Sociology Area

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
PRO SE LITIGANT GUIDEhttp://www.tbn.org/contact/contact-form
OFFICE OF THE CLERK
April 2006
TABLE OF CONTENTS
SECTION PAGE NO.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section I: Important Issues You Should Consider Before You Decide To
Represent Yourself In An Action Before This Court . . . . . . . . . . . . . . . . . . . . . . . 2
Section II: Procedure For Filing A Civil Rights Action Under Title 42 U.S.C.
§1983 and 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section III: Actions Brought By Prisoners Appearing Pro Se . . . . . . . . . . . . . . . 15
Section IV: Employment Discrimination Cases . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section V: Applications to Proceed In Forma Pauperis . . . . . . . . . . . . . . . . . . . . 17
Attachments:
Fee Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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INTRODUCTION
This guide is designed to assist you if (1) you want to file a lawsuit in the
federal court or you have an active role, either as a plaintiff or defendant, in a case
that you or someone else has filed already in federal court, and 92) you have
elected to proceed without the assistance of a trained and licensed attorney.
Some basic definitions that you need to be aware of regarding commonly
used “terms” in civil actions pending before this court are as follows:
Plaintiffs and defendants in court cases are generally referred to as the
“parties” or “litigants.” The plaintiff asserts a claim or right protected by law
against the defendant; the defendant denies the claim or right, and the court
determines whether the asserted claims or rights have substance or merit. The
majority of the litigants who appear in this court are represented by an attorney
who has been trained in the law and is familiar with the applicable court rules and
procedures. Parties or litigants who are not represented by licensed attorneys, who
elect to represent themselves, generally are referred to as pro se parties or pro se
litigants. Likewise, plaintiffs or defendants who represent themselves generally
are referred to as pro se plaintiffs or pro se defendants.
This Guide will not answer all your questions about what you need to do to
represent yourself effectively as a pro se litigant. The Guide outlines the basic
steps that are required to properly file a civil action or lawsuit with this court. It
also provides some general guidance on the next steps in the process of litigating
the action once you have filed it with the clerk of court. However, you are
responsible for learning about and following the procedures that govern the court
process. Although the staff of the Clerk’s office can provide pro se litigants with
general information concerning court rules and procedures, they are forbidden , as
a matter of law, from providing legal advice, from interpreting and applying court
rules, or otherwise participating, directly or indirectly, in any action.
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A WORD OF ADVICE: Self-representation carries certain responsibilities
and risks that pro se litigants should be aware of before they proceed. The court
encourages all individuals who are thinking about pro se or self-representation to
carefully review the risks associated with self-representation and to inform
themselves of the potential consequences.
WARNING: Rule 11 of the Federal Rules of Civil Procedure prohibits the
filing of lawsuits that are clearly frivolous or filed merely to harass someone. If
after reviewing your complaint, the court determines that you have filed a lawsuit
for an improper or clearly unnecessary purpose, it may impose sanctions against
you, including ordering you to pay the legal fees of the person or persons against
whom you filed the lawsuit.
SECTION I
IMPORTANT ISSUES YOU SHOULD CONSIDER
BEFORE DECIDING TO REPRESENT YOURSELF
IN AN ACTION BEFORE THE FEDERAL COURT
A. IS THE FEDERAL COURT THE APPROPRIATE COURT TO HEAR
YOUR DISPUTE?
The United States District Court for the Western District of North carolina
is one of 94 trial courts in the federal court system. In the State of North Carolina
there are three United States District Courts which are the Eastern, Middle and
Western Districts. Each district is divided by the counties of which it is statutorily
comprised. The United States District Court for the Western District of North
Carolinas is divided into four (4) divisions, Asheville, Bryson City, Charlotte and
Statesville. The divisions are comprised by county as follows:
ASHEVILLE DIVISION: if the defendant(s) reside in, or if the action on
which the lawsuit is based occurred in one of the following counties, it is an
Asheville Division Case: Avery, Buncombe, Burke, Cleveland, Haywood,
Henderson, Madison, McDowell, Mitchell, Polk, Rutherford, Transylvania
and Yancey counties.
