PRISON LAW OFFICE General Delivery, San Quentin CA 94964 Telephone (510) 280-2621 Ÿ Fax (510) 280-2704 www.prisonlaw.com Your Responsibility When Using this Information: When we wrote this Informational Material we did our best to give you useful and accurate information because we know that prisoners often have difficulty obtaining legal information and we cannot provide specific advice to all the prisoners who request it. The laws change frequently and are subject to differing interpretations. We do not always have the resources to make changes to this material every time the law changes. If you use this pamphlet it is your responsibility to make sure that the law has not changed and is applicable to your situation. Most of the materials you need should be available in your institution law library. LAWSUITS FOR MONEY DAMAGES AGAINST CALIFORNIA PRISON OFFICIALS Updated March 2017 A prisoner who is harmed by the actions of prison officials may want to sue. This letter provides information about suing California state prison officials to seek money damages for personal injuries. Prisoners can also use some of the laws and procedures discussed in this letter to ask for injunctive relief (a court order requiring prison officials to do something or stop doing something). Some parts of the letter are also relevant to claims a prisoner may make when personal property is lost or damaged by prison officials. However, the focus of the letter is on lawsuits for money damages for personal injuries. A prisoner or parolee who has been harmed by the actions of prison staff and who believes his or her rights have been violated should take immediate action to preserve the right to bring a lawsuit. This means that the prisoner must file an administrative appeal (such as a CDCR 602, 602-HC or 1824) within the administrative appeal timeline (usually no more than 30 calendar days after the date of the unlawful action or discovery of the harm); a prisoner who cannot meet the deadline should still file an administrative appeal as soon as possible. A prisoner should also file a government claim form within six months of the date of the action that caused the harm. These requirements, and the deadlines and basic procedures for starting a money damages lawsuit, are discussed in detail in this letter. FAILURE TO FILE AN ADMINISTRATIVE APPEAL, GOVERNMENT CLAIM FORM, OR LAWSUIT WITHIN THE LEGAL TIME LIMITS MAY PERMANENTLY BAR A PRISONER FROM EVER RECEIVING ANY MONEY DAMAGES. Board of Directors Penelope Cooper, President Ÿ Michele WalkinHawk, Vice President Marshall Krause, Treasurer Ÿ Christiane Hipps Ÿ Margaret Johns Cesar Lagleva Ÿ Laura Magnani Ÿ Michael Marcum Ÿ Ruth Morgan Ÿ Seth Morris Director: Donald Specter Managing Attorney: Sara Norman Staff Attorneys: Mae Askerman-Brimberg Rana Anabtawi Steven Fama Alison Hardy Sia Henry Corene Kendrick Rita Lomio Margot Mendelson Millard Murphy Lynn Wu Filing and litigating a money damages lawsuit without a lawyer is extremely difficult, so a prisoner should always try to find an attorney to for any money damages case. However, the Prison Law Office generally does not represent prisoners in lawsuits that ask for money damages; neither do many other lawyers. Although personal injury lawsuits are sometimes taken by lawyers on a “contingency fee” basis (where the lawyer’s fee is a percentage of money recovered, if any), only the most exceptional prisoner cases will appeal to most lawyers. To try to find a lawyer, a prisoner can write to attorneys whose names are listed in the “civil rights law” and “personal injury” section of the “Attorney” listings in the yellow pages of the local phone book or to the local lawyer referral service. While doing legal research or reading prison law news articles, a prisoner can write down the names and contact information for lawyers who have handled similar types of cases and then trying contacting those lawyers. In many cases, a prisoner usually will have to proceed on his or her own to meet the initial deadlines for protecting the right to sue. This letter provides an overview of the steps a California prisoner will need to take to protect the right to sue state officials for money damages under federal and state law. TABLE OF CONTENTS Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Federal Civil Rights Lawsuits.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Who Can Be Sued a Federal Civil Rights Suit. . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Issues that May be Raised in a Federal Civil Rights Suit. . . . . . . . . . . . . . . . . . . . 5 Protecting the Right to File a Federal Civil Rights Suit. . . . . . . . . . . . . . . . . . . . . 9 First Steps in Filing a Federal Civil Rights Suit. . . . . . . . . . . . . . . . . . . . . . . . . . 11 State Tort Lawsuits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Who Can Be Sued in a State Tort Suit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Issues that May be Raised in a State Tort Suit. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Protecting the Right to File a State Tort Suit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 First Steps in Filing a Federal Civil Rights Suit. . . . . . . . . . . . . . . . . . . . . . . . . . 19 Summary: Which Type of Lawsuit Should be Filed and in What Court?. . . . . . . . 20 Government Claims Forms and Instructions List of California State and Federal Courts 2 I. INTRODUCTION A California prisoner may be able to file a lawsuit for money damages against prison officials or staff whose actions have caused the prisoner to suffer bodily injuries, psychological distress, or other harm. A lawsuit against prison officials might be based on violations of either federal or state law (or both) and could be filed in either federal or state court. Deciding on how and where to sue can be a complex question that will depend on the facts of the case and other factors. A prisoner should always take all of the initial steps necessary to protect the right to sue under both federal and state law and in both federal and state court. The most common type of lawsuit filed by prisoners seeking money damages is a “federal civil rights” or “section 1983” action. These types of lawsuits allow prisoners to sue state officials who violate federal constitutional or statutory rights.1/ The next sections of this letter give an overview of federal civil rights lawsuits: who can be sued, what types of issues can be raised, actions necessary to preserve the right to sue, and initial steps in filing a lawsuit. The other type of lawsuit that prisoners may use to seek money damages is a state “personal injury” or “tort” action. Under California law, prisoners can sue prison officials whose wrongful or negligent acts or omissions cause injuries.2/ This letter gives an overview of state tort lawsuits: who can be sued, what types of issues can be raised, and actions necessary for preserving the right to sue, and initial steps in filing a lawsuit. This letter ends with a brief discussion of factors relevant to deciding which type of legal claims to raise and in which court to file the lawsuit. The law is very complex and this letter provides only a very general overview of basic information about prisoner personal injury lawsuits. More detailed information about prisoners’ rights, federal civil rights lawsuits, and state tort lawsuits is available in other sources, including The California State Prisoners Handbook (4th ed. 2008, with 2014 supplement), published by the Prison Law Office. 1. See 42 U.S.C. § 1983. 2. See Government Code § 844.6(d). 3 II. FEDERAL CIVIL RIGHTS (§ 1983) LAWSUITS A. WHO CAN BE SUED IN A FEDERAL CIVIL RIGHTS LAWSUIT Under the federal Civil Rights Act, a person may sue any other person who, while acting “under color of state law,” violates a right protected by federal law.3/ A person who files a lawsuit is called a “plaintiff.” A person who is being sued is called a “defendant.” Prison staff, working in their jobs as employees are acting under color of state law. So are doctors, teachers, or other people who work under contract to the state providing services to prisoners.4/ A basic rule is that the prisoner should sue every state employee or contractor who caused the injury or damage. For example, consider a case where a prisoner wants to file a lawsuit because he suffered permanent injuries to his hand when a correctional officer assaulted him without justification, under orders from a correctional sergeant. The prisoner can sue the officer who assaulted him. The prisoner can also sue the sergeant who ordered the assault, because the order ultimately caused the injuries. If failure to properly train or supervise the officer or sergeant were factors leading to the assault, then the prisoner might also be able to sue higher-ranking officials who were responsible for training and supervising staff or for setting policies on the use of force.5/ For federal civil rights suits, prison staff and officials can be sued in either their “individual capacity” or their “official capacity.” If a prisoner is suing for money damages, the prisoner must specifically state in the lawsuit that the defendants are being sued in an individual capacity. If a prisoner is bringing a claim for injunctive relief, the defendants should be named in 3. 42 U.S.C. § 1983. 4. Haygood v. Younger (9th Cir. 1985) 769 F.2d 1350, 1354; Leer v. Murphy (9th Cir. 1988) 844 F.2d 628, 633; see West v. Atkins (1988) 487 U.S. 42, 54 [108 S.Ct. 2250; 101 L.Ed.2d 40](doctors who contract with the state to provide occasional medical services to prisoners may be sued under § 1983). 