or on
conditional release, you will not have to sign a release agreement or worry about supervision
or parole officers. Although both conditional and early release allow you to leave prison
before serving your entire sentence, only early release also frees you from post-release
supervision.
Section E. Presumptive Release
In 2003, the New York State legislature enacted a new kind of release program called
presumptive release.125 In some ways, presumptive release is a lot like parole. The one major
difference, however, is that presumptive release is designed to encourage the early release of
model, good-behaving prisoners. That is, presumptive release is intended to be readily
available for prisoners who have followed prison rules, participated in their assigned work
and participated in their treatment programs. In addition, unlike parole, you do not have to
appear before the Board of Parole to be released.
Although you do not have a right to demand presumptive release,126 you may be eligible
if you meet certain requirements. First, the presumptive release program is only available to
124. N.Y. Correct. Law § 804(a)(1) (McKinney 2003 & Supp. 2008).
125. N.Y. Correct. Law § 806 (McKinney 2003 & Supp. 2008) (scheduled repeal postponed until
Sept. 1, 2009 by L.2007, c. 56, pt. C, § 17 (2007)). This law is set to expire on September 1, 2009. After
this date, check for presumptive release program updates, likely available online at:
http://www.docs.state.ny.us/ProgramServices/guidance.html#earn.
126. N.Y. Correct. Law § 806(5) (McKinney 2003 & Supp. 2008) (scheduled repeal postponed
until September 1, 2009 by L.2007, c. 56, pt. C, § 17 (2007). Because you cannot earn good-time credit
for more than one-third of your definite sentence, you will have to serve at least two-thirds of your
definite sentence before being eligible for this automatic early release.126 For example, if you were
those prisoners serving one or more indeterminate sentences. Second, the presumptive
release program is only available to prisoners serving sentences for non-violent crimes,127
who have not committed any serious disciplinary infractions, 128 and who have not been
deemed to have filed or continued frivolous (not serious) legal complaints.129
1. Earned Eligibility Program
To be eligible for presumptive release, you must first receive a “certificate of earned
eligibility.” Whether you are serving an indeterminate or a determinate sentence, you should
have been assigned a work and treatment program. About two months before your earliest
possible parole date, the commissioner will review your record to determine if you have
complied with this program. 130 If the commissioner decides you have successfully
participated in your program, he or she may issue you a certificate of earned eligibility. This
certificate will factor into your parole hearing and also play a key role in getting presumptive
release.
2. Merit Time for Presumptive Release
Merit time shortens the length of your sentence by reducing the minimum length of an
indeterminate sentence, unlike good-time credits that reduce the maximum length of an
indeterminate sentence. If you are serving an indeterminate sentence and you are not
serving a sentence for a violent crime,131 you may now receive merit-time allowances of up to
sentenced to nine months and earned three months of good-time credit, your sentence can be reduced
by three months, making it a six-month sentence.
127. Under New York State law, a prisoner is not eligible for presumptive relief if he is presently
serving a sentence for, or has been previously convicted of, the following violent crimes: (1) a Class A-I
felony, (2) a violent felony offense under Section 70.02 of the New York Penal Law, (3) manslaughter in
the second degree, (4) vehicular manslaughter in the second or first degree, (5) criminally negligent
homicide, (6) an offense in Article 130 of the New York Penal Law (“relating to sex offenses”), (7) incest,
or (8) an offense defined in Article 263 of the New York Penal Law (“relating to the use of a child in a
sexual performance”). N.Y. Correct. Law § 806(1)(i) (McKinney 2003 & Supp. 2008) (scheduled repeal
postponed until Sept. 1, 2009 by L.2007, c. 56, pt. C, § 17 (2007)). This law is scheduled to expire on
September 1, 2009. After this date, you should check for updates about the presumptive release
program. Updates may be available online at:
128. N.Y. Correct. Law § 806(1)(ii) (McKinney 2003 & Supp. 2008) (scheduled repeal postponed
until Sept. 1, 2009 by L.2007, c. 56, pt. C, § 17 (2007)). This law is scheduled to expire on September 1,
2009. After this date, you should check for updates about the presumptive release program. Updates
may be available online at: http://www.docs.state.ny.us/ProgramServices/guidance.html#earn.
129. N.Y. Correct. Law § 806(1)(iii) (McKinney 2003 & Supp. 2008) (scheduled repeal postponed
until September 1, 2009 by L.2007, c. 56, pt. C, § 17 (2007)). This law is scheduled to expire on
130. N.Y. Correct. Law § 805 (McKinney 2003 & Supp. 2007). This law is scheduled to expire on
Sept. 1, 2009. After this date, you should check for updates about the presumptive release program.
Updates may be available online at: http://www.docs.state.ny.us/ProgramServices/guidance.html#earn.
or (8) an offense defined in Article 263 of the New York Penal Law (“relating to the use of a child in a
sexual performance”). N.Y. Correct. Law § 806(1)(i) (McKinney 2003 & Supp. 2008) (scheduled repeal
one-sixth of the minimum period of your sentence. For example, if you are serving a sentence
of two to five years, you may receive a merit-time allowance of up to four months, which is
one-sixth of the minimum period of two years. If you received this credit, you would first be
eligible for presumptive release after serving five-sixths of the minimum period of your
sentence,132 or in this example, you would be eligible after one year and eight months.
If you are serving an indeterminate or determinate sentence for a felony drug offense
under New York Penal Law Section 70.70 or Section 70.71, you are eligible to earn an
additional merit-time allowance of up to one-seventh of the minimum term imposed by the
court.133 This means that you can earn this one-seventh of merit time on top of the one-sixth
of merit time discussed above. You gain merit-time allowances in the same way you receive
good-behavior credit, which is discussed above. In addition, you can be refused any part or all
of merit-time credit for “bad behavior, violation of institutional rules or failure to perform
properly in the duties or program assigned.”134
3. Requesting Presumptive Release
To get presumptive release, you must (1) have a certificate of earned eligibility,135 (2) not
have been convicted of a violent offense,136 (3) not have committed any serious disciplinary
violations while in prison, (4) not have filed any frivolous lawsuits, and (5) if you received
merit time, have already served at least five-sixths of your minimum sentence (or total
minimum sentences); or, if you have not received merit-time credit, have already served your
entire minimum sentence (or total minimum sentences).
If you meet those criteria, you can apply for presumptive release by filling out the form
provided by the Division of Parole.137 You will not have to appear before the Board of Parole.
Once you have applied for presumptive release and met the criteria, you will be released
unless the commissioner determines that you are a threat to the community or release would
not be good for your own welfare.
The conditions of presumptive release will be very similar to the conditions of parole or
conditional release.138 You will be subject to the supervision of the Board of Parole for the
rest of your un-served sentence. For example, if you were serving a sentence of two to five
years, the first possible time for you to receive presumptive release would be after one year
and eight months (five-sixths of your minimum sentence). You would then be subject to
132. N.Y. Correct. Law § 806(2) (McKinney 2003 & Supp. 2008) (scheduled repeal postponed
until Sept. 1, 2009 by L.2007, c. 56, pt. C, § 17 (2007)). This law is scheduled to expire on September 1,
2009. After this date, you should check for updates about the presumptive release program. Updates
may be available online at: http://www.docs.state.ny.us/ProgramServices/guidance.html#earn.
133. N.Y. Correct. Law § 803(d)(i) (McKinney 2003 & Supp. 2008).
135. See N.Y. Correct. Law § 805 (McKinney 2003 & Supp. 2008).
or (8) an offense defined in Article 263 of the Penal Law (“relating to the use of a child in a sexual
performance”). N.Y. Correct. Law § 806(1)(i) (McKinney 2003 & Supp. 2008) (scheduled repeal
138 . N.Y. Penal Law § 70.40(1)(c) (McKinney 2004 & Supp. 2008). Note that this law is
scheduled to expire on September 1, 2009, and after this date, you must check for the new, updated
version of this law.
parole-like conditions for the rest of your five-year maximum sentence—in this case, that
would be three years and four months.
Section F. Clemency and Commutation in New York
“Clemency” is a general term for the power of an executive officer (the Governor of New
York, for example) to change the sentence of a criminal defendant to prevent injustice from
occurring.139
There are several different types of clemency, including amnesty, a reprieve, a pardon,
and a commutation. Amnesty applies to a group of people who have committed political
offenses. A reprieve postpones a scheduled execution. A pardon attempts to clear a person’s
name of a crime and restore their reputation, while a commutation just substitutes a milder
sentence for the current sentence being served.140 Most battered women seeking clemency
request a commutation of sentence.
In most cases, all these forms of clemency are difficult to obtain. If you are a non-violent
offender, or a woman who is in jail for killing an abusive partner, however, you might have a
stronger chance of getting clemency. Accordingly, this Section focuses on clemency for
battered women. If you are not a battered woman and still seeking clemency, the outlined
procedures will still be helpful to you in preparing your petition. This is because the basic
procedures for filing a good petition apply to all types of clemency petitions, even those that
are not based on domestic abuse.141
Note that if you are currently seeking clemency for a death sentence, you should read
Harbison v. Bell,142 a case that the Supreme Court will decide after this manual goes to print.
This case will decide whether a prisoner is entitled to a lawyer when petitioning for clemency
in capital offenses. Finally, for more information on clemency in the state of New York, see
“Guidelines for Review of Executive Clemency Applications,” which is on file in the law
library of each correctional facility in New York.143
1. Pardons
Pardons are different from commutations. A pardon is most commonly available if (1)
there is overwhelming and convincing proof of your innocence that was not available at the
time of your conviction, (2) a disability imposed on the judgment of conviction, or (3) a chance
139. Albany Law School, Post-Conviction Remedies Clinic Clemency Manual 13 (1996). In thirty-
five states, including New York, the governor grants clemency. In other states either the governor and
an advisory board, or an advisory board alone, makes the decision. The Mich. Women’s Clemency and
Justice Project, Clemency for Battered Women in Michigan: A Manual for Attorneys, Law Students and
Social Workers, ch. II-A, available at http://www.umich.edu/~clemency/clemency_manual.html (last
visited Sept. 22, 2008). For more information about the rules of clemency and commutation in other
states, see Margaret Colgate Love, The Sentencing Project, Relief from the Collateral Consequences of
a Criminal Conviction: A State-By-State Resource Guide (2008), available at
http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=486.
140 . The Mich. Women’s Clemency and Justice Project, Clemency for Battered Women in
Michigan: A Manual for Attorneys, Law Students and Social Workers, ch. II-A, available at
http://www.umich.edu/~clemency/clemency_manual.html (last visited Sept. 22, 2008).
141. For further information on clemency for battered women nationwide, contact the National
Clearinghouse for the Defense of Battered Women, 125 S. 9th Street, Suite 302, Philadelphia, PA
19107, (215) 351-0010 or (800) 903-0111 extension 3. The Clearinghouse accepts collect calls from
incarcerated battered women.
142. Harbison v. Bell, 128 S. Ct. 2959 (2008).
143. N.Y. State Div. of Parole, New York State Parole Handbook: Questions and Answers
Concerning Parole Release and Supervision 45 (2007), available at
http://parole.state.ny.us/handbook.pdf.
that you will be deported from the United States.144 Usually a pardon is not available if you
have any other administrative or legal remedy available to you.145
2. Commutations
A commutation of your sentence allows you to appear before the Board of Parole for
consideration of release on parole earlier than your sentence would otherwise allow. A
commutation of sentence, when exceptional and compelling circumstances are not present,
requires all of the following:
(1) your minimum sentence is more than one year;
(2) you have already served at least half of your minimum sentence;
(3) you are ineligible for release on parole within one year of the date you apply for
clemency; and
(4) you are ineligible for release on parole at the discretion of the Board of Parole.146
In addition, you must be able to prove, by clear and convincing evidence, that one of the
following three circumstances applies:
(1) You have made “exceptional strides in self-development and improvement;” you have
“made responsible use of available rehabilitative programs and [have] addressed
identified treatment needs” (for example, by completing a drug program); and
commutation of your sentence is “in the interest of justice, consistent with public
safety and [with your] rehabilitation.”
(2) You have a terminal illness or a “severe and chronic disability which would be
substantially mitigated by release from prison and such release is in the interest of
justice and consistent with public safety” (disorders such as cancer and multiple
sclerosis may qualify).
(3) “[F]urther incarceration would constitute gross unfairness because of the basic
inequities involved.”147
3. How to Request a Pardon or Commutation
To be considered for clemency in New York, send a written petition requesting clemency
to either of the following addresses:
The Governor of the State of New York
Executive Chamber
State Capitol
Albany, NY 12224
Director, Executive Clemency Bureau
N.Y. State Division of Parole
97 Central Avenue
Albany, NY 12206
After the Governor receives a petition requesting clemency, he or she then compiles the
necessary information. The Governor only grants formal hearing to those seeking
commutation of a death sentence. The Governor will review the information and make a
decision. 148 The petitioner should send all supporting application materials within thirty
144. N.Y. Exec. Law § 15 (McKinney 2002 & Supp. 2008).

145. N.Y. Exec. Law § 15 (McKinney 2002 & Supp. 2008). Examples of administrative remedies
include a certificate of relief from disabilities or a certificate of good conduct. Information concerning
these certificates may be obtained by calling the New York State Board of Parole at (518) 473-9400.
days of sending the petition. Petitions are typically considered in the order in which they are
received.149
(a) Organization of Petition
To organize your petition, you want to explain the strongest part of your petition right
away in an introductory paragraph or section. This might include special circumstances
pertaining to your case or significant things you have accomplished in prison.150 Make the
petition as brief as possible, while still including all important information. Use headings to
separate your points. Emphasize how you have spent your time in prison. Write out in detail
your post-release plans (how you will be moving into a stable environment, how you will
support yourself, and who is included in your support network).
If you were the victim of domestic violence and the domestic violence is related to your
conviction, consider making a table that includes the date of each incident of abuse, the
nature of the abuse, and a description of the evidence, if any, that exists to prove the
incident.151
(b) Exhibits
In order to show strong character and good behavior, you can include evidence such as
letters of support from prison administrators, work supervisors, religious leaders, educators,
and social workers. You should include this evidence as exhibits to your petition. If you were
a victim of abuse, you should also include police and hospital records documenting the abuse.
To obtain police records, you should call or write to the records office in the county where
the event in question happened. Different police departments have different policies and you
may have to fill out a Freedom of Information Act (FOIA) request.152 To obtain hospital
records, call or write to the patient records office at the hospital where you went for
treatment. A written request should include your name, date of birth, Social Security
Number, the specific date or general time range of your hospitalization, and the specific
information you are requesting.153
If you were a victim of domestic violence abuse, and you were evaluated by an expert
regarding battered women’s syndrome, you should include that evaluation or testimony, as
well as evidence of any violent criminal history of your abuser. Include any orders of
protection and photographs showing physical injury from the abuse. You also want to attach
affidavits or letters from friends, family members, and domestic violence workers who had
first-hand knowledge of the abuse.154 You should refer to these exhibits in your petition,
labeling and attaching them to the end of the petition.
(c) Obtaining Documents
Getting documents related to your case and your prison term will help you write your
petition. Because you may have difficulty getting all of these documents while incarcerated,
you should try to have a close friend or family member assist you in gathering this
information and in developing your petition. For information on the Federal Freedom of
Information Act (FOIA), the Federal Privacy Act (PA), and New York’s Freedom of
149. Criminal Justice Policy Foundation, New York: Applicable Form of Executive Clemency,
available at http://www.cjpf.org/clemency/NewYork.html (last visited Sept. 28, 2008).
150. Albany Law School, Post-Conviction Remedies Clinic Clemency Manual 16 (1996).
151 . The Mich. Women’s Clemency and Justice Project, Clemency for Battered Women in
Michigan: A Manual for Attorneys, Law Students and Social Workers, ch. VII, available at
http://www.umich.edu/~clemency/clemency_manual.html (last visited Sept. 22, 2008).
152. For more information, see JLM Chapter 7, “Freedom of Information.”
Information Law (FOIL), see JLM Chapter 7, “Freedom of Information.” JLM Chapter 7 also
includes a list of FOIA statutes in other states. You will want to obtain your DOCS records
(records pertaining to the time you have spent in prison), your parole file, your case file,
documentation of battering (if applicable), and affidavits or letters of support.
(i) Your DOCS records
Your DOCS records include:
(1) All reports of misbehavior and supplemental sheets;
(2) Physical force and unusual incident sheets;
(3) Adjustment committee reports and dispositions;
(4) Copy of legal dates;
(5) Crimes of commitment;
(6) Personal history record;
(7) Disciplinary record;
(8) Correctional supervision history;
(9) Certificates of program completion; and
(10)Recognition letters
You have a right to this information under FOIA and New York’s Personal Privacy
Protection Law (PPPL),155 but you must authorize release of these records if they are being
sent to someone other than you. In order to obtain these documents, you should write to the
prisoner records coordinator of your facility with your name, DOCS number, where you
would like the records sent, and a list of the documents you want to receive. If the documents
are being sent to someone other than you, you must state that you authorize that person to
receive the documents you are requesting.
(ii) Your parole records
You also have a right to your case record and parole file under FOIL/PPPL. The case
record is the most complete set of records maintained by the Board of Parole and can be
obtained by writing to the senior parole officer of your facility with your name, ID number,
and release interview date, revocation hearing date, or appeal pending date, whichever
applies. State that you want to review all the information in the file that will be considered
by the Board of Parole to prepare for the upcoming date.
The parole file is a less complete record in the central office, and it can be obtained by
writing to the following address:
Chairman of the Board of Parole
97 Central Avenue,
Albany, NY 12206.
Be sure to state that you are requesting these records pursuant to FOIA and PPPL.
(iii) Your Case file
The case file includes:
(1) Police reports;
(2) Grand jury minutes;
(3) Indictment;
(4) Pretrial hearings and motions;
(5) Trial transcripts;
(6) Summation;
(7) Jury charge;
(8) Jury requests/read backs;
155. N.Y. Pub. Off. Law §§ 94, 95 (McKinney 2008).

(9) Verdict;
(10)Sentencing;
(11)Plea allocutions of co-defendants;
(12)Direct appeal appellate and response briefs;
(13)Reply/supplemental brief;
(14)Decision on appeal; and
(15)Anything else of interest in the court file.
Ask your attorney for copies of these documents and transcripts. If your attorney does
not have complete transcripts, you may need to call the criminal courthouse to obtain copies.
For your rap sheet, send a request to:
Record Review Unit
New York State Division of Criminal Justice Services Civil Identification Bureau
4 Tower Place
Albany, New York 12203.
You should include your name, date of birth, Social Security Number, D.I.N. number,
and send the request in a facility envelope, if possible. You can also ask them to rush
processing of your file if you need the information quickly. Otherwise, it can take eight weeks
or longer to receive your rap sheet.
You also have a right to obtain pre-sentencing reports, though you may be asked to show
a factual need for the reports.156 To get them, send a written request addressed “To Whom It
May Concern” to the above address, with your name, birth date, indictment number,
sentencing court, the address you would like the information sent, and a signed release
authorizing another person to receive the information, if necessary.
(iv) Documentation of battering
Documentation of battering should include:
(1) Medical records of injuries from abuse;
(2) Mental health records showing your diminished capacity at the time of the crime
and/or the stress, fear and anxiety caused by living in a violent relationship;
(3) Orders of protection;
(4) Police reports related to the abuse; and
(5) Photographs showing physical injury.
Try to obtain copies of any relevant records from hospitals, clinics, private doctors, or
mental health clinicians, as well as police reports of incidents of domestic violence.
(v) Affidavits or letters of support
You should also include affidavits and letters of support in your petition. An affidavit is a
written statement that the author signs and swears to be true before someone who is
authorized to administer an oath, such as a notary public. You can ask family members,
friends, co-workers, doctors, neighbors, therapists, and others involved in your life to prepare
an affidavit. You can also ask them to submit letters of support. The affidavit or letter of
support should explain that you were battered and/or describe the crime. When you submit
the affidavits or letters in your petition, you should state whether these people testified at
your criminal trial.157

157. Albany Law School, Post-Conviction Remedies Clinic Clemency Manual 6–7 (1996).
Section G. Compassionate Release for Persons with Terminal Diseases
Thirty-six states have programs that allow for the release of dying or seriously ill
prisoners.158 For example, California has a compassionate release procedure that allows the
court to re-sentence or recall the sentence. 159 You must have an incurable and terminal
illness that will produce death within six months or be permanently medically incapacitated
(as determined by a physician employed by the department of corrections) and must not pose
a threat to public safety. This does not apply if you are sentenced to death or to a term of life
without the possibility of parole. If you are incarcerated in California and are interested in
receiving a compassionate release, you or someone you designate should contact the chief
medical officer of the prison or the Director of Corrections.
Every state’s rules are different, and many states have recently implemented new
programs or are considering new legislation on this issue. For example, in 2008, Alabama,
North Carolina, and Wyoming introduced new compassionate release programs. 160 If you
have a serious or terminal illness or are elderly, you should check to see if your state has a
compassionate release program.
New York State prisons also release some prisoners through medical parole.161 To be
eligible, you must have a terminal health condition.162 You must also be so incapacitated or
debilitated that you cannot care for yourself.163 To prove this, you must have a physician’s
certification that you are “severely restricted in [your] ability to self-ambulate [move around]
and to care for [yourself].” 164 Not only must you have a doctor’s certification, but the
Commissioner of DOCS (or someone authorized by the Commissioner) must also certify both
the doctor’s diagnosis and your incapacity. Officials will consider the length of and reason for
your incarceration, as well as your rap sheet. You are not eligible if you are serving a
sentence for first or second degree murder, first degree manslaughter, or any sex offense
(defined by Article 130 of the New York Penal Law), or an attempt to commit any of these
crimes.165 Even if you are not eligible for medical parole because your initial parole eligibility
date is past, you may be eligible for a full review by the Board of Parole of your case for
medical reasons.166
158. Marty Roney, 36 States Release Ill or Dying Inmates, USA Today, Aug. 14, 2008 (listing
states with a medical release program).
159. See Cal. Penal Code § 1170(e)(2) (West 2004 & Supp. 2008).
160. See Ala. Code § 14-8-80 (2008); N.C. Gen. Stat. § 15A-1369 (2008); Wyo. Stat. § 7-13-424 (iv)
(Supp. 2008).
161. N.Y. Exec. Law § 259-r (McKinney 2005 & Supp. 2008). Note that this law is scheduled to
expire on September 1, 2009, and after this date, you must check for the new, updated version of this
law. See also State of New York, Department of Correctional Services, Directive No. 4304, Medical
Parole (1997) (as revised Feb. 1, 2000), available at http://www.docs.state.ny.us/Directives/4304.pdf;
N.Y. State Div. of Parole, New York State Parole Handbook: Questions and Answers Concerning Parole
Release and Supervision 8–9 (2007), available at http://parole.state.ny.us/handbook.pdf (providing
additional procedures and guidelines).
162. See State of New York, Department of Correctional Services, Directive No. 4304, Medical
Parole (1997) (as revised Feb. 1, 2000), available at http://www.docs.state.ny.us/Directives/4304.pdf.
163. State of New York, Department of Correctional Services, Directive No. 4304, Medical Parole
(1997) (as revised Feb. 1, 2000), available at http://www.docs.state.ny.us/Directives/4304.pdf.
Parole (1997) (as revised Feb. 1, 2000), available at http://www.docs.state.ny.us/Directives/4304.pdf;
N.Y. Exec. Law § 259-r(1)(a) (McKinney 2005 & Supp. 2008). Note that New York Executive Law
Section 259-r is scheduled to expire on September 1, 2009, and after this date, you must check for the
new, updated version of this law.
The New York medical parole process has three steps.167 First, if you want to begin the
process, you have a few options.168 If you are currently in prison and you think you might be
eligible, you need a physician’s certification to start the process. To get this, you or someone
acting on your behalf must make a request to the Commissioner of DOCS or the Division of
Health Services that you be considered for medical parole. 169 If you are eligible, the
Commissioner has discretion to order a medical evaluation and discharge plan. A physician
employed by DOCS, or by a medical facility used by DOCS, can perform the evaluation.
During the evaluation, the physician will make observations on the following: the disease,
syndrome, or terminal condition you suffer from; the likelihood of your recovery; the extent of
your debilitation or physical incapacity and its possible duration; the medications and
dosages you are currently taking; and your ability to administer them to yourself.170
The second step begins when the medical evaluation report plan is sent to the Associate
Commissioner, who will advise the Commissioner whether you meet the criteria for medical
parole. The Associate Commissioner will determine whether you are “so debilitated or
incapacitated as to create a reasonable probability that [you are] physically incapable of
presenting any danger to society.”171 If the Commissioner decides that you meet the criteria
for medical parole, the matter is referred to the Board of Parole for consideration. At that
time, the Central Health Services staff and the correctional facility will begin to prepare a
medical discharge plan. The medical discharge plan includes information on the level of care
you will need, a description of special equipment or transportation needs, a description of
your participation in the discharge plan, home-care plans if applicable, a description of any
support needed by you or your care-giver, a report on the status of applications for Public
Assistance or Medicaid, and a report on the status of applications for institutional placement.
If it appears that you are in need of Public Assistance, an application will be sent to the
Department of Social Services.172
If you can get both the physician’s certification and the Commissioner’s certification, and
there is no other reason you would be ineligible, you may receive compassionate release, also
called medical parole.173 However, getting through the third phase of formal review by the
Board of Parole can be very difficult. The process has many steps and can take a long time.174
Before the Board of Parole releases you, there are a few other things that must happen. The
167. For an explanation of the process and problems with compassionate release in New York,
see John A. Beck, Compassionate Release from New York State Prisons: Why Are So Few Getting Out?,
27 J.L. Med. & Ethics 216 (1999).
168. Physicians in the prison system can also initiate the request for you. See State of New York,
Department of Correctional Services, Directive No. 4304, Medical Parole (1997) (as revised Feb. 1,
2000), available at http://www.docs.state.ny.us/Directives/4304.pdf (stating that someone acting on the
prisoner’s behalf or a department employee may also make the request).
Parole (1997) (as revised Feb. 1, 2000), available at http://www.docs.state.ny.us/Directives/4304.pdf.
(1997) (as revised Feb. 1, 2000), available at http://www.docs.state.ny.us/Directives/4304.pdf; N.Y. Exec.
Law § 259-r(2)(a) (McKinney 2005 & Supp. 2008).
171. N.Y. Exec. Law § 259-r(2)(b) (McKinney 2005 & Supp. 2008). Note that this law is scheduled
to expire on September 1, 2009, and after this date, you must check for the new, updated version of this
law.
172. State of New York, Department of Correctional Services, Directive No.4304, Medical Parole
173. N.Y. State Div. of Parole, New York State Parole Handbook: Questions and Answers
Concerning Parole Release and Supervision 8 (2007), available at
http://parole.state.ny.us/handbook.pdf.
174. See generally John A. Beck, Compassionate Release from New York State Prisons: Why Are
So Few Getting Out?, 27 J.L. Med. & Ethics 216 (1999) (highlighting inefficiencies in New York medical
parole and suggesting changes).
judge who sentenced you, the District Attorney, and the attorney who represented you will
all be notified that you might receive parole, and they can each submit comments within
fifteen days.175 Additionally, DOCS must provide “an appropriate medical discharge plan” to
the Board of Parole.176 The Board must assess whether, considering your medical condition,
it is reasonably possible you will live outside of prison without breaking the law. It must also
consider whether letting you out on such a release might be harmful to society, or will go
against society’s idea of fairness, taking into account the seriousness of your crime. Another
consideration the Board will make is whether your release will “undermine respect for the
law.”177 The process can take months, so it is very important to start it as soon as you become
eligible.
If parole is ultimately granted, the health services staff will send copies of all appropriate
medical records to the physician or facility that will care for you. Once you are released, you
must get medical care as appropriate and remain under the care of a physician.178 Every six
months after your release, the Board will review your case, deciding whether to let you stay
out of prison by renewing the grant of parole.179 Each time, you will need to submit to a
medical examination.180
C. Federal Sentences
This Part explains the different ways that you can be released early from your federal
sentence. In general, there are four main ways that you can get out before your full sentence
is served.
First, you can earn credit for time you served in prison prior to beginning your sentence.
To learn more about what types of time previously served can be used to shorten your
sentence, see Part C, Section A of this Chapter, which describes this option in more detail.
Second, you may be able reduce your sentence by helping the government investigate or
prosecute other people. There is no guarantee, though, that your sentence will be reduced if
you provided such assistance. Even if your sentence is reduced, it is up to the court to decide
by how much it will reduce your sentence. To determine if you are eligible for this type of
reduction, see Part C, Section B of this Chapter, which explains this option in more detail.
Third, the Bureau of Prisons (BOP) can shorten your sentence by (1) awarding you “good
conduct time credits”; (2) granting you early release for participation in a Residential Drug
Abuse Program (RDAP); (3) granting you release under the Second Chance Act; or (4)
granting you compassionate relief. To determine if you are eligible for these programs, learn
how to apply for programs, and understand their potential effect on your sentence, see Part
C, Section C of this Chapter
175. N.Y. Exec. Law § 259-r(1)(c) (McKinney 2005 & Supp. 2008). Note that this law is scheduled
law.
176. N.Y. Exec. Law § 259-r(2)(c) (McKinney 2005 & Supp. 2008). Note that this law is scheduled
law.
law.
law.
179. N.Y. Exec. Law § 259-r(4)(a), (e) (McKinney 2005 & Supp. 2008). Note that this law is
scheduled to expire on September 1, 2009, and after this date, you must check for the new, updated
version of this law.
180. N.Y. Exec. Law § 259-r(4)(d) (McKinney 2005 & Supp. 2008). Note that this law is scheduled
law.
Finally, in very rare cases, the President of the United States can grant you executive
clemency, which releases you from your prison sentence and/or your term of supervised
release. The President can also forgive your crime after you have finished serving your
sentence and shown your remorse and rehabilitation. Federal executive clemency is
discussed in Part C, Section E of this Chapter.
This Part also explains federal supervised release. Federal supervised release is an
additional sentence that a judge can impose that you must serve after you complete your
prison sentence. During a period of federal supervised release your conduct will be monitored
by a probation officer to make sure that you do not violate any of the conditions of your
supervised release. Federal supervised release and its conditions can be revoked, which could
result in your being sentenced to an additional term of imprisonment, terminated or
modified. Part C, Section D of this Chapter explains federal supervised release in more
detail.
Section A. Credit for Time Served
In addition to the time you spend serving your current federal sentence you can receive
credit for time that you already served in prison after the date you committed your current
federal offense but before you began serving your current sentence. The amount of time that
is credited towards your sentence for “time served” is determined by the Attorney General or
the BOP after the district court announces your sentence.181 District courts cannot directly
order that time previously served be credited to reduce the length of your current sentence.
You can only challenge the amount of time credited towards your sentence by first
exhausting your administrative remedies with the BOP.182
You can only receive credit for time spent in “official detention.” The Supreme Court in
Reno v. Koray found “official detention” to mean time spent under federal detention.183 This
does not include time on release, like on bail or under house arrest. The BOP interprets Reno
v. Koray to mean that you are “not entitled to any time credit off the subsequent sentence,
regardless of the severity or degree of restrictions, if such release was a condition of bond or
release on own recognizance, or as a condition of parole, probation or supervised release.”184
However, you still can receive credit for time spent in a community treatment center or lower
security placement if it is ordered as a condition of your presentence detention or because of
overcrowding in federal facilities.185
There are three types of credit that can count against your sentence as “time served”:
(1) time actually spent serving a federal sentence,
(2) time previously served, and
(3) time in non-federal pre-detention custody when you are denied bail under a federal
detainer.186
181. United States v. Wilson, 503 U.S. 329, 333, 112 S. Ct. 1351, 1353, 117 L. Ed. 2d 593, 599
(1992).
182. United States v. Whaley, 148 F.3d 205, 207 (2d Cir. 1998) (holding that a district court does
not have jurisdiction to hear an inmate’s appeal to a sentencing determination until the inmate has
requested review with the Bureau of Prisons (BOP) and exhausted all of his administrative remedies).
183. Reno v. Koray, 515 U.S. 50, 61, 115 S. Ct. 2021, 2027, 132 L. Ed. 2d 46, 57 (1995) (holding
that the time spent by the plaintiff in a community treatment center while on bail would not be
credited against his federal sentence, as he was on release and thus not in official detention).
184 . Fed. Bureau of Prisons, Program Statement 5880.28, at 1-14G (1997), available at
http://www.bop.gov/policy/progstat/5880_028.pdf.
185 . Fed. Bureau of Prisons, Program Statement 5880.28, at 1-14F (1997), available at
186. Stackpole v. Williamson, No. 3:CV-07-0396, 2007 U.S. Dist. LEXIS 54992, at *6–7 (M.D.
Penn. July 30, 2007).
The first category—time actually spent serving a federal sentence—refers to the time
spent serving your current federal sentence. Your federal sentence does not begin until the
date you are “received in custody awaiting transportation to” or you arrive voluntarily to
begin serving your sentence at the official facility where you will be serving your federal
sentence.187 This time you serve can be reduced even further if you obtain good conduct time
credits188 and/or early release under the RDAP.189
The second category—time previously served—allows credit to be applied for time
previously served in official detention (state, foreign, or federal) before the date when your
federal sentence began. In general, credit can apply from time that you spent in detention for
(1) your current offense prior to sentencing, or (2) any other offense for which you were
arrested after you committed the current offense, provided that the time has not been
credited against another sentence.190 For example, you can include the time you spent in
federal custody after arrest on your federal charge.191 This includes the time spent in federal
custody before sentencing, including time spent in state proceedings.192
You may also be able to receive credit for the time (after your federal offense) that you
spent in custody serving another sentence that was not and will not be counted towards any
sentence. For example, if you were serving time in official detention for a state or foreign
sentence that was later vacated and you were not re-sentenced, you can include this time.
Likewise, if you were serving a federal, state, or foreign sentence that was vacated and you
were re-sentenced to a period shorter than that which you already served, the extra time
beyond time already served on that sentence can be applied to your federal sentence.193
If you were arrested for a different offense after you committed the offense for which you
were sentenced, and you spent time in official detention for that different offense, you can
receive credit for that time you spent in detention prior to receiving the sentence you are now
serving.194 You can also receive credit for time in a state facility when a federal court has
ordered that your federal and state sentences run concurrently (at the same time). While a
state court decision may recommend that your state and federal sentences run concurrently,
many courts have held that federal authorities do not need to follow the state’s
recommendation. Therefore, any time spent serving the state sentence in a state facility
while waiting for transport or transfer to the federal facility will NOT be credited against
your sentence as time already served.195 However, if you are first convicted in state court and
later convicted in federal court, the federal court can order that your sentences run
concurrently, starting on the date that the federal sentence is announced or imposed by the
187. 18 U.S.C. § 3585(a) (2006).

