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Tom Pugh March 13, 2020

When you are in prison or jail in Kentucky, you still have certain constitutional rights. You have the right to be free from cruel and unusual punishment, the right to medical care, the right to be in a safe environment, among other rights too numerous to list. That does not mean you get the best medical care, or are free from all punishment, or protected from all dangers in the jail or prison.

In most situations, the claims you are attempting to establish are “cruel and unusual punishment” or “deliberate indifference” under 42 U.S.C. 1983. In Kentucky, you have a one year statute of limitations for civil rights claims, and in Ohio, it is two years. That means if you wish to address your claim, you need to do so in less than one-year from when it happened in Kentucky, and less than two years if you were in Ohio when it happened.  If you went to a lawyer the day before the claim hit one year in Kentucky, you would likely not be able to file a claim. So do not wait around if you think you have a claim, contact a lawyer. You run the risk of ruining your claims if you try to do it on your own.

There is one big issue if you are still incarcerated: You must exhaust your administrative appeals pursuant to the PLRA (Prison Litigation Reform Act). You must file a grievance and appeal every denial up to the head jailer or warden of your facility. So, even when the captain or supervisor denies your grievance, you still need to keep appealing it until you get to the head jailer or warden. If you did not get a denial, you need to file an appeal anyway. You need to follow the grievance procedures outlined in your facility, which gives you certain time limits to file a grievance. And if you get switched to another facility, you still need to file your appeals anyway. Once your grievance is denied, then you have the right to file a suit, if your claim has merit. You must file the grievance within the time that the violation is occurring or within a reasonable time period afterwards. The appeals process must address whatever it is that they (the jail, the prison, the guards or officers, or other staff like nurses and doctors) have done to you.  The appeals process pauses the statute of limitations, but it is best not to rely on that since time is limited.

If you get released, then you do not have to follow the PLRA and file grievances. But you CANNOT file a lawsuit while you are still in custody of a jail or prison until you have followed the PLRA and filed the necessary grievances.

The biggest problem is making sure evidence is kept, like videos, photos, cell phone camera footage, witnesses, etc. If your rights are violated in jail or prison, hurry up and contact an attorney, and the attorney can send a preservation of evidence letter so the jail or prison does not delete camera footage and videos. The jails and prisons do not keep video footage that long, sometimes less than seven days and usually no more than 30 days. So an attorney can send that preservation letter and get the jail or prison to save the video in case it is important. So even if you are in custody, send a letter to an attorney, or call someone to call that attorney, to get the evidence saved. Even if you are going to get out in a week, do not risk that valuable evidence disappearing.

Contact us if you have any questions. We offer free consultations.