Discrimination
If someone in prison or jail believes they have been discriminated against by a facility, staff member, or policy, the first thing we recommend is that they file a grievance using the facility’s administrative remedy procedure. If the grievance process does not fix the problem, it is also possible to file a lawsuit under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. Because of the limits of our resources, our office is not able to represent every person who writes to us regarding discrimination claims. However, we read every letter that we get, and, when we cannot offer to represent someone, we write back and send forms, manuals or other information if we have it, to help people in prison file a lawsuit on their own.
To succeed in a discrimination lawsuit, a person needs to prove three things. First, they need to prove that the prison or jail treated them worse than they treat “similarly situated” people of a different race, nationality, gender, or sexual orientation. Second, they need to prove that the difference in treatment they received was based on the prison staff purposefully and intentionally discriminating against them based on their race, nationality, gender, or sexual orientation, and that was not based on a different, legitimate reason. Because of this element, if someone has direct proof that the staff meant to discriminate—like racist comments from prison or jail staff—it is important to include that in the complaint. Third, the person has to prove that the discriminatory action was not done to support a legitimate government interest. Legitimate government interests are things like health, safety, or security for people in prison, prison staff, or the general public. Even if an action is discriminatory, a court can still say it is allowed if it was taken to support these kinds of interests.
Helpful Links and Resources:
ACLU – Know Your Rights, Prisoners’ Rights
The standards in this section apply to both people who were assaulted by another person in jail or prison or by a staff member of the jail or prison, but you should know that, when someone is assaulted by a staff member, the standards in the use of force section may also apply.
Most claims of failure to protect fall into one of two categories. Claims that staff were deliberately indifferent to a substantial risk of serious harm can be filed in federal court as violations of the Eighth Amendment of the U.S. Constitution, by people who are in jail or in prison. Claims that staff were negligent in failing to meet their duty to protect people in jail or prison arise under state law. Someone who is claiming they were negligently not protected by staff in jail can file a negligence claim under state law in the Superior Court of the county where the incident occurred. Someone claiming that they were negligently not protected by staff in a prison can file a negligence claim under state law in the North Carolina Industrial Commission.