188. 18 U.S.C. § 3624(b) (2006).
189. 18 U.S.C. § 3621(e) (2006).
190. 18 U.S.C. § 3585(b) (2006).
191. In Jonah R. v. Carmona, the Ninth Circuit applied these provisions to grant juveniles credit
for time spent in pre-detention custody. 446 F.3d 1000, 1010 (9th Cir. 2006).
192. Fed. Bureau of Prisons, Program Statement 5880.28, at 1-16 to 1-16A (1997); available at
193 . Fed. Bureau of Prisons, Program Statement 5880.28, at 1-17 (1997); available at
194. 18 U.S.C. § 3585(b)(2) (2006) (authorizing a defendant to receive credit for any time spent in
official detention prior to the date the sentence commences, when that detention time was the result of
any other charge for which the defendant was arrested after the commission of the offense for which the
defendant was sentenced).
195. Leal v. Tombone, 341 F.3d 427, 429 (5th Cir. 2003) (holding that federal authorities are not
required to follow state recommendations for state and federal sentences to run concurrently and
therefore are under no obligation to credit time served in state prison that could have been served in
federal prison if authorities had chosen to commence transfer earlier (citing Taylor v. Sawyer, 284 F.3d
1143 (9th Cir. 2002) and Bloomgren v. Belaski, 948 F.2d 688, 690−91 (10th Cir. 1991)).
court.196 If your federal sentence is decided before or after your state sentence, it must state
specifically that it is to run concurrently with your state sentence or it will automatically run
consecutively.197 Only the time that you remained in state prison after the federal sentence
was pronounced can be credited towards your federal sentence.
Note that you cannot “double count” credit for any previous time served in state or
federal prison that has already been counted against your state sentence or a different
federal sentence. 198 This rule includes time spent on detainer related to your trial and
prosecution for unrelated federal charges,199 as well as time served in federal pre-sentence
custody that has been credited to your state sentence.200 A district court cannot apply credits
for time previously served to your federal sentence; only the Attorney General of the United
States can do this.201
The third category covers time served in non-federal pre-detention custody when you
were denied bail because you were being detained on separate charges by the federal
government. These are called “Willis time credits.”202 You may be eligible for Willis time
credits if you are sentenced to concurrent federal and state sentences and your estimated
federal release date is the same or later than your estimated state release date, without any
reduction credits applied. Willis time credits are earned for the time you were held in non-
federal pre-sentence custody from the date that the federal offense occurred to the date that
your first sentence began (either the federal or the state sentence, whichever started
earlier).203 You cannot obtain any Willis time credits if you are released from your state
sentence before your federal sentence begins and the presentence time was credited against
your state sentence.204 If your estimated federal release date, without any reduction credits
196. 18 U.S.C. § 3584(a) (2006); Johnson v. Wrigley, No. CV F 07-00714 OWW SMS HC, 2007
U.S. Dist. LEXIS 77145, at * 7–8 (E.D. Cal. Oct. 17, 2007) (holding that the time a plaintiff served in
state prison before being given his federal sentence could not be credited against the federal sentence).
197. 18 U.S.C. § 3584(a) (2006).
198. United States v. Wilson, 503 U.S. 329, 337, 112 S. Ct. 1351, 1356, 117 L. Ed. 2d 593, 602
(1992); Johnson v. Wrigley, No. CV F 07-00714 OWW SMS HC, 2007 U.S. Dist. LEXIS 77145, at *10
(E.D. Cal. Oct. 17, 2007).
199. United States v. Mills, 501 F.3d 9, 11–12 (1st Cir. 2007) (holding that the 365 days that
plaintiff served in state prison that had been credited against his state sentence could not also be
credited against his federal sentence where the federal detainer was completely unrelated to the reason
he was in state custody).
200. United States v. Storm, 2007 U.S. Dist. LEXIS 57019, at *4 (D. Utah Aug. 2, 2007) (finding
plaintiff not entitled to credit for time served in official detention prior commencing his federal
sentence when this same pre-custody time was already counted towards his state sentence), vacated,
2008 U.S. App. LEXIS 13024 (10th Cir. June 16, 2008).
201. In United States v. Wilson, the Supreme Court held that credit for time already served
under 18 U.S.C. § 3585(b) cannot be granted by the court, but only by the U.S. Attorney General (or the
BOP, acting pursuant to the Attorney General’s orders) and only after the prisoner has begun serving
his sentence. 503 U.S. 329, 334–35, 112 S. Ct. 1351, 1354–55, 117 L. Ed. 2d 593, 599–601 (1992); see
also United States v. Peters, 470 F.3d 907, 909 (9th Cir. 2006) (reaffirming Wilson’s holding that only
the Attorney General, and not the district court, has the authority to grant prisoners credit for time
served).
202. These credits are named after a case, Willis v. United States, 438 F.2d 923, 925 (5th Cir.
1971) (holding that defendant was entitled to credit for time served in state pre-sentence custody
because this time was related to his federal offense where defendant was denied release on bail because
of the federal detainer lodged against him).
applied, is earlier than your state estimated release date, then you may still be eligible for a
reduction.205
Section B. Substantial Assistance Prosecuting Others
A second way that you may be released early from prison is by providing substantial help
to the government to investigate or prosecute other people. Depending on how much help you
provide, the judge can significantly reduce your sentence—the judge can even reduce your
sentence below the statutory minimum.206 Keep in mind, however, that there is no guarantee
that your sentence will be reduced: the court may decide to keep your original sentence.207
If you think you might be able to help the government in this way and want to try to
reduce your sentence, you should talk to the government about this as soon as possible after
your sentencing. If you wait more than a year after sentencing before you help the
government, it will be harder to get your sentence reduced and you might not be eligible
anymore.
For you to be eligible for this reduction, the government must first file a motion with
your sentencing judge, asking the judge to reduce your sentence.208 If the government files
this motion within a year of your sentencing,209 the judge will just consider whether you gave
“substantial assistance in investigating or prosecuting another person.”210 However, if the
government files the motion more than one year after your sentencing, the judge can only
reduce your sentence if you also meet one of the following three requirements:211
(1) You did not know about the information until a year or more after your sentencing;
(2) You told the government the information within one year of your sentencing but the
information was not useful to the government until more than a year after your
sentence; or
(3) You had the information but did not realize it would be useful to the government
until more than one year after your sentencing. As soon as you realized it was useful,
you told the government the information.
You should be aware that even if you help the government, you are not guaranteed a
reduced sentence. It is entirely up to the government whether you are eligible for this
reduction: unless the government files a motion asking the judge to reduce your sentence, the
judge cannot reduce your sentence.212 In addition, you should speak directly with a federal
prosecutor about the possibility of obtaining a sentence reduction in exchange for
information. Prison wardens and other BOP officials are not government officials and cannot
file a motion with the court asking for a sentence reduction.213
205. Kayfez v. Gazele, 993 F.2d 1288, 1290 (7th Cir. 1993) (finding unreasonable the BOP’s
decision to only apply credits for presentence time to the longer non-federal sentence even where the
amount of time in the credit was longer than the amount of time separating the federal and non-federal
sentences and instead ordering the presentence time be applied against the non-federal sentence and
then applied to reduce the federal sentence to match the length of the newly calculated non-federal
sentence); see also Fed. Bureau of Prisons, Program Statement 5880.23, at 1-22C (1997).
206. Fed. R. Crim. P. 35(b)(4).
207. Fed. R. Crim. P. 35(b).
208. Fed. R. Crim. P. 35(b)(1) & (2).
209. As used in this rule, “sentencing” means the oral announcement of the sentence. See Fed. R.
Crim. P. 35(c).
210. Fed. R. Crim. P. 35(b)(1).
211. Fed. R. Crim. P. 35(b)(2)(A)–(C).
212. United States v. Mulero-Algarin, 535 F.3d 34, 38 (1st Cir. 2008) (holding that only the
government—not a judge—has the power to make a prisoner eligible for a sentencing reduction for
substantial assistance).
213. United States v. Ellis, 527 F.3d 203, 207–09 (1st Cir. 2008) (holding that a warden within
the BOP was unauthorized to make the motion as the "government" under Rule 35(b)).
Section C. Additional Ways the BOP Can Shorten a Federal Sentence
In addition to earning credit for time served and substantially helping the government
prosecute others, you may receive early release through one of four BOP programs. First, you
can earn good conduct time credits that can be used to reduce your sentence. Second, you
may be eligible for early release after participation in a Residential Drug Abuse Program
(RDAP). Third, you may be eligible for early release under the Second Chance Act. Finally,
you may be eligible for compassionate relief. Keep in mind, however, that it is difficult to
obtain compassionate relief, which is only awarded in the most extraordinary of
circumstances. Each of the next subsections discusses these programs in more detail.
1. Good Conduct Time Credits
Federal good conduct time is similar to the state good-time credit discussed above in Part
B, Section B of this Chapter. If you are serving a sentence of more than one year, but less
than life imprisonment, you can earn up to fifty-four days of good conduct time credits for
each year served of your sentence, to be subtracted from your total sentence.214 This means
that for every year served in prison, you can shorten the total amount of time on your
sentence by up to fifty-four days.215
(a) How to Earn Good Conduct Time Credit
Good conduct time credits are awarded for “exemplary compliance with institutional
disciplinary regulations,” or successfully following prison rules.216 Credits are awarded at the
BOP’s discretion at the end of each year.217 If you have not followed prison rules, you may
receive fewer credits or no credits at all in any given year.218
(b) Amount of Good Conduct Time Credit You Can Earn
The amount of good conduct time you can earn depends on the date you committed your
offense. If you committed your offense on or after November 1, 1987, but before September
13, 1994, you can earn up to fifty-four days credit towards serving your sentence for each
year served of your sentence.219 If you committed your offense on or after September 13, 1994,
but before April 26, 1996, your good-conduct time will be credited towards your sentence if
you have a high school diploma, a General Educational Development (GED) credential or are
making satisfactory progress toward your GED.220
If you are serving a sentence for an offense you committed on or after April 26, 1996, and
you do not have a high school diploma or a GED, the amount of days of credit you can earn in
a year depends on whether you are making satisfactory progress towards receiving a GED.
The education department at your prison will decide whether you are making satisfactory or
unsatisfactory progress towards obtaining your GED.221 If you have a GED or are making
214. 18 U.S.C. § 3624(b)(1) (2006).

215. There has been debate about whether prisoners are entitled to more than 54 days of good
conduct time credit per year. But, recent court decisions suggest acceptance of the BOP’s interpretation
for computing good conduct time credits. See, e.g., Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 534 (4th
Cir. 2005) (upholding as reasonable the BOP’s interpretation of 18 U.S.C. § 3624(b)(1) to mean credits
can only be earned for years served and not years sentenced); Moreland v. Fed. Bureau of Prisons, 547
U.S. 1906, 1907 (2006) (denying certiorari on whether “term of imprisonment” meant sentence imposed
or time served, but noting ten courts of appeals have accepted the BOP’s interpretation).
216. 18 U.S.C. § 3624(b)(1) (2006).
217. 18 U.S.C. § 3624(b)(1) (2006).
218. 18 U.S.C. § 3624(b)(1) (2006).
219. 28 C.F.R. § 523.20(a) (2006).
220. 28 C.F.R. § 523.20(b) (2006).
221 . Fed. Bureau of Prisons, Program Statement 5884.03(7)(a), at 3 (2006), available at
satisfactory progress towards obtaining one, then you can earn up to fifty-four credits for
each year served.222 If you do not have a GED and are not making satisfactory progress
towards obtaining one, then you can only receive up to forty-two days of credit for each year
served. 223 You can change your progress status during the year from unsatisfactory to
satisfactory in order to become eligible for the full fifty-four credits.224
If you are serving a sentence longer than 366 days, after 366 days in prison, the BOP will
decide how many of the fifty-four possible credits you have earned for that year.225 Any of the
possible credits that you did not earn that year are lost and cannot be earned back by you in
the following year(s).226 One year later, the BOP will review your case again to determine
how many credits you have earned for the 365 days you served since the last assessment for
good conduct time credits. This process will repeat every year until you have less than 365
days left to serve on your sentence. When you are a year away from your estimated release
date, after taking into account the amount of good conduct time credits that you have earned,
the amount of credits you can earn begins to be prorated (set into proportion for the amount
of days you have left to serve in that year by applying the “GTC formula”227).228 Your good
conduct time credits are not secure until you are actually released from prison.229 Therefore,
you can lose your good-time credits for the current year and all previous years up until your
actual release from prison,230 as described in the next Section of this Chapter. If you do, your
estimated release date will be recalculated and you will lose the benefit of your good conduct
time credits.231 During the last year of your sentence, the amount of credits you can earn is
prorated (set in proportion to the amount of time served for that year) and should be credited
to you within the last six weeks of your sentence.232 Because you do not actually receive your
222. 28 C.F.R. § 523.20(c)(1) (2006).

223. 28 C.F.R. §523.20(c)(2) (2006).
224 . Fed. Bureau of Prisons, Program Statement 5884.03(7)(d), at 3 (2006), available at
225. Fed. Bureau of Prisons, Program Statement 5880.28(3)(k), at 1-78R (1998), available at
226. Fed. Bureau of Prisons, Program Statement 5880.28(3)(k), at 1-78R (1998), available at
227. Fed. Bureau of Prisons, Program Statement 5880.28(3)(g), at 1-44 to 1-47 (1992), available
at http://www.bop.gov/policy/progstat/5880_028.pdf. The GCT formula is used to ensure that the
amount of time served plus the amount of GCT time granted exactly equals the number of days in your
total sentence. The GCT formula is applied by multiplying the number of days in your sentence by
0.148. For example, if your sentence is one year and one day (the minimum length to be eligible for
good conduct time credits), you cannot earn 54 days for that year, because after subtracting 54 GCT
days from your sentence, you will not have served 365 days, and therefore could not have earned the
full 54 days allowed per year of time served. Instead, the maximum amount of good conduct time days
you can earn for a sentence of one year and one day using the GCT formula is 47 days. Fed. Bureau of
Prisons, Program Statement 5880.28(3)(g), at 1-47 (1992), available at
http://www.bop.gov/policy/progstat/5880_028.pdf. To determine how many days of good conduct time
you could earn based on how many days are left to be served on your sentence, see Fed. Bureau of
Prisons, Program Statement 5880.28(3)(g), at 4-1 to 4-6, (1992), available at
228. 18 U.S.C. § 3624(b)(1) (2006).
229. Fed. Bureau of Prisons, Program Statement 5880.28(3)(k), at 1-78S (1998), available at
230. Fed. Bureau of Prisons, Program Statement 5880.28(3)(k), at 1-78S (1998), available at
231. See Prison Litigation Reform Act § 809, 28 U.S.C.S. § 1932 (1996); Fed. Bureau of Prisons,
Program Statement 5270.07 ch. 4, app. at 1 (2003), available at
232. 18 U.S.C. § 3624(b)(1) (2006).
credits until you are released from custody,233 you can lose credits that you have earned, as
described in the next section of this Chapter.
(c) Loss of Good Conduct Time Credit
If you violate prison regulations or bring an unfounded, also known as a “frivolous,”
lawsuit,234 you may lose unvested good conduct time credit as punishment.235 This Chapter
does not discuss the consequences of bringing a frivolous lawsuit, so you MUST read JLM
Chapter 14, “The Prison Litigation Reform Act,” Part J, for more information about this
possibility.
Note, though, that you cannot lose your good-time credits if your credits have already
vested, that is, if your offense was committed on or after November 1, 1987 but before
September 13, 1994 or your offense was committed on or after September 13, 1994, but
before April 26, 1996 and you have made satisfactory progress in obtaining your GED. If
your offense occurred on or after April 26, 1996, your credits have not already vested (been
credited and applied against your sentence) and will not vest until your release. Therefore,
you can lose good-time credits as a result committing a prohibited act.236
Before the BOP can take away your good conduct time credits for alleged misconduct,
there are several steps that the staff at your institution must take. First, a staff member who
believes that you have violated prison regulations must file an Incident Report with the
Lieutenant at your facility.237 A staff member will then investigate the incident.238 Before or
at the beginning of the investigation, you should be given a copy of the Incident Report.239
The investigator will tell you what you are being charged with, provide you a written copy of
the charges, and ask for your statement on the incident. You can choose to give or not give a
statement. Your silence can be used as evidence to show that you broke the rule, but it is not
enough alone to prove that you broke the rule.240
The third step is an initial hearing by the Unit Discipline Committee (UDC). The UDC
hearing will normally occur with three business days of the BOP becoming aware of your
involvement in the incident.241 Based on “some evidence”242 that you either did or did not
break the rule, the UDC can: (1) resolve the matter informally by imposing minor
dispositions or sanctions; or (2) send it on for a full hearing before the Disciplinary Hearing
233. 18 U.S.C. § 3624(b)(2) (2006).

234. Fed. Bureau of Prisons, Program Statement 5270.07(1)(a) ch. 5, at 1 (2003), available at
235. Fed. Bureau of Prisons, Program Statement 5270.07(1)(a) ch. 5, at 1 (2003), available at
236. See 28 C.F.R. § 541.13 (2007) (listing prohibited actions). Examples of actions that can
result in the loss of GTC include: assaulting another person, escape from an escort or institution,
fighting with another person, possession of a weapon, use of illegal drugs, engaging in sexual acts,
stealing, refusing to take a drug or alcohol test, refusing to work or obey an order, gambling, being
unsanitary or unclean, and using obscene language. 28 C.F.R. § 541.13 (2007).
237. 28 C.F.R. § 541.14(a) (2007). If the charge against you is categorized as less serious and the
Lieutenant thinks that he or she can informally come up with a solution to the incident with you, then
the charge will be dropped and the incident will not be listed in your file. 28 C.F.R. § 541.14(a) (2006).
238. 28 C.F.R. § 541.14(b) (2007).
239. 28 C.F.R. § 541.14(b)(2) (2007).
240. 28 C.F.R. § 541.14(b)(2) (2007).
241. 28 C.F.R. § 541.15(b) (2007).
242. Luna v. Pico, 356 F.3d 481, 487–88 (2d Cir. 2004) (citing Superintendent, Mass. Correct.
Inst. v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 2773, 86 L. Ed. 2d 356, 364 (1985) (holding that at least
some evidence is required before good conduct time credits can be taken away in a prison disciplinary
hearing)).
Officer (DHO), if the charges are severe.243 You should receive a written copy of the UDC
decision before the end of the next business day.244
Only a DHO can take away your good-time credits.245 At least twenty-four hours before
your hearing in front of the DHO, you will receive written notice of the charges against
you.246 If your case is referred to the DHO, you have the option of selecting a staff member to
represent you at the DHO hearing.247 The staff member can not have been involved in the
incident and must not have a relationship to you that would cause a conflict of interest. If the
staff member you select is unable or unwilling to represent you, you can request a different
staff member. However, if several staff members cannot or will not represent you, then the
Warden will appoint a staff member to be your representative if you want one or if you are
not able to represent yourself (for example, if you cannot read and write).248 You will be
asked to provide a list of any witnesses you want to call and what they will talk about at the
hearing.249 You and your witnesses can present documents and make statements to prove
that you did not break the rules.250 Based on at least some facts, the DHO will then decide
whether or not you committed the prohibited act.251 If the DHO finds that you did not commit
the act, then the incident will be taken off your record.252 If the DHO finds that you did
commit the act, then he or she can punish you, including taking away your good conduct time
credits.253
When the DHO makes a decision on how much good conduct time credit to take away as
punishment for your act, he or she will look at how bad your violation was (the severity) and
how many times and how often you committed the violation within a recent period of time
(repetition).254 There are four categories of offenses based on the seriousness of the violation:
(1) Greatest, (2) High, (3) Moderate, and (4) Low Moderate.255 The amount of good conduct
time credits that you can lose increases with the level of your offense. The DHO can follow
these guidelines, or can take away more or less credits based on extenuating (bad) or
mitigating (good) factors in your case.256
If you were sentenced for an offense committed on or after April 26, 1996 or are classified
under the Violent Crime Control and Law Enforcement Act of 1994 as “violent” and
243. 28 C.F.R. § 541.15 (2007).

244. Fed. Bureau of Prisons, Program Statement 5270.07(1)(f)(3), ch. 6, at 3 (1994), available at
245. 28 C.F.R. § 541.16(c) (2007); 28 C.F.R. § 541.13, tbl. 4(1)(b.1) (2007).
246. 28 C.F.R. § 541.17(a) (2007).
247. 28 C.F.R. § 541.17(b) (2007).
248. 28 C.F.R. § 541.17(b) (2007).
249. 28 C.F.R. § 541.15(i) (2007).
250. 28 C.F.R. § 541.17(c) (2007).
251. 28 C.F.R. § 541.17(f) (2007).
252. 28 C.F.R. § 541.18(a) (2007).
253. 28 C.F.R. § 541.18(b) (2007). If you were sentenced under the Sentencing Reform Act
(convicted for an offense that happened on or after November 1, 1987 but before April 26, 1996) and
have non-vested credits, the amount of credits you can lose is: (1) for a Greatest category case between
24 and 41 days of GCT for that year; (2) for a High category offense between 14 and 27 days of good-
time credit: (3) for a Moderate offense between one and 14 days GCT; (4) for a second Low category
offense in six months between one and seven days; (5) for a third Low category offense in six months
between one and 14 days. 28 C.F.R. § 541.13, tbl. 3 (2006). To get back (restore) your credits that are
taken away (disallowed), you must request an immediate review or appeal the action. 28 C.F.R. §
541.13, tbl. 4(1)(b.1) (2007).
254. 28 C.F.R. § 541.13, tbl. 4(1)(b.1) (2007).
255. 28 C.F.R. § 541.13(a) (2007). See Table 3 for a list of offenses by category.
256. 28 C.F.R. § 541.13, Table 4(1)(b.1), (1)(b.1)(II) (2007).
committed a crime of violence on or after September 13, 1994, then the amount of good
conduct time credits you can lose in a disciplinary hearing is described below.257
For a Greatest category offense the DHO can deduct at least forty days of credit or, if
there is less than fifty-four days available for the prorated period, at least 75% of available
good time for each act committed.
For a High category offense, you can lose at least twenty-seven days of credit or at least
50% of the available good conduct time for each act committed if less than fifty-four days are
in the period. For a Moderate category offense, the DHO does not have to deduct time unless
you have been found to have committed two or more offenses at this level within the current
anniversary period, in which case the minimum deduction is thirteen days or 25% of the
available good conduct time if less than fifty-four days are available for the period.
For a Low Moderate category offense, the DHO does not have to deduct time unless you
committed three or more Low Moderate category offenses during the current anniversary
period, in which case the minimum deduction is six days or 12.5% of available good time for a
period less than fifty-four days.
(d) Challenging the Loss of Good-Time Credits
You can challenge the loss of good-time credit. Under the Fourteenth Amendment’s Due
Process Clause, you have a protected liberty interest in your good conduct time credits.258
The BOP must follow certain procedures in order to take your credits without violating your
due process rights.259 You MUST read JLM Chapter 18, “Your Rights at Prison Disciplinary
Proceedings,” which explains your due process rights and how to raise defenses and
challenges to your treatment at disciplinary hearings.
The proper way to bring a lawsuit to challenge the loss of good-time credits is through a
petition for a writ of habeas corpus under 28 USC §2241.260 You MUST read JLM Chapter
13, “Federal Habeas Corpus,” to learn how to file a federal habeas corpus petition. Before you
can bring a lawsuit in court to challenge the loss of good-time credits, you must exhaust your
administrative remedies261 as required under the Prison Litigation Reform Act (PLRA). You
therefore MUST read JLM Chapter 14, “The Prison Litigation Reform Act,” to learn about
PLRA requirements. This section includes only a brief description of the federal
administrative remedy procedures you will need to follow to challenge the loss of your good-
time credits. You have twenty calendar days from when you receive the DHO Report to file
an appeal.262 Your appeal should be sent directly to the Regional Director for your region263
257. See 28 C.F.R. § 541.13, tbl. 4(1)(b.1)(II) (2007).

258. Henson v. U.S. Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000) (recognizing federal
prisoner’s due process right to a hearing before removal of good-time credits, but noting not all the
rights due in a criminal trial apply).
259. Wolff v. McDonnell, 418 U.S. 539, 556, 557, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935, 951
(1974). For a full discussion of this case and these issues, see JLM Chapter 18, “Your Rights at Prison
Disciplinary Hearings.”
260. Thomas v. Marberry, No. 06-CV-13282, 2007 U.S. Dist. LEXIS 25408, at *4 (E.D. Mich.
April 5, 2007) (holding that a habeas corpus petition is a proper means of challenging the loss of good-
time credits in a disciplinary proceeding because it affects the way in which the sentence is being
executed); see also Edwards v. Clarke, No. C07-5057RJB, 2007 U.S. Dist. LEXIS 24271, at *3 (W.D.
Wash. April 2, 2007) (dismissing a federal prisoner’s 42 U.S.C. § 1983 claim to recover his lost good
conduct time credits because such a claim is challenging the length of confinement and finding that the
correct claim for relief is a habeas corpus petition (citing Edwards v. Basilok, 520 U.S. 641, 117 S. Ct.
1584, 137 L. Ed. 2d 906 (1997)).
261. “Administrative remedies” are the internal procedures used within the BOP system to
resolve your complaint. A federal court will not accept your case unless you have “exhausted” (used up)
all the appeals and procedures within the BOP system. See JLM Chapter 13, “Federal Habeas Corpus.”
262. 28 C.F.R. § 542.14(a) (2007).
263. 28 C.F.R. § 542.14(d)(2) (2007); Fed. Bureau of Prisons, Program Statement 1330.13(d)(2),
and should include a separate completed, signed, and dated form BP-10 for each incident
that is being appealed along with a copy of the DHO report.264 If you cannot get a copy of the
DHO report, include the date of your hearing and the charges brought against you.265 The
Regional Director should respond to your appeal within thirty days of receiving it.266
If the Regional Director does not remove the charges against you, the final
administrative appeal step is to send an appeal to the General Counsel within thirty days of
receiving the Regional Director’s response.267 Your appeal to the General Counsel should
include a completed, signed, and dated form BP-11, a copy of the DHO report, a copy of your
appeal to the Regional Director, and a copy of the Regional Director’s response, along with
the reason that you are appealing. 268 The General Counsel should provide you with a
response to your appeal within 40 days of receiving it.269
The Regional Director or the General Counsel can reject your appeal if your forms
contain obscene or abusive words or if there is something that needs to be corrected.270 If
your appeal was rejected because you need to fix information on the forms or provide
additional information, your rejection letter will contain instructions about how to correct it
and will give you a new deadline for resubmitting the form.271 If the Regional Director rejects
your appeal for reasons that cannot be corrected, you can appeal the rejection of your appeal
to the General Counsel and request that the General Counsel order the Regional Director to
decide your appeal.272 After you have used all of these administrative remedies, you can file a
habeas corpus case in federal court to challenge the loss of your good conduct time credits.
However, if it would be “futile” (pointless) to exhaust your administrative remedies, then you
may be able to seek a writ of habeas corpus before you have fully exhausted your remedies.273
2. Early Release under the Residential Drug Abuse Program
There are conditions you must meet in order to be able to participate in the Residential
Drug Abuse Program (RDAP). There are also several additional requirements to be eligible
for early release for successful completion of RDAP. If at any stage of application, admission,
removal, or denial of early release status you do not agree with the decision in your case, you
can appeal by using the same procedures described in the good conduct time section above.274
Just like good conduct time, you must exhaust your administrative remedies before you can
bring a lawsuit to challenge the BOP’s decision.
at 7 (2002), available at http://www.bop.gov/policy/progstat/1330_013.pdf.

264. 28 C.F.R. § 541.19 (2007).
265. 28 C.F.R. § 541.19 (2007).
266. 28 C.F.R. § 542.18 (2007); Fed. Bureau of Prisons, Program Statement 1330.13(12), at 10
(2002), available at http://www.bop.gov/policy/progstat/1330_013.pdf.
267. 28 C.F.R. § 542.15(a) (2007); Fed. Bureau of Prisons, Program Statement 1330.13(9)(a) at 7
268. 28 C.F.R. § 542.15(b)(1) (2007).
269. 28 C.F.R. § 542.18 (2007); Fed. Bureau of Prisons, Program Statement 1330.13(12), at 10
270. 28 C.F.R. § 542.17(a) (2007).
271. 28 C.F.R. § 542.17(b) (2007); Fed. Bureau of Prisons, Program Statement 1330.13(11)(b), at
9 (2002), available at http://www.bop.gov/policy/progstat/1330_013.pdf.
272. 28 C.F.R. § 542.17(c) (2006); Fed. Bureau of Prisons, Program Statement 1330.13, at 10
273. Vargas-Crispin v. Zenk, 376 F. Supp. 2d 301, 303 (E.D.N.Y 2005) (holding that a federal
prisoner was allowed to seek a writ of habeas corpus before exhausting his administrative remedies
where administrative appeals would have been futile because the BOP’s interpretation of “term of
imprisonment” was rigid and the time for the appeal would have gone on beyond the date for his
release, making his claim moot).
274. 28 C.F.R. § 550.60 (2007).
(a) What is RDAP?
The Residential Drug Abuse Program (RDAP) is a federal program offered in some
federal facilities275 for prisoners with substance abuse problems. In RDAP, you participate in
individual and group activities to learn to overcome your substance abuse problems.276 RDAP
is a 500-hour program that takes place over six to twelve months in a separate housing
facility for RDAP participants.277
(b) How do You Get into RDAP?
Entry into RDAP is determined by the drug abuse treatment coordinator through staff
referrals and/or prisoner applications. You can receive a referral from or make a request to a
staff member in your housing unit or on the drug treatment team for admission to a
RDAP.278 If you request admission into a RDAP, the BOP will decide if you are eligible to
participate in the residential portion. The BOP will also decide if you are eligible for early
release under RDAP and will notify you of its decision.279
(c) Who is Eligible to Participate in RDAP?
Before you can participate in RDAP, the BOP must decide that you have a substance
abuse problem, and you must be willing to participate in a residential substance abuse
treatment program. 280 As part of your eligibility requirements you must also sign an
agreement form stating that you understand your responsibilities in joining the RDAP.281
Some of your responsibilities include not disrupting the staff, other group members, or
activities of RDAP; completing all RDAP activities, including homework and group
assignments; and not sharing information about other inmates in the program. 282 To be
admitted to RDAP, your security level needs to be within the range that can be handled at
the RDAP facility.283 In general, you can only be admitted to RDAP when you are thirty-six
months from your release date.284 Prisoners with serious mental impairments that would not
allow them to fully participate in the program will not be allowed into RDAP.285
If you have a physical or medical disability that prevents you from living in a RDAP
housing unit, you may still be eligible for early release if you meet all of the eligibility
requirements for RDAP and have completed all of the program components of RDAP,
including community-based treatment.286
Even if you cannot participate in RDAP, there are other substance abuse programs you
may be able to join. However, they do not have the same early release benefit that
275 . For an online list of facilities that have RDAP, follow the link “RDAP Locations” at
http://www.bop.gov/inmate_programs/substance.jsp (last visited Sept. 22, 2008).
276. 18 U.S.C. § 3621(e)(5)(a) (2000 & Supp. 2008).
277. 18 U.S.C. § 3621(e)(5)(a) (2000 & Supp. 2008); 28 C.F.R. § 550.56 (2007).
278. 28 C.F.R. § 550.56(b) (2007).
279. Fed. Bureau of Prisons, Program Statement 5330.10(2.3.1) ch. 2, at 2 (1997), available at
http://www.bop.gov/policy/progstat/5330_010.pdf; Fed. Bureau of Prisons, Form BP-A761.055,
Residential Drug Abuse Program Notice to Inmate (2004), available at
http://www.bop.gov/policy/forms/Bp_a761.pdf.
280. 18 U.S.C. § 3621(e)(5)(B)(i) and (ii) (2000).
281. 28 C.F.R. § 550.56(a)(3) (2007).
282. Fed. Bureau of Prisons, Form BP-A749.053, Agreement to Participate in a BOP Residential
Drug Abuse Treatment Program (2002), available at http://www.bop.gov/policy/forms/Bp_a749.pdf.
283. 28 C.F.R. § 550.56(a)(5) (2007).
284. 28 C.F.R. § 550.56(a)(4) (2007).
285. 28 C.F.R. § 550.56(a)(2) (2007).
286 . Fed. Bureau of Prisons, Program Statement 5331.01(5)(b), at 3 (2003), available at
participation in RDAP can offer. These programs include Drug Abuse Education classes,287
non-residential drug abuse treatment,288 and community transitional drug treatment.289
(d) Who May be Eligible for Early Release under RDAP?
To be eligible for early release under RDAP you must meet all four of the following
requirements:
(1) You were convicted and sentenced for an offense that occurred on or after November
1, 1987;
(2) You were sentenced for committing a non-violent offense;
(3) The BOP categorizes you as having a “substance abuse problem”; and
(4) You successfully completed all stages of a RDAP.290
The second requirement prevents you from receiving early release under RDAP if you
were sentenced for committing a violent offense.291 The BOP can look at both the actual
crime for which you were sentenced as well as circumstances surrounding that crime. You
can also be ineligible because you committed other offenses identified at the Director’s
discretion.292 These other offenses that can make you ineligible for early release include a
felony that had actual or threatened physical force against a person or someone else’s
property as an element or that would likely involve the use of force against a person or
property; a crime involving a firearm, explosive or other dangerous weapon; a crime
involving sexual abuse of children; a crime with an enhanced base offense level because of
the threat of or use of force; or a crime with a specific offense enhancement for threat of or
use of force.293
The third requirement for early release under RDAP is that you have a substance abuse
problem. You can meet this requirement if a drug abuse coordinator finds you have a “drug
use disorder,” which is a “substance abuse or dependence, as defined in the American
Psychiatric Association’s Diagnostic and Statistical Manual (DSM). Any written
documentation in your Pre-Sentence Investigation (PSI) report or central file showing you
previously used the same substance can also be used to verify your substance abuse
287. 28 C.F.R. § 550.54 (2007).