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BRYSON CITY DIVISION: if the defendant(s) reside in, or if the action on
which the lawsuit is based occurred in one of the following counties, it is an
Bryson City Division case: Cherokee, Clay, Graham, Jackson, Macon and
Swain counties.
CHARLOTTE DIVISION: if the defendant(s) reside in, or if the action on
which the lawsuit is based occurred in one of the following counties, it is an
Charlotte Division case: Anson, Gaston, Mecklenburg and Union counties.
STATESVILLE DIVISION: if the defendant(s) reside in, or if the action
on which the lawsuit is based occurred in one of the following counties, it is
an Statesville Division case: Alexander, Alleghany, Ashe, Caldwell,
Catawba, Iredell, Lincoln, Watauga and Wilkes counties.
Each of the three staffed offices in the cities of Asheville, Charlotte and
Statesville are available to accept and file new law suits, pleadings, hold court
proceedings and carry out the assigned duties and business of the court during the
hours of 8:30 A.M. to 12:30 P.M. and 1:30 P.M. to 4:00 P.M., Monday through
Friday.
As is the case in all of the federal trial courts, this court is authorized only to
hear disputes that fall into the following four categories:
1. Those that deal with a question involving the United States Constitution;
2. Those that involve questions of federal - as opposed to state - law;
3. Those that involve the United States of America as a party, whether plaintiff
or defendant; and
4. Those that involve a dispute among residents of different states with an
amount in controversy over $75,000.00.
Your complaint must fall under one of these categories to be filed in federal
court.
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B. IS THERE AN ALTERNATIVE TO APPEARING PRO SE
(REPRESENTING YOURSELF) THAT IS AFFORDABLE?
Most people who file and pursue litigation in the federal court employ a
licensed attorney who practices law, has appeared in court, and is familiar with the
rules of procedure that govern court process. If you would prefer to have an
attorney to represent you, but you are unable to afford one, you should consider
contacting the local bar association whose staff can explain the various options for
obtaining and paying for legal services.
If you cannot find an attorney to represent you, you have the right to pursue
your claims in the court by appearing without representation or pr se, a Latin
phrase that means “for yourself.” Be aware that appearing as a pro se litigant, you
are representing only yourself and presenting only your claims or defenses. Under
the law, you cannot speak for another person, a company, or other entity such as a
club or association that include other individuals. When you appear pro se, you
must follow the same rules and procedures that licensed attorneys who practice in
this court must follow. Generally, judges hold pro se litigants to the same
standards of professional responsibility as trained attorneys.
C. IF YOU PLAN TO REPRESENT YOURSELF, WHERE CAN YOU GO
TO REVIEW THIS COURT’S RULES OF PROCEDURE AND
APPLICABLE FEDERAL LAWS?
As a pro se litigant, you should be familiar with the appropriate sets of
federal rules of procedure. These rules set forth the general procedural
requirements for litigating cases in all federal courts. As a pro se litigant in a civil
case, you should be familiar with the Federal Rules of Civil Procedure and the
Federal Rules of Evidence. If you are a pro se defendant in a criminal case, you
should be familiar with the Federal Rules of Criminal Procedure and Federal Rules
of Evidence. Federal laws are located in the United States Code, which is
abbreviated as “U.S.C.” These rules and laws could be available in your local
public or county government libraries.
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As a pro se litigant, you also should be familiar with the District Court
Rules of Practice, a set commonly referred to as local rules that apply specifically
to court proceedings in this court. The local rules cover the general procedure and
flow of any action filed in the Western District of North Carolina.
The local rules can be reviewed at a public law library and are located in the
North Carolina Rules of Court - Federal published by West Publishing or
Annotated Rules of North Carolina available in the North Carolina Statutes
published by Michie. The local rules are available for purchase in each of the
Clerk’s three staffed offices for a cost of $10.00 or can be downloaded at no
charge from the court’s website, www.ncwd.uscourts.gov. The website can also
be used to obtain forms, scanned documents, review case dockets and directions to
all courthouses located within our district.
D. ARE THERE CERTAIN TYPES OF CASES IN WHICH LITIGANTS
TYPICALLY REPRESENT THEMSELVES?
