42 U.S.C. § 1997 et seq. Table of
Contents
§ 1997. Definitions
§ 1997a. Initiation of civil actions
§ 1997b. Certification requirements; Attorney General to
personally sign certification
§ 1997c. Intervention in actions
§ 1997d. Prohibition of retaliation
§ 1997e. Suits by prisoners
§ 1997f. Report to Congress
§ 1997g. Priorities for use of funds
§ 1997h. Notice to Federal departments
§ 1997i. Disclaimer respecting standards of care
§ 1997j. Disclaimer respecting private litigation
§ 1997. Definitions
As used in this subchapter--
(1) The term "institution" means
any facility or institution--
(A) which is owned, operated, or
managed by, or provides services on behalf of any State or
political subdivision of a State; and
(B) which is--
(i) for persons who are mentally
ill, disabled, or retarded, or chronically ill or handicapped;
(ii) a jail, prison, or other
correctional facility;
(iii) a pretrial detention
facility;
(iv) for juveniles--
(I) held awaiting trial;
(II) residing in such facility
or institution for purposes of receiving care or treatment; or
(III) residing for any State
purpose in such facility or institution (other than a
residential facility providing only elementary or secondary
education that is not an institution in which reside juveniles
who are adjudicated delinquent, in need of supervision,
neglected, placed in State custody, mentally ill or disabled,
mentally retarded, or chronically ill or handicapped); or
(v) providing skilled nursing,
intermediate or long-term care, or custodial or residential
care.
(2) Privately owned and operated
facilities shall not be deemed "institutions" under this
subchapter if--
(A) the licensing of such
facility by the State constitutes the sole nexus between such
facility and such State;
(B) the receipt by such
facility, on behalf of persons residing in such facility, of
payments under title XVI, XVIII [42 U.S.C.A. §§ 1381 et seq.,
1395 et seq.], or under a State plan approved under title XIX
[42 U.S.C.A. § 1396 et seq.], of the Social Security Act,
constitutes the sole nexus between such facility and such State;
or
(C) the licensing of such
facility by the State, and the receipt by such facility, on
behalf of persons residing in such facility, of payments under
title XVI, XVIII [42 U.S.C.A. §§ 1381 et seq., 1395 et seq.], or
under a State plan approved under title XIX [42 U.S.C.A. § 1396
et seq.], of the Social Security Act, constitutes the sole nexus
between such facility and such State;
(3) The term "person" means an
individual, a trust or estate, a partnership, an association, or
a corporation;
(4) The term "State" means any
of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, or any of the territories and
possessions of the United States;
(5) The term "legislative days"
means any calendar day on which either House of Congress is in
session.
§ 1997a. Initiation of civil
actions
(a) Discretionary authority of
Attorney General; preconditions
Whenever the Attorney General
has reasonable cause to believe that any State or political
subdivision of a State, official, employee, or agent thereof, or
other person acting on behalf of a State or political
subdivision of a State is subjecting persons residing in or
confined to an institution, as defined in section 1997 of this
title, to egregious or flagrant conditions which deprive such
persons of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States
causing such persons to suffer grievous harm, and that such
deprivation is pursuant to a pattern or practice of resistance
to the full enjoyment of such rights, privileges, or immunities,
the Attorney General, for or in the name of the United States,
may institute a civil action in any appropriate United States
district court against such party for such equitable relief as
may be appropriate to insure the minimum corrective measures
necessary to insure the full enjoyment of such rights,
privileges, or immunities, except that such equitable relief
shall be available under this subchapter to persons residing in
or confined to an institution as defined in section 1997(1)(B)(ii)
of this title only insofar as such persons are subjected to
conditions which deprive them of rights, privileges, or
immunities secured or protected by the Constitution of the
United States.
(b) Discretionary award of
attorney fees
In any action commenced under
this section, the court may allow the prevailing party, other
than the United States, a reasonable attorney's fee against the
United States as part of the costs.
(c) Attorney General to
personally sign complaint
The Attorney General shall
personally sign any complaint filed pursuant to this section.
§ 1997b. Certification
requirements; Attorney General to personally sign certification
(a) At the time of the
commencement of an action under section 1997a of this title the
Attorney General shall certify to the court--
(1) that at least 49 calendar
days previously the Attorney General has notified in writing the
Governor or chief executive officer and attorney general or
chief legal officer of the appropriate State or political
subdivision and the director of the institution of--
(A) the alleged conditions which
deprive rights, privileges, or immunities secured or protected
by the Constitution or laws of the United States and the alleged
pattern or practice of resistance to the full enjoyment of such
rights, privileges, or immunities;
(B) the supporting facts giving
rise to the alleged conditions and the alleged pattern or
practice, including the dates or time period during which the
alleged conditions and pattern or practice of resistance
occurred; and when feasible, the identity of all persons
reasonably suspected of being involved in causing the alleged
conditions and pattern or practice at the time of the
certification, and the date on which the alleged conditions and
pattern or practice were first brought to the attention of the
Attorney General; and
(C) the minimum measures which
the Attorney General believes may remedy the alleged conditions
and the alleged pattern or practice of resistance;
(2) that the Attorney General
has notified in writing the Governor or chief executive officer
and attorney general or chief legal officer of the appropriate
State or political subdivision and the director of the
institution of the Attorney General's intention to commence an
investigation of such institution, that such notice was
delivered at least seven days prior to the commencement of such
investigation and that between the time of such notice and the
commencement of an action under section 1997a of this title--
(A) the Attorney General has
made a reasonable good faith effort to consult with the Governor
or chief executive officer and attorney general or chief legal
officer of the appropriate State or political subdivision and
the director of the institution, or their designees, regarding
financial, technical, or other assistance which may be available
from the United States and which the Attorney General believes
may assist in the correction of such conditions and pattern or
practice of resistance;
(B) the Attorney General has
encouraged the appropriate officials to correct the alleged
conditions and pattern or practice of resistance through
informal methods of conference, conciliation and persuasion,
including, to the extent feasible, discussion of the possible
costs and fiscal impacts of alternative minimum corrective
measures, and it is the Attorney General's opinion that
reasonable efforts at voluntary correction have not succeeded;
and
(C) the Attorney General is
satisfied that the appropriate officials have had a reasonable
time to take appropriate action to correct such conditions and
pattern or practice, taking into consideration the time required
to remodel or make necessary changes in physical facilities or
relocate residents, reasonable legal or procedural requirements,
the urgency of the need to correct such conditions, and other
circumstances involved in correcting such conditions; and
(3) that the Attorney General
believes that such an action by the United States is of general
public importance and will materially further the vindication of
rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States.
(b) The Attorney General shall
personally sign any certification made pursuant to this section.
§ 1997c. Intervention in actions
(a) Discretionary authority of
Attorney General; preconditions; time period
(1) Whenever an action has been
commenced in any court of the United States seeking relief from
egregious or flagrant conditions which deprive persons residing
in institutions of any rights, privileges, or immunities secured
or protected by the Constitution or laws of the United States
causing them to suffer grievous harm and the Attorney General
has reasonable cause to believe that such deprivation is
pursuant to a pattern or practice of resistance to the full
enjoyment of such rights, privileges, or immunities, the
Attorney General, for or in the name of the United States, may
intervene in such action upon motion by the Attorney General.
(2) The Attorney General shall
not file a motion to intervene under paragraph (1) before 90
days after the commencement of the action, except that if the
court determines it would be in the interests of justice, the
court may shorten or waive the time period.
(b) Certification requirements
by Attorney General
(1) The Attorney General shall
certify to the court in the motion to intervene filed under
subsection (a) of this section--
(A) that the Attorney General
has notified in writing, at least fifteen days previously, the
Governor or chief executive officer, attorney general or chief
legal officer of the appropriate State or political subdivision,
and the director of the institution of- -
(i) the alleged conditions which
deprive rights, privileges, or immunities secured or protected
by the Constitution or laws of the United States and the alleged
pattern or practice of resistance to the full enjoyment of such
rights, privileges, or immunities;
(ii) the supporting facts giving
rise to the alleged conditions, including the dates and time
period during which the alleged conditions and pattern or
practice of resistance occurred; and
(iii) to the extent feasible and
consistent with the interests of other plaintiffs, the minimum
measures which the Attorney General believes may remedy the
alleged conditions and the alleged pattern or practice of
resistance; and
(B) that the Attorney General
believes that such intervention by the United States is of
general public importance and will materially further the
vindication of rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States.
(2) The Attorney General shall
personally sign any certification made pursuant to this section.
(c) Attorney General to
personally sign motion to intervene
The Attorney General shall
personally sign any motion to intervene made pursuant to this
section.
(d) Discretionary award of
attorney fees; other award provisions unaffected
In any action in which the
United States joins as an intervenor under this section, the
court may allow the prevailing party, other than the United
States, a reasonable attorney's fee against the United States as
part of the costs. Nothing in this subsection precludes the
award of attorney's fees available under any other provisions of
the United States Code.
§ 1997d. Prohibition of
retaliation
No person reporting conditions
which may constitute a violation under this subchapter shall be
subjected to retaliation in any manner for so reporting.
§ 1997e. Suits by prisoners
(a) Applicability of
administrative remedies
No action shall be brought with
respect to prison conditions under section 1983 of this title,
or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.
(b) Failure of State to adopt or
adhere to administrative grievance procedure
The failure of a State to adopt
or adhere to an administrative grievance procedure shall not
constitute the basis for an action under section 1997a or 1997c
of this title.
(c) Dismissal
(1) The court shall on its own
motion or on the motion of a party dismiss any action brought
with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility if the court is
satisfied that the action is frivolous, malicious, fails to
state a claim upon which relief can be granted, or seeks
monetary relief from a defendant who is immune from such relief.
(2) In the event that a claim
is, on its face, frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief from
a defendant who is immune from such relief, the court may
dismiss the underlying claim without first requiring the
exhaustion of administrative remedies.
(d) Attorney's fees
(1) In any action brought by a
prisoner who is confined to any jail, prison, or other
correctional facility, in which attorney's fees are authorized
under section 1988 [FN1] of this title, such fees shall not be
awarded, except to the extent that--
(A) the fee was directly and
reasonably incurred in proving an actual violation of the
plaintiff's rights protected by a statute pursuant to which a
fee may be awarded under section 1988 [FN1] of this title; and
(B)(i) the amount of the fee is
proportionately related to the court ordered relief for the
violation; or
(ii) the fee was directly and
reasonably incurred in enforcing the relief ordered for the
violation.
(2) Whenever a monetary judgment
is awarded in an action described in paragraph (1), a portion of
the judgment (not to exceed 25 percent) shall be applied to
satisfy the amount of attorney's fees awarded against the
defendant. If the award of attorney's fees is not greater than
150 percent of the judgment, the excess shall be paid by the
defendant.
(3) No award of attorney's fees
in an action described in paragraph (1) shall be based on an
hourly rate greater than 150 percent of the hourly rate
established under section 3006A of Title 18, for payment of
court-appointed counsel.
(4) Nothing in this subsection
shall prohibit a prisoner from entering into an agreement to pay
an attorney's fee in an amount greater than the amount
authorized under this subsection, if the fee is paid by the
individual rather than by the defendant pursuant to section 1988
[FN1] of this title.
(e) Limitation on recovery
No Federal civil action may be
brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury.
