Write Your Complaint

All cases are comprised of documents prepared and filed by litigants. The most common documents are the complaint, answer and motions. The first document that you must write is called a COMPLAINT ( download ). The function of the COMPLAINT is to tell the Court and defendant the reason for filing the lawsuit and what relief you desire. The COMPLAINT is made up of four main parts:

1. The NAME AND ADDRESS of the plaintiff and the defendant. These are usually listed in the first and second paragraphs respectively. If there is more than one defendant, list each defendant's name and address in separate additional paragraphs.
2. The JURISDICTION or reason your case is being filed in this federal court. See 28 U.S.C. § 1331 et seq.
3. The ALLEGATIONS or claims that you are making against the defendant. Place each allegation in a short, clearly-written paragraph. See Rule 10 Federal Rules of Civil Procedure.
4. The RELIEF you are seeking from the Court. This can be money or something you want the judge to make the defendant do or stop doing. This information is usually written in the last paragraph of the COMPLAINT.

Please be sure to number each paragraph except for the paragraph that asks the Court for relief. If you believe you are entitled to a trial by jury, you must indicate in a paragraph following the relief requested that you claim trial by jury. See Rule 38(b) of the Federal Rules of Civil Procedure.

Do not worry that your COMPLAINT is not professionally written. The Court will take into consideration that you are a PRO SE litigant and untrained in drafting legal documents. You should, however, make every effort to state your case in clear, concise terms. See Rule 8 and Rule 10 of the Federal Rules of Civil Procedure.

Forms for filing a petition under Title 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody or a motion under Title 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody are available from the PRO SE clerk.

All pleadings submitted to this Court must be on 8 1/2 x 11" paper. See Rule 5.1 of the Local Rules of this Court.

File Your Complaint

Your next step is to file the COMPLAINT with the Court. In addition to filing the COMPLAINT, the following forms will have to be completed and submitted with the complaint:

1. A Civil Cover Sheet
2. A Civil Category Sheet

You will also have to pay a filing fee of $402.00 (see fee schedule) at the time you file your COMPLAINT and cover sheets. The filing fee for a petition for writ of habeas corpus is $5.00. The filing fee, however, may be waived if you cannot afford to pay it. For more information, see below. All checks or money orders should be made payable to: "CLERK, UNITED STATES DISTRICT COURT".

IF YOU CANNOT AFFORD TO PAY THE FILING FEE you may be allowed to have the filing fee waived if you fill out the following form and send it to the Court with the COMPLAINT and Cover Sheets:

1. Application to Proceed Without Prepayment of Fees and Affidavit

When you file the COMPLAINT, Cover Sheets, and Application to Proceed Without Prepayment of Fees, each of these will be reviewed and forwarded to a United States District Court Judge for his or her consideration. If your Application is approved, the filing fee will be waived. If your Application is not approved, you must pay the filing fee.

Although not required to prepay the filing fees for civil complaints and appeals, PRISONERS are required to pay the full filing fee of $402.00 for civil actions and $455.00 for appeals in forma pauperis. If insufficient funds exist in the prisoner's account, the Court must assess and, when funds exist, collect, an initial partial filing fee of 20 percent of the greater of:

1. the average monthly deposits to the prisoner's account; or
2. the average monthly balance in the prisoner's account for the prior six-month period.

Thereafter, the prisoner will be required to make monthly payments of 20 percent of the preceding month's income. The agency having custody of the prisoner must forward payments from the prisoner's account to the clerk of court each time the amount exceeds $10.00 until the filing fees are paid in full. See 28 U.S.C. § 1915 regarding proceedings in forma pauperis pursuant to the Prison Litigation Reform Act (Pub. L. No. 104-134, 110 Stat. 1321.)

A PRISONER who cannot pay the entire filing fee and who is seeking to proceed in forma pauperis must submit along with the complaint, cover sheet and category sheet:

1. the Application to Proceed Without Prepayment of Fees and Affidavit (AO 240) form with:
   • a. completed certificate portion of the AO 240 form by the institution of incarceration; and
2. certified copy of the prisoner's trust fund account (or institutional equivalent) for the prior sixmonth period.

