contact

Charles Carbone, Esq.
PO Box 2809
San Francisco, California 94126

Telephone: 415-981-9773
Or: 415-531-1980 (mobile)
Facsimile: 415-981-9774
charles@charlescarbone.com 

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On this page, which I will try to attempt to update regularly, I will post pointers and self-help hints on how to properly litigate a prisoner rights case. 

As I've said many times, the law must be accessible to the families and the prisoners it actually affects. Hence, it is vitally important for lawyers to stop mystifying the law and start telling those effected how the law works.

Here are the major points to consider before filing a prisoner suit:

Exhaustion of Administrative Remedies:
Prisoners are required to exhaust their administrative remedies prior to filing a lawsuit. This means that prisoners must file and advance a “CDC Form 602” through all 3 levels of internal review by prison staff. If the inmate does not file this appeal and have heard (and denied) at all 3 levels of review, a court is likely to throw the case out before the inmate's complaints are heard.

Here's a useful explanation of the administrative appeal process.

litigation

I. OVERVIEW

Prison administrative appeals are the internal grievance process through which prisoners, and in some situations non-prisoners, may file a complaint against prison personnel to challenge a prison policy or practice.

The appeal process is an internal administrative grievance process because the California Department of Corrections (CDC) is a state administrative agency, in fact the state's largest. While administrative appeals also may be filed against the Board of Prison Terms (usually relating to parole conditions), this manual is limited to complaints against the California Department of Corrections (CDC) for conditions of confinement and disciplinary actions.

II. EXHAUSTING PRISONERS' ADMINISTRATIVE REMEDIES BEFORE GOING INTO COURT

Why is this "exhaustion of remedies" important?
The administrative appeal process affects the prisoner's right to have his/her claims heard in court. According to a steadfast California law, in nearly every situation, a prisoner must exhaust their administrative remedies before they can file a lawsuit in court. This applies to both types of lawsuits frequently utilized by prisoners - known as "Petitions of Habeas Corpus" and "Writs of Mandate."

Prisoner must exhaust their administrative appeals because any lawsuit they file without doing so will be dismissed by the court on procedural grounds without the court ever addressing the substance of the prisoner's claims.


How does the "exhaustion of administrative appeals" requirement impact the advice given to prisoners?
Well, non-lawyers should never give prisoners legal advice, but it is appropriate to tell prisoners that they cannot file a lawsuit, and any attorney representing a prisoner cannot file a suit as well, without the prisoner first exhausting their administrative remedies. Prisoner lawyers and activists should sound like a broken record on this issue when talking 
to prisoners. Although there are often "informal" forms of advocacy that can be pursued (e.g. writing the warden, legislators, inspector generals, etc.) a lawsuit can only be filed after the administrative appeal is exhausted.

What is the rationale for requiring the exhaustion of administrative remedies?
The exhaustion requirement is intended to allow prison officials the first chance to review and correct any prisoner grievance before the court attempts to "second-guess" the policies of CDC and its officials. It also demonstrates the prisoner's sincerity in his or her  grievance.

When might there be an exception to the exhaustion of administrative remedies?
There are a limited number of situations in which a prisoner might not be required to exhaust their administrative remedies.

 

In a lawsuit where the prisoner is claiming his/her civil rights were violated - also called a "Section 1983 action" named after the federal law (42 U.S.C. Sec. 1983) - the federal courts in California (the "9th Circuit") are split on whether a prisoner seeking only monetary damages, rather than "injunctive relief" (asking the prison/ prison official to take a particular course of conduct) would require the exhaustion of administrative remedies. 
Given this split by the courts, it is safe right now to continue to exhaust the administrative remedies.

There is some California law as well that does not require the exhaustion of administrative remedies where the prisoner can prove that an administrative remedy is not adequate or available. For example, if the prisoner can show that their administrative appeals are being disregarded or not timely addressed under the required response times, the prisoner may circumvent the exhaustion of remedies requirement. Be careful, however, to 
thoroughly document any instance in which a prisoner wants to prove futility of the appeal process because a court will strictly scrutinize this requirement.

The exhaustion requirement is also excused when a prisoner can prove with certainty that the administrative appeal will fail because the challenged policy or practice has been consistently maintained and defended.