5. Good starting points for further research on the legal issues of “causation” are Rizzo v. Goode (1976) 423 U.S. 362 [96 S.Ct. 598; 46 L.Ed.2d 561]; Johnson v. Duffy (9th Cir. 1978) 588 F.2d 740; and Leer v. Murphy (9th Cir. 1988) 844 F.2d 628.; Taylor v. List (9th Cir. 1989) 880 F.2d 1040, 1045; Barry v. Ratelle (S.D.Cal. 1997) 985 F.Supp. 1235, 1239; Hydrick v. Hunter (9th Cir. 2012)669 F.3d 937, 941-942; Starr v. Baca (9rh Cir. 2011) 652 F.3d 1202, 1216-1217; Wright v. McMann (2d Cir. 1972) 460 F.2d 126, 129; Hearn v. Morris (E.D. Cal. 1981) 526 F.Supp. 267, 268; City of Canton, Ohio v. Harris (1989) 489 U.S. 378, 388-391 [109 S.Ct. 1197; 103 L.Ed.2d 412]; Merritt v. County of Los Angeles (9th Cir. 1989) 875 F.2d 765, 770; Alexander v. City of San Francisco (9th Cir. 1994) 29 F.3d 1355, 1367. 4 an official capacity. 6/ If the prisoner is requesting both types of relief, the defendants should be sued in both their individual and official capacities. Sometimes, prisoners would also like to sue the State of California, the California Department of Corrections and Rehabilitation (CDCR), or the prison itself. However, this cannot be done in most cases. The defendant in a federal civil rights lawsuit must be a “person,” and states and state agencies are not considered to be “persons” under the Civil Rights Act.7/ Also, under the Eleventh Amendment to the U.S. Constitution, states have “sovereign immunity” that protects them from being sued in federal court for money damages.8/ There is an exception in that prisoners can sue the state itself and its agencies under the Americans with Disability Act (ADA) and the Rehabilitation Act, Section 504.9/ B. ISSUES THAT CAN BE RAISED IN A FEDERAL CIVIL RIGHTS LAWSUIT A federal civil rights action must involve a violation of the prisoner’s federal constitutional or statutory rights. However, if the same action or decision being challenged also violated state tort law, then a federal court can agree to hear the state law claims along with the federal law claims.10/ For example, a prisoner who sues an officer for using excessive force in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment could also include a claim that the officer violated state law by committing an intentional assault. The question of whether prison staff have violated a federal right can be complicated. The right involved must be protected by a section of the U.S. Constitution or by a federal statute that applies to state prisoners. Sometimes the law requires the courts to balance prisoners’ rights against prison officials’ reasons for taking away those rights. For many types of issues, a prisoner who wants to prove violation of a federal right must show that prison staff both caused a particular degree of harm and acted with a particular state of mind. 6. Will v. Michigan Dept. of State Police (1989) 491 U.S. 58 [109 S.Ct. 2304; 105 L.Ed.2d 45]. 7. 42 U.S.C. § 1983; Hale v. Arizona (9th Cir. 1993) 993 F.2d 1387, 1398. A good discussion of who can be sued, and in what capacities, is included in Taormina v. California Dept. of Corrections (S.D. Cal. 1996) 946 F.Supp. 830. 8. See Quern v. Jordan (1979) 440 U.S. 332 [99 S.Ct. 1139; 59 L.Ed.2d. 358]; Edelman v. Jordan (1974) 415 U.S. 651 [94 S.Ct. 1347; 39 L.Ed.2d 662]. 9. United States v. Georgia (2006) 546 U.S. 151 [126S.Ct.877; 163 L.Ed.2d 650]; Clark v. California (9th Cir. 1997) 123 F.3d 1267. 10. 28 U.S.C. § 1367(a); see, e.g., Hillery v. Rushen (9th Cir. 1983) 720 F.2d 1132. A federal court has the power to decline to hear related state law claims if (1) the state claims raise novel or complex issues of state law, (2) the state claims are substantially more numerous or important that the federal claims, or (3) the Court has dismissed all of the federal claims. 28 U.S.C. § 1367(c). 5 The courts have set general standards for reviewing various types of prisoner claims in federal civil rights lawsuits. The following are the standards for some commonly-raised issues: • Inadequate or improper medical or mental health care violates the U.S. Constitution’s Eighth Amendment prohibition on cruel and unusual punishment if prison officials acted with “deliberate indifference” to a serious medical or mental health need. Negligent treatment alone does not violate the Eight Amendment.11/ • The use of excessive force by prison staff violates the Eighth Amendment prohibition against cruel and unusual punishment if the force was not used in a good faith effort to maintain or restore order, but was applied “maliciously or sadistically for the very purpose of causing harm.”12/ • Bad living conditions are cruel and unusual punishment under the Eighth Amendment if those conditions amount to a serious deprivation of the “minimal civilized measures of life’s necessities.” Such basic human needs include adequate food, clothing, shelter, sanitation, and personal safety. The Eighth Amendment is violated only if prison officials acted with deliberate indifference to the deprivations.13/ • Restrictions on a prisoner’s First Amendment rights, such as the right to free speech or association, are unlawful if they are not reasonably related to a legitimate penological interest.14/ • An agency that receives federal funds (like the CDCR) cannot impose a substantial burden on a prisoner’s exercise of religion unless it is the least restrictive means of furthering a compelling governmental interest.15/ 11. Estelle v. Gamble (1976) 429 U.S. 97 [97 S.Ct. 285; 50 L.Ed.2d. 251]. 12. Hudson v. McMillan (1992) 501 U.S. 294 [112 S.Ct. 995; 117 L.Ed.2d 156]; Whitley v. Albers (1986) 475 U.S 312 [106 S.Ct. 1078; 89 L.Ed.2d 251]. 13. Hudson v. McMillan (1992) 503 U.S. 1 [112 S.Ct. 995; 117 L.Ed.2d 156]; Wilson v. Seiter (1991) 501 U.S. 294, 302 [111 S.Ct. 2321; 115 L.Ed.2d 271]; Rhodes v. Chapman (1981) 452 U.S. 337, 347 [101 S.Ct. 2392; 69 L.Ed.2d 59]; Hoptowit v. Ray (9th Cir. 1982) 682 F.2d 1237, 1246. 14. Turner v. Safley (1987) 482 U.S. 78 [107 S.Ct. 2254; 96 L.Ed.2d 64]; O’Lone v. Estate of Shabazz (1987) 482 U.S. 342 [107 S.Ct. 2400; 96 L.Ed.2d 282]; Frost v. Symington (9th Cir. 1999) 197 F.3d 348. 15. 42 U.S.C. § 2000 et seq. [the Religious Land Use and Institutionalized Persons Act of 2000, known a “RLUIPA”]; Holt v. Hobbs (2015) __ U.S. __ [135 S.Ct. 853; 190 L.Ed.2d 747]; Cutter v. Wilkinson (2005) 544 U.S. 709 [125 S.Ct. 2113; 161 L.Ed.2d 1020]; Mayweathers v. Newland (9th Cir. 2002) 314 F.3d 1062;. 6 • Race discrimination by prison officials must be analyzed under a “strict scrutiny” test. “Strict scrutiny” means that race discrimination will be found unlawful unless the government can prove that the policies “are narrowly tailored measures that further compelling governmental interests.”16/ • Under the federal Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973, a prisoner who is disabled may not be subject to discrimination or denied the benefits of a program or activity if the prisoner can meet the essential eligibility requirements of the program, with or without reasonable modifications.17/ • Prisoners retain some due process rights under the Fourteenth Amendment; for example, in disciplinary matters involving credit losses, prisoners have the rights to notice, a hearing, and a decision supported by “some evidence.”18/ • Other actions such as classification decisions, transfers, or placement in segregation are not protected under the due process clause of the Fourteenth Amendment unless the state has create a liberty interest by requiring prison officials to follow mandatory procedures before taking such actions. Even if there is a state created liberty interest, a classification, transfer, or segregation action does not violate due process unless it imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”19/ • Deliberate government interference with the confidential relationship between a criminal defendant and defense counsel violates the Sixth Amendment right to counsel if it substantially prejudices the criminal defendant.20/ 16. Johnson v. California (2005) 543 U.S. 499 [125 S.Ct. 1141, 1146, 1148; 160 L.Ed.2d 949]. 17. 42 U.S.C. § 12131 et seq. (ADA); 29 U.S.C § 794 (Rehabilitation Act); Pennsylvania Dept. Of Corrections v. Yeskey (1998) 524 U.S. 206 [118 S.Ct. 1952; 141 L.Ed.2d 215]. 18. Wolff v. McDonnell (1974) 418 U.S. 539 [94 S.Ct. 2963; 41 L.Ed.2d 935]; Superintendent v. Hill (1985) 472 U.S. 445 [105 S.Ct. 276; 86 L.Ed.2d 356]; Zimmerlee v. Keeney (9th Cir. 1987) 831 F.2d 183. 19. Sandin v. Conner (1995) 515 U.S. 472, 483 [115 S.Ct. 2293; 132 L.Ed.2d 418]. 20. Williams v. Woodford (9th Cir.2004) 384 F.3d 567, 584–585. 