Prison Inmate Injury Claims & Dangerous Jail Conditions
Content
Prison Inmate Injury Claims & Dangerous Jail Conditions
By Judge Anthony P. Calisi (ret.)
Before a discussion of injury claims can take place, it's important to understand the difference
between prison and jail. The term prison refers to state and federal correctional institutions,
while jail refers to city and county facilities.
Prisons are long-term correctional institutions normally housing inmates with sentences in excess
of one year, while jails house inmates with sentences of a year or less. Jails are also holding areas
for recently sentenced inmates waiting for transfer to state and federal prisons.
Guards and surveillance cameras closely monitor prisons and jails alike. Even though these
institutions and their inmates are monitored seven days a week, 24 hours a day, dangerous prison
and jail conditions consistently result in inmate injuries.
Common inmate injuries include:
Slip and falls
Inmates aren't immune from slip and fall injuries. Many inmates have jobs they report to daily.
They include kitchen and laundry duty, indoor and outdoor maintenance, motor pool,
construction, and yes, making license plates. Injuries range from cuts and bruises to serious
burns, broken bones, head injuries, and more.
Transport vehicle crashes
Inmates frequently must attend court hearings, get transferred to medical facilities, move from
local jails to far-off prisons, and report to work programs. Depending on the circumstances, vans,
buses, cars, and even planes can transfer inmates. Inmate transfer vehicles are just as likely to
have accidents as other motor vehicles.
When the transport driver's negligence causes an accident, the inmate has a right to pursue an
injury claim against the correctional institution. When a private citizen's negligence causes his
injuries, the inmate has a similar right to file a claim against that negligent driver.
Inmate-on-inmate assaults
One of the most common forms of state and prison inmate injuries is inmate-on-inmate assault.
These kinds of assaults range from petty shoving to stabbings and death. Although technically
the prison official isn't responsible for the assault, officials can become liable for lack of
supervision, non-segregation of notoriously violent inmates, and failure to anticipate an assault.
Jail and prison guard assaults
While sovereign (the government's) immunity protects jail and prison guards for their actions
and omissions, that immunity is limited. When a guard engages in an unprovoked assault on a
prisoner, the court may rule the guard's action reckless or grossly negligent. Reckless disregard
for the safety and wellbeing of an inmate makes not only the prison or jail liable, but the guard as
well.
Medical malpractice
In a study of irony, unlike many private citizens, most inmates have immediate access to medical
care. Whether due to sickness or injury, inmates receive the medical care they need. There are
occasions when doctors make mistakes and commit medical malpractice. Although sovereign
immunity protects doctors as agents of the correctional institution, in certain circumstances the
institution may waive its immunity and permit the inmate to file an injury claim.
Infections from unsanitary conditions
When you combine overpopulation with continual inmate transfers, it's no wonder jail conditions
lead to rampant infections. Prisoners with poor hygiene, dirty cells, poorly cleaned kitchen
facilities, and improperly sterilized bed wraps are a constant source of bacteria. When officials
fail to maintain the cleanliness of the institution and its facilities, infections and sickness are the
usual result.
Federal Tort Claims Act
Unlike private citizens who can file an injury claim directly with a negligent party's insurance
company, inmates must file their claims using federal and state tort claim procedures. Although
sovereign immunity protects federal correctional institutions, including their wardens, guards,
and administrative personnel, the law allows a waiver (giving up) of that protection when it
comes to prison inmate injuries caused by negligence. The waiver of sovereign immunity,
though, is limited.
Outside institution walls, if the person responsible for your injuries doesn't have insurance, you
can sue him personally. In prisons and jails, you can't sue the guard, warden, or other employee
you believe caused your injuries. In all but the most severe cases of negligence, sovereign
immunity will insulate correctional staff from lawsuits.
To begin your injury claim, you must file a Standard Form 95. This form serves as your notice of
claim or notice of intent to seek damages from the federal government for your injuries. If you've
been hurt while in a federal prison or holding facility, you have two years from the date of your
injury to file your claim. The law calls this the statute of limitations period.
The Justice Department has six months to respond to a prison inmate's injury claim. If it admits
your claim for damages, you get paid. If it denies your claim, you have six months to hire an
attorney and file a lawsuit. The six-month period begins on the day the department officially
denies your claim, not from the date of your injury. The forms for your lawsuit are in the prison
library.
