[Published here with the author’s permission. For more of Meister’s work, visit wynwordpress.com]
How to Write an Effective Prison Grievance
by David Meister, author of MEISTER MANUAL For Prisoners’ Lawsuits.
A grievance—a complicated complaint process imposed on incarcerated individuals who depend absolutely on their captors for even the most basic of life’s necessities. (Jails, prisons, and other like facilities (private, state, or federally operated) use similar grievance systems, and are referenced interchangeably throughout this article.)
Prisoners rely on guards for adequate food, hygiene, medical care, and safety. Those few rights remain behind bars. To redress a loss of those rights, most state and federal correctional facilities impose rigorous grievance procedures that prisoners must navigate to the letter or be denied relief. Success rates vary, but often prisoners don’t lose because their issues lack merit. Rather, grievances may fail because, frankly, prisoners generally lack the skills to communicate concisely, clearly, and consistently. That’s not an insult, but a fact of life and poor education that this article is designed to address. Here, steps for making a successful grievance are explained in detail, as well as guidance for clear communication and writing.
Lack of motivation is another problem. Prisoners often don’t initiate or complete grievance procedures because they believe it’s pointless to do so, which belief may not be wholly unjustified. Be that as it may, there’s good reason to push through a grievance that’s doomed to fail, rightly or wrongly. First, a grievance forces a response from someone in charge. Staff members must take time to address the issues, and multiple grievances about the same issues—whether or not individually successful—can nonetheless cumulatively affect officials’ interpretation of policy for the better or result in policy revision when a persistent problem becomes apparent, and some kind of action is unavoidable. Second, institutional grievances are usually logged into a larger department system, and together can point to negative trends within a prison administration. Executives, legislators, and prisoner advocates (via public records requests) can and do mine such grievance statistics for evidence to support prison improvement.
As a practical matter, exactly how prisoners should approach grievances really depends on whether those grievances can be won at the institutional level, or whether they’re simply completing a bureaucratic process (“exhausting administrative remedies”) in order to later take the issues to court. (Federal and state law require prisoners to complete institutional grievances as a prerequisite to filing a lawsuit. See more about that below.) The difference is between attitude and detail, but otherwise the steps in either approach follow in the same order: verbal requests, written requests, grievance, and appeal. Each stage factors in strategically.
VERBAL REQUESTS
A prison newbie might think it a matter of routine to try to resolve a matter by submitting a formal grievance. For the public, dealing with a government department usually involves documenting requests and pushing paper, and it’s understandable a person unfamiliar with prison reality would view the act of filing a grievance as no big deal. More familiar prisoners, however, know that a county jail or a Department of Corrections is not a city bureaucracy the public can complain to and expect courteous, timely responses. Often the opposite is true, if responses are forthcoming at all.
For this reason, you are far better off trying to fix a problem by personally talking with the officer who has direct authority to help. It’s not tactical to go over an officer’s head, at first. Rather, the officer responsible for the problem or the lowest ranking officer with authority to help should be addressed first. (Some institutions have policy that requires prisoners to work through the chain of command in this way.)
If the issue is small, or involves a creative interpretation of the rules, you probably will have more success by avoiding ranking officers such as sergeants and lieutenants. They’re inclined to strict interpretation of policy or, if a lower-ranking officer already denied the issue, they might say no, too, solely to back up their officer.
When dealing with any officer, it’s inadvisable to blurt out a bald complaint and punctuate it with a string of expletives “This s**t is f****d up!” That just puts an officer on alert, and the demonstrative behavior might elicit a demonstrative response from staff—”Get on the wall and put your hands behind your back!” Even amicable officers might not care less that you are upset and may mollify you with platitudes or empty promises until you
walk away peacefully. It’s also a bad idea for you to stand on your “rights” too much (“. . . it’s unconstitutional to treat us this way!”) because many correctional officers would disagree that any rights remain to prisoners whatsoever—”You don’t like it, you shouldn’t have come to prison!”
To communicate about a problem effectively, the best practice is to stick to the facts of the problem (avoiding legal arguments) and speak politely. Of course, it’s always a bonus to speak with a familiar officer, with whom the conversation can be organic and easier to receive. But a prisoner without previous (or positive) interaction with an officer should remember this whenever talking to staff: Maintain good eye contact, calm and measured tones, and stick to the point. Diplomatic, mild arguments are okay. Assert each point but keep aggression out of the expression. If you can’t manage this, you should find someone else who’s acquainted with the officer to speak on your behalf.
If the officer ultimately can’t help, you should ask if the officer would be willing to personally talk to the higher-ups to resolve the problem. If things need to escalate to a written request, you may ask whether it should be sent to that officer or to higher rank. If higher rank is suggested, then the officer shouldn’t get too bent out of shape when you go to the boss with a problem the officer couldn’t (or wouldn’t) resolve. The officer is less likely to work against you in this scenario because the officer was consulted in the decision to press the concern further.