Judicial Review of Complaint

For a plaintiff proceeding in forma pauperis, the Court will review the complaint and other documents and shall dismiss the case at any time if the Court determines that:

1. the allegation of poverty is untrue;
2. the action or appeal --
   • a. is frivolous or malicious;
   • b. fails to state a claim on which relief may be granted; or
   • c. seeks monetary relief against a defendant who is immune from such relief.

The Court will also review the prior submissions of prisoners to determine if a prisoner proceeding IFP has, on three or more occasions, while incarcerated, brought an action or appeal in a federal court that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted. Under the Prison Litigation Reform Act, unless a prisoner is under imminent danger of serious physical injury, he or she may not bring a civil action or appeal a judgment in a civil action or proceeding in forma pauperis, if, on three or more previous occasions, the prisoner has brought an action or appeal in a federal court that was dismissed on the ground that the action or appeal was frivolous, malicious, or failed to state a claim upon which relief could be granted. In cases in which the prisoner has had three or more previous matters dismissed for one or more of these reasons, the prisoner must pay the entire filing fee at the time the civil action or appeal is filed or his action or appeal may be dismissed. See 28 U.S.C. § 1915(g).

Even if your complaint is dismissed, you will still be obligated to pay the full amount of the filing fee.

Service of Process

If you have paid the filing fee or have been granted leave to proceed in forma pauperis, the clerk will issue a summons which will be sent to you.

Your next step is to SERVE (inform) each of the defendants that he or she is being sued. This may be done in two ways:

1. NOTICE & REQUEST FOR WAIVER OF SERVICE
   If you are suing the United States (and its agencies, corporations, or officers) or a state, local or foreign government, you CANNOT use Form AO 398 and YOU MUST arrange for Service of Process (which is described below).
   
   You may notify the defendant(s) of the commencement of the lawsuit by sending a "NOTICE OF LAWSUIT AND REQUEST FOR WAIVER OF SERVICE OF SUMMONS" - Form AO 398 and AO 399 along with a copy of the complaint by first-class mail or other reliable means. You must also include a copy of the Waiver of Service of Summons form - AO 399 and a self addressed return envelope. See Rule 4(d) of the Federal Rules of Civil Procedure. If service is waived by the defendant the Waiver of Service form is returned to the plaintiff for filing with the Court and the action shall proceed. If the defendant does not waive service, the plaintiff must proceed with service of process.
   
   
2. SERVICE OF PROCESS
   Making "service of process" involves serving a copy of a summons and a copy of the complaint to each of the defendants.
   
   A SUMMONS is a writ used to notify the person named as the defendant of the commencement of the civil action and the requirement to appear and answer. The summons must contain the name of the Court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address and the time within which the rules require the defendant to answer the complaint.
   
   If a defendant has not "waived service of summons" OR you are suing a government (federal, state, local, foreign) YOU MUST ARRANGE to have a copy of an original summons and a copy of the complaint served upon each defendant.
   
   You must complete a summons for each defendant and present each summons to the Clerk who will sign and place the court seal on each summons. A copy of the summons must be served upon each defendant with a copy of the complaint. The original summons should be kept by the person making service.
   
   You can make service of process by having a "disinterested" person who is over the age of eighteen deliver copies of the SUMMONS and COMPLAINT to each of the defendants. When using this method of making service of process, have the server fill out the back of the original SUMMONS, and send it to the Court. See Rule 4, Federal Rules of Civil Procedure.
   
   If you have filed an Application to Proceed Without Prepayment of Fees and it has been allowed by a Judge, service of process will be made upon each defendant, without cost to you, by the United States Marshal. However, you are responsible for completing all of the forms required by the Marshal for service. You will receive instructions on this matter from the PRO SE Clerk after the Judge has approved your application.
   
   If you have filed a petition under 28 U.S.C. § 2241 for a writ of habeas corpus, a petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody, or a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody, an order will be issued by the Court concerning service upon the respondents. No Summons are issued in these types of cases.
   
   NOTE: Service of the SUMMONS and COMPLAINT on the defendant must be made within 90 days from the date the complaint was filed or the case will be subject to dismissal. See Rule 4(m), Federal Rules of Civil Procedure.

For more information, read Rule 4 of the Federal Rules of Civil Procedure or contact the PRO SE Clerk.