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GRIEVANCE E-140 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE EFFECTIVE DATE: 08-06-90 REVISED: 12-25-94, 08-03-95, 10-01-97, 07-01-98, 01-01-00, 01-01-01, 07-01-01, 06-01-06, 10-01-13, 12-16-13, 03-25-15, 07-06-16, 02-09-23 AUTHORITY: Sheriff J. Zanoni APPROVED BY: Assistant Sheriff S. McComas REFERENCE: California Code of Regulations, Title 15, Section 1073; Prison Litigation Reform Act of 1995 (PLRA); 28 CFR 115.52 (Exhaustion Of Administrative Remedies); 28 CFR 40 (Standards for Inmate Grievance Procedures); 42 USC 1997 (Civil Rights of Institutionalized Persons Act); 45 USC 15601 - 15609 (Prison Rape Elimination Act of 2003); and Hall, et al. v. County of Fresno, 1-11-CV-02047-LJ O-BAM (2015). PURPOSE: The purpose of this policy is to establish a means for an incarcerated person to seek formal review of an issue relating to any aspect of his/her own confinement that is subject to the Sheriff's authority. The Incarcerated Person Grievance Procedure enables the Jail Division to identify individual and systemic problems and to resolve legitimate complaints in a timely manner. POLICY: It is the policy of the Fresno County Sheriffs Office Jail Division that the Incarcerated Person Grievance Procedure shall be utilized in order to provide the best and most expedient resolution to the complaint at the lowest appropriate staff level, and also allow for appeal to the next level of review. It is the policy of the Fresno County Sheriffs Office Jail Division that an incarcerated person may appeal and have resolved grievances relating to any condition of confinement that affects the incarcerated person personally. PROCEDURES: I. GENERAL INFORMATION A. Incarcerated people may appeal and have resolved grievances relating Page 1 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE to any condition of confinement, including but not limited to- 1. ADA/Disability-based discrimination or violations 2. Classification 3. Clothing and Bedding 4. Commissary 5. Disciplinary actions (refer to Section V) 6. Food 7. Legal Services 8. Mail 9. Maintenance 10. Medical Care (refer to Section VI I) 11. Mental Health 12. Miscellaneous 13. Money 14. Officer Conduct 15. Program Participation 16. Property (lost property grievances must also be given a Lost Property Claim form) 17. Sanitation 18. Sexual abuse, sexual misconduct, or sexual harassment (refer to Section VI) 19. Telephone 20. Visiting procedures B. Incarcerated people may utilize the Incarcerated Person Grievance Procedure regardless of their disciplinary status, housing location, or classification. Appropriate provisions shall be made to ensure incarcerated people who are not fluent in English, persons with Page 2 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE disabilities, incarcerated people with low literacy level, the elderly, and the mentally ill have access to the Incarcerated Person Grievance Procedure. C. Pursuant to the Prison Litigation Reform Act of 1996 (PLRA), incarcerated people must completely exhaust the Jail's internal grievance and appeals processes prior to filing any complaint (i.e., writ) with the court. D. Incarcerated people are not required to use the formal Incarcerated Person Grievance Procedure to submit a verbal or written emergency complaint. 1. An emergency is a condition which, if processed through the normal grievance timeframes, would subject the incarcerated person to substantial risk of personal injury, or cause other serious and irreparable harm. 2. Any emergency complaint (as defined in section I(D)(1) of this section) received by staff shall be forwarded immediately, without substantive review, to the level at which corrective action can be taken. E. Staff receiving a grievance that describes activity which may be in violation of the Prison Rape Elimination Act of 2003 (PREA) shall immediately notify the on-duty Watch Commander. (Refer to Section VI.) F. Incarcerated people may file grievances and appeals directly to the Bureau Commander when the content of the grievance is of a nature which would pose a threat to the safety of the incarcerated person, staff, or other incarcerated people if the grievance were filed through established procedures. (Refer to Section VI 11.) G. Incarcerated people may choose to submit a grievance anonymously, however, they should be aware that they will not receive a written response. H. A grievance may be denied on procedural grounds, without addressing the substantive issues . Whenever a submission is rejected, the incarcerated person shall be provided a written notice explaining the reason for the rejection. (Refer to Section IX.) Page 3 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE I. Incarcerated people may not grieve the decision on a previous grievance regarding the same matter (i.e., the results of a grievance may not be grieved). J. The Sheriff's Office does not accept or process grievances against arresting agencies, judges, courts or other institutional facilities or agencies outside the jurisdiction of the Fresno County Sheriffs Office. II. FILING A GRIEVANCE A. Incarcerated people are expected to make reasonable attempts to resolve a complaint prior to submitting a grievance. Staff is to take an active role in resolving complaints or problems. Problems that are unable to be solved informally by staff through dialogue and discussion may be addressed by following the procedures in this policy. B. All grievances must be filed on an individual basis by the respective incarcerated person identifying the specific nature of the grievance. Incarcerated people may only pursue a grievance concerning a problem that affects the incarcerated person personally, with the following exceptions: 1. The incarcerated person is so physically or emotionally handicapped as to be incapable of filing a grievance. 2. The grievance involves the sexual abuse, sexual misconduct, or sexual harassment of another incarcerated person. 3. The grievance involves staff misconduct. C. Incarcerated people may choose to submit a grievance anonymously in a sealed envelope marked "Confidential" directly to the Bureau Commander. However, they should be aware that they will not receive a written response. Anonymously filed grievances will not contain a signature and must be accepted. D. If an incarcerated person cannot complete the grievance form due to language, physical, or competency and capacity barriers, another person (Jail staff or another incarcerated person) may assist in completing the form. However, the incarcerated person submitting the grievance must sign the grievance form. Translation services or other assistance for submission of a grievance form for non-English speaking Page 4 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE incarcerated people, incarcerated people with disabilities, or who have difficulty with reading and writing will be made available upon request. E. Incarcerated people may only file one issue on each grievance. However, problems that arise from the same incident, or involve a reasonable number of closely related issues, may be submitted on one form. Any grievance that is submitted with multiple unrelated issues shall be rejected and the incarcerated person shall be advised to use a separate form for each unrelated issue. F. The grievance must be individual in nature, even though others may be similarly affected. Each incarcerated person is responsible to retain the duplicate copy of their original grievance as receipt of submission. Multiple grievances that concern the same subject matter may be addressed in one general published response by the Bureau Commander, or designee. The response shall be signed and posted in each affected dayroom area. The published response shall be referenced on the grievance response. III. REQUEST & ROUTING OF INCARCERATED PERSON GRIEVANCE FORMS A. Incarcerated people who wish to grieve a condition of confinement may submit an Incarcerated Person Grievance Form (J-105A) within fourteen (14) calendar days from the date of the incident relating to the grievance, unless the condition or issue is ongoing. Failure to submit a grievance within 14 days will be considered abandonment. The grievance response will note that the incarcerated person exceeded the timeframe and no action will be taken. Exceptions shall be made for discipline grievances (refer to Section V), grievances regarding sexual abuse (refer to Section VI), and medical grievances if the issue is related to the incarcerated person's health or well-being. B. Incarcerated Person Grievance Forms are available from the housing floor officers. C. The officer who provides the Incarcerated Person Grievance Form to the incarcerated person shall determine if the incarcerated person's grievance can be resolved at that time by taking the appropriate action. If the grievance cannot be resolved at line staff level, the incarcerated person shall be provided with an Incarcerated Person Grievance Form. Page 5 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE The officer shall provide the necessary information or instructions for the proper completion of the form. D. The officer who accepts the completed Incarcerated Person Grievance Form shall be responsible to: 1. Ensure the incarcerated person's portion is properly completed. 2. Determine if the grievance can be resolved at their level. a. If the grievance can be rectified, it shall be. An explanation as to how the grievance was resolved shall be written in the appropriate portion of the Incarcerated Person Grievance Form. The incarcerated person may withdraw the grievance by checking the appropriate box and signing their name. However, the Incarcerated Person Grievance Form must still be routed to the Distribution Room for statistical purposes. (All ADA-related grievances shall be forwarded to the ADA Coordinator (including those that are resolved in the unit by housing staff).) b. If the grievance cannot be rectified, the appropriate box shall be checked on the Incarcerated Person Grievance Form. c. Grievances specific to medical or mental health issues shall be forwarded without being read. 3. Sign, date and place their computer number on the form in a legible manner. Anonymously filed grievances will not have a signature, but must be accepted. 