|Federal Court Prison Litigation Project Handbook Part I||
Last updated: April 2007
Under the General Rules of the United States District Court for the Northern District, “every member of the trial bar shall be available for appointment by the court to represent or assist in the representation of those who cannot afford to hire a member of the trial bar.” U.S. Dist. Ct. N.D. Ill. Local R. 83.11(g) (emphasis added). In part because the court is aware of the difficulties facing appointed counsel in these cases, it has established this Project. Rule 83.11(g), Duty to Accept Appointments, Rule 83.35(b), Creation of Pro Bono Panel, and Rule 83.37, Duties and Responsibilities of Appointed Counsel, should be carefully reviewed to determine your duties and responsibilities as appointed counsel. The court will permit relief from appointment only for the grounds enumerated in Rule 83.39. Continued representation on appeal is not required. See U.S. Dist. Ct. N.D. Ill. Local R. 83.37. Remember, the court can sanction trial bar members for refusing to accept appointment by removing their trial bar membership.
Department of Corrections Rules & Procedures
Director of Illinois Department of Corrections
Cook County & Federal Pre-Trial Detention Facilities
Descriptions of Correctional Institutions
Getting to the Institution (Address & Telephone)
Directions to Illinois Prisons
Sample Envelope Specially Marked Confidential
Sample Letter to Client
If you do not have your client’s current institutional address, you may obtain his or her current location by contacting:
You will need your client’s name and institution ID number. If you do not have the ID number, then you will need the date of birth and a social security number to obtain information. ID numbers remain the same throughout the State system, but are different from the Cook County Department of Corrections numbers.
Most suits brought by state or county prisoners challenging prison policies, practices, and conditions of confinement are brought under Section 1983 (42 U.S.C. 1983). Section 1983 requires the plaintiff to show that someone has deprived him or her of a federally protected right and that the person or persons depriving him or her of that right acted under color of state law. Prisoners often allege either that they have suffered cruel and unusual punishment or a deprivation of liberty or property without due process of law.
Complaints filed by prisoners pro se are held to a less stringent standard than complaints drafted by a lawyer. See Alvarado v. Litscher, 267 F.3d 648, 650 (7th Cir. 2001). However, because counsel is a licensed attorney, all subsequent pleadings will not receive such generous readings from the court. Be sure the claim is properly supported by the law. If you do not do preliminary research to verify the validity of the claim prior to filing pleadings, you could be violating Federal Rule of Civil Procedure 11 (Fed. R. Civ. P. 11). The fact that the court has appointed you does not, in itself, mean that the client has a supportable non-frivolous claim properly grounded in the law.
You must determine at the outset whether to file an amended complaint if, for example, the complaint is fatally prolix, issues should be added, the complaint fails to state a claim, or the prisoner has either sued the wrong party or in the right party but in the wrong capacity (individual or official). You should discuss strategy at this initial stage and every other stage of the case with your client. Therefore, before you visit your client, you should research the law underlying the allegations in the complaint and be prepared to discuss the merits of the case.
Check immediately to see if there are statute of limitations issues. There is a two-year statute for all jail and prisoner civil rights cases. If the names of any defendants are unknown, discover them immediately because the court will not allow relation back to the time of filing the complaint. See Statute of Limitations and "Relation Back."
Before you file any pleadings, you must attempt to verify the facts alleged in the complaint through discovery of institutional documents, letters, and other sources. For state prisoners, you will need an Illinois Department of Corrections (“IDOC”) release form in order to obtain documents in your client’s institutional files. See Forms. Ask your client if he or she has already filed a grievance through the institution’s grievance procedure (Footnote 1). There may be records in his or her file and elsewhere relevant to the allegations in the complaint. You will want copies of them. To obtain documents, make a request for production of documents to opposing counsel.
You should explore the possibility of settlement at this early stage of litigation. Look at the institution’s administrative review process and think about negotiating a settlement with the defendant that is acceptable to your client. Staff of the Correctional Law Project can discuss with you other cases dealing with similar problems arising at the same or other institutions.
Once you have determined the legally cognizable subject matter raised by the complaint (and there will be some cases where you cannot readily decipher this information from the pro se pleadings) and conducted preliminary research, prepare for the client interview at the correctional institution. See Preparing to Visit with Your Client.
In prisoner suits, defendants are generally federal, state, or county employees. Different laws of sovereign immunity apply to each group. For discussions of absolute and qualified immunities, see Qualified or Good Faith Immunity and Absolute Immunity.
Generally, the following rules apply to each group:
In order to receive documents from a State prisoner’s institutional files, take an Authorization for Release of Information form with you to the client interview for your client to sign. See Forms. Ask the litigation coordinator if there is a special form. Normally she or he will fax it to you. Follow its directions carefully. Find out which department of the prison has the particular files you desire, the name and extension of the person in charge, and try to deal with that person directly. Expect delays. A gentle “nudge” by fax or telephone will often help.