Taking all the above into consideration, however, there’s a problem with making verbal requests to staff, no matter how it’s done. You are more likely to get the runaround (wasting time that might count against a timeline to file grievances) and a written record isn’t being created, which record might end up being needed as evidence in court. A written request can solve that problem. (However, the verbal request stage can’t be skipped if prison policy requires it as prerequisite to further action in the grievance process.)
WRITTEN REQUESTS
It might not be necessary to put anything in writing when prisoners have direct access to officers who can assist with problems. These officers can be spoken to directly and politely reminded of continuing issues. That kind of circumstance, though, is unusual when you have a personal issue (as opposed to one that affects numerous others), and more commonly you will have to send a written request to cover all bases and provide precise detail. A written request also is, essentially, formal notice and reminder that a problem persists.
For me it’s been effective to ask officers (when I first talk to them) if they’d like me to send a written request, detailing the issue. I’ve never had one say no, and if they agree, they’ve had a heads-up to expect it, or even invited it. That invitation makes them more receptive and cooperative in a process that ultimately creates more work for them.
Whether sending a courteous request as a friendly reminder or sending a stern demand and quoting policy, always write a request as if someone other than the addressee will be reading it. Just because you send a request to a particular officer doesn’t mean that officer will be responding to the request. (Your request might even be rerouted to an entirely different department.) People new to the issue will lack context, so you should reiterate important facts they can follow. Try to make it easy for others to help by being concise and clear. Do not send a request as ambiguous as, “I still haven’t got the book the mailroom confiscated. You said it’s allowed under policy.”
An officer may not remember your entire conversation, so your message to that officer could elicit a response that asks for more details, which causes delay while you send yet another written request to supply additional information. Furthermore, anyone who was not part of the original conversation would have no idea what you’re talking about. Your request will be more effective if you take extra time to add detail, like the following:
“Property Officer Smith, as we discussed on 10/28/24, I’m sending you a reminder about my book that was mistakenly confiscated. On 10/20/24, Mailroom Sgt. White confiscated my incoming book “MEISTER MANUAL Drawing Tips for Prisoners,” claiming the book didn’t come from an approved vendor. But that is not right. Policy 308 states that books can be mailed directly from the publisher. I bought the book from Wynword Press, who mailed the book here, and who’s listed in the book as the publisher. Thanks for looking into this for me.”
The message is clear, including dates and names. I’ve cited policy that supports my argument (which you should always do in policy disputes). It’s not combative, but the thoroughness shows I’m serious. And anyone new to the problem can easily understand the request. The message does not explicitly ask that the book be delivered, but that is implied. Consider making an explicit demand—”Please forward the book to me”—if there’s room on the written request form (a.k.a., Concern Forms, Inmate Requests, Kites). Should things escalate to the grievance stage, you’ll have to be a bit more thorough and make explicit demands for how you want the problem addressed by staff.
FILING A GRIEVANCE
Occasionally an officer would like to help but will be outranked by another officer who wants to deny the issue. Or maybe an officer wants to help but thinks policy prevents it. If the prisoner can touch base with either officer and ask if a formal grievance would be helpful, that might ease the tension enough to make progress. That officer likely will be the first tier of responders to the grievance anyway, and it can’t hurt to attempt to smooth over what could end up being a hassle for the officer when higher security staff or administration come to investigate the issue. If things are going to get ugly (when litigation looms), a prisoner will need all the help he or she can get. Even just getting officers to be honest about a controversy is almost too much to expect, so it pays to stay on friendly terms with staff when possible.
All the above presumes a reasonable chance your problem will be resolved by the grievance system, when being diplomatic counts. A problem destined for court, on the other hand, is more likely to be stonewalled by officers, and you should prioritize punctuality and detail over politeness throughout the grievance process. This is so because the grievance system can trip you up and give the government an advantage against you if the issue goes to court. The rest of this section describes typical grievance hurdles and how to get past them.
Many prison grievance systems require you to first attempt to resolve a problem by using the informal methods of verbal requests and written requests as a prerequisite to filing a formal grievance. You might be required to prove your informal efforts by explaining who you talked to and when, and/or by attaching your copy of a response to a written request. This multistage process is the government’s first line of defense, used to dismiss grievances (and lawsuits) on procedural grounds.
Here’s how it works. Policy might allow, for example, thirty days from the incident in question to file a formal grievance. But you’re also required to make a verbal and/or written request before filing the grievance. The prisoner waits in good faith for a response, but the verbal/written request process takes longer than thirty days to complete. You file the grievance, but it’s kicked back to you, unprocessed, because you’ve missed the thirty-day deadline while waiting to finish the informal process.