7 Some types of issues cannot be raised in federal civil rights actions. These include: • A prisoner cannot use a federal civil rights action to challenge the legality of a criminal conviction or length of a sentence. This includes challenges to prison disciplinary losses of credit, improper calculations of good conduct credits, or denial or revocation of parole. The proper means for a prisoner to raise these claims in federal court is through a petition for writ of habeas corpus. A prisoner may file a federal civil rights case for damages only after the conviction, sentence, or disciplinary finding has been declared invalid in a habeas proceeding or other action. The only exception is that a claim involving a parole or disciplinary matter may be brought initially as federal civil rights case if it does not directly challenge “the fact or duration of confinement.”21/ • A prisoner cannot challenge a cell search under federal law because a prisoner’s cell is not protected by the U.S. Constitution’s Fourth Amendment prohibition against unreasonable searches and seizures.22/ • Neither the negligent destruction of a prisoner’s property, nor the intentional destruction of property violates federal law, except where the property loss occurred pursuant to an established state procedure.23/ Two other factors can prevent prisoners from winning money damages in a federal civil rights case, even when they can prove that prison staff have violated their federal rights. First, prison staff have “qualified immunity” against money damages awards in civil rights actions; this means that no money damages can be awarded unless the prison staff’s conduct violated rights that were “clearly established” at the time of the incident.24/ Second, prisoners cannot get money damages to compensate for a emotional or mental injury unless there was also a physical injury. 25/ However, this restriction may not apply to First Amendment claims or other legal injuries that are 21. Heck v. Humphrey (1994) 512 U.S. 477 [114 S.Ct. 2364; 129 L.Ed.2d 383]; Edwards v. Balisok (1997) 520 U.S. 641 [117 S.Ct. 1584; 137 L.Ed.2d 906]; see Muhammad v. Close (2004) 540 U.S. 749 [124 S.Ct. 1303; 158 L.Ed.2d 32]; Wilkinson v. Dotson (2005) 544 U.S. 74 [125 S.Ct. 1242, 161 L.Ed.2d 253]; Ramirez v. Galaza (9th Cir. 2003) 334 F.3d 950.) 22. Hudson v. Palmer (1984) 468 U.S. 517 [104 S.Ct. 3194; 82 L.Ed.2d 393]. 23. Parratt v. Taylor (1981) 451 U.S. 527 [101 S.Ct. 1920, 68 L.Ed.2d 420]; Hudson v. Palmer (1984) 468 U.S. 517 [104 S.Ct. 3194; 82 L.Ed.2d 393]; Daniels v. Williams (1986) 474 U.S. 327 [106 S.Ct. 662; 88 L.Ed.2d 662]; Davidson v. Cannon (1986) 474 U.S. 344 [106 S.Ct. 668; 88 L.Ed.2d 677]. 24. Hope v. Pelzer (2002) 536 U.S. 730 [122 S.Ct. 2508; 153 L.Ed.2d 666]; Saucier v. Katz (2001) 533 U.S. 194 [121 S.Ct. 2151; 150 L.Ed.2d 272]. 25. 42 U.S.C. § 1997e(e); see Oliver v. Keller (9th Cir 2002) 289 F.3d 623. 8 independent of any physical, emotional, or mental consequences.26/ Also, neither of these hurdles apply to claims for injunctive relief. Any prisoner considering a federal civil rights lawsuit should do further research to determine whether there is a good argument that federal rights have been violated and that monetary damages can be awarded. The following resources may be helpful: C An annotated edition of Title 42, section 1983 of the United States Code. Thousands of cases decided on prisoners rights are listed in the annotations to the civil rights statute. (Note that cases decided in the past may have been overturned; thus, a prisoner should check every case to try to determine if it is still good law.) C Rights of Prisoners, Fourth Edition (2009 plus updates) by Michael Mushlin, published by Thompson Reuters. C. PROTECTING THE RIGHT TO FILE A FEDERAL CIVIL RIGHTS LAWSUIT Before filing a federal civil rights lawsuit, a prisoner must “exhaust available administrative remedies.”27/ This means that a CDCR prisoner who wants to bring a federal civil rights suit must file (or at least attempt to file) an administrative appeal such as a Form 602, 602- HC, or 1824, or BPH 1074 (depending on the type of issue) through the Director’s or Third Level of Review.28/ A prisoner must do this even though money damages is not a remedy that can be obtained through the CDCR administrative appeal process, and regardless of whether the issues involve on-going circumstances of prison life or a particular episode of abuse.29/ 26. See, e.g., Canell v. Lightner (9th Cir. 1998) 143 F.3d 1342, 1346 (First Amendment claim). 27. 42 U.S.C. § 1997e(a). 28. If a grievance is fully granted at one of the lower levels, the full extent of relief under the administrative system has already been achieved. Thus, the prisoner is not obligated to pursue the appeal through the Third Level in order to exhaust administrative remedies. Brady v. Attygala (9th Cir. 2002) 196 F. Supp.2d 1016; Gomez v. Winslow (N.D. Cal. 2001) 177 F.Supp.2d 977, 984-985. More complicated scenarios arise when a prisoner receives partial relief at the first or second level of review; if at all in doubt about whether further relief could be obtained, the prisoner should continue filing the administrative appeals or file additional appeals covering all of the issues. See Brown v. Valoff (9th Cir. 2005) 422 F.3d 926 (in two cases decided jointly, court reached different conclusions on whether prisoner exhausted available remedies). 29. Booth v. Churner (2001) 253 U.S. 731 [121 S.Ct. 1819; 149 L.Ed.2d 958; Porter v. Nussle (2002) 534 U.S. 516; 122 S.Ct. 983; 152 L.Ed.2d 12]. However, the exhaustion of administrative remedies requirement applies only to prisoners, so a person who is released from prison prior to filing a civil rights complaint need not exhaust administrative remedies before filing a federal civil rights suit about injuries suffered while in prison. Talamantes v. Leyva (9th Cir. 2009) 575 F.3d 1021, 1024. 9 The administrative appeal must be specific enough to give prison officials fair notice of the nature of the complaint.30/ Also the appeal should be submitted and re-submitted within the timelines set by the CDCR regulations (usually within 30 calendar days after the event or decision being appealed or after an unsatisfactory First or Second Level decision). Unless there is good cause for a delay, CDCR staff may refuse to accept a late appeal. If a prisoner’s appeal is screened out as untimely or for some other reason, the prisoner should challenge the screen-out and ask prison officials to process the appeal. A prisoner who does not follow the CDCR’s rules for administrative appeals may end up not being able to exhaust available administrative remedies and thus not being allowed to proceed with a federal civil rights lawsuit.31/ More information on administrative appeals is available in The California State Prisoners Handbook (4th Ed. 2008 and 2014 Supplement) or in a free letter available on request from the Prison Law Office or on the Resources page at www.prisonlaw.com. A prisoner who wants to file a federal civil rights suit raising federal law claims does not have to complete the government claims process with the Department of General Services Office of Risk and Insurance Management (ORIM).32/ However, the prisoner should file an ORIM government claim if the prisoner may want to include related state tort law issues (see Section III.C, below) in the federal civil rights case. 30. See Gomez v. Winslow (N.D. Cal. 2001) 177 F.Supp.2d 977, (general grievance about inadequate medical care may satisfy exhaustion requirement as to specific aspects of a medical care claim if it puts prison officials on notice of the complaints); Irvin v. Zamora (S.D. Cal. 2001) 161 F.Supp.2d 1125 (grievance that puts officials on notice of the potential claims may be adequate even if it does not specifically name all the defendants responsible for the incident). 31. Woodford v. Ngo (2006) 548 U.S.81 [126 S.Ct. 2378]. (finding prisoner had not exhausted all available administrative remedies when 602 appeal was screened out as untimely and prisoner unsuccessfully appealed the screen-out decision). 32. Williams v. Horvath (1976) 16 Cal.3d 834 [129 Cal.Rptr. 453]; Plasencia v. California (C.D.Cal. 1998) 29 F.Supp.2d 1145, 1148; Barry v. Ratelle (S.D.Cal. 1997) 985 F.Supp. 1235, 1238. 10 D. FIRST STEPS IN FILING A FEDERAL CIVIL RIGHTS LAWSUIT There is a time limit (statute of limitations) for filing the complaint (the first court document) in a federal civil rights lawsuit. The federal civil rights law does not have a specific statute of limitations, so the courts apply time limits set by the law of the state where the injury occurred.33/ Under California law, a person has two years to file a lawsuit seeking money damages.34/ However, most California prisoners are allowed more time than that because the time limit for filing a civil rights action for damages is “tolled” (does not count toward the deadline) for two additional years while the plaintiff is a prisoner serving a determinate (set length) sentence or an indeterminate sentence of life with the possibility of parole.35/ This means that most prisoners have at least four years to file a section 1983 lawsuit for money damages. But beware – the two year tolling provision does not apply to federal law claims for injunctive relief or to any state law claims brought under the California Tort Claims Act. Those claims must be filed within the regular two year deadline36/ There are other circumstances that may toll the timeline for a federal civil rights lawsuit. Time is tolled while a prisoner exhausts administrative remedies.37/ Time is also tolled while a prisoner brings a direct appeal or habeas corpus petition if necessary to invalidate an unlawful criminal sentence, loss of credits, or denial or revocation of parole prior to suing for money damages (see Section II.B, above).38/ The statute of limitations will not run while the plaintiff is a minor or is insane.39/ Also, “equitable tolling” can stop the statute of limitations clock where it is in the interests of justice, the plaintiff has acted reasonably, the defendants have adequate notice of the claim, and tolling would not cause prejudice to the defendants; however, it can be difficult to convince a court to apply equitable tolling and prisoners should not rely on this possibility. 