Author: Dr. Norman Johnson, FACP, ABAM
As President & COO, Sherri Miller and I traveled throughout our 17 state territory, we were able to audit many sites looking for areas of improvement where we could improve services or reduce risk. We began to notice what we believe is a pattern of reduced legal risk in the clients that have a detailed, honest, four-step grievance procedure. The grievance procedures we observed ranged from two to four steps. As we related lawsuits to specific sites and tied them to the specific grievance system, it appears that the four step serious analysis of grievances reduces lawsuits over the two-step system.
This possibility of reduced risk with a more detailed grievance procedure caused us to go back and review how the grievance procedure was developed and how it should be implemented. The grievances requirements came out of the Prison Litigation Reform Act (PLRA) 42 U.S.C. § 1997e. It states that “no action shall be brought with respect to prison conditions” under federal law by “a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted”. There are exceptions to this very clear language.
- The grievance procedure must be “available”
- The grievance must be responded to sufficiently
- Jail officials must not interfere with the prisoner’s attempt to submit a grievance
- A detainee must have an adequate mental capacity to use the grievance procedure
If a section 1983 claim is made against you, your defense attorney may want to know if the detainee has exhausted your facilities grievance procedure before filing the lawsuit. If he/she has not, your attorney may ask the judge to dismiss the case on that basis. The seventh, third, and eighth circuit courts have held that administrative remedies are not available and therefore exhaustion of these remedies is not required when the jail staff refuses to give the detainee the forms necessary to file the grievance or if the officials do not respond appropriately.
It is my recommendation that the first grievance should be addressed by the shift supervisor followed by two higher-level officials, possibly the jail administrator, or the chief, and finally at the fourth step by the sheriff/jailer. I would expect if the first three steps were handled aggressively and honestly, by jail staff, the sheriff/jailer should virtually never have to address a grievance.
We are initiating an ongoing study at Advanced Correctional Healthcare, Inc. looking at all lawsuits to determine if there is a direct relationship between the number of grievance steps and the number of successful lawsuits. Success is defined as a lawsuit that makes it through the grievance procedure and is allowed to proceed after being reviewed by a judge. It may take at least a year to begin to develop a conclusion regarding this. Until these results are available, I strongly recommend that you take each grievance seriously. Each grievance related to medical should be addressed by the nurse and reviewed by the doctor to ensure that medical errors have not been made.
I understand that this potentially an increased workload on your team. In the long run, if it can reduce one or two unnecessary lawsuits, it will be worth it. Our final goal must be very highest quality of healthcare for our detainees and the four-step system will allow us the opportunity to evaluate and correct any errors that may have been made. I will keep you posted on the results of my study.