In State prisons, most inmate information is usually kept in each prisoner’s Master Record File. However, records are also kept in “Clinical Records” files, “Medical Records” files and other files. Discovery requests should be broad enough to include all inmate records. Samples are available from the Project pleadings bank.
If it becomes necessary for your incarcerated client or an incarcerated witness to be brought to court for a hearing, you must prepare a petition for a writ of habeas corpus ad testificandum and the writ itself. See Forms. You must present the petition and writ, plus three copies of the writ to the clerk of the court, well in advance of the hearing at which the prisoner is to be produced. After a hearing on the petition, the judge will ordinarily grant the petition and the clerk will issue the writ ordering the warden to produce the prisoner on the specified date at the specified location. The United States Marshal will serve it on the prison warden. It is your responsibility to follow through with the United States Marshals Office to insure that service is effected. The correctional institution will undertake the cost of transporting the prisoner to federal court. See Pennsylvania Bureau of Correction v. United States Marshals Serv., 474 U.S. 34, 106 S. Ct. 355, 88 L. Ed. 2d 189 (1985) (holding that habeas corpus statutes do not empower a federal court to order the United States Marshals Service to bear the expense of transporting state prisoners to federal court).
Writs will generally be ordered for trial or testimony only, not for consultation with counsel. The court prefers a one day limit to the period covered by the writ. If the trial will be longer the writ should so specify. The number of trial days will determine whether your client remains at the Federal Metropolitan Correctional Center during trial or at a state or county facility. Each facility has different procedures for providing clothes for court. You should specify in the writ whether clothes are to be provided, and check the policy at each institution.
Plan your visit to the correctional institution in advance; otherwise you may have to wait several hours to see your client. To make arrangements for your visit:
This first call is critical for a number of reasons:
- To make sure your client is still at the same prison. Prisoners are often moved with little or no notice. Your client may not have not had enough time (or did not think) to advise you of the transfer.
- Each prison has its own methods for setting up prison visits. Some require written requests, identifying the prisoner and registration number and the date and expected time of the visit. Some will accept telephone requests for a visit. Some require twenty-four hours notice and some, especially the new “Super Max” prison at Tamms, Illinois, require seven days written notice (Footnote 2).
In some instances, you will coordinate the visit with a “litigation coordinator.” In other instances you may be referred to a counselor assigned to the prisoner’s unit. Generally, these individuals are helpful and cooperative, but it is wise to be cordial, diplomatic and patient.
- You should ask about the best time to arrive at the prison to see your client. Depending on your client’s classification and the particular prison, it may take time to arrange the client’s movement to the visiting area when you arrive. See Housing Classifications for Correctional Institutions. However, a good rule to follow is to arrive at the prison at the very earliest time you can (Footnote 3).
- Ask where the visit will be held. Where the prison does not have a lot of visitors, the visit (if permitted) may be more comfortable in the visiting room for all visitors. Privacy can be maintained under these circumstances and the atmosphere is often not as stifling and claustrophobic as many lawyer visiting rooms.
- Plan to visit the prison as early as is permissible. Some prisons, such as Stateville, Joliet, and Pontiac (and even Menard in Chester), have many civilian visitors. A lawyer must wait in line to register like other visitors; as a consequence, a visit later in the morning or early afternoon can result in a long wait. Also, prisons have “count” times (often at 7:00 a.m., 11:00 a.m., and later in the afternoon), at which times correctional officers must account for every prisoner. Generally, there is no prisoner movement until the count checks out. If you arrive in the middle of a count, you may have a long wait to see your client.
- As indicated earlier, you should know precisely where your client is located in the prison, such as in segregation, protective custody, or the hospital. This knowledge will help facilitate the visit in IDOC prisons and is a necessity in some prisons, e.g., the Cook County Jail, which have many different buildings and numerous visiting areas. If you don’t know your client’s housing unit, when you make the call to arrange the visit, ask for that information, and directions to the appropriate visiting area. Be aware that as the attorney, you may not have to be on the inmate’s visiting list, though this is not true for all prisons and for all populations at each prison. For example, at Tamms maximum security you must be on the visiting list.
In your letter, advise the client that you would like to discuss the case and if questions remain after the visit, the client may call you collect as frequently as you, the attorney, deem appropriate. See Reimbursement of Costs and Expenses for Appointed Counsel. Note exactly how envelopes to and from the correctional institution must be marked to ensure confidentiality of attorney-client communications. Also be sure to include the inmate ID number in the address. Otherwise the letter will be returned to you. See Sample Envelope Specially Marked Confidential. Explain to your client that his or her letters to you must be marked in the same way.