Another exception applies when waiting for the exhaustion of remedies would require the prisoner to "suffer an unreasonable risk of irreparable harm." Circumstances fitting these criteria may include when a prisoner is suffering from severe medical neglect and risks severe physical harm if they wait for their administrative remedy to exhaust, or if awaiting a transfer would threaten their personal safety, etc. The prisoner should state on an emergency 602 why the appeal should be handled on an emergency basis and submit the appeal directly to the appeals coordinator. It will either be rejected and returned to the prisoner for regular treatment, or it will be handled according to the following timetable:

  • The informal and or first level is bypassed;

  • The second level response must be completed in 5 working days;

  • The third level is submitted directly to the appeals coordinator rather than the CDC Director in Sacramento. The Appeals Coordinator must then send via facsimile the emergency 602 to the Chief of Inmate Appeals for the third level review. Third level review must be completed in 5 working days. 15 CCR Sec. 3084.7(a)(2)(C).


Another form of an emergency 602 may be filed if the 602 challenges a disciplinary action where time credit is lost, or affects an imminent release date.

Bear in mind, even if these exceptions apply, it is always a good practice for the prisoner to file an administrative appeal - even while their lawsuit is pending. Likewise, if the administrative appeal process looks futile, it is even more important to pursue the "informal" channels like contacting warden, etc.

III. HOW DOES A PRISONER FILE AN ADMINISTRATIVE APPEAL?

An administrative appeal is initiated by a prisoner filling out CDC Form "602." A copy of a blank 602 form is attached hereto as Exhibit 1. The rules covering 602's are in Title 15 of the California Code of Regulations and the CDC Department Operations Manual (DOM). Prisons are required to have copies of both in the prison law library. According to CDC's DOM 54100.3, prisoners are required to be informed of the 602 internal grievance processes upon arrival at the institution.

State law - Title 15, Sec. 30842.1(c) - requires that 602 forms be "readily available" in all prisons, re-entry facilities, and parole offices.


A prison can attach one additional page to the 602 explaining the grievance and any supporting documents as well.


Prisoners must date, sign and re-submit the 602 at each level of appeal. A prisoner's family member, interested party or attorney, however, may assist in the drafting of the 602.

Can prisoner file a group or "class action" 602?
Yes, prisoners can file a group or "class action" 602 that raises the same concerns of multiple prisoners. To file a group 602, one prisoner must file the appeal and behalf of others who are named (with CDC numbers) on the appeal. The appeal response is provided only to the prisoner who filed the appeal, and he/she is required to share the response(s) with the participating prisoners.

IV. WHAT TYPE OF CLAIMS CAN A 602 RAISE

In theory, "any inmate or parolee under the department's jurisdiction may appeal and departmental decision, action, condition or policy which they can demonstrate as having an adverse effect upon their welfare."


This right to file a 602 extends over any issue for which CDC has control. This right, as explained below, however is not absolute. Prisoner can have their 602's summarily denied for a number of reasons.

Can CDC retaliate against a prisoner for filing a 602?
In theory and law, no. Under Title 15 Sec. 3084.1(d), no reprisals can be taken against prisoners who file 602's excluding placing limits on the number of 602s filed by prisoner who meet the criteria (enumerated below) for "abuse" of the 602 processes.

What are the rights for non-English speaking prisoners to file a 602?
CDC rules - Title 15 CCR Sec. 3084.1(b) - places an affirmative duty on prison officials to provide assistance to non-English speaking persons to "ensure that they too have access to the appeal process." If the prisoner has a primary language other than English, and their 602 lacks clarity because of a language barrier, the Appeals Coordinator must arrange an interview to clarify or complete the appeal.

V. THE LIMITS OF AN ADMINISTRATIVE APPEAL

When must a prisoner file a 602?
Prisoner generally has 15 working days to file a 602 from the date that the grievance arose. Working days do not include weekends and holidays. One exception to the 15-day rule applies for challenges to employee misconduct for which the prisoner has one year from the date of the misconduct.

The same 15-day rule applies to appeals to the original 602. Prisoners have 15 days to re-submit an appeal after a response is received. A late-filed appeal may be rejected. However, the prison does have discretion to accept a late filed appeal.