As noted earlier, a litigant may appear pro se in any case that is properly
within the jurisdiction of this court. There are three (3) categories of cases that are
most often filed by pro se litigants. They are as follows:
1. Cases alleging denial of civil rights under Title 42 U.S.C. §1983;
2. Cases alleging employment discrimination under Title 42 U.S.C. §2000(e);
and
3. Cases filed by persons who are in jail or prison and who challenge their
sentences or conditions of confinement.
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E. HOW DO YOU START A NEW CASE?
FILE A COMPLAINT: the plaintiff or person bringing the lawsuit to court files a
complaint. The complaint can be filed by hand-delivering it or mailing it to any of
the staffed divisional offices of this district. The addresses and telephone numbers
for each office are listed as follows:
U.S. District Court Clerk, Western District of North Carolina, Asheville Division,
100 Otis St., Rm. 309, Asheville, NC 28801, Phone: 828-771-7200.
U.S. District Court Clerk, Western District of North Carolina, Charlotte Division,
401 W. Trade St., Rm. 210, Charlotte, NC 28202, Phone: 704-350-7400.
U.S. District Court Clerk, Western District of North Carolina, Statesville Division,
200 W. Broad St., Rm. 100, Statesville, NC 28677, Phone: 704-883-1000.
The case will be filed and assigned to the correct divisional office regardless of
which staffed office the complaint is filed. This case assignment is determined in
the Western District of North Carolina as stated previously in Section I and is
based on the defendant or defendants’ county of residence or the place where the
incident is alleged to have occurred.
Whether you deliver or mail your complaint to the court, you must submit:
1) The original of the complaint along with any copies you would like
returned. Enclose a self-addressed postage paid envelope for any copies
you have included for return.
2) A completed cover sheet.
3) The $350.00 filing fee (unless you are proceeding in forma pauperis as
discussed in Sections I(G) and V of this Guide). The complaint outlines a
problem or reason for the lawsuit, also know as the cause of action. This
complaint is given a case number and assigned to a district judge or
magistrate judge.
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SERVE THE COMPLAINT: Each defendant or person whom the plaintiff
claims is responsible for the problem must be notified of the lawsuit through a
process that is specified under law. The responsibility for notifying each
defendant rests with the plaintiff and is referred to as service of process. The
provisions for service of process are described in Rule 4 of the Federal Rules of
Civil Procedure. If these service of process requirements are not followed
correctly, the case can be dismissed for failure to effect proper service of process.
The defendant(s) can be notified by service of a summons. You can obtain
the standard summons form from the clerk’s office or the court’s website at
www.ncwd.uscourts.gov. After you complete this summons form, staff of the
clerk’s office officially issue the summons; this means that an authorized court
employee will sign the form and emboss it with the official seal of the court. The
summons and complaint are then served on the defendant.
Detailed provisions on how to serve the defendant are contained in Rule 4
of the Federal Rules of Civil Procedure. You should carefully review the rule to
make sure that you are familiar with those provisions. The service of process
requirement can be satisfied in one of four ways.
1. Personal Service: here you direct someone else to deliver or serve a copy of
the complaint and summons on the defendant(s). Such service can be
performed by anyone who is over eighteen years of age and who is not a
party in the case. Constables and private process servers will do this for a
fee. The person who serves the summons must record on the back of the
summons form his or her name, the name of the person who was served, and
the date and time of the service. This section of the summons form is
referred to as the return of service, and if it is not completed, service of
process is not complete. Rule 4 requires confirmation that service has been
completed. Such confirmation of proof that the documents have been
served on the defendant requires that the original summons form with the
return of service completed be returned to the court and that a copy of the
form be left with the defendant. Another copy of this return of service
should be retained by you for your records.
2. Waiver of Service: Rule 4 permits a defendant to waive service of process.
That means the defendant agrees to respond to your complaint without
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being served with it. The clerk’s office can provide you with a waiver form
tha you can mail to the defendant along with a copy of your complaint. If
the defendant completes and returns the waive, you will be spared the
burden of service. If you use this form of service, you should file a copy of
your request to the defendant for wiaver with the clerk’s office. If the
waiver is then signed by the defendant and returned to you, the original
signed waiver form should be filed with the clerk’s office to indicate that
the complaint has been served. Another copy of this waiver should be
retained by you for your records.