288. 28 C.F.R. § 550.55 (2007).
289. See Bureau of Prisons’ Substance Abuse Treatment Frequently Asked Questions, available
at http://www.bop.gov/inmate_programs/substanceabuse_faqs.jsp# (last visited Sept. 19, 2008).
290. Fed. Bureau of Prisons, Program Statement 5331.01(5)(a), at 2–3 (2003), available at
http://www.bop.gov/policy/progstat/5331_001.pdf. If you already completed a RDAP before October 1,
1989 you may still be eligible for early release under 18 U.S.C. § 3621(e). In order to be eligible, BOP
staff must determine that the program you completed met all of the current RDAP treatment criteria,
you must sign an agreement that you understand your program responsibilities, complete a refresher
course and transitional treatment in a community-based program, and you must not commit a
prohibited 1000 level act or act involving drugs or alcohol. 28 C.F.R. § 550.58(a)(2) (2007).
291 . Fed. Bureau of Prisons, Program Statement 5162.04, at 3–18, available at
http://www.bop.gov/policy/progstat/5162_004.pdf (last visited Sept. 19, 2008) (listing offenses that are
considered violent and will prevent you from participating in RDAP).
292 . Fed. Bureau of Prisons, Program Statement 5162.04(7), at 8–18 (1997), available at
http://www.bop.gov/policy/progstat/5162_004.pdf. In Lopez v. Davis, the Supreme Court held reasonable
the Bureau of Prisons’s regulations making certain prisoners automatically ineligible for early release
under 18 U.S.C. § 3621(e) if there was a firearm involved in their offense, even where the underlying
was categorized as a non-violent offense. Lopez v. Davis, 531 U.S. 230, 244, 121 S. Ct. 714, 724, 148 L.
Ed. 2d 635, 648 (2001).
293. See Fed. Bureau of Prisons, Program Statement 5162.04(7), at 8–15 (1997), available at
http://www.bop.gov/policy/progstat/5162_004.pdf (listing offenses that are included in this category); see
also Fed. Bureau of Prisons, Program Statement 5162.04(7)(c), at 15–16 (1997), available at
http://www.bop.gov/policy/progstat/5162_004.pdf (listing offenses that MAY create ineligibility for
RDAP at the Director’s discretion).
problem. 294 Specifically, the following three criteria are used to demonstrate a substance
abuse problem:
(1) the PSI report shows that alcohol or other drug use contributed to your committing
the offense for which you are currently serving a sentence;
(2) you are serving a sentence for violating your probation, parole, or supervised release
and the reason it was violated was alcohol or drug use; or
(3) your sentencing judge recommended that you receive substance abuse treatment.295
You also may be classified as having a drug abuse problem during your participation in a
drug abuse education course or non-residential drug abuse treatment after testing positive
during a urine test.296
The final requirement is that you successfully complete all stages of RDAP. RDAP has
three different stages, each of which you must finish before you can even be considered for
early release. The first stage of RDAP is the unit-based program that takes place over a six
to twelve month period.297 The unit-based program has three phases: orientation, intensive
treatment and skill development, and pre-release planning. To complete the unit-based
program, you must pass a series of tests that will be given at the end of each subject covered
in treatment.298 If you do not pass a test for any given subject, you will be allowed to re-take
the test again after you study more or after you repeat that section.299
The second stage of RDAP is transitional drug treatment services. Transitional drug
treatment can take place either in an institution (prison) or in the community.300 If your
release date is within six months, you may be put in a community-based program.
Otherwise, you must participate in institution follow-up services for a minimum of one hour
per month, for up to twelve months, including joining a non-residential drug treatment
program after your return to a general population housing unit.301
The final stage of RDAP is six months of community-based treatment for one to four
hours each week that can take place in a Community Corrections Center or home-
confinement.302 You will be required to sign another agreement form303 to participate in the
community transition program. The rules for participation in this program are almost
identical to those in the unit-based portion of RDAP.304 If your release date is earlier than
294. Fed. Bureau of Prisons, Program Statement 5330.10(5.4.1)(a)(1), at 3–4 (1996), available at
295. Fed. Bureau of Prisons, Program Statement 5310.12(5.1)(A), at 5-1 (1993), available at
296. Fed. Bureau of Prisons, Program Statement 5330.10(5.4.1)(a)(1), at 3–4 (1996), available at
297. Fed. Bureau of Prisons, Program Statement 5310.12(5.1)(D), at 5-2 to 3 (1993), available at
298. 28 C.F.R. § 550.56(c) (2007).
299. Fed. Bureau of Prisons, Program Statement 5330.10(5.4.3)(c), at 5-5 (1996), available at
300. See Bureau of Prisons’ Substance Abuse Treatment Frequently Asked Questions, available
at http://www.bop.gov/inmate_programs/substanceabuse_faqs.jsp# (last visited Sept. 19, 2008).
301. 28 C.F.R. § 550.59(a) (2007); Fed. Bureau of Prisons, Program Statement 5310.12(5.1)(E), at
5-3 to 4 (1993), available at http://www.bop.gov/policy/progstat/5310_012.pdf; Fed. Bureau of Prisons,
Program Statement 5330.10(5.2), at 5-1 to 2 (1997), available at
302 . 28 C.F.R. § 550.58(a)(3)(i) (2007); Fed. Bureau of Prisons, Program Statement
5330.10(5.2.1), at 5-1 (1996), available at http://www.bop.gov/policy/progstat/5330_010.pdf.
303 . Fed. Bureau of Prisons, Form BP-A750.053, Agreement to Participate in Community
Transition Program (2002), available at http://www.bop.gov/DataSource/execute/dsFormLoc.
304 . Fed. Bureau of Prisons, Program Statement 7430.02(8)(c), at 6 (1999), available at
the date you will complete the community-based portion of your treatment, your release date
may be extended to allow you to finish the program.305
Certain people are not allowed to get early release through RDAP under any
circumstances. You cannot receive early release under RDAP if you:
(1) are a pre-trial or immigration detainee;
(2) are in federal prison for committing a state or military crime;
(3) are not eligible for participation in community-treatment programs as determined by
the Warden at your facility;
(4) have a past conviction for homicide, forcible rape, robbery, aggravated assault, or
child sexual abuse offenses;
(5) are currently incarcerated for committing a felony that had as an element or, given
the crime committed, would likely involve the use of actual or threatened physical
force against a person or someone else’s property, or that involved a firearm,
explosive or other dangerous weapon, or that involved sexual abuse of children;306
(6) were previously released on RDAP early release;307
(7) are eligible for parole.308
(e) How Might RDAP Affect Your Sentence?
If you meet the requirements for RDAP early release, the BOP can reduce your prison
sentence by up to one year, in addition to any good conduct time credit reductions you have
received.309 Your case will be reviewed several times to determine if you remain eligible for
early release under RDAP.310 While the BOP has the ability to reduce your sentence after
you successfully complete RDAP, the BOP is not required to do so.311 If at any time you
305. 28 C.F.R. § 550.58(c)(3) (2007).

306. 28 CRF § 550.58 (2007).
307. Fed. Bureau of Prisons, Program Statement 5331.01(5)(c), at 3–4 (2003), available at
308. Fed. Bureau of Prisons, Program Statement 5331.01(5)(c), at 3–4 (2003), available at
309. 18 U.S.C. § 3621(e)(2)(B) (2006).
310. After you have been admitted into RDAP, your eligibility for early release will be reviewed
using Form BP-A762.055, Request for Unit Team Determination. Once you are admitted to the
residential unit-based portion of RDAP, form BP-S764.055, Notice to ISM of 3621(e) date, will be
submitted to change your release date in the Bureau of Prisons’ computer system to “currently early
release eligible.” Your file will be reviewed again on form BP-S765.055, Early Release Review, no
earlier than 120 days, but no less than 90 days before you are scheduled for transfer to the community-
based treatment portion. Fed. Bureau of Prisons, Program Statement 5331.01(6), at 5 (2003), available
at http://www.bop.gov/policy/progstat/5331_001.pdf. If the Central Office approves your release, your
file is reviewed once more on form BP-S766.055, Unit Team Final Review, before you are transferred to
your community-based treatment program. If you successfully complete your community transitional
treatment, five to 10 working days before your release date, the Regional Transitional Drug Abuse
Treatment Coordinator will certify you completed treatment and notify the regional Community
Correction Regional Administrator. Your early release can be delayed or reduced if the Regional Drug
Abuse Treatment Coordinator determines you need more time to complete your treatment or additional
treatment will make it more likely you will not return to drug use or criminal conduct. Fed. Bureau of
Prisons, Program Statement 7430.02(15)(f), at 15 (1999), available at
http://www.bop.gov/policy/progstat/7430_002.pdf; Fed. Bureau of Prisons, Program Statement 5331.01,
at 8–9 (2003), available at http://www.bop.gov/policy/progstat/5331_001.pdf.
311. Richardson v. Joslin, 501 F.3d 415, 420 (5th Cir. 2007) (finding that defendant had no
liberty interest in a reduction of his sentence after he successfully completed RDAP since BOP has “the
authority, but not the duty” to reduce a term of imprisonment.); see Lopez v. Davis, 531 U.S. 230, 241,
121 S. Ct. 714, 722, 148 L. Ed.2d 635, 646 (2001); see also Fed. Bureau of Prisons Form BP-A749.053,
Agreement to Participate in a BOP Residential Drug Abuse Treatment Program (2002), available at
http://www.bop.gov/DataSource/execute/dsFormLoc.
commit a prohibited act, fail to complete all RDAP requirements, or the BOP discovers it
made an error in determining your eligibility, BOP can remove RDAP early release status.312
The denial of early release after you successfully complete RDAP does not violate any
contractual rights guaranteeing your release or the Constitution’s Ex Post Facto Clause.313
You can appeal your denial of early release under RDAP using the same procedures
explained in the loss of good conduct time credit section but you MUST write in the first
sentence of your appeal that you are seeking review for denial of early release eligibility
under 18 U.S.C. § 3621(e).314
(f) How Can Your Participation in RDAP End?
Your participation in a RDAP can end if you choose to voluntarily end your participation
in RDAP, fail to pass your subject tests, or are removed from RDAP by the BOP.315 Once you
are no longer in RDAP, you lose your early release eligibility and return to your previous
housing unit or facility.316 The drug treatment coordinator may remove you from the program
for disruptive behavior and must remove you if you are disruptive four times.317 Normally,
the drug treatment coordinator will give you one warning before removing you.318 Also, if you
do not follow all of the rules and regulations of RDAP you will be expelled from the
program.319
Your participation in RDAP may also be terminated immediately if an incident report320
is filed and the DHO finds you (1) used or possessed alcohol or drugs; (2) 3ere violent or
threatened violence against staff or another inmate; or (3) committed a 100 level 321
prohibited act.322
If the warden or the drug abuse treatment program coordinator removes you from RDAP,
you may request readmission by submitting a “Request to Staff Member” Form.323 The drug
abuse treatment program coordinator will decide whether to readmit you to the program.
Even if you are readmitted to RDAP, you will not receive credit for the parts of the program
you completed before you were expelled.
312 . Fed. Bureau of Prisons, Program Statement 5331.10(6), at 7 (2003), available at

313. Seacrest v. Gallegos, No. 01-128930, Fed. Appx. 755, 766, 2002 U.S. App. LEXIS 1094, at
**4 (10th Cir. Jan. 25, 2002) (unpublished) (finding the BOP’s decision to change prisoner’s status from
eligible to ineligible for early release consideration did not violate the Ex Post Facto Clause, since the
decision did not affect the legal definition of the crime or increase the prisoner’s punishment, and no
contractual relationship existed between the prisoner and the BOP).
314. 28 C.F.R. § 550.60 (2007).
315. 28 C.F.R. § 550.56(d) (2006).
316. 28 C.F.R. § 550.56(d)(3) (2006).
317. Fed. Bureau of Prisons, Program Statement 5330.10 (5.4.4) ch. 5, at 6A (1997), available at
318. 28 C.F.R. § 550.56(d)(2) (2006).
319. Fed. Bureau of Prisons, Form BP-A749 053, Agreement to Participate in a BOP Residential
Drug Abuse Treatment Program (2002), available at http://www.bop.gov/policy/forms/Bp_a749.pdf.
320. See Part B, Section B for more information on good-conduct time.
321. See 28 C.F.R. § 541.13 (2006) for a complete list of 100 level prohibited acts.
322. 28 C.F.R. §§ 550.56(d)(2)(i),(ii),(iii) (2006); Fed. Bureau of Prisons, Form BP-A749 (2002),
available at http://www.bop.gov/policy/forms/Bp_a749.pdf.
323. Fed. Bureau of Prisons, Program Statement 5330.10(5.4.4) ch. 5, at 5–6 (1997), available at
http://www.bop.gov/policy/progstat/5330_010.pdf; see also Fed. Bureau of Prisons, Form BP-A148.055
(1998), available at http://www.bop.gov/policy/forms/Bp_a148.pdf.
3. Early Release Under the Second Chance Act
The Second Chance Act of 2007 is a new federal law designed to improve the system for
releasing federal prisoners.324 This Act authorizes the BOP to grant early release to prisoners
who meet the following three conditions:325
(1) Are over the age of sixty-five;
(2) Have never been convicted of a violent crime or sex offense; and
(3) Have served ten years or 75% of their sentence.
Very few prisoners will be eligible for early release under this program. The Bureau of
Prison recently estimated that only about 650 federal inmates (or 0.003% of all federal
inmates) will meet the requirements.326 However, the BOP is beginning a pilot program to
test this new early release system. The program began in October 1, 2008. If you think you
are eligible for early release under this program, you should ask your warden whether your
prison or jail is participating in the program.
4. Federal Compassionate Release
Compassionate release is an extraordinary remedy that is given very rarely.
Compassionate release allows the Director of the BOP to recommend that your sentence be
reduced to remove you immediately from prison. There are four situations in which
compassionate relief might be granted:
(1) upon motion by the BOP Director for “extraordinary or compelling reasons”327 that
develop after the time of sentencing;
(2) upon motion by the BOP Director for people who are seventy years of age or older who
have served at least thirty years of their sentence and are determined not to be
threats to society;328
(3) to modify a sentence under Rule 35 of the Federal Rules of Criminal Procedure (to
correct a clear error within seven days of the sentence or for providing substantial
assistance to the government to investigate or prosecute someone else);329 or
(4) if a sentence was given based on a sentencing range that has since been lowered.330
This Section deals only with the first category: extraordinary or compelling reasons.
(a) What are “Extraordinary and Compelling” Reasons?
There are no formal definitions for “extraordinary and compelling” reasons. However, the
U.S. Sentencing Commission provides four examples of what could be considered
extraordinary and compelling reasons that might justify compassionate relief:331
324. Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657 (2008).
325. Second Chance Act of 2007, Pub. L. No. 110-199, § 231(g)(5), 122 Stat. 657, 688 (2008).
326. Douglas A. Berman, Another Report from the USSC Alternatives Symposium, July 24, 2008,
available at http://sentencing.typepad.com/sentencing_law_and_policy/2008/07/another-report.html.
327. See 18 U.S.C. § 3582(c)(1)(A) (2006), for offenses that happened on or after November 1,
1987. This section does not discuss the rules for offenses that occurred before November 1, 1987, which
are governed by 18 U.S.C. § 4205(g).
328. 18 U.S.C § 3582(c)(1)(A)(ii) (2006).
329. 18 U.S.C. § 3582(c)(1)(B) (2006).
330. 18 U.S.C. § 3582(c)(2) (2006).
331. 28 U.S.C. § 994(t) (2006).
(1) You have a terminal illness,332
(2) Your only family member who can care for your minor child(ren) is no longer able to
do so due to death or incapacitation,333
(3) You have a permanent physical or medical condition, or worsening physical or mental
health from getting older, and your medical condition does not allow you to properly
care for yourself in prison and your condition is unlikely to improve through
treatment,334
(4) The BOP Director has found another reason you should be granted compassionate
release.335
If you are petitioning for compassionate release because of an illness, your illness must
either be terminal or prevent you from caring for yourself, as described in the first two
examples. In addition to having a terminal or incapacitating illness, you also must not be a
danger to society or be able to commit a further crime. 336 Normally, the BOP will only
consider applications from prisoners who are “suffering from terminal medical conditions, or
who are severely and permanently mentally or physically debilitated.”337
(b) How Can You Apply for Compassionate Release?
It is important to know that you cannot make a motion directly to a court to reduce your
sentence for compassionate release. If you file a motion yourself, the court will not reduce
your sentence. The only way to obtain compassionate release from the courts is through a
motion made by the Director of the BOP.338
You must first submit a motion (request) to your warden, asking for compassionate
release. The request should be in writing. In the motion you must describe the extraordinary
or compelling circumstances that did not exist when you were sentenced.339 You must also
describe your plan for release, including where you will live, how you will support yourself,
and, if your reason is based on your health, where you will get medical care and how you will
pay for it.340
If your reason is based on a medical condition, make sure to state that information in the
beginning of your motion so that your request can be reviewed more quickly.
If the warden thinks your motion should be granted, he will send it to the Regional
Director of the BOP.341 The Regional Director will then review your motion, and if he thinks
332. 18 U.S.C. Appx § 1B1.13, Application Note 1(A)(i) (2007).

333. 18 U.S.C. Appx § 1B1.13, Application Note 1(A)(iii) (2007).
334. 18 U.S.C. Appx § 1B1.13, Application Note 1(A)(ii) (2007).
335. 18 U.S.C. Appx § 1B1.13, Application Note 1(A)(iv) (2007).
336. Leja v. Sabol, 487 F. Supp. 2d 1, 3 (D. Mass. 2007) (holding that the BOP’s decision to deny
release was not arbitrary or capricious because defendant’s illness was not terminal and defendant was
still able to commit crimes).
337. Fed. Bureau of Prisons, Legal Resource Guide to the Federal Bureau of Prisons 40 (2008),
available at http://www.bop.gov/news/PDFs/legal_guide.pdf.
338. See United States v. Smartt, 129 F.3d 539, 541 (10th Cir. 1997) (finding that even though
the defendant had a medical condition that could be considered an extraordinary and compelling
circumstance, the court could not approve his motion because the request was not made by the BOP
Director); see also United States v. Tyler, 417 F. Supp.2d 80, 84(D. Me. 2006) (denying relief pursuant
to § 3582(c)(1)(A) because no motion was made by the BOP Director).
339. Fed. Bureau of Prisons, Program Statement 5050.46(5)(a)(1), at 3 (1998), available at
http://www.bop.gov/policy/progstat/5050_046.pdf; 28 C.F.R. § 571.61 (2006).
http://www.bop.gov/policy/progstat/5050_046.pdf; 28 C.F.R. § 571.61 (2006).
341. Fed. Bureau of Prisons, Program Statement 5050.46(6)(a)(1), at 3–5 (1998), available at
http://www.bop.gov/policy/progstat/5050_046.pdf; 28 C.F.R. § 571.62(a)(1) (2006).
your motion should be granted, he will send it to the BOP’s Office of General Counsel.342 The
General Counsel will then review your motion, and if he decides that you should be given
compassionate release, he will ask for an opinion from the Medical Director (if your reason is
health-related), or the Assistant Director of the Correctional Programs Division (for all other
reasons).343 Finally, the recommendation of the General Counsel, along with the opinion from
the Medical or Assistant Director, will be sent to the Director of the BOP to make a final
decision on your motion.344
If the Director approves your request, he will contact the U.S. Attorney. The U.S.
Attorney will then make a motion to the court to have your sentence reduced. 345 The
sentencing court will review the Director’s motion and decide if there are extraordinary and
compelling reasons to justify your release. If the sentencing court grants the motion, it will
order your release. The warden at your facility will then release you.346
(c) Denial
It is possible that any of the officials above may deny your motion. The official who
denies your motion will send you written notice stating that your request has been denied
and explaining why it was denied. If your request for compassionate relief is denied by the
warden or the Regional Director, you are entitled to appeal the decision.347 However, if you
are denied by the General Counsel or the Director, that decision is a final administrative
decision and cannot be appealed.348
In order to challenge the BOP’s decision, you must first go through all of the
administrative remedies, as required by the Prison Litigation Reform Act.349 Even if you are
sick or believe that the BOP will not approve your motion upon appeal, you still must
exhaust all levels of the administrative remedy process. Only after you do this can you file a
petition for writ of habeas corpus, which asks the court to reverse the warden’s decision.350
Some district courts have ruled that they do not have jurisdiction to hear a habeas corpus
petition challenging the denial of compassionate release by the warden or the BOP.351 Some

346. Fed. Bureau of Prisons, Program Statement 5050.46(6)(b), at 5 (1998), available at
http://www.bop.gov/policy/progstat/5050_046.pdf; 28 C.F.R. § 571.62(b) (2006).
347. Fed. Bureau of Prisons, Program Statement 5050.46(7)(a), at 6 (1998), available at
http://www.bop.gov/policy/progstat/5050_046.pdf; 28 C.F.R. § 571.63(a) (2006).
348. Fed. Bureau of Prisons, Program Statement 5050.46(7), at 6 PINCITE (1998), available at
http://www.bop.gov/policy/progstat/5050_046.pdf; 28 C.F.R. §§ 571.63(b), (c), (d) (2006).
349. See JLM Chapter 14, “The Prison Litigation Reform Act.”
350. Leja v. Sabol, 487 F. Supp. 2d 1, 2−3 (D. Mass. 2007) (holding that perceived futility of
request and/or medical condition do not relieve an inmate of the requirement of exhaustion of
351. United States v. Morales, 353 F. Supp. 2d 204, 205 (D. Mass. 2005) (dismissing habeas
corpus petition by terminally ill inmate who requested compassionate relief and release from prison so
he could return to Colombia, live with his family, and obtain a heart transplant, and holding the court
lacked statutory authority to reduce his sentence without a motion by the Director of the BOP); United
States v. Etters, No. 04-20115-13-JWL, 2007 U.S. Dist. LEXIS 75731, at *1 (D. Kan. Sept. 28, 2007)
(denying plaintiff’s motion to modify her sentence to home imprisonment because the court lacked
jurisdiction under 18 U.S.C. § 3582(c)(1) when no motion was made by the Director of the BOP). A few
district courts have gone a step farther, holding that even if you have exhausted your administrative
courts of appeals have reached similar decisions, denying review of the BOP’s refusal to
bring a motion on behalf of inmates under 18 U.S.C. § 4205(g), (the other statute covered by
the BOP policy statements on early release).352 The courts that have reviewed the BOP’s
decisions so far have been unwilling to find the decisions arbitrary and capricious, which is
the standard for overturning these decisions.353 In other words, it is very unlikely the court
will grant your appeal.
Section D. Federal Supervised Release
Federal supervised release is different from parole. Federal supervised release is not a
way to get out of your sentence early. Instead, it is a period of supervision that you must
serve after you are released from prison. Federal parole is not available for anyone who is
convicted of committing a crime that took place on or after November 1, 1987. However,
anyone who was convicted of a crime that took place on or after November 1, 1987 may have
a term of federal supervised release included in his sentence. Under federal law, a judge may
include in a sentence of imprisonment for a conviction of a felony or misdemeanor a period of
supervised release after you are released from prison. There are certain situations in which a
judge MUST include in your sentence a period of supervised release. For example, a judge
must include a period of supervised release if you received a first-time conviction for a
domestic violence offense or other offenses that require by statute that supervised release be
a part of the sentence.354 The length of the supervised release varies, depending on the type
of offense and what the judge thinks is necessary.
1. How long is supervised release?
Your sentencing judge will decide how long the supervised release will last. The judge
will make this decision based on several factors. Some of these factors are the same factors
appeals, the court will still not review the final decision made by the BOP under the Administrative
Procedures Act because it is barred by the terms of 18 U.S.C. § 3582. See, e.g., Pham v. Fed. Bureau of
Prisons, No. 1:07-cv-0025-SEB-JMS, 2007 U.S. Dist. LEXIS 38184, at *1–2 (S.D. In. May 23, 2007)
(dismissing on summary judgment a request made by a defendant with a chronic heart condition to
overrule the BOP’s denial of compassionate release, and holding that the decision was assigned by law
to the discretion of the BOP and was therefore unreviewable under the Administrative Procedures Act);
Gutierrez v. Anderson, No. 06-1714 (JRT/JSM), 2006 U.S. Dist. LEXIS 79580, at *2, 5−6 (D. Minn. Oct.
30, 2006) (finding that 18 U.S.C. § 3582 barred the court “from reviewing the Warden's decision not to
recommend compassionate release” and therefore denying the terminally-ill plaintiff’s motion to compel
compassionate release).
352. Turner v. U.S. Parole Comm’n, 810 F.2d 612, 618 (7th Cir. 1987) (finding the Parole and
Reorganization Act barred the court from reviewing the warden’s rejection of the Parole
Commissioner’s recommendation to reduce plaintiff’s sentence); Simmons v. Christensen, 894 F.2d
1041, 1043 (9th Cir. 1990) (same); Fernandez v. United States, 941 F.2d 1488, 1492–93 (11th Cir. 1991)
(holding that, because the BOP had the exclusive authority to make motions under 18 U.S.C. § 4205(g),
a court could not review the BOP’s refusal to compel compassionate release).
353. United States v. Maldonado, 138 F. Supp. 2d 328, 333 (E.D.N.Y. 2001) (holding BOP’s
interpretation of “extraordinary and compelling circumstances,” covering only prisoners with a
generally terminal medical condition, which limited life expectancy by a predictable amount, was
reasonable because it provided an objective way to limit eligibility while still allowing for truly
exceptional circumstances to be taken into account); Hubbs v. Dewalt, NO. 05-CV-512-JBC, 2006 U.S.
Dist. LEXIS 27950, at *5, 11−12 (D. Ky. May 8, 2006) (unpublished) (holding BOP’s interpretation of 18
U.S.C. § 3582(c)(1)(A), as applied to an inmate who was a double-leg amputee, was reasonable and not
arbitrary and capricious when the BOP staff based its decision on the fact that the sentencing court
knew of the inmate’s condition at the time of sentencing and its interpretation of “extraordinary and
compelling” was limited to terminally-ill prisoners who could not complete their sentence). In Dewalt,
the court did not consider the other group of prisoners covered by the BOP’s interpretationthose "who
suffer from a severely debilitating and irreversible mental or physical medical condition and are unable
to provide self-care.” 2006 U.S. Dist. LEXIS 27950, at *5, 11−12 (D. Ky. May 8, 2006).
354. 18 U.S.C. § 3583(a) (2006).
that the judge considered when deciding your sentence of imprisonment.355 Your sentencing
judge will look at the nature of your offense, the circumstances surrounding your offense,
your personal character, the level of deterrence you require, the need to protect the public
from your committing crimes in the future, the need to provide you with training and
programs, the sentencing range for your offense, the similarity of your sentence to others
convicted of a similar offenses, and the need for you to repay victims of your offense.356
The maximum amount of time that you can be sentenced to supervised release depends
on the class of the crime for which you were convicted. For a Class A or Class B felony, the
maximum amount of time is five years. For a Class C or Class D felony, your period of
supervised release cannot be more than three years. For a Class E felony, or for a
misdemeanor (other than a petty offense), the maximum length of your supervised release is
one year.357
Your period of supervised release starts on the day that you are released from prison.358
The time will run concurrently to (at the same time as) any other Federal, State, or local
period of supervised release, probation, or parole for another offense.359 Any time spent in
prison will not be counted towards the period of supervised release unless it is less than
thirty days in a row.360
2. What are the conditions of supervised release?
At the time of your sentencing, the judge will include several conditions that you must
follow during your sentence for supervised release. There are some conditions that the judge
must include and some conditions that the judge can choose to include, depending on the
circumstances of your case. Your probation officer must give you a written copy of the terms
of your supervised release, explaining the terms in clear, understandable language.361
The following conditions MUST be included as part of your supervised release:362
(1) You cannot commit another crime under federal, state or local law;
(2) You cannot unlawfully possess a controlled substance;
(3) If you were convicted for the first time of a domestic violence offense, you must
complete an approved rehabilitation program;
(4) If you are a sex offender, you must
(a) comply with the requirements of the Sex Offender Registration and Notification
Act;
(b) cooperate in the collection of your DNA sample under the DNA Analysis Backlog
Elimination Act;
(c) submit to a drug test within fifteen days of release and at two other times.363
The following conditions CAN be included as part of your supervised release:364
(1) If you are a sex offender, availability to search of person, property, and possessions
without a search warrant upon reasonable suspicion;
(2) Deportation;
(3) Any other condition that is related to the factors in 18 U.S.C. § 3553 that does not
involve a greater limit on your liberty than is necessary;
355. 18 U.S.C. § 3583(c) (2006).