40/ 33. Wilson v. Garcia (1985) 471 U.S. 261, 266 [105 S.Ct. 1938; 85 L.Ed.2d 254]; Vaghan v Grijslva (9th Cir. 1991) 927 F.2d 476. 34. Code of Civil Procedure § 335.1. 35. Code of Civil Procedures § 352.1; Martinez v. Gomez (9th Cir 1998) 137 F.3d 1124 (tolling applies to prisoners serving life with possibility of parole). There is no tolling of the time limit for prisoners sentenced to life without parole (LWOP); they must file within two years. It is not clear whether tolling applies to prisoners serving death sentences. 36. Code of Civil Procedure § 352.1(b) and (c). See also Govt. Code § 945.6(c). 37. Brown v. Valoff (9th Cir.2005) 422 F.3d 926, 942–943. 38. Marsh v. San Diego County (S.D. Cal. 2006) 432 F.Supp.2d 1035, 1055-1056. 39. Code of Civil Procedure § 352; City of Huntington Park v. Superior Court (1995) 34 Cal.App.4th 1293, 1300 [41 Cal.Rptr.2d 68]. 40. Jones v. Blanas (9th Cir. 2004) 393 F.3d 918, 928; see Wade v. Ratella (S.D. Cal. 2005) 407 F.Supp.2d 1196, 1205-1206; Fink v. Shedler (9th Cir. 1999) 192 F.3d 91. 11 For federal case filing deadlines, documents are deemed filed on the day a prisoner delivers them to prison authorities or places them in the prison mail system for mailing to the court41/ A federal civil rights lawsuit can be filed in either state or federal court. Federal court is usually the better choice, as federal courts have more experience dealing with federal civil rights suits, better understanding of the special rules that apply to prisoner lawsuits, and established forms and procedures for prisoner cases. Also, although a prisoner who files a federal civil rights lawsuit does not have a right to be represented by an attorney, in federal court a prisoner can try to convince the court that there are “exceptional circumstances” such that the court should ask a lawyer to take the case.42/ Some federal courts have panels of attorneys who will consider taking prisoner cases on referral by the court. There are four federal court districts in California (Central, Eastern, Northern and Southern). As a general rule, a prisoner should file a federal civil rights case in the U.S. District Court covering the district in which the harm occurred. Attached to this letter is a list of the federal district courts and their addresses, which also states which prisons are located in each district. Each federal court district has its own form and instructions for filing a civil rights complaint. Prisoners can find these forms in the prison law library or obtain the forms by sending a request to the clerk of the federal district court. The federal district courts also have forms and instructions available on their websites. There is a $400 fee for filing a federal civil rights complaint, but prisoners who have no money can proceed without paying the fee by filing a request to proceed “in forma pauperis” and providing a certified trust account statement. The form for request can be obtained from the prison law library, the court clerk, or the court website.43/ Once a complaint is filed, the prisoner or the prisoner’s attorney must take further steps to pursue the lawsuit by seeking discovery, opposing any motions for dismissal or summary judgment that are filed by the defendants, and working toward bringing the case to trial or settlement. Litigating a lawsuit is difficult, and requires gathering and organizing evidence and a thorough understanding of the rules of civil procedure and the local rules of the court. A useful manual with information on federal civil rights lawsuits is Protecting Your Health and Safety (2009) by the Southern Poverty Law Center; order at www.prisonlegalnews.org/store/ or send a check or money order for $16 to Prison Legal News, PO Box 2420, West Brattleboro, VT 05303 41. Houston v. Lack (1988) 487 U.S. 266, 270 [108 S.Ct. 2379; 101 L.Ed.2d 245]; Caldwell v. Amend (9th Cir. 1994) 30 F.3d 1199, 1202; see also Faile v. Upjohn (9th Cir. 1993) 988 F.2d 985, 988. 42. 28 U.S.C. § 1915(d). 43. 28 U.S.C. § 1915(a). Even if a prisoner proceeds “in forma pauperis,” the prisoner will have to make partial payments toward the filing fee if he or she has or gets any money. 28 U.S. § 1915(b). 12 or. Another good source of information is the Jailhouse Lawyer’s Handbook (2010); download this book for free at www.nlg.org/publications/jailhouse-lawyers-handbook or send a request to the National Lawyers Guild, 132 Nassau St., Rm. 922 New York, NY 10038 III. STATE TORT LAWSUITS A. WHO CAN BE SUED IN A STATE TORT LAWSUIT As with federal civil rights lawsuits, a person who is filing a state tort lawsuit is called the “plaintiff” and a person who is being sued is called a “defendant.” Also, the same general rule applies that the prisoner should sue every state employee or state contractor who caused the injuries or damages (see Section II.A, above, for an example). For state tort law claims, prisoners do not have to state that they are suing the defendant in any particular “capacity.” Public employees like correctional officers, prison administrators, and prison medical staff may be sued for their negligent or intentional wrongful acts except when the law specifically creates an exception. Some situations in which public employees are immune to lawsuits are as follows: • A public employee cannot be sued for money damages for injury caused by the failure to furnish or obtain medical care for a prisoner unless the employee knows or has reason to know that the prisoner is in need of immediate medical care and fails to take reasonable action to summon such medical care. However, this rule does not bar a malpractice suit against a health care professional.44/ • A public employee cannot be sued for money damages for injuries caused by diagnosing or not diagnosing mental illness or addiction or for administering a prescribed mental health treatment. However, a public employee may be liable for injury caused by wrongdoing in prescribing a treatment or administering a prescribed treatment.45/ • A public employee is not liable for any injury resulting from a decision to deny or revoke parole or setting a parole condition,46/ or from decisions that are the exercise of official discretion.47/ 44. Government Code § 845.6. 45. Government Code § 855.8; Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298 [191 Cal.Rptr. 704] (discussing difference between failure to summon care and failure to provide treatment in suicide). 46. Gov Code 845.8; see Leyva v. Nielsen (2000) 83 Cal.App.4th 1061 [100 Cal.Rptr.2d 231]. 47. Government Code § 820.2. 13 Under California law, the State of California itself and state agencies like the CDCR are usually “immune” from state tort liability for injuries to prisoners.48/ The state is also immune from liability for an injury resulting from a parole unsuitability or revocation decision or a parole condition.49/ There are some exceptions. The State or the CDCR can be sued for money damages under state tort law if the suit is for one of the following types of claims: • Failure to summon medical care when there is, or should be, knowledge of a need for immediate medical care.50/ • Intentional and unjustifiable interference with the right to get judicial review of the legality of confinement. However, a court must have already determined that the confinement was illegal.51/ • Most motor vehicle injuries.52/ • Injuries from participating in biomedical or behavioral research.53/ • Damage suffered due to a breach of a contract.54/ • Liability arising from the Worker’s Compensation law.55/ • Claims for only non-monetary (injunctive or declaratory) relief.56/ 48. Government Code § 844.6(a). The immunity does not apply to injuries to parolees, Fearon v. California Dept. of Corrections (1984) 162 Cal.App.3d 1254 [209 Cal.Rptr. 309]. 49. 845.8; Torres v. California Dept. of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844 [158 Cal.Rptr. 3d 876]. 50. Government Code §§ 844.6(a) and 845.6; Watson v. California (1993) 21 Cal.App.4th 836 [26 Cal.Rptr.2d 262 (liability limited to serious and obvious conditions); Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277 [54 Cal.Rptr.2d 655]; Castaneda v. California Dept. of Corrections and Rehabilitation (2013) 212 Cal.App.4th 1051, 1072-1074 [151 Cal.Rptr.3d 648 (duty to summon medical care did not require consultation with specialist after diagnosis). 51. Government Code § 844.6(a) and § 845.4. 52. Government Code § 844.6(b). 53. Penal Code § 3524. 54. Government Code §§ 844.6(a) and 814. 55. Government Code §§ 844.6(a) and 814.2. 56. Government Code §§ 844.6(a) and 814. 