42 U.S.C.A. 1997-1997j
42 U.S.C.A. 1997
TITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER 21 -- CIVIL RIGHTS SUBCHAPTER I-A -- INSTITUTIONALIZED PERSONS
Current through P.L. 104-150, approved 6-3-96
§ 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.
1381 et seq., 1395 et seq.], or under a State plan approved under
title XIX [42 U.S.C. 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. 1381 et seq., 1395
et seq.], or under a State plan approved under title XIX [42 U.S.C.
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,
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.
§ 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 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 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 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.
|