Pro Se Plaintiff seeking advise and direction in civil suit

[KarmasPuppy]

I am a pro se plaintiff attempting to prosecute a civil claim against a Massachusetts law enforcement for violation of mhy civil rights. I have attempted to secure counsel, however due to my financial means I am unable to. I understand the the process is lengthy, financially straining and the chance of recovery is slim - however I am willing to do what it takes to see that this right is wronged.


BACKROUND OF THE FACTS:

I was formerly a prisoner incarcerated in the custody of the Suffolk County Sheriffs Department, for a non-violent motor vehicle violation. (Operating on a revoked license). There was a pervasive risk of harm to my personal saftey, and the sheriffs department was aware of it and house me accordingly. The housing cell I was in had a defective locking mechanisim, which permitted the door to be manipulated and opened by anyone, including other prisoners, without a key and using an item a simple as a deck of cars or hair pick. The sheriffs department was aware of this, through my filing of institutional greivances and verbal conversations with officers. The sheriffs department failed to correct this defect or evaluate it in a timely manner. (Infact before the assault it was never fixed). Three months after the sheriffs department was first alerted to this issue, a prisoner manipulated the locking mechanisim and entered mhy cell, at a time the unit was locked down, and assaulted me - causing me to be hospitilized and reviewed for surgery.


A LITTLE ABOUT ME:

I hear the old adge saying is that a man who has himself as a client, has a fool for a lawyer. lol. I not only agree, but wish that wasnt the situation. I would like to consider myself decent at research and writting, or maybe speaking on my own behalf. Or maybe I enjoy it so much that I think Im more decent than I am. lol Either way, my mind tends to wander and i occasionally need to be set in the right path. And not to mention at this point I am really feeling like I am over my head. I would be interested in speaking with anyone who could have something to offer to me as far as advise or informal counseling. I have downloaded all the documents off of PACER and EF/ECF to share and have no problem showing anything via email or via google docs.

https://docs.google.com/folder/d/0B6U0vEARt3MaUXFlMUZWcDN4ek0/edit

I am asking that anyone who is interested, please feel free to contact me as soon as possible. I am not going to get on here often, but also please feel free to leave any comments on here.

How many more threads are you going to start on this same subject?
https://forum.freeadvice.com/civil-rights-discrimination-law-101/pro-se-plaintiff-seeking-advise-direction-civil-suit-584486.html
https://forum.freeadvice.com/dangerous-defective-products-17/pro-se-plaintiff-seeking-direction-advise-584484.html
https://forum.freeadvice.com/civil-litigation-46/pro-se-plaintiff-seeking-advise-direction-civil-suit-584483.html#post3104127

Nobody on this board is going to email you anything. Posting an email address on a public forum is calling for spam.

 

[Mass_Shyster]

I am a pro se plaintiff attempting to prosecute a civil claim against a Massachusetts law enforcement for violation of mhy civil rights. I have attempted to secure counsel, however due to my financial means I am unable to.

If you have a valid Civil Rights claim, you should not have to pay an attorney up front. If no Civil Rights lawyers are willing to take the case on contingency, it's a pretty good indication that you will not prevail.

Contact the ACLU for the names of some Civil Rights attorneys in your area.

 

[ecmst12]

Other threads reported, if anyone has any advice, use this thread. I agree that there is no chance in hell of getting past summary judgement without a lawyer, and being ordered to pay the department's legal fees is a possibility.

 

[Anyone2012]

Sorry for the numerous posts, I was trying to gain maximum exposure. Noted. As a legally untrained party, i am not to sure how much of a claim there is - I think it seems clear cut, but then again note my legally untrained mind: 1. the sheriffs department placed me in a cell with a defective locking mechanisim, 2. i alerted them to this issue, and 3. i was assaulted by another prisoner by his manipulation of this defective locking mechanisim. Again, IDK.