14 B. ISSUES THAT MAY BE RAISED IN A STATE TORT LAWSUIT A prison or parole official can be sued for money damages under state law if the official’s wrongful or negligent act or failure to act causes injury or harm to a prisoner.57/ For example, an officer who uses excessive force can be sued under state tort law for assault and battery, and an officer whose carelessness causes a prisoner to suffer harm can be sued under state law for negligence. This kind of lawsuit is known as a state “personal injury” or “tort” action. There are many different types of claims that can be raised, each with its own legal standard. In any tort case, the plaintiff must show that the defendant acted with a particular mental state, such as intentionally or negligently; the mental state that must be shown depends on the type of tort being alleged. Prisoners do not have to show any greater degree of harm or any greater level of malicious intent than non-prisoner tort plaintiffs. California also has its own civil rights law, called the Bane Civil Rights Act. Under the Act, a plaintiff can sue for damages if the defendant used threats of violence, intimidation or coercion to prevent the plaintiff from doing something he or she had the legal right to do or to force the plaintiff to do something that he or she was not legally required to do.58/ There are no special limits regarding damages awards in prisoner cases. A good starting point for researching state tort law is Witken’s Summary of California Law. C. PROTECTING THE RIGHT TO FILE A STATE TORT LAWSUIT 1. Administrative Appeal Prisoners who want to file state tort lawsuits must exhaust administrative remedies by completing an administrative appeal process (CDCR 602, 602-HC, or 1824 or BPH 1074, depending on the issue being raised) prior to filing a state tort lawsuit, even where the relief sought is money damages.59/ More information on administrative appeals is available in The California State Prisoners Handbook (4th Ed. 2008 and 2014 Supplement) or in a free letter available on request from the Prison Law Office or at www.prisonlaw.com. 2. Government Claim A plaintiff must present a written government claim to the Department of General Services Office of Risk and Insurance Management (ORIM) before filing a state tort lawsuit 57. Government Code § 844.6(d). 58. Civil Code § 52.1. 59. Wright v. California (2004) 122 Cal.App.4th 659 [19 Cal.Rptr.3d 92]. 15 against the state or a state official or employee.60/ If a government claim has not been filed, a court will dismiss any state tort action against prison officials. For claims related to death or injury of a person or damage to personal property, the envelope containing the claim must be postmarked no later than six months after the accrual of the cause of action (the date on which the harm was caused or discovered).61/ There is a special procedure for asking ORIM to accept a late claim, which is discussed in Section III. C.3, below. The ORIM has a standard claim form that prisoners should use; the form and instructions are attached to this letter. The form and instructions may also be available in the prison law library or on the ORIM website at www.dgs.ca.gov/orim/Programs/GovernmentClaims.aspx. The claim must be signed and sent along with any supporting documents to the Government Claims Program, Office of Risk and Insurance Management, Department of General Services, P.O. Box 989052, MS 414, West Sacramento, CA 95798. It is also a good idea to send an additional copy of the claim, a pre-addressed stamped return envelope, and a letter requesting that ORIM return a file-stamped copy of the claim for the prisoner’s records. In addition, a prisoner should keep copy of the claim when it is sent, in case the original is lost in the mail or in processing. There is a $25 fee for filing a government claim. However, the fee may be waived (not charged) if a prisoner is unable to pay it. A form for requesting a fee waiver is included in the attached forms, and may also be obtained from the prison law library or the ORIM website. The prisoner will also have to attach a certified copy of his or her trust account balance sheet to the waiver form. Either the fee payment or a completed fee waiver form should be sent with the government claim form. If the prisoner does not properly fill our the government claim form, files the claim form late, or does not submit the proper fee or fee waiver request, the ORIM must give the prisoner notice of the defect and may allow the defect to be corrected. If the ORIM does not give notice of the defect, it cannot argue in court that the prisoner did not follow the correct government claims process.62/ 60. Government Code §§ 945.4 and 950.2. The office responsible for processing these claims has changed several times; previously it was the State Board of Control, and then the Victim Compensation and Government Claims Board. 61. Government Code §§ 911.2 and 901. For other types of claims, the claims must be filed no later than a year after the incident. These deadlines are not extended just because a person is in prison or on parole. Government Code § 945.6(c); see also Torres v. CDCR (2013) 217 Cal.App.4th 844 [158 Cal.Rptr.3d 876]. Also, since CDCR administrative appeals can take a long time, it is not necessary to complete the administrative appeal process before filing a government claim. 62. Government Code §§ 910.4, 910.6, 910.8, 911.3, 911.4; Sykora v. Department of State Hospitals (2104) 225 Cal.App.4th 1538 [171 Cal.Rptr.3d 583]. 16 The ORIM should act on the claim within 45 days.63/ Sometimes, the ORIM does not formally deny a claim or does not send out a notice of denial; in such cases, the claim is considered to be denied as of 45 days after it was presented to the ORIM.64/ The ORIM routinely denies all claims for damages arising from personal injuries, so a prisoner should not get discouraged if a claim is rejected. Even though the ORIM is likely to deny the government claim, it is still necessary to file a claim before filing a state tort lawsuit. 3. Late Government Claim If the six-month deadline for filing an ORIM government claim has passed, a prisoner can apply for permission to file a late claim. A request to file a late claim is made by sending a completed government claim form to the ORIM along with a letter explaining why the claim was not filed on time.65/ The prisoner must present the request for permission to file a late claim within a reasonable time, and no later than one year after the decision or action being challenged or the discovery of the harm.66/ Mere ignorance of the six months time limit is usually not a sufficient excuse for missing the deadline for filing a government claim. 67/ However, the ORIM must allow a late claim in certain circumstances, such as when: • Failure to present the claim on time was through mistake, inadvertence, surprise or excusable neglect and the state was not prejudiced by the failure to present the claim on time. • The person who had the injury, loss, or damage failed to present a claim on time because he or she was physically or mentally incapacitated during all of the six month period. • The person who suffered the injury was a minor during all of the six-month period. • The person who suffered the injury died before the period ran out. 68/ 63. Government Code § 912.4. 64. Government Code § 912.4(c). 65. Government Code § 911.4(a). 66. Government Code § 911.4(b). 67. See Harrison v. County of Del Norte (1985) 168 Cal.App.3d. 1 [213 Cal. Rptr. 658]; Torbitt v. Fearn (1984) 161 Cal.App.3d 860 [208 Cal.Rptr. 1]. 68. Government Code § 911.6(b); Draper v. City of Los Angeles (1990) 52 Cal.3d 502 [276 Cal.Rptr. 864] (relief from untimely filing granted where plaintiff unconscious and braindamaged throughout time frame). 17 The ORIM must act on a request for permission to file a late claim within 45 days after the request is presented.69/ If the ORIM grants the request, the government claim is considered to have been filed as of the day that permission to file a late claim was granted.70/ If the ORIM does not act on the request for permission to file a late claim, the request is considered to be denied as of the end of the 45-day period.71/ A prisoner can challenge the ORIM’s denial of a request for permission to file a late claim by filing a petition in the superior court for the county where the lawsuit would be filed.72/ The petition must state that a late claim application was made to the ORIM and was denied, give the reasons for the late filing of the claim, and state all facts relating to the underlying claim. The petition must be filed within six months after the date that the request for permission to file a late claim was denied or deemed denied by the ORIM.73/ Copies of the petition and a written notice of the time and place for a hearing on the petition must be served on the Attorney General either (1) through personal service at least 16 days before the hearing or (2) by mail at least 21 days before the hearing. 74/ If the prisoner cannot get a hearing date before serving the notice and petition, the prisoner can file those documents in the court along with a request that the court set a hearing and notify the parties of the date. A court considering a petition to file a late claim must resolve any doubts in favor of granting permission for the case to proceed.75/ If the court grants the petition, the state tort action must be filed within 30 days after the order.76/ If relief is denied, no state tort action may be filed; however, denial of the petition can be appealed to the state Court of Appeal. More information 69. Government Code § 911.6(a). 70. Government Code § 912.2. 71. Government Code § 911.6(c). 72. Government Code § 946.6(a). 73. Government Code § 946.6(b); 74. Government Code § 946.6(d); Code of Civil Procedure § 1005 (b). 75. Greene v. California (1990) 222 Cal.App.3d 117 [272 Cal.Rptr. 52]; Bettencourt v. Los Rios Community College District (1986) 42 Cal.3d. 270 [228 Cal. Rptr. 190]; Ebersol v. Cowan (1983) 35 Cal.3d. 427 [197 Cal.Rptr. 601]; Renteria v. Juvenile Justice, Department of Corrections and Rehabilitation (2006) 135 Cal.App.4th 903 [37 Cal.Rptr.3d 777] (granting permission to file a late claim after attorney’s secretary mistakenly erased the filing deadline from the attorney’s calendar). 