To Grieve or Not To Grieve

I read with interest “Why Take Action?” by Texas Prisoner in Under Lock and Key No. 63. The article starts by encouraging resistance simply because of who we are, that it is our nature to stand up. While this makes for an excellent mythology, and I heartily agree, the sad truth is that the majority of prisoners are intimidated into doing nothing.

While I do not look down on those who do not resist, I am not content with the status quo. Only massive group actions has a chance to succeed. This article is an attempt to persuade more prisoners to fight. A Texas Prisoner then points out that action can make a difference, especially in numbers. This is quite correct.

One of the most powerful ways to effect change is the federal civil rights lawsuit (1346 and Bivens for federal prisons, 1983 for others). Courts often make good decisions. Then the prisons stretch the case law beyond the breaking point or simply disregard it. They do this because they can. They get away with it because not enough prisoners file.

In 1996, the Prison Litigation Reform Act (1997e) made lawsuits against prisons much more difficult and less likely to succeed. As a result, prisons and jails have gotten much worse than they were at that time. Most onerous is 1997e(a), which states, “no action shall be brought with respect to prison conditions [] by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”

While it is sometimes possible to get a court to declare the grievance process (for administrative remedies) unavailable, this takes a lot of effort. For the most part, prisoners simply have to follow the grievance process, being careful to meet all the deadlines.

Though the process of filing grievances seems (and usually is) futile, it has to be done. “[W]e will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.” Booth v. Churner, 532 US 731, 738 n. 6 (2001); (When only a date is in parentheses and no circuit or district, it’s from the Supreme Court.) There is no way to escape. “[W]e hold that the PLRA’s exhaustion requirement applies to all inmate suits about prison life,” Porter v. Nussle, 534 US 516, 532 (2002). A prisoner simply has to exhaust the grievance process.

The trouble is that the prison can retaliate for filing grievances, even including beating prisoners. One might think that a prisoner could sue for such retaliation, but for decades the courts held that prisons are perfectly within their rights to retaliate for filing grievances, without fear of suit.

Here is the story.

Courts have held it is only possible to sue for civil rights violations over retaliation that chills the constitutional right. “Retaliation against a prisoner is actionable only if it is capable of deterring a person of ordinary firmness from further exercising his constitutional rights.” Morris v. Powell, 449 F. 3d. 682, 686 (5th Cir. 2006). Also see Crawford-El v. Britton, 93 F. 3rd 813 (D.C. Cir.1996). The D.C. circuit is just under the Supreme Court in terms of power, and all other circuits have followed.

The question is whether filing grievances is a constitutional right. Up until recently, the courts have held it isn’t. “[I]nmates do not have a constitutional right to have available or to participate in an effective grievance process.”Miller v Williamson, 2016 US List. LEXIS 63498 (4th cir. 2006). See also Adams v. Rice, 40 F. 3d 72 (4th Cir. 1994).

This idea can be traced back to an opinion in 1991. “[T]he prisoner’s right to petition the government for redress is the right of access to the courts, which is not comprised by the prison’s refusal to entertain his grievance.” Flick v. Alba, 932 F. 2d 728, 728 (8th Cir. 1991).

The trouble with this is that a mere five years later, 1997e changed the situation, making it so that the right to access the courts very much depends on the grievance process. Yet until after 2016, courts did not recognize this extremely obvious fact.

Finally, they did. “Given the close relationship between an inmate filing a grievance and filing a lawsuit – indeed, the former is generally a prerequisite for the latter – our jurisprudence provided a strong signal that officials may not retaliate against inmates for filing grievances.” Booker v. South Carolina DOC, 855 F.3d 533, 544 (4th Cir. 2017). Also, “The Second, Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C. circuits have all recognized in published decisions that inmates possess a right, grounded in the First Amendments’ Petition Clause, to be free from retaliation in response to filing a prison grievance.” id. at 544.

There are lessons in the fact that it took the courts so long to recognize the obvious.

The courts move slowly. More importantly, they only move when pushed. Seldom does a court decide anything on its own, not even something as obvious as this. They generally wait for litigants to make arguments and decide if the arguments are good.

So it is essential that we all push the courts, not only for our individual benefit, but for the benefit of all. We must make even obvious arguments, even ones so obvious we imagine should have been raised a hundred times before us.

The PLRA was sold as intended to improve the quality of lawsuits, but what it really did was reduce the quantity. Doubtless this was the real intention. “Congress deemed prisoners to be pestiferous litigants” Kerr v. Puckett, 138 F. 3d 321, 323 (7th Cir 1998).

This has worked. Far too many legitimate lawsuits have been quashed. Increasing millions of prisoners have suffered in worsening conditions. The courts have only sluggishly moved to correct gross violations of civil rights. Prisoners fearing retaliation have not pushed them hard enough.

It is up to all prisoners to push the courts. Even though it seems futile, grieve and sue anyway. You may not be the one to win, but if we all work together, we can improve conditions for all of us.

MIM(Prisons) responds: We respect and admire this comrade’s resolve to fight the legal battles. Eir analysis of the value of making space for better conditions for prisoners through court battles is accurate. Courts are sluggish to respond to clear violations of rights, and certainly don’t take action unless pushed through a lawsuit.

It’s important that we also recognize that we will often lose court battles. For lack of funds, legal knowledge, political power, or just straight up bias, there are many reasons prisoner’s lawsuits fail even when the case is good and righteous. We can’t count on the imperialist courts to grant us liberty. But we can use them to gain some breathing and organizing space.

The trick is deciding when it’s worth the time and expense to pursue cases in the courts. When it really is a potentially winnable battle. MIM(Prisons) doesn’t have the legal resources to offer this advice. So we can only provide the broad guidance that everyone needs to analyze the balance of forces in any battle. Try to objectively evaluate our chances for victory, and what harm could come from defeat. In some cases, losing a lawsuit sets a worse legal precedent than not filing the lawsuit in the first place. But if you think you have a good chance at winning, and you have the resources to pursue an important case, then don’t just file a lawsuit. Use the lawsuit to educate others and rally them around the cause you’re fighting for. Build support and help for the battle, and tie it in to the broader struggle against the criminal injustice system so that everyone learns from this work whether this one battle it ends in victory or defeat.