In many cases in which a prisoner or group of prisoners is suing over bad prison conditions or practices, the prisoners want an injunction, that is, an order to require state officials to stop violating constitutional rights. This column briefly discusses what "injunctive relief" is, the basic standards for getting it, and some special issues regarding injunctions that can come up in prison cases. I cannot cover every aspect of this large and complex subject or provide specific advice for your case, but will simply highlight some of the issues you might face.

In this column, as always, I assume that you have a case filed under 42 U.S.C. Section 1983 in federal district court, and so I discuss the federal standards and cases. If you are in state court, the standards and law could be very different. Also, I discuss here only injunctions ordered by a judge after a trial won by the plaintiff or plaintiffs. The material in this column does not apply to consent decrees or other kinds of injunctions put in place after settlement is reached between the parties. Consent orders involve different issues and in some cases different standards, and they will be the subject of a future column.



What Injunctive Relief Is


An injunction is a court order either requiring someone to stop doing something illegal or requiring them to put in place some new conditions or practices that will eliminate illegal conditions or practices. An injunction is forward-looking, that is, it reaches into the future to require a losing defendant to stop doing something that the defendant has been doing. Because it looks forward, injunctive relief is often called "prospective relief." This is in contrast to money damages, which is "retrospective" relief that looks backward to an event that has already occurred and attempts to compensate for harm done in that past time.

Injunctive relief is also often called "equitable" relief, which means that when a court is deciding whether to grant an injunction it acts as a so-called "court of equity." Courts developed the equity role in England long ago to allow them to do justice in cases in which traditional damages remedies would not do the job. Courts acting in the equity role draw on a long history of trying to do what is right to eradicate a legal wrong that a plaintiff is suffering.

The most important practical result of these differences between injunctive and damages remedies is that there is no right to a jury trial on equitable questions. The judge always decides whether or not an injunction will be granted. By contrast, where money damages are at issue, either side can request a jury if they want one. If both damages and injunctive questions are involved, a jury can determine the damages issues but the judge will still decide whether to issue an injunction.



What Plaintiffs Need To Show To Get Injunctive Relief


You are not entitled to an injunction in every Section 1983 case in which you prove a constitutional violation. Instead, courts decide whether to issue an injunction based on special standards that apply to this prospective, equitable form of relief.

Federal Rule of Civil Procedure 65 contains some general rules about injunctions, and should be consulted if you are considering asking for an injunction. However, this rule does not contain the real standards judges look to in deciding whether to grant an injunction. The standards are found in the caselaw.

The two most basic prerequisites to issuance of an injunction are 1) that there is a likelihood of the plaintiff suffering substantial and immediate "irreparable" harm and 2) that there exists no other remedy to adequately address this threat of harm. Irreparable harm is a large topic beyond the scope of this column, but in general courts find that the ongoing violation of constitutional rights meets the irreparable harm test. The lack of an adequate remedy at law means that a standard remedy such as damages will not adequately deal with the harm. For example, in the case of ongoing constitutional violations reaching into the future, a damages remedy is inadequate because that remedy cannot stop the illegal practice, only compensate for past wrongs. Thus only an injunction is adequate to stop the ongoing violations.

Because injunctions in Section 1983 cases reach into the future and force public officials to act differently than they have chosen to act, there has been much litigation about Section 1983 injunctions. Here I briefly discuss three of the Supreme Court cases addressing these issues which may have a direct impact on your request for injunctive relief.

The Supreme Court has made very clear that an injunction may issue even though the threatened harm has not yet occurred. Helling v. McKinney, 113 S.Ct. 2475 (1993). So long as there is a strong proof of a real and substantial threat of harm, for example "an unsafe, life-threatening condition in [a] prison..." (113 S.Ct. at 2480), a federal court can issue an injunction. Of course, a condition that has already caused harm but which has not changed and so creates a continuing threat of even more harm provides an even stronger case for an injunction.

The negative side of the same principle, however, is that merely showing that you have been harmed by a practice in the past does not give you the automatic right to an injunction to keep it from ever happening again. In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Court found that a man who had been subjected to a chokehold by the LAPD after a traffic stop could not obtain an injunction against LAPD's ongoing chokehold policies and practices because the chances that this plaintiff would again be stopped and choked were so slim that he could not show that he faced a real and immediate threat of future choking. In addition, the Court found that under these circumstances damages for the past choking gave Lyons an adequate remedy for what happened to him.