76. Government Code § 946.6(f). 18 and the form for filing a notice of appeal is available in a free letter on request from the Prison Law Office or on the Resources page at www.prisonlaw.com. 4. Notice of Medical Malpractice Suit In addition to completing an administrative appeal and a government claim, a plaintiff who wants to bring a medical malpractice case against a health care provider must give the defendant notice of the intention to sue no less than 90 days before filing the lawsuit.77/ D. FIRST STEPS IN FILING A STATE TORT LAWSUIT If the ORIM sends a notice denying the government claim, the prisoner will have six months from the date the notice was placed in the mail to file a state tort lawsuit.78/ However, any time needed to complete the CDCR administrative appeal process past the time that the ORIM claim is denied does not count toward the six month deadline for filing a state tort lawsuit.79/ If the ORIM does not send out a notice of its action or if the ORIM does not act on the government claim, then any state tort action must be filed within two years of the date of the decision or action being challenged.80/ The “mailbox rule” applies, which means that a prisoner’s pro se state tort complaint (the legal document which begins the lawsuit) is deemed filed on the date that it is properly delivered to prison officials for mailing (rather than on the date it is actually received by the court).81/ The state tort complaint must say that the claim was presented to the ORIM and denied. The California courts have standards forms for filing state tort law actions for personal injuries. The forms may be available from the prison law library, the county court clerk, the 77. Code of Civil Procedure § 364. 78. Government Code § 945.6(a)(1). The six month time period means either six calendar months or 182 days, whichever is longer. Gonzales v.County of Los Angeles (1988) 199 Cal.App.3d 601 [245 Cal.Rptr. 112]. 79. Wright v. California (2004) 122 Cal.App.4th 659 [19 Cal.Rptr.3d 92]. 80. Government Code § 945.6(a)(2). Imprisonment does not toll or extend the timeline for filing a state tort law claim for money damages against a public entity. Code of Civil Procedure § 352.1(b). However, a prisoner’s state tort complaint is timely filed if it is delivered to prison officials for mailing on or before the filing due date. Moore v. Twomey (2004) 120 Cal.App.4th 910 [16 Cal.Rptr.3d 163]. 81. Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106 [92 Cal.Rptr.3d 595]; see also Shufelt v. Hall (2008) 163 Cal.App.4th 1020 [77 Cal.Rptr.3d 900]; Moore v. Twomey (2004) 120 Cal.App.4th 910 [16 Cal.Rptr.3d 163]. 19 county court website. The California courts website (www.courts.ca.gov/) also has many useful court forms on its Forms and Rules pages. These forms usually include a complaint for personal injury, property damage, or wrongful death, cause of action pleadings, a summons, and a civil cover sheet. There is also a form that a prisoner can use to ask permission to proceed without payment of court fees. As with federal civil rights cases, it is very difficult for a prisoner to bring a state tort lawsuit to trial or settlement. Books that describe the procedures for filing, serving, and prosecuting a state court lawsuit include the Continuing Education of the Bar (C.E.B.) publications Civil Procedure Before Trial, California Civil Discovery Practice, and Civil Procedure During Trial, 2100 Franklin Street, Suite 500, Oakland, CA 94612 or www.ceb.com. Anyone bringing a state tort lawsuit should also become familiar with the local court rules. IV. WHICH TYPE OF LAWSUIT SHOULD I FILE AND IN WHAT COURT? This letter has described the two main types of money damages suits that prisoners can bring. Prisoners should always take the initial steps to preserve their rights to sue under both federal and state law by filing a timely CDCR administrative appeal and a timely ORIM government claim. However, a prisoner must eventually decide which type of legal claims to make and where the lawsuit should be filed. The decision will rest on the facts of the individual case, as well as other factors such as which court is most likely to give the prisoner a fair hearing. To summarize, the options for bringing a money damages lawsuit are as follows: • Cases raising federal law claims only: A claim under the federal civil rights act can be brought only if a prison official violated a federal law. A prisoner must exhaust available CDCR administrative appeals before filing. For most prisoners, the case must be filed within four years. The lawsuit can be filed in either state or federal court, but prisoners will almost always be better off filing in federal court. There are four federal court districts in California, and the general rule is that a lawsuit should be filed in the district that covers the region where the unlawful act or decision occurred. • Cases raising state law claims only: If there was no violation of a federal right, then the only type of action that the prisoner can bring is a case for negligence or a wrongful act under state law. The prisoner must exhaust CDCR administrative remedies and file an ORIM government claim. The lawsuit should be filed within six months after a notice of decision from the ORIM or, if there is no formal notice of decision, then within two years after the date of the action or decision 20 being challenged. The lawsuit must be filed in state superior court in the county where the unlawful act or decision occurred.82/ • Cases raising both federal and state law claims: Where the same wrongful action or decision of prison officials or staff violated both federal and state law, a prisoner can bring both types of claims in a federal civil rights lawsuit. Indeed, under the legal principle of “res judicata,” all claims arising out of an incident should be raised in a single lawsuit; otherwise, the right to raise some of the claims may be forfeited. A federal civil rights lawsuit raising both federal and state law claims should be filed within the time limit for the state law claim – within six months after a notice of decision from the ORIM or, if there is no formal notice of decision, then within two years after the date of the action or decision being challenged. The lawsuit can be filed in either state or federal court, but federal court is usually the better choice. In addition to asking for money damages, a prisoner who is filing a federal civil rights lawsuit or a state tort lawsuit may also want to seek “injunctive relief,” which is a court order requiring prison officials to do something or stop doing something (for example, provide medical treatment or stop segregating a prisoner as a gang member). Prisoners who want injunctive relief should consider the following points: • A prisoner who is a bringing federal civil rights claim for money damages can ask for injunctive relief in the same case. • A prisoner who is bringing a state tort law claim requesting money damages can also ask for injunctive relief. However, any action seeking injunctive relief based on a violation of state law must be filed in state court. • A prisoner can also file a federal civil rights case or a state tort law case asking for only injunctive relief. However, a state court habeas corpus petition is a much simpler, easier, and speedier way for a prisoner to ask for injunctive relief based on federal and/or state law grounds. Thus, a prisoner who wants only injunctive relief should consider filing a state court petition for writ of habeas corpus instead 82. Claims for up to $10,000 can be filed in small claims court, which offers a simpler and speedier way to resolve personal injury and property loss disputes. The Prison Law Office can provide information on the small claims court process upon request or on the Resources page at www.prisonlaw.com. 21 of a federal civil rights or state tort case.83/ A free manual on state habeas corpus petitions is available upon request from the Prison Law Office or on the Resources page at www.prisonlaw.com. Attached is a list of the state and federal courts for California, and the prisons in each court district. More information on prisoners’ rights, federal civil rights suits and state tort law suits can be found in The California State Prisoners Handbook (4th Ed. 2008 and 2014 Supplement). This book is available in many prison law libraries. The book can also be ordered by a prisoner or for shipping to a prisoner by sending $40 and shipping instructions to Reach360 Fulfillment, 440 Tescani Circle, Santa Rosa, CA 95401. The price of the Handbook for non-prisoners is $182.00. Payment is accepted by check, money order or credit card. Additional information on ordering the book can be obtained by writing to the Prison Law Office, General Delivery, San Quentin, CA 94964 or visiting www.prisonlaw.com. 83. Note that a person who challenges prison conditions via a state habeas corpus action, and loses following a reasoned denial on the merits by the state court, will be barred from bringing a § 1983 lawsuit challenging the state court’s decision on the same issues. Allen v. McCurry (1980) 449 U.S. 90, 102-103 [101 S.Ct. 411; 66 L.Ed.2d 308]; Silverton v. Dept. of Treasury (9th Cir. 1981) 644 F.2d 1341, 1345-1347; Sperl v. Deukmejian (9th Cir. 1981) 642 F.2d 1154, 1155. The government has the burden of showing that the claim was previously litigated in state court. Harris v. Jacobs (9th Cir. 1980) 621 F.2d 341, 343-344; Gonzales v. California Department of Corrections (9th Cir. 2014) 739 F.3d 1226, 1231. The bar should not apply if the challenge is not to the prior state court decision but to the constitutionality of the state statute or rule governing the decision. Skinner v. Switzer (2011) 562 U.S. 521, 533-534 [131 S.Ct. 1289; 179 L.Ed.2d 233]; compare with Cooper v. Ramos (9th Cir. 2012) 704 F.3d 772, 780-781 (federal court will not hear § 1983 claim that is actually an attack on state court’s application of the state statute). 