14-e-3 What Are "available" Remedies?

LibraryA Jailhouse Lawyer's Manual (2020 Edition)

14-E-3. What Are "Available" Remedies?

The PLRA says you must exhaust all "available" remedies inside the prison before you can file a suit in federal court. A remedy, or the fix/solution to a problem, is "available" if it can "provide any relief" or "take any action whatsoever in response to a complaint."225 You may believe that the complaint system in your prison is unfair or a complete waste of time, but you still must use and go through all of the steps and give the prison a chance to fix the problem first.226

The "available" remedy that you must exhaust will usually be the prison grievance procedure, or complaint system.227 However, if an issue is not "grievable," meaning you are not allowed to bring a complaint under the prison's complaint system, you will not be required to go through those steps because they are not available for your issue.228 (However, as will be discussed below, there may be other ways of complaining to the prison or appealing a decision that you have to exhaust even if the issue is non-grievable.) Different prison systems have different rules about what kinds of complaints can be brought under their grievance systems. For example, the New York State grievance rule says:

(1) An individual decision or disposition of any current or subsequent program or procedure having a written appeal mechanism which extends review to outside the facility shall be considered non-grievable.

(2) An individual decision or disposition of the temporary release committee, time allowance committee, family reunion program or media review committee is not grievable. Likewise, an individual decision or disposition resulting from a disciplinary proceeding, inmate property claim (of any amount), central monitoring case review or records review (freedom of information request, expunction) is not grievable. In addition, an individual decision or disposition of the Commissioner, or his designee, on a foreign national prisoner application for international transfer is not grievable.

(3) The policies, rules, and procedures of any program or procedure, including those above, are grievable.229

This means when some committees make their decisions, the decisions themselves cannot be challenged through the complaint system. However, the rules and procedures that these committees followed when they made that decision can be challenged. So, for example, you cannot challenge the denial of temporary release (under article 2), but your complaint that the Temporary Release Committee followed unfair procedures can be challenged (under article 3).

If there is no way for you to complain or challenge a problem through the prison system, then the PLRA will not require you to go through the prison complaint system before you can file suit in federal court.230 This is more complicated than it sounds.

If you want to sue for money damages (and the prison complaint system does not offer money damages), you may still have to use the prison complaint system first.231 Unfortunately, a problem may seem grievable at first but in reality it turns out that it is not because of how the grievance system operates.232

Often, a prison will have a separate, specialized solution only for "non-grievable" issues, that is, issues you cannot complain about through the grievance system. If a separate solution exists, you must use it before filing suit.233 This happens frequently in disciplinary proceedings. To satisfy the "proper exhaustion" requirement (to prove to the court that you have tried every grievance process inside the prison system first),234 you must choose correctly between appealing a disciplinary action, complaining about a mistake that resulted in a wrong decision and filing a separate grievance, and complaining about something brand new-and sometimes you may need to do both.

Generally, if you want to sue over what happened in the disciplinary hearing itself, you must first meet the exhaustion requirement by filing a disciplinary appeal.235 This means you must first complain within the prison system about the mistake before you're allowed to go outside the prison system to a court. However, if you're suing about the events that resulted in the disciplinary hearing in the first place, you can't complain about it within the system. In this case, you will have to file a whole new complaint.236 In order to prove that you have meet the exhaustion requirement, that is, that you have done everything you can within the system, you have to check the prison's rules.237 The problem is that prison rules are often so messy that even prison officials cannot keep them straight. For example, in one New York State case, a prisoner complained that evidence used against him at a disciplinary hearing was made-up. The state argued that the prisoner should have filed a brand new separate grievance (or complaint) and not a disciplinary appeal (just complaining about the mistake in the hearing) to exhaust that issue. The Second Circuit Court held that the prisoner was right because of special circumstances.238 This was because the rule was unclear and the prisoner was reasonable in believing that he could only complain by appealing.239 New York State not only never fixed the confusion,240 but also in another case made exactly the opposite argument. In the other case, the prisoner had filed a separate grievance about retaliatory discipline. The state now argued that he should have filed a disciplinary appeal.241 In some cases, prison officials appear to have stretched the rules to reject grievances that were related to disciplinary proceedings even though it was against the rules.242 In some prison systems, the rules do not allow grievances that have any relationship to a disciplinary incident.243 The bottom line is that you must read the prison system rules very carefully to figure out whether a problem calls for a grievance or a disciplinary appeal. In some cases both will be required if you wish to raise many different issues in your lawsuit.244 If the rules are not absolutely clear, it may be a good idea to file both a grievance and a disciplinary appeal to protect yourself. If prison officials reject your complaint, it is harder for them to say later that you should have used it one or the other.

Finally, there are many reasons why there are no solutions, or remedies, to your problem.

A remedy may not exist if there are no clear standards to apply to what happened in your specific case. For example, courts have made many decisions about mental illness or retardation. In some cases, the prisoner won.245 In some cases, prison officials won.246 There are no clear standards to guide these cases. Likewise, there are no clear standards for cases involving prisoners who couldn't use the prison complaint system properly because of disabilities,247 illiteracy or lack of education,248 inability to speak or write English,249 or because they were too young.250

A remedy may not be available because you are transferred out of your prison or jail system before you can file a grievance,251 unless the system gives you a way to complain after you are transferred.252 Also, if you had time to file a grievance before being transferred but did not, the court will probably decide that you did not do everything you could to solve your problem within the system.253 Be careful with this issue. Courts sometimes just assume that you have a solution inside the prison system after you were transferred even if that is not true.254 If you get transferred before you can file a grievance, or if you are waiting for a grievance to be resolved, you should do your best to keep going with the grievance. Maybe you will succeed. If you do not succeed, you will be able to show that there was not a solution for you. In any case, you will need to show the court that you tried everything first (that is, you tried to use all of the grievance procedures available to you) and that you have good reasons to explain why you were not successful.255

The court might decide that a solution does not exist to your problem, or was not available to you, so you did not have to pursue it, because of what prison employees did or did not do. The Second Circuit, along with other courts, have decided that if prison employees threaten or assault you so you will not complain, the court will consider the ability to complain unavailable, even if procedures do technically exist.256 To show that a remedy did not exist for you, you must show that the threat or intimidation of the prison official actually did prevent you from making or pursuing your grievance and that "a similarly situated individual of ordinary firmness" would have been prevented from making or pursuing a grievance.257 This means you must show that an ordinary person in your position would not have made or pursued the complaint because of the threats, intimidation, or assaults of the prison officials.258

Remedies may be made unavailable because of something else the prison staff did, even if the prison staff is not deliberately trying to make it hard for you to access a remedy.259 For example, the court might consider a solution unavailable for a rule that will not give postage stamps to prisoners who cannot afford them.260 This may also be the case for prison officials refusing to give writing materials or documents to prisoners in a segregation unit.261 Sometimes...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT