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Thread: Preparing 42 USC 1983 sample documents

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    After talking to unobvs about this idea and thinking about it a little bit more, I think I will begin to take the first steps to prepare all documents which could be reused by every open carrier who is unlawfully harassed by rogue police officers.

    My goal is twofold, to simplify the process of filing a federal lawsuit when somebody has his or her constitutionally protected rights violated, and to give police departments a solid reason to properly train their officers regarding the rights of open carriers.

    I've contacted the lawyer in charge of the recent New Mexico summary judgment case and asked him if he would be willing to share any documents related to the case.

    I hope this idea isn't viewed as an example of how we're after people's money, although I'm sure attempts will be made to do so. I am simply trying to help lawful citizens bring forth legitimate complaints when they cannot afford to hire counsel.

    Here are my starting points if anybody cares to join in on the action:

    http://www.constitution.org/pro-se/pro-se.htm
    http://www.law.cornell.edu/rules/frcp/index.html

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    First things first I suppose. You want to file a lawsuit, you have to walk on down to your local federal court and file some paperwork. This pdf file gives some hints as to first steps:

    http://www.akd.uscourts.gov/reference/pro_se/PS01%2042%20USC%201983%20(Prisoner)%20Instruc.pdf

    To get things rolling you have to do three separate things (I believe the §1983 complaint form is for prisoners only):

    1. File the form JS-44 Civil Cover Sheet, found here: http://www.uscourts.gov/forms/JS044.pdf
    2. Summons forms: http://www.uscourts.gov/forms/AO440.pdf
    3. $350 filing fee. If you can't afford this you can file a motion to file "In Forma Pauperis"

    I'll fill these forms out with some explanation of how to fill them out next.

  3. #3
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    I'm going to treat this case as if I had my civil rights violated in San Francisco, just because I live in SF at the moment and it'll be easier to complete this whole thing if I have local information.

    Since I was accosted by a SF government agent (like a police officer), I need to figure out what district court I should be filing under. If I go to http://www.uscourts.gov and type in San Francisco, CA in the bottom left corner, it tells me that I should file in the Northern District of California.

    So now I go to my district's website, which has all sorts of relevant information. Something everybody will want to pay attention to is the local rules of the court, my district's local rules for civil cases are found here: http://www.cand.uscourts.gov/CAND/Lo...1?OpenDocument
    The local rules are fairly lengthy for my district. I'd probably want to at least skim through them before I filed any paperwork.

    Some districts provide other useful information as well. My district provides a 133 page pro se handbook, which can be found here: http://www.cand.uscourts.gov/cand/faq.nsf/60126b66e42d004888256d4e007bce29/14de5a2dfcdaa08c88256ebc0054574f/$FILE/ProSeHandbook-Rev4-06a.pdf
    It answers a whole slew of questions which anybody filing a lawsuit on behalf of themselves might have. I'd highly recommend anybody filing a pro se lawsuit to read this document, it appears to be extremely thorough. One section I'd pay particular attention to this early on in a lawsuit is the where to find an attorney section. There are a whole lot of attorney groups that I can call and ask if a lawyer would be willing to take my case for free. Never hurts to ask.

    On to JS-44. Fill out the easy fields, your name, who you're suing (all parties), where the parties are at, you don't have an attorney, so put none or "filing pro se" there, put their attorneys if you know it. Now jurisdiction, mark "federal question" according to this website: http://home.uchicago.edu/~jmellis/42%20USC%201983.html
    Section 3 you leave blank because this isn't a diversity case. Section 4 you mark "Other Civil Rights". Section 5 you mark "Original Proceeding". Section 6 you write 42 USC 1983 for the civil statute under which you're filing, write something like, "Violation of my civil rights" in the brief description. Section 7 put your monetary amount you're demanding, I'm not sure how one determines this just yet. Mark "yes" for a jury trial. Mark "San Francisco" for the division, this all happened in SF, so why not. Date and sign at the bottom.

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    Regular Member mjones's Avatar
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    nice work bigtoe!

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    working at a prison has some benefits... i am reading up on laws using the prison law books... including us 1983, rule 35 and such

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    Newbie cato's Avatar
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    Any such cases should focus on 4th A. violations which is very settled law. We do not want pro se cases trying to establish a courts "first look" at 2nd A issues. The antis would love that.

    But first please do the educational route, talking to city council, formal complaint thing first. Suing or even just considering itshould be a last resort.