3. Service by Mail: Rule 4 permits that the laws of the State in which the
district is located govern service of process. The laws of the State of North
Carolina permit for service of process by certified or registered mail. This
means that you may mail a copy of the summons and complaint to each
named defendant by registered or certified mail, return receipt requested,
addressed to the party to be served, and delivering to the addressee. This
service is governed by the North carolina rules of civil Procedure, rule
4(j)(l)(c). When you receive the receipt card indicating that the defendant(s)
has received your complaint, the receipt card should be attached to a copy of
the summons for each defendant and filed with the clerk’s office. Another
copy of each returned receipt card and summons should be retained by you
for your records.
4. Service by the U.S. Marshal: If a judge approves your application to
proceed in forma pauperis (waiver of the requirement to pay the $350.00
case filing fee as described in Section V of this Guide), the court will
generally direct process to issue and provide for service by the U.S.
Marshal, if your case has been determined to have substance or merit.
After you file your complaint with the clerk’s office, you have 120 days to
service a copy of it and the summons on the defendant(s). It is your responsibility
to effect service; if you fail to do so within the 120 days, your case may be
dismissed.
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File and Serve the Response: Once the defendant(s) has been served with a
copy of the complaint, the defendant(s) must file with the court an answer or some
other response within the specified number of days. Under the rules governing
service of process, each defendant is required to provide a copy of the response on
the plaintiff.
Once each defendant has filed a response, the case is considered at issue.
F. WHAT HAPPENS WHEN A CASE IS AT ISSUE?
Local Rule (LR) 16.1 governs the pretrial conference procedures for this
district. You and the other represented parties are required to confer as provided
by Federal Rule of Civil Procedure 26(f) and file a proposed discovery plan within
five (5) days of the conference which shall serve as a guideline for the court in
issuing a scheduling order. Once the discovery plan has been filed the assigned
judge will enter a Pretrial Order unless the parties request a pretrial conference
with the court. If requested, the pretrial conference should be held within twelve
(12) days of the filing of the discovery plan (LR 16.1(b)). Once the scheduling
order is in place then the case may proceed in accordance with the deadlines
established within the order and the Federal Rules of Civil Procedure.
CIVIL CASES ASSIGNED TO A DISTRICT JUDGE
If your case is assigned to a district judge , then under the authority of Local
Rule (LR) 72.1, it could be referred to a magistrate judge for assistance in
managing it. All subsequent court proceedings may be conducted before that
magistrate judge. You have the opportunity to consent to jurisdiction of the
magistrate judge to manage and hear all proceedings on your case including final
disposition of your claims. At case opening, a package will be provided to you
which will contain a form entitled “Consent to proceed before a Magistrate
Judge/Refusal to consent to proceed before a Magistrate Judge.” The case will be
reassigned to the magistrate judge only if all parties consent.
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CIVIL CASES ASSIGNED TO A MAGISTRATE JUDGE
If your case is assigned to a magistrate judge, you have the opportunity to
consent to jurisdiction of the magistrate judge to manage and hear all proceedings
on your case including final disposition of your claims. You also have the
opportunity to refuse the assignment of the case to a magistrate judge and request
reassignment of the case to a district judge. At case opening, a package will be
provided to you which will contain a form entitled “Consent to proceed before a
Magistrate Judge/Refusal to consent to proceed before a Magistrate Judge.”
This consent or refusal form should be served on all defendants along with
the service of the summons and complaint as set forth in LR 73.1. The plaintiff
should execute and file his/her copy of this form before seeking service of the
summons and complaint on the defendant(s) (refer to LR 73.1).
Filing of Motions and Objections: Either party – the plaintiff or defendant –
may request that the court take specific action related to the case. To do so, the
party prepares a formal request or what is referred to as a motion. Motion practice
is governed by Rule 7 of the Federal Rules of Civil Procedure along with LR 7.1.
The party must sign the motion and submit it for filing to the clerk of court. A
copy of the motion must also be sent to the opposing party or party’s attorney.
The opposing party may file with the clerk of court, an opposition or response to
the motion. This response sets forth the opposing party’s reasons why the court
should deny rather than grant the motion.
The time within which to respond or reply to motions is set out in LR 7.1.
