The Flaws of the Administrative Remedy in Prisons
In prisons, there are venues for inmates who have been abused or treated unfairly or inhumanely. When things like this happen, an inmate has the right to sue, if he can get his case to court.
The problem is that because of the PLRA (Prison Litigation Reform Act) it is much more difficult for an inmate, even if he is right, to get his case to court. In essence, PLRA requires inmates to first exhaust the Administrative Remedy Procedure… or a grievance procedure. In Federal prisons, it is known as a “BP”
So, quick scenario: an inmate of color is being harassed by officers, who constantly use racial slurs and trash his cell, taking his family pictures and other valuables. The inmate tries to file a “BP” to get to court. Months pass, with no success, so he tries to take it straight to court.
The court shoots down his claim because he did not go through the proper procedure of filing a grievance. So, even if the inmate is right, the courts won’t acknowledge his lawsuit because he didn’t go by the rules.
It is the prison going by them? Let’s talk about that, and how prisons like USP Tucson are actually breaking the rules, making it very difficult for inmates to properly file a lawsuit, because the Administrative Remedy procedure is horribly flawed. To begin, let me pull up a statement from a case, Woodford v. Ngo (548 US 81, 126, S. Ct 2378: 165 L. Ws 2d 368 (2006)). I want to share with you an argument an inmate had about the grievance procedure, and what the argument against it was:
“Respondent contends that require proper exhaustion will lead prison administrators to deceive procedural requirements that are designed to trap unwary prisoners and thus defeat their claims. Respondent does not contend, however, that anything like this occurred in his case and it is speculative that this will occur in the future. Corrections officers concerned about painting order in their institutions have reason for creating and retaining grievance systems that provide and that are perceived by prisons as providing a meaningful opportunity for prisons to raise meritorious grievances. And with respect to the possibility that prisons might create procedural requirements for the purpose of tripping all but the most skillful prisoners, while Congress repealed the “plain, speedy and effective” standard… we have no occasion here to decide how such situations might be addressed”
In short, this argument claims that the inmate was incorrect that prisons could and do make is much harder for inmates to file a grievance. After all, if the inmate can’t file the grievance, he can’t get to the courts to sue the officers. In the above case, the black inmate is trying to go through the procedure, meaning he has to exhaust the grievance procedure before he can go to court. This kinda makes sense, because the intent of the PLRA is to prevent a lot of frivolous lawsuits by inmates.
But in doing this, there is a flaw, one prisons has used to cheat in the procedure. Let me explain: to begin, the BP, or grievance procedure, must first have an issue. Ok, check. The inmate claims discrimination against the officers, so he has a right to file a
Well, step one, as I use USP Tucson, as an example, is to get what is called a “BP-8”. This is the lowest form of the grievance, and is informal, and is given on request.
Problem: here at USP Tucson, it often is not. The prison makes a policy that ONLY the Counselor can hand out a BP-8. So, what if the Counselor isn’t there? You have to wait to find the Counselor, because apparently no other officer in the world can get that piece of paper. This is already an obstacle of due process. In other states, you can get a grievance form from any officer, especially the ones working in the dorms. It makes sense, they are there all day, why not allow them to pass out the grievances?
But, if you change the rules, you then regulate how often you pass out the grievances. Now, like here at USP Tucson, you can’t get a BP unless there is a certain officer there. And if he or she isn’t there, they don’t pass them out. So in theory, a Counselor can stiff-arm inmates from getting a BP, by making excuses of not being there or not having any.
I say this from a lot of experience… this happens many times at places like USP Tucson. Many inmates are frustrated with the Administrative Remedy because for most, it simply does not work. The case law implies that prisons want to make the grievance procedure available for the maintaining of order… this is not necessarily true at all.
And if I may, SHAME on the courts for being so blind to the issues of the inmate and favoring the prison on blind face value. Reading the court’s very biased opinion, they completely believe that the prisons of this country are fair, and that every officer believes in transparency. The statement, “Correction officers concerned about painting order in their institutions have a reason for creating and retaining grievance systems that provide and that are perceived by prisons as providing a meaningful opportunity for prisons to raise meritorious grievances”, ‘, is completely biased as taking the wrong side of a case where a man wishes to sue for his freedom from a slave plantation. In the same way, the court might as well say something like:
“While Mr. Brown believes that he, a Negro, has some unalienable right to be free, it is clear that he has been given housing and is fed by his master, and all slave owners give their slaves the opportunity to live tax-free and have always given their slaves the opportunity to voice their concerns to their masters. It is unclear why Mr. Brown, a Negro slave, would believe that he would achieve any success with his freedom, because it is demonstrated that his slave owner, Mr. Casey, has provided his every need. We do not believe that Mr. Casey does not have the best interests of his slaves in mind, and in such, has the right to discipline his slaves as he sees fit.”