    The 4th A. is our friend (see citations): http://www.examiner.com/x-2782-DC-Gu...-on-open-carry


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    http://opencarry.mywowbb.com/view_to...246498#p246498

    my thread on suing. That might be the best pro-se handbook I've ever seen.


    But first please do the educational route, talking to city council, formal complaint thing first. Suing or even just considering itshould be a last resort.

    I disagree. Sue them first, and THEN you will have the city council calling YOU and they will most certainly be paying attention. Lawsuits get attention. Lawsuits get results.

    When you do all the stuff you are doing, you are giving away your case and free discovery. It is bad strategy.

    This should probably be in the general thread for the benefit of everyone. Just a suggestion.

    Lets not forget about the dickson city lawsuit as well. That is already posted.

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Before I get to the Summons Form (AO440), I just want to say that I absolutely agree with Cato regarding the way these cases would be handled. The fourth amendment is incorporated and most case law we rely upon is based on it (Terry, Hicks, Hiibel, JL, Ubiles, etc.). The fact that we open carry has little to do with any lawsuit which may arise, I know that sounds silly, but legally I believe that is the truth.

    The summons form is where we individually list out everybody we are suing. If you're suing one person, then you need one summon's form, ten people, ten forms. The summons will need to be served to the individuals you're suing. You can get a friend to do this, or you can hire a company/person that does it (a process server), but you can't do it. AO440 is pretty straight forward, the only tricky bit is the defendant's name and address. I'm not exactly sure how one is supposed to find out this information. I'll try contacting the court and see what they say about this. You leave the case number blank, the court clerk will fill this out when you file your papers.

    It turns out I was wrong about the §1983 complaint form being only for prisoners. Everybody needs to write a complaint form, otherwise the people you're suing have no idea why you're suing them. There is no form which you write your complaint on, but there is a standard way of doing it. If you've read any court opinions or briefs, you've surely seen various examples of this. The pro se handbook has an entire chapter on how to write your complaint, it even has an example too. If your case is very similar to another case you've read about, you might want to contact the lawyer who handled that case and ask them if they'd be willing to share their complaint or any other documents. For example, the lawyer for the New Mexico OC case shared his complaint and his and the defendant's briefs for summary judgment. Now I'm significantly less stupid thanks to his help.

    Your complaint will start with the "caption page," where the lines are drawn in the sand. Federal Rules of Civil Procedure (FRCP) rule 10(a) details what must be included here, my district court also has a local rule which applies to this as well. My caption page would look something like this:

    Big Toe
    416 Market st.
    San Francisco, CA 94111
    (415) 555-1234
    (415) 555-1234 (FAX)

    Plaintiff

    UNITED STATES DISTRICT COURT

    NORTHERN DISTRICT OF CALIFORNIA

    SAN FRANCISCO DIVISION

    BIG TOE )
    )
    Plaintiff, ) Case No. ________________
    )
    vs. ) COMPLAINT
    )
    BADDY MCGEE ) DEMAND FOR JURY TRIAL
    )
    Defendant. )
    ________________________________)

    Those parentheses are supposed to be lined up. I'm sure that's much easier to do in a legitimate word processing program. That's the caption page, it doesn't actually have to take up the entire page, but it should have all those extra lines and such. Check out the pro se handbook for more info.

    Next comes your actual complaint where you have to prove to the court that you are legit. First you have to show that you're filing your case in the right court (jurisdiction). When you're writing your complaint you have to number your paragraphs and each paragraph must discuss only a single set of ideas. Because of this, paragraphs usually end up being a single sentence. So my jurisdiction section might look like this:

    1. Jurisdiction. This court has jurisdiction over this complaint because it arises under the laws of the United States.
    2. Venue. Venue is appropriate in this court because the plaintiff resides in this district, the defendant works in this district, and the acts complained of occurred in this district.
    4. Intradistrict Assignment. This lawsuit should be assigned to the San Francisco Division of this Court because the events which give rise to this lawsuit occurred in the city and county of San Francisco.

    After that your complaint should contain "a short and plain statement of the claim showing that the pleader is entitled to relief." (FRCP rule 8(a)). You don't have to be super detailed, but you should mention key points of your lawsuit. The New Mexico case's complaint was 38 sentences.