22 Government Claims Program Office of Risk and Insurance Management Department of General Services PO Box 989052, MS 414 West Sacramento,CA 95789-9052 1-800-955-0045 ▪ www.dgs.ca.gov/orim/Programs/GovernmentClaims.aspx Information and Instructions Filing Fee for Government Claims Program Beginning August 17, 2004, anyone wishing to file a government claim for money or damages against the state must pay a $25 filing fee unless the person qualifies for a fee waiver. (Gov. Code, § 905.2(b).) To request a fee waiver, you must fill out the attached Affidavit for Waiver of Government Claims Filing Fee and Financial Information Form. Step Instructions for filling out each step on the attached form. The form begins on page 3 of this packet. On the attached form, provide the full name of the person requesting the fee waiver. Provide a daytime telephone number. If you already have a claim number and you know what it is, write it in this space. Provide complete contact information for your employer and your spouse’s employer, if applicable. If you are an inmate in a correctional facility, please attach a certified copy of your trust account balance, provide your Inmate Identification Number, and skip to steps and and complete them. Complete this section if you are receiving financial assistance under Supplemental Security Income (SSI), State Supplemental Payments Programs (SSPP), CalWORKS, food stamps, county relief, general relief (GR) or general assistance (GA). If you answered yes in this category check all types of assistance you get, then complete step . You are finished. If you checked no, continue to step . Find the number of people in your household and check the box only if your total monthly household income is less than the amount shown. For instance, if there are five people in your household and the total monthly household income is less than $2,294.79 or less check E. If there are more than 8 people in your household, calculate the income limit by adding $331.25 for each additional person to the income level for an eight-person household. List the number of people in your household and total household income in I. If you checked any box in this step, complete steps through then skip to step . If you cannot pay for the common items needed for daily life, such as food, shelter, medical care and personal safety for you and your household members, check yes in this category. If you check yes to this question, fill in steps through . STATE OF CALIFORNIA – DEPARTMENT OF GENERAL SERVICES Government Claims Program Fee Waiver Request Packet DGS ORIM 05 (Rev. 05/2016) What is your gross monthly pay, before any payroll deductions? If your income changes each month, the amounts you report should be an average for the past twelve months. Enter the number of persons living in your home who depend on you in whole or in part for support, or on whom you depend in whole or in part for support. List their name, age, relationship to you, and their monthly income in A through F. List all other money you get each month. Specify the source and amount. Include spousal support, child support, parental support, support from outside the home, scholarships, retirement or pensions, social security, disability, workers’ compensation, unemployment, military basic allowance for quarters (BAQ), veterans payments, dividends, interest or royalty, trust income, annuities, net business income, net rental income, reimbursement of job-related expenses, and net gambling or lottery winnings. Add A through F to find your total other income each month. Add (your gross monthly income) plus (your total other income) to find your total monthly income. Add (your gross monthly income), plus A through F (other household members’ income) and (your total other income) to find your total gross monthly household income. List all your payroll deductions. Payroll deductions include items like state and federal taxes, social security (FICA), Medicare, health insurance and retirement contributions Add A through H to determine your total monthly payroll deductions. Subtract (total payroll deductions) from (gross monthly pay) to find your take home pay. Add (your take home pay) to (your total other income) to find your net monthly income. List all the property you own or have an interest in. If you have other personal property such as jewelry, furniture, furs, stocks, or bonds, list them separately on another piece of paper. List all your monthly expenses. Use additional paper if needed. In J specify what your installment payments are for, such as a credit card or bank loan. In K specify what the wage assignment, earnings withholding, or garnishment is for. Add A through M to determine your monthly expenses. If you answer yes to this question, make sure that your name or your claim number is on each sheet you attach. Sign and date the form in this space. Mail this form to: Government Claims Program, P.O. Box 989052, MS 414, West Sacramento, CA 95789-9052. Forms can also be delivered to the Office of Risk and Insurance Management, 707 3rd street, 1st Floor ORIM, West Sacramento, CA 95605. Call the Government Claims Program at 1-800-955-0045 if you have any questions. State of California For Office Use Only AFFIDAVIT FOR WAIVER OF GOVERNMENT CLAIMS FILING FEE AND FINANCIAL INFORMATION FORM Government Claims Program Office of Risk and Insurance Management Department of General Services PO Box 989052, MS 414 West Sacramento,CA 95789-9052 1-800-955-0045 ▪ www.dgs.ca.gov/orim/Programs/GovernmentClaims.aspx Claim No.: I request a fee waiver so that I do not have to pay the $25 fee to file a government claim with the Government Claims Program. I cannot pay any part of the fee. Claimant Information Tel: Last name First Name MI Claim Number (if known): Employment Information My occupation: My employer: Employer’s Mailing Address City State Zip My spouse’s or partner’s employer: Employer’s Mailing Address City State Zip If you are an inmate in a correctional facility, please attach a certified copy of your trust account balance, enter your inmate identification number below and skip to step . Inmate Identification Number: Financial Information I am receiving financial assistance from one or more of the following programs. Yes No If no, proceed to step If yes, check all that apply, then skip to step . SSI and SSP: Supplemental Security Income and State Supplemental Payments Programs CalWORKS: California Work Opportunity and Responsibility to Kids Act Food Stamps County Relief, General Relief (GR), or General Assistance (GA) Number in my household and my gross monthly household income, if it is the following amount or less: Number Monthly family income Number Monthly family income A 1 $969.79 F 6 $2,626.04 B 2 $1,301.04 G 7 $2,957.29 C 3 $1,632.29 H 8 $3,288.54 D 4 $1,963.54 I There are more than 8 people in my family E 5 $2,294.79 Add $331.25 for each additional person. Number: Total Income: If you checked a box in step A through I, complete steps through . Then skip to step . My income is not enough to pay for the common necessities of life for me and the people in my family, and also pay the filing fee. Yes No If yes, fill in steps through . Monthly Income and Expenses My gross monthly pay is: $ My income changes each month: Yes No Number of persons living in my home: Other money I get each month Name Age Relationship Monthly Income Source: A $ A $ B $ B $ C $ C $ D $ D $ E $ E $ F $ F $ My total gross monthly household income: $ Total other money: $ My payroll deductions are: My monthly income: $ A $ E $ B $ F $ C $ G $ D $ H $ My total payroll deduction amount is: $ My monthly take home pay is $ My net monthly income: $ I own or have interest in the following property: A Cash $ C Cars, other vehicles, and boats (List make and year) B Checking and savings (List banks): Property Value Loan Balance 1) $ 1) $ $ 2) $ 2) $ $ 3) $ 3) $ $ 4) $ D Real estate (List addresses) 1) $ $ 2) $ $ My monthly expenses are: A Rent or house payment $ J Installment payments (specify) B Food and household supplies $ 1) $ C Utilities and telephone $ 2) $ D Clothing $ 3) $ E Laundry and cleaning $ Total installment payments: $ F Medical and dental $ K Wage assignment or withholdings $ G Insurance $ L Spousal or child support $ H School, child care $ M Other: I Transportation and auto expenses $ 1) $ 2) $ Total other expenses: $ Total monthly expenses: $ I have attached other information that supports this application on a separate sheet. Yes No Signature Section I declare under penalty of perjury under the laws of the state of California that the information on this form and all the attachments is true and correct. Signature of Claimant Date CALIFORNIA STATE AND FEDERAL COURTS (and state prisons in those court districts) (updated March 2017) California State Superior Courts Alameda County Superior Court 1225 Fallon Street Oakland, CA 94612 Alpine County Superior Court 14777 State Route 89 PO Box 518 Markleeville, CA 96120 Amador