State Tort Claim Acts
Unlike federal inmates who file their injury claims by using the Federal Tort Claims Act
procedure, injured state, city, and county inmates must file their injury claims via their individual
state's Tort Claims Act. Each state has its own forms and corresponding statute of limitations
period.
If you've suffered injuries while an inmate at a state, city, or county correctional institution, refer
to your state's individual tort claims act. To find the corresponding statute for your state go to
NCSL.org. Under "Issues and Research," you'll find your state's sovereign immunity and tort
liability statutes.
Reasonable Care and Negligence
Prison and jail officials have a legal duty to use reasonable care in the protection of inmates'
safety and wellbeing. When officials breach (violate) their duty and that breach results in an
inmate's injuries, the inmate has a right to file a tort claim seeking compensation or damages.
Damages in normal injury claims can include medical bills, out-of-pocket expenses for
medicines, crutches, etc., lost wages, and pain and suffering (emotional distress). However,
inmates don't receive medical bills, and they don't have to pay for medications, crutches, etc.
Also, lost wages due to injuries are minimal, usually amounting to only a few dollars a day.
The primary damages for an inmate are future medical bills and out-of-pocket expenses (required
after release), future lost wages, and pain and suffering.
Elements of a Personal Injury Claim
To succeed in a personal injury federal or state tort claim, an inmate must prove three elements:
1.
The institution breached its duty of care (obligation).
2.
How the breach occurred (the negligent act).
3.
The negligence resulted in verifiable injuries (damages).
Unless you prove all three elements, your injury claim will fail.
Gathering Evidence to Prove Your Claim
Proving the above 3 elements requires evidence. Gathering evidence in a jail or prison is a bit
challenging. Being creative can help you gather evidence while staying within the institution's
rules and regulations.
Photographic and video evidence
Unlike the outside world where cameras and cell phones are everywhere, correctional institutions
don't allow inmates to have personal electronic devices. But that doesn't mean you can't
document the circumstance causing your injury.
A friendly guard may agree to photograph the scene. So might a chaplain, social worker, or
counselor. If that doesn't work, you can send a request directly to the assistant warden and/or the
warden. Photographing the jail condition causing your injury is compelling evidence of
negligence.
Since video surveillance is everywhere in jails and prisons, the institution's video system may
have already captured the circumstances surrounding your injury. Unfortunately, you may have a
tough time obtaining copies of the video footage without an attorney issuing a subpoena.
Witnesses and witness statements
Unlike in the outside world where you can rely on friends or family members as witnesses, in jail
you have to rely on other prisoners and guards. Other inmates who were aware of the danger may
agree to write out their statements supporting your claim. Even if they didn't see the injury
happen, they may have known the dangerous condition existed. Better yet, they may have
previously notified the guards of the danger.
Example: Dangerous working conditions
An inmate, working in the kitchen, previously notified several guards about the slippery floor.
The inmate told the guards during breakfast, lunch, and dinner hours that grease and spilled food
on the floor caused some inmates to slip and fall. Another inmate suggested the guards assign
someone to keep mopping the floor during serving hours.
The multiple notifications to the guards, along with the failure to assign an inmate to mop the
floor should go in their statements. That's powerful evidence showing the prison employees were
negligent by ignoring a dangerous condition.
Example: Guards knew about assault
Another inmate assaulted and injured you. The prison just released the other inmate from
segregation, or solitary confinement. The guards had heard for days before the inmate's release
that as soon as he was back in general population he planned to attack you.
Despite all previous warnings, the guards didn't inform you of the impending attack or take any
action to stop the inmate from harming you. When the inmate returned, he followed through on
his threats and attacked you, causing severe injuries.
Witness statements confirming the repeated prior notifications will support your injury claim.
Make sure to ask witnesses to write down in detail what the assaultive inmate told the guards,
which guards he told, and the guards' responses. Then, have your witnesses sign and date their
statements.
Written notifications, "Kites"
Previous written notification to correctional officials is very strong evidence. If you were aware
of a dangerous condition in the institution and you wrote repeated notifications, commonly
referred to as kites, to officials, all to no avail, those kites can serve as strong evidence the
officials knew the dangerous condition existed.
Correctional institutions keep all official kites for the duration of your incarceration. If you don't
have copies of your kites, you can make an official request to the prison or jail records
department.
