By Gerard Niles
I am writing in response to “Mississippi DOC Manipulates Grievance Procedures to Avoid Conditions of Confinement Suits,” by Charles Owens, II in the Summer/Fall 2016 issue of Guild Notes.
If a state prison grievance procedure is meaningful and not futile, it will contain a section of time frames, with a provision that expiration at any level entitles the complainant to proceed to the next level. In this way, litigation will proceed in a timely manner. Therefore, the solution to the problem is to ensure there are timeframes laid out in the procedure.
As for limiting inmates to online one active grievance at a time, that is an obvious impingement on the right to sue, and an unconstitutional denial of access to the courts; the right to petition the government for redress of grievances, First Amendment to the United States Constitution.
If a state prison grievance procedure is futile, exhaustion requirements of 42 USC Sc. 1997e(a) may be waived.
By JD Merrick
Inside the Summer/Fall 2016 issue of Guild Notes (Vol., XLII, No. 2/3), “Beyond Bars,” there was an article entitled: “Mississippi DOC Manipulates Grievance Procedures to Avoid Conditions of Confinement Suits.” The author came across understandably frustrated. He’s not alone. Inmates in virtually every state are frustrated by officials who don’t want them to expose their illegal practices and abuses in courtrooms. The court is the inmates’ only recourse for redress of grievances, an unbiased forum where relief from unconstitutional conditions can and have been issued.
I’m a jailhouse lawyer, a lifer with 25 years of civil rights litigation experience. I am well-known by prison officials and the lawyers who defend them. Though I am not their favorite inmate, we have for the most part established a professional respect for one another. This is not to say officials do not continue to abuse inmates (i.e. violate their constitutional rights). They have, for the most part, learned to respect prison grievance policies. But, it always wasn’t so.
Courts from every circuit around the nation have issued binding rulings that prevent prison officials from frustrating attempts by inmates to exhaust their administrative remedies (I’ll discuss a few of those rulings below). There are at least two extraordinary, easy-to-read books available as well that provide detailed information about your right to file grievances and how to protect yourself: the Prisoners’ Self-Help Litigation Manual, 4th Ed. and the Jailhouse Lawyer Handbook.*
A frequent complaint by inmates is that prison officials take months to address their grievances or fail answer them at all. Some states have a policy provision stating that prison officials have a certain amount of time to respond to an inmate’s grievance (usually between 15-30 days). Some policies go a step further and say that an inmate may proceed to the next level if staff have not responded within their allotted timeframe. However, there are some prisons and jails that do not have this provision. This does not mean that an inmate’s claim for redress in a court of law is dependent upon prison officials responding to their grievance.
There are a number of courts that have ruled that if prisoners don’t receive a response within a reasonable timeframe, then that satisfies the exhaustion requirement of the Prison Litigation Reform Act (PRLA). See 42 U.S.C. 1997 e. Also see Brengettey v. Horton, 423 f. 3d 674, 682 (7th Cir. 2005); Brookins v. Vogel, 2006 WL 3437482, *3 (E.D. Cal. Nov. 28, 2006); Hambrick v. Morton, 2009 WL 1759564 *1, 3 (S.D. Ga June 19, 2009). A reasonable time to wait for a response, if policy does not indicate a timeframe, is 30-45 days. Courts recommend that even if the prison does not respond you should attempt to appeal nonetheless; though it is not required.
The Ninth Circuit Court of Appeals seems to have some of the best decisions with regard to protecting inmates and their grievances (e.g. Brown v. Valoff, 422 F. 3d 926, 935 [9th Circuit 2005]: “…a prisoner need not press on to exhaust further levels of review once he has either received all ‘available’ remedies at an intermediate level of review or been reliably informed by an administrator that no remedies are available.”) If you receive no response to your grievance, and if policy does not require that you appeal a ‘no-response,’ then you have exhausted all viable remedies and may go straight to court, e.g. Lane v. Doan, 207 F. Supp. 2d 212 (W.D. N.Y. 2003) Martin v. Snyder, 2002 WL 484911, *3 (N.D. Ill, Mar 28, 2002). Lewis v. Washington, 200 F. 3d 829, 833 (7th Cir. 2003).
In closing, I’d like to impart unto you all what I believe to be sound and effective advice: so long as your grievances are not of an emergent nature and you do not exceed your state of limitations I would try to elicit a response to your grievance(s), even if it means following up with an appeal when officials don’t respond. The reason for this is if you can get a response you can use it in court against prison officials; it is on the record. They can’t then tell a judge or jury a different story because if they do then you have proven they’re not being honest. What’s more, if you do follow up on a non-response you’ve shown that officials did not think your grievance was important enough to answer. Either way, you will benefit.
Remember, the grievance process belongs to us. Don’t let jail or prison officials hold it hostage. There is nothing they can do to stop you from enforcing your rights. ■
*EDITOR’S NOTE: The Jailhouse Lawyer’s Handbook is available for download at jailhouselaw.org. Print copies are provided to people in prison at no cost upon request.
To request a copy, please write to:
NLG-Prison Law Project
132 Nassau St, Rm 922
New York, NY 10038