By Paul Wright
The Washington Department of Corrections (DOC) and many others have grievance systems to resolve complaints within the prison system rather than going to court to settle them.
Many prisoners are skeptical of the grievance system as it rarely resolves their complaints, especially when it involves misconduct by an identified staff member.
However, regardless of how effective or ineffective the grievance system is, it is important because it provides a written, public record of complaints filed within the DOC. One that is data based and easily accessible. This is important when a person files suit and through discovery can establish if anyone else complained of the same practice or misconduct giving rise to his own lawsuit. If 30 prisoners also complained about similar misconduct by the same staff member it will be more difficult for the warden or his superiors who may also be defendants in the lawsuit to claim that they had no knowledge of the propensity to misconduct by their underlings and for not taking steps to stop it.
Grievances filed and the DOC response to them are available to attorneys, the public and others through the Public Disclosure Act in Washington state.
Since April of 1991 Mark Crewson has been the Grievance Coordinator at the Clallam Bay Corrections Center (CBCC). Since taking office Crewson has openly boasted of infracting prisoners to cut down on the number of grievances filed as he claims "too many grievances" are being filed. To make good on his threats and to discourage prisoners from using the grievance system, Crewson has infracted at least five prisoners that I know of (including myself) for using the grievance system.
The First Amendment to the U.S. Constitution protects the right of citizens to petition the government for redress of grievances. The Supreme Court has ruled that this right to petition extends to the departments of state government.
See: California Motor Transport vs Trucking Unlimited et al., 404 US 508, 510; 92 S.Ct. 609, 612 (1972).
Courts have ruled that prison officials cannot discipline or punish prisoners who complain about prison conditions as it violated the right to seek redress of grievances from the government. See: Wolfel vs Bates, 707 F.2d 932 (6th Cir. 1983); Gibbs vs King, 779 F.2d 1040 (5th Cir. 1985) and Franco vs Kelley, 854 F.2d 584 (2nd Cir. 1988).
The about were all state prisoners who filed suit under 42 U.S.C. § 1983 and the courts found in their favor. The Fifth Circuit has also held that when DOC regulations state that prisoners using the grievance system will not be retaliated against or punished (Washington grievance policy also carries this guarantee) for using the grievance system that a liberty interest protected by the due process clause has been created. See: Jackson vs Cain, 864 F.2d 235 (5th Cir. 1989).
In Sprouse vs Babcock, 870 F.2d 450, 452 (8th Cir. 1989) the Court held:
"...we hold that the filing of a disciplinary charge against Sprouse, although not actionable under §1983, is actionable under § 1983 if done in retaliation for his having filed a grievance pursuant to established procedures. Prison officials cannot properly bring a disciplinary action against a prisoner for filing a grievance that is determined by these officials to be without merit anymore than they can properly bring a disciplinary action against a prisoner for filing a lawsuit this is judicially determined to be without merit. That the constitution does not obligate the state to establish a grievance procedure is, we believe, of no consequence here, since what is at stake is a prisoners right of access to an existing grievance procedure without fear of being subjected to a retaliatory disciplinary action. As a purely practical matter, we observe that if such disciplinary actions were allowed, the purpose of the grievance procedure - to provide an administrative forum for the airing of prisoner complaints - would be defeated."
In a case brought by pretrial detainees complaining, among other things, of retaliation for filing grievances the Eight Circuit Court of Appeals in Johnson EI vs Schoemehl, 878 F.2d 1043, 1054 (8th Cir. 1989) ruled: "Here, however, the grievance system exists to encourage the efficient and speedy resolution of disputes literally preventing every unhappiness from becoming a "federal case." The prisoner is invited to submit complaints in lieu of litigation. To establish a grievance system whose use invites retaliation not only defeats the purpose of having the procedures, but it is obviously intended and otherwise constitutes punishment for the exercise of invited conduct."
The Eleventh Circuit has also held that infracting prisoners who file grievances complaining of conditions of confinement raises a constitutional issue. See: Wildberger vs BracknelI, 869 F.2d 1467, 1468 (11th Cir. 1989).
In Washington the grievance system at the Washington State penitentiary was certified by the U.S. District Court in 1984 which means that the grievance procedure must be exhausted before filing in that Court. The grievance systems in western Washington affecting prisoners in Monroe, Shelton, Clallam Bay, Purdy and McNeil Island are not certified and prisoners do not need to exhaust the grievance system prior to filing suit. Suits brought under 42 U.S.C. § 1983 do not require the exhaustion of administrative remedies prior to filing suit in federal court in civil rights suits for constitutional violations.
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