4. Give the incarcerated person their copy of the Incarcerated Person Grievance Form. 5. The form shall be placed in the Grievance bin in the Distribution Room prior to the end of the shift. However, if the incarcerated person is currently serving discipline time and the grievance is specific to the rule violation for which the incarcerated person is doing their time, or involves an emergency grievance, the grievance shall be given to the on-duty Watch Commander for immediate investigation and review. E. If the incarcerated person wishes to submit an anonymous grievance, they should place the grievance in an envelope marked "Confidential". Page 6 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE The officer will not open or review the grievance. Instead, it shall be forwarded like other grievances to the Grievance mailbox in the Distribution Room. F. The designated Grievance Coordinator or their relief (or the on-duty Watch Commander, if the circumstances as delineated in Section I(D)(1) apply) will be responsible to log the grievance in OffenderTrak and forward the grievance to the appropriate Lieutenant or Manager/ Supervisor for Investigation. [Refer to Addendum A for the procedures necessary to complete the OffenderTrak entries.] G. The Lieutenant or Manager/Supervisor to whom the grievance is forwarded shall assign the grievance for investigation and be responsible to revise the grievance log with the name of the investigator to whom it was assigned. An employee who appears to be involved in the matter shall not participate in any capacity in the resolution of the grievance. H. The ADA Coordinator shall review all ADA-related grievances (including those that are resolved in the unit by housing staff), assign an ADA-trained officer to investigate the complaints, and ensure that a prompt and equitable resolution is provided to each issue raised. (Refer also to policy D-140/Incarcerated People with Disabilities [FILE: ADA].) IV. GRIEVANCE PROCESS A. Grievances shall be investigated and processed for review within a reasonable amount of time after submission, usually within fourteen (14) calendar days. B. Based upon the findings of the investigation, the investigating staff member shall make a recommendation to either sustain or not sustain the incarcerated person's grievance. 1. If the grievance is found to be not sustained, an explanation for not sustaining the grievance shall be indicated. 2. If the grievance is sustained, any action taken to remedy the grievance shall be indicated. C. The grievance and any documentation concerning the grievance, along with a recommendation from the investigating staff member, shall be Page 7 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE reviewed by the Lieutenant or Manager/Supervisor (or their designee), who will make a determination to either sustain or not sustain the grievance. If a grievance is sustained, the affected Lieutenant or Manager/Supervisor shall be responsible to ensure the rectification of the problem. D. The completed grievance form shall be returned to the Grievance Coordinator who will be responsible to: 1. Scan and log all grievance responses, regardless of disposition (e.g., sustained, not sustained, rejected). 2. Return the original signed form to the incarcerated person to serve as notice of the action taken concerning the matter. E. An incarcerated person who is dissatisfied with the response to a grievance may appeal the grievance to the next level within five (5) calendar days. V. DISCIPLINARY GRIEVANCES A. In an effort to thwart attempts to impede the disciplinary process, grievances submitted concerning discipline issues must be submitted within forty-eight (48) hours from the time the rule violation hearing process is completed and the incarcerated person is notified of the outcome. B. If the incarcerated person is currently serving discipline time and the grievance is specific to the rule violation for which the incarcerated person is doing their time, the grievance shall be given to the on-duty Watch Commander for immediate investigation and review. C. If a discipline grievance is sustained and the incarcerated person is currently serving discipline time (and the grievance is specific to the rule violation for which the incarcerated person is doing their time), the incarcerated person shall be removed from discipline and copies of the grievance shall be forwarded to the Population Management Unit. The Watch Commander shall ensure that the designated Information Technology personnel are notified to expunge the associated OffenderTrak records. D. Population Management shall be responsible to make any appropriate transfers, and cancel all corresponding discipline events. Page 8 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE VI. SEXUAL ABUSE GRIEVANCES A. There shall be no time limit on when an incarcerated person may submit a grievance regarding an allegation of sexual abuse. B. Third parties, including fellow incarcerated people, staff members, family members, attorneys, and outside advocates, shall be permitted to assist incarcerated people in filing requests for administrative remedies relating to allegations of sexual abuse, and shall also be permitted to file such requests on behalf of incarcerated people. 1. If a third party files such a request on behalf of an incarcerated person, the Watch Commander may require as a condition of processing the request that the alleged victim agree to have the request filed on their behalf, and may also require the alleged victim to personally pursue any subsequent steps in the administrative remedy process. 2. If the incarcerated person declines to have the request processed on their behalf, that decision shall be documented. C. An incarcerated person may file an emergency grievance if they believe they are subject to a substantial risk of imminent sexual abuse. 1. After receiving an emergency grievance alleging an incarcerated person is subject to a substantial risk of imminent sexual abuse, the grievance shall be immediately forwarded to the on-duty Watch Commander, who shall log and assign the grievance for investigation. 2. The initial response and final decision shall document the determination of whether the incarcerated person is in substantial risk of imminent sexual abuse and the action taken in response to the emergency grievance. 3. The assigned investigator shall provide an initial response within forty-eight (48) hours. A final determination as to whether or not the grievance is sustained shall be issued within five (5) calendar days. D. An incarcerated person maybe disciplined for filing a grievance related to alleged sexual abuse only where it can be demonstrated that the incarcerated person filed the grievance in bad faith. Page 9 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE VI I. MEDICAL GRIEVANCES A. Grievances specific to medical or mental health issues shall be forwarded and placed in the Grievance bin in the Distribution Room without being read by correctional staff. B. Medical and mental health grievances shall be assigned for investigation and answered by designated medical staff members. C. Due to the health and safety issues associated with medical grievances, incarcerated people who file repetitive medical grievances claiming "absent medical concern" shall continue to be considered, despite their repetitious nature. They can, however, be limited to one grievance per week. Vill. SENSITIVE ISSUES A. If the incarcerated person reasonably believes the issue is sensitive and that person's safety or well-being would be placed in danger if the information became known, the incarcerated person may submit the information directly to the appropriate Bureau Commander in a sealed envelope marked "Confidential". The incarcerated person shall explain, in writing, the reason for not submitting a grievance to custody staff. If the Bureau Commander agrees that the information is sensitive, the Bureau Commander shall direct an investigation as appropriate. 1. Sensitive issues shall be handled in a confidential manner. 2. The grievance form shall not be returned to the incarcerated person. B. If the Bureau Commander determines that the matter is appropriate for handling through the grievance procedure, the letter may be returned to the incarcerated person with instructions to the incarcerated person to make use of and follow the proper grievance procedure. IX. REJECTION A. Any grievance or appeal that does not meet any requirement may be rejected and returned to the incarcerated person without investigation. B. A grievance may be denied on procedural grounds, without addressing the substantive issues for any of the following reasons. The grievance: Page 10 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE 1. Was not submitted within the established time parameters. 2. Is not legible. 3. Is not properly completed or is lacking specific details. 4. Is incomprehensible. 5. Was already grieved by the incarcerated person or by another incarcerated person and resolved. 6. Is grieving an action not yet taken. 7. Contains unrelated issues that should be presented in separate grievances. 8. Does not concern a problem that affects the incarcerated person personally. 9. Fails to request relief or requests relief that is unclear or not available. 10. Concerns a matter that is not within the jurisdiction of the Jail Division or the Fresno County Sheriff's Office. 11. Or in any other way fails to comply with the provisions of the Incarcerated Person Grievance Procedure. C. When a submission is rejected on procedural grounds, the grievance shall be logged as usual, however, the applicable reason for not processing the grievance shall be indicated by the reviewing Lieutenant/ Manager and the grievance returned to the incarcerated person. If the defect on which the rejection is based is correctable, the incarcerated person shall be provided a reasonable time extension within which to correct the defect and resubmit the grievance or appeal, if necessary. Ordinarily, five (5) calendar days from the date of return to the incarcerated person is reasonable for resubmission. D. When deciding whether to reject a submission, the reviewing Lieutenant/ Manager should be flexible, keeping in mind that the primary purpose of the grievance system is to solve problems and be responsive to issues incarcerated people raise. Thus, for example, consideration should be given to accepting a grievance or appeal that raises a sensitive or problematic issue, even though that submission may be somewhat untimely. Page 11 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE X. ABUSE OF THE GRIEVANCE PROCEDURE A. Incarcerated people who abuse the grievance system may be subjected to criminal, civil, disciplinary, and/or administrative action, depending on the nature of the abuse. A grievance may be denied without addressing the substantive issues for any of the following reasons. The grievance- 1. Contains profanity, insults, or racial slurs (unless included as an alleged direct quote of another party). 