- Current Attorney Registration card; and
- Photo identification (e.g., Driver’s License).
Review your file before entering the prison. Be sure to bring all that you need and no more. Most prisons will require that you put unnecessary items in a locker, including your wallet, purse and car keys. Be prepared and relaxed for a thorough search, including your shoes and so on. No body cavity search will be required.
To initiate a call to a prisoner-client, much the same procedure is followed for an attorney visit. Speak to the litigation coordinator, identify the client, state that you are an attorney and that you wish to make a call. You will be asked if you desire a “secure” line — one on which prison officials cannot listen. Use your judgment; and if there are any doubts, ask for a secure line. But in any event, be careful what you put in writing or say over the telephone. Lines are not always “secure” and cells are subject to sudden searches where attorney-client privileges are not always observed.
Generally speaking, the call cannot be made until at least the day following the call with the litigation coordinator. It will be collect and at a designated time (hopefully). You must be in your office ready to accept the call. If you do not have direct dialing, advise the office operator that the call is coming so that he or she can accept it. Often the call will be mechanical in nature and won’t wait for you to be put on the line (Footnote 5).
Prisoners may only make collect telephone calls. They are allowed only a very limited number of telephone calls each month. In emergencies, if you need to speak to your client, you may call the prison and ask to speak to his or her counselor (ask your client for the counselor’s name at the beginning of your representation). The counselor can usually arrange to have your client call you, depending on the particular prison.
Each correctional institution houses prisoners with different security classifications, usually known as minimum, medium, and maximum. Some institutions also operate an honor system known as the “farm,” the least restrictive classification for prisoners.
Institutions also designate categories of prisoners as follows:
It is important to know the housing classification of your client to determine what administrative procedures placed him or her there and what restrictions may have been imposed, such as the inability to make telephone calls to you, restricted use of the law library, limited exercise, etc.
Check the administrative rules of your client’s institution for the appropriate sections on classification and, for added assistance, speak with the prison’s litigation coordinator.
The prisons and jails of Illinois have certain mandatory entrance procedures for all persons, including attorneys. Although those procedures may vary from institution to institution, the purpose is the same: to prevent any contraband from entering. Generally, the procedures consist of:
NOTE: You may not enter any institution with cigarettes, aspirin, cold medication, or gum.
Now you are ready to meet your client. The prisoner may come to the interview handcuffed and shackled (legs chained together). Prisoners on death row, or in disciplinary status (known as segregation) will be restrained in this fashion, other prisoners will not.
You should plan on about one hour for the initial visit. You will be allotted as much time as you need, barring an institutional emergency. Your client may want to tell you about other institutional or family problems regarding which you may not be able to assist him or her.
Let your client tell you in his or her own words what the case is about. Develop a relationship of mutual trust and respect. Let your client know that you will inform him or her promptly about all significant developments in the case and that he or she may call you collect from time-to-time as questions arise. Explain to the client your need to investigate the case pursuant to Fed. R. Civ. P. 11 and ask for his or her ideas about documents and people with information about the case. Find out what other civil actions the client may have filed. Other conditions of confinement troubling the client may be related to this case. You might consider filing an amended complaint to include these issues.
Find out if the client is about to be released and if so, get the address and telephone number. Also be aware that prisoners are frequently transferred to other prisons without notice. Be sure to tell your client to inform you as soon as a transfer occurs. Explain in appropriate terms that you will consult the client’s opinion about legal matters, but that you must make the ultimate legal decisions in accord with the requirements of Rule 11. It is vitally important that the client understand your respective roles, particularly because your client is in a closed institution and has limited access to you and to the outside world. Make sure your client understands how you will proceed with the case, with what matters you require consultation with him or her, and how frequently you will send status reports.
After the initial client interview, appointed counsel should maintain regular contact with the client. Clients in “closed institutions” are uniquely unable to obtain information about their lawsuits. Therefore, you should send regular status reports to your client. By sending copies of pleadings and periodic letters about the case and by allowing the client to telephone periodically if he or she has questions, you can alleviate your client’s fear of being “left out,” while at the same time maintaining his or her trust.
The importance of maintaining these attorney-client ties cannot be overemphasized. Occasionally,in court appointed cases where such contact has been lost, settlement negotiations have fallen apart because of the client’s lack of trust in his or her attorney. To avoid this possibly disastrous consequence, make sure in the initial interview that the client understands your role in the case, and maintain regular client contact throughout the litigation.
You and your client should be aware that if your client receives a monetary damage award, either through trial or through settlement, state agencies may seek reimbursement for money the state paid as child support, crime victims’ compensation, or other obligations.
For a list of organizations in your area that may be able to help you, enter your zip code.
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