Example: Neglected by prison dentist
You've suffered from an abscessed tooth for some time. Your repeated kites to the prison dentist
went unanswered. Several weeks have gone by. During that time, the abscess spread inside your
mouth, resulting in complications requiring unnecessary multiple extractions and hospitalization.
All of the extra dental work, hospitalization and pain you suffered was avoidable. If the dentist
had answered your kites in a timely manner and provided you with adequate dental care, your
damages would have been much less.
Injuries and medical care
The final piece of evidence is copies of medical records linking the correctional institution's
negligence to your injuries. While the prison or jail has a duty of reasonable care (obligation) to
protect you from unnecessary injuries, you have a duty, or a burden of proof, to show the
institution's negligence caused you real, verifiable injuries.
To do that, you need copies of your medical records. The diagnosis of your injury and its cause,
and your prognosis for recovery are in those records.
Example: Obtaining hospital treatment records
You were hurt when a steam ironing machine malfunctioned, blasting hot steam on your face and
hands. You suffered second- and third-degree burns. An ambulance took you to the closest
hospital emergency room where you were treated.
In a situation like this, you'd want to ask the treating physician to make clear in his diagnosis
what caused your injuries. A physician isn't an expert in hot ironing machines, so you can't
expect him to say how the machine malfunctioned. As long as he says in his diagnosis that a
steam ironing machine caused your injuries, that's sufficient. Be sure to get a copy of your
medical chart.
Personal Injury Attorneys
It's difficult to find a personal injury attorney to represent you if your injuries are the soft tissue
kind. Soft tissue injuries include sprains, minor bruises, contusions, and cuts. It's just not worth
their time.
The difficulty posed by pretrial discovery depositions (recorded statements), and subpoenas on
prison officials is cumbersome. Dealing with prison red tape, dangerous jail conditions,
uncooperative officials, and client interviews in jails or prisons, which can be 50 or 100 miles
away, is just too much for most attorneys. The payoff just isn't worth it.
If your injuries are quite serious, hard injuries, including broken bones, head trauma, second- or
third-degree burns, or worse, maybe you can find a personal injury lawyer to help you. To do
that, you need to provide him with convincing evidence of negligence.
Make sure you have copies of photographs, witness statements, kites, etc. Mail them to the
attorney's office with a detailed explanation of what happened and how your evidence supports
the elements of an injury claim. Hopefully you'll find an attorney to take your case.
By Judge Anthony P. Calisi (ret.)
Before a discussion of injury claims can take place, it's important to understand the difference
between prison and jail. The term prison refers to state and federal correctional institutions,
while jail refers to city and county facilities.
Prisons are long-term correctional institutions normally housing inmates with sentences in excess
of one year, while jails house inmates with sentences of a year or less. Jails are also holding areas
for recently sentenced inmates waiting for transfer to state and federal prisons.
Guards and surveillance cameras closely monitor prisons and jails alike. Even though these
institutions and their inmates are monitored seven days a week, 24 hours a day, dangerous prison
and jail conditions consistently result in inmate injuries.
Common inmate injuries include:
Slip and falls
Inmates aren't immune from slip and fall injuries. Many inmates have jobs they report to daily.
They include kitchen and laundry duty, indoor and outdoor maintenance, motor pool,
construction, and yes, making license plates. Injuries range from cuts and bruises to serious
burns, broken bones, head injuries, and more.
Transport vehicle crashes
Inmates frequently must attend court hearings, get transferred to medical facilities, move from
local jails to far-off prisons, and report to work programs. Depending on the circumstances, vans,
buses, cars, and even planes can transfer inmates. Inmate transfer vehicles are just as likely to
have accidents as other motor vehicles.
When the transport driver's negligence causes an accident, the inmate has a right to pursue an
injury claim against the correctional institution. When a private citizen's negligence causes his
injuries, the inmate has a similar right to file a claim against that negligent driver.
Inmate-on-inmate assaults
One of the most common forms of state and prison inmate injuries is inmate-on-inmate assault.
These kinds of assaults range from petty shoving to stabbings and death. Although technically
the prison official isn't responsible for the assault, officials can become liable for lack of
supervision, non-segregation of notoriously violent inmates, and failure to anticipate an assault.
Jail and prison guard assaults
While sovereign (the government's) immunity protects jail and prison guards for their actions
and omissions, that immunity is limited. When a guard engages in an unprovoked assault on a
prisoner, the court may rule the guard's action reckless or grossly negligent. Reckless disregard
for the safety and wellbeing of an inmate makes not only the prison or jail liable, but the guard as
well.
