Jailhouse Lawyer's Handbook - Sentencing and Justice Reform ...

More documents

Recommendations

Info

dismissed or the court grants summary judgment in favor of the defendants. 1. Motion to Alter of Amend the Judgment Your first option is to file a Motion to Alter or Amend the Judgment under Federal Rules of Civil Procedure Rule 59(e). This motion must be filed within ten days after entry of judgment, so you will have to move quickly. Follow the form in Appendix B. Include a legal memorandum that cites the cases from your circuit. Follow the same procedure if the court dismisses your complaint without giving you an opportunity to amend it to “overcome the deficiency.” Also follow this procedure if the court grants a summary judgment to the defendants before you had enough time to submit your declarations. Cite the cases discussed in Section D of this chapter and submit any declarations you have been able to get since you were notified of the summary judgment. 2. How to Appeal the Decision of the District Court If you lose your motion to alter the judgment, you can appeal to the U.S. Court of Appeals for your district. You begin your appeal by filing a Notice of Appeal with the clerk of the district court whose decision you want to appeal. Follow the form in Appendix B. If you moved to alter under Rule 59(e), file your notice within 30 days after the court denied your motion. Otherwise file your notice within 30 days of the day the order or judgment was entered by the district court. The appeals process is governed by the Federal Rules of Appellate Procedure. These rules are supposed to be in your prison library as part of Title 28 of the United States Code Annotated (U.S.C.A). The U.S.C.A. also gives summaries of important court decisions which interpret the Federal Rules of Appellate Procedure. (Chapter Six explains how to use the U.S.C.A. and other law books.) Some of the books listed in Appendix E give more information on the appeals process. If you sued in forma pauperis, you can appeal in forma pauperis, unless the district court finds that your appeal is not taken “in good faith.” If the district court decides this, you have to send to the Appeals Court in forma pauperis papers like those you sent to the district court, except that you should explain the basis of your appeal. Submit these papers within 30 days after you are notified that the district court ruled that your appeal was not in good faith. Soon after you receive a notice that your appeal has been transferred to the Court of Appeals, submit another Motion for Appointment of Counsel. Use the form in Chapter 3, Section C for requesting counsel from the district court, but change the name of the court and state the basis of your appeal. If you have to submit new in forma pauperis papers, send them together with the motion for counsel. Along with your Motion for Appointment of Counsel, submit a Memorandum of Law which presents all your arguments for why the appeals court should reverse the decision of the district court. If the appeals court thinks your appeal has merit, it usually will appoint a lawyer for you. Otherwise you may get a summary dismissal of your appeal. G. PRE-TRIAL DISCOVERY On the other hand, if you have made it past the defendant’s motions for dismissal and / or summary judgment, then there is a better chance that the court will appoint an attorney to assist you. If so, you can use this section of the Handbook to understand what your lawyer is doing, to help him or her do it better and to figure out what you want him or her to do. If you do not have a lawyer, this section will help you get through the next stage on your own – but what you will be able to do will be more limited. The next major activity in your suit will be “pre-trial discovery.” Rules 26- 37 of the Federal Rules of Civil Procedure explain “discovery” tools that either party in a lawsuit can use to get important information and materials from the other party before the case goes to trial. Discovery is very important, because it is a way for you to get the information you will need to win your case. If you don’t have a lawyer at this stage, you will need to spend The Importance of “Discovery” • Uncover factual information about the events that gave rise to your case. • Learn about how prisons in general, and your prison in particular, operate, as long as it is somehow related to your case. • Put the defendants on the defensive by making them spend time and money answering your questions. a lot of time thinking about what facts you will need to prove at trial, and coming up with a plan about how to find out that information. The Southern Poverty Law JAILHOUSE LAWYERS HANDBOOK – CHAPTER FOUR 57
Center’s litigation guide for prisoners, Protecting Your Health & Safety, has a very helpful chapter on developing discovery strategies. You will find information on ordering that book in Appendix E. In most cases, the first step in the discovery process is called a “Rule 26(f) Meeting.” The Federal Rules of Civil Procedure require that the plaintiffs and the defendants get together to talk about the case, the possibility of settlement (when you come to an agreement with the defendants that ends your case before trial), arrange for some exchange of information, and create a discovery plan or schedule. You need to read your district court’s rules, however, because many courts do not require this meeting for pro se inmates. If you don’t need to have a Rule 26(f) meeting, you can start right in on discovery requests. 