I sued them for cruel and unuasual for the emotional distress and mental anquish that they kept me in throught the constant state of fear in the 90 plus days between when i first alerted them and when i was assulted.

 

[latigo]

Other threads reported, if anyone has any advice, use this thread. I agree that there is no chance in hell of getting past summary judgement without a lawyer, and being ordered to pay the department's legal fees is a possibility.

From professional experience I agree that any layperson would likely flounder if he or she were to attempt to prosecute a Section l983 claim without benefit of a trial lawyer experienced in civil rights litigation.

However, given the jail-keepers' negligence and his injuries resulting from that neglect (as described), I have to disagree with your conclusion that the OP would be at muich risk of the court awarding attorney fees to the persons or agencies defending his law suit should he not prevail.

It is true that the Civil Rights Attorney's Fees Awards Act of 1976 (42 U.S.C.A. § 1988) grants the courts the discretion of awarding award attorney fees to the prevailing party in civil rights litigation (and others).

However - and obviously to avoid discouraging people from pursuing legitimate claims under the Civil Rights Act of l866 - that discretionary right to award attorney fees to the prevailing party has been defined/limited by the United States Supreme Court to apply only when the plaintiff’s cause of action is found to be so frivolous as lacking legal merit. [*]

Taking it at face I don't see how the court could reasonably regard the OP’s claim as being frivolous.

And speaking of taking things at face value, that is precisely how the court must resolve a defendant’s motion for summary judgment.

In other words, assess the allegations in a light most favorably to the claimant. And if proved, determine whether or not the claimant would then be entitled to relief as a matter of law.

______________________


[*]See: Christiansburg Garment Co. vs. EEOC, U. S. Supreme Court 434 U. S. 412 and Fox vs Vice, U. S. Supreme Court Case No. 10-114 (6/2011)

[quote]“Federal law authorizes a court to award a reasonable attorney’s fee to the prevailing party in certain civil rights cases. See 42 U. S. C. §1988. We have held that a defendant may receive such an award if the plaintiff’s suit is frivolous. Fox vs. Vice, supra[/quote]

 

[tranquility]

While I agree 1988 attorney fees are unlikely against the plaintiff (as it defeats the purpose of the 1983 lawsuit), it seems there is a motion for failure to state a claim. When you read how the complaint went and the motion for failure to state, it looks like there will have to be an amended claim for anything to stick. Even taking the OP on his facts alleged, there seems many judgment calls here. (https://docs.google.com/folder/d/0B6U0vEARt3MaUXFlMUZWcDN4ek0/edit )

Negligence is not a civil rights issue.

There could be something here, but it would take someone well conversant in such suits to get it out there. It could very well be "frivolous" at this time. The state is not going after the OP because of the situation, not the claim.

 

[latigo]

. . . . Negligence is not a civil rights issue. . . . .

What?

Gross negligence of the persons responsible for the security of inmates is not actionable under Section l983? That it cannot result in the deprivation of “rights, privileges secured by the Constitution”? Humbug!

My associated counsel at the time and I recovered a 6 figure award in federal court for the wrongful death of an inmate due to the failure of the county jail attendants to properly maintain and monitor in place security measures!

I certainly hope that the mother and father of their 17 year old son (incarcerated for failure to pay a traffic ticket] who was bludgeoned and pummeled to death over a period of 16 hours by two felon mates won't be required to return the money.

And I don’t recall the team of lawyers dressed in Emporio Armani suits representing the Sheriff and County raising the defense you’ve mentioned. Even though there were hundreds of pages of briefing submitted! Mostly on the issue of custom and usage.

Also I secured a sizeable settlement in another Section l983 wrongful death action against another county in which the gross negligence of the bus driver transporting prisoners resulted in serious injuries to his chained passengers. In the hiring the county and sheriff failed to notice or overlooked the employed driver’s past driving history which was replete with traffic convictions, including a DUI and reckless.

