BEYOND BARS: To Grieve or Not to Grieve?

Eric Pepke
Petersburg, VA

It can seem pointless to challenge the deplorable conditions we face in prison, but it is important to do so anyway. Action can make a difference, especially in numbers. Even if one of us fails, many together can succeed. One of the most powerful ways to effect change is the federal civil rights lawsuit (§1346 and Bivens for federal prisons, §1983 for others). Courts often make good decisions. Then the prisons stretch the case law beyond the breaking point or simply disregard it.

They do this because they can. They get away with it because not enough prisoners file.

In 1996, the Prison Litigation Reform Act (§1997e) made lawsuits against prisons much more difficult. As a result, prisons and jails have gotten much worse even than they were. Most onerous is §1997e(a), which states, “No action shall be brought with respect to prison conditions by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”

While it is sometimes possible to get a court to declare the grievance process (for administrative remedies) unavailable, this takes a lot of effort. For the most part, prisoners simply have to follow the grievance process, being careful to meet all the deadlines.

Though the process of filing grievances seems and usually is futile, it has to be done. “[W]e will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.” Booth v. Churner, 532 US 731, 738 n. 6 (2001). (When only a date is in parentheses and no circuit or district, it’s from the Supreme Court.) There is no way to escape. “[W]e hold that the PLRA’s exhaustion requirement applies to all inmate suits about prison life,” Porter v. Nussle, 534 US 516, 532 (2002). A prisoner simply has to exhaust the grievance process.

The trouble is that the prison can retaliate for filing grievances, even including beating prisoners. One might think that a prisoner could sue for such retaliation, but for decades the court held that prisons are perfectly within their rights to retaliate for filing grievances, without fear of suit.

Courts have held it is only possible to sue for civil rights violations over retaliation that chills a constitutional right. “Retaliation against a prisoner is actionable only if it is capable of deterring a person of ordinary firmness from further exercising his constitutional rights.” Morris v. Powell, 449 F. 3d 682, 686 (5th Cir. 2006). Also see CrawfordEl v. Britton, 93 F. 3d 813 (D.C. Cir. 1996). The D.C. circuit is just under the Supreme Court in terms of power, and all other circuits have followed.

The question is whether filing grievances is a constitutional right. Up until recently, the courts have held it isn’t.

“[I]nmates do not have a constitutional right to have available or to participate in an effective grievance process.” Miller v. Williamson, 2016 US Dist. LEIS 63498 (4th Cir. 2006). See also Adams v. Rice, 40 F.3d 72 (4th Cir. 1994).

This idea can be traced back to an opinion in 1991. “[T]he prisoner’s right to petition the government for redress is the right of access to the courts, which is not compromised by the prison’s refusal to entertain his grievance.” Flick v. Alba, 932 F.2d 728, 728 (8th Cir. 1991).

The trouble with this is that a mere five years later, §1997e changed the situation, making it so that the right to access the courts very much depends on the grievance process. Yet until after 2016, courts did not recognize this extremely obvious fact.

Finally, they did. “Given the close relationship between an inmate filing a grievance and filing a lawsuit—indeed, the former is generally a prerequisite for the latter—our jurisprudence provided a strong signal that officials may not retaliate against inmates for filing grievances.” Booker v. South Carolina DOC, 855, F.3d 533, 544 (4th Cir. 2017). Also, “The Second, Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C. Circuits have all recognized in published decisions that inmates possess a right, grounded in the First Amendment’s Petition Clause, to be free from retaliation in response to filing a prison grievance,” id. at 544.

There are lessons in the fact that it took the courts so long to recognize the obvious.

The courts move slowly. More importantly, they only move when pushed. Seldom does a court decide anything on its own, not even something as obvious as this. They generally wait for litigants to make arguments and decide if the arguments are good.

So it is essential that we all push the courts, not only for our individual benefit, but for the benefits of all. We must make even obvious arguments, even ones so obvious we imagine should have been raised a hundred times before us.

The PRLA was sold as intended to improve the quality of lawsuits, but what it really did was reduce their quantity. Doubtless this was the real intention. “Congress deemed prisoners to be pestiferous litigants,” Kerr v. Puckett, 138 F.3d, 323 (7th Cir. 1998).

This has worked. Far too many legitimate lawsuits have been quashed. Millions of prisoners have suffered worsening conditions. The courts have only sluggishly moved to correct gross violations of civil rights. Prisoners fearing retaliation have not pushed them hard enough. Even though it seems futile, grieve and sue anyway. You may not be the one to win, but if we all work together, we can improve conditions for all of us.