2. Contains a threat of serious bodily injury to a specific individual. 3. Is considered to be frivolous, malicious or harassing. 4. Demonstrates a pattern of abuse of the grievance system. B. A demonstrated pattern of abuse of the grievance procedure may be established if the incarcerated person files: 1. Cumulative and/or repetitious grievances. 2. Knowingly false statements. 3. Factually incredible grievances, or those clearly devoid of merit. 4. An excessive number of unfounded, frivolous, or otherwise abusive grievances. 5. Two (2) or more emergency grievances per month which are deemed not to be emergencies. C. If an incarcerated person files a grievance as listed in (A) or (B) above, the grievance shall be logged as usual, however, the applicable reason for not processing the grievance shall be indicated, and the grievance returned to the incarcerated person. The incarcerated person will not be given additional time to resubmit the grievance in the proper form. D. Incarcerated people are limited to four (4) unfounded or frivolous grievances in a week, eight (8) in a calendar month, or twenty (20) in any 180 consecutive days, if the current grievance is not substantial. A week is defined as Sunday through Saturday. The reason why a grievance has been considered frivolous shall be documented. Page 12 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE E. If a life, health or safety situation arises whereby there is a valid reason to submit more than four (4) grievances in one week, eight (8) in a calendar month, or twenty (20) in any 180 consecutive days, the incarcerated person must clearly state in writing the reason for submission of the grievance above the number restricted. If the on- duty Watch Commander determines that these reasons are not clear, concise, or valid for submission of an additional grievance, the grievance will be returned to the incarcerated person denied. XI. APPEAL A. An incarcerated person who is not satisfied with the response received may submit an Incarcerated Person Grievance Appeal Form (J-105B) within five (5) calendar days from the date of receipt. B. The scope of the original grievance cannot be expanded. No additional information may be submitted unless the information was unavailable to the incarcerated person at the time the original grievance was filed and the information is directly related to the alleged issue being grieved. C. The Bureau Commander shall review the grievance, the investigation, and the response signed by the reviewing Lieutenant/Manager/ Supervisor. The Bureau Commander may return the grievance to the appropriate Lieutenant or Manager/Supervisor for additional investigation. D. The Bureau Commander or designee should issue a written response to the incarcerated person which either affirms or reverses the decision of the Lieutenant or Manager/Supervisor as soon as reasonably practicable. Should the Bureau Commander reverse the decision of the Lieutenant or Manager/ Supervisor, the Bureau Commander shall provide the incarcerated person with written notification of the corrective action to be taken. E. The decision of the Bureau Commander shall be final and constitutes exhaustion of all remedies within the agency. F. Medical grievances may be appealed to the Compliance/Contract/ Remedial Plan Public Health RN. The Public Health RN may delegate signature authority for any and all grievance appeal responses. The decision of the Public Health RN will be forwarded to the Jail Programs Page 13 of 14 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: INCARCERATED PERSON GRIEVANCE PROCEDURE NO: E-140 FILE: GRIEVANCE & Services Bureau Commander for final review. The Bureau Commander's review is final and constitutes exhaustion of all remedies within the agency. XII. PROTECTION AGAINST REPRISAL A. Retaliation or threat of retaliation for use of the Incarcerated Person Grievance Procedure is strictly prohibited. The incarcerated person may pursue any alleged or threatened retaliation through the Incarcerated Person Grievance Procedure. B. Adverse action shall not be taken against any incarcerated person for use of the grievance procedure unless the person uses the grievance for the following purposes- 1. To communicate a threat to a specific individual or to the security of the facility. 2. To make a complaint knowing that it is false, malicious, or made in bad faith. (Failure of an incarcerated person to substantiate his/her grievance allegations shall not, by itself, be used as grounds to initiate disciplinary action against that person.) Page 14 of 14