The deadline for the filing of all motions within a civil action is generally set out
in the pretrial order.
Motion Review: The district or magistrate judge may schedule hearings or
decide or rule on the motion without a hearing by issuing a written order that
either grants, denies or partially grants and partially denies what the motion
sought.
Dispositive vs. Nondispositive Motions: Motions fall into two (2) broad
categories: dispositive and nondispositive. Dispositive motions, if granted,
dispose of the case; nondispositive motions, if granted, affect the case but do not
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dispose of it. District judges have the authority to rule on both kinds of motions;
magistrate judges are authorized to rule only on nondispositive motions on cases
referred to them by district judges. If the parties have consented to jurisdiction of
the magistrate judge as the presiding judge (the judge to whom the case is
assigned), then the magistrate judge has full authority to rule on both kinds of
motions the same as the district judge.
Magistrate Judge Memorandum & Recommendation: In cases referred to a
magistrate judge and one of the parties files a dispositive motion, the magistrate
judge is authorized to prepare a written memorandum and recommendation,
essentially a recommendation that the motion be either granted or denied and
stating the reason why. This memorandum and recommendation then is forwarded
to the district judge assigned to the case, and copies are sent to the parties. As a
party, you have a certain number of days within which to file objections to the
memorandum and recommendation. All objections that are received within the
specified time are forwarded to the district judge. The district judge reviews the
memorandum and recommendation and any objections that have been filed. The
district judge then will issue an order that adopts, rejects, or adopts in part and
rejects in part the magistrate judge’s memorandum and recommendation. Where
the judge’s order dismisses the complaint and the cause of action, the clerk of
court will prepare and enter a judgement in the case. Such judgment is final and
can be appealed only to the U.S. Court of Appeals for the Fourth Circuit located in
Richmond, VA.
G. WHAT COURT FEES AND COSTS ARE YOU REQUIRED TO PAY?
The fee for filing a complaint and opening a civil case in any U.S. District
Court is $350.00. This may be paid in cash or check. A list of the fees charged by
the court for various services and materials is attached to this Guide. If you are
unable to pay the filing fee, you may apply for permission to proceed in forma
pauperis, which is Latin for “in the form of a pauper.” Information on filing in
forma pauperis is located in Section V of this Guide. An application form for
filing in forma pauperis is available at each of the clerk’s offices or from the
website at www.ncwd.uscourts.gov. Completed applications are forwarded to
either the Pro Se Law Clerk or a magistrate judge for review. If your application
is denied by the judge, your case cannot be opened until you pay the filing fee.
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Waiver of the filing fee by the court does not automatically waive the other
costs associated with pursuing or litigating your case. If, for example, you need
copies of documents filed in your case, the clerk’s office is required to charge the
standard rate of $.50 per page. Other expenses you will incur include the costs of
(1) preparing the documents you file with the court, and 92) mailing or handdelivering
a copy of each document to the opposing party to satisfy the
requirements of service.
H. HOW DO YOU SUBMIT DOCUMENTS TO THE COURT?
Case-related documents that ask the court to take specific action are referred
to as motions or pleadings. If, for example, you want to ask the court to take an
action, such as appointing an attorney, you must do so by means of written motion.
A motion should be supported by a summary of the law supporting the motion
called a memorandum and/or by an affidavit or declaration of the movant that
provide the court with facts that support the granting of the motion. In preparing
motions, you should be as specific as possible about the order or action you would
like the court to take.
The court requires parties to submit or file an original of each pleading with
the clerk of court. Staff of the clerk’s office file stamp the document, scan or
image the document into a pdf document, and electronically file the document on
the court’s electronic case docket. Notice of this electronic filing will be emailed
to the assigned judge. Pro se parties may file pleadings with the court in person or
by mail. For purposes of filing in person the three staff offices of this district and
their addresses are found in Section I(E), Page 6 of this Guide. The offices are
open to the public from 8:30 A.M. to 12:30 P.M. and 1:30 P.M. to 4:00 P.M.,
Monday through Friday, except on federal holidays. All offices have a 24 hour
drop box for after hours filing, instructions are provided at each drop box site.