    5. On September 14th, 2009, Defendant was dispatched to respond to imaginary restaurant The Burrito Shop in regards to a male patron in possession of a firearm.
    6. When Defendant McGee arrived at the restaurant, he was greeted by John Smith who was the manager of the restaurant.
    7. Mr. Smith reported that the Plaintiff was eating dinner with a visible holstered firearm on his belt.
    8. Defendant approached Plaintiff and asked if he was wearing a firearm.
    9. The Defendant's actions violated Article I, Section 8 of the California Constitution.
    10. As a direct result of Defendant's actions, Plaintiff suffered compensable damages in an amount to be determined at trial.

    You're basically setting the stage with all the crucial bits broken down into nice bite-sized sentences. You're trying to convince the court that your case has merit and shouldn't be dismissed altogether. For example, if my complaint ended at paragraph 8 above, the case would be dismissed because there's no complaint. Taken as a whole my complaint would be valid as long as Article I, Section 8 of the California Constitution said something about how a person eating a burrito shall not be interrupted by a police officer.

    Finish your complaint off with what you're asking the court to do for you.

    WHEREFORE, Plaintiff prays that the Court will award him:
    A. Compensatory damages in an amount to be determined at trial
    B. Any other relief the Court deems fair and just.

    Respectfully submitted,
    Big Toe
    416 Market st.
    San Francisco, CA 94111
    (415) 555-1234

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    You can get a friend to do this, or you can hire a company/person that does it (a process server), but you can't do it. AO440 is pretty straight forward, the only tricky bit is the defendant's name and address. I'm not exactly sure how one is supposed to find out this information. I'll try contacting the court and see what they say about this. You leave the case number blank, the court clerk will fill this out when you file your papers.

    You find out the address information via discovery. You can leave the officers as John/Jane doe's or just leave them off and sue the police department and city. Hit the PD with discovery, such as an interrogatory "State the name, address, and phone numbers of all officers involved in incident X".

    Then you get their information, file a motion to amend your complaint, and file the amended complaint with the new information.

    You can always ask the other side to provide this information, and they very well may.

    If your case is very similar to another case you've read about, you might want to contact the lawyer who handled that case and ask them if they'd be willing to share their complaint or any other documents. For example, the lawyer for the New Mexico OC case shared his complaint and his and the defendant's briefs for summary judgment.

    Alternatively, you could go on PACER and look up the case cite and download the complaint there. Keep in mind, we have the Dickson city complaint loaded up here on OCDO, and that can be used as a template also.

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Thanks codename_47! I had looked at the Dickson City page and I thought the links were broken, but I found them further in the thread.

    Here are the two complaints:
    http://www.paopencarry.org/dicksoncity/complaint.pdf
    http://www.paopencarry.org/dicksonci..._complaint.pdf

    I'll post the New Mexico complaint once that case is finished, the lawyer requested the documents not be published until they were done with the settlement phase of the case.

    The John/Jane Doe idea sounds correct. Once your case is underway you should be able to issue subpoenas to whomever might have the contact information on the defendants.

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    Once your case is underway you should be able to issue subpoenas to whomever might have the contact information on the defendants.

    No, no subpoena's are for 3rd parties. Discovery if for named parties.

    You request the information in a discovery request (admissions, interrogatories, request for production, and depositions).

    Frankly, the PD should produce this information as part of their initial disclosures, as you are supposed to name all parties that may have relevant information.



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    Newbie cato's Avatar
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    Pro se is not the best scenario unless you know what your are doing with depositions etc.... There are OCers with decent 4th A violations documented. Has anyone tried to contact the Federalist Society for exampleto find a civil rights attorney who would take a case pro bono 4th A. case?

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    Municipal workers are not state actors.

    This is very complicated. I am doing one on my own now. I have access to the Law Library at the Library of Congress. Otherwise, I would probably be dead in the water.

    My case does not include Municipal workers but well, I have been doing a lot of reading.



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    Pro se is not the best scenario unless you know what your are doing with depositions etc....

    Do you mean conducting a deposition or being deposed? I've been deposed before, and I didn't think it was difficult at all. Lots of time, lots of money, and very few relevant questions, but hey the other side is paying for it.

    The thing with these cases is that they are generally well documented and you don't have a bunch of undisputed facts to go over. Between the police report and recording, it should be clear what happened.

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    I've been slacking lately at continuing this venture. In the meantime, here are some documents from the New Mexico case (St. John v. McColley). Included in this zip file are the initial complaint, the summary judgment motions, replies, and responses from both the plaintiff and the defendant.

    Big thanks to Miguel Garcia who works with John R. Hakanson who handled the plaintiff's case.

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