County Superior Court 500 Argonaut Lane Jackson, CA 95642 Mule Creek State Prison Butte County Superior Court One Court Street Oroville, CA 95965 Calaveras County Superior Court 400 Government Center Drive San Andreas, CA 95249 Colusa County Superior Court 532 Oak St. Colusa, CA 95932 Contra Costa County Superior Court 725 Court Street Martinez, CA 94553-1233 Del Norte County Superior Court 450 H Street, Room 209 Crescent City, CA 95531 Pelican Bay State Prison El Dorado County Superior Court 495 Main Street Placerville, CA 95667 Fresno County Superior Court 1100 Van Ness Fresno, CA 93724-0002 Pleasant Valley State Prison State and Federal Court List (March 2017) –1 Glenn County Superior Court 526 West Sycamore Street Willows, CA 95988 Humboldt County Superior Court 825 Fifth Street Eureka, CA 95501 Imperial County Superior Court 939 West Main Street El Centro, CA 92243 Calipatria State Prison, Centinela State Prison Inyo County Superior Court 168 North Edwards Street Independence, CA 93526 Kern County Superior Court 1415 Truxtun Avenue Bakersfield, CA 93301 Cal. Correctional Institution, Kern Valley State Prison, North Kern State Prison, Wasco State Prison Kings County Superior Court 1640 Kings County Drive Hanford, CA 93230 Avenal State Prison, CSP-Corcoran, Substance Abuse Treatment Facility Lake County Superior Court 255 North Forbes Street Lakeport, CA 95453 Lassen County Superior Court 220 South Lassen Street Susanville, CA 96130 California Correctional Center, High Desert State Prison Los Angeles County Superior Court (main criminal) 210 W. Temple St. Lancaster, CA 90012 CSP-Los Angeles County Madera County Superior Court 200 South G Street Madera, CA 93637 Central California Women’s Facility, Valley State Prison Marin County Superior Court 3501 Civic Center Dr. PO Box 4988 San Rafael, CA 94913 CSP-San Quentin State and Federal Court List (March 2017) –2 Mariposa County Superior Court 5088 Bullion Street, PO Box 28 Mariposa, CA 95338-0028 Mendocino County Superior Court 100 North State Street, Rm 108 Ukiah, CA 95482 Merced County Superior Court 2260 N Street Merced, CA 95340-3744 Modoc County Superior Court 205 South East Street Alturas, CA 96101 Mono County Superior Court (south county) or Mono County Superior Court (north county) PO Box 1037 PO Box 537 Mammoth Lakes, CA 93546 Bridgeport, CA 93517 Monterey County Superior Court (criminal) 240 Church St Salinas, CA 93901 Correctional Training Facility, Salinas Valley State Prison Napa County Superior Court 825 Brown Street Napa, CA 94559 Nevada County Superior Court 201 Church Street, Suite 7 Nevada City, CA 95959 Orange County Superior Court (criminal) P.O. Box 1138 Santa Ana, CA 92702 Placer County Superior Court 10820 Justice Center Dr. P.O. Box 619072 Roseville, CA 95661 Plumas County Superior Court 520 Main Street, Room 104 Quincy, CA 95971 Riverside County Superior Court (criminal) 4100 Main St Riverside, CA 92501 California Rehabilitation Center, Chuckawalla Valley State Prison, Ironwood State Prison State and Federal Court List (March 2017) –3 Sacramento County Superior Court 720 9th Street Sacramento, CA 95814 CSP-Sacramento, Folsom State Prison San Benito County Superior Court 440 5th Street Hollister, CA 95023 San Bernardino County Superior Court 247 West Third Street San Bernardino, CA 92415 California Institution for Men, California Institution for Women San Diego County Superior Court 220 W. Broadway San Diego, CA 92101 Richard J. Donovan Correctional Facility San Francisco County Superior Court (criminal) 850 Bryant Street Francisco, CA 94103 San Joaquin County Superior Court 222 East Weber Avenue #303 Stockton, CA 95202 Deuel Vocational Institution, California Health Care Facility San Luis Obispo County Superior Court 1035 Palm Street, Room 385 San Luis Obispo, CA 93408 California Men’s Colony San Mateo County Superior Court 400 County Center Redwood City, CA 94063 Santa Barbara County Superior Court PO Box 21107 Santa Barbara, CA 93121 Santa Clara County Superior Court 191 North First Street San Jose, CA 95113 Santa Cruz County Superior Court 701 Ocean Street Santa Cruz, CA 95060 State and Federal Court List (March 2017) –4 Shasta County Superior Court 1500 Court Street Redding, CA 96001 Sierra County Superior Court 100 Courthouse Square PO Box 476 Downieville, CA 95936 Siskiyou County Superior Court 311 4th St. P.O. Box 1026 Yreka, CA 96097 Solano County Superior Court 600 Union Avenue Fairfield, CA 94533 California Medical Facility, CSP-Solano Sonoma County Superior Court 600 Administration Drive, #107J Santa Rosa, CA 95403 Stanislaus County Superior Court PO Box 3488 Modesto, CA 95353 Sutter County Superior Court 1175 Civic Center Blvd. Yuba City, CA 95993 Tehama County Superior Court 445 Pine Street PO Box 170 Red Bluff, CA 96080 Trinity County Superior Court 11 Court Street PO Box 1258 Weaverville, CA 96093 Tulare County Superior Court 221 S. Mooney, Room 303 Visalia, CA 93291 Toulumne County Superior Court 41 West Yaney Avenue Sonora, CA 95370 Sierra Conservation Center Ventura County Superior Court PO Box 6489 Ventura, CA 93006 State and Federal Court List (March 2017) –5 Yolo County Superior Court 1000 Main Street Woodland, CA 95695 Yuba County Superior Court 215 Fifth Street, Suite 200 Marysville, CA 95901 California State Courts of Appeal First District Court of Appeal 350 McAllister Street San Francisco, CA 94102 Pelican Bay State Prison, San Quentin State Prison, California Medical Facility, CSP-Solano Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma counties Second District Court of Appeal 300 Spring Street, Floor 2, North Tower Los Angeles, CA 90013 CSP-Los Angeles County Los Angeles, San Luis Obispo, Santa Barbara, and Ventura counties Third District Court of Appeal 914 Capitol Mall, 4th Floor Sacramento, CA 95814 Mule Creek State Prison, California Correctional Center, High Desert State Prison, Folsom State Prison, Deuel Vocational Institution; CSP-Sacramento, California Health Care Facility Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Yolo, and Yuba counties Fourth District Court of Appeal, Division 1 750 B Street, Suite 300 San Diego, CA 92101 Richard J. Donovan Correctional Facility, Centinela State Prison, Calipatria State Prison Imperial and San Diego counties Fourth District Court of Appeal, Division 2 3389 12th Street Riverside, CA 92501 California Institute for Women, California Institute for Men, California Rehabilitation Center, Chuckawalla Valley State Prison, Ironwood State Prison, California Men’s Colony Inyo, Riverside, and San Bernadino counties Fourth District Court of Appeal, Division 3 P.O. Box 22055 Santa Ana, CA 92702 Orange County State and Federal Court List (March 2017) –6 Fifth District Court of Appeal 2424 Ventura Street Fresno, CA 93721 CSP-Corcoran, Substance Abuse Treatment Facility, Sierra Conservation Center, Pleasant Valley State Prison, California Correctional Institution, Kern Valley State Prison, North Kern State Prison, Wasco State Prison, Central California Women’s Facility, Valley State Prison, Avenal State Prison Fresno, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolumne counties Sixth District Court of Appeal 333 West Santa Clara Street, Suite 1060 San Jose, CA 95113 Correctional Training Facility, Salinas Valley State Prison Santa Clara, Santa Cruz, Monterey and San Benito counties California State Supreme Court California Supreme Court 350 McAllister Street San Francisco, CA 94102 Federal District Courts United States District Court for the Central District, Eastern Division 3470 Twelfth Street Riverside, CA 92501 California Institute for Men, California Institute for Women, California Rehabilitation Center, Chuckawalla Valley State Prison, CSP-Ironwood, Western Division 312 North Spring Street #G-8 Los Angeles, CA 90012 CSP-Los Angeles County, California Men’s Colony United States District Court for the Eastern District, Sacramento Division 501 “I” Street, Suite 4-200 Sacramento, CA 95814 CSP-Solano, California Medical Facility, Mule Creek State Prison, California Correctional Center, High Desert State Prison, Folsom State Prison, Deuel Vocational Institute, California Health Care Facility Fresno Division 2500 Tulare Street #1501 Fresno, CA 93721 CSP-Corcoran, Substance Abuse Treatment Facility, Sierra Conservation Center, Pleasant Valley State Prison, Cal. Correctional Institution, Kern Valley State Prison, North Kern State Prison, Wasco State Prison, Central Cal. Women’s Facility, Valley State Prison, Avenal State Prison State and Federal Court List (March 2017) –7 United States District Court for the Northern District San Francisco Division United States District Court 450 Golden Gate Avenue San Francisco, CA 94102-3483 Pelican Bay State Prison, San Quentin State Prison Oakland Division United States District Court 1301 Clay Street, Suite 400 South Oakland, CA 94612 San Jose Division United States District Court 280 South 1st Street San Jose, CA 95113 Correctional Training Facility, Salinas Valley State Prison United States District Court for the Southern District 221 W Broadway San Diego, CA 92101 Richard J. Donovan Correctional Facility, Centinela State Prison, Calipatria State Prison Federal Court of Appeals Ninth Circuit Court of Appeals U.S. Court of Appeals Building PO Box 193939 San Francisco, CA 94119 United States Supreme Court United States Supreme Court 1 First Street NE Washington, DC 20543 State and Federal Court List (March 2017) –8

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