(f) Hearings
(1) To the extent practicable,
in any action brought with respect to prison conditions in
Federal court pursuant to section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility, pretrial proceedings in which
the prisoner's participation is required or permitted shall be
conducted by telephone, video conference, or other
telecommunications technology without removing the prisoner from
the facility in which the prisoner is confined.
(2) Subject to the agreement of
the official of the Federal, State, or local unit of government
with custody over the prisoner, hearings may be conducted at the
facility in which the prisoner is confined. To the extent
practicable, the court shall allow counsel to participate by
telephone, video conference, or other communications technology
in any hearing held at the facility.
(g) Waiver of reply
(1) Any defendant may waive the
right to reply to any action brought by a prisoner confined in
any jail, prison, or other correctional facility under section
1983 of this title or any other Federal law. Notwithstanding any
other law or rule of procedure, such waiver shall not constitute
an admission of the allegations contained in the complaint. No
relief shall be granted to the plaintiff unless a reply has been
filed.
(2) The court may require any
defendant to reply to a complaint brought under this section if
it finds that the plaintiff has a reasonable opportunity to
prevail on the merits.
(h) Definition
As used in this section, the
term "prisoner" means any person incarcerated or detained in any
facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law or the
terms and conditions of parole, probation, pretrial release, or
diversionary program.
§ 1997f. Report to Congress
The Attorney General shall
include in the report to Congress on the business of the
Department of Justice prepared pursuant to section 522 of Title
28--
(1) a statement of the number,
variety, and outcome of all actions instituted pursuant to this
subchapter including the history of, precise reasons for, and
procedures followed in initiation or intervention in each case
in which action was commenced;
(2) a detailed explanation of
the procedures by which the Department has received, reviewed
and evaluated petitions or complaints regarding conditions in
institutions;
(3) an analysis of the impact of
actions instituted pursuant to this subchapter, including, when
feasible, an estimate of the costs incurred by States and other
political subdivisions;
(4) a statement of the
financial, technical, or other assistance which has been made
available from the United States to the State in order to assist
in the correction of the conditions which are alleged to have
deprived a person of rights, privileges, or immunities secured
or protected by the Constitution or laws of the United States;
and
(5) the progress made in each
Federal institution toward meeting existing promulgated
standards for such institutions or constitutionally guaranteed
minima.
§ 1997g. Priorities for use of
funds
It is the intent of Congress
that deplorable conditions in institutions covered by this
subchapter amounting to deprivations of rights protected by the
Constitution or laws of the United States be corrected, not only
by litigation as contemplated in this subchapter, but also by
the voluntary good faith efforts of agencies of Federal, State,
and local governments. It is the further intention of Congress
that where Federal funds are available for use in improving such
institutions, priority should be given to the correction or
elimination of such unconstitutional or illegal conditions which
may exist. It is not the intent of this provision to require the
redirection of funds from one program to another or from one
State to another.
§ 1997h. Notice to Federal
departments
At the time of notification of
the commencement of an investigation of an institution under
section 1997a of this title or of the notification of an
intention to file a motion to intervene under section 1997c of
this title, and if the relevant institution receives Federal
financial assistance from the Department of Health and Human
Services or the Department of Education, the Attorney General
shall notify the appropriate Secretary of the action and the
reasons for such action and shall consult with such officials.
Following such consultation, the Attorney General may proceed
with an action under this subchapter if the Attorney General is
satisfied that such action is consistent with the policies and
goals of the executive branch.
§ 1997i. Disclaimer respecting
standards of care
Provisions of this subchapter
shall not authorize promulgation of regulations defining
standards of care.
§ 1997j. Disclaimer respecting
private litigation
The provisions of this
subchapter shall in no way expand or restrict the authority of
parties other than the United States to enforce the legal rights
which they may have pursuant to existing law with regard to
institutionalized persons. In this regard, the fact that the
Attorney General may be conducting an investigation or
contemplating litigation pursuant to this subchapter shall not
be grounds for delay of or prejudice to any litigation on behalf
of parties other than the United States.
Source:
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