356. 18 U.S.C. § 3553(a)(1), (2)(B)–(D), (4)−(7) (2006).
357. 18 U.S.C. § 3583(b) (2006).
358. 18 U.S.C. § 3624(e) (2006).
359. 18 U.S.C. § 3624(e) (2006).
360. 18 U.S.C. § 3624(e) (2006).
361. 18 U.S.C. § 3583(f) (2006).
362. 18 U.S.C. §3583(d) (2006).
363. This condition can be removed under 18 U.S.C. § 3563(a)(4).
364. 18 U.S.C. § 3583(d) (2006).
(4) Any condition that could be included as a term of probation; or
(5) Any other condition allowed by a statute.365
3. What happens if you violate a condition of supervised release?
Your supervised release can be revoked if you violate any of the conditions set out in your
sentence. Your supervised release must be revoked if you are found to be in possession of a
controlled substance or a firearm, in violation of federal law or in violation of a term of your
supervised release, or if you refuse to comply with the drug testing requirements.366 If your
supervised release is revoked, you may be sentenced to serve either a part of or all of the
time you were sentenced to supervised release in prison, without any credit for the time you
spent on supervised release before its revocation.367 The court may also order that you serve
an additional term of supervised release in addition to your new term of imprisonment.368
The length of the additional term of supervised release can be no longer than the maximum
amount of supervised release allowed for in your original sentence, minus the length of
imprisonment for violating your supervised release. Instead of sentencing you to more time
in prison, the judge can order that you remain in your home during non-working hours and
be monitored by telephone or electronic surveillance devices.369
You may participate in up to two stages of hearings before your supervised release can be
revoked. After you are brought in for an alleged violation of the terms of your supervised
release, you will be brought before a magistrate judge. The magistrate judge must tell you
what violation of your supervised released you are being charged with, must inform you of
your right to obtain an attorney or to request that an attorney be appointed to you, and must
inform you of your right to a preliminary hearing to determine whether or not there is
sufficient evidence for the judge to decide that you may have violated a term of your
supervised release.370 If you decide not to waive the preliminary hearing, the magistrate
judge will provide you with notice of the hearing, its purpose, the violation you are alleged to
have committed and your right to retain a lawyer or have a lawyer appointed. You have a
right to be present at your hearing and present evidence, and to request the right to question
witnesses testifying against you.371 The magistrate judge will either dismiss the case if he or
365. 18 U.S.C. §§ 3583(d)(1)–(3) (2006). See 18 U.S.C. §§ 3563(b)(1)–(10) and (b)(12)–(20) for a
list of all discretionary probation conditions that can be included as conditions of your supervised
release.
366. 18 U.S.C. § 3583(g) (2006).
367. 18 U.S.C. § 3583(e)(3) (2006).
368. 18 U.S.C. § 3583(h) (2006); see also Johnson v. United States, 529 U.S. 694, 713, 120 S. Ct.
1795, 1807, 146 L. Ed. 2d 727, 743–44 (2000) (holding that 18 U.S.C. § 3583(e)(3) authorizes the district
court to order a term of imprisonment, followed by a term of supervised release, in response to the
revocation of plaintiff’s term of supervised release for commission of a new criminal offense).
369. 18 U.S.C. § 3583(e)(4) (2006).
370. U.S.C. Fed. Rules Crim. Proc. R. 32.1(a)(3).
371. U.S.C. Fed. Rules Crim. Proc. R. 32.1(b)(1)(B). The 6th Amendment right to confront
witnesses whose testimony will be used against you does not exist in supervised release revocation
hearings. United States v. Hall, 419 F.3d 980, 985–86 (9th Cir. 2005) (holding that the right to confront
a testimonial witness does not apply to hearsay evidence used in supervised release revocation
hearings because these hearings are not criminal prosecutions (citing United States v. Aspinall, 389
F.3d 332, 342 (2d Cir. 2004) and United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004))). To
determine whether you may confront an adverse witness, the judge will balance your due process right
against the government’s good cause for denying you this right. United States v. Taveras, 380 F.3d 532,
536 (1st Cir. 2004) (applying the recommendation in the 2002 Committee Advisory Note to Rule 32.1
that a balancing test be applied to protect the due process right of parolees recognized in Morrissey v.
Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). The government’s good cause in not
producing the witness will be judged by the reliability of the hearsay evidence and its reason for not
presenting the witness. United States v. Rondeau, 430 F.3d 44, 48–49 (1st Cir. 2005) (providing a full
discussion of the factors considered in judging reliability and the government’s reasons for not
she finds there is no probable cause to believe that you committed a violation, or he or she
will order a revocation hearing.
To revoke your supervised release, the court must find at the revocation hearing that it is
more likely than not that you violated a term of your supervised release.372 You have the
same rights in a revocation hearing that you had in the preliminary hearing, as well as a
right to know what evidence will be used against you, the right to question adverse witnesses
without first making a request, the right to present information of mitigating factors in your
case, and the right to the witnesses’ prior statements.373 If you waived these rights, you must
have done so knowingly and voluntarily, otherwise, that waiver will not be upheld.374 At a
revocation hearing, any evidence may be used against you, even evidence taken without
probable cause. 375 You cannot defend yourself by saying that the other side gathered
evidence improperly.
4. Can you change the length or conditions of your supervised
release?
In addition to being revoked, your period of supervised release can also be ended or
modified at your request or the court’s. Usually there will be a hearing before the court
terminates or modifies a condition of your supervised release. At the hearing, you will have
the right to counsel and to make a statement on your own behalf and present evidence
showing circumstances why the court should decide in your favor.376 No hearing is required if
you waive the right to hearing, if the change will benefit you and will not extend the length
of your supervised release, or if the government attorney does not object to the change you
requested after having received notice and had reasonable time to do so.377 You can also
apply to the court to clarify the terms of your supervised release if you are unsure what a
particular condition means or whether or not you have met the requirements for that
condition.378
providing the witness). For a case describing reliability standards, see United States v. Redd, 318 F.3d
778, 785 (8th Cir. 2003) (finding that the interest of the releasee in confronting the lab technician who
ran his sweat patch reports that showed cocaine use at his supervised release revocation hearing was
minimal due to long-established recognition of the reliability of documentary evidence). For a case
describing the government’s reason for not providing the witness, see United States v. Williams, 443
F.3d 35, 45–46 (2d Cir. 2006) (finding that the releasee waived his right to confront the witness where
the witness would not come forward to present evidence against him out of fear and intimidation
caused by threats made by the releasee’s acquaintances). Your interest in confrontation is determined
by the circumstances of your individual case including the importance of the evidence to the court’s
finding, your ability to show the evidence was false, and the consequences of the court’s decision on
factors other the revocation of your supervised release. United States v. Walker, 117 F.3d 417, 420 (9th
Cir. 1997), cert. denied, 522 U.S. 961 (1997).
372. 18 U.S.C. § 3583(e)(3) (2006).
373. U.S.C. Fed. Rules. Crim. Proc. R. 32.1(b)(2); U.S.C. Fed.R.Crim. Proc. 26.2(g)(3).
374. United States v. Correa-Torres, 326 F.3d 18, 22 (1st Cir. 2003) (ordering a new hearing for
plaintiff whose supervised release was revoked after waiver of his rights at his first revocation hearing
when he did not know what his rights were or what the charges were against him).
375. United States v. Hebert, 201 F.3d 1103, 1104, 00 Cal. Daily Op. Serv. 917, 2000 Daily
Journal D.A.R. 1347 (9th Cir. 2000) (holding that the exclusionary rule does not apply at supervised
release revocation hearings).
376. U.S.C. Fed Rules Crim. Proc. R 32.1(c)(1).
377. U.S.C. Fed Rules Crim. Proc. R 32.1(c)(2).
378. United States v. Lilly, 206 F.3d 756, 762 (7th Cir. 2000) (recognizing plaintiff’s right to have
the district court clarify whether or not he had met the repayment ordered as a part of his supervised
release).
5. How can you terminate your supervised release?
You can apply to terminate your period of supervised release by either appealing to the
court or to the President of the United States through a commutation petition (see Part C,
Section D below). After you have served one year and one day of your supervised release, you
can appeal to the court to have the remaining amount of time on your supervised release
sentence discharged under 18 U.S.C. § 3583(e)(1). If you apply before you have served at
least one year and one day of supervised release, the court will dismiss your petition.379 In
deciding on your request, the court will first look at “many of the same factors” used to
determine your original sentence.380 It will then decide whether terminating your supervised
release is in the interest of justice and warranted by your post-release conduct.381 The court
is not required to hold a hearing to decide your request for termination because its decision
does not extend the time you will have to spend in supervised released—it can only lower
it.382
6. How can you change the terms of your supervised release?
You can petition the district court to modify a condition of your supervised release if your
circumstances have changed since the time of your sentencing or you believe the condition
places a heavy limit on your liberty without meeting any goals of your supervised release. If
a condition of supervised release places too great of a burden on a protected liberty interest,
without furthering your rehabilitation or protecting the public, a court can order the
condition be changed to include no greater limit on your liberty than necessary to meet your
supervised release goals.383 The court will first determine if you have a recognized liberty
interest384 affected by the challenged condition and then determine the sentencing goal of
that condition and its reasonableness.385 The sentencing goal can relate to the offense for
which you are currently incarcerated or to a past offense and still be upheld by the court.386
379. United States v. Werber, No. 90 Cr. 364 (LLM), 1995 U.S. Dist. LEXIS 12307, at *1–2
(S.D.N.Y. Aug. 25, 1995) (unpublished).
380. United States v. Lussier, 104 F.3d 32, 34–35 (2d Cir. 1997).
381. 18 U.S.C. § 3583(e)(1) (2006).
382. United States v. Lai, 458 F. Supp. 2d 177, 177 (2d Cir. 2006) (finding that releasee was not
entitled to a hearing under Fed. Rules Crim. Proc. R 32.1(c) on his request for termination of the
remaining fourteen months of his period of supervised release and denying that request).
383. United States v. Monteiro, 270 F.3d 465, 472–73 (7th Cir. 2001) (ordering a condition of
supervised release allowing law enforcement to conduct warrantless seizures of plaintiff, his car, or his
home be rewritten by the court to limit the seizure power “to ensure that it relates reasonably to the
ends of rehabilitation and protection of the public”).
384. See United States v. Myers, 426 F.3d 117, 125 (2nd Cir. 2005) (describing recognized liberty
interests as those that are constitutionally protected); see also United States v. Holman, 532 F.3d 284,
290 (4th Cir. 2008) (discussing fundamental rights and supervised release, in the context of involuntary
medication orders).
385. United States v. Meyers, 426 F.3d 117, 125–30 (2d Cir. 2005) (removing as a condition of
supervised release that the plaintiff receive approval from his probation office before he could have
contact with his minor son where his original sentence for child pornography involved only females and
where there was no record demonstrating that his son would be harmed by contact with him or that
any sentencing goal that protected other children would be served by this condition, which interfered
with his liberty interest in maintaining his parental relationship with his son).
386. United States v. Dupes, 513 F.3d 338, 344 (2d Cir. 2008) (upholding conditions of supervised
release for defendant, who was convicted of securities fraud: registration as a sex offender; attending
sex offender treatment; staying away from places where children are often located; and not using the
internet for child pornography, becausegiven his past conviction for and history of sexual
offensessuch conditions were not overly broad or vague and were appropriate to the sentencing goals
of providing defendant with needed treatment and protecting the public from defendant), cert. denied,
128 S. Ct. 1686, 2008 U.S. LEXIS 2599 (Jan. 9, 2008).
The court will not approve your requested change if your reason for the change is outweighed
by the government’s interest in the condition being maintained.387
The court can also modify the conditions of your supervised release on its own motion or
in response to a request by your probation officer any time before the end of your term of
supervised release.388 The court can add additional conditions of supervised release to your
sentence and/or correct your sentence to include the conditions of supervised release as long
as the court provides you with a hearing as described in the introduction to this section389
and the conditions relate to a rehabilitation goal and do not unduly limit your liberty
interests.390 If you participated in RDAP, when you are transferred to the community-based
program the BOP will check to see if participation in substance abuse treatment is a
condition of your supervised release. If it is not, the BOP will ask you to sign a waiver to
modify the conditions of your supervised relief; you are not required to sign this.391
Section E. Federal Executive Clemency
The President of the United States has the constitutional power to pardon, commute, or
reprieve a sentence, and to remit fines for conviction of a federal offense.392 The main forms
of relief explained in this section—pardon and commutation—only apply to convictions for
federal crimes. 393 See Part B, Section F of this Chapter for information on how to seek
clemency for New York State convictions.
For federal sentences, pardons and commutations are very different remedies. A pardon
restores civil rights that were taken away when you were sentenced. A commutation can
shorten the amount of time that you must serve in prison or in supervised release. Because a
pardon does not reduce your sentence, it will be discussed only briefly. This section does not
deal with federal executive clemency for military offenses or for people who are sentenced to
death, both of which involve separate petition procedures and considerations. For
information on death penalty appeals, write to the JLM to request the Death Penalty
Appeals Chapter.
1. Pardons
A federal pardon does NOT allow you to get out of your sentence early. Instead, a federal
pardon allows you to have your federal conviction officially forgiven and your civil rights
restored. It does not mean you are innocent. Because pardons are a showing of forgiveness
for your crime and not innocence, you must show remorse and rehabilitation, and good
behavior after release from prison. It is important to remember a pardon will not erase your
conviction. So, any time you are asked to list your convictions you must still include the
387. United States v. Nonahal, 338 F.3d 668, 670–71 (7th Cir. 2003) (denying request by releasee
that the condition of his supervised release that he report monthly, in person, to his probation officer be
changed to reporting by mail so that he could attend dentistry school in Pakistan because the
government’s interest in maintaining close supervision over the releasee outweighed his interest in
attending school at that time).
388. 18 U.S.C. § 3583(e)(2) (2006).
389. United States v. Navarro-Espinosa, 30 F.3d 1169, 1171 (9th Cir. 1994) (upholding district
court’s sentence against releasee, which was amended under 35 U.S.C. §3583(e)(2) to include the four
years of supervised release that the court had inadvertently neglected to mention when first
pronouncing sentence).
390. United States v. Davies, 380 F.3d 329, 333 (8th Cir. 2004) (holding court’s adding a
condition of supervised release requiring releasee to participate in an alcohol abuse program did not
abuse discretion because it met releasee’s rehabilitation goals, given alcoholism and depression history,
and was less intrusive than a ban on drinking alcohol).
391. Fed. Bureau of Prisons, Program Statement 5330.10(5.4.5), ch. 5, at 8 (1996), available at
392. U.S. Const. art. II, §2; see also 28 C.F.R. § 1.1 (2006).
393. 28 C.F.R. § 1.4 (2006).
pardoned offense. 394 But, you can also note that you received a federal pardon for the
offense.395
You must wait five years after the date of your release from prison before you can seek a
presidential pardon.396 You cannot request a pardon while you are on supervised release,
parole, or probation.397 If there are exceptional reasons why you need the pardon now and
cannot wait until the five year period is over, then you can request a waiver. To get a waiver,
write a separate letter, stating why you think the waiting period should be waived and
submit it with your pardon application. However, waivers are very rarely granted.398
Even after the five-year waiting period, you need to give a reason you are seeking a
pardon. Examples of reasons include gaining entry into a professional association; obtaining
licenses from government authorities; restoration of your civil rights; and accessing benefits
provided by administrative agencies. It is important to note than many of your civil rights
(like your voting rights, for example) are governed by the state where you were convicted and
not by the federal government. So, you might want to pursue state clemency procedures
instead of or in addition to federal procedures to increase your chance of success.399
To request a federal pardon you must submit a completed, signed, and dated pardon form
to the United States Pardon Attorney at:
Office of the Pardon Attorney
1425 New York Avenue, N.W., Suite 11000
Washington, DC 20530.
Pardon forms are available online at: http://www.usdoj.gov/pardon/pardon_petition.htm.
2. Commutations
A commutation of your sentence is a reduction of your sentence’s length. A commutation
can change your sentence to time served, shorten the your imprisonment period so you can
be released early, move up the date of your parole hearing,400 or shorten or terminate your
sentence of supervised release. 401 Commutations are rarely granted and only happen in
exceptional circumstances. Commutation is purely discretionary, which means that it is up
to the President to decide, and he does not have to issue a commutation if he does not think
it is appropriate. The President does not have to state his or her reasons for granting or
394 . U.S. Dep’t of Justice, Pardon Information and Instructions, available at

http://www.usdoj.gov/pardon/ pardon_instructions.htm (last visited Sept. 19, 2008).
http://www.usdoj.gov/pardon/ pardon_instructions.htm (last visited Sept.19, 2008).
396. 28 C.F.R. § 1.2 (2006).
397. 28 C.F.R. § 1.2 (2006).
398 . U.S. Dep’t of Justice, Petition for Pardon, available at
http://www.usdoj.gov/pardon/pardon_petition.htm (last visited Sept. 19, 2008).
http://www.usdoj.gov/pardon/ pardon_instructions.htm (last visited Sept. 19, 2008).
400. U.S. Attorney’s Office, Dep’t of Justice, United States Attorney’s Manual: Standards for
Consideration of Clemency Petitions § 1–2.113 (1997), available at
http://www.usdoj.gov/pardon/petitions.htm; see also Nicholson-El v. Conley, No. 5:01-0798, 2001 U.S.
Dist. LEXIS 24168, at *3 (S.D. W.Va. Nov. 27, 2001) (unpublished) (noting that petitioner’s
commutation from President Carter made him immediately eligible for a parole hearing for his two
sentences, but did not change the sentences to make them run concurrently).
401. If you are requesting that your period of supervised release be terminated, you must state
specifically on your petition that this is the type of relief you are seeking and why serving it would be
an undue hardship on you as well as why you cannot obtain the same benefit through a petition under
18 U.S.C. § 3583(e)(1). U.S. Dep’t of Justice, Commutation Instructions, available at
http://www.usdoj.gov/pardon/commutation_instructions.htm (last visited September 19, 2008). See Part
C, Section D(5) of this Chapter for more information on termination of supervised release.
denying your petition for commutation. You have no right to appeal the denial of your
request for commutation.
(a) Eligibility
In general, your petition for commutation will not be reviewed unless you have started
serving your sentence and you are not currently appealing or challenging your sentence in
court. 402 You cannot apply for a commutation of sentence, except in exceptional
circumstances, if you have any other forms of judicial or administrative relief available,
including403
(1) A motion by the government under Federal Rule of Criminal Procedure 35 (for
providing substantial assistance to the government);404 or
(2) A petition for compassionate release under 18 U.S.C § 3582(c)(1).405
Examples of exceptional or unusual circumstances are: terminal illness or old age,406 the
severity (harshness) of the sentence, 407 ineligibility for parole, 408 and providing beneficial
assistance at the request of the government in the investigation or prosecution of another
case. 409 These are also the reasons commutations are usually granted. 410 If any of these
exceptional or unusual circumstances are present in your case, the Pardon Attorney, who
assists the President, will consider your application. But, the Pardon Attorney will still
consider the availability of other means of relief and the amount of time you have already
served when reviewing your application.411 For example, President George W. Bush granted
http://www.usdoj.gov/pardon/petitions.htm.
403. 28 C.F.R. § 1.3 (2006).
Consideration of Clemency Petitions, § 1–2.113 (1997), available at
http://www.usdoj.gov/pardon/petitions.htm. See Part B, Section G of this Chapter for information about
compassionate release in New York State.
http://www.usdoj.gov/pardon/petitions.htm; see also Nicholson-El v. Conley, No. 5:01-0798, 2001 U.S.
Dist. LEXIS 24168, at *3 (S.D. W.Va. Nov. 27, 2001) (unpublished) (noting that petitioner’s
commutation from President Carter made him immediately eligible for a parole hearing for his two
sentences, but did not change the sentences to make them run concurrently).
407. For example, in 2007, President Bush commuted the sentence of Lewis Libby, the Vice
President’s former chief of staff, because it was “excessive.” Though his 30-month sentence was at the
low-end of the sentencing guidelines range for perjury, obstruction of justice, and false sentences to
investigators, Bush found two years of supervised release and a $250,000 fine “harsh punishment” for
these convictions. See Statement by the President on Executive Clemency for Lewis Libby (July 7,
2007), available at http://www.whitehouse.gov/news/releases/2007/07/20070702-3.html#.
a commutation of Lewis Libby’s sentence of imprisonment, which was at the low end of the
Sentencing Guidelines’ range, because it was too harsh. The President announced in his
Statement on the Executive Clemency for Libby that he considered critics’ “arguments and
the circumstances surrounding this case,” as well as the fact that “the district court rejected
the advice of the probation office, which recommended a lesser sentence and the
consideration of factors that could have led to a sentence of home confinement or
probation.”412
(b) How to Request a Commutation
To be considered for federal commutation, send a written petition requesting a
commutation of your sentence, addressed to the President of the United States, to the
following address:
Office of the Pardon Attorney
1425 New York Avenue, N.W.
Suite 11000
Washington, DC 20530
If you would like your petition to be sent faster, you must submit it through your
facility’s warden.413 There are several benefits to sending your petition through the warden,
including assistance in obtaining documents. Therefore, this is the method described in this
section.
(i) Obtain and Complete the Petition for Commutation Form
(Form OPA – 6)
You can obtain the petition for commutation form by requesting it from the Pardon
Attorney or the warden in your facility.414 When you complete the form, you must state the
truth or you could be fined and/or imprisoned. 415 The form should be easy to read and
completed in pen or typewritten.
On the form you will need to include the following information:
(1) The date(s) when you have previously applied for commutation (if any) and the
result(s);
(2) The offense(s) that you are seeking to have commuted (including district of
conviction, citation of offense if known, and sentence);
(3) The date(s) of any criminal appeals you have filed on your case (if any), the result(s),
and the citation to the opinion(s);
(4) The date(s) of any habeas corpus petition(s) you have filed to challenge your
conviction (if any), the result(s), and the citation to the opinion(s);
(5) Your story of the events that took place during the offense you were convicted of and
what your involvement was in those events;
(6) A list of all of your other arrests and convictions, including any juvenile records (the
date, the charge, the arresting agency, and the outcome); and
(7) The reasons you are seeking commutation.
412. Statement by the President on Executive Clemency for Lewis Libby (July 2, 2007), available
at http://www.whitehouse.gov/news/releases/2007/07/20070702-3.html#.
413. Fed. Bureau of Prisons, Program Statement 1330.15 § 571.41(7)(a), at 3 (2001), available at
414 . 28 C.F.R. § 1.1 (2007). The form is also available at
http://www.usdoj.gov/pardon/commutation_instructions.htm (last visited Sept. 22, 2008).
415. 18 U.S.C. §§ 1001 and 3571 (2006).
(ii) Submit the form to the warden to be sent to the Pardon
Attorney
When you send the petition through the warden at your facility, it will be assigned to a
case manager who has thirty days to get together the required documents to send with your
petition and submit these documents to the warden for signature.416 Your case manager must
include with your petition a pre-sentence Investigation Report (if available), Judgment in a
Criminal Case, and your most recent Progress Report, if one already exists.417 Any requests
for additional information will be sent directly to the warden.
(iii) Review of Your Petition
Once the petition is received by the Pardon Attorney, the Pardon Attorney will conduct
an investigation of your case. The Pardon Attorney or the Attorney General may contact
other government officials (including your sentencing judge, the Director of the BOP, and the
U.S. Attorney in the district where you were convicted) to get their opinions about whether
or not your request for commutation should be granted by the President. 418 If you are
requesting commutation for a felony offense that involved a victim, the Attorney General
may send a notice to the victim (or their spouse, adult child, or parent, if the victim is
deceased) to ask if he would like to submit an opinion on your request. A victim is someone
who has “suffered direct or threatened physical, emotional, or pecuniary harm as a result of
the commission of the crime for which clemency is sought” and has filed a request with the
BOP to be notified upon your release.419
After the Pardon Attorney has received and reviewed the reports on your case, he or she
will make a recommendation to the President to deny or approve your petition.420 If the
Pardon Attorney recommends that the President deny your application and the President
does not take any other action within thirty days of receiving the recommendation, your
petition will be denied and your case closed.421 Your case can also be closed if the President
denies your application directly after reviewing it.422 You will receive notice about the denial
from the warden at your facility.423 You are not entitled to any appeal if your application is
denied.
If the President approves your petition for commutation, a warrant of commutation is
sent to the warden, who will deliver it to you to sign.424 If you are already on parole or
supervised release when your petition is granted, the warrant will go to you directly.425 Your
sentence will then be recalculated and, if you are now eligible for a parole hearing, you will
be added to the docket.426 It is important to note in this case that even though you have a
right to a parole hearing, you are not guaranteed being granted parole.
418. See 28 C.F.R. § 1.6 (2007).
419. 28 C.F.R. § 1.6(b)(3) (2007).
420. 28 C.F.R. § 1.6(c) (2007).
421. 28 C.F.R. § 1.8(b) (2007).
422. 28 C.F.R. § 1.8(a) (2007).
423. Fed. Bureau of Prisons, Program Statement 1330.15 § 571.41(7)(d), at 5 (2001), available at
424. 28 C.F.R. § 1.7 (2007).
425. 28 C.F.R. § 1.7 (2007).
426. Fed. Bureau of Prisons, Program Statement 1330.15 § 571.41(7)(c), at 5 (2001), available at
D. Conclusion
If you are in New York State prison and would like to get out before serving your
maximum sentence, three types of release programs to consider (and parole) exist: (1)
conditional, (2) early, and (3) presumptive release. The type of sentence you are serving
affects your program eligibility. In general, you can lessen the amount of time in prison by
showing good behavior, because good behavior can earn you good-time credit. If you
unsuccessfully apply for a release program, have not acquired the required amount of good
time, or have not served enough of your underlying sentence, you can also petition for a
pardon or commutation, which allows you to leave prison immediately. Note: you can pursue
several options at the same time.
If you are in a federal prison and would like to get out before serving your full sentence,
you may be able to be released through (1) good conduct time, (2) the Residential Drug Abuse
Program, (3) the Second Chance Act, and (4) compassionate relief. In addition, you can
receive credit for time already served and this credit can be used to lessen your sentence.
Finally, keep in mind you can also apply to have your sentence of imprisonment or
supervised release reduced by the U.S. President through a commutation petition.
Some of these methods can be used together to reduce your sentence (for example, good-
conduct time and early release under RDAP can be combined) while others may be pursued
as alternate ways to reduce your sentence (for example, compassionate relief or executive
clemency). You can pursue several of these options at the same time to try to reduce your
federal sentence.
Manual
Chapter 36:
Parole

