Colorado’s grievance procedure is designed to intentionally mislead the
prisoners who have to follow it into believing that they have to comply
with certain provisions, such as the relief requested, or face being
barred from suit due to “failure to exhaust” administrative remedies
which is required before any civil action addressing prison conditions
can proceed in court, by the Prison Litigation Reform Act 42 U.S.C.
1997e(a).
Colorado’s Grievance Procedure AR 850-04IV-E-3-C-2 states: “The
grievance officer may deny the grievance on procedural grounds, without
addressing the substantive issue, if the grievance is incomplete,
inconsistent with a former step, incomprehensible, illegible, requests
relief that is not available, fails to request relief, or in any other
way fails to comply with the provisions of this regulation, when the
grievance is denied for a procedural error, the grievance officer shall
certify in the response that the offender has not exhausted the
grievance process.”
First, there are many conjectures that I could make as to whether this
Administrative Regulation oversteps its bounds by diminishing First
Amendment rights, however I won’t do that at this time. What I will do
is simply prove the claim stated in the opening of this paper by
presenting a brief history of jurisprudence of 42 U.S.C. 1997e(a).
42 U.S.C. 1997e(a) of the Prison Litigation Reform Act reads: “No action
shall be brought with respect to prison conditions under 42 U.S.C. 1983
… or any other federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative remedies as are
available are exhausted.”
Once again: “(T)he modifier ‘available’ requires the possibility of some
relief.” When the facts demonstrate that no such potential exists, the
inmate has no obligation to exhaust the remedy.”
“Next, an administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use. In this situation, some
mechanism exists to provide relief, but no ordinary prisoner can discern
or navigate them. As the solicitor general put the point: when rules
are”so confusing that no reasonable prisoner can use them ‘then’ they’re
no longer available” Tr. Of Oral Arg 23
“And finally the same is true when prison administrators thwart inmates
from taking advantage of a grievance procedure through machination,
misrepresentation, or intimidation. In Woodford v. Ngo, we recognized
that officials might devise procedural systems (including the blind
alleys and quagmires just discussed) in order to”trip up all but the
most skillful prisoners. As [appellet] courts have recognized, such
interference with an inmates pursuit of relief renders the
administrative process unavailable. And then, once again 1997(a)(e)
poses NO bar.” Ross v. Blake, - u.s. - , 136 S.ct. 1850, 1959-60 (2016)
Essentially, if for any of these reasons the grievance procedure is made
unavailable, the prisoner need only to exhaust the process, i.e. file
all steps, remain consistent with your relief, and comply with time
lines. In actuality this was decided in 2001, before Woodford or Ross in
Booth v Churner, 532 U.S. 731; 121 S.ct 819(2001). In Booth it was
decided that an inmate seeking a remedy outside the scope allowable in
the procedure in Booth that was monetary damages, he must still go
through the process and complete all steps. Once he has completed all
steps of appeal, he has exhausted all “available” remedies, and when
officials misrepresent that fact, we have 3 supreme court cases to show
otherwise.
Furthermore, all this has already been established, not only in the
supreme court, but the 10th circuit and Colorado district courts. In
Gandy v Raemisch, 2014 u.s. Dist. Lexis 43668, and affirmed by Gandy v.
Barber, 2016 U.S. App. Lexis 3285 (10th Cir. Colo., Feb 23, 2016). Here
Anthony A. Decesaro, Colorado’s administrative head over the grievance
procedure and, step 3 grievance officer, concluded that because
Mr. Gandy had requested “written acknowledgement of retaliation and
compensation,” which are prohibited as allowable remedies by AR 850-04,
that “[He] have not exhausted [his] administrative remedies in this
matter based on your failure to satisfactorily request relief
allowable.” The case goes on to say “The defendants (CDOC employees)
cite no authority for the proposition that an inmate’s request for
relief that exceeds that available under the grievance procedure results
in a failure to exhaust, and indeed, Supreme Court precedent establishes
just the opposite. In Booth v. Churner…” “To the contrary, the record
reflects that Mr. Handy timely filed [his grievance] as a challenge to
his allegedly retaliatory transfer out of AVCF, properly pursued that
grievance through steps 2 and 3, and thus fully exhausted it.”
The failure to correct this misleading policy with so much solid
evidence against it, in eluding first hand knowledge by the 2 most
capable people in CDOC, Rick Raemich and Anothny A. Decesaro, more than
2 years later can only be seen as intentional. For prison officials to
intentionally mislead prisoners in an effort to manufacture a way to
defeat their claims in court is a violation of the 1st amendment rights
to petition the government for the redress of grievances; access to the
court. This is especially true because congress has made administrative
procedures a mandatory prerequisite to suit.
What body of the United States government would violate such a
fundamental right of modern and civilized society? Could they have some
vested interest in preventing claims from reaching full litigation?
Could it be to prevent the public from becoming aware of even worse
infringements on society and humanity? One only needs to see what really
goes on inside of an “MCU” or “SHU”, then examine the fact that the
prison litigation reform act bars damages for “mental pain and anguish,”
and that the u.s. military’s most recent change in tactics is towards
what’s called “effects based warfare” aimed at taking actions to
influence the way the enemy thinks and makes decisions. If it were
illegal to practice psychological torture techniques on its slave
citizens, where else would they be able to develop these tactics?
Addition to Grievance Campaign
Colorado’s grievance procedure, AR 850-04 violates 1st Amendment rights
by knowingly and intentionally misleading prisoners. Among other things,
requesting a remedy that exceeds that available under the AR does not
result in failure to exhaust as stated in AR 850-04. This has been
clearly established in the District of Colorado 10th Cir Court of
Appeals, and the Supreme Court; please see: Gandy v. Raemisch, 2014 U.S.
Dist Lex is 43668 (Dist Colo. March 31, 2014) affirmed by 10th Cir,
Booth V. Churner, 532 U.S. 731, 121 S. Ct. 1819(2001); and Ross v.
Blake, - u.s. - , 136 S. ct. 1850 (2016).
This violates our right to access the courts under the 1st amendment.
Please fix this policy immediately to consider grievances exhausted in
accordance with these decisions.