Standard D05.02.05: Retaliation Prohibited

By   Tate McCotter, NIJO Executive Director

 

KEY ISSUES

If there is an adverse event in a jail, rest assured a finger will point at something and usually someone until it finds appropriate blame.  An administration or individual correctional officer should expect such and remember that anything and everything can be scrutinized or twisted in efforts by some to vilify or try to show that an individual or administration is acting deliberately indifferent in dealing with issues.  I have worked with a number of sheriffs offering legal technical support with lawsuits and consent decrees.  In all cases, the prosecution has sought after filed grievances to show missteps by an administration, lack of attention to issues and violations of inmate rights.  The mishandling of grievances can be a gold mine in the courtroom, especially when dealing with cases of retaliation by the staff toward the inmates who filed the grievances.  “Getting even” by officers is portrayed in numerous movies and the media and attorneys representing inmates have taken notice.

Peter Eliasberg, an ACLU attorney for a private law firm representing inmates in the Heriberto Rodriguez jury trial, said: “99.9% of people in jail are not going to be able to pay. The only way it’ll happen is if you think the damages are significantly large enough to get a decent contingency, or if you get attorneys fees.” 1 They ended up getting the five inmates $950,000 for physical damages and $5,400,000 awarded in legal fees.   The inmates had claimed they were brutally beaten by officers, suffering broken bones and other serious injuries, after refusing to leave their cells.

So when it comes to grievances, most correctional supervisors have the experience to know that while not constitutionally required to have a grievance system, having one is a clear way to utilize the Prison Litigation Reform Act to avoid frivolous litigation.   The Prison Litigation Reform Act (PLRA) requires, “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by an inmate confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”2  Those grievance forms serve multiple purposes and benefits to the jail.3  But sometimes staff can take them the wrong way, especially when an inmate makes accusations against them or a fellow officer.

Can there be reprisals or any type of retaliation by officers against an inmate who files a grievance?  Of course there can!  In a perfect world reprisals would never happen, but unfortunately they do.  This was one of the primary issues raised with the Department of Justice PREA standards, emphasizing the lack of trust in officers that might retaliate against an inmate who was sexually assaulted by an officer.  Unfortunately, they did not seem to understand that administrations have the means and legal responsibility to take action against the officer in those situations, by conducting investigations and, when appropriate, criminally charging the officers.

OPERATIONAL APPLICATION

Understanding your grievance policy and how it can be a tool to help prepare for litigation can help eliminate retaliation dramatically.

  • Policies and procedures should clearly state retaliation by staff toward an inmate for filing a grievance is strictly prohibited. Staff should be trained on the function and scope of grievances and how they benefit the overall operations of the jail.
  • Retaliation against inmates for filing grievances is counter-productive. Retaliation against an inmate for filing a grievance may be found to violate the inmate’s rights, even if the retaliatory action would not, by itself, have been an unconstitutional act.4
  • Retaliation against inmates for filing grievances would adversely affect the inmates’ trust in the grievance system, a system which significantly benefits the jail.
  • Administrative measures should include a system with checks and balances so that staff is monitored appropriately to curb any potential retaliation. Supervisors play a critical role in this responsibility.
  • If retaliation is observed, appropriate disciplinary and/or criminal action against the offending officers is taken immediately.

 

REFERENCES:

  1. Los Angeles Times (Jan 6, 2015) Chang, C.  (2015, January 7). $5 Million in Legal Fees Awarded to Jail Brutality Victims.  The LA Times.  http://www.latimes.com/local/california/la-me-jail-legal-fees-20150107-story.html.
  2. 42 USC §1997e(a).
  3. See MI Legal-Based Jail Guidelines D05.02.01 Scope of Grievance System
  4. Siggers-El v. Barlow, 412 F.3d 693 (CA6 2005) (transfer to another prison which would have routine, became a constitutional issue when done to retaliate against an inmate who filed a grievance); Scott v. Churchill, 377 F.3d 565 (CA6 2004) (filing a major disciplinary writeup against inmate who file grievance against officer was violation of rights); Rhodes v. Robinson, 408 F.3d 559 (CA9 2005); Brown v. Crowley, 312 F.3d 782 (CA6 2002); Smith v. Maschner, 899 F.2d 940, 947 (CA10 1990); Wildberger v. Bracknell, 869 F.2d 1467, 1468 (CA11 1989) (retaliation for filing non-frivolous inmate grievances violates inmates’ First Amendment rights); Sprouse v. Babcock, 870 F.2d 450 (CA8 1989); Harris v. Fleming, 839 F.2d 1232, 1236-38 (CA7 1988); Williams v. Smith, 717 F.Supp. 523 (W.D. Mich 1989).
DISCLAIMER:
The training materials provided are for use only within the scope of your jail and may not to be distributed otherwise without written permission by NIJO.  The information contained herein is to be used solely for training purposes and shall not be construed as legal advice.  Users of these materials should consult legal counsel to determine how the laws of their individual jurisdiction affect the application of these materials and guidelines to their individual circumstances.

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