8th Edition 2009
LEGAL DISCLAIMER

CHAPTER 36
PAROLE*
A. Introduction
Parole is a system of discretionary release for prisoners who have not yet served their
maximum sentences. Parole also refers to the process of your supervised reintegration into
the community while you serve the remainder of your sentence outside of prison. Part B
provides an overview of the parole system of New York State. Parts C–I examine New York’s
parole system in detail. Part C explains the calculation of the minimum incarceration period;
Part D discusses the Shock Incarceration Program; Part E discusses the sentence of parole
supervision; Part F explains parole release hearings; Part G reviews release on parole; Part
H covers parole revocation; and Part I discusses release from parole supervision. Part J looks
at the parole system of California; Part K considers the Florida state system; Part L
examines the Illinois state system; Part M explores the system in Texas; and Part N explains
the Michigan parole system. Prisoners in other states must research their own states’ laws
on parole, as parole laws tend to be very different from state to state and parole has been
eliminated altogether in many states. See Chapters 34 and 35 of the JLM for information on
temporary release programs and conditional and early release.
B. New York
In New York, the Division of Parole is part of the Executive Department and is separate
from both the Division of Probation and Correctional Alternatives and the Department of
Correctional Services.1 The parole law is found in the N.Y. Executive Law § 259 and in Title
9 of New York State Compilation of Codes, Rules and Regulations, Part 8000.2 The parole law
requires the Division of Parole to adopt written guidelines for use in making parole
decisions.3 The Division of Parole also publishes pamphlets, handbooks, and other materials
that explain the parole process.
For further information, check with your institution’s parole officer, pre-release center, or
law library; they should have the New York State Parole Handbook, “Questions and Answers
Concerning Parole Release and Supervision.”4 This pamphlet gives the Division of Parole’s
answers to questions on issues regarding time served, institutional parole and parole board
activities in state correctional facilities, parole supervision, the revocation process, the
Sentencing Reform Act of 1995, interstate parole, juvenile offenders, restoration of rights,
executive clemency, appeals, and access to parole files. If available, you should also review
* This Chapter was written by Mary Beth Myles, based in part on a previous version written by Roslyn
R. Morrison. Special thanks to Professor Philip Genty of Columbia Law School for his valuable
comments.
1. In New York, the Work Release and Temporary Release programs are run by the Department
of Correctional Services. N.Y. Correct. Law §§ 150, 851 (McKinnkey 2003 & Supp. 2008). Probation is
handled by the Division of Probation and Correctional Alternatives. N.Y. Exec. Law § 240 (McKinney
2002). Conditional Release is now administered by the Division of Probation and Correctional
Alternatives and a branch of the Department of Correctional Services called “Local Conditional Release
Commission.” N.Y. Penal Law § 70.40 (McKinney 2004 & Supp. 2008).
2. N.Y. Comp. Codes R. & Regs. tit. 9, § 8000 (2001). The New York Official Compilation of
Codes, Rules, and Regulations is in a green three-ring binder, and it should be in your prison library.
3. N.Y. Exec. Law § 259-c(4) (McKinney 2005 & Supp. 2008). See New York State Division of
Parole, Release Decision-Making Guidelines Application Manual (1982). Though the Guidelines are
written and codified, the Parole Board is not absolutely bound to follow them.
4. New York State Division of Parole, New York State Parole Handbook, Questions And Answers
Concerning Parole Release and Supervision (2007), available at http://parole.state.ny.us/Handbook.pdf.
other Division of Parole publications, especially the Guidelines Applications Manual, and
look at the laws and regulations themselves.
This Chapter describes the practices and procedures of the Parole Board. Parole has five
basic phases:
(1) Determination of your minimum sentence;
(2) Parole release considerations, preparing for your parole hearing, and the hearing
itself;
(3) Release on parole and supervision by parole officers;
(4) Constitutional due process protections required in the parole revocation process; and
(5) Release from parole and the restoration of full rights.
You can appeal a Parole Board decision in two ways. You must first try the
administrative process within the Division. If that fails and you wish to continue, you may
then appeal through an Article 78 proceeding in the New York courts.5 You should know that
the courts have adopted an extremely tough test for judicial review of any Parole Board
decision. In order for courts to intervene in Parole Board decisions, you must show
“irrationality bordering on impropriety on the part of the parole board.”6 Courts rarely find
Parole Board conduct wrong enough to intervene.
C. Minimum Term of Incarceration Under an Indeterminate Sentence and
Conditional Release Under a Determinate Sentence
If you were given an indeterminate sentence, the sentencing court should have fixed the
minimum term you must serve in a state correctional facility before eligibility for release.7 A
sentence is “indeterminate” if a range of minimum and maximum time is specified, rather
than a particular number of days or years. Since 1995, New York has been moving away
from indeterminate sentencing and discretionary parole release to a system of determinate
(“flat”) sentences. Determinate sentences are required for persons sentenced as second
violent felony offenders after 1995, or first violent felony offenders after 1998.8 Determinate
sentences are also required for felony drug offenders sentenced after 2004. 9 Persons
sentenced to a determinate sentence as violent or second violent felony offenders are eligible
for conditional release when they have served six-sevenths of their sentence. 10 Persons
serving determinate sentences for felony drug offenses are eligible for merit time/conditional
release after serving five-sevenths of their sentence.11
But, there are three exceptions. First, you may get early parole if you successfully
complete a shock incarceration program12 (described in Part D of this Chapter). Second, you
5. For a discussion of Article 78 proceedings, see JLM Chapter 5, Section C(6), and Chapter 22 .
6. In re Russo v. N.Y. State Bd. of Parole, 50 N.Y.2d 69, 77, 405 N.E.2d 225, 229, 427 N.Y.S.2d
982, 986 (1980). The Russo standard has been held to be a review of “whether the Board’s decision to
deny parole was arbitrary or capricious.” Silmon v. Travis, 95 N.Y.2d 470, 477, 741 N.E.2d 501, 505,
718 N.Y.S.2d 704, 708 (2000) (holding it not arbitrary or capricious for the Board to consider remorse
and insight in denying parole). See Jorge v. Hammock, 84 A.D.2d 362, 364, 446 N.Y.S.2d 585, 587 (3d
Dept. 1982) (holding complete disregard of a sentencing judge’s recommendation in setting a minimum
incarceration period was inappropriate and entitled prisoner to a new hearing).
7. N.Y. Penal Law § 70.00(3) (McKinney 2004 & Supp. 2008). If you were sentenced before
September 1, 1980, the Parole Board—instead of the sentencing court—will fix your minimum term.
Schwimmer v. Hammock, 59 N.Y.2d 636, 637, 449 N.E.2d 1266, 1267, 463 N.Y.S.2d 188, 189 (1983).
8. N.Y. Penal Law §§ 70.02, 70.04 (McKinney 2004 & Supp. 2008). See Part D(1) of this Chapter
for a discussion of this law.
9. N.Y. Penal Law §§ 70.70, 70.71 (Supp. 2008).
10. N.Y. Correct. Law § 803(1)(c) (McKinney 2003 & Supp. 2008 (effective until Sept. 1, 2009).
11. N.Y. Correct. Law § 803(1)(d) (McKinney 2003 & Supp. 2008 (effective until Sept. 1, 2009).
12. N.Y. Correct. Law §§ 865-867 (McKinney 2003 & Supp. 2008); N.Y. Exec. Law 259-i(2)(e)
may appear before the Parole Board prior to the expiration of your minimum sentence if you
are eligible for “merit time.” Most categories of non-violent felonies qualify for merit time.13 If
you are serving a sentence that qualifies and you have earned merit time, you will appear
before the Parole Board for release consideration after you have served five-sixths of your
minimum sentence.14 If you are serving an indeterminate sentence for a felony drug offense
committed before 2004, you may earn additional merit time and appear before the Parole
Board for release consideration after serving two-thirds of your minimum sentence.15 Third,
certain categories of felony drug offenses are eligible for a sentence of parole supervision16
(described in Part E of this Chapter).17
D. Shock Incarceration Program
Shock incarceration is a program under the jurisdiction of the Department of
Correctional Services in which selected eligible prisoners participate in a structured six-
month program at a Shock Incarceration facility. A prisoner may make an application to the
shock incarceration screening committee for permission to participate in the shock
incarceration program. 18 Eligible prisoners are also screened to insure that their
participation in the program is “consistent with the safety of the community, the welfare of
the applicant, and the selection criteria for the program.”19 Therefore, even if you meet the
criteria for the program, you still may not ultimately be chosen to participate.
Shock incarceration is a highly regimented program that requires daily exercise, a full
work day, daily meetings, and substance abuse counseling. Participants are also expected to
earn a high school equivalency diploma through the educational programs offered. 20
Generally, participants who successfully complete the program are issued a Certificate of
Earned Eligibility and become eligible for parole release consideration prior to completing
the court-imposed minimum sentence. 21 See Part F(5) of this Chapter for additional
information on Certificates of Earned Eligibility.
E. Sentence of Parole Supervision
If you have a history of substance dependence, and abuse of that substance has led you to
commit illegal acts, you may be given a sentence of parole supervision (also known as a
“Willard Sentence” after the Willard Drug Treatment Center). You are eligible for a sentence
of parole supervision only if you satisfy the following three requirements:
13. N.Y. Correct. Law § 803(1)(d)(ii) (McKinney 2003 & Supp. 2008) (effective until Sept. 1,
2009).
14. N.Y. Correct. Law § 803(1)(d)(iii) (McKinney 2003 & Supp. 2008) (effective until Sept. 1,
2009).
15. N.Y. Correct. Law § 803(1)(d)(iii) (McKinney 2003 & Supp. 2008) (effective until Sept. 1,
2009).
16. N.Y. Penal Law § 70.70(3)(d) (Supp. 2008) (effective until Sept. 1, 2009).
17. If you complete a shock incarceration program, you are eligible to receive a Certificate of
Earned Eligibility under Section 805 of N.Y. Corrections Law. N.Y. Correct. Law §§ 805, 867 (4)
(McKinney 2003 & Supp. 2008). See Part F(5) of this Chapter for additional information on Certificates
of Earned Eligibility.
18. N.Y. Correct. Law § 867(1) (McKinney 2003 & Supp. 2008). To be eligible, you must be under
the age of 40 and have been at least 16 years old, but less than 40, when you committed the crime for
which you are incarcerated. You must be eligible for parole in three years and not have been convicted
of a felony with an indeterminate sentence. The commission of certain crimes will also make you
ineligible, including but not limited to a violent felony offense, an A-1 felony offense, or rape in the
second or third degree. N.Y. Comp. Codes R. & Regs. tit. 7, §1800.4 (2008).
19. N.Y. Comp. Codes R. & Regs. tit. 7, §1800.3(c) (2008).
20. N.Y. Comp. Codes R. & Regs. tit. 7, §1800.6(b) (2008).
21. N.Y. Correct. Law § 805 (McKinney 2003 & Supp. 2008) (effective until Sept. 1, 2009).
(1) You have a substance dependence history that has significantly contributed to your
illegal acts;
(2) A sentence of parole supervision would likely help you become or stay drug-free; and
(3) A sentence of parole supervision would not risk “public safety or public confidence in
the integrity of the criminal justice system.”22
Furthermore, you can only be given a sentence of parole supervision for conviction of
certain specified crimes.23 When the court considers whether to give you a sentence of parole
supervision, the prosecutor may either agree with or oppose the sentence, and the court is
permitted, but not required, to consider the prosecutor’s view. If, however, you are convicted
of a class D felony, the court may impose a sentence of parole supervision only if the
prosecutor agrees to it.24
If you receive a sentence of parole supervision, you will be placed under the supervision
of the state Division of Parole and will be sent immediately to a reception center for no more
than ten days.25 Once you arrive at the reception center, the law requires that you be given a
copy of the conditions of your parole, and you will need to acknowledge in writing that you
have received a copy of these conditions.26 Sometime after you leave the reception center, you
will be placed in a drug treatment campus for 90 days.27 While you are at the campus, the
Division of Parole will assess your needs and develop a personal drug treatment program. In
most cases, this program will include help from local community organizations that work
with the Division of Parole.28 After you have completed the drug treatment program at the
22. N.Y. Crim. Proc. Law § 410.91(3) (McKinney 2005) (effective until Sept. 1, 2009); People v.
Denue, 275 A.D.2d 863, 864, 713 N.Y.S.2d 783, 784 (3d Dept. 2000) (denying petitioner a sentence of
parole supervision because he did not show that he had a history of substance dependence that
significantly contributed to his criminal conduct or that he was not subject to an undischarged term of
imprisonment).
23 . The specified crimes are listed in N.Y. Crim. Proc. Law § 410.91(5) (McKinney 2005)
(effective until Sept. 1, 2009) and include the following: criminal mischief in the third degree as defined
in N.Y. Penal Law § 145.05 (McKinney 1999 & Supp. 2008); criminal mischief in the second degree as
defined in N.Y. Penal Law § 145.10 (McKinney 1999); grand larceny in the fourth degree as defined in
N.Y. Penal Law §§ 155.30(1)–(10) (McKinney 1999 & Supp. 2008); grand larceny in the third degree as
defined in N.Y. Penal Law § 155.35 (McKinney 1999) (except where the property consists of one or more
firearms, rifles, or shotguns); unauthorized use of a vehicle in the second degree as defined in N.Y.
Penal Law § 165.06 (McKinney 1999); criminal possession of stolen property in the fourth degree as
defined in N.Y. Penal Law §§ 165.45(1)–(3), (5)–(6) (McKinney 1999 & Supp. 2008); criminal possession
of stolen property in the third degree as defined in N.Y. Penal Law § 165.50 (McKinney 1999) (except
where the property consists of one or more firearms, rifles, or shotguns); forgery in the second degree as
defined in N.Y. Penal Law § 170.10 (McKinney 1999); criminal possession of a forged instrument in the
second degree as defined in N.Y. Penal Law § 170.25 (McKinney 1999); unlawfully using slugs in the
first degree as defined in N.Y. Penal Law § 170.60 (McKinney 1999); an attempt to commit any of the
aforementioned offenses if such attempt constitutes a felony offense; or any class D or class E controlled
substance or marijuana felony offense as defined in N.Y. Penal Law §§ 220.00–220.76, 221.00–221.55
(McKinney 2008). You are only eligible if you are a second felony offender who stands convicted of no
other felony offense, have not previously been convicted of either a violent felony offense as defined in
N.Y. Penal Law § 70.02, a class A felony offense or a class B felony offense, and are not subject to an
undischarged term of imprisonment. N.Y. Crim. Proc. Law § 410.91(2) (McKinney 2005) (effective until
Sept. 1, 2009).
24. N.Y. Crim. Proc. Law § 410.91(4) (McKinney. 2005) (effective until Sept. 1, 2009).
25. N.Y. Crim. Proc. Law § 410.91(1) (McKinney 2005 & Supp. 2007) (effective until Sept. 1,
2009).
2009).
2009).
2009).
campus, you will be given money, clothes, and transportation from the drug treatment
campus to the county where your parole supervision and drug treatment plan will continue.29
F. Parole Release Hearing and Appeals
1. Your Right to a Parole Release Hearing
The parole release hearing is an interview where the Parole Board determines whether
you should be released from prison before you serve your maximum sentence. You are
entitled to a parole release hearing at least one month before the end of your minimum
period of incarceration.30 There are some situations in which you may become eligible for
parole before you complete your minimum sentence. You may get early parole if you complete
a Shock Incarceration program, or if you are eligible for and earn merit time, or if you serve
and successfully complete a sentence of parole supervision. 31 (See Parts D and E of this
Chapter for a description of the Shock Incarceration Program and the Sentence of Parole
Supervision.) You do not have to file for a parole release hearing; one will be scheduled for
you automatically. If you believe your scheduled parole release hearing is past due, you can
contact the pre-release center or parole officer at your institution.
2. Steps to Take Before the Hearing
The decision to release you on parole is strictly a matter of Parole Board discretion; there
is no statutory or constitutional right to parole release.32 Nevertheless, there are ways you
can improve your chances of being released on parole. While you are in prison, the more that
you do to prepare for your re-entry into the community, the better your chances become of
convincing the Board to release you on parole. As you may know, however, in recent years,
the Parole Board has placed heavy emphasis on the seriousness of the crime when making
decisions about prisoners who are incarcerated for violent felonies. In addition to the facts
and circumstances of the underlying crime, the Parole Board is likely to consider five basic
areas:
(1) Education—Did you take any classes while in prison? Those classes might include a
GED course, vocational training, or college;
(2) Employment—Did you try to develop any job skills? These could range from making
furniture to kitchen work, as long as it is a skill that relates to life and potential
employment outside of prison;
(3) Issues That Led to Incarceration—Can you address the problems that led to your
conviction? For example, if you are in on a drug use charge, did you participate in
any treatment programs?;
(4) Likelihood of Community Reintegration—Have you had any contact with your family
or community? Even if you cannot show family ties like letters or visits, developing a
contact with a halfway house or an ex-offender service group will help; and
(5) Future Plans and Goals—You should be prepared to discuss your immediate plans
and future goals for your life after release on parole.
In short, your activities while you are incarcerated affect your chances for parole.
29. N.Y. Crim. Proc. Law § 410.91(7) (McKinney 2005) (effective until Sept. 1, 2009).
30. N.Y. Exec. Law § 259-i(2)(a) (McKinney 2005 & Supp. 2008) (effective until Sept. 1, 2009).
32. See, e.g., Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001) (holding that a prisoner does not
have a justifiable expectation of release on parole, and it is up to the Parole Board to determine
prisoner eligibility for parole); Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979) (holding New York
state’s statutory scheme of parole did not create entitlement to parole). However, as discussed in Part
F(5) of this Chapter, in 1987 New York adopted the Certificate of Earned Eligibility program, which
created a presumption in favor of release on parole in certain situations.
As an eligible parole candidate, you must complete what is known as a “parole” or
“release” plan prior to your parole release hearing. This plan will be part of your Inmate
Status Report.33 The Guidelines describe “release plans” as “including community resources,
employment, education and training and support services.” 34 One of the most important
parts of your parole plan is your proposed course of employment or education after release. If
you are granted parole but have not produced a satisfactory plan, your release date will be
pushed back until you have developed one. If you wait longer than six months after the
release hearing to develop a satisfactory plan, you will have to go before the Parole Board
again for reconsideration of your status.35 Therefore, if you are finding it difficult to develop a
parole plan, you must get some help as soon as possible. Otherwise, you risk delaying or
losing your parole release.
For help in preparing your parole plan, contact the pre-release center or parole officer at
your institution. The parole statute now requires the Division of Parole to “assist inmates
eligible for ... parole ... to secure employment, educational or vocational training.” 36 In
addition to contacting the pre-release center and/or institutional parole officers, you should
use any other contacts you have (like former employers, family, or friends) to get a job while
still incarcerated. For information on employment in New York City, you can contact the
New York State Division of Parole at (518) 473-9400. The Fortune Society is another good
source of support that may lead to possible employment. It also offers one-to-one counseling
and tutoring. You can write to the Fortune Society at 53 W. 23rd St., 8th floor, New York, NY
10010; or, call (212) 691-7554.
Your institutional record is also an important part of your Inmate Status Report. It will
list your program goals and accomplishments, academic achievements, vocational education,
training or work assignments, therapy, and relationships with staff and other prisoners.37 It
is important that this information present a favorable image to the Parole Board. However,
while it may be helpful to maintain an exemplary prison record to make a good impression
on the Parole Board, it is important to note that good conduct alone does not guarantee
parole.38
To obtain parole, your record and conduct must show the Parole Board that:
(1) You “will live and remain at liberty without violating the law;”
(2) Your release will not harm society; and
(3) You will not “deprecate” the seriousness of the crime you committed (make the crime
seem less serious) and undermine respect for the law.39
If you have been issued a Certificate of Earned Eligibility (See Part F(5) of this Chapter),
the Parole Board will implement a lesser standard of review in determining your parole.40
33. N.Y. Exec. Law § 259-i(2)(c)(A)(iii) (McKinney 2005 & Supp. 2008); N.Y. Comp. Codes R. &
Regs. tit. 9, § 8002.3 (2008). New York defines the Inmate Status Report as follows. The Inmate Status
Report is prepared by an Institutional Parole Officer and will include information such as: (1) court
information on the present offense, the judge’s sentence, etc.; (2) your age, place of birth, occupation,
marital status, etc; (3) your legal history; (4) your institutional record, including any disciplinary
record, your medical history and involvement in educational and recreational programs; (5) your
inmate statement, which includes comments and attitude regarding the offense that resulted in your
conviction, as well as your comments about your prior record; and (6) your Parole Plan. New York State
Division of Parole, New York State Parole Handbook, Questions And Answers Concerning Parole
Release and Supervision (2007), at 12, available at http://parole.state.ny.us/Handbook.pdf.
36. N.Y. Exec. Law §259-a(6) (McKinney 2005 & Supp. 2008).
37. N.Y. Exec. Law § 259-i(2)(c)(A)(i)(McKinney 2005 & Supp. 2008); N.Y. Comp. Codes R. &
Regs. tit. 9, § 8002.3 (a)(1), (b)(1) (2008).
38. N.Y. Exec. Law § 259-i(2)(c)(A) (McKinney 2005 & Supp. 2008).
Nevertheless, it is a good idea to build the strongest record of education, program
participation, and work that you can, since your activities while in prison directly affect this
part of the Inmate Status Report.
If the Parole Board grants parole, some prisoners may be required to find acceptable
housing prior to being released. The Parole Board’s requirements for approved housing may
be very difficult (for example, prisoners may be banned from living near a school or a school
bus stop, may not be allowed to live alone, or may not be allowed to live in a shelter).41
If you are serving a sentence for a non-violent felony, other than those involving
manslaughter, homicide, or sexual misconduct, you may be eligible for presumptive release
on parole if you have no serious disciplinary infractions and have not brought a frivolous
court proceeding while incarcerated.42
3. The Parole Release Hearing
A two or three member panel of the Parole Board conducts the parole release hearing
during monthly visits to each facility.43 Only one member of the panel will review your parole
plan in detail. The other panel members will be present at the interview, but will generally
defer to the judgment of the member who read the file. Instead of reading the full report, the
other panel members will receive a summary of your parole report. The Parole Board
members, the facility parole officer and staff, and a hearing reporter will be present at the
release interview. You are not permitted to have an attorney with you at this interview.44
During the parole release interview, panel members will ask you questions about:
(1) Your plans if you are released on parole;
(2) Your conduct and activities during your incarceration;
(3) Your criminal record, including past crimes and time served; and
(4) The events surrounding the crime for which you are presently incarcerated.
It is important to note that the panel members will consider whether you understand
why the crime happened, whether you feel any remorse for the crime, and what you would do
differently in the future. You must answer all questions honestly, but be sure to present your
side of the story in answering any difficult questions. Remember, if your parole is denied and
you want to appeal, the basis for any appeal must appear in the hearing record. So, you must
present all your information and reasons for parole at the interview.
Be sure to bring to your release hearing any documents that would make a good
impression on the panel members, such as program certificates, diplomas, or letters of
recommendation. These should already be in your parole file, but sometimes institutional
authorities forget to file them properly.
40. “[P]arole release shall be granted at the expiration of [prisoners’] minimum terms … unless
the [Board of Parole] determine[s] that there is a reasonable probability that the inmate will not live
and remain at liberty without violating the law and that the release is not compatible with the welfare
of society.” N.Y. Comp. Codes R. & Regs. tit. 9, § 8002.3(c) (2008); see also N.Y. Correct. Law § 805
(McKinney 2003 & Supp. 2008) (effective until Sept. 1, 2009).
41. See People ex rel. Travis v. Coombe, 219 A.D.2d 881, 881–82, 632 N.Y.S.2d 340, 341–42 (4th
Dept. 1995) (holding that parole grantee was not entitled to immediate release, since “[n]o residence
was located that was acceptable to the Division of Parole”).
43. N.Y. Exec. Law § 259-b(1) (McKinney 2005); New York State Division of Parole, New York
State Parole Handbook, Questions And Answers Concerning Parole Release and Supervision (2007), at
2, available at http://parole.state.ny.us/Handbook.pdf (noting that the Board of Parole “consists of up to
19 members appointed by the Governor with the advice and consent of the Senate“).
44 . New York State Division of Parole, New York State Parole Handbook, Questions And
Answers Concerning Parole Release and Supervision (2007), at 8, available at
http://parole.state.ny.us/Handbook.pdf.
The Parole Law requires the Parole Board to take into consideration all of the following
factors in determining early release on parole:
(1) Your institutional record;
(2) Your academic achievements;
(3) Your training or work assignments;
(4) Any therapy you have had;
(5) Interpersonal relationships with staff and other prisoners;
(6) Your performance, if any, in a release program;
(7) Any release plans involving community resources, education, and training support
services;
(8) Any deportation orders;
(9) Any written or oral statement of the crime victim;45
(10) The seriousness of the offense for which you are presently incarcerated;
(11) Recommendations of the sentencing court and district attorney;
(12) The recommendation of your attorney at trial;
(13) The pre-sentence probation report;
(14) Any mitigating and aggravating factors;46
(15) Activities following arrest and prior to conviction;47 and
(16) Any prior criminal record.48
If the Board fails to consider relevant statutory factors in determining your parole, you
may have grounds for appealing the parole decision.49 But, the Board does not have to give
each factor equal weight.50
The Board decides whether or not to grant parole either on the day of the hearing or a
few days later. Typically, the panel will make a decision immediately after you leave the
room. The Parole Board has a large amount of discretion in deciding whether you are eligible
for parole. The Parole Board establishes its own guidelines to determine when a prisoner is
eligible for parole,51 and it currently sets a high standard. As the court stated in Barna v.
Travis, “[T]he New York parole scheme is not one that creates in any prisoner a legitimate
expectancy of release.”52 Even though the Parole Board must consider the above factors, the
list is only intended as a guide. In recent years the Board has given particular weight to the
factors of crime severity and past criminal history for individuals incarcerated for violent
felonies.
45. The Parole Board will also consider any statements made on the victim’s behalf by a
representative.
46. Mitigating factors are circumstances in your crime that make your case more sympathetic or
more favorable. Aggravating factors make you or your crime less sympathetic or less favorable.
47. It is important to effectively use your pre-conviction time (that is, the time following your
arrest but before conviction and sentencing), especially if you are out on bail. Seeking employment—or,
if you already have a job, keeping a good record at that job—can sometimes help justify a lower
sentence and early release on parole.
48. N.Y. Exec. Law § 259-i(1)(a)(ii) (McKinney 2005 & Supp. 2008).
49. See, e.g., King v. N.Y. State Div. of Parole, 190 A.D.2d 423, 431, 598 N.Y.S.2d 245, 250 (1st
Dept. 1993), aff’d, 83 N.Y.2d 788, 632 N.E.2d 1277, 610 N.Y.S.2d 954 (1994) (holding that the Parole
Board has a duty “to give fair consideration” to each person who comes before it, and where the record
“convincingly demonstrates” that the Board did not fairly consider the proper standards in reaching its
decision, courts must intervene).
50. Geames v. Travis, 284 A.D.2d 843, 843, 726 N.Y.S.2d 506, 506 (3d Dept. 2001) (holding the
Parole Board does not have to weigh each factor equally; the heavy weight put on crime severity and
criminal history here was acceptable).
51. N.Y. Exec. Law § 259-c(4) (McKinney 2005 & Supp. 2008) (effective until Sept. 1, 2009).
52. Barna v. Travis, 239 F.3d 169, 170–71 (2d Cir. 2001) (holding that denial of parole did not
violate the Due Process or Ex Post Facto Clauses, since petitioners did not have “a legitimate
expectancy of release that is grounded in the state's statutory scheme”).
4. Victim Impact Statement
A victim impact statement is a written statement to the Parole Board by the crime victim
or the victim’s family, describing the effect of the crime on the victim’s life or on his or her
family.53 The victim or the victim’s family must submit the statement at least ten business
days before your parole hearing. 54 You usually cannot see the victim’s (or the victim’s
family’s) statement unless the victim or court authorizes.55
Whether or not there is a victim impact statement in your file, you can ask as many
people as possible from your family, your community, and your legal team to write letters to
the Parole Board in support of your release. If the letters come to you directly, photocopy
them (or ask someone to photocopy them for you) and ask the parole officer at your facility to
add them to your file. You should also bring these letters to your pre-parole interview and to
the parole hearing itself.
5. Certificate of Earned Eligibility
The “Earned Eligibility Program” was enacted to address the problem of overcrowding in
state prisons.56 Under the program, once you are in custody, you should be assigned a work
and treatment program “as soon as practicable.”57 Two months before your minimum term
expires, the Department of Correctional Services (DOCS) will review your institutional
record to determine whether you have complied with your program. If you have successfully
participated in this program, DOCS may issue you a “Certificate of Earned Eligibility”
(CEE).58 Prisoners serving an indeterminate sentence with a minimum term over six years
are not able to receive a CEE. It is also important to note that even if you successfully
complete the program, you may still be denied a CEE since the decision to issue a CEE is
discretionary.59 Therefore, it is entirely up to DOCS to determine whether or not to grant you
a Certificate of Earned Eligibility. A court of law cannot force DOCS to issue you a CEE,
even if you have completed your treatment program; however, DOCS cannot arbitrarily deny
a CEE. In such instances, a court may review the denial, although it is important to
remember that courts often defer to the opinion of DOCS, except in unusual or extreme
circumstances.
If you have a CEE and have served your minimum period of incarceration, the standard
for parole release is easier to meet.60 First, the Parole Board may not consider whether your
release will “so deprecate the seriousness of [the] crime,” which is the standard the Board
uses for prisoners who do not have a CEE.61 Second, when you possess a CEE, the Board
presumes you will probably live and remain at liberty without violating the law—which
means unless the Board affirmatively finds otherwise, you should get parole.
53. N.Y. Exec. Law § 259-i(2)(c)(A) (v) (McKinney 2005 & Supp. 2008).
58. N.Y. Correct. Law § 805 (McKinney 2003 & Supp. 2008) (effective until Sept. 1, 2009). See
Klos v. Haskell, 835 F. Supp. 710, 723 (W.D.N.Y 1993), aff’d, 48 F.3d 81 (2d Cir. 1995) (stating the
Commissioner and Deputy Commissioner of the Department of Correctional Services may exercise
“their discretion, without restraint, to remove an inmate from participation in the [CEE] program”).
59. See Frett v. Coughlin, 156 A.D.2d 779, 781, 550 N.Y.S.2d 61, 63 (3d Dept. 1989) (“Successful
participation in the program is merely a threshold requirement which activates the Commissioner’s
discretionary power to issue a CEE. The statute simply does not create a liberty interest in receiving a
CEE because, even upon successful participation in the program, the Commissioner may deny the
certificate.”).
One month prior to the expiration of your minimum period of incarceration (MPI), you
will be interviewed by members of the Board for release consideration.62 The Parole Board
does not need to consider your full institutional record, as discussed above. Instead, it will
review
(1) The time-range guidelines;
(2) Your institutional disciplinary record;
(3) Your performance, if any, in a temporary release program;
(4) Your release plans—including community resources, employment, education and
training, and support services; and
(5) “Any available information which would indicate an inability to live and remain at
liberty without violating the law, and that the release is incompatible with the
welfare of society.”63
It is important to note that having a CEE does not automatically entitle you to parole.64
Rather, it “create[s] merely an expectation of parole ... that deserves due process
protection.”65 As in all cases, if you are denied parole, you have a right to be told why you
were denied. 66 If a court determines that the Parole Board did not comply with these
requirements, you may be entitled to a new hearing.67
6. Denial of Parole Release
If you are denied parole, within two weeks of your first hearing, the Parole Board must
provide you with a detailed written explanation stating the reasons you were denied parole.
Within two weeks of your first hearing, the Board will also set a date for reconsideration of
your parole release, which must be scheduled within twenty-four months of your first
hearing. 68 The twenty-four month notice period begins from the date of your last parole
hearing. Before the new hearing, you should (1) prepare a new parole plan; and (2) try to
strengthen the parts of your record the Board identified as reasons for denying parole. If you
are denied parole more than once, you must continue to follow this procedure. If your parole
is revoked, there is no time limit for rescheduling a parole release hearing. So, if your parole
is revoked and you are returned to prison, the Parole Board may order that you be held for a
period longer than twenty-four months before being given another parole hearing.69 See Part
H below for more information on parole revocation.

63. N.Y. Comp. Codes R. & Regs. tit. 9, § 8002.3(c)(1)–(5) (2008). See, e.g., Pike v. N.Y. State Div.
of Parole, 188 A.D.2d 602, 603, 591 N.Y.S.2d 495, 496 (2d Dept. 1992) (holding that despite the CEE,
“petitioner’s release was incompatible with the welfare of society, and that the petitioner would not
remain at liberty without violating the law”); Confoy v. N.Y. State Div. of Parole, 173 A.D.2d 1014,
1015, 569 N.Y.S.2d 846, 847 (3d Dept. 1991) (holding that denial of parole was based on determination
that “[prisoner] would not remain at liberty without violating the law and that his release would be
incompatible with the welfare of society”).
64. Howard v. N.Y. State Bd. of Parole, 270 A.D.2d 539, 539–40, 704 N.Y.S.2d 326, 327 (3d Dept.
2000) (holding that the fact that the prisoner received a CEE did not preclude parole board from
denying him parole release).
65. People ex rel. Hunter v. Bara, 144 Misc. 2d 750, 752, 545 N.Y.S.2d 65, 66 (Sup. Ct. Richmond
County 1989) (holding that the prisoner only has a liberty interest in the possibility of release on
parole).
66. N.Y. Exec. Law § 259-i(2)(a)(i) (McKinney 2005 & Supp. 2008) (effective until Sept. 1, 2009).
67. See People ex rel. Hunter v. Bara, 144 Misc. 2d 750, 752, 545 N.Y.S.2d 65, 67 (Sup. Ct.
Richmond County 1989) (“If the Parole Board fails to comply with the statutory due process protection,
the parole candidate is entitled to a new hearing rather than a habeas corpus relief. ... It does not give
the petitioner a vested right to release.”).
68. N.Y. Exec. Law § 259-i(2)(a)(i) (McKinney 2005 & Supp. 2008); N.Y. Comp. Codes R. & Regs.
tit. 9, § 8002.3(d) (2008). See N.Y. Comp. Codes R. & Regs. tit. 9, § 8006.1 (2008) (appeals procedure).
69. See People ex rel. Matthews v. New York State Div. of Parole, 58 N.Y.2d 196, 205, 447 N.E.2d
7. Appealing Denial of Parole Release to Appeals Unit
You can appeal a denial of parole. An appeal is an administrative procedure conducted
through the Appeals Unit of the Parole Board.70 You have the right to an attorney when you
appeal to the Parole Board. If you cannot afford an attorney, one will be assigned to you.71
You can appeal a release proceeding on one or more of the following grounds:
(1) The proceeding and/or determination violated lawful procedure, was influenced by an
error of law, or was “arbitrary, capricious or otherwise unlawful”;
(2) A Board member or members relied on mistaken or irrelevant information in making
a decision, and this can be shown in the record of the proceeding; or
(3) The determination was excessive.72
If you believe you have grounds for an appeal, immediately file a “notice of appeal,”
which should be contained in the notification of denial. Then request an attorney. You must
file a notice of appeal within thirty (30) days of receiving the notification of denial; otherwise,
you will have waived your right to an appeal.73
You should begin to prepare for your appeal by obtaining the parole release hearing
minutes from: Division of Parole, Appeals Unit, 97 Central Avenue, Albany, NY 12206.74
You will have to pay for the parole release hearing minutes (the record of the
proceeding). If you have an attorney and cannot afford to pay for the minutes, your attorney
can get them for you. You may also make a written request for “[a]ll other nonconfidential,
discoverable documents relating to the appeal.” 75 So, if you believe there is important
information in your parole records to support your appeal, you may request permission to
access it. However, you will not be given unrestricted access. Access to your parole records
will be limited in the following ways:
(1) You can only gain access to your case record at certain times—just before a scheduled
appearance before the Board or a hearing officer, or prior to making an
administrative appeal;76
(2) You can only access parts of the case record that the Board or the hearing officer will
consider;
(3) You will not be given access to diagnostic opinions that could “seriously disrupt[ ] ...
[your] institutional program,”77 information obtained from a confidential source, or
information that might harm another person; and
(4) The Division of Parole will not grant access to reports or materials from other
agencies.78 You will only be allowed to review the record at the prison or at the area
parole office that serves the prison.79
689, 693, 460 N.Y.S.2d 746, 750 (1983) (holding that under this particular record, denial of
adjournment of parole revocation hearing did not violate due process).
70. The appeals procedure is the same for Parole Board decisions regarding a minimum period of
imprisonment (MPI), parole release, parole rescission, and final revocation. N.Y. Comp. Codes R. &
Regs. tit. 9, § 8006.1(a) (2008).
71. N.Y. Exec. Law § 259-i(4)(b) (McKinney 2005 & Supp. 2008). You should write to the County
Clerk for the county in which your prison is located and ask the Clerk to assign you a lawyer for the
administrative appeal.
74. N.Y. Exec. Law § 259-i(6)(a) (McKinney 2005 & Supp. 2008) states that “[t]he board shall
provide for the making of a verbatim record of each parole release interview, except where a decision is
made to release the inmate to parole supervision, and … except when the decision of the presiding
officer after such hearings result in a dismissal of all charged violations of parole, conditional release or
post release supervision.”
77. N.Y. Comp. Codes R. & Regs. tit. 9, § 8000.5(c)(2)(i) (2008).
8. If your Administrative Appeal is Denied
If you appeal and are denied relief and wish to seek judicial review, you can begin an
Article 78 proceeding.80 Remember, as discussed in Chapter 22 of the JLM, you must serve
(properly deliver) your Article 78 petition to each respondent and the New York Attorney
General within four months of the date when the Appeals Unit decision becomes final.81 This
four-month limit is called the “statute of limitations.”
If you pursue Article 78 review, it is important to note that it is difficult to get a court to
reverse the Parole Board’s decision. The Parole Board’s decisions are discretionary and are
not subject to judicial review if made in accordance with statutory requirements.82 There are
two ways for a prisoner to secure a reversal of the Board’s decision. A prisoner must make a
“convincing showing” that either (1) the Board did not consider the required factors or
considered erroneous information,83 or (2) acted “irrationally bordering on impropriety” in
reaching its decision.84 The courts consider the following justifications for parole denial to fall
outside the scope of the Parole Board’s statutory authority: penal philosophy, the historical
treatment of individuals convicted of murder, the death penalty, life imprisonment without
parole, and the consequences to society if those sentences were not in place.85 This means the
Parole Board cannot use any of those justifications to deny your parole. In addition, the
Parole Board may consider neither “illegally seized evidence which has already been
suppressed in a criminal action,” nor “public pressure” in determining whether or not to
grant a prisoner parole.86 The Parole Board may not deny parole on the grounds that the
78. N.Y. Comp. Codes R. & Regs. tit. 9, § 8000.5(c)(2)(i)(b) (2008).