In many prison cases, of course, Lyons, bad as it is, does not present a great problem because the threat of the harm happening again is so immediate. For example, an ongoing unconstitutional condition in an entire segregation unit obviously creates an immediate threat for all who live in the unit. Your release from the unit might make the threat a little more speculative and so somewhat more subject to Lyons problems, but in reality the threat remains quite real because you could be returned to the unit at any time. At the other extreme, however, your release from prison would present great Lyons barriers, as it is much less likely that you will again be subjected to the prison conditions you complained about. Your case may be somewhere in between, so you should be prepared to show as high a likelihood as possible that you will be returned to the area where the unconstitutional conditions are.

The need to show immediate ongoing threats may also require you to prove that the unconstitutional condition or practice is still in existence at the time of trial. Farmer v. Brennan, 114 S.Ct. 1970 (1994). Although there are older cases suggesting that cessation of illegal conduct does not necessarily end the need for an injunction if the defendants are likely to do the same thing again, Farmer comes close to saying that the violation must be going on at the time of trial if the plaintiff wants an injunction. You should argue that very recent changes in conditions should be treated as no real change, because such last-minute changes are not serious and permanent and so do not eliminate the threat of harm.

In some cases, litigating the case as a class action may solve many of the problems prisoners experience in trying to get injunctions. Class certification in a prison case, as discussed in more detail in my last column, establishes as plaintiffs a large group of prisoners whose members will be subjected to ongoing prison conditions and practices into the future. Thus, for example, if you are the named plaintiff for a class in a segregation unit, you can be unconditionally released from prison after the class is certified and the class will still have standing to seek an injunction against the ongoing constitutional violations you identified. Therefore, you should strongly consider the possibilities for class certification in any case in which you are thinking of asking for an injunction.



Scope of Relief - How Broad An Injunction Can You Get?


Once trial is over and the plaintiff has won the right to an injunction, next is the so-called "scope of relief" question, that is, how much can the court require state officials to do to fix an unconstitutional practice or condition proven by the plaintiff? Issues about scope of relief come up most often in large class action cases after district judges order state officials to do many things to fix large-scale problems in a prison system. But similar issues can come up in any case where there will be an injunction.

Federal courts often state that injunctions in Section 1983 prison cases should go no further than is necessary to eradicate proven constitutional violations and should give state officials the chance to propose and implement their own chosen remedies if those remedies appear adequate. An extensive statement of these ideas, with numerous citations, is in Toussaint v. McCarthy, 801 F.2d 1080, 1086 - 1087 (9th Cir. 1986). Recently, a majority of a sharply divided Supreme Court emphasized these points, especially expressing disapproval of relief that goes beyond what was proven and underscoring the need for federal courts to "give adequate consideration to the views of state prison authorities." Lewis v. Casey, 116 S.Ct. 2174, 2183 - 2186 (1996).

Last year Congress put many of these ideas into the Prison Litigation Reform Act (PLRA). The PLRA prohibits prison or jail injunctions that are not based on court findings that the "relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal Right, and is the least intrusive means necessary to correct the violation of the federal right." 18 U.S.C. Section 3626(a)(1). With respect to injunctions issued after trial, the legislative history shows that this provision simply parallels the existing law as expressed in Toussaint.

Importantly, these limits on injunctive relief do not prevent a federal judge from ever ordering a very specific remedy or imposing a remedy that is other than what the state would choose. "[A] federal court may order relief that the Constitution would not of its own force initially require if such relief is necessary to remedy a constitutional violation." Toussaint, 801 F.2d at 1087. Likewise, if a court has allowed state officials to try to fix a proven violation and they have failed, the court can order much more specific relief than it could have immediately after trial. See Hutto v. Finney, 437 U.S. 678 (1978); Balla v. Idaho State Board of Corrections, 869 F.2d 461, 471 - 472 (9th Cir. 1989).

There is not space in this brief column to discuss another important injunctive relief issue: How long can the injunction remain in effect? This issue has been the subject of much litigation in recent years, and has been made even more complicated by the PLRA, which attempts to place a two-year limit on all prison or jail injunctions unless the plaintiffs show continuing constitutional violations every two years.

The PLRA, which has been discussed in several PLN articles, is under challenge all over the country. If are trying to get an injunction, you should pay close attention to developments regarding PLRA to see what you can get and how long you will be able to hold on to any victory you win.