If a 602 is rejected for being filed in an untimely manner, the prisoner can file in court claiming that the administrative remedies were exhausted by the time barred rejection of the 602 -- although this method of exhaustion is not recommended.

A late-filed 602 may be excused if the reason for the delay was that a previous filed 602 was rejected for lack of documentation, and the documentation was not previously available.

When must CDC respond to a prisoner 602?
Generally, CDC must respond to 602's according to the following timeline:

  • 10 working days to complete a response at the first informal level;

  • 5 working days for the Appeals Coordinator to assign the appeal to the appropriate staff and set the due date for the formal first level appeal response.

  • 30 working days to complete a response at the first formal appeal level;

  • 20 working days to complete a response at the second level of review (or 30 working days if the first formal level is waived); and

  • 60 working days to complete a response at the third level.

(For authority, see 15 CCR Sec.s 3084.6(b) and 3084.5(a)(3).
The time limits begin when the appeals are received by a staff member at the informal appeal, and when received by the appeals coordinator for all other appeal levels.


When can CDC delay their response on a 602?
Unfortunately, there all too many circumstances in which CDC can justify delaying a response to a 602. Delay excuses may be justified when staff or inmate witnesses are unavailable, when the agency decision is unusually complex, or if the appeal involves other state agencies or jurisdictions.

What notice does CDC have to provide if a 602 is delayed?
CDC is required to tell a prisoner that his/her 602 response is delayed - including the reason(s) for the delay and an estimate of the time needed to complete the review - at the first and second formal appeal levels. At the third level - often referred to as the "DRB Level" or the "Departmental Review Board" level, CDC is not required to give the prisoner any excuse for the delay or a response time estimate.

Given the frequency of delays to the 602 processes, prisoners should keep careful records of the 602 response times of CDC.

VI. NAVIGATING THROUGH THE 602

In order to exhaust an administrative remedy, a prisoner must move through four appeal stages:
1. Informal Level
2. First Formal Level
3. Second Formal Level
4. Third "DRB" Formal Level

A prisoner's 602 can be granted at any level, but exhaustion only occurs if the prisoner reaches the Third "DRB" Formal Level with some exceptions.

1. INFORMAL APPEAL
Prisoners are required to attempt to informally resolve the grievance directly with the staff member. Hence, the prisoner is first required to fill out the 602 and present it the staff member responsible for the challenged conduct or policy. The staff member has 10 working days to write a response in Part "C" of the 602, sign, and date it and return it to the prisoner.

Not all 602s require the prisoner to seek informal review. The following is a list of appeals that do not require an informal review:

  • Appeals of classification committee actions

  • Serious CDC disciplinary rule violations (or CDC 115's)

  • Classification staff representative (CSR) actions

  • Departmental regulations

  • Policies and operational procedures

  • Alleged misconduct by a Correctional Officer

  • Denial of a Request for Reasonable Modification or Accommodation Request

  • Any action "which the appeals coordinator determines cannot be resolved informally" and

  • Emergency appeals

 

Any prisoner who believes that their 602 does not require an informal review should write "Bypass-informal review not required" in Part "C" of the 602 and submit it directly to the institution's appeals coordinator for formal processing.


Because 602's are not assigned an "appeal number" at the informal level, 602's at this stage are often "lost" or "misplaced." Therefore, it is crucial for prisoners to document the filing of the 602 (date, time, person) at this stage.

2. FIRST LEVEL APPEAL
Once the informal level has been completed or waived, the prisoner can amend the 602 in Part "D" and submit it to the prison's Appeals Coordinator for formal processing. A prison's Appeals Coordinator must be one staff member at no less rank than a CC-II. (DOM 54100.3)


Before the appeal is accepted, it is reviewed by the prison's Appeals Coordinator who "screens" the 602 to make certain it complies with CDC rules. If the 602 is rejected, the prisoner must be notified of the reason(s) by delivery of CDC Form 695 "Appeals Screening Form." CDC rules provide that CDC must "provide clear instructions regarding further action the inmate must take to qualify the appeal for review."