Prison officials use these procedural defaults to defeat lawsuits because your state has made laws requiring prisoners to fully complete (“exhaust”) prison grievances (strictly according to prison policy) prior to filing lawsuits in state court. The federal government has created a similar law, requiring the same, called the Prisoner Litigation Reform Act (“PLRA”). It states that prisoners cannot take legal action in federal court “with respect to prison conditions” until “such administrative remedies as are available are exhausted.” 42 USC $ 1997e(a). What this means is that, whether filing in state or federal court, your lawsuit (no matter how good) will be dismissed if you haven’t first exhausted your jail’s or prison’s grievance process, from beginning to end, following the facility’s rules exactly.
Courts aren’t blind to such shenanigans, however. If you file the grievance on time and indicate somewhere in the grievance (and/or attach a copy of an unanswered written request, as proof) that you’ve timely and properly pursued the informal process but staff have been late in responding, you should be okay. If officials kick back the grievance for failure to complete the informal process, resubmit it when the informal process is finally finished. If they kick it back again, saying the grievance is now too late, you have two choices: Start a separate grievance about the catch-22 in the process, arguing the grievance was frustrated (effectively “unavailable”) by its own time limitations, or go ahead and file your lawsuit and hope the judge sees through the nonsense. In either scenario, if you’ve followed the steps and prison officials still refuse to accept the grievance, a court probably will excuse your inability to exhaust the grievance process and allow your lawsuit to proceed. (But it’s never ideal to go to court with an incomplete grievance.)
The below bullet-point paragraphs describe the usual failure-to-exhaust-grievances issues that government lawyers and federal courts raise to dismiss prisoner lawsuits under the PLRA. Reference is limited to the PLRA and federal case law interpreting it. However, because state law surrounding this subject usually mimics federal law, my suggestions for navigating PLRA-exhaustion requirements are not totally inapplicable to questions of state-law exhaustion requirements as well.
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- You must complete the grievance process even if it is pointless to do so. For example, if you’re asking for money to redress pain and suffering, prison policy prohibits officials from granting money damages. You must try, regardless, and attempt to appeal the issue to the highest prison authority. Booth v. Churner, 532 U.S. 731 (2001).
- If you’ve only just learned of an incident and the time to file a grievance has expired, you should still be able to file the grievance so long as you file within time limits that start after you learned of the incident. For example, a book was confiscated by the Mailroom, but no one told you for forty days. The timeline to file a grievance on the confiscation is, say, thirty days. If the prison refuses your grievance as untimely because you didn’t file within thirty days of the confiscation, submit it again and explain that it was not your fault, that the Mailroom didn’t give timely notice. Courts should excuse this grievance exhaustion conundrum if you follow these steps, and the prison still won’t process your issue. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc) (officials’ conduct can make a grievance process effectively “unavailable”).
- If the problem is ongoing (e.g., an untreated medical issue), you might be able to initiate the grievance process at any time (as opposed to when the issue first occurred), so long as prison authorities have power to address the problem. Weiss v. Barribeau, 853 F.3d 873, 874 (7th Cir. 2017); Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001). However, you should always attempt to file grievances within policy time limits.
- “[P]risoners need not file multiple, successive grievances raising the same issue (such as prison conditions or policies) if the objectionable condition is continuing.” Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013); Parzyck v. Prison Health Servs. Inc., 627 F.3d 1215, 1219 (11th Cir. 2010) (prisoner “not required to initiate another round of the administrative grievance process on the exact same issue each time” a depravation occurred).
- However, you may be required to file a new grievance if you are transferred to another facility before officials have had opportunity to address your original grievance. Chambers v. Sood, 956 F.3d 979, 984 (7th Cir. 2020).
- If you mess up somewhere in the grievance process, but prison officials don’t call you out on it and instead process your grievance, they can’t later in court use your procedural mistake as an argument to have your lawsuit dismissed for failure to exhaust. Rinaldi v. U.S., 904 F.3d 257 (3rd Cir. 2018); Whatley v. Smith, 898 F.3d 1072, 1083 (11th Cir. 2018); Reyes v. Smith, 810 F.3d 654 (9th Cir. 2016); Reed-Bey v. Pramsteller, 603 F.3d 322 (6th Cir. 2010); Gates v. Cook, 376 F.3d 323 (5th Cir. 2004); Riccardo v. Rausch, 375 F.3d 521 (7th Cir. 2004); Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004).