[Thanks to David Fathi for passing on his knowledge of PLRA issues. John Midgley is an attorney at Columbia Legal Services in Washington state.]by John Midgley

In many cases in which a prisoner or group of prisoners is suing over bad prison conditions or practices, the prisoners want an injunction, that is, an order to require state officials to stop violating constitutional rights. This column briefly discusses what "injunctive relief" is, the basic standards for getting it, and some special issues regarding injunctions that can come up in prison cases. I cannot cover every aspect of this large and complex subject or provide specific advice for your case, but will simply highlight some of the issues you might face.

In this column, as always, I assume that you have a case filed under 42 U.S.C. Section 1983 in federal district court, and so I discuss the federal standards and cases. If you are in state court, the standards and law could be very different. Also, I discuss here only injunctions ordered by a judge after a trial won by the plaintiff or plaintiffs. The material in this column does not apply to consent decrees or other kinds of injunctions put in place after settlement is reached between the parties. Consent orders involve different issues and in some cases different standards, and they will be the subject of a future column.



What Injunctive Relief Is


An injunction is a court order either requiring someone to stop doing something illegal or requiring them to put in place some new conditions or practices that will eliminate illegal conditions or practices. An injunction is forward-looking, that is, it reaches into the future to require a losing defendant to stop doing something that the defendant has been doing. Because it looks forward, injunctive relief is often called "prospective relief." This is in contrast to money damages, which is "retrospective" relief that looks backward to an event that has already occurred and attempts to compensate for harm done in that past time.

Injunctive relief is also often called "equitable" relief, which means that when a court is deciding whether to grant an injunction it acts as a so-called "court of equity." Courts developed the equity role in England long ago to allow them to do justice in cases in which traditional damages remedies would not do the job. Courts acting in the equity role draw on a long history of trying to do what is right to eradicate a legal wrong that a plaintiff is suffering.

The most important practical result of these differences between injunctive and damages remedies is that there is no right to a jury trial on equitable questions. The judge always decides whether or not an injunction will be granted. By contrast, where money damages are at issue, either side can request a jury if they want one. If both damages and injunctive questions are involved, a jury can determine the damages issues but the judge will still decide whether to issue an injunction.



What Plaintiffs Need To Show To Get Injunctive Relief


You are not entitled to an injunction in every Section 1983 case in which you prove a constitutional violation. Instead, courts decide whether to issue an injunction based on special standards that apply to this prospective, equitable form of relief.

Federal Rule of Civil Procedure 65 contains some general rules about injunctions, and should be consulted if you are considering asking for an injunction. However, this rule does not contain the real standards judges look to in deciding whether to grant an injunction. The standards are found in the caselaw.

The two most basic prerequisites to issuance of an injunction are 1) that there is a likelihood of the plaintiff suffering substantial and immediate "irreparable" harm and 2) that there exists no other remedy to adequately address this threat of harm. Irreparable harm is a large topic beyond the scope of this column, but in general courts find that the ongoing violation of constitutional rights meets the irreparable harm test. The lack of an adequate remedy at law means that a standard remedy such as damages will not adequately deal with the harm. For example, in the case of ongoing constitutional violations reaching into the future, a damages remedy is inadequate because that remedy cannot stop the illegal practice, only compensate for past wrongs. Thus only an injunction is adequate to stop the ongoing violations.

Because injunctions in Section 1983 cases reach into the future and force public officials to act differently than they have chosen to act, there has been much litigation about Section 1983 injunctions. Here I briefly discuss three of the Supreme Court cases addressing these issues which may have a direct impact on your request for injunctive relief.

The Supreme Court has made very clear that an injunction may issue even though the threatened harm has not yet occurred. Helling v. McKinney, 113 S.Ct. 2475 (1993). So long as there is a strong proof of a real and substantial threat of harm, for example "an unsafe, life-threatening condition in [a] prison..." (113 S.Ct. at 2480), a federal court can issue an injunction. Of course, a condition that has already caused harm but which has not changed and so creates a continuing threat of even more harm provides an even stronger case for an injunction.

The negative side of the same principle, however, is that merely showing that you have been harmed by a practice in the past does not give you the automatic right to an injunction to keep it from ever happening again. In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Court found that a man who had been subjected to a chokehold by the LAPD after a traffic stop could not obtain an injunction against LAPD's ongoing chokehold policies and practices because the chances that this plaintiff would again be stopped and choked were so slim that he could not show that he faced a real and immediate threat of future choking. In addition, the Court found that under these circumstances damages for the past choking gave Lyons an adequate remedy for what happened to him.