You should retain for your own use a copy of all documents filed with the
court. When you file documents in person, plan to bring your personal copy with
you so clerk’s staff can file stamp it along with the court’s original. If you mail
your document and wish to have a file stamped copy returned, you should enclose
an additional copy of the document along with a self-addressed, postage-paid
envelope.
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Note: When you submit a pleading to the court you also must mail or deliver
a copy of the pleading to the defendant’s attorney, or if the defendant has no
attorney, to the defendant. At the end of your pleading, you must include a
certificate of service that states the date that you mailed or delivered a copy of the
pleading to the defendant. A sample form for a certificate of service is attached to
this Guide.
I. HOW DO YOU OBTAIN INFORMATION ABOUT THE STATUS AND
PROGRESS OF YOUR CASE?
The clerk’s office maintains an automated record or docket for every case.
This docket is a chronological summary of all significant events in the history of
the case. For example, each time you file a pleading or appear for a hearing, an
entry summarizing the event is added to the case docket. You may review the
docket on the public access terminal located in the clerk’s office. Alternatively, if
you have a personal computer with access to the internet you can review your case
docket on our website at www.ncwd.uscourts.gov using a program called WEB
PACER. Information is provided as to the charges and how to obtain a Web Pacer
Login when you select the WEB PACER option on the court’s website. If you
wish to have a paper copy of your docket prepared for you, staff of the clerk’s
office will provide it for you at $.50 per page.
It is important that you realize that staff of the clerk’s office do not know
and cannot provide you with the reasons for a judge’s decision. Nor is the clerk’s
office in a position to know when a judge will respond to a motion or issue a
ruling in a case. Deputy clerks are not attorneys and they are prohibited from
giving any legal advice.
J. IS IT POSSIBLE FOR YOU TO SPEAK DIRECTLY TO A JUDGE OR
MEMBER OF HIS PERSONAL STAFF ABOUT YOUR CASE?
As a party appearing pro se, you are prohibited from all private or ex parte
communication with the judge to whom your case is assigned. Ex parte
communication occurs when one of the parties to a lawsuit exchanges information
with the assigned judge (1) without the opposing party being present or (2)
without the knowledge and consent of the opposing party. With few exceptions,
because of this prohibition a judge will refuse to speak or otherwise communicate
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ex parte with any party to a case that is assigned to him. Any communication
between the assigned judge and a pro se litigant should be in writing, and copy of
the communication should be sent either to the opposing party or that party’s
attorney. For example, a party appearing pro se should send to the opposing party
a copy of any letter sent to the judge. Moreover, the letter to the judge should
indicate that a copy has been sent to the opposing party. (Federal Rules of Civil
Procedure (FRCP) , Rule 5(d)).
SECTION II
PROCEDURE FOR FILING A CIVIL RIGHTS ACTION
UNDER TITLE 42 U.S.C. SECTIONS 1983 AND 1985
One type of action frequently filed by pro se litigants is alleged denial or
violation of an individual’s civil rights. In a civil rights complaint, a pro se
plaintiff is alleging that his or her constitutional rights or privileges or immunities
have been violated. The federal law under which a civil rights claim arises is 42
U.S.C. §1983 and 1985.
As noted earlier in this Guide to file an action in this court you first must
prepare a complaint. Most complaints filed by pro se litigants involve alleged
violations of civil rights. To assist pro se litigants with the process of filing a
federal civil rights complaint, the clerk’s office has prepared an information packet
called Information For Filing A Civil Rights Complaint Under 42 U.S.C. §1983
and 1985. That packet includes a sample complaint form that you should use as a
guide when you prepare your complaint; the packet is available on the clerk’s
website and at each divisional office. Your complaint should be typed or
handwritten. In either case, you should make certain that your complaint is legible
and can be easily read by the judge.
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SECTION III
ACTIONS BROUGHT BY PRISONERS
APPEARING PRO SE
Persons who are confined or incarcerated in a jail or prison occasionally file
pro se actions with the court. These actions fall into three general categories.
A. Appeal of Sentence: This is a criminal action in which a prisoner submits an
appeal to have a higher or superior court review the punishment or sentence that
the trial court imposed. If a person was sentenced by a judge from the U.S.
