Potential Legal Argument for VA Grievance Battle

I read with interest the article on the lack of a constitutional right to a grievance procedure ( Prisoners Unite Against Suppression of VA DOC Grievance Procedure) in ULK 54. This happens to be an issue I researched a few months ago. Unfortunately I’m Federal, not state, so I can’t file a §1983 anyway, which is a shame because I’d just love to take this one to the Supreme Court.

This legal argument should work. However, the only place I can see it working is at the Supreme Court itself. I offer it in the hopes that someone else can run with it.

The article is quite correct. There are many 4th circuit opinions throwing out prisoners’ §1983 actions for denial of or retaliation against filing grievances, most of which go back to Adams v. Rice 40F.3d.72, 75 (4th Cir. 1994). This opinion, however, was before the 1995 Prison Litigation Reform Act, 1997(e). The argument is that, as 1997(e) came later than Adams v. Rice, and congress could not have intended to make a constitutional right (the right to petition the government for a redress of grievances under Amendment 1) contingent upon conduct that is not constitutionally protected, that therefore Adams v. Rice and all subsequent case law should be declared null and void.

Digging a bit deeper, I found that Adams bases its opinion on Flick v. Alba, 932 F.2d 728, 729 (8th Cir 1991) claiming there is “no constitutional right to participate in grievance proceedings.”

The problem with this is that Flick v Alba states, “When the claim underlying the administrative grievance involves a constitutional right, the prisoner’s right to petition the government for redress is the right of access to the courts, which is not compromised by the prison’s refusal to entertain his grievance.” After 1997(e), of course, that last clause is false, 1997(e) specifically and deliberately makes a prison’s refusal to entertain grievances compromise the right of access to the courts. That’s what 1997(e) is for!

If there be any justice, this is a slam-dunk argument. Of course, there isn’t any justice. But occasionally a judge, wanting to gain status by overturning a long-held precedent might do the right thing, if only accidentally. It might also have some value as a rallying point for activism.

One might also argue a violation of equal protection under the fourteenth amendment, but I’m not sure how much that would add. A couple of paragraphs couldn’t hurt, though.