80. See JLM Chapter 5, Section C(6), and Chapter 22 for discussions of Article 78 proceedings.
81. N.Y. C.P.L.R. 217 (McKinney 2003).
82. N.Y. Exec. Law § 259-i(5) (McKinney 2005). See Davis v. N.Y. State Div. of Parole, 114
A.D.2d 412, 412, 494 N.Y.S.2d 136, 137 (2d Dept. 1985) (“[T]he Division of Parole’s release decisions are
discretionary, and if made in accordance with the statutory requirements, such determinations are not
subject to judicial review.”); Ristau v. Hammock, 103 A.D.2d 944, 945, 479 N.Y.S.2d 760, 761 (3d Dept.
1984) (requiring a showing of “irrationality bordering on impropriety to warrant intervention by the
courts” in a Parole Board’s release decision, which is discretionary).
83. E.g., Rodriguez v. Greenfield, No. 99-0058, 7 Fed. Appx. 42, 45, 2001 U.S. App. LEXIS 5093,
at *6 (2d Cir. Mar. 23, 2001) (unpublished) (reversing the Parole Commission’s decision to deny parole
because the prisoner’s record was incomplete, due to missing information on program goals and
accomplishments, academic achievements, vocational education, training or work assignments,
therapy, and interpersonal relationships with staff and prisoners); Plevy v. Travis, 17 A.D.3d 879, 880,
793 N.Y.S.2d 262, 263 (3d Dept. 2005) (reversing denial of parole and ordering a new parole hearing
because the Parole Board improperly considered the petitioner’s prior violation of parole, which had
been dismissed at the time, when determining denial of parole); Lewis v. Travis, 9 A.D.3d 800, 801, 780
N.Y.S.2d 243, 245 (3d Dept. 2004) (reversing denial of parole and granting a new parole hearing due to
the Parole Board’s reliance on incorrect information when making its determination); Edge v.
Hammock, 80 A.D.2d 953, 945, 438 N.Y.S.2d 38, 39 (3d Dept. 1981) (reversing Parole Board’s
determination of minimum period of imprisonment and ordering a new hearing because the Parole
Board based its determination on crimes the petitioner had not been convicted of).
84. Parole Board Decision is Deemed Prejudicial to Murder Convict, N.Y.L.J., Feb. 17, 1994, at
25 (citing Quartararo v. N.Y. State Div. of Parole, 224 A.D.2d 266, N.Y.S.2d 721 (1st Dept. 1996)); see
also Monroe v. Thigpen, 932 F.2d 1437, 1442 (11th Cir. 1991) (noting that “[a] parole board may not
engage in 'flagrant or unauthorized action'” by knowingly relying on false information) (citation
omitted); Russo v. N.Y. State Bd. of Parole, 50 N.Y.2d 69, 77, 405 N.E.2d 225, 229, 427 N.Y.S.2d 982,
986 (1980) (rejecting assertion that parole board acted arbitrarily in setting minimum period of
imprisonment at maximum sentence).
85. See King v. N.Y. State Div. of Parole, 83 N.Y.2d 788, 791, 632 N.E.2d 1277, 1278, 610
N.Y.S.2d 954, 955 (1994) (requiring a new hearing before a different panel after finding prisoner was
not given a proper parole hearing because “one of the Commissioners considered factors outside the
scope of the applicable statute”).
86. Parole Board Decision is Deemed Prejudicial to Murder Convict, N.Y.L.J., Feb. 17, 1994, at
“best kind of treatment” for your emotional and physical problems would be to remain
incarcerated.87 Finally, the Parole Board is required to consider any recommendations made
by the sentencing court, and a reviewing court may order reversal and reconsideration if the
Board fails to do so.88
Again, despite these limited examples of court reversals, it is important to remember
that courts generally give great deference to Parole Board decisions. Even in cases where the
Parole Board based its decision to deny parole on factors other than those specified by the
legislature, courts have upheld the decision, since the Parole Board may deny parole where
“it is incompatible with the welfare of society.” 89 Thus, the Parole Board may consider
additional factors (such as lack of remorse or insight and acceptance of responsibility) to
determine whether your release is compatible with the welfare of society.
9. Rescission (Reconsideration of Grant of Parole)
Even if your parole release interview goes well and you receive a parole release date, the
Parole Board may be able to reconsider its decision before your release date. The New York
State Division of Parole has established procedures for reconsideration of parole.90
The senior parole officer, or the parole officer in charge of a facility, may temporarily
suspend a release date if he realizes that there may be a basis for Board reconsideration.91
There are two general categories of events that might cause temporary suspension. The first
is the discovery of “significant information which existed” or “significant misbehavior which
occurred” before the parole release decision that was not known by the Board.92 The second is
an event that occurred after the Board’s decision to grant release.93 The basis for Board
reconsideration may include, but is not limited to, one or more of the following
circumstances:
(1) Significant misbehavior or a major violation of facility rules;
25 (internal quotation marks omitted). In Quartararo v. N.Y. State Div. of Parole, 224 A.D.2d 266, 637
N.Y.S.2d 721 (1st Dept. 1996), the court held that the Parole Board “improperly considered factors
outside the scope of Executive Law § 259-i and in violation of a prior court order” and ordered a new
hearing in front of a different panel. The court held that it was improper for the Parole Board to
consider press accounts of the petitioner’s crime, unchallenged ex parte allegations for removal from a
work release program and photographs of the victim in reviewing the petitioner’s application for parole.
The court ultimately exercised its broad remedial powers and granted Quartararo’s release on parole:
“On three separate occasions … [the Board could] not or [would] not follow its own regulations,
statutory mandate, or the lawful order of this court. ... The Board has failed to support any of its
determinations by adequate evidence, has misconstrued its role, power and duty, prejudged each of
petitioner’s parole applications, and applied the wrong legal standard.” Matter of Quartararo (N.Y.
State Division of Parole), N.Y.L.J., Aug. 18, 1995, at 23.
87. People ex rel. Smith v. N.Y. State Bd. of Parole, 91 Misc. 2d 486, 487, 398 N.Y.S.2d 12, 12
(Sup. Ct. Dutchess County 1976).
88. E.g., Standley v. N.Y. State Div. of Parole, 34 A.D.3d 1169, 1170, 825 N.Y.S.2d 568, 569 (3d
Dept. 2006) (reversing denial of parole due to the Parole Board’s repeated failure to consider the
sentencing minutes and the recommendations of the sentencing court, and ordering a reconsideration
that included these factors); McLaurin v. N.Y. State Bd. of Parole, 27 A.D.3d 565, 565, 812 N.Y.S.2d
122, 123 (2d Dept. 2006) (affirming decision ordering Division of Parole to obtain prisoner’s
resentencing minutes and have a new hearing); Edwards v. Travis, 304 A.D.2d 576, 576, 758 N.Y.S.2d
121, 122 (2d Dept. 2003) (Parole Division’s failure to consider sentencing judge’s recommendation
warranted judicial intervention).
89. Silmon v. Travis, 95 N.Y.2d 470, 477–78, 741 N.E.2d 501, 505–06, 718 N.Y.S.2d 704, 708–09
(2000) (holding that a decision by the Parole Board to deny parole for a prisoner who pleaded guilty to
murdering his wife but denied culpability was not arbitrary or capricious).
92. N.Y. Comp. Codes R. & Regs. tit. 9, § 8002.5(b)(2)(i) (2007).
93. N.Y. Comp. Codes R. & Regs. tit. 9, § 8002.5(b)(2)(ii) (2007).
(2) An escape or removal from temporary release;
(3) A prisoner’s commitment to a psychiatric treatment center;
(4) Imposition of an additional definite sentence; and
(5) Imposition of an additional indeterminate sentence.94
This list is not exclusive. For example, in 2005, Pugh v. Parole, parole was rescinded
because the victims’ statement was not considered before granting parole. Once the victims
complained, the Board considered their statements.95 The parole officer should notify you in
writing of the suspension “as soon as practicable,” investigate the circumstances leading to
the suspension, and prepare a “rescission report” for a Board member.96 The Board member
will then review the report and decide either to reinstate your release date or to hold a
rescission hearing. If a rescission hearing is ordered, you will receive a copy of the rescission
report and a notice of the rescission hearing at least seven days before the hearing.97 The
notice must state
(1) The date and place of the hearing;
(2) The specific allegations that will be considered at the hearing; and
(3) A description of your rights at the final hearing, like your right to counsel, to testify,
to present witnesses and introduce evidence, and to cross-examine most of the
government’s witnesses.98
There is no specific time limit, but the rescission hearing must be scheduled to take place
within a “reasonable time after the board orders a hearing.” 99 You have the right to be
represented by a lawyer at a rescission hearing, but there is no requirement that a lawyer be
appointed. You have the right “to appear and speak on [your] own behalf; to present
witnesses and introduce documentary evidence; and to confront and cross-examine adverse
witnesses.” 100 But, you cannot force witnesses to appear if the members of the Board of
Parole conducting the hearing find good cause in the record for a witness not to appear.101
A majority of the Board members at the hearing (that is, at least two of the three
members) must find there is substantial evidence presented at the hearing to support a
decision to rescind parole.102 In general, if there was enough evidence to find you guilty of a
violation of facility rules at the Superintendent’s Hearing, there is probably enough evidence
to uphold parole rescission.103 The Parole Board will then rescind the release date and either
set a new date for release consideration for not more than 24 months from the date of the
original release interview, or set a new release date.104 If the majority of the Parole Board
does not believe substantial evidence exists to support a rescission of parole, it will cancel the
temporary suspension and reinstate the original release date. If that date has passed, the
Board will set a new one for as soon as practicable.105 The appeal process for rescission is the
same as the process for appealing parole denial.106
94. N.Y. Comp. Codes R. & Regs. tit. 9 § 8002.5(b)(2)(ii)(a)–(e) (2007).

95. Pugh v. N.Y. State Bd. of Parole, 19 A.D.3d 991, 993, 798 N.Y.S.2d 182, 184 (3d Dept. 2005).
99. N.Y. Comp. Codes R. & Regs. tit. 9 § 8002.5(c)(1) (2007).
100. N.Y. Comp. Codes R. & Regs. tit. 9, § 8002.5(b)(5)(iii)(b)–(c) (2007).
101. N.Y. Comp. Codes R. & Regs. tit. 9 § 8002.5(b)(5)(iii)(c) (2007).
103. Brooks v. Travis, 19 A.D.3d 901, 901–02, 797 N.Y.S.2d 183, 184 (3d Dept. 2005) (prisoner’s
guilty plea to offense in misbehavior report was sufficient evidence of a significant misbehavior for the
purpose of rescinding parole).
104. N.Y. Comp. Codes R. & Regs. tit. 9, § 8002.5(d)(1)(i)–(ii) (2007).
106. N.Y. Comp. Codes R. & Reg. tit. 9, § 8006.1 (2007).
It is unclear whether rescission of parole involves a protected “liberty interest” that
invokes due process protection. The Supreme Court held in Jago v. Van Curen that a
prisoner, who had been granted a parole date later revoked before his release without notice
or a hearing, did not have a liberty interest requiring due process protection.107 In Lanier v.
Fair, 108 the court noted Van Curen involved a state statute that gave the Parole Board
complete discretion in determining its parole policies. Thus, in that particular instance, the
statute did not create a liberty interest. But, other courts have found you have a liberty
interest when your parole is rescinded, and you deserve due process protection. For example,
when a state statute uses language that makes parole consideration mandatory, some courts
have found that this language creates an “expectation of parole” that constitutes a liberty
interest protected by the Constitution.109 Also, some courts have decided that when a Parole
Board limits its rescission authority by its own regulations, it creates a liberty interest that
requires due process protection.110 Thus, it is possible that since the New York State Division
of Parole has established procedures for the reconsideration of parole, it has also created a
liberty interest in parole that deserves due process protection. This issue has not yet been
litigated.
G. Release on Parole
1. Release Procedures
If you are granted parole release, the first step will be completion and approval of your
parole plan. Upon completion and approval of your parole plan, you will be given a
“Conditions of Release” form to sign, and will be assigned a parole officer. If you are approved
for parole release prior to having an approved employment and residence program, you will
be placed on “open date” status. If you do not have an approved plan within six months of
receiving an “open date” program, you must reappear before the Board.111
If you were sentenced to a determinate sentence for a violent felony or a felony drug
offense, the law requires that you serve a period of post-release supervision.112 The additional
post-release supervision may last up to five years, depending on the type of offense for which
107. Jago v. Van Curen, 454 U.S. 14, 17, 102 S. Ct. 31, 34, 70 L. Ed.2d 13, 17 (1981).
108. Lanier v. Fair, 876 F.2d 243, 251 (1st Cir. 1989).
109. See, e.g., Watson v. DiSabato, 933 F. Supp. 390, 392 (D.N.J. 1996) (holding New Jersey’s
parole statute creates a sufficient expectation of parole eligibility to give rise to liberty interest); Harper
v. Young, 64 F.3d 563, 564–65 (10th Cir. 1995) (holding that “program participation is sufficiently
similar to parole or probation to merit protection by the Due Process Clause itself”); Clarkson v.
Coughlin, 898 F. Supp. 1019, 1040 (S.D.N.Y. 1995) (holding that there was a state-created limited
protected liberty interest in New York parole proceedings, extending as far as a prisoner’s rights to be
heard and to know reasons for parole denial); Wilson v. Kelkhoff, 86 F.3d 1438, 1446 (7th Cir. 1996)
(holding Illinois’s parole statute provides for protectable liberty interest in release for most prisoners).
But see Allison v. Kyle, 66 F.3d 71, 73–74 (5th Cir. 1995) (holding Texas’ parole statute does not create
a liberty interest in parole that is entitled to due process protection); Hamm v. Latessa, 72 F.3d 947,
955 (1st Cir. 1995) (finding no state-created liberty interest in parole in parole proceeding governed by
Massachusetts state law).
110. See Green v. McCall, 822 F.2d 284, 287 (2d Cir. 1987) (holding that “a parole grantee has a
protectable liberty interest that entitles him to due process in … parole rescission hearings” when the
parole commission had limited rescission authority); Ellard v. Ala. Bd. of Pardons & Paroles, 824 F.2d
937, 943–44 (11th Cir. 1987) (holding that “[i]n view of the statutory restrictions on the authority of the
Parole Board to revoke a parole, we conclude that [parole grantee] had a constitutionally protected
liberty interest”).
111. N.Y. Comp. Codes R. & Regs. tit. 9, § 8002.3(f) (2007); New York State Division of Parole,
New York State Parole Handbook, Questions And Answers Concerning Parole Release and Supervision
(2007), at 14, available at http://parole.state.ny.us/Handbook.pdf.
you were imprisoned.113 The sentencing court retains the discretion to designate a lesser
term depending on the nature of the crime that resulted in your conviction. 114 If your
sentence requires post-release supervision, you must do further research, as this section
provides only a general overview of the law and its effects.
2. Supervision of Parole
After you are placed on parole, you will remain under supervision of the Division of
Parole until the end of your maximum sentence, the end of your parole supervision (which
may be granted early by the Parole Board), or your return to prison. 115 Be sure you
completely understand your release conditions, including any special conditions imposed by
the parole officer. Failure to follow any parole release requirement could result in a violation,
which might trigger parole revocation proceedings. If you have any questions about the
terms of your release or what type of activity is prohibited, ask your parole officer to
explain.116
It is very important to develop a good working relationship with your parole officer, since
he or she will be primarily responsible for determining your ability to serve the remainder of
your sentence outside prison. In addition, your parole officer can serve as a crucial resource
to assist you in many ways, like directing you to social service programs or emergency
hotlines. Cooperate with your parole officer, but you should know your interactions are not
confidential. Statements that you make about your activities that might be considered parole
violations could be deemed confessions or admissions, and these statements could be used
against you in parole revocation proceedings.117
There are several important conditions of release you must follow carefully. Failure to do
so might result in a violation of your parole, which could trigger parole revocation
proceedings. The conditions of release are
(1) Within twenty-four hours of your release, you must report directly to your designated
area of release and file an arrival report with the office of the Division of Parole.
(2) You must keep any appointments with your parole officer and complete any required
written reports.
(3) You must not leave the state or any area defined in your “Conditions of Release” plan
without permission.
(4) You must let your parole officer visit your home and work and inspect your property.
You must immediately tell your parole officer of any change of address or
employment status.
(5) You must reply “promptly, fully, and truthfully” to any communication from your
parole officer or a representative of the Division of Parole.
113. Al O’Connor, 1998 Legislative Review, Pub. Def. Backup Center Rep. (N.Y. State Defenders
Ass’n, Albany, N.Y.) Vol. XIII, No. 7 (1998), at 4, available at
http://www.nysda.org/Hot_Topics/Legislation_NY/98_LegislativeReview.pdf; N.Y. Penal Law § 70.45(2)
(McKinney 2004).
115. N.Y. Comp. Codes R. & Regs. tit. 9, § 8003.1(a) (2007); N.Y. Exec. Law § 259-j(1) (McKinney
2005 & Supp. 2008) (effective until Sept. 1, 2009).
116 . See generally New York State Division of Parole, New York State Parole Handbook,
Questions And Answers Concerning Parole Release and Supervision (2007), at 17–27, available at
117. See, e.g., People ex rel. King v. N.Y. State Bd. of Parole, 65 A.D.2d 465, 468–69, 412
N.Y.S.2d 138, 140–41 (1st Dept. 1979) (holding that admission to parole officer of possession of heroin
was admissible in a parole revocation hearing, even though evidence of heroin was suppressed in court
proceeding because it had been illegally seized).
(6) You must advise your parole officer of any new arrest immediately. Even if the
charges in the new arrest are dropped, failure to report an arrest can be a violation of
your parole.
(7) You may not associate with people who have criminal records.
(8) You may not violate a law that has prison time as a possible penalty, and you may
not threaten the safety of yourself or others.
(9) You may not own, possess, or purchase any kind of firearm or dangerous knife
without written permission from your parole officer. Other prohibited items include
razors, stilettos, or imitation pistols, or any instrument that could easily cause
physical injury without a satisfactory explanation for having the item.
(10)You may not use or possess any controlled substance or drug paraphernalia without
medical authorization.118
Other special conditions of parole may be imposed based on the nature of the underlying
criminal conviction. Parole conditions may be imposed by a member of the Board of Parole,
the Division of Parole, or a parole officer.119 Furthermore, the Division of Parole has special
guidelines for sex offenders, which may include residency restrictions and curfews. 120 In
practice, this means it may be very difficult to qualify for the conditions of parole, as you may
be required to live in a place not near a school or a school bus stop, and you may be
prohibited from living with a minor. For a discussion of special conditions that are often
imposed on parolees convicted of sex offenses, see Chapter 32 of the JLM, “Special
Considerations for Sex Offenders.”
If you are having any trouble with your parole officer, contact the parole officer’s
supervisor.
3. Your Rights While on Parole
Your parole officer has a fair amount of discretion in supervising you and evaluating
possible parole violations. When you sign your “Conditions of Release” form, you give
“advance consent” to certain parole officer conduct that might be unconstitutional in other
contexts. For example, your parole officer may search you and seize property without a
warrant and without probable cause. He or she may visit your home frequently to make sure
you still live there.121 Your parole officer may also visit your place of employment.122
Since you are still considered to be in the constructive custody of the state, you—unlike
an ordinary citizen—are not entitled to full constitutional protection against infringement of
your rights. There has been some litigation on the extent of privacy and other rights that you
118. The preceding release conditions are listed in N.Y. Comp. Codes R. & Regs. tit. 9 §
8003.2(a)–(k) (2007).
119. Dickman v. Trietley, 268 A.D.2d 914, 916, 702 N.Y.S.2d 449, 451 (3d Dept. 2000) (holding
that a parolee’s field parole officer was authorized to impose the parole condition prohibiting the
parolee from residing with a woman the parolee had never met, since restriction was rational and
violated no statutory requirement).
120. See, e.g., Monroe v. Travis, 280 A.D.2d 675, 676, 721 N.Y.S.2d 377, 378 (2d Dept. 2001)
(holding that parole division could require sex offender to secure approved housing before granting his
request of conditional release); Billups v. N.Y. State Div. of Parole, 18 A.D.3d 1085, 1085, 795 N.Y.S.2d
408, 409 (3d Dept. 2005) (holding that parole board's imposition of requirement of suitable residence as
condition of prisoner's parole release was rational, because prisoner had a history of violent conduct
and sexual offenses).
121 . See generally New York State Division of Parole, New York State Parole Handbook,
Questions And Answers Concerning Parole Release and Supervision (2007), at 23, available at
122. N.Y. Comp. Codes R. & Regs. tit. 9, § 8003.2(d) (2007). If you are worried that your parole
officer visiting your job might be a problem, advise your parole officer about this. New York State
Division of Parole, New York State Parole Handbook, Questions And Answers Concerning Parole
Release and Supervision (2007), at 23, available at http://parole.state.ny.us/Handbook.pdf.
retain as a parolee. Any searches must be knowing and voluntary, reasonably related to the
rehabilitation goal, and performed by a parole officer in his or her duty to monitor your
rehabilitation. 123 Since you usually must consent to searches at the time of parole, the
knowing and voluntary requirement is readily met. Furthermore, it is unlikely that a court
will find the other two requirements have not been met. For example, courts have held that
you may be required to give blood and have your DNA kept on file in a data bank as part of a
legal search. 124
4. Special Parole
Special parole is different from regular parole. Special parole was created especially for
drug offenses. It was repealed in 1984 but still governs crimes committed before November
1987.125 Special parole follows a prison term and is imposed by the sentencing judge. Regular
or traditional parole entails release before the end of a prison term and is imposed by the
Parole Board. If you violate the conditions of special parole you must serve the remainder of
the special parole term in prison. After serving the remainder of your special parole term, the
Parole Commission may impose a new term of imprisonment. Following your imprisonment,
the Parole Commission has the right to impose a term of traditional parole.126 The Parole
Commission may also re-impose another term of special parole after revoking a term of
special parole.127
H. Revocation of Your Parole
1. How and Why Parole Revocation Begins
If you do not follow the terms of your parole release, you may have to return to prison to
serve the rest of your sentence. You must violate a condition of parole “in an important
respect”128 in order for the Parole Board to revoke your parole. This standard, however, is
often readily satisfied by a direct violation of one of the explicit conditions of parole, such as
not making curfew129 or being in an explicitly prohibited area.130 Decisions by the Parole
Division to revoke parole may only be reviewed by a court to determine whether the Parole
123. People v. Hale, 93 N.Y.2d 454, 457, 714 N.E.2d 861, 862, 692 N.Y.S.2d 649, 650 (1999)
(holding that a parole officer’s search of the home of a parolee suspected of dealing drugs did not violate
his constitutional rights when parolee had agreed to searches for illegal drugs as a condition of parole).
124. N.Y. Exec. Law § 995-c (McKinney 1996); Kellogg v. Travis, 188 Misc. 2d 164, 167–68, 728
N.Y.S.2d 645, 647–48 (Sup.Ct. N.Y. County 2001) (holding N.Y. Exec. Law § 995-c is constitutional and
withdrawal of a parolee’s blood does not constitute an illegal search and seizure, even though less
invasive means of getting a DNA sample exist).
125. 21 U.S.C. § 841(c) (repealed 1984).
126. United States v. Caraballo, No. 96 Civ. 6915 (KTD), 86 Cr. 336 (KTD), 2000 U.S. Dist.
LEXIS 499, at *8–9 (S.D.N.Y. Jan. 20, 2000) (unpublished) (holding that the Parole Commission can re-
impose a term of regular parole on a prisoner who violated special parole and was imprisoned for the
remaining period of his special parole).
127. Rich v. Maranville, 369 F.3d 83, 89–90 (2d Cir. 2004) (holding that “when special parole is
revoked that term is suspended and continues to exist. The Commission thus creates nothing when it
re-imposes that court-created term of special parole after the revocation and incarceration”).
128. N.Y. Exec. Law § 259-i(3)(c)(iv) (McKinney 2005); People ex rel. Korn v. N.Y. State Div. of
Parole, 274 A.D.2d 439, 440, 710 N.Y.S.2d 124, 125 (2d Dept. 2000) (stating that a violation of a
“substantial condition” of parole is sufficient to have parole revoked).
129. People ex rel. Korn v. N.Y. State Div. of Parole, 274 A.D.2d 439, 440, 710 N.Y.S.2d 124, 125
(2d Dept. 2000) (holding that a prisoner violated a “substantial condition” of his parole by missing his
curfew without adequately explaining this violation, and this was a reasonable ground to support
revoking prisoner’s parole).
130. Bellamy v. N.Y. State Div. of Parole, 274 A.D.2d 871, 872, 711 N.Y.S.2d 596, 597 (3d Dept.
2000) (holding that revocation of parole of a parolee who was found on a street which he was twice told
not to enter as an official condition of his parole was justified).
Board followed the proper procedural rules. The court cannot make its own determination
about the truth of your reasons for violating parole. 131 Courts usually uphold the Parole
Commission’s decisions. If your parole officer has “reasonable cause to believe that [you have]
lapsed into criminal ways, company, or [have] violated one or more of the conditions of ...
release in an important respect,”132 he or she may report such conduct to a member of the
Parole Board or a designated officer, who may then secure a warrant for retaking and
temporary detention.133 A parole violation is called a “delinquency.” If it is later proven that
you violated your parole, your parole will be revoked going back to the date of this
delinquency. So, it is important to know exactly when you allegedly violated your parole
since you will be responsible to serve the prison time dating back to the delinquency date if
your parole is revoked. You will, however, be credited for time spent on parole prior to the
delinquency date.134 If your parole is being revoked, you may contact the Legal Aid Society’s
Parole Revocation Defense Unit at 199 Water Street, 5th Floor, New York, NY 10038.
If you are being held on a parole warrant, you are not entitled to bail or to release until
the parole warrant is lifted.135 If you are being detained on other charges (which may serve
later as the basis for parole revocation), and bail is set on those charges, you still cannot be
released while the parole warrant is pending.
In Morrissey v. Brewer, the U.S. Supreme Court ruled a paroled convict has a liberty
interest protected by due process. So, the revocation of parole release and re-incarceration
must be determined in accordance with due process.136 New York State’s parole law provides
for two due process hearings: preliminary and final. Within three days of the issuance of a
warrant for your retaking, you must receive written notice of the charges against you and the
date of the preliminary parole revocation hearing.137 The notice shall be given within three
days after the execution of a warrant for retaking and temporary detention, and not less
than 48 hours prior to the preliminary hearing.138 If you are out of state, you should be given
written notice of the time, place, and purpose of the hearing within five days of the issuance
of the warrant for your retaking.139
2. Preliminary Hearing
The purpose of the preliminary hearing is to determine whether there is “probable cause”
that you violated, in an important respect, one or more of the conditions of your parole
131. People ex rel. Bayham v. Meloni, 182 Misc. 2d 831, 832, 700 N.Y.S.2d 649, 650 (County Ct.
Monroe County 1999) (“A court, when reviewing a determination by the Parole Board to revoke parole,
may only ‘examine the record to determine if the required procedural rules were followed and if there is
any evidence which, if believed, would support the Parole Board’s determination, but the court may not
make its own determinations based on its assessment of the credibility of the witnesses.’” (citation
omitted)).
132. N.Y. Comp. Codes R. & Regs. tit. 9, § 8004.2(a)–(b) (2008).
133. N.Y. Comp. Codes R. & Regs. tit. 9, § 8004.2(c) (2008) (“Reasonable cause exists when
evidence or information which appears reliable discloses facts or circumstances that would convince a
person of ordinary intelligence, judgment and experience that it is reasonably likely that a releasee has
committed the acts in question or has lapsed into criminal ways or company.… [R]eliable evidence may
include hearsay.”).
135. See, e.g., People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 34, 300 N.E.2d 716, 720, 347
N.Y.S.2d 178, 184 (1973) (holding right to bail is statutory, and without statutory direction, prisoners
are not entitled to either bail or release pending hearing before Board).
136. Morrissey v. Brewer, 408 U.S. 471, 479–84, 92 S. Ct. 2593, 2599–2602, 33 L. Ed. 2d 484,
493–96 (1972).
137. N.Y. Exec. Law § 259-i(3)(c)(iii) (McKinney 2005 & Supp. 2008); N.Y. Comp. Codes R. &
Regs. tit. 9, § 8005.3 (2008).
release.140 The Parole Board has the burden to show evidence of your alleged violation.141 The
hearing must be held within fifteen (15) days of the issuance of the warrant of retaking, and
must be conducted by a hearing officer who has not had any prior supervisory involvement
over you.142
At the preliminary hearing, you are entitled to the following rights:
(1) To speak on your own behalf or to obtain counsel to represent you;143
(2) To introduce letters and documents;144
(3) To present witnesses who may provide relevant information in support of your
case;145 and
(4) To confront and cross-examine witnesses testifying against you, unless the hearing
officer finds good cause for their nonattendance.146
The regulations stipulate that you may be represented by counsel at your preliminary
hearing, but it is important to note that you do NOT have an absolute right to be represented
by counsel, nor do you have an absolute right to have an attorney appointed if you cannot
afford to hire one.147 If you believe that you need the assistance of counsel at the preliminary
hearing, try to get an attorney through the county or supreme court in the district in which
you are being held, or through the Legal Aid Society if you are in New York City. Unless you
have an exceedingly complex case, it may be difficult to get an attorney assigned at this
stage. You do not have to testify at this hearing or at the final hearing. You also do not have
to make a statement to your parole officer while he or she is preparing the Parole Violation
Report. Any statement you do make may be used as evidence at the final hearing.
An important difference between the preliminary hearing and the final hearing is that
not all of the charges need to be heard at the preliminary hearing. If the hearing officer
determines that probable cause exists after hearing one or more of the charges, the judge
may determine that enough probable cause exists to end the preliminary hearing and move
toward a final hearing.148 If there is proof of conviction of a crime committed after release on
parole (for example, a certificate of conviction), the judge will consider that enough to show
probable cause.149 There is no opportunity at the preliminary hearing to present evidence of
mitigating factors or suggestions for alternatives to incarceration, as there is at the final
hearing.150
140. “Probable cause” means reasonable cause.

141. This means the Parole Board must create a sufficient case of a violation, which you have to
explain or refute.
142. N.Y. Exec. Law § 259-i(3)(c)(i) (McKinney 2005 & Supp. 2008); N.Y. Comp. Codes R. & Regs.
tit. 9, § 8005.4 (2008).
143. The attorney must file a notice of appearance. N.Y. Comp. Codes R. & Regs. tit. 9, §
8005.5(a)– (b)(1) (2008).
146. N.Y. Comp. Codes R. & Regs. tit. 9, § 8005.3(c)(4) (2008). You may compel the attendance at
the hearing of adverse witnesses through subpoenas, unless you have already been convicted of a new
crime, or the hearing officer finds good cause for their non-attendance. N.Y. Exec. Law § 259-i(3)(c)(iii)
(McKinney 2005 & Supp. 2008); N.Y. Comp. Codes R. & Regs. tit. 9, § 8005.3(c)(4) (2008). If you are
proceeding pro se at this stage, you may apply to the hearing officer or Board member presiding at the
hearing for the subpoenas. N.Y. C.P.L.R. 2302 (McKinney 1991 & Supp. 2008). You may also apply to
the local supreme court for subpoenas for necessary witnesses or documents. N.Y. C.P.L.R. 2302(b)
147. See, e.g., People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 32, 300 N.E.2d 716, 719, 347
N.Y.S.2d 178, 182–3 (1973) (noting that the New York State Constitution confers only a conditional or
discretionary right to counsel at a preliminary parole revocation hearing).
148. N.Y. Exec. Law § 259-i(3)(c)(viii) (McKinney 2005 & Supp. 2008).
149. N.Y. Comp. Codes R. & Regs. tit. 9, § 8005.2(c)–(d) (2008).
150. New York State Division of Parole, New York State Parole Handbook, Questions And
3. Final Hearing
Although the preliminary hearing is like an arraignment to determine whether there is
probable cause to continue to hold you for a suspected parole violation, the final hearing is
like a trial to determine whether you violated parole. Thus, if the hearing officer finds
probable cause at the preliminary hearing (or if you have waived the preliminary hearing), a
member of the Parole Board will review your case and determine whether to declare you
delinquent. Depending on the decision of the Board member, you will either be scheduled for
a final hearing or restored to supervision. If you are declared delinquent, you will be
scheduled for a final hearing not more than ninety (90) days after the probable cause
determination.151
Both you and your attorney are entitled to written notice of the date, time, and place of
the hearing at least fourteen days prior to the date of the hearing.152 But, if the hearing is
adjourned or delayed for some reason, there is no additional fourteen-day notice
requirement.153 If the Parole Board fails to observe the statutory time requirements, your
parole violation warrant will be removed and your parole status will be restored.154 Notice of
final revocation proceedings will set forth your rights at the hearing.
Your rights at the revocation proceeding are essentially the same as those in the
preliminary hearing, except for two notable distinctions. In a revocation hearing:
(1) You have an absolute right to be represented by counsel155 (if you have pending
criminal charges, you could have the attorney representing you in the criminal case
also represent you at your revocation hearing); and
(2) You have a right to present mitigating evidence relevant to the restoration of
parole.156 That is, you can present evidence that might justify or excuse the conduct
that is alleged to be a parole violation. The standard for revoking parole at the final
hearing is a determination by a “preponderance of the evidence” (meaning that it is
more likely than not) that you violated one or more conditions of release in an
important respect.157
Answers Concerning Parole Release and Supervision (2007), at 30–32, available at:
151. N.Y. Exec. Law § 259-i(3)(f)(i) (McKinney 2005 & Supp. 2008); N.Y. Comp. Codes R. & Regs.
tit. 9, § 8005.17(a) (2008).
152. See, e.g., People ex rel. Wentsley v. Hammock, 89 A.D.2d 1058, 1058, 454 N.Y.S.2d 761, 762
(4th Dept. 1982) (holding that there is only one 14-day notice requirement and that no additional period
is required).
153. See, e.g., People ex rel. Wentsley v. Hammock, 89 A.D.2d 1058, 1058, 454 N.Y.S.2d 761, 762
(4th Dept. 1982) (“There is no requirement that an additional 14 days’ notice be given for a rescheduled
or adjourned final parole revocation hearing.”).
154. See, e.g., People ex rel. Levy v. Dalsheim, 66 A.D.2d 827, 828, 411 N.Y.S.2d 343, 344 (2d
Dept. 1978), aff’d, 48 N.Y.2d 1019, 402 N.E.2d 141, 425 N.Y.S.2d 802 (1980) (noting that the “statute ...
makes clear that a delay beyond 90 days after the probable cause determination is unreasonable per
se”).
155. N.Y. Exec. Law § 259-i(3)(f)(v) (McKinney 2005 & Supp. 2008); N.Y. Comp. Codes R. & Regs.
tit. 9, § 8005.16(a) (2008). See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2622, 33 L. Ed. 2d
484, 499 (1972) (holding a paroled convict has a “protectable” liberty interest, such that revocation of
parole release and re-incarceration must be determined in accordance with due process). See Chapter 4
of the JLM for information on how to find a lawyer, and Appendix IV for information on how to contact
the Legal Aid Society.
157. N.Y. Exec. Law § 259-i(3)(f)(viii) (McKinney 2005 & Supp. 2008); N.Y. Comp. Codes R. &
Regs. tit. 9, § 8005.19(e) (2007). “Preponderance of the evidence” is a legal standard meaning “more
likely than not.” It is a lesser standard than “beyond a reasonable doubt,” the legal standard for
conviction of a crime.
If you have pending criminal charges, the conduct giving rise to those charges can be
considered by the Parole Board in determining whether you violated your parole. If the
parole revocation hearing takes place after any criminal case against you has gone to trial,
several rules may apply. For example, if you were convicted or acquitted of those charges by
any defense other than an affirmative defense, the Parole Board can consider the conduct
underlying the charges.158 However, if you were acquitted through an affirmative defense (for
example, self-defense, alibi, entrapment, or duress), then the Parole Board probably cannot
consider those charges in its parole revocation determination.159 Courts have held that there
is no denial of due process in the Board’s refusal to adjourn the final revocation hearing until
after the disposition of the pending criminal case, despite the lower standard of proof in
parole revocation decisions.160 Thus, the Parole Board can find that you violated your parole
even if you are not later convicted of the criminal charges.
4. Appeals
You may appeal the revocation of your parole by filing a “Notice of Appeal” within thirty
(30) days of the date of the written notice of the Parole Board’s decision.161 You may be
represented by an attorney during your appeal.162 Within four months of the date on which
the notice of appeal was filed, you or your attorney must file the original and two copies of
the appeal letter or brief with the Appeals Unit in Albany.163 Your appeal letter or brief must
state the rules that you are challenging and explain the basis for your appeal.164 The appeal
must be based on the written record. You may get an extension “for good cause” if you
request one in writing within the four months following the notice of appeal.165
Among the questions that may be raised on appeal are
158. This primarily refers to a procedural defense. See, e.g., People ex rel. Froats v. Hammock, 83
A.D.2d 745, 745, 443 N.Y.S.2d 500, 501 (4th Dept. 1981) (holding that acquittal of criminal charges
does not bar subsequent parole revocation based on underlying charges).
159. The Parole Board is prevented from considering the criminal charges in affirmative defense
cases because of the doctrine of collateral estoppel, which means that issues litigated and decided in
one case cannot be re-litigated by the same parties in another case. The Board is also prevented from
using evidence that has been suppressed in a criminal proceeding against you in a parole revocation
hearing since such evidence was gained through an illegal search and seizure. See, e.g., People ex rel.
Piccarillo v. N.Y. State Bd. of Parole, 48 N.Y.2d 76, 397 N.E.2d 354, 421 N.Y.S.2d 842 (1979) (stating
that exclusionary rule applies to parole revocation hearings). The ruling in Piccarillo may no longer be
good law. Pa. Bd. of Probation v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L. Ed. 2d 344 (1998), held that
the federal exclusionary rule does not apply to parole proceedings. Some New York courts have
interpreted Scott as overruling Piccarillo, while others have refused to do so. See People ex rel. Gordon
v. O’Flynn, 3 Misc. 3d 963, 965, 775 N.Y.S.2d 507, 509 (Sup. Ct., Monroe County 2004) (holding that
Scott overruled Piccarillo and that the federal exclusionary rule does not apply to parole proceedings);
but see State ex rel. Thompson v. Harder, 8 Misc. 3d 764, 766 n.2, 799 N.Y.S.2d 353, 355 n.2 (Sup. Ct.
Broome County 2005) (holding it will continue to apply exclusionary rule to parole proceedings).
160. See, e.g., People ex rel. Matthews v. N.Y. State Div. of Parole, 58 N.Y.2d 196, 447 N.E.2d
689, 460 N.Y.S.2d 746 (1983) (holding refusal to adjourn a revocation hearing until criminal charges
were tried did not constitute a violation of due process). The Board only needs to find it is more likely
than not you violated your parole; you can only be convicted of the crime in the first place if the court
finds beyond a reasonable doubt that you committed the unlawful act.
162. N.Y. Exec. Law § 259-i(4)(b) (McKinney 2005 & Supp. 2008); N.Y. Comp. Codes R. & Regs.
tit. 9, § 8006.2(d) (2001). If an attorney entered a notice of appearance, the Parole Board appeals unit
will not act on any correspondence from a prisoner until receiving notice the attorney is relieved. N.Y.
Comp. Codes R. & Regs. tit. 9, § 8006.2(e) (2008).
(1) Whether the proceeding and/or determination was in violation of lawful procedure,
was affected by an error of law, was arbitrary and capricious or was otherwise
unlawful;
(2) Whether the Board member or members making the determination relied on
erroneous information as shown in the record of the proceeding, or relevant
information was not available for consideration;
(3) Whether the determination made was excessive;166 and
(4) Whether the decision was supported by a preponderance of the evidence.167
In a revocation appeal, you cannot raise an allegation of newly discovered evidence. Such
an issue must be raised in an application to the Board for a rehearing.168 You should begin to
prepare for your appeal by obtaining the minutes of the parole release hearing from the
Division of Parole Appeals Unit at 97 Central Avenue, Albany, NY 12206.169 Because the
minutes can be expensive to acquire, an attorney may obtain them for you. You also may
make a written request for “[a]ll other nonconfidential, discoverable documents relating to
the appeal.”170 So, if you believe there is important information in your parole case record to
support your appeal, you may request permission to access it. But, you will not receive
unrestricted access.171
The appeal will be decided by at least three members of the Parole Board, none of whom
participated in the decision that you are appealing.172 The findings of fact and law and the
decision will be in writing and sent to you or your attorney.173
There are several alternatives following the exhaustion of administrative appeals
procedures. After you have pursued all possible administrative remedies with no success, you
can file an Article 78 petition in state court.174 You only have four months from the date the
appeals decision is mailed to you to file a petition in state court. If you fail to file the petition
within this time, the court will not hear your case.175 If you are being held only on parole
violation charges, and you seek to challenge the legality of your detention, you may file a
petition for habeas corpus in the state supreme court.176 See Chapters 21 and 22 of the JLM
for more information on New York State habeas corpus and Article 78 petitions.
5. Parole Violator Reappearances
If your parole is revoked and you have been returned to prison, you will be released on
the date your time assessment expires.177 The Parole Board may determine that an interview
is necessary before release. However, an interview is only necessary if a prisoner