Appeals can be denied or "screened out" for the following reasons:

  • The challenged policy or practice is not within the jurisdiction of CDC

  • The appeal is a duplicate, previously reviewed or presently under review

  • The appeal challenges an action/decision which has not been implemented or undertaken

  • The informal review level was not pursued/ completed

  • The 602 is incomplete or lacks the necessary accompanying documentation

  • The prisoner did not file the 602 in a timely manner.

  • A group appeal has not complied with the rules on such appeals.
    (For authority, see 15 CCR Sec.3084.3(c)(1-8))


602's also may be denied for "abuse" of the 602 process. Abuse of the 602 can also be established by CDC showing that:

  • Excessive appeals - defines as "more than one appeal in a seven calendar day period." If excessive, the first 602 will be processed while the rest (excluding emergency appeals) will be denied. The appeals coordinator must then consult with the Chief of Inmate Appeals to determine the course of action on the suspended appeals.

  • Finding of "abuse" results in a limit of one appeal per month for a consecutive six month period.

  • The 602 contains "inappropriate statements" defined as "false information, obscene, or slanderous statement."

  • Excessive verbiage - meaning too wordy or pointless, immaterial statements. This rule does not apply to non-English speakers.

  • The prisoner refuses to cooperate with the appeal reviewer, such as refusing to be interviewed.

(For authority, see 15 CCR Sec. 3084)


When does a 602 get a "log number" assigned?
If a 602 is cleared as acceptable for review, it will be assigned a "Log Number" which is used to track the 602 through the appeals process.

What happens at the First Level Appeal?
The prison's appeals coordinator will assign the duty to respond to the 602 to the supervisor of the person who committed the challenged act or policy.

 

The first level reviewer may not be anyone who participated in the challenged action/ policy, or anyone who is of lower administrative rank than any participating staff.


The appeals coordinator can by-pass the first formal level if the issue can 
not be resolved by the supervisor.

What are the investigative obligations of the First Level Reviewer?
The first level reviewer is required to personally interview the prisoner who filed the appeal.
An interview is not required when:
1) The first formal level is bypassed - requiring an interview at the second level.
2) The appeal is granted
3) The prisoner has been transferred to another prison or released (Unless it is a disciplinary appeal - in which an interview is discretionary - an interview must be conducted via telephone).
(If the transferred prisoner is not available for a phone interview, a case worker at the new prison must conduct the interview and provide a written report to the appeals coordinator).

How is a decision issued?
The first level reviewer states their decision in writing on Part "E" of the 602 form. A copy of the decision is placed in the prisoner's Central File, and the original 602 is returned to the prisoner, along with notice to the Appeals Coordinator.

Special circumstances that apply to classification decisions:
Of particular importance to SHU prisoners, for challenges to classification decisions, the first level reviewer may refer a 602 to the classification committee for review. If done, this is considered a partial grant of the appeal, and if still dissatisfied with the classification committee's recommendation, the appeal can be pursued to the second level.

3. SECOND LEVEL APPEALS
A prisoner who is dissatisfied with the decision of the first level can appeal to the second level by returning the original 602 to the appeals coordinator, and filling out Part "F" on the 602 explaining why they are appealing, and by attaching any additional information useful to the appeal.


The second level reviewer must be an institutional head (warden or superintendent), regional parole administrator, or designee. Such persons may review their own first level decision.

Although there is space in Part "G" of the 602 for the second level response, almost all appeals are written on a separate form, where after the appeals coordinator will log the decision, and return the original appeal to the prisoner.

4. THIRD LEVEL APPEALS
Third level appeals are handled by the Director of CDC, or a designee of the Director and is done under the direction of the Chief of the Inmate Appeals Division.

The prisoner must fill out Part "H" of the 602 indicating the basis for their dissatisfaction of the second level response. The appeal is then sent through the US mail to the Director. After review, the Director's response will be sent to the prisoner minus any documents that the prisoner sent in support of the appeal (unless the prisoner requests otherwise when the appeal is submitted).

The third level appeal represents the exhaustion of the administrative remedies. If still unhappy with the decision, a prisoner can now file a lawsuit.

If the 602 is granted at this level (or a lower level), the warden or designee has up to 90 calendar days to implement the action or decision provided such delay does not threaten the safety of any person or prison.


