Free Pro Se Civil Rights Complaint Guide - North Carolina

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA

INFORMATION FOR FILING A CIVIL RIGHT COMPLAINT UNDER 42 U.S.C. §1983 AND 1985

OFFICE OF THE CLERK OF COURT July 2009

TABLE OF CONTENTS

SECTION

PAGE NUMBER

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PREPARING THE COMPLAINT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

FILING THE COMPLAINT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 FORM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

INTRODUCTION This information packet is designed to help you file a civil rights complaint in federal court without the help of a trained and licensed attorney. In a civil right complaint you are alleging that your constitutional rights or privileges or immunities have been violated. The federal law under which a civil rights claim arises is 42 U.S.C. §§1983 and 1985. (U.S.C. stands for "United States Code", which is a collection of all the federal laws of the country. The law under which a civil rights action is brought is located in Sections 1983 and 1985 of Title 42 of the United States Code.) When you represent yourself in a lawsuit you are known as a pro se litigant, or a person who is proceeding pro se. In order to start a lawsuit based on a claim of violation of your civil rights, you must prepare and file with the court what is known as a complaint. This packet of instructions is designed to help you prepare a civil rights complaint under 42 U.S.C. Sections 1983 and 1985. For information on how to actually file the complaint with the court after you have prepared it and how to proceed in your lawsuit, you should obtain and read the Pro Se Litigant Guide, which is available in any of the divisional Clerk's offices of the U.S. District Court for the Western District of North Carolina or from the court's website www.ncwd.uscourts.gov. A sample complaint form is included in this packet to help you prepare your complaint. Your complaint must be typewritten or legibly handwritten. All questions must be answered clearly in the correct space on the form. If you need extra space additional page(s) must be legible and must indicate which question you are answering. If you are suing more than one person, you should state clearly which defendant you accuse of each act.

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PREPARING THE COMPLAINT 1. To assist a party appearing pro se in filing a civil rights complaint, the office of the clerk has prepared a complaint form, a copy of which is attached to this information packet. The instructions in this section correspond by name to the sections in the sample complaint form. 2. If you need more space than the sample complaint form provides to record detail, you should use additional sheets the same size as the complaint.

A. Caption and Heading: Before your case can be filed with the clerk's office, the first page of your complaint must indicate the Division of the Western District of North Carolina in which the case originates. Determining this is relatively easy. Asheville Division: If the defendant(s) reside in, or if the action on which the lawsuit is based occurred in one of the following counties, it is a Asheville Division case: Avery, Buncombe, Burke, Cleveland, Haywood, Henderson, Madison, McDowell, Mitchell, Polk, Rutherford, Transylvania & Yancey. Bryson City Division: If the defendant(s) reside in, or if the action on which the lawsuit is based occurred in one of the following counties, it is a Bryson City Division case: Cherokee, Clay, Graham, Jackson, Macon & Swain counties. Charlotte Division: If the defendant(s) reside in, or if the action on which the lawsuit is based occurred in one of the following counties, it is a Charlotte Division case: Anson, Gaston, Mecklenburg & Union counties. Statesville Division: If the defendant(s) reside in, or if the action on which the lawsuit is based occurred in one of the following counties, it 2

is a Statesville Division case: Alexander, Alleghany, Ashe, Caldwell, Catawba, Iredell, Lincoln, Watauga & Wilkes counties. In the caption, you must also add your name as the plaintiff and the names of the people you are naming as defendants on the lines provided. B. Jurisdiction: In this section, you inform the court why the case should be heard in federal court rather than state court or some other forum. Options: For a complaint alleging a violation of civil rights, you have two options: 1. If your action is generally one for a violation of civil rights, 42 U.S.C. §1983 will normally be the basis for the claim. 2. Claims under 42 U.S.C. §1985 are limited. Generally that section prohibits certain categories of conduct relating to two or more persons acting together, or in a conspiracy, as provided for in the statute itself. In most instances, you must show that the conspiracy was entered for a racial or class-based reason. Defendant's Relationship to the State: In order for your action to be heard in federal court under Section 1983, you must be able to show that the defendant(s), at the time the claims alleged in the complaint, were acting under the authority or color of state law. As you note the name of each defendant, you also should indicate whether that defendant under 42 U.S.C. §1983 is a person who acted "under the color of state law." This generally means that the person is a state official, a state employee, or someone who was acting in the name of the state under authority granted by the state, county, city or other non-federal government entity. Normally a claim under 42 U.S.C. §1985 requires class-based or racial hostility before it may proceed. Note: This is not a complete statement of the law on this subject; rather, it is intended to provide general guidance as you determine 3

