Failure to Protect from Assault
The first thing we recommend when someone has been assaulted is to use the sick call process to seek medical care for any injuries, and to ask the medical staff to document any injuries, by taking photographs or making medical notes. If someone wants to file a lawsuit arguing that jail or prison staff failed to protect them from being hurt, that person also needs to file a grievance about the incident, using the jail or prison’s internal grievance process, and take (“exhaust”) any appeals that can be taken inside that process before going to court. Depending on the issue, there are different types of claims and different kinds of courts (“jurisdictions”) where people can file a lawsuit—it is important to file the right type of claim in the right kind of court or the claim could be dismissed. Because of the limits of our resources, our office is not able to represent every person who writes to us regarding failure to protect 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
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.