Medical malpractice
In a study of irony, unlike many private citizens, most inmates have immediate access to medical
care. Whether due to sickness or injury, inmates receive the medical care they need. There are
occasions when doctors make mistakes and commit medical malpractice. Although sovereign
immunity protects doctors as agents of the correctional institution, in certain circumstances the
institution may waive its immunity and permit the inmate to file an injury claim.
Infections from unsanitary conditions
When you combine overpopulation with continual inmate transfers, it's no wonder jail conditions
lead to rampant infections. Prisoners with poor hygiene, dirty cells, poorly cleaned kitchen
facilities, and improperly sterilized bed wraps are a constant source of bacteria. When officials
fail to maintain the cleanliness of the institution and its facilities, infections and sickness are the
usual result.
Federal Tort Claims Act
Unlike private citizens who can file an injury claim directly with a negligent party's insurance
company, inmates must file their claims using federal and state tort claim procedures. Although
sovereign immunity protects federal correctional institutions, including their wardens, guards,
and administrative personnel, the law allows a waiver (giving up) of that protection when it
comes to prison inmate injuries caused by negligence. The waiver of sovereign immunity,
though, is limited.
Outside institution walls, if the person responsible for your injuries doesn't have insurance, you
can sue him personally. In prisons and jails, you can't sue the guard, warden, or other employee
you believe caused your injuries. In all but the most severe cases of negligence, sovereign
immunity will insulate correctional staff from lawsuits.
To begin your injury claim, you must file a Standard Form 95. This form serves as your notice of
claim or notice of intent to seek damages from the federal government for your injuries. If you've
been hurt while in a federal prison or holding facility, you have two years from the date of your
injury to file your claim. The law calls this the statute of limitations period.
The Justice Department has six months to respond to a prison inmate's injury claim. If it admits
your claim for damages, you get paid. If it denies your claim, you have six months to hire an
attorney and file a lawsuit. The six-month period begins on the day the department officially
denies your claim, not from the date of your injury. The forms for your lawsuit are in the prison
library.
State Tort Claim Acts
Unlike federal inmates who file their injury claims by using the Federal Tort Claims Act
procedure, injured state, city, and county inmates must file their injury claims via their individual
state's Tort Claims Act. Each state has its own forms and corresponding statute of limitations
period.
If you've suffered injuries while an inmate at a state, city, or county correctional institution, refer
to your state's individual tort claims act. To find the corresponding statute for your state go to
NCSL.org. Under "Issues and Research," you'll find your state's sovereign immunity and tort
liability statutes.
Reasonable Care and Negligence
Prison and jail officials have a legal duty to use reasonable care in the protection of inmates'
safety and wellbeing. When officials breach (violate) their duty and that breach results in an
inmate's injuries, the inmate has a right to file a tort claim seeking compensation or damages.
Damages in normal injury claims can include medical bills, out-of-pocket expenses for
medicines, crutches, etc., lost wages, and pain and suffering (emotional distress). However,
inmates don't receive medical bills, and they don't have to pay for medications, crutches, etc.
Also, lost wages due to injuries are minimal, usually amounting to only a few dollars a day.
The primary damages for an inmate are future medical bills and out-of-pocket expenses (required
after release), future lost wages, and pain and suffering.
Elements of a Personal Injury Claim
To succeed in a personal injury federal or state tort claim, an inmate must prove three elements:
1.
The institution breached its duty of care (obligation).
2.
How the breach occurred (the negligent act).
3.
The negligence resulted in verifiable injuries (damages).
Unless you prove all three elements, your injury claim will fail.
Gathering Evidence to Prove Your Claim
Proving the above 3 elements requires evidence. Gathering evidence in a jail or prison is a bit
challenging. Being creative can help you gather evidence while staying within the institution's
rules and regulations.
Photographic and video evidence
Unlike the outside world where cameras and cell phones are everywhere, correctional institutions
don't allow inmates to have personal electronic devices. But that doesn't mean you can't
document the circumstance causing your injury.
A friendly guard may agree to photograph the scene. So might a chaplain, social worker, or
counselor. If that doesn't work, you can send a request directly to the assistant warden and/or the
warden. Photographing the jail condition causing your injury is compelling evidence of
negligence.
Since video surveillance is everywhere in jails and prisons, the institution's video system may
have already captured the circumstances surrounding your injury. Unfortunately, you may have a
tough time obtaining copies of the video footage without an attorney issuing a subpoena.