District Court for the Western District of North Carolina, an appeal is made to the
U.S. Court of Appeals for the Fourth Circuit which is located in Richmond,
Virginia. An appeal to the Fourth Circuit is made by filing a notice of appeal with
the clerk of court in any divisional offices located in Asheville, Charlotte or
Statesville. Appeals to the Fourth Circuit are governed by the Federal Rules of
Appellate Procedure, which set forth specific time deadlines for filing an appeal.
See Section I(C) for information on where you can review those rules.
B. Writ of Habeas Corpus: In this type of action, the prisoner applies or
petitions this court for a writ of habeas corpus; this is, in essence, an action that
challenges the constitutionality of the confinement and seeks to have the sentence
vacated or dismissed.
Both of these action are established by federal law. If you are in state
custody, having been sentenced by a state court judge, you may file a petition
under 28 U.S.C. §2254. If alternatively you are in federal custody, having been
sentenced by a federal judge, you may file a motion to vacate sentence under 28
U.S.C. §2255. The office of the clerk has prepared separate information packets,
complete with the required forms for these two types of actions. To obtain a copy
of either packet you can contact the office of the clerk or access the forms on the
court’s website www.ncwd.uscourts.gov. Note that Section 2254 and 2255
proceedings are governed by special rules called Rules Governing Section 2254
and 2255 Proceedings. It is the petitioner’s responsibility to become familiar with
those rules. See Section I(C) for information on where you can find those rules.
C. Prisoner Civil Rights: In this type of action, a prisoner challenges the
conditions of confinement, or the way he or she is being treated in prison or jail.
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This type of action generally takes the form of a civil rights complaint. If you
wish to file a civil rights complaint, you should ask the clerk’s office for a copy of
the information packet called Instructions For Filing A Complaint Under The Civil
Rights Act 42 U.S.C. §1983/Prisoner Litigation. That packet includes a sample
complaint form that you should use as a guide when you prepare your complaint.
This packet is also available on the court’s website www.ncwd.uscourts.gov.
SECTION IV
EMPLOYMENT DISCRIMINATION CASES
Another type of action filed by pro se litigants is alleged employment
discrimination. Prior to filing an employment discrimination complaint in the
federal court, the plaintiff is required to follow specific administrative procedures.
Note that this is not a complete statement of the law on administrative procedures
to follow in an employment discrimination case. The procedures are complicated
and it is the pro se litigant’s responsibility to make sure that all procedures are
followed correctly and within the applicable time limit. If the requirements are not
followed, your case may be dismissed.
A. PROCEDURES TO FOLLOW BEFORE THE COMPLAINT IS FILED
If you wish to file an employment discrimination case in this court, you
must file your charges with the Equal Employment Opportunity Commission
(EEOC). In most cases after review of your charges, and barring complications,
the EEOC will issue to you a Notice of Right to Sue indicating the (i) the
administrative process has been completed, and (ii) no further action will be taken
on behalf of the EEOC. Once this notice is issued, you have a limited time period
within which to file your lawsuit; failure to file a complaint in that time period will
result in having your cause of action dismissed by this court. A Notice of right to
sue is not issued where the charges allege employment discrimination based on
age. However, not having such a notice will no prevent you from filing an
employment discrimination complaint based on age.
The Notice of Right to Sue will indicate that you, as the litigant, have the
right to request the court to appoint an attorney to represent you if, for financial
reasons, you are unable to retain your own attorney. You should bear in mind that
in this court, a request for appointment of an attorney will be considered only after
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a complaint has been filed and is pending before the court. Presently, there are no
federal funds available for appointment of counsel in civil matters.
B. To assist a party appearing pro se in filing an employment discrimination
complaint, the office of the clerk has prepared an information packet called
Information On Filing An Employment Discrimination Complaint. The packet is
available at the clerk’s office. The packet includes a sample complaint form to
assist you in filing an employment discrimination complaint. You should make
certain that your complaint is legible and can be easily read by the judge.
SECTION V
APPLICATION TO PROCEED IN FORMA PAUPERIS
As is noted earlier in this Guide, filing a case in this court requires the
plaintiff to pay a $350.00 filing fee at the time the new case is filed. If you are
unable to pay this fee, you may apply to have payment of the fee waived. You can
apply for waiver of the fee only when your complaint accompanies the waiver
application.
