ISCC ADMINISTRATIVE ASSISTANT UNILATERALLY CHANGES IDOC GRIEVANCE PROCEDURES / EXHAUSTION REMEDIES
In an interesting turn of events, an administrative assistant (warden's secretary) turned Grievance Coordinator at the ISCC has lessened the need for prisoners to exhaust administrative remedies when it comes the requirements to file a grievance for each incident of an event.
Investigators at the ISCC intercepted an outgoing email (an article destined to be posted on this site) from Dale Shackelford on 1/24/21. Per SOP, officials were required to provide proper Notice of the confiscation, with information as to why the communication was denied, who made the decision to intercept the communication, and the justification (according to SOP 503.02.01.001*) for the interception. Instead, Shackelford received an email which stated simply that the email had been censored - and in a note provided: "cannot use staff information in social media post." This was clearly a violation of Shackelford's First amendment right to freedom of speech/media (especially where this blog has been declared a political and social site by IDOC leadership and there was no legitimate penological interest in restricting the information from being published).
In that investigators failed to provide proper Notice to either the sender or the intended recipient of the email, Shackelford wrote a Concern Form asking for the Notice. There was no response to the Concern Form, so - pursuant to SOP - Shackelford filed an administrative grievance (IDOC SOP 316.02.01.001).
On 2/13/21, the same thing happened - investigators at the ISCC intercepted an outgoing email, - though this time it was not an article, but an appeal - or what the US Constitution considers a "grievance" - to the Chief of the Division of Prisons to review Standards and Practices used at the ISCC in Disciplinary matters (as allowed by IDOC SOP 318.02.01.001). Again, investigators refused to provide proper Notice to either sender or intended recipient, and refused to answer the Concern Form.
As required as prerequisite to initiating litigation, Shackelford again filed a separate grievance as a prelude to filing a claim in the courts. This time, the State had violated Shackelford's First Amendment right to redress grievances**. In this instance, the Grievance Coordinator refused to process the grievance, stating: "You submitted 2 grievances pertaining to the same issue. I will process one but not both." The "issue" is presumably the interception of the outgoing email, and the lack of proper Notice being provided.
Thinking there might be a simple lack of communication, Shackelford sent a Concern Form to the Grievance Coordinator, explaining that there were 2 separate instances (and issues) of confiscation that needed to be grieved - as required by SOP - so as exhaust administrative remedies on each of the instances. In her response, the coordinator/administrative assistant stated: "[On the transmittal form] you were informed you can only grieve an issue once, this is per policy, even if they are separate incidents."
In most instances, courts - both state and federal - require that inmates file a grievance with prison administrators prior to filing a lawsuit (Idaho Code 19-4206, 42 USC 1997e(a)), however, that requirement is tempered, for one is only required to exhaust AVAILABLE administrative remedies (i.e., grievance procedures). Where, as here, prison administrators either interfere with or prohibit the filing of a grievance, that remedy is no longer available, and no longer a prerequisite to the filing of an action in the courts. Similarly, as has happened here, where administrators waive the requirement to utilize the established grievance process, there is no requirement for an inmate to file the grievance before addressing the issue with the court.
The 3/3/21 instructions of the ISCC Grievance Coordinator which provide that Shackelford can only grieve an issue once (with no temporal limitation) means that Shackelford will no longer be required to file any grievance regarding the interception, confiscation or censorship of any outgoing email. Although this grievance exemption paradigm for Shackelford will certainly extend to future matters that have been grieved in the past, regardless of how long ago the grievance procedure had been completed, the down-side is that many issues which might have been resolved at the administrative level will now be taken directly to the courts.
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* This SOP was fashioned as a direct result of a lawsuit filed by Shackelford regarding the lack of Notice being provided to prisoners when both incoming and outgoing emails, along with incoming photo attachments were routinely being intercepted and confiscated without due process (Notice) to either the sender of the data, or the intended recipient. SHACKELFORD v. McKAY, Ada County Case No. CV-OC-2016-05583.
** The First Amendment, in addition to the more familiar protections for the freedom of the press and freedom of speech provides that the citizenry has the right to petition the government for redress of grievances. There is no administrative means set forth by IDOC to request the review, so the email - which is not a prohibited form of communication - was as proper a means as any other, including Concern Form.