Civil Legal Issues For New Recruits Or What to Expect When You Get Sued By An Inmate

Roadmap O Representation and indemnification of NDOC employees O Defenses available in inmate litigation O The civil litigation process O Common claims filed by inmates O Tips for avoiding litigation (ha ha) and preparing for a successful defense State of Nevada Office of the Attorney General 2

Civil vs. Criminal Lawsuits Criminal Civil May result in incarceration. Only prosecuted by the government (not by individuals). State must prove case beyond a reasonable doubt. Usually results in a monetary judgment. Often brought by individuals, including inmates. Plaintiff only need establish case by a preponderance of the evidence

Representation Options O The AG represents and defends current and former NODC employees at no charge to the employee. O NDOC employees may also retain private representation at the employee’s expense.

Conditions for AG Representation O The civil action must be related to your NDOC employment. O The action or omission at issue must appear to be 1) within the scope of employment and 2) performed in good faith. O You must actively cooperate in your defense.

Notice of lawsuit O Notice will generally come from prison administration O Your request for representation must be received before the AG can appear in court on your behalf

Requesting AG Representation O Form generally provided with AG litigation packet to current employees O Form must be submitted within 15 days of service of complaint. State of Nevada Office of the Attorney General 7

In your lawsuit packet O The complaint. O Candid statement form. O Defense memorandum with instructions. O A copy of NV statutes related to your representation by the AG.

Your Candid Statement State of Nevada Office of the Attorney General 9

Timeliness Is Key O The law has firm timelines in place regarding legal cases. O The Deputy Attorney General assigned to your case needs to find out the details of the incident in a timely manner. O Keep the DAG in charge of your case informed of your current address and any changes to your contact information.

Indemnification Nevada must indemnify current and former state employees against civil judgments for money unless the employee Failed to submit a timely request for defense Failed to cooperate in good faith Act or omission was not within scope of employment OR Act or omission was “wanton or malicious”

What the inmate wants O The inmate wants money. O The inmate may want property. O The inmate may want to get you fired. O The inmate may want to rewrite prison policy (injunctive relief).

Damages overview O Compensatory O Punitive O Nominal State of Nevada Office of the Attorney General 13

Who represents the inmate O Inmates generally represent themselves (unlike in criminal proceedings, no right to representation in civil cases). O The Court may request that an attorney provide representation if the case is unusually complex and has some merit.

Litigation defenses: exhaustion O Required by the Prison Litigation Reform Act O Inmate must pursue to completion all available administrative remedies before filing federal claims State of Nevada Office of the Attorney General 15

Other defenses O Statute of limitations O Lack of personal participation O Failure to timely serve a defendant O Negligence defenses O Qualified immunity State of Nevada Office of the Attorney General 16

Let’s take a break. State of Nevada Office of the Attorney General

Overview of the litigation process

The Complaint O Nature of the case O Factual allegations O Legal theories O Relief requested

Pre-trial Motions O Once the case has been screened, the AG’s office will file a motion to dismiss/summary judgment based upon the defendant’s written statement and the evidence gathered. O This is why it is important to get back to the DAG handling your case as soon as possible, and to always keep careful records.

Written Discovery O Interrogatories O Are written questions that must be answered under oath O Must be answered in 30 days O Requests for Production of Documents O Documents must be produced within 30 days O Requests for admissions O Must be answered within 30 days

Oral Discovery O Deposition O Question and answer in person under oath O Recorded by a court reporter O Must listen to the question asked O Be sure to hear and understand the question O Keep your answers short and to the point O It is okay to say “I don’t know” or “I do not remember”

Settlement Elements which weigh in favor of settlement Elements which weigh against settlement O Clear liability O High cost of defense O Possibility of attorney fees O Poor defense witnesses O Sensitive documents O Heavily emotional issues O Low liability O Large damages O Unreasonable demands O Favorable jurisdictions O Policy or political reasons 23

Trial O Parties present evidence in a formal setting to adjudicate disputes. O Jury likely O Required attendance State of Nevada Office of the Attorney General 24

Common claims filed by inmates O Civil rights litigation overview O A section 1983 complaint is a civil action for deprivation of rights secured by the Constitution. O Only individuals may be sued. O The individual must have some personal involvement in the alleged deprivation.

First Amendment O Freedom of religion O Religious exercise O Meals

First Amendment - continued O Freedom of Speech O Right to petition the courts O Legal mail – do not delay O Legal mail is confidential O Inmates have a right to law library access O This can be via the library or books brought to their cell O Right to file a grievance or lawsuit without retaliation

Fourth Amendment O Prohibits unreasonable searches of: O Cells O Persons (e.g., body cavity search) O Search must serve a legitimate prison interest. O Searches should always be performed in a respectful and courteous manner O Document any property removed from cell.

Eighth Amendment O Prohibits cruel and unusual punishment O Guarantees inmates access to necessities of life. O Requires prisons to take steps to protect inmates from physical abuse and serious health risks.

Eighth Amendment: excessive force O Standard: whether force applied 1) in a good-faith effort to maintain or restore discipline or 2) maliciously and sadistically to cause harm. O Factors: 1) extent of injury; 2) need for application of force; 3) relationship between that need and the amount of force used; 4) any efforts made to temper the severity of a forceful response.

Eighth Amendment: deliberate indifference to serious medical needs O Standard: whether prison officials deliberately ignored an an inmate’s serious medical needs. O A “serious” need is one that could result in significant injury or pain. O Official must have knowledge of need. O Difference of opinion concerning appropriate course of treatment not enough.

Eighth Amendment continued O Failure to protect an inmate from harm O This occurs when another inmate beats up another inmate.

Fourteenth Amendment O Requires limited Due Process in disciplinary hearings O Notice of charges must be provided before hearing O Limited right to call witnesses O Adjudication must be based on at least “some evidence” O Equal Protection Clause generally prohibits discrimination based on race or religion.

Common Sense Tips For Avoiding Litigation

Put It In Writing KEEP THOROUGH AND LEGIBLE REPORTS. Who, what, when, why, where.

Act Before It Escalates O Respond to legitimate complaints early to prevent escalation O Talk to a superior, seek help if needed State of Nevada Office of the Attorney General 37

Maintain Channels Of Communication O Ensure that inmates have access to grievances forms, information O (Maybe) seek to understand the inmate’s concern O (Perhaps) paraphrase or summarize the concern so that inmate knows you’ve listened State of Nevada Office of the Attorney General 38

Keep It Professional O Don’t encourage personal relationships O Don’t accept or provide favors O Be relentlessly polite in your interactions with inmates O Don’t get emotional State of Nevada Office of the Attorney General 39

Questions? Concerns? Comments? Feel free to contact me or the other attorneys in the AG Office with any questions or concerns. Jared Frost