Amen

 

[Anyone2012]

Latigo, Id be interested in pulling those cases on PACER if you happen to have docket numbers handy...

 

[tranquility]

What?

Gross negligence of the persons responsible for the security of inmates is not actionable under Section l983? That it cannot result in the deprivation of �rights, privileges secured by the Constitution�? Humbug!

My associated counsel at the time and I recovered a 6 figure award in federal court for the wrongful death of an inmate due to the failure of the county jail attendants to properly maintain and monitor in place security measures!

I certainly hope that the mother and father of their 17 year old son (incarcerated for failure to pay a traffic ticket] who was bludgeoned and pummeled to death over a period of 16 hours by two felon mates won't be required to return the money.

And I don�t recall the team of lawyers dressed in Emporio Armani suits representing the Sheriff and County raising the defense you�ve mentioned. Even though there were hundreds of pages of briefing submitted! Mostly on the issue of custom and usage.

Also I secured a sizeable settlement in another Section l983 wrongful death action against another county in which the gross negligence of the bus driver transporting prisoners resulted in serious injuries to his chained passengers. In the hiring the county and sheriff failed to notice or overlooked the employed driver�s past driving history which was replete with traffic convictions, including a DUI and reckless.

Amen

Negligence is now considered "gross negligence"? Hmm...

The Supremes say:
BAKER v. McCOLLAN 443 U.S. 137 (1979)

Last Term, in Procunier v. Navarette, 434 U. S. 555 (1978), we granted certiorari to consider the question whether negligent conduct can form the basis of an award of damages under 42 U. S. C. � 1983. The constitutional violation alleged in Procunier was interference on the part of prison officials with a prisoner's outgoing mail. The complaint alleged that the prison officials had acted with every conceivable state of mind, from "knowingly" and in "bad faith" to "negligently and inadvertently." We granted certiorari, however, only on the question "[w]hether negligent failure to mail certain of 139*139 a prisoner's outgoing letters states a cause of action under � 1983." 434 U. S., at 559 n. 6.

Following oral argument and briefing on the merits, the Court held that since the constitutional right allegedly violated had not been authoritatively declared at the time the prison officials acted, the officials were entitled, as a matter of law, to prevail on their claim of qualified immunity. Quoting from Wood v. Strickland, 420 U. S. 308, 322 (1975), we observed: "Because [the prison officials] could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, [they] did not act with such disregard for the established law that their conduct `cannot reasonably be characterized as being in good faith.'" 434 U. S., at 565. It was thus unnecessary to reach the question on which certiorari had been granted.

In the instant case, the Court of Appeals for the Fifth Circuit saw the focal issue as whether petitioner Baker, the sheriff of Potter County, Tex., had negligently failed to establish certain identification procedures which would have revealed that respondent was not the man wanted in connection with the drug charges on which he was arrested. Accordingly, it withheld decision until our opinion in Procunier was handed down. Finding no guidance in Procunier on the question whether an allegation of "simple negligence" states a claim for relief under � 1983, the Court of Appeals proceeded to answer that question affirmatively, holding that respondent was entitled to have his � 1983 claim presented to the jury even though the evidence supported no more than a finding of negligence on the part of Sheriff Baker. We granted certiorari. 439 U. S. 1114 (1979).

Having been around this track once before in Procunier, supra, we have come to the conclusion that the question whether an allegation of simple negligence is sufficient to state a cause of action under � 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform 140*140 answer across the entire spectrum of conceivable constitutional violations which might be the subject of a � 1983 action. In any event, before the relationship between the defendant's state of mind and his liability under � 1983 can be meaningfully explored, it is necessary to isolate the precise constitutional violation with which he is charged. For � 1983 imposes civil liability only upon one

"who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . ."

The first inquiry in any � 1983 suit, therefore, is whether the plaintiff has been deprived of a right "secured by the Constitution and laws." If there has been no such deprivation, the state of mind of the defendant is wholly immaterial.[1] We think that respondent has failed to satisfy this threshold requirement of � 1983 and thus defer once again consideration of the question whether simple negligence can give rise to � 1983 liability.