Absurd, but in the same context, the court, in debating the issue with the Administrative Remedy, completely subscribes to the idea that prisons actually have the best interest of inmates in mind. They are incorrect in that prisons created the grievance procedure… this is completely untrue. This was forced on prisons because inmates sued prisons for barbaric treatment such as torture, rape and every other inhumane treatment.
There seems to be a belief that the BP process, or the Administrative Remedy Procedure, is a righteous form of addressing grievances for the inmate to the prison staff.
The fallacy here is that the procedure is fair, but the problem is that prisons have found numerous loopholes to prevent inmates from filing on unprofessional, unethical and illegal acts by the prison.
Many prisons, like here at USP Tucson, intentionally abuse the loopholes of the Administrative Remedy to prevent inmates from filing against staff. One technique is the availability of staff, or certain officers, who apparently are the only human beings in the prison that have access to this grievance procedure. I suppose its locked in a chest underground, defended by trolls, and only that one staff member has a special key, forged in Excalibur, to get the grievance…
(Ok, over the top, but I’m trying to make a point)
Another technique for obstructing the grievance procedure is to simply “lose” the grievance. If you manage to corner the one officer that has the BP-8 form, then you have to fil it out and hand it back to them. Problem: The BP-8 is a single white piece of paper, and once you hand it to the one single officer that passes it out, you have No copy.
So how do you know that they actually processed it? In many cases they don’t. They either “lose” or simply trash it. If you can possibly get past the BP-8 form, then you can file the BP-8, then you can go to the BP-9, and then if necessary, then you can go to the BP-10 if this is not resolved. The problem with this is that the carbon paper on the BPs are very bad, you would have to write with the strength of the Hulk to make sure that the carbon paper marks what you wrote, or else it is not legible.
If they continue to deny you on the BP-9, the BP-10 can be sent over the staff’s heads to Region Departments. But for each step it is difficult to get the forms to even fil out. These forms are supposed to be readily available to us, but we have to beg and plead to get them from staff, when in actuality, it should always be available to any inmate at any time. This technique has been keeping inmates from filing their issues on time.
I say all this from experience. On February 6th, 2022, I filed a BP-9 against the staff in my dorm because they refused to give
us chemicals to clean the showers during a lockdown. Over that period of time, an average of 30 inmates used each shower cell, and not one drop of chemicals were used to clean it.
Think about that: how many of you would walk in a shower after 30 people have already used it? How about 10? Even 5? No one here should have to do that, but staff knew about it, and did nothing.
So, I wrote a BP-9 and the Case Manager took it and “turned it in” to staff… Long story short, months later, I heard nothing about it, and they had 30 days to respond. My guess, they threw it away.
This is much like cheating at chess, where we have to match wits against a facility that seems to be dead set on preventing inmates from properly and legally filing a grievance. Let us not lose fact that the grievance procedure is Constitutionally protected; no officer or staff has the right to prevent inmate from filing.
But, if you cannot complete the grievance, you cannot get to court, because they will claim, as the case law showed, that the inmate didn’t do the proper work, when in fact he did all he could. Staff aggressively prevented him from being able to file. The courts seem to be blind, or naive, that prison officials would actually honor the grievance system.
Think about that, why would they honor a system that holds their staff accountable? Do you really think they are going to play
fair if, in the example I gave at the beginning, a black inmate is trying to sue racist officers? Do you really think that they are going to let him get his BP through, when they can block it at any turn?
My current cellmate filed a BP when a female staff member attempted to snatch his walker from beneath him. He is an elderly man, and has leg braces and uses a walker. She attempted to snatch it from him, to force him to walk through a metal detector without his walker (a moot point, since the braces are METAL).
My cellmate filed a BP on staff abuse, and when they investigated it, they saw that he had a real case; video doesn’t lie. So, rather than resolve the situation, staff then investigated the inmate, to find an angle to force him to drop the BP.
Remember, we are talking about staff abuse. It was very clear that what this female officer did WAS in fact abusive (and PLEASE dare me to give the name). But, rather than do the right thing, staff built a case against the inmate. They looked into his activities and threatened him that “if he wishes to pursue” then they would look into one of his friends, who is currently at a Halfway House, implying that they might try to get him in trouble.
They also blackmailed my cellmate by saying that they looked and saw that he was getting money from another inmate in the dorm… that can be possibly written up. So, the prison staff was ignoring a staff assault, but finding cause to force the inmate to drop the charge.
My cellmate had to drop the BP, because he didn’t want to put his friends in trouble. This is a common tactic that staff uses to force inmates who may have a case, to leave the situation alone.
It’s like cheating at chess, and it’s also why so many grievances fail… because places like USP Tucson have figured out the loopholes and are exploiting them to prevent inmates from their constitutional rights. It happens all the time, and few are doing anything about it.
I mean, take out my queen, rooks and bishops, and yeah, it’s hard for me to win too.
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