by Frederick Mason, United States Penitentiary Tucson in Tucson, Arizona
(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 a right to sue, if he can get his case to court.
The problem is that because of 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.
But 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. Ed 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 device 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 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. And with respect to the possibility that prisons might create procedural requirements for the purpose of tripping up all but the most skillful prisoners, while Congress repealed the “plain, speedy, and effective” standard…we have no occasion here to decide how such situations might be addressed.”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 prison could and do make it 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 the courts. This kind of makes sense, because one 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 process, the inmate must first have an issue, ok, check. The inmate claims discrimination against officers, so he has a right to file grievance.
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, “BP-8” and it should be available upon request.
Problems: here at USP Tucson, it isn’t. The prison makes a police 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 your dorm. 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 grievance. Now, you can’t get a BP unless there is a certain offer 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 at a lot 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.
Many prisons, like here at USP Tucson, intentionally abuse the loopholes of the Administrative Remedy to prevent inmates from filing against the one technique is the availability of Counselors, who apparently are the only human beings in the prison that have access to this grievance procedure. I suppose it’s locked in a chest underground, defended by trolls, and only the counselor has the special key, forged in Excalibur, to get the grievances…..
(Stop laughing, 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 Counselor and get a BP-8 form, then you have to fill 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 Counselor, you have NO copy.
So, how do you know they actually processed it? In many cases. They don’t. They either “lose” it, or simply trash it. Additionally, the carbon paper on the BP-9, then you have to go to BP-10, which goes over the heads of the staff. But rinse and repeat on the procedure. It is incredibly difficult to get the forms, when in actuality, it should ALWAYS be available to any inmate, at any time by most staff members. But staff plays keep away from inmates, to prevent them from getting the BP’s, so they cannot timely file.
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 had already used it? How about 10? Even 5? No one here should have had 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 the Counselor… Long Story short, as of May 2nd, 2022, I have heard nothing and they had only 30 days to respond. My guess, they threw it away.
This is much like cheating at chess, where were 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 law showed, that the inmate didn’t do the proper work, when in fact he did all he could, but the 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, a black inmate is trying to sue racist officers? Do you really think they are going to let the BP’s go through, when they can block it at any turn?
It’s like cheating at chess, and it’s also why so many grievances fall…because places like USP Tucson have figured out the loopholes and are exploiting them to prevent inmate from their constitutional rights. It happens all the time, and nobody is doing anything about it.
I mean, take out my queen, rooks and bishops, and yeah it’s hard for me to win too.