But, more on point (And probably pointing out the window of your victories absent this "gross" addition):
DANIELS v. WILLIAMS 474 U.S. 327 (1986)

In Parratt v. Taylor, we granted certiorari, as we had twice before, "to decide whether mere negligence will support a claim for relief under � 1983." 451 U. S., at 532. After examining the language, legislative history, and prior interpretations of the statute, we concluded that � 1983, unlike 330*330 like its criminal counterpart, 18 U. S. C. � 242, contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right. Id., at 534-535. We adhere to that conclusion. But in any given � 1983 suit, the plaintiff must still prove a violation of the underlying constitutional right; and depending on the right, merely negligent conduct may not be enough to state a claim. See, e. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977) (invidious discriminatory purpose required for claim of racial discrimination under the Equal Protection Clause); Estelle v. Gamble, 429 U. S. 97, 105 (1976) ("deliberate indifference" to prisoner's serious illness or injury sufficient to constitute cruel and unusual punishment under the Eighth Amendment).

In Parratt, before concluding that Nebraska's tort remedy provided all the process that was due, we said that the loss of the prisoner's hobby kit, "even though negligently caused, amounted to a deprivation [under the Due Process Clause]." 451 U. S., at 536-537. JUSTICE POWELL, concurring in the result, criticized the majority for "pass[ing] over" this important question of the state of mind required to constitute a "deprivation" of property. Id., at 547. He argued that negligent acts by state officials, though causing loss of property, are not actionable under the Due Process Clause. To JUSTICE POWELL, mere negligence could not "wor[k] a deprivation in the constitutional sense." Id., at 548 (emphasis in original). Not only does the word "deprive" in the Due Process Clause connote more than a negligent act, but we should not "open the federal courts to lawsuits where there has been no affirmative abuse of power." Id., at 548-549; see also id., at 545 (Stewart, J., concurring) ("To hold that this kind of loss is a deprivation of property within the meaning of the Fourteenth Amendment seems not only to trivialize, but grossly to distort the meaning and intent of the Constitution"). Upon reflection, we agree and overrule Parratt to the extent that it states that mere lack of due care by a state 331*331 official may "deprive" an individual of life, liberty, or property under the Fourteenth Amendment.

 

[tranquility]

Latigo, Id be interested in pulling those cases on PACER if you happen to have docket numbers handy...

First, read the second Supreme Court citation I gave. You will find some troubling issues you need to resolve. (Especially look to Justice Stevens concurrence.) For a discussion on all the problems with your suit, you should review the discussion in Jolly v. Klein, 923 F. Supp. 931 (S.D.Tex. 1996). While the issues are not the same, many of the same errors you made are pointed out there.

Info edit:
I think you made a tactical error by filing in federal court. If the state would have removed to federal, your state law claims could still be heard and that is where I'd guess your best chance would be had. (At least from what I know.) You're getting the 11th amendment sovereign immunity claim argument against your state law claims from filing directly in federal court.

 

[quincy]

. . . My associated counsel at the time and I recovered a 6 figure award in federal court for the wrongful death of an inmate due to the failure of the county jail attendants to properly maintain and monitor in place security measures!

I certainly hope that the mother and father of their 17 year old son (incarcerated for failure to pay a traffic ticket] who was bludgeoned and pummeled to death over a period of 16 hours by two felon mates won't be required to return the money. . . .

. . . Also I secured a sizeable settlement in another Section l983 wrongful death action against another county in which the gross negligence of the bus driver transporting prisoners resulted in serious injuries to his chained passengers. In the hiring the county and sheriff failed to notice or overlooked the employed driver�s past driving history which was replete with traffic convictions, including a DUI and reckless.