WAIVER APPLICATION DENIED IN ITS ENTIRETY: If a judge subsequently
denies your waiver application in its entirety, you will be required to pay the
$350.00 filing fee. A copy of the judge’s order will be mailed to you. When the
filing fee is paid to the court, a copy of the complaint or cover letter indicating the
case number assigned must accompany the fee.
WAIVER APPLICATION DENIED IN PART - PORTION OF FILING FEE
ORDERED PAID: If the judge orders that a portion of the filing fee must be paid
within a specified period of time. If the partial filing fee is not paid by the court’s
deadline, then your case will be dismissed.
The application process requires that you complete and submit an
Application To Proceed In Forma Pauperis. This application is available on the
court’s website www.ncwd.uscourts.gov or at each staffed office. Brief
instructions for completing the application are as follows:
At the top of the application, you must note the name of the case caption:
The case name consists of your name as the plaintiff above the “v.” and the
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name(s) of the defendant(s) below the “v.”. Staff in the clerk’s office will provide
the case number.
You must answer all questions truthfully and completely. If you own real
estate or automobiles that have outstanding mortgages or loans, you should be
very specific about your debt balance so the district judge who reviews the
application has accurate information as to the property’s value. You also must
sign the statement under penalty of perjury.
The completed application form should be submitted to the clerk’s office.
Staff there will transmit it with the complaint to the Pro Se Law Clerk who will
review the application for the assigned judge.
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Last Updated - 02/07/2005
Court Fee Schedule
(28 U.S.C. Section 1914)
Fees to be charged for services performed by clerks of the district courts (except that no fees
are to be charged for services rendered on behalf of the United States).
1. Civil Case Filing Fee: $350.00
2. For filing or indexing any paper not in a case or proceeding for which a case filing fee has
been paid (miscellaneous case): $39.00
3. Notice of Appeal to the Fourth Circuit Court of Appeals: $455.00
4. Notice of Appeal to the District Court from a Magistrate Judge misdemeanor conviction:
$32.00
5. Records Search: $26.00 per name or item searched.
6. Certification of any document or paper : $9.00 Exemplication of any document or paper:
$18.00 (This includes the certification of the exemplified document.)
7. Photocopies: $.50 per page.
8. For reproduction of magnetic tape recordings, either cassette or reel-to-reel: $26.00 including
the cost of materials.
9. For transcribing a record of any proceeding by a regularly employed member of the court staff
who is not entitled by statute to retain the transcript fees for his or her own account, a charge
shall be made at the same rate and conditions established by the Judicial Conference for
transcripts prepared and sold to parties by official court reporters.
10. For each microfiche sheet of film or microfilm jacket copy of any court record, where
available: $5.00.
11. For retrieval of a record from a Federal Records Center, National Archives, or other storage
location removed from the place of business of the court: $45.00.
12. For a check paid into the court which is returned for lack of funds: $45.00
13. For admission of attorneys to practice: $250.00 For certificate of good standing: $15.00
Duplicate attorney admission certificates: $15.00 Pro Hac Vice Admission $100.00 for each
application granted (LR 83.1)
14. The court may charge and collect fees, commensurate with the cost of printing, for copies of
the local rules of court. The court may also distribute copies of the local rules without charge.
15. The clerk shall assess a charge of up to three percent for the handling of registry funds, to be
assessed from interest earnings and in accordance with the detailed fee schedule issued by the
Director of the Administrative Office of the United States Courts.
16. For filing an action brought under Title III of the Cuban Liberty & Democratic Solidarity
(LIBERTAD) Act of 1996, P.L. 104-114, 110 Stat. § 785 (1996), $5,431.00. (This fee is in
addition to the filing fee prescribed in 28 U.S.C. 1914(a) for instituting any civil action other than
a writ of habeas corpus.)
17. Other Fees pursuant to 28 U.S.C. §1821 Witness Fee $40.00 a day. Mileage 40.5 cents a mile
round trip.
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FORM
CERTIFICATE OF SERVICE
I hereby certify that a copy of the forgoing (name of pleading) was
mailed/delivered to (name of defendant(s) or defendant’s attorney) at (include
address) on (insert date).
(Insert Signature)