Witnesses and witness statements
Unlike in the outside world where you can rely on friends or family members as witnesses, in jail
you have to rely on other prisoners and guards. Other inmates who were aware of the danger may
agree to write out their statements supporting your claim. Even if they didn't see the injury
happen, they may have known the dangerous condition existed. Better yet, they may have
previously notified the guards of the danger.
Example: Dangerous working conditions
An inmate, working in the kitchen, previously notified several guards about the slippery floor.
The inmate told the guards during breakfast, lunch, and dinner hours that grease and spilled food
on the floor caused some inmates to slip and fall. Another inmate suggested the guards assign
someone to keep mopping the floor during serving hours.
The multiple notifications to the guards, along with the failure to assign an inmate to mop the
floor should go in their statements. That's powerful evidence showing the prison employees were
negligent by ignoring a dangerous condition.
Example: Guards knew about assault
Another inmate assaulted and injured you. The prison just released the other inmate from
segregation, or solitary confinement. The guards had heard for days before the inmate's release
that as soon as he was back in general population he planned to attack you.
Despite all previous warnings, the guards didn't inform you of the impending attack or take any
action to stop the inmate from harming you. When the inmate returned, he followed through on
his threats and attacked you, causing severe injuries.
Witness statements confirming the repeated prior notifications will support your injury claim.
Make sure to ask witnesses to write down in detail what the assaultive inmate told the guards,
which guards he told, and the guards' responses. Then, have your witnesses sign and date their
statements.
Written notifications, "Kites"
Previous written notification to correctional officials is very strong evidence. If you were aware
of a dangerous condition in the institution and you wrote repeated notifications, commonly
referred to as kites, to officials, all to no avail, those kites can serve as strong evidence the
officials knew the dangerous condition existed.
Correctional institutions keep all official kites for the duration of your incarceration. If you don't
have copies of your kites, you can make an official request to the prison or jail records
department.
Example: Neglected by prison dentist
You've suffered from an abscessed tooth for some time. Your repeated kites to the prison dentist
went unanswered. Several weeks have gone by. During that time, the abscess spread inside your
mouth, resulting in complications requiring unnecessary multiple extractions and hospitalization.
All of the extra dental work, hospitalization and pain you suffered was avoidable. If the dentist
had answered your kites in a timely manner and provided you with adequate dental care, your
damages would have been much less.
Injuries and medical care
The final piece of evidence is copies of medical records linking the correctional institution's
negligence to your injuries. While the prison or jail has a duty of reasonable care (obligation) to
protect you from unnecessary injuries, you have a duty, or a burden of proof, to show the
institution's negligence caused you real, verifiable injuries.
To do that, you need copies of your medical records. The diagnosis of your injury and its cause,
and your prognosis for recovery are in those records.
Example: Obtaining hospital treatment records
You were hurt when a steam ironing machine malfunctioned, blasting hot steam on your face and
hands. You suffered second- and third-degree burns. An ambulance took you to the closest
hospital emergency room where you were treated.
In a situation like this, you'd want to ask the treating physician to make clear in his diagnosis
what caused your injuries. A physician isn't an expert in hot ironing machines, so you can't
expect him to say how the machine malfunctioned. As long as he says in his diagnosis that a
steam ironing machine caused your injuries, that's sufficient. Be sure to get a copy of your
medical chart.
Personal Injury Attorneys
It's difficult to find a personal injury attorney to represent you if your injuries are the soft tissue
kind. Soft tissue injuries include sprains, minor bruises, contusions, and cuts. It's just not worth
their time.
The difficulty posed by pretrial discovery depositions (recorded statements), and subpoenas on
prison officials is cumbersome. Dealing with prison red tape, dangerous jail conditions,
uncooperative officials, and client interviews in jails or prisons, which can be 50 or 100 miles
away, is just too much for most attorneys. The payoff just isn't worth it.
If your injuries are quite serious, hard injuries, including broken bones, head trauma, second- or
third-degree burns, or worse, maybe you can find a personal injury lawyer to help you. To do
that, you need to provide him with convincing evidence of negligence.
Make sure you have copies of photographs, witness statements, kites, etc. Mail them to the
attorney's office with a detailed explanation of what happened and how your evidence supports
the elements of an injury claim. Hopefully you'll find an attorney to take your case.