1. Discovery Tools There are four main discovery tools: depositions, interrogatories, production, and inspection. (You can also request an examination by an outside doctor, under Rule 35). This Handbook gives you only a brief introduction to these techniques. The details of how they work are in the Federal Rules of Civil Procedure. A “deposition” is a very valuable discovery tool. You meet with a defendant or a potential witness, that person’s lawyer, and maybe a stenographer. You or your lawyer ask questions which the “deponent” (the defendant or witness you are deposing) answers under oath. Because the witness is under oath, he or she can be prosecuted for perjury if he or she lies. The questions and answers are tape-recorded or taken down by the stenographer. A deposition is very much like testimony at a trial. In fact, you can use what was said at a deposition in a trial if the person who gave the deposition either (1) is a party (plaintiff or defendant), (2) says something at the trial which contradicts the deposition, or (3) can’t testify at the trial. Despite these benefits, you should BEWARE: a deposition is very hard to arrange from in prison, because it can be expensive, and it involves a lot of people. In the United States District Court For the _____________________ -------------------------------------------x Name of first plaintiff : in the case, et al., Plaintiffs, : PLAINITFF’S : FIRST SET OF : INTERROGAv. : TORIES TO : DEFENDANTS Names of first defendant : in the case, et al., : Civil Action No. __ Defendants : -------------------------------------------x In accordance with Rule 33 of the Federal Rules of Civil Procedure, Plaintiff requests that Defendant [Defendant’s name] answer the following interrogatories under oath, and that the answers be signed by the person making them and be served on plaintiffs within 30 days of service of these interrogatories. If you cannot answer the following interrogatories in full, after exercising due diligence to secure the information to do so, so state and answer to the extent possible, specifying your inability to answer the remainder and stating whatever information or knowledge you have concerning the unanswered portions. These interrogatories shall be deemed continuing, so as to require supplemental answers as new and different information materializes. [List your questions here…and be creative and as detailed as possible. ] If you have a guard brutality case, you may want to ask questions about how long the specific guard has worked at the prison, where he is assigned, what his duties are, what he remembers of the incident, what he wrote about the incident in any reports, whether he has ever been disciplined, etc. It is also a good idea to take the opportunity to try to find out who else might be a helpful witness. You could ask the defendant to: “Interrogatories” are written questions which must be answered in writing under oath. Under Fed.R.Civ.P. 33, you can send up to 25 questions to each of the other parties to the suit. A person who is just a witness, and not a party, cannot be made to answer interrogatories, though he or she can voluntarily answer questions in an affidavit. To get an affidavit from someone in another prison, you may need a court order. You can use the following example to write interrogatories of your own. State the name and address or otherwise identify and locate any person who, to you or your attorney’s knowledge, claims to know of facts relevant to the conduct described in these interrogatories. JAILHOUSE LAWYERS HANDBOOK – CHAPTER FOUR 58
Page 1 and 2:
Jailhouse Lawyer’s Handbook How t
Page 3 and 4:
JAILHOUSE LAWYER’S HANDBOOK Table
Page 5 and 6:
APPENDIX A: GLOSSARY OF TERMS......
Page 7 and 8:
prisoners; and to have access to an
Page 9 and 10:
5. Keeping Up to Date and Learning
Page 11 and 12: the public eye and had some positiv
Page 13 and 14: Chapter Two: Planning Your Section
Page 15 and 16: elief in the federal courts. While
Page 17 and 18: number is not on their list of ten
Page 19 and 20: violated the constitution when they
Page 21 and 22: your belief is both religious and s
Page 23 and 24: another law that protects prisoners
Page 25 and 26: courts use a less strict standard o
Page 27 and 28: U.S. 460 (1983), the most important
Page 29 and 30: deprived of a basic human need. Sub
Page 31 and 32: Courts generally agree that the tes
Page 33 and 34: (2) by showing that the regulation
Page 35 and 36: (3) The threat of harm that you fac
Page 37 and 38: to your own and see what the court
Page 39 and 40: orders pending against the prisoner
Page 41 and 42: Chapter Three: How to Start Your La
Page 43 and 44: your prison is in. You do not have
Page 45 and 46: that makes sense - by time, date, o
Page 47 and 48: defendant was involved in the viola
Page 49 and 50: : Civil Action No. : --------------
Page 51 and 52: The courts have not yet determined
Page 53 and 54: WRITE STATEMENT HERE I declare unde
Page 55 and 56: o does not sign your TRO. (The quot
Page 57 and 58: submit a Declaration for Entry of D
Page 59 and 60: If the judge does decide to dismiss
Page 61: major issue. Note: If you defeat t
Page 65 and 66: could possibly even include informa
Page 67 and 68: 6. Their Discovery of Your Informat
Page 69 and 70: For a few different takes on these
Page 71 and 72: as a lawyer. Gometz v. Henman, 807
Page 73 and 74: Chapter Six: The Legal System and L
Page 75 and 76: B. LEGAL CITATIONS - HOW TO FIND CO
Page 77 and 78: that what the writer has written is
Page 79 and 80: C. LEGAL WRITING Here is where you
Page 81 and 82: Complaint: The legal document filed
Page 83 and 84: Jury: A group of people called to h
Page 85 and 86: Statute of limitations: A law that
Page 87 and 88: APPENDIX C: Important Constitutiona
Page 89 and 90: cover letter, briefly introducing y
Page 91 and 92: United States “without regard to
Page 93 and 94: You may also want to try writing to
Page 95 and 96: 880 Front Street, Suite 4290 San Di
Page 97 and 98: Statesboro Division: Bulloch, Candl
Page 99 and 100: US District Court for the Northern
Page 101 and 102: 399 Federal Building 110 Michigan S
Page 103 and 104: Buffalo Division: Allegany, Cattara
Page 105 and 106: U.S. Courthouse 601 Market Street,
Page 107 and 108: United States District Court for th
Page 113:
How do I place an order? Complete a
show all

Jailhouse Lawyer's Handbook - Sentencing and Justice Reform ...

Create successful ePaper yourself

Delete template?

Save as template?