who to name as a defendant in your action. C. Parties: Next, you name the parties. As the person initiating the lawsuit, you are the plaintiff and must identify yourself as such. For each defendant named in your complaint, you should list their current address and a description of their employment. In addition, you should explain briefly how or in what capacity each defendant acted under authority given them by state or local government. D. Nature of the Case: This section requires a brief statement of (I) the civil right that you allege has been violated by the defendant(s), and (ii) a description of how the defendant(s) violated that right. E. Cause of Action: In this section, you are required to provide specific details of precisely how your civil right allegedly was violated. This description should include references to relevant dates, times, and locations. It should explain to the court what happened by specifically describing each defendant's behavior or action and how that behavior or action - - or lack of action - - resulted in the violation of your right. You are not required to cite other cases in the law or to make a legal argument. However, you must be specific about (I) the particulars of the event, (ii) each defendant's misconduct, and how such misconduct resulted in a violation or denial of the civil right at issue in the case. Where your complaint includes more than one incident, you should clearly distinguish between them by preparing a separate description - - usually a paragraph - - for each incident. Each incident should be identified as a separate count, and each count must include appropriate facts and evidence in support of the claims made in the count. Each incident must be clearly and specifically described; it should include the relevant time, date and location. Each incident description also should clearly identify the relevant defendant and what that defendant's role was in the incident. 4

If your case involves an allegation that two or more defendants jointly conspired to violate your civil rights, you must, in a separate count, state the approximate date the defendants entered into the conspiracy. Moreover, in the supporting facts, you should refer to any evidence you have that the defendants indeed did conspire together to violate your civil rights. G. Previous Lawsuits and Administrative Relief: It is important, in this section, that you alert the judge to any other case in which you are or were a party that may be connected with the case you are now filing. If, for example, you filed an earlier case that includes some of the same facts and events you rely on for this case, the court needs to know. If you have submitted a formal complaint to an agency of the state on the issues you raise in this case, or if you previously asked for or participated in an administrative review process to attempt to solve the problem, you must tell the court the results, if any, of your action. H. judge the relief you suffered. Request for Relief: In this section, you describe for the result or relief you seek as a result of your lawsuit. The request must be related specifically to the injury you have Jury trial request, mark the appropriate box: yes or no.

I. Declaration Under Penalty of Perjury: You must sign your complaint and file it with the clerk of court. When you do, you are making a declaration under law to the court that everything in your complaint is true. It is important for you to realize that the judge assigned to your case can order sanctions or penalties against you or any other party that files complaints or pleadings that are frivolous, without merit, based on false or misleading information, etc. These sanctions or penalties can take many forms. Examples include dismissing your case, assessing fines, requiring you to pay the attorney costs for the opposing party, limiting your filing privileges in federal court, etc. If you intentionally make false statements in document you file with the clerk, you may be charged with criminal lying or perjury, an offense with potentially serious consequences.

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FILING THE COMPLAINT You may file the complaint with the court by delivering it or mailing it to any of the divisional offices of the Clerk of Court: Asheville Divisional Office: 100 Otis St., Rm. 309, Asheville NC 28801. Charlotte Divisional Office: 401 W. Trade St., Rm. 210, Charlotte NC 28202. Statesville Divisional Office: 200 W. Broad St., Rm. 100, Statesville NC 28677. Whether you deliver or mail your complaint to the court, you must submit (1) an original of the complaint (2) a completed civil cover sheet and (3) $350.00 filing fee. The $350.00 filing fee can be waived by the court if you complete, and the court accepts, an application to proceed in forma pauperis. An application to proceed in forma pauperis asks the court to have the government pay your filing fee for you because you do not have the money to do so yourself. Applications to proceed in forma pauperis are available at any of the divisional offices of the clerk or on the court's website at www.ncwd.uscourts.gov. You should submit your application to proceed in forma pauperis along with your complaint to the clerk's office. If the court grants your application, you will be able to proceed without submitting the $350.00 filing fee. WAIVER APPLICATION DENIED IN ITS ENTIRETY: If a judge subsequently denies your waiver application in its entirety, you will be required to pay the $350.00 filing fee within the time specified within the order denying the application. In the event the filing fee is not paid within the time specified, your complaint will be summarily dismissed. WAIVER APPLICATION DENIED IN PART - PORTION OF FILING FEE ORDERED PAID: If the judge orders that a portion of the filing fee must be paid within a specified time, your filing fee must be paid within the time period specified by the court or your case will be summarily dismissed. Note: Each defendant named in your lawsuit must be notified of your law suit in a specific manner governed by law. You should refer to the court's Pro Se Guide for information on service of the complaint.