 

VII. 602'S RELATED TO DISCIPLINARY APPEALS

A prisoner can file an administrative appeal to challenge a disciplinary violation - called a "115" after CDC Form 115. The informal level is bypassed on a 602 challenging all disciplinary infractions. For serious infractions, the appeals coordinator also will bypass the first formal level.

Any "serious" disciplinary violation can be appealed to the Third Level, while minor offenses or "administrative" disciplinary offenses, or counseling chronos exhaust at the second level.

A disciplinary appeal must be heard by a person of higher rank than the person who chaired the disciplinary hearing being challenged.

What is the disposition of a disciplinary 602?
If granted, the charges are dismissed, and the finding of guilt vacated and 
a new hearing ordered. If the charges are sustained, the punishment may 
stand or be modified.

VIII. CITIZENS COMPLAINTS

Prisoners, and non-prisoners who have had contact with CDC, can file a special complaint, known as a "Citizens Complaint," challenging a CDC policy or practice.

What is a prisoner "citizens complaint?"
A prisoner can file a citizen's complaint against a peace/correctional officer alleging employee misconduct. The citizen's complaint works much the same way as a regular 602 with a few exceptions:

  • There is a one year, not 15 day, time requirement to file the complaint.

  • The informal first level is bypassed.

  • The formal first level may be bypassed at the discretion of CDC.

  • The 602 - if alleged against a peace officer - must include a signed Rights and Responsibilities Statement, CDC Form 1858, or else it will be rejected, unless the Director allows the prisoner to sign Form 1858 at the appeal interview. Form 1858 ensures that the prisoner knows that it is illegal to knowingly file a complaint against a peace officer. To do otherwise is a misdemeanor.
    (See Penal Code Sec. 148.6 and 15 CCR Sec. 3084.1(e).


Once filed, the warden or chief deputy warden determines whether an investigation is warranted. If ordered, investigations are categorized as either Category I or II. Prisoner and others are notified of the status and or findings of the investigation(s) only when complete.


If no formal investigation is warranted, the appeal is referred back to the first level.

What kind of "citizen's complaints" can be filed a non-prisoner?
A "citizen's complaint" from a non-prisoner can be filed by writing the warden of a prison or head administrator of the parole region where the officer is employed. Non-prisoners also must submit a signed CDC Form 1858. 


Complaints by non-prisoners must be answered in 30 days unless there are extraordinary circumstances.

If answered, a citizen's complaint will be referred for CDC investigation. The specific findings are only available upon conclusion of the investigation. Both complaints and reports must be maintained for 5 years.

IX. OTHER GRIEVANCE CHANNELS

In addition to or as a compliment to the 602 process, grievances may be lodged with the following persons/institutions:

1.) CDC Ombudsmen
(who is a CDC employee appointed to investigate complaints)

CDC Ombudsmen
1515 S Street, 5th Floor
North Building
Sacramento, CA 95814

 

2. State Personnel Board
(any non-prisoner may file a complaint against a state employee here)

State Personnel Board
Merit Appeals Office
801 Capitol Mall
Sacramento, CA 94244


3. Office of Internal Affairs
(prisoner or other persons can request investigations of staff misconduct)

Office of Internal Affairs
P.O. Box 3009
Sacramento, CA 95812


4. Office of Inspector General
(especially created to investigate prisoner and youth facility problems)

Office of the Inspector General
801 K Street, Suite 1900
Sacramento, CA 95814


- Board of Controls Claim:
Here is a little known fact that often trips up inmates and their families: prisoners who wish to sue the Department and Corrections & Rehabilitation must first file a “Board of Controls Claim” with a California state agency known as the California Board of Controls. There is a $25 filing fee. Any lawsuit asking for money damages that is filed without first submitting a Board of Controls Claim will be denied.

- Medical Neglect Lawsuits:
Before any doctor can be sued, an inmate (or their family) must first provide “Notice of an Intent to Sue” and submit such to the California Medical Board. The rules for this “notice” are set forth under the California Code of Civil Procedure § 364.

- Obtaining Medical & Prison Records:
Before filing a lawsuit, the prisoner must do his homework. It is imperative to gather and obtain as many relevant and supporting documents as possible prior to filing suit because after the case has begun, the defendants are not likely to share these records. There are variety of means of obtaining medical records or prison c-file records which require release forms. I can be of help in obtaining these records.