I, like MacDonald.T., would be interested in reading these cases you were involved in, latigo, as they seem especially on point. I didn't realize you were an attorney.

I already read through the cases tranquility cited.

Timothy, in looking for help with your suit, did you ever contact Harvard's Prison Legal Assistance Project (PLAP)? This organization does not handle criminal cases and cannot help you with your civil action (PLAP only represents inmates in Massachusett state prisons), but they may be able to direct you to no-or-low cost legal assistance in your area. It wouldn't hurt to call to find out (617-495-3127). And Stevef's suggestion to contact the ACLU is a good one.

Good luck.

 

[tranquility]

The federal issue here will be substantive due process. A failure to protect case in the 1st circuit is Calderon-Ortiz v. Laboy-Alvarado, 300 F.3d 60 (1st Cir. 2002). It will show the basic standard and a bunch of cases to look at for the level of the mental state you will have to plead.

 

[justalayman]

You guys need to read his complaint before hopping on his bandwagon.


https://docs.google.com/folder/d/0B6U0vEARt3MaUXFlMUZWcDN4ek0/edit?pli=1


he isn't claiming negligence. He is claiming conspiracy to cause cruel and unusual punishment. The claim is based on his cell door not being secure which allowed another inmate to come in and whomp on him. He claims he sent grievances to whomever they are supposed to be sent to but the jail denies their existence.


OP has entered copies of the grievances as evidence. I do not know if they are self duplicating or not. That is the only way the claims made would be possible though. The prison system denies ever having received the grievances.

 

[Anyone2012]

You guys need to read his complaint before hopping on his bandwagon.


https://docs.google.com/folder/d/0B6U0vEARt3MaUXFlMUZWcDN4ek0/edit?pli=1


He claims he sent grievances to whomever they are supposed to be sent to but the jail denies their existence.


OP has entered copies of the grievances as evidence. I do not know if they are self duplicating or not. That is the only way the claims made would be possible though. The prison system denies ever having received the grievances.

The grievances will of course be disputed by the sheriffs department, however as far as that is concerned - the mailbox rule will prevail on that. Wheather or not they received them is not my concern, nor will that become a prevailing matter in court - I just have to demonstrate that I placed them in the mailbox, and the "eye in the sky" will be my witness as far as that is concerned.

 

[tranquility]

You guys need to read his complaint before hopping on his bandwagon.


https://docs.google.com/folder/d/0B6U0vEARt3MaUXFlMUZWcDN4ek0/edit?pli=1


he isn't claiming negligence. He is claiming conspiracy to cause cruel and unusual punishment. The claim is based on his cell door not being secure which allowed another inmate to come in and whomp on him. He claims he sent grievances to whomever they are supposed to be sent to but the jail denies their existence.


OP has entered copies of the grievances as evidence. I do not know if they are self duplicating or not. That is the only way the claims made would be possible though. The prison system denies ever having received the grievances.

I read the complaint. It was baloney and not in a format to bring knowledge of what he claims. It shows the problem of pro pers and the failure to follow the format of those who are successful. How hard does he expect the court to figure out the specific issues? Competent claims lay out everything for the lazy or uninterested. The OPs is a mishmash of facts with the hope someone decides the facts add up to something bad. Even if we assume all the grievances were received (I agree when we get to fact finding this will be a problem.) so what? A prisoner complaint about something, how unusual.

As to conspiracy, he claims nothing of the sort. He supposes. Supposition, even if we take his facts as true, does not make a conspiracy. If it does, the current President is in a lot of trouble.

Look again to the cases cited as to what he needs to claim.

He needs to objectively and sufficiently describe a serious deprevation that posed a substantial risk of harm. I don't even see any facts (beyond a bare statement of a hearing and special custody) regarding that risk. Not only was the required not pleaded in a way to point it out to an overworked clerk, but also he has not plead with specifics any of those facts. For this reason, along with many others, I suspect the OP will lose on the motion he failed to state a claim.