- I recommend waiting, but if the authorities unreasonably delay your grievance, you might be able to go ahead and file your lawsuit and have the court excuse the failure to exhaust the grievance. Hays v. Dahlke, 976 F.3d 259 (2nd Cir. 2020); Andres v. Marshall, 854 F.3d 1103, 1105 (9th Cir. 2017); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). That is to say, if prison officials haven’t responded within their own policy time limits, haven’t given you notice why, and aren’t responding to your written inquiries about the grievance’s status, then you might be able to initiate the appeal stage. If that’s ignored too, you can proceed with the lawsuit.
- A court might excuse a failure to exhaust if the grievance process is so confusing that the average prisoner can’t be expected to understand or complete it. Ross v. Blake, 578 U.S. 632, 643-44 (2016).
- If guards or officials invent steps that aren’t part of the published grievance policy, a court might excuse your failure to follow those additional steps in the process. Prisoners cannot be required to exhaust administrative remedies that aren’t specified, outlined, or required by a facility’s grievance system. Troche v. Crabtree, 814 F.3d 795, 801 (6th Cir. 2016); King v. McCarthy, 781 F.3d 889, 896 (7th Cir. 2015) (prisoners are not required to exhaust “procedures they have not been told about”).
- If a grievance system instructs you to use a specialized process, you must use that process and not the inapplicable grievance process. This issue usually occurs in relation to an appeal of a disciplinary sanction. Disciplinary measures often have a built-in appeal process that’s separate from the facility’s general grievance process. If you fail to use the special appeal, and instead file a normal grievance about the disciplinary proceeding, a court will not consider the matter properly exhausted. Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir. 2001).
- If you file a grievance and receive no response at all, a court likely will excuse your failure to exhaust the grievance process. Andres v. Marshall, 854 F.3d 1103, 1105 (9th Cir. 2017); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
- You can’t be faulted for failing to exhaust a grievance if the facility has no grievance system. Hubbs v. Suffolk County Sheriff’s Department, 788 F.3d 54 (2nd Cir. 2015); Malik v. D.C., 574 F.3d 781 (D.C. Cir. 2009). This question usually arises when incidents occur at temporary holding facilities, or during transports, where prisoners aren’t expected to stay long enough to be able to pursue an administrative remedy such as a grievance.
- A court will excuse your failure to exhaust if officers refuse to provide assistance, instructions, or grievance forms in a language you can understand. Ramirez v. Young, 906 F.3d 530 (7th Cir. 2018).
- A court will excuse your failure to exhaust if you have a medical condition that prevents you from using the grievance process and (after you’ve made a written request) facility staff have not tried to accommodate your condition so you can pursue a grievance. Smallwood v. Williams, 59 F.4th 306, 314 (7th Cir. 2024); Rucker v. Giffen, 997 F.3d 88 (2nd Cir. 2021).
- A court will excuse your failure to exhaust if officers interfere with the grievance process, fail to accept a properly filed grievance, refuse to supply the appropriate forms, or misrepresent what the grievance process requires. Hardy v. Shaikh, 959 F.3d 578 (3rd Cir. 2020); Townsend v. Murphy, 898 F.3d 780 (8th Cir. 2018); Davis v. Mason, 881 F.3d 982 (7th Cir. 2018); Davis v. Hernandez, 789 F.3d 290 (5th Cir. 2015); Little v. Jones, 607 F.3d 1245 (10th Cir. 2010).
- A credible threat of retaliation or actual retaliation for pursuing a grievance is legal cause to excuse your failure to exhaust a grievance process, provided the threat or retaliation would deter “a reasonable inmate of ordinary firmness and fortitude” from filing or finishing a grievance. Lucente v. Cty. of Suffolk, 980 F.3d 284, 313 (2nd Cir. 2020); McBride v. Lopez, 807 F.3d 982 (9th Cir. 2015); Himmelreich v. Federal BOP, 766 F.3d 576 (6th Cir. 2014); Tuckel v. Grover, 660 F.3d 1249 (10th Cir. 2011); Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).
- “A grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009).
- Moreover, “no administrative system may demand that the prisoner specify each remedy later sought in litigation[,]” because the PLRA “requires each prisoner to exhaust a process and not a remedy.” Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002); Booth v. Churner, 532 U.S. 731 (2001). This interpretation gives you a little flexibility when requesting a remedy from a court (e.g., an injunction, or compensatory damages, or punitive damages), and a court shouldn’t preclude you from asking for a type of remedy just because it wasn’t first requested in the grievance.
- Finally, if you prevail on a grievance but officials don’t deliver on their promise of relief, you shouldn’t have to file another grievance before going to court. “A prisoner who has not received promised relief is not required to file a new grievance where doing so may result in a never-ending cycle of exhaustion.” Abney v. McGinnis, 380 F.3d 663, 669 (2nd Cir. 2004). Nonetheless, I recommend that you file another grievance about prison officials