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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.
2.
3.
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.
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.