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Richard - Bizlaw
Richard - Bizlaw, Attorney
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What is a "presumptive letter?" Is it required prior to filing

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What is a "presumptive letter?" Is it required prior to filing of a civil action against state and/or local governmental officials in U.S. District Court?
Who told you that this type of letter is required? Are you suing the officials in their official capacities?
Customer: replied 5 years ago.

Acquaintances who are also not attorneys, but have helped others. One case being a business owner against her city's attempt at eminent domain with a very low monetary offer. These people helped her get much more, commensurate with the actual value of her property.

 

It is supposed to be a means to litigate and win in constitutional issues.

 

Yes. But, I think we are also going to sue them personally under the Civil Rts Act of 1965, section 1983. (I think that's the right section number.)

 

Thank you for your help!

Itasca

I have never heard of such a required letter. There are notices of claim that can be required but those generally involve personal injury actions based on the sovereign immunity waiver of a state contained in its torts claim act. However, suing a state for violation of federal rights do not implicate the state's sovereign immunity waiver so I do not know of any prior notice requirement. If there is a continuing act of which you complain, you should make a demand to cease before filing the suit unless you are up against a statute of limitations.

 

This communication is not intended as legal advice. A local attorney should always be consulted for legal advice. No client/attorney relationship is intended or created by this communication.

Customer: replied 5 years ago.

Hello,

 

Thank you for your response. I had to read it several times to make sure I understood without having to ask another question. I wasn't sure about the state's "sovereign immunity waiver." I think I get it. We are filing a notice of claim demand under a state statute. I am assuming we can file under it AND under violation of federal rights. If so, as I understand you, the separate notice in the form of "presumptive letter" or any other name, is not something we need to do, whether it is against section 1983, or just stating the constitutional violations. If I do understand, it helps me to be confident that I haven't omitted a requirement prior to the filing. There is a statute of limitations - at least, there is a 180 day time limit for filing the cause against the statutory violations. Hopefully, I do understand and can proceed more confidently from here.

If this sounds like I may not get it and don't know it (!), a further response would be appreciated. Otherwise, I thank you very much for your help. Itasca

If you are suing under state statutes that is where you are dealing with the state's sovereign immunity and you need your notice of claim and you should include the federal claim in the notice not just the state claims.

 

This communication is not intended as legal advice. A local attorney should always be consulted for legal advice. No client/attorney relationship is intended or created by this communication.

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