169. See N.Y. Exec. Law § 259-i(6)(a) (McKinney 2005 & Supp. 2008) (“The board shall provide
for the making of a verbatim record of each parole release interview … and each preliminary and final
revocation hearing ... .”).
171. Restrictions to access parole records are set forth in Part F(7) “Appealing Denial of Parole
Release” in this Chapter. See also N.Y. Comp. Codes R. & Regs. tit. 9, § 8000.5 (2007).
174. See Chapters 5 and 22 of the JLM for information on Article 78 proceedings.
175. See Carter v. State, 95 N.Y.2d 267, 272, 739 N.E.2d 730, 733, 716 N.Y.S. 2d 364, 367 (2000)
(dismissing a claim by a prisoner who brought an Article 78 claim six months after the decision was
mailed to him because the claim violated the statute of limitations).
176. N.Y. C.P.L.R. 7001-12 (2001). See Chapter 13 and Chapter 21 of the JLM for a more
detailed discussion of federal and New York state habeas corpus.
177. N.Y. Comp. Codes R. & Regs. tit. 9, § 8002.6(a) (2007). The Parole Board makes the time
assessment after the revocation hearing, and it begins running from the date the parole violation
(1) Has committed a violation of facility rules;
(2) Has exhibited a significant change in his mental or emotional condition (such as
being transferred to a psychiatric ward or placed on suicide watch);
(3) Has been arrested or convicted of a new felony after the final parole revocation
hearing; or
(4) Is not suitable for release based on other information (such as information about self-
destructive or threatening behavior).178
I. Release From Parole Supervision
After the expiration of your original maximum sentence, and provided you have served
your time on parole supervision without interruption, you will be released from parole. The
parole statute also allows for discharge from parole after three consecutive years of
unrevoked parole.179 But, the Board will not entertain requests for such early discharge from
a parolee.180 You should talk to your parole officer if you believe you might be eligible for
three-year discharge, and he or she may apply to the Parole Board for you.
If you have a felony conviction, you may have lost certain rights such as the right to vote,
the right to a driver’s license, the right to be employed in a bank or an establishment that
serves liquor, as well as other rights important to your life and ability to get a job. You can
regain those rights after you serve out your parole term. If you have not yet completed your
sentence, applications for the certificates are submitted by parole officers to the Board of
Parole. If you have completed your sentence, apply directly to the Executive Clemency
Bureau of the Division of Parole. If you have only one felony conviction, apply for a
“Certificate of Relief from Disabilities.”181 If you have more than one felony conviction, but
you have completed parole and shown five years of good conduct in the community, you
should apply for a “Certificate of Good Conduct.”182
If you are harassed or discriminated against for being an ex-offender following your
release from parole, contact the Fortune Society at 53 W. 23rd St. 8th floor, New York, NY
10010 (phone (212) 691-7554) or the Legal Action Center at 225 Varick Street, New York, NY
10014 (phone (212) 243-1313 or toll free at (800) 223-4044). These agencies assist ex-
offenders with their reentry into society. The New York Public Library publishes a practical
handbook for pre-release and recently released prisoners called Corrections III. It gives
information and addresses on topics including jobs, education, housing, finances, health,
counseling, addictions, women, gay males and lesbians, and the disabled. Corrections III is
available free of charge for New York State residents and prisoners from Institutional
Library Services, The New York Public Library, 455 Fifth Ave., New York, NY 10016.
J. Parole in California
If you are sentenced to life in California, you must serve at least seven years before you
may be eligible for parole. However, if your life sentence is under a part of the law that sets a
minimum period of incarceration for a life sentence, then you will not be eligible for parole
release until you have served that minimum period.183
warrant was lodged.

179. N.Y. Exec. Law § 259-j (McKinney 2005 & Supp. 2008) (effective until Sept. 1, 2009).
Answers Concerning Parole Release and Supervision (2007), at 41–42, available at
Answers Concerning Parole Release and Supervision (2007), at 42–43, available at
183. Cal. Penal Code § 3046 (West 2000)
One year prior to your minimum eligible parole release date, at least two Commissioners
or Deputy Commissioners of the Board of Prison Terms will meet with you to set a parole
release date. The Board considers aggravating and mitigating circumstances in its
determination of your parole release date. Aggravating circumstances are those that might
make the Board view your crime more harshly—for example, if your crime affected a large
number of people. Mitigating circumstances are those that might make the Board view your
crime less harshly—for example, if you had no prior criminal record. The Board may choose
not to set a parole release date if it finds that the seriousness of the offense or of any past
offenses are such that the interests of public safety require you to remain incarcerated
longer.184
Within ten days after the hearing, you will be notified of the parole release date, the
conditions you must meet to be released then, and the consequences of failure to meet those
conditions.185 At the parole hearing, you may present evidence and speak on your own behalf.
Only prisoners serving life sentences may be represented by counsel at parole hearings.186 In
addition, victims have the right to make statements at parole hearings, but are “limited to
comments concerning the effect of the crime on the victim.”187
A decision that you are suitable for parole will become final within 120 days after the
date of the hearing. During this time, the Parole Board may review the panel’s decision. The
Parole Board may reject the panel’s decision and order a new hearing by majority vote based
on an error of the law, an error of facts, or new information presented to the Board.188 If the
Board decides not to establish a parole date, you will be notified within twenty days. The
Board will send you a written statement explaining why a parole date was not set. In
addition, it will recommend activities in which you may participate to improve your chances
of receiving a parole date at a future hearing. The Board will ordinarily rehear cases every
year when it has declined to set a parole date.189
If you have been convicted of a violent felony in California, the state Department of
Corrections will notify law enforcement agencies and the state attorney in the county to
which you are scheduled to be released prior to your release on parole.190 The victim may also
be notified of your release.191 If you have not been convicted of a violent felony, notice will be
given regarding your release on parole only if the county of release requests it.192
You will usually be returned to the county of last legal residence, but the Parole Board
may send you to another county if found to be in the public interest. In making this decision,
the Parole Board will consider:
(1) The need to protect the life or safety of a victim, the parolee, a witness, or any other
person;
(2) Public concern that would reduce the chance that your parole would be successfully
completed;
(3) The verified existence of a work offer, or an educational or vocational training
program;
(4) The existence of family in another county with whom you have maintained strong
ties and whose support would increase the chance that your parole would be
successfully completed; and
184. Cal. Penal Code § 3041 (West 2000 & Supp. 2008).
185. Cal. Penal Code § 3041.5(b)(1) (West 2000).
186. Cal. Penal Code § 3041.7 (West 2000 & Supp. 2008).
187. Cal. Penal Code § 3043(b) (West 2000 & Supp. 2008).
189. Cal. Penal Code § 3041.5(b)(2) (West 2000 & Supp. 2008).
190. Cal. Penal Code § 3058.6(b) (West 2000).
191. Cal. Penal Code § 3058.8(a) (West 2000 & Supp. 2008).
192. Cal. Penal Code § 3058.8(a) (West 2000 & Supp. 2008).
(5) The lack of necessary outpatient treatment programs for parolees receiving
substance abuse treatment pursuant to § 2960.193
If you were convicted of a violent felony, you may not be returned on parole to a location
within thirty-five miles of the actual residence of the victim or a witness to the crime.194
Unless the authorities can provide a good reason for it, a long delay between a re-
incarceration based on a parole violation and the holding of a proper parole revocation
hearing may entitle you to be restored to parole status.195 If the Board decides to revoke your
parole, you must receive a written record of the Board’s decision and the opportunity to
pursue an administrative appeal.196 You can be re-incarcerated for up to twelve months if
you have not had a new conviction while on parole release. However, if you commit acts of
misconduct during the re-incarceration, you may be held for an additional twelve months.197
K. Parole in Florida
Parole has been abolished in the state of Florida.198 If you were sentenced after October
of 1983, you are ineligible for parole, and this chapter does not apply to you. If you were
sentenced prior to October of 1983, you may be eligible for parole, and this chapter does
apply to you.
You will be given an initial interview with a hearing examiner to establish a presumptive
parole release date between eight months and five years after you begin your prison term.199
Within ninety (90) days of your initial interview, the Parole Commission will notify you of
the established presumptive parole release date.200 If your presumptive parole release date is
more than two years after the initial interview, a hearing examiner will schedule an
interview for review of the presumptive parole release date. This review will normally occur
within two years of the initial interview and every two years thereafter.201 However, if you
were convicted of a more serious offense, including murder, attempted murder, sexual
battery, or attempted sexual battery, or if you were sentenced to a minimum 25-year
mandatory sentence, this review will only occur every five years if your presumptive release
date is more than five years away.202 Within 90 days before the presumptive parole release
date, a hearing examiner will conduct a final interview with you to establish an effective
parole release date and a parole release plan.
If you want to file for judicial review of the Parole Commission’s calculation of your
presumptive parole release date, you should file a writ of mandamus 203 in circuit court,
194. Cal. Penal Code § 3003(f) (West 2000 & Supp. 2008).
195. See In re Shapiro, 537 P.2d 888, 893, 14 Cal. 3d 711, 720122 Cal. Rptr. 768, 773 (Cal. 1975)
(holding that a “prompt revocation hearing is essential because delay may result in the loss of essential
witnesses or ... evidence and the continuation of unnecessary incarceration or other limitations on
personal liberty”).
196. See In re Ruzicka, 230 Cal. App. 3d 595, 597, 281 Cal. Rptr. 435, 436 (Cal. Ct. App. 1991)
(holding that parolee was entitled to a written record of the Board’s parole revocation decision and to
pursue an administrative appeal where the parolee filed petition for writ of habeas corpus to challenge
parole revocation).
197. Cal. Penal Code § 3057(c) (West 2000 & Supp. 2008).
198. Fla. R. Crim. P. 3.701(b)(5), (d)(12) (West 2007).
199. Fla. Stat. Ann. § 947.16 (West 2001).
200. Fla. Stat. Ann. § 947.172 (West 2001).
201. Fla. Stat. Ann. § 947.174(1)(a) (West 2001).
202. Fla. Stat. Ann. § 947.14(b) (West 2001).
203. See Parole & Probation Comm’n v. Fuller, 491 So. 2d 275 (Fla. 1986) (holding that judicial
review of presumptive parole release dates is available only through writs of mandamus, not through
writs of habeas corpus).
rather than the district court of appeals. 204 To file a petition for mandamus, go to your
facility’s law library and ask to see a sample petition. Once you have prepared the petition to
reflect the information in your case, send it to the local circuit court.
If your conduct during incarceration has been unsatisfactory, or if you do not have a
verified parole release plan, the Parole Commission may extend the presumptive parole
release date—but not for more than one year. Otherwise, the presumptive parole release
date will become the effective parole release date. But, you will not be released on that date
until a satisfactory plan for parole supervision has been completed.205
If you have been convicted of certain serious felonies, you may remain under the
jurisdiction of the trial judge for up to one-third of the maximum sentence imposed. When
you are otherwise eligible for parole, the parole decision will be reviewed by the judge. The
judge’s decision whether or not to approve the release is not appealable. 206 If the judge
refuses to release you on parole, you will be re-interviewed by the Parole Commission at
intervals of not longer than two years; however, if you were convicted of a more serious
offense, including murder, attempted murder, sexual battery, or attempted sexual battery, or
if you were sentenced to a minimum twenty-five-year mandatory sentence, this review will
only occur every five years if your presumptive release date is more than five years away.207
You can be released on parole only if:
(1) The Parole Commission finds with reasonable probability that if you are placed on
parole, you will live and conduct yourself as a respectable and law-abiding person;
and
(2) Your release would be compatible with your welfare and the welfare of society.
You must also show the Parole Commission that if you are paroled, you will be suitably
employed, or at least that you will not become a public charge (collect public assistance of
any kind).208
You may be eligible for conditional medical release if:
(1) You are not sentenced to death and are permanently physically incapacitated by an
illness, disease or injury, and are therefore no longer a danger to society, or
(2) You are terminally ill and your death is imminent.209
If you are released on conditional medical release, you will remain under supervision for
the remainder of your sentence, without reducing your sentence for any credit for good
behavior. During the period of supervision, you must undergo periodic physical
examinations, and if it is found your medical condition no longer incapacitates you, you will
be re-incarcerated. But reductions for good-time credit will be applied.210
Ordinarily, a condition of parole will be reparation (compensation) or restitution
(reimbursement) to the victim of your offense. Failure to pay reparation or make restitution
is a violation of parole and may result in revocation.211 A violation of the terms of parole may
cause you to be arrested and returned to prison to serve out the term of your sentence.
204. See Johnson v. Fla. Parole & Probation Comm’n, 543 So. 2d 875 (Fla. 1989) (holding that
writ of mandamus to challenge suspension of prisoners’ presumptive parole release dates should be
filed in the circuit court, rather than the district court of appeal), overruled on other grounds by Sheley
v. Fla. Parole Comm’n, 720 So. 2d 216 (Fla. 1998).
205. Fla. Stat. Ann. § 947.1745 (West 2001).
206. Fla. Stat. Ann. § 947.16(4)(g) (West 2001).
207. Fla. Stat. Ann. § 947.174(b) (West 2001).
208. Fla. Stat. Ann. § 947.18 (West 2001 & Supp. 2008).
209. Fla. Stat. Ann. § 947.149(1) (West 2001).
210. Fla. Stat. Ann. § 947.149 (West 2001).
211. Fla. Stat. Ann. § 947.181 (West 2001).
However, if your parole is revoked, the Parole Commission has the discretion to give you
credit for any portion of time served satisfactorily while you were on parole release.212
If you are arrested for a suspected parole violation, a preliminary hearing will be held
within thirty (30) days of your arrest. You may be represented by a lawyer. If the
preliminary hearing results in a finding of reasonable grounds to believe that you have
committed a parole violation, a final revocation hearing will be held. You may also be
represented by a lawyer at the final hearing.213
The parole period of supervision may not exceed the maximum period of your sentence. If
you are being paroled from a single or concurrent sentence, the Parole Commission must give
reasons in writing for extending the period of supervision beyond two years.214
L. Parole in Illinois
Parole has been abolished in the state of Illinois.215 If you were sentenced after February
2, 1978, you will have received a determinate sentence, and this chapter no longer applies to
you. This chapter only applies to you if you were sentenced prior to February 2, 1978.
The Prison Review Board (Board) sets a fixed release date for all prisoners sentenced
after 1977. If you were sentenced prior to 1977, you have an indeterminate sentence.216 In
determining a fixed release date, the Board considers the sentencing court’s intent,
aggravating and mitigating factors, good conduct credit, and your behavior since
incarceration.217 If you accept a release date determined by the Board, you are no longer
eligible for parole. If you do not accept a fixed release date from the Board, you will be
eligible for parole when you have served either:
(1) The minimum term of an indeterminate sentence minus time credit for good
behavior, or twenty years minus time credit for good behavior, whichever is less; or
(2) Twenty years of a life sentence minus credit for good behavior; or
(3) Twenty years or one-third of a determinate sentence, whichever is less, minus credit
for good behavior.218
In making its determination of parole, the Board considers reports prepared by
corrections staff, and materials submitted by you, the State’s Attorney, and the victim.219
Even if you are eligible for parole, the Board will not parole you if it determines that:
(1) There is a substantial risk that you will not conform to reasonable conditions of
parole;
(2) Your release would minimize the seriousness of the offense or promote disrespect for
the law; or
(3) Your release would have a substantially adverse effect on institutional discipline.
If parole is denied, ordinarily a re-hearing is set for one year later, but no later than
three years after the denial (with an exception for certain sexual crimes).220
The Board will specify whatever conditions of parole it thinks necessary to assist you in
leading a law-abiding life; however, parole conditions will always require that you not do
certain things and that you do other things. There are additional rules if you were convicted
of a sex offense.
212. Fla. Stat. Ann. § 947.21 (West 2001).

215. 730 Ill. Comp. Stat. Ann. 5/3-3-2 (West 2007).
216. 730 Ill. Comp. Stat. Ann. 5/3-3-2.1 (West 2007).
217. 730 Ill. Comp. Stat. Ann. 5/3-3-2.1(e) (West 2007).
218. 730 Ill. Comp. Stat. Ann. 5/3-3-3(a) (West 2007).
219. 730 Ill. Comp. Stat. Ann. 5/3-3-4(d) (West 2007).
220. 730 Ill. Comp. Stat. Ann. 5/3-3-5(c) (West 2007).
As conditions of parole, you may not do any of the following
(1) Violate a criminal statute in any jurisdiction;
(2) Possess a firearm or other dangerous weapon;
(3) Use or possess narcotics or any other controlled substance or instruments to use such
substances;
(4) Go to places where controlled substances are sold, used, or distributed;
(5) Associate with other people you know are on parole or mandatory supervised release
without permission from your parole agent, or with people who are in an organized
gang.221
In addition, you must do all of the following
(1) Report to an agent of the Department of Corrections;
(2) Allow the agent to visit you at your house, place of employment, or other places when
necessary;
(3) Attend or reside at a facility for the instruction or residence of people on parole;
(4) Obtain permission before writing or visiting a person who is incarcerated in an
Illinois prison;
(5) Report arrests to an agent within 24 hours of release from custody;
(6) Obtain permission from an agent before leaving Illinois;
(7) Obtain permission from an agent before changing your address or job;
(8) Consent to a search of your person, property, and residence;
(9) Submit to drug testing when instructed by a parole agent; and,
(10) Provide truthful information to parole agents in response to their questions.222
If you are released on parole and then suspected of having violated a condition of parole,
you will have a preliminary hearing before a hearing officer to determine whether there is
cause to hold you for a revocation hearing. A preliminary hearing is not required when the
possible revocation is based on new criminal charges. You may appear at a revocation
hearing before at least one member of the Board to answer the charge and bring witnesses on
your behalf. If you are found to have violated a condition of your parole, the Board may
recommit you for any portion of the imposed maximum term of imprisonment, or it may take
lesser actions that do not involve recommitment.223 Even if you are recommitted for a parole
violation, you may still be eligible for future release on parole.224
Every felony sentence, except a life sentence, includes a mandatory supervised release
period or “parole term” that ranges from one to three years (with the exception of certain sex
crimes, which have longer release periods). 225 The Board may discharge you from parole
when it determines that you are likely to remain at liberty without committing another
offense.226 If you have been released on parole, and you believe you are entitled to a final
discharge from your sentence, you may file a habeas corpus petition seeking to be released
outright while you are on parole release.227
M. Parole in Texas
If you are serving a life sentence for a capital felony in Texas, you will not be eligible for
release on parole until the actual calendar time that you have served, not including good
221. 730 Ill. Comp. Stat. Ann. 5/3-3-7 (West 2007 & Supp. 2008).
222. 730 Ill. Comp. Stat. Ann. 5/3-3-7 (West 2007 & Supp. 2008).
223. 730 Ill. Comp. Stat. Ann. 5/3-3-9 (West. 2007).
224. 730 Ill. Comp. Stat. Ann. 5/3-3-10 (West 2007).
225. 730 Ill. Comp. Stat. Ann. 5/5-8-1(d) (West 2007).
226. 730 Ill. Comp. Stat. Ann. 5/3-3-8(b) (West 2007).
227. See Collins v. Sielaff, 43 Ill. App. 3d 1022, 357 N.E.2d 1213 (Ill. App. Ct. 1976) (allowing
parolee to maintain a habeas corpus action claiming entitlement to final discharge).
conduct time, is equal to forty calendar years.228 Unless you have been convicted of certain
serious felonies, including murder, indecency with a child, aggravated kidnapping, sexual
assault, or robbery, you will be eligible for release on parole when your calendar time served,
plus good conduct time, equals one-fourth of the maximum sentence imposed or fifteen years,
whichever is less.229 You may be released on parole when a parole panel establishes that your
release will not increase the likelihood of harm to the public. Counsel may represent you at
your parole hearing when you appear before the parole panel.
You may be placed on parole only when arrangements have been made for your
employment or maintenance and care, and when the parole panel believes you are able and
willing to fulfill the obligations of a law-abiding citizen. If you are released on parole, you
may be subject to certain conditions, including attendance at substance abuse or sex offender
treatment programs, electronic monitoring, residence requirements, and payment towards
the cost of parole supervision. Parole may be granted early to elderly, disabled, mentally ill
or retarded, or terminally ill prisoners.230
If you are released on parole and are then accused of or arrested for violating parole, you
are ordinarily entitled to a hearing within forty days after the arrest or within a reasonable
time if you are arrested in another state.231 Proof that you were convicted and sentenced for
another crime while out on parole is enough to justify parole revocation. However, you may
request a hearing at which you can present mitigating factors for the later conviction. If your
parole is revoked, you may not get credit for the time that you were out on parole. If you
want to challenge a revocation of parole, you should file a state habeas corpus petition with
the court that convicted you of the original offense from which you were paroled.232
To complete the parole period, you must serve out the whole term for which you were
sentenced, which may or may not include the time you served prior to release on parole.
Depending on your specific situation, the Paroles and Pardons Division may allow you to
serve the remainder of your term without supervision.
N. Parole In Michigan
If you are serving an indeterminate sentence in a Michigan state prison, and you have
served your minimum sentence minus any allowances (such as good time or a disciplinary
credit), the Michigan state Parole Board may grant you parole at its discretion.233 You may
be granted “special parole” before you finish serving your minimum term, if your sentencing
judge gives written approval.234
228 . Tex. Gov’t Code Ann. § 508.145(b) (Vernon 2004 & Supp. 2007) (repealed for crimes
committed after Sept. 1, 2005).
229. Tex. Gov’t Code Ann. § 508.145(f) (Vernon 2004 & Supp. 2007); Tex. Code Crim. Proc. Ann.
art. 42.12, §§ 3g(a)(1)(A), (C)–(E), 3g(2) (Vernon 2004). Prisoners serving time for felony offenses listed
in the portions of part 42.12 that are specified above will not be eligible for release on parole until “the
inmate’s actual calendar time served, without consideration of good conduct time, equals one-half of the
sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release on
parole in less than two calendar years.” Tex. Gov’t Code Ann. § 508.145(d) (Vernon 2004 & Supp. 2007).
230. Tex. Gov’t Code Ann. § 508.146 (Vernon 2004 & Supp. 2007).
231. Tex. Gov’t Code Ann. § 508.282 (Vernon 2004).
232. See Bd. of Pardons & Paroles ex rel Keene v. Court of Appeals for the Eighth District, 910
S.W.2d 481, 483 (Tex. Crim. App. 1995) (noting parolee sought state habeas corpus relief following the
revocation of his parole, the court stated that such a claim should be brought before the original
convicting court). For more information on state habeas corpus in Texas, see JLM Chapter 21.
233. Mich. Comp. Laws Ann. § 791.234(1) (2008). Michigan does not require that every prisoner
be eligible for parole. See, e.g., People v. Merriweather, 527 N.W.2d 460, 464, 447 Mich. 799, 809 (Mich.
1994) (“We find no basis, however, to conclude … the Legislature intended … all defendants, or even
simply this defendant, must be eligible for parole.”).
234. Mich. Comp. Laws Ann. §§ 791.233 (1)(b)–(d) (West 2008).
If you are serving a sentence for a drug offense, you may be eligible for parole before your
minimum term is over—after half your minimum sentence, after five years, or after ten
years—depending on your offense’s severity.235
If you are serving a life sentence, you may still be eligible for parole, unless you were
convicted of first degree murder, adulterating medicine or selling adulterated medicine,
explosives-related offenses, or criminal sexual conduct.236 You may become eligible for parole
from a life sentence within as few as ten years, depending on the crime for which you were
convicted.237 See section 791.234(8) of the Michigan Compiled Laws for additional conditions
that will apply.
If you have been sentenced for consecutive terms, you become eligible for parole when
you have served the total time of the added minimum terms, minus any good time and
disciplinary credits if you are not subject to disciplinary time. 238 If you have remaining
consecutive terms to serve, the Parole Board is allowed to terminate the remainder of the
sentence you are currently serving once you have served the minimum term of your present
sentence.239
The Michigan Parole Board will not grant you parole until it is satisfied that you made
arrangements for employment, education, and any necessary mental health or medical
care.240 You must have earned your high school diploma or GED if you were not employed
when you committed the crime, unless you were sentenced before December 15, 1998 or your
minimum sentence was less than two years.241
The Parole Board must interview you at least one month before your minimum sentence
has expired, minus applicable good time and disciplinary credits if you are not subject to
disciplinary time.242 You should receive a notice of intent to conduct an interview from the
Parole Board at least one month before the interview date.243 The notice must state the
specific issues and concerns that will be discussed at the interview and that may be a basis
for a denial of parole. The board cannot deny your parole for a reason that is not stated in the
notice, except for good cause as stated to you at or before your interview, and as listed in the
required written explanation.244 Read the notice carefully, and be prepared to challenge and
present evidence on any inaccurate issues stated in the notice.
Note that, unless you are serving a life sentence, the Parole Board is allowed to decide
whether to grant you parole without having interviewed you, but only if, after evaluating you
according to the parole guidelines, they determine that you have a high probability of either
being paroled or being denied parole.245 You may also waive your right to an interview, but
the waiver must be in writing and no later than thirty (30) days after the notice of intent to
conduct an interview is issued.246
During the interview, you may be represented by an individual of your choice, but your
representative cannot be a fellow prisoner or an attorney.247 You or your representative can
235. Mich. Comp. Laws Ann. § 791.234 (2008).

236. Mich. Comp. Laws Ann. §§ 791.234(6)(a)–(f) (West 2008).
237. Mich. Comp. Laws Ann. §§ 791.234(7) (West 2008).
238. Mich. Comp. Laws Ann. § 791.234 (3)–(4) (West 2008).
239. Mich. Comp. Laws Ann. § 791.234 (5) (West 2008).
240. Mich. Comp. Laws Ann. § 791.233 (1)(e) (West 2008).
241. Mich. Comp. Laws Ann. § 791.233 (1)(f) (West 2008). You are exempt from this requirement
if you are over sixty-five, have a learning disability, or some other reason outside your control.
245. Mich. Comp. Laws Ann. § 791.235 (1)–(2) (West 2008).
present relevant evidence to support your release and challenge any inaccurate information
in the notice. When making a parole determination, the Parole Board cannot consider an
expunged juvenile record or any information it determines is inaccurate.248 The Parole Board
can consider—but cannot base a parole denial solely on—your marital history, prior arrests
not resulting in conviction, or adjudication of delinquency.249 The Parole Board must consider
any statements made by a victim.250 In addition, the Parole Board member conducting your
interview must review information relevant to the notice of intent to conduct an interview,
like the parole eligibility report institutional staff prepared. The parole eligibility report
includes information like all the major misconduct you have been found guilty of, your work
and education record during confinement, and the results of any physical, mental, or
psychiatric examinations performed on you.251
If the Michigan Parole Board decides not to release you, you will receive a written
explanation of the reason for the denial, which may include specific recommendations for
corrective action that you may take to improve your future chances of release.252 Only the
prosecutor or crime victim can appeal a decision made by a Parole Board; your ability to
appeal the Parole Board’s decision has been eliminated. 253 The appropriate standard of
review for the Parole Board’s determination is an abuse of discretion standard.254 Habeas
corpus is available only under extreme circumstances, such as where parole has been denied
based on your race, religion, or national origin.255 There is no statutory requirement that you
be re-interviewed within the next twelve months; the Court of Appeals of Michigan has held
that there is “no statutory impediment” to a Parole Board’s decision not to reconsider a
prisoner’s eligibility for parole for two years.”256
O. Conclusion
This Chapter provides a detailed overview of New York State parole procedures, from the
release hearing to the revocation process. It also includes a brief overview of parole
procedures and practices in these states: California, Florida, Illinois, Texas, and Michigan.
We hope as well that prisoners in states not specifically covered in this Chapter will acquire
a better understanding of parole policies. In general, this Chapter may serve as a model for
ideas on how to research and whom to contact when learning about the parole system in your
own state. Note, however, many states have eliminated parole and now impose determinate
sentences. All prisoners, even where the information is detailed, should refer directly to the
applicable statutes and regulations of their state to see if there have been changes made
following the JLM’s publication.
248. Mich. Comp. Laws Ann. § 791.235 (1)(a)–(b) (West 2008).