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA

__________________________________ PLAINTIFF, vs. COMPLAINT (42 U.S.C. §1983,§1985)

___________________________________ ___________________________________ CASE NO.__________________ ___________________________________ ___________________________________ DEFENDANT(S). ____________________________________________________________________________ A. JURISDICTION Jurisdiction is proper in this court according to: a.________ 42 U.S.C. §1983 b.________ 42 U.S.C. §1985 c.________ Other (Please Specify) __________________________________ B. PARTIES 1. Name of Plaintiff: Address: _____________________________________ _____________________________________ _____________________________________ _____________________________________

2.

_____________________________________ _____________________________________ _____________________________________ _____________________________________ Is Employed as _____________________________at__________________________ (Position/Title, if any) (Organization)

Name of Defendant: Address:

Was the defendant acting under the authority or color of state law at the time these claims occurred? YES_____ NO_____. If your answer is "YES" briefly explain. ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________

3.

_____________________________________ _____________________________________ _____________________________________ _____________________________________ Is Employed as _____________________________at__________________________ (Position/Title, if any) (Organization) Was the defendant acting under the authority or color of state law at the time these claims occurred? YES_____ NO_____. If your answer is "YES" briefly explain. ______________________________________________________________________________ ______________________________________________________________________________ 4. Name of Defendant: Address: _____________________________________ _____________________________________ _____________________________________ _____________________________________

Name of Defendant: Address:

Is Employed as _____________________________at__________________________ (Position/Title, if any) (Organization) Was the defendant acting under the authority or color of state law at the time these claims occurred? YES_____ NO_____. If your answer is "YES" briefly explain. ______________________________________________________________________________ ______________________________________________________________________________ (Use additional sheets if necessary.)

C. NATURE OF CASE Why are you bringing this case to court? Please explain the circumstances that led to the problem. ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ D. CAUSE OF ACTION I allege that my constitutional rights, privileges or immunities have been violated and that the following facts form the basis for my allegations: (If necessary you may attach additional pages) a. (1) (2) Count I:_______________________________________________________ Supporting Facts: (Describe exactly what each defendant did or did not do. State the facts clearly in your own words without citing any legal authority. Use additional sheets if necessary.) __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ Count II:_______________________________________________________ Supporting Facts: __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ E. INJURY How have you been injured by the actions of the defendant(s)? ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________

b.

(1) (2)

F. PREVIOUS LAWSUITS AND ADMINISTRATIVE RELIEF Have you filed other lawsuits in state or federal court that deal with the same facts that are involved in this action? YES____ NO_____ If your answer is "YES", describe each lawsuit. (If there are more than one lawsuits, describe additional lawsuits on additional separate pages, using the same outline.) 1. Parties to previous lawsuits:

Plaintiff(s):________________________________________________________________ Defendant(s):_____________________________________________________________ 2. Name of court and case or docket number:

____________________________________________________________________________ 3. Disposition (for example, was the case dismissed? Was it appealed? Is it still pending?) ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ 4. Issued raised: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ 5. When did you file the lawsuit? ______________________________________ Date: Month/Year When was it (will it be) decided?____________________________________

6.

Have you previously sought informal or form relief from the appropriate administrative officials regarding the acts complained of in Part D? YES _____ NO ______ If your answer is "YES" briefly describe how relief was sought and the results. If your answer is "NO" explain why administrative relief was

not sought. ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ G. REQUEST FOR RELIEF I believe I am entitled to the following relief: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________

JURY TRIAL REQUESTED YES _____ NO ______

DECLARATION UNDER PENALTY OF PERJURY The undersigned declares under penalty that he/she is the plaintiff in the above action, that he/she has read the above complaint and that the information contained therein is true and correct. 28 U.S.C.§1746; 18 U.S.C. §1621. Executed at _______________________________on ____________________________. (Location) (Date)

_________________________________________ Signature