In many prison cases, of course, Lyons, bad as it is, does not present a great problem because the threat of the harm happening again is so immediate. For example, an ongoing unconstitutional condition in an entire segregation unit obviously creates an immediate threat for all who live in the unit. Your release from the unit might make the threat a little more speculative and so somewhat more subject to Lyons problems, but in reality the threat remains quite real because you could be returned to the unit at any time. At the other extreme, however, your release from prison would present great Lyons barriers, as it is much less likely that you will again be subjected to the prison conditions you complained about. Your case may be somewhere in between, so you should be prepared to show as high a likelihood as possible that you will be returned to the area where the unconstitutional conditions are.

The need to show immediate ongoing threats may also require you to prove that the unconstitutional condition or practice is still in existence at the time of trial. Farmer v. Brennan, 114 S.Ct. 1970 (1994). Although there are older cases suggesting that cessation of illegal conduct does not necessarily end the need for an injunction if the defendants are likely to do the same thing again, Farmer comes close to saying that the violation must be going on at the time of trial if the plaintiff wants an injunction. You should argue that very recent changes in conditions should be treated as no real change, because such last-minute changes are not serious and permanent and so do not eliminate the threat of harm.

In some cases, litigating the case as a class action may solve many of the problems prisoners experience in trying to get injunctions. Class certification in a prison case, as discussed in more detail in my last column, establishes as plaintiffs a large group of prisoners whose members will be subjected to ongoing prison conditions and practices into the future. Thus, for example, if you are the named plaintiff for a class in a segregation unit, you can be unconditionally released from prison after the class is certified and the class will still have standing to seek an injunction against the ongoing constitutional violations you identified. Therefore, you should strongly consider the possibilities for class certification in any case in which you are thinking of asking for an injunction.



Scope of Relief - How Broad An Injunction Can You Get?


Once trial is over and the plaintiff has won the right to an injunction, next is the so-called "scope of relief" question, that is, how much can the court require state officials to do to fix an unconstitutional practice or condition proven by the plaintiff? Issues about scope of relief come up most often in large class action cases after district judges order state officials to do many things to fix large-scale problems in a prison system. But similar issues can come up in any case where there will be an injunction.

Federal courts often state that injunctions in Section 1983 prison cases should go no further than is necessary to eradicate proven constitutional violations and should give state officials the chance to propose and implement their own chosen remedies if those remedies appear adequate. An extensive statement of these ideas, with numerous citations, is in Toussaint v. McCarthy, 801 F.2d 1080, 1086 - 1087 (9th Cir. 1986). Recently, a majority of a sharply divided Supreme Court emphasized these points, especially expressing disapproval of relief that goes beyond what was proven and underscoring the need for federal courts to "give adequate consideration to the views of state prison authorities." Lewis v. Casey, 116 S.Ct. 2174, 2183 - 2186 (1996).

Last year Congress put many of these ideas into the Prison Litigation Reform Act (PLRA). The PLRA prohibits prison or jail injunctions that are not based on court findings that the "relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal Right, and is the least intrusive means necessary to correct the violation of the federal right." 18 U.S.C. Section 3626(a)(1). With respect to injunctions issued after trial, the legislative history shows that this provision simply parallels the existing law as expressed in Toussaint.

Importantly, these limits on injunctive relief do not prevent a federal judge from ever ordering a very specific remedy or imposing a remedy that is other than what the state would choose. "[A] federal court may order relief that the Constitution would not of its own force initially require if such relief is necessary to remedy a constitutional violation." Toussaint, 801 F.2d at 1087. Likewise, if a court has allowed state officials to try to fix a proven violation and they have failed, the court can order much more specific relief than it could have immediately after trial. See Hutto v. Finney, 437 U.S. 678 (1978); Balla v. Idaho State Board of Corrections, 869 F.2d 461, 471 - 472 (9th Cir. 1989).

There is not space in this brief column to discuss another important injunctive relief issue: How long can the injunction remain in effect? This issue has been the subject of much litigation in recent years, and has been made even more complicated by the PLRA, which attempts to place a two-year limit on all prison or jail injunctions unless the plaintiffs show continuing constitutional violations every two years.

The PLRA, which has been discussed in several PLN articles, is under challenge all over the country. If are trying to get an injunction, you should pay close attention to developments regarding PLRA to see what you can get and how long you will be able to hold on to any victory you win.

[Thanks to David Fathi for passing on his knowledge of PLRA issues. John Midgley is an attorney at Columbia Legal Services in Washington state.]

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