249. Mich. Comp. Laws Ann. § 791.235 (3)(a)–(b) (West 2008).
251. Mich. Comp. Laws Ann. §§ 791.235 (5), (7)(a) –(e) (West 2008).
253. Morales v. Mich. Parole Bd., 260 Mich. App. 29, 36, 676 N.W.2d 221, 227–28 (Mich. 2003)
(noting that, “[b]y eliminating the phrase, ‘shall be appealable by the prisoner,’ ... the Legislature
clearly intended” to eliminate the prisoner’s right to appeal a parole board’s decision).
254. Wayne County Prosecutor v. Parole Board, 210 Mich. App. 148, 153, 532 N.W.2d 899, 901
(1995). This discretion is restricted by Mich. Comp. Laws Ann. §§ 791.233(1), 791.235(1), (3), (4), (7)–(9)
(West 2008).
255. Morales v. Mich. Parole Bd., 260 Mich. App. 29, 40, 676 N.W.2d 221, 230 (Mich. 2003)
(“[T]he writ of habeas corpus deals only with radical defects which render a judgment or proceeding
absolutely void.”).
256. In re Parole of Roberts, 232 Mich. App. 253, 255, 591 N.W.2d 259, 260 (1998).
Manual
Appendix I:
Addresses of Federal Courts
& New York State Prisons and
Their Respective Federal Judicial
Districts
COLUMBIA HUMAN RIGHTS LAW REVIEW

8th Edition 2009
App. I ADDRESSES OF FEDERAL COURTS 1007
LEGAL DISCLAIMER
1008 A JAILHOUSE LAWYER’S MANUAL App. I
APPENDIX I
ADDRESSES OF FEDERAL COURTS

&
NEW YORK STATE PRISONS AND THEIR RESPECTIVE FEDERAL JUDICIAL
DISTRICTS
A. Addresses of Federal Courts
1. Federal Courts in the First Circuit
Court of Appeals
John Joseph Moakley

U.S. Courthouse
1 Courthouse Way
Boston, MA 02210
Phone: (617) 748-9057
District Courts
Maine District Court Puerto Rico District Court
156 Federal Street Clemente Ruiz-Nazario U.S. Courthouse &

Portland, ME, 04101 Federico Degetau Federal Building
Phone: (207) 780-3356 150 Carlos Chardon Street
Hato Rey, P.R. 00918
Massachusetts District Court Phone: (787) 772-3000
U.S. District Court Rhode Island District Court

1 Courthouse Way
Boston, MA 02210 One Exchange Terrace
Phone: (617) 748-9152 Federal Building and Courthouse
Providence, RI 02903
New Hampshire District Court Phone: (401) 752-7200
U.S. District Court

55 Pleasant Street, Room 110
Concord, NH 03301-3941
Phone: (603) 225-1423
2. Federal Courts in the Second Circuit
Court of Appeals
Court of Appeals for the Second Circuit

Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, NY 10007
Phone: (212) 857-8500
District Courts
Connecticut District Court P.O. Box 7367

Syracuse, NY 13261
Abraham Ribicoff Federal Building
450 Main Street Alexander Pirnie Federal Building
Hartford, CT 06103 10 Broad Street, 3rd Floor
Phone: (860) 240-3200 Utica, NY 13501
Phone: (315) 266-1189
Richard C. Lee United States Court House
141 Church Street New York Southern District Court
New Haven, CT 06510
Phone: (203) 773-2140 Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
Brien McMahon Federal Building New York, NY 10007
915 Lafayette Boulevard Phone: (212) 805-0136
Bridgeport, CT 06604
Phone: (203) 579-5707 Charles L. Brieant, Jr. United States
Courthouse
New York Eastern District Court 300 Quarropas Street
White Plains, NY 10601-4150
Theodore Roosevelt United States Courthouse Phone: (914) 390-4100
225 Cadman Plaza East
Brooklyn, New York 11201-1818 New York Western District Court
Phone: (718) 613-2600
United States Courthouse
Alfonse M. D’Amato United States Courthouse 68 Court Street
100 Federal Plaza Buffalo, NY 14202
Central Islip, NY 11722-4438 Phone: (716) 551-4211
Phone: (631) 712-6000
Kenneth B. Keating Federal Building
New York Northern District Court 100 State Street
Rochester, NY, 14614
James T. Foley United States Courthouse Phone: (585) 613-4000
445 Broadway, Room 509
Albany, NY 12207-2936 Vermont District Court
Phone: (518) 257-1800
United States Post Office and Courthouse
U.S. Courthouse & Federal Building 204 Main Street
15 Henry Street, 2nd Floor Brattleboro, VT 05301
Binghamton, NY 13901 Phone: (802) 254-0250
Phone: (607) 773-2893
Mailing Address:
U.S. District Court P.O. Box 998
James M. Hanley Federal Building, 7th Floor Brattleboro, VT 05302
100 South Clinton Street
Syracuse, NY 13261-7367 Federal Building, 5th Floor
Phone: (315) 234-8500 11 Elmwood Avenue
Burlington, VT 05401
Mailing address: Phone: (802) 951-6301
Mailing Address: Burlington, VT 05402

P.O. Box 945
3. Federal Courts in the Third Circuit
Court of Appeals
James A. Byrne Courthouse

601 Market Street
Philadelphia PA 19106
Phone: (215) 597-2995
District Courts
Delaware District Court The Holmes Building, 4th Floor

101 Larry Holmes Drive
J. Caleb Boggs Federal Building Easton, PA 18042-7722
844 N. King Street Phone: (610) 252-6522
Lockbox 18
Wilmington, DE 19801 The Madison Building, 4th Floor
Phone: (302)-573-6170 400 Washington Street
Reading, PA 19601-3956
New Jersey District Court
Pennsylvania Middle District Court
Mitchell H. Cohen Bldg & U.S. Courthouse
Fourth & Cooper Streets Rm 1050 William J. Nealon Federal Building & U.S.
Camden, NJ 08101 Courthouse
Phone: (856) 757-5021 235 N. Washington Ave.
P.O. Box 1148
Martin Luther King Bldg & U.S. Courthouse Scranton, PA 18501
50 Walnut Street Rm 4015 Phone: (570) 207-5680
Newark, NJ 07101
Phone: (973) 645-3730 Federal Building &
U.S. Courthouse
Clarkson S. Fisher Bldg & U.S. Courthouse 228 Walnut Street
402 East State Street Rm 2020 P.O. Box 983
Trenton, NJ 08608 Harrisburg, PA 17108
Phone: (609) 989-2065 Phone: (717) 221-3920
Pennsylvania Eastern District Court U.S. Courthouse

& Federal Office Building
James A. Byrne United States Courthouse 240 West Third Street, Suite 218
601 Market Street Williamsport, PA 17701
Philadelphia, PA 19106 Phone: (570) 323-6380
Phone: (215) 598-7704
Max Rosenn U.S. Courthouse
Edward N. Cahn Federal Courthouse 197 South Main Street, Suite 161
504 West Hamilton Street Wilkes-Barre, PA 18701
Room 1601
Allentown, PA 18101-1514 Pennsylvania Western District Court
Phone: (610) 434-3800
700 Grant Street
Phone: (412) 208-7500

17 South Park Row Virgin Islands District Court
Erie, PA 16501
Phone: (814) 464-9600 St. Thomas/St. John Division
5500 Veterans Drive, Rm 310
Mailing Address: St. Thomas, VI 00802
Erie Division Phone: (340) 774-0640
P.O. Box 1820
Erie, PA 16507 St. Croix Division
Penn Traffic Building 3013 Estate Golden Rock, Suite 219
3l9 Washington Street St. Croix, VI 00820
Johnstown, PA l590l Phone: (340) 773-1130
Phone: (8l4) 533-4504
4. Federal Courts in the Fourth Circuit
Court of Appeals
Lewis F. Powell, Jr. United States Courthouse

1000 East Main Street
Richmond, VA 23219
Phone: (804) 916-2700
District Courts
Maryland District Court Raleigh, NC 27611
Edward A. Garmatz Federal Building and United States Courthouse

United States Courthouse 201 South Evans St.
101 W. Lombard Street Greenville, NC 27858-1137
Baltimore, MD 21201 Phone: (252) 830-6009
Phone: (410) 962-2600
Alton Lennon Federal Building
United States Courthouse Two Princess Street
6500 Cherrywood Lane, Suite 200 Wilmington, North Carolina 28401
Greenbelt, MD 20770 Phone: (910) 815-4663
(301) 344-0660
United States Post Office and Courthouse
North Carolina Eastern District Court 413 Middle Street
New Bern, NC 28560
Terry Sanford Federal Building and Phone: (252) 638-8534
Courthouse
310 New Bern Avenue North Carolina Middle District Court
Raleigh, North Carolina 27601
Phone: (919) 645-1700 L. Richardson Preyer Federal Building
324 West Market Street, Suite 1
Mailing Address: Greensboro, NC 27401
P.O. Box 25670 Phone: (336) 332-6000
Hiram H. Ward Fedearl Building and United Charleston Federal Court House
States Courthouse, Suite 2 85 Broad Street
251 North Main St Charleston, SC 29401
Winston-Salem, NC 27101 Phone: (843) 579-1401
Phone; (336) 332-6000
Matthew J. Perry, Jr. Courthouse
United States Post Office and Courthouse 901 Richland Street
323 East Chapel Hill Street Columbia, SC 29201
Durham, NC 27701 Phone: (803) 765-5816
Phone: (919) 541-5413
McMillan Federal Building

North Carolina Western District Court 401 West Evans Street
Florence, SC 29501
United States Courthouse Phone: (843) 676-3820
100 Otis St.
Asheville, NC 28801 Clement F. Haynsworth Federal Building
Phone: (828) 771-7200 300 East Washington Street
Greenville, SC 29601
Federal Building Phone: (864) 241-2700
306 Main St., Room 306
Bryson City, NC 28713 Donald S. Russell Federal Courthouse
Phone: (828) 488-3783 201 Magnolia Street
Spartanburg, SC 29306
Charles R. Jonas Federal Building Phone: (864) 241-2700
401 West Trade Street, Room 212
Charlotte, NC 28202 Virginia Eastern District Court
Phone: (704) 350-7400
Albert V. Bryan U.S. Courthouse
United States Courthouse 401 Courthouse Square
200 W. Broad St. Alexandria, VA 22314
Statesville, NC 28677 Phone: (703)-299-2100
Phone: (704) 883-1000
Walter E. Hoffman United States Courthouse
South Carolina District Court 600 Granby Street
Norfolk, VA 23501
Charles E. Simons, Jr. Federal Court House Phone: (757) 222-7201
223 Park Avenue, S.W.
Aiken, SC 29801 United States Courthouse
Phone: (803) 648-6896 2400 West Avenue
Newport News, VA 23607
G. Ross Anderson Jr. Federal Building and Phone: (757) 247-0784
United States Court House
315 South McDuffie Street, 2nd Floor Spottswood W. Robinson III and Robert R.
Anderson, SC 29624 Merhige, Jr., Federal Courthouse
Phone: (864) 241-2700 701 East Broad Street
Richmond, VA 23219
Beaufort Federal Court House Phone: (804) 916-2200
1501 Bay Street
Beaufort, SC 29902 Virginia Western District Court
Phone: (843) 521-2088
Richard H. Poff Federal Building Clarksburg, WV 26302

210 Franklin Road, Room 308
Roanoke, VA 24011 Clerk, U. S. District Court
Phone: (540) 857-5100 P.O. Box 1518
300 Third Street, Suite 227
Mailing Address: Elkins, WV 26241
P.O. Box 1234 Phone: (304) 636-1445
Roanoke, VA 24006
Clerk, U.S. District Court
Virginia Western District Court 217 W. King Street
180 W. Main Street, Room 104 Martinsburg, WV 25401
Abingdon, VA 24210 Phone: (304) 267-8225
Phone: (276) 628-5116
Clerk, U.S. District Court
C. Bascom Slemp Federal Building 1125 Chapline Street, Suite 247
322 East Wood Ave., Room 204 P.O. Box 471
P.O. Box 490 Wheeling, WV 26003
Big Stone Gap, VA 24219 Phone: (304) 232-0011
Phone: (276) 523-3557
West Virginia Southern District Court
Virginia Western District Court
255 W. Main Street, Room 304 District Clerk’s Office, Room 2400
Charlottesville, VA 22902 300 Virginia Street East
Phone: (434) 296-9284 Charleston, WV 25301
Phone: (304) 347-3000
Dan Daniel United States Post Office
700 Main Street, Room 202 U.S. District Court
Danville, VA 24541 601 Federal Street, Room 2303
Phone: (434) 793-7147 P.O. Box 4128
Bluefield, WV 24701
Mailing Address: Phone: (304) 327-9798
P.O. Box 1400
Danville, VA 24543 Sidney L. Christie Federal Building
845 Fifth Avenue, Room 101
United States Courthouse Huntington, WV 25701
116 N. Main Street, Room 314 Phone: (304) 529-5588
Harrisonburg, VA 22802
Phone: (540) 434-3181 Mailing Address:
P.O. Box 1570
United States Courthouse Huntington, WV 25716
1101 Court Street, Room A66
Lynchburg, VA 24504 Robert C. Byrd United States Courthouse
Phone: (434) 847-5722 110 North Heber Street, Room 119
P.O. Box 5009
West Virginia Northern District Court Beckley, WV 25801
Phone: (304) 253-7481
Clerk U.S. District Court
500 West Pike Street, Room 301 U.S. District Court
Clarksburg, WV 26301 425 Juliana Street, Room 5102
Phone: (304) 622-8513 Parkersburg, WV 26101
Phone: (304) 420-6490
Mailing Address:
P.O. Box 2808
5. Federal Courts in the Fifth Circuit
Court of Appeals
Court of Appeals for the Fifth Circuit

600 S. Maestri Place
New Orleans, LA 70130-3408
Phone: (504) 310-7700
District Courts
Louisiana Eastern District Court
United States Courthouse Federal Building

500 Poydras Street, Room C-151 201 Jackson Street, Suite 215
New Orleans, LA 70130 Louisiana 71210
Phone: (504) 589-7600 Phone: (318) 322-6740
United States Courthouse Mississippi Northern District Court

8046 Main St.
Houma, LA 70360 Thomas G. Abernathy Federal Building
Phone: (985) 879-2584 301 W. Commerce St.
Aberdeen, MS 39730
Louisiana Middle District Court Phone: (662) 369-4952
U.S. District Court Mailing Address:

777 Florida Street, Suite 139 P.O. Box 704
Baton Rouge, LA 70801 Aberdeen, MS 39730
Phone: (225) 389-3500
U.S. District Court
Louisiana Western District Court 305 Main Street, Room 329
Greenville, MS 38701
515 Murray Street
Alexandria, Louisiana 71301 Federal Building
Phone: (318) 473-7415 911 Jackson Avenue, Room 369
Oxford, MS 38655
800 Lafayette Street, Suite 2100
Lafayette Louisiana 70501 Mississippi Southern District Court
Phone: (337) 593-5000
U.S. District Court
Edwin F. Hunter, Jr. 245 East Capitol Street
U.S. Courthouse & Federal Building Suite 316
611 Broad Street, Suite 188 Jackson, MS 39201
Lake Charles, Louisiana 70601
Phone: (337) 437-3870 Mailing Address:
P.O. Box 23552
United States Courthouse Jackson, MS 39225-3552
300 Fannin Street, Suite 1167 Phone: (601) 965-4439
Shreveport, Louisiana 71101
Phone: (318) 676-4273
Abilene Divisional Office

U.S. District Court 341 Pine St., Room 2008
701 Main Street, Suite 200 Abilene, TX 79601
Hattiesburg, MS 39401 Phone: (325) 677-6311
Phone: (601) 583-2433
Amarillo Divisional Office
U.S. District Court 205 E. Fifth St., Room 133
2012 15th Street, Suite 403 Amarillo, TX 79101-1559
Gulfport, MS 39501 Phone: (806) 468-3800
Phone: (228) 563-1700
Ft. Worth Divisional Office
Texas Eastern District Court 501 W. 10th St., Room 310
Ft. Worth, TX 76102-3673
U.S. District Court Phone: (817) 850-6600
300 Willow Street, Suite 104
Beaumont, Texas 77701 Lubbock Divisional Office
Phone: (409) 654-7000 1205 Texas Ave., Room 209
Lubbock, TX 79401-4091
104 N. Third Street
Lufkin, Texas 75901 San Angelo Divisional Office
Phone: (936) 632-2739 33 E. Twohig St., Room 202
San Angelo, TX 76903-6451
100 E. Houston, Room 125
Marshall, Texas 75670 Wichita Falls Divisional Office
Phone: (903) 935-2912 1000 Lamar St., 203
Wichita Falls, TX 76301
101 E. Pecan, Room 216
Sherman TX 75090 Texas Southern District
Phone: (903) 892-2921
U.S. Courthouse 600 E. Harrison, #101
500 N. State Line Ave. Brownsville, TX 78520
Texarkana, Texas 75501 Phone: (956) 548-2500
Phone: (903) 794-8561
Mailing Address: 1133 N Shoreline Blvd
P.O. Box 2090 Corpus Christi, TX 78401
Texarkana, TX 75504 Phone: (361) 888-3142
U.S. District Court United States Courthouse

211 W. Ferguson, Room 106 515 Rusk Ave
Tyler, Texas, 75702 Houston, TX 77002
Phone: (903) 590-1000 Phone: (713) 250-5500
Texas Northern District Court Mailing Address:

Clerk of the Court
U.S. District Court P. O. Box 61010
1100 Commerce, Room 1452 Houston, TX 77208
Dallas, TX 75242
Phone: (214) 753-2200
United States Courthouse U.S. District Court

1300 Victoria St., Suite 1131 511 East San Antonio Ave., Room 219
Laredo, TX 78040 El Paso, Texas 79901
Phone: (956) 723-3542 Phone: (915) 534-6725
U.S. District Court U.S. District Court

1701 W. Bus. Hwy. 83, Suite 1011 200 East Wall, Room 107
McAllen, TX 78501 Midland, Texas 79701
Phone: (956) 618-8065 Phone: (432) 686-4001
Mailing Address: U.S. District Court

Clerk of the Court 410 South Cedar
P. O. Box 5059 Pecos, Texas 79772
McAllen, TX 78501 Phone: (432) 445-4228
U.S. District Court U.S. District Court

312 S. Main Street, Room 406 2450 State Hwy. 118
Victoria, TX 77901 Alpine, Texas 79830
Phone: (361) 788-5009 Phone: (432) 837-7323
Mailing Address: U.S. District Court

Clerk of the Court 655 East Durango Blvd., Room G65
P. O. Box 1638 San Antonio, Texas 78206
Victoria, TX 77902 Phone: (210) 472-6550
Texas Western District Court U.S. District Court

800 Franklin Ave., Room 380
U.S. District Court Waco, Texas 76701
200 West 8th St., Room 130 Phone: (254) 750-1501
Austin, Texas 78701
Phone: (512) 916-5896 MG Williams Judicial Center
Bldg. 5794, Tank Destroyer Blvd.
U.S. District Court P. O. Box 5507
111 East Broadway, Room L100 Fort Hood, Texas 76544-0507
Del Rio, Texas 78840 Phone: (254) 287-3487
Phone: (830)-703-2054
6. Federal Courts in the Sixth Circuit
Court of Appeals
Court of Appeals for the Sixth Circuit

540 Potter Stewart U.S. Courthouse
100 East Fifth Street
Cincinnati, Ohio 45202
Phone: (513) 564-7000
District Courts
Kentucky Eastern District Court Clerk's Office

423 Frederica Street, Suite 126
Leslie G. Whitmer, Clerk Owensboro, KY 42301-3013
101 Barr St., Room 206 Phone: (270) 689-4400
P.O. Drawer 3074
Lexington, KY 40588-3074 Clerk's Office
Phone: (859) 233-2503 501 Broadway, Suite 127
Paducah, KY 42001-6801
Christina Riley, Deputy-in-Charge Phone: (270) 415-6400
336 Carl Perkins Fed Bldg.
1405 Greenup Ave. Michigan Eastern District
Ashland, KY 41101
Phone: (606) 329-8652 Theodore Levin United States Courthouse
231 W. Lafayette Blvd, Room 564
Lynn Battaglia, Deputy-in-Charge Detroit, MI 48226
35 West 5th Street Phone: (313) 234-5005
P.O. Box 1073
Covington, KY 41012-1073 U.S. District Courthouse
Phone: (859) 392-7925 Federal Building
200 E. Liberty Street, Room 120
Kay Ratliff, Deputy-in-Charge Ann Arbor, Michigan 48104
313 John C. Watts Fed Bldg. Phone: (734) 741-2380
330 West Broadway
Frankfort, KY 40601 Mailing Address:
Phone: (502) 223-5225 P.O. Box 8199
Ann Arbor, MI 48107
Shirley Allen, Deputy-in-Charge
310 South Main Street U.S. District Court
P.O. Box 5121 U.S. Post Office Building
London, KY 40745-5121 1000 Washington Avenue, Room 304
Phone: (606) 877-7910 Bay City, MI 48708
Phone: (989) 894-8800
Malinda Bevins, Deputy-in-Charge
110 Main Street, Suite 203 Mailing Address:
Pikeville, KY 41501-1100 P.O. Box 913
Phone: (606) 437-6160 Bay City, MI 48707
Kentucky Western District Court Federal Building & U.S. Courthouse

600 Church St., Room 140
Clerk's Office Flint, MI 48502
241 East Main Street, Suite 120 Phone: (810) 341-7840
Bowling Green, KY 42101-2175
Phone: (270) 393-2500 Michigan Western District Court
Clerk's Office U.S. District Court

601 W. Broadway, Rm 106 399 Federal Building
Gene Snyder United States Courthouse 110 Michigan St NW
Louisville, KY 40202 Grand Rapids, MI 49503
Phone: (502) 625-3500 Phone: (616) 456-2381
U.S. District Court Office of the Clerk

B-35 Federal Bldg Joseph Kinneary U.S. Courthouse
410 W Michigan Ave Room 260
Kalamazoo, MI 49007 85 Marconi Boulevard
Phone: (269) 337-5706 Columbus, Ohio 43215
Phone: (614) 719-3000
U.S. District Court
113 Federal Bldg Office of the Clerk
315 W Allegan St Federal Building, Room 712
Lansing, MI 48933 200 West Second Street
Phone: (517) 377-1559 Dayton, Ohio 45402
Telephone: (937) 512-1400
U.S. District Court
PO Box 698 Tennessee Eastern District Court
229 Federal Bldg
202 W Washington St U.S. District Court, Greeneville
Marquette, MI 49855 220 West Depot Street, Suite 200
Phone: (906) 226-2021 Greeneville, TN 37743
Phone: (423) 639-3105
Ohio Northern District Court
U.S. District Court, Knoxville
568 United States Courthouse 800 Market Street, Suite 130
Federal Building Knoxville, TN 37902
Two South Main Street Phone: (865)-545-4228
Akron, Ohio 44308-1813
Phone: (330) 252-6000 U.S. District Court, Chattanooga
900 Georgia Avenue
Carl B. Stokes United States Court House Chattanooga, TN 37402
801 West Superior Avenue Phone: (423) 752-5200
Cleveland, Ohio 44113-1830
Phone: (216) 357-7000 U.S. District Court, Winchester
200 South Jefferson Street
114 United States Courthouse Winchester, TN 37398
1716 Spielbusch Avenue Phone: (931) 967-1444
Toledo, Ohio 43604-5383
Phone: (419) 213-5500 Tennessee Middle District Court
337 U.S. Federal Building & Courthouse U.S. District Court

125 Market Street 801 Broadway
Youngstown, Ohio 44503-1780 Nashville, TN 37203
Phone: (330) 884-7400 Phone: (615) 736-5498
Ohio Southern District Court Tennessee Western District Court
Office of the Clerk U.S. District Court

Potter Stewart U.S. Courthouse 167 N. Main Street
Room 103 Memphis, TN 38103
100 East Fifth Street Phone: (901) 495-1200
Cincinnati, Ohio 45202
Phone: (513) 564-7500 U.S. Courthouse
111 South Highland Avenue
Jackson, TN 38301
Phone: (731) 421-9200
7. Federal Courts in the Seventh Circuit
Court of Appeals
Court of Appeals for the Seventh Circuit

219 South Dearborn Street
Chicago, IL 60604
Phone: (312) 435-5850
District Courts
Illinois Central District Court Illinois Southern District Court
Peoria Division Benton Division

309 Federal Bldg U.S. Courthouse, 1st Floor
100 North East Monroe Street 301 West Main Street
Peoria, IL 61602 Benton, IL 62812
Phone: (309) 671-7117 (618) 439-7767
Rock Island Division Main Office

40 U.S. Courthouse 104 Melvin Price Federal Bldg and
211 19th Street U.S. Courthouse
Rock Island, IL 61201 750 Missouri Avenue
Phone: (309) 793-5778 East St. Louis, IL 62201
(618) 482-9371
Springfield Division
151 Paul Findley Federal Bldg and U.S. Indiana Northern District Court
Courthouse
600 East Monroe Street Fort Wayne Division
Springfield, IL 62701 1108 E. Ross Adair Federal Bldg and U.S.
Phone: (217) 492-4020 Courthouse
1300 South Harrison Street
Urbana Division Fort Wayne, IN 46802
218 U.S. Courthouse Phone: (260) 423-3000
201 South Vine Street
Urbana, IL 61801 Hammond Division
Phone: (217) 373-5830 United States Courthouse, Ste, 2300
5400 Federal Plaza
Illinois Northern District Court Hammond, IN 46320
Phone: (219) 852-6500
Main Office
Everett McKinley Dirksen Building Lafayette Division
U.S. Courthouse, 20th Floor 214 Charles A. Halleck Federal Bldg
219 South Dearborn Street 230 North Fourth Street
Chicago, IL 60604 Lafayette, IN 47901
Phone: (312) 435-5670 Phone: (765) 420-6250
Rockford Division South Bend Division

Federal Bldg 102 Robert A. Grant Federal Bldg and U.S.
211 South Court Street Courthouse
Rockford, IL 61101 204 South Main Street
Phone: (815) 987-4355 South Bend, IN 46601
Phone: (574) 246-8000
Indiana Southern District Court
Evansville Division Wisconsin Eastern District Court

304 Federal Building
101 NW Martin Luther King Jr. Blvd. Milwaukee Division
Evansville, IN 47708 362 U.S. Courthouse and Federal Bldg
Phone: (812) 434-6410 517 East Wisconsin Avenue
Milwaukee, WI 53202
Indianapolis Division Phone: (414) 297-3372
105 Birch Bayh Federal Bldg and U.S.
Courthouse Green Bay Division
46 East Ohio Street Jefferson Ct Bldg, 1st Fl
Indianapolis, IN 46204 125 South Jefferson Street
Phone: (317) 229-3700 Green Bay, WI 54305
Phone: (920) 884-3720
New Albany Division
210 Lee H. Hamilton Federal Bldg and U.S. Wisconsin Western District Court
Courthouse
121 West Spring Street Main Office
New Albany, IN 47150 Robert W. Kastenmeier U.S. Courthouse
Phone: (812) 948-5238 120 North Henry Street, Room 320
Madison, WI 53703
Terre Haute Division Phone: (608) 264-5156
207 United States Post Office Bldg
30 North Seventh Street
Terre Haute, IN 47801
Phone: (812) 234-9484
8. Federal Courts in the Eighth Circuit

Court of Appeals
Court of Appeals for the Eighth Circuit

Main Office
Thomas F. Eagleton Courthouse
111 South 10th Street
St. Louis, MO 63102
Phone: (314) 244-2400
Court of Appeals for the Eighth Circuit

St. Paul Office
Room 500
180 East Fifth Street
St. Paul, MN 55101
Phone: (651) 848-1300
District Courts
Arkansas Eastern District Court South 6th Street & Rogers Avenue
Fort Smith, AR 72901
Main Office Phone: (479) 783-6833
A149 Richard Sheppard Arnold J. Smith Henley Federal Building
U.S. Courthouse 402 N. Walnut, Room 238
600 West Capitol Avenue Harrison, AR 72601
Little Rock, AR 72201 Phone: (479) 521-6980
Phone: (501) 604-5351 (This office is not staffed; inquiries should be
sent to the Fayetteville office.)
Jonesboro Division
312 Federal Bldg Hot Springs Division
615 South Main Street 347 U.S. Post Office and Courthouse
Jonesboro, AR 72401 100 Reserve Street, Room 347
Phone: (870) 972-4610 Hot Springs, AR 71901
Phone: (501) 623-6411
Pine Bluff Division
3103 George Howard, Jr. Federal Texarkana Division
Bldg and U.S. Courthouse U.S. Courthouse and Post Office Bldg
100 East Eighth Avenue 500 North State Line Blvd.
Pine Bluff, AR 71601 Texarkana, AR 75501
Phone: (870) 536-1190 Phone: (870) 773-3381
Batesville Divisional Office Iowa Northern District Court

490 College Street
Batesville, AR 72501 Main Office
(This office is not staffed.) 4200 C Street SW
Cedar Rapids, IA 52404
Helena Divisional Office Phone: (319) 286-2300
617 Walnut
Helena, AR 72342 Sioux City Division
(This office is not staffed.) 301 U.S. Courthouse
320 Sixth Street
Arkansas Western District Court Sioux City, IA 51101
Phone: (712) 233-3900
El Dorado Division
U,S, Post Office and Courthouse Iowa Southern District Court
101 South Jackson Avenue
El Dorado, AR 71730 Main Office
Phone: (870) 862-1202 123 E. Walnut St., Room 300
Des Moines, IA 50309-
Fayetteville Division Phone: (515) 284-6421
510 John Paul Hammerschmidt Federal Bldg
35 East Mountain St, Suite 510 Davenport Division
Fayetteville, AR 72701 U. S. Courthouse
Phone: (479) 521-6980 211 19th Street
Davenport, IL 52801
1038 Judge Isaac C. Parker Federal Bldg
Council Bluffs Division
313 U. S. Post Office and Courthouse
8 South 6th Street Missouri Western District

Council Bluffs, IA 51501
Phone: (712) 320-0283 Central Division at Jefferson City
310 U.S. Courthouse
Minnesota District Court 131 West High Street
Jefferson City, MO 65101
202 U.S. Courthouse
300 South 4th Street Springfield Division
Minneapolis, MN 55415 1400 U.S. Courthouse
Phone: (612) 664-5000 222 N. John Q. Hammons Parkway
Springfield, MO 65806
St. Paul Division Phone: (417) 865-3869
Warren E. Burger Federal Bldg
316 North Robert Street Main Office
St. Paul, MN 55101 1510 Charles Evans Whittaker U.S.
Phone: (651) 848-1100 Courthouse
400 East 9th Street
Duluth Division Kansas City, MO 64106
417 Gerald W. Heaney Federal Bldg and U.S. Phone: (816) 512-5000
Courthouse
515 West 1st Street Nebraska District Court
Duluth, MN 55802-1397
Phone: (218) 529-3500 Main Office
Roman L. Hruska U.S. Courthouse, Ste. 1152
Fergus Falls Division 111 South 18th Plaza
205 U.S. Courthouse Omaha, NE 68102
118 South Mill Street Phone: (402) 661-7350
Fergus Falls, MN 56537
Phone: (218) 739-5758 Lincoln Division
593 Robert V. Denney U.S. Courthouse
Missouri Eastern District Court 593 Federal Bldg
100 Centennial Mall North
Main Office Lincoln, NE 68508
3.300 Thomas F. Eagleton U.S. Courthouse Phone: (402) 437-5225
111 South 10th Street
St. Louis, MO 63102 North Dakota District Court
Phone: (314) 244-7900
Main Office
Cape Girardeau Division 159 Federal Bldg and U.S. Courthouse
Rush Hudson Limbaugh, Sr. U.S. Courthouse, 220 East Rosser Ave.
2nd Fl Bismarck, ND 58501
555 Independence Street Phone: (701) 530-2400
Cape Girardeau, MO 63701
Phone: (573) 331-8800 Fargo Division
130 Quentin N. Burdick U.S. Courthouse
Hannibal Division 655 1st Avenue North
801 Broadway

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A Jailhouse Lawyer’s

Columbia Human Rights Law Review

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

HOW TO USE THE JLM

Columbia Human Rights Law Review

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

INTRODUCTION TO LEGAL RESEARCH*

State Courts Federal Courts

Figure 2: Hierarchy of Sources of Law

12. Case citations are discussed in Part D of this Chapter.

18. A statute is called a “bill” before it is passed by legislators.

21. Fed. R. App. P. 32.1.

For New York law:

CITATION EXAMPLES OF COMMON AUTHORITIES

reporter abbreviation (U.S. Reports)

Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).29

first party date of decision

parties reporter abbreviation

United States v. Kokinda, 866 F.2d 699

deciding court date of

Volume number and reporter

Kokinda, 497 U.S. at 725.

specific page referred to (pin cite)

Action taken by a higher court, in this case, the parallel citations

United States Constitution

abbreviation for amendment

U.S. Const. amend. I.

abbreviation of number of amendment cited

abbreviation for article

N.Y. Const. art. IV, § 7.

abbreviation of section symbol and specific section cited

number of article cited

title section symbol and specific section cited

28 U.S.C.A. § 1291 (1988).

abbreviated title of statute

N.Y. C.P.L.R. 7801 (McKinney 1997).

specific section cited

A-5 Definitions for Common Statutory Abbreviations

Columbia Human Rights Law Review

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

YOUR RIGHT TO LEARN THE LAW AND GO TO COURT*

reasonable adequacy, complaints to the courts without assistance”).

DIRECTORY OF SELECTED LAW LIBRARIES OFFERING SERVICES

Columbia Human Rights Law Review

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

HOW TO FIND A LAWYER*

Columbia Human Rights Law Review

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

CHOOSING A COURT AND A LAWSUIT: AN OVERVIEW OF THE

1. N.Y. C.P.L.R. 5601 (McKinney 2007).

31. Federal Tort Claims Act, 28 U.S.C. § 1346(b) (2000).

LAWSUITS THAT CHALLENGE YOUR CONVICTION OR SENTENCE

LAWSUITS THAT CHALLENGE THE CONDITIONS OF YOUR IMPRISONMENT

Columbia Human Rights Law Review

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

AN INTRODUCTION TO LEGAL DOCUMENTS*

8. See Fed. R. Civ. P. 12(b)(6); N.Y. C.P.L.R. 3211(a)(7) (McKinney 2005).

If you file a lawsuit, you will need:

LEGAL DOCUMENTS TABLE

Type of Papers to Start Suit Supporting Papers Miscellaneous Answers Replies

Article • Notice of Motion to • Affidavits • Poor Person’s • Answer

Federal • Petition • Affidavits • Motion for • Answer • Traverse

State • Petition • Check • Notice of Time • Return • Reply

42 U.S.C. • Summons • Affidavit • Poor Person’s • Answer • Reply

Tort • Notice of Intention • Affidavits • Affidavit to • Demand for • Bill of Particulars

Article 78 • Order to Show • Affidavits • Affidavit to • Answer • Reply

SAMPLE MEMORANDUM OF LAW20

UNITED STATES DISTRICT COURT

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION

D. A. Officer Bennett’s Attack On Robert Simms Violated The Eighth Amendment

(a) Officer Bennett’s Conduct Was Sufficiently Serious.

(i) The Use of Force Was More Than De Minimis

(ii) Simms Can Recover for His Psychological Pain

(b) Officer Bennett Acted Maliciously and Sadistically to Cause Harm

(i) Plaintiff Simms Suffered Physical and Mental Harm

(ii) There Was No Need for Force or Death Threats

Signature4 _______________________ Date

2. I am presently in the custody of the Superintendent of _ at ______ pursuant to a