Does your inmate grievance policy protect you?
By Marty Drapkin
Like it or not, every jail and prison needs a sound, written policy and procedure for dealing with inmate grievances.
This means we must provide an effective way for inmates to formally express complaints about matters associated with their incarceration, and to seek redress when appropriate.
The truth is that grievance mechanisms are designed to help staff as much as they are designed to help inmates. There are two main reasons why this is true, and why grievance mechanisms can make your job safer and easier:
1. Grievance procedures provide inmates with a formal method for dealing with issues. If there is no such method for inmates to get resolution through, then they are more likely to find inappropriate ways to seek retribution. This may involve fighting, destroying property, manipulating staff members, etc. When a workable grievance mechanism is in place—one that inmates believe to be fair and equitable—then the chances for inappropriate behavior are generally less.
2. From a legal perspective, grievance procedures are important because they minimize the likelihood of inmate-initiated lawsuits. If inmates feel they have a way to submit complaints to institution staff and seek redress, it often satisfies them to the extent that they don’t pursue more formal redress, such as a lawsuit.
3. Further, if inmates do initiate lawsuits, the existence of a good grievance procedure may lessen the likelihood that it will succeed in court. This is due to a federal law titled the Prison Litigation Reform Act (PLRA). Passed in 1996, the law was intended to minimize frivolous lawsuits by jail and prison inmates by requiring they “exhaust administrative remedies” in a correctional institution before filing a civil lawsuit in court. This includes Section 1983 lawsuits, but does not apply to Habeas Corpus actions.
Meeting the PLRA’s demands
In the PLRA, the term “administrative remedies” is generally considered to include inmate grievance procedures, including use of all available levels of appeal. In other words, the PLRA requires inmates to show that they used the facility’s grievance mechanism to get some resolution or satisfaction for their complaint, and that it did not work (or the complaint itself was inappropriate for the grievance procedure of the institution). In order to demonstrate that the requirements of the PLRA a met, corrections officials must:
1. Have a good written policy on a grievance procedure.
2. Ensure that the policy is in effect and applies to all inmates.
3. Maintain proper documentation to be able to demonstrate that the grievance procedure mechanism operated properly.
Once all of those elements are in place, inmates then have the burden of demonstrating that they tried to use the available grievance procedure to resolve their complaint or issues. If the procedure was available to them and they did not use it to the full extent, then that may negatively affect their ability to file a lawsuit.
What makes a good policy?
A good written grievance mechanism should be split into two parts: Policy and procedure. The statement of policy should indicate the following:
• That there is a grievance procedure in place for inmates to present complaints and grievances.
• The grievance procedure is equally available to all inmates - there will be no discrimination.
• Inmates will be notified of the grievance procedure and how to access it when they enter custody.
• Issues appropriate (or not appropriate) for inmates to present grievances about—that is, the types of things that may be presented as grievances and the types of things that may not:
- In general, aspects of ‘conditions of confinement’ are subject to grievances, including housing, medical care, food service, hygiene and sanitation needs, recreation opportunities, and so on.
- Inmates may generally grieve classification decisions, issues regarding access to programs, treatment by staff members, and so on.
- They may submit grievances about application of rules or policies, but not necessarily about the rules or policies themselves. Nor can they submit internal grievances about issues over which jail officials have no control, such as state or local laws, court decisions, probation or parole actions, and so on.
• There should be at least one level of appeal for inmates if they have received an initial unsatisfactory response to a grievance.
• There will be no reprisals against inmates for submitting grievances, or disciplinary actions taken against inmates for doing so.
• There will be documentation of all grievances filed, including the disposition of grievances.
The details of how a grievance procedure works should be contained in the procedure portion of the written mechanism. This should generally contain the following information:
• How inmates are to be initially notified of the grievance mechanism—for example, via the inmate handbook, written rules and rights, formal orientation to the facility, etc. If inmates have to sign to indicate that they received a handbook or a copy of the rules, it should be indicated in the procedure.
• Procedure(s) for how inmates may present grievances, including whether they are to be in writing, what types of forms they need to fill out, where they can get such forms, where or to whom the grievance forms are to be routed, etc.
• Procedure(s) for decision-making on inmate grievances, including whether or not line officers are authorized to try and informally resolve grievances and where the process will go beyond that.
• How inmates are notified of decisions on grievances, including names of any forms or documents and timeframes for decision-making and notification.
• How inmates may appeal decisions on grievances, applicable to each available level of appeal.
• Handling of appeals on grievances, including who is authorized to make decisions on such appeals, time frames for decision-making on appeals and how inmates are notified of decisions on appeals (including the reasons for such decisions).
• Routing and maintenance of documentation on all elements of the grievance procedure process.
In addition to these basic elements of a policy and procedure, there should be a policy provision for the handling of emergency grievances by inmates.
For example, if an inmate requested a special visit with a family member outside of normal visiting hours because he is going to be sent to prison in a day or so and the request is denied, the inmate might grieve that decision to deny. However, time is of the essence, so the grievance would have to be considered and decided upon very quickly. Thus, it would fall into the category of an “emergency.”
Policy information on handling of emergency grievances can either be contained in a sub-section of the basic policy on the facility grievance procedure or in a separate policy just on emergency grievances.
In either case, the following issues should be addressed:
• Are emergency grievances allowed?
• If so, for what types of issues?
• How can inmates submit them?
• Who makes the decisions?
• In what time frame?
• How will the inmate be notified?
As with other important policy issues, it is not enough just to have a good policy. It is critical to train staff members on all aspects of the policy so that they can effectively carry it out. Staff members must have a basic understanding of all the policies and procedures, including the fact that reprisals against inmates or punishment of inmates for filing grievances is prohibited, even if staff members feel that a grievance is frivolous or fictitious. If staff members are authorized to resolve inmate grievances on their own, they must be trained in the basic skills of making such decisions.
Supervisors should completely understand their facility’s grievance mechanism. They must continually be assuring that line staff are carrying out the policy properly. By doing so, supervisors perform the important function of ensuring that written policy and actual practices in the facility are as congruent as possible. If a staff member does not follow policy, appropriate action should be taken to improve future performance - provision of additional or remedial training, discipline, etc.
As with other policy issues, it is important to continually review your facility’s grievance procedure and policy and revise it when necessary. One way to do this is to keep a record of all inmate grievances that were submitted over a specific time period, such as a year, and the disposition of such grievances, including appeals of initial decisions on grievances. Careful review of these records might indicate problems or concerns with the grievance procedure and might indicate a need to improve aspects of the policy and procedures, forms used in the process and so on.
Sometimes, such review might indicate the need for improvement in some other aspect of facility operations that was the focus of a number of grievances. For example, if there were a lot of grievances on sick call availability, that might indicate a problem. Or, if there were a significant number of grievances by inmates about treatment by a particular officer or officers, that could indicate a potential problem as well.
Finally, it is critical that facilities be scrupulous about maintaining accurate and thorough documentation on inmate grievances.
Remember that the Prison Litigation Reform Act requires inmates to exhaust administrative remedies before they can file a civil lawsuit. Documentation on grievances is the accepted method to prove that they either did or did not do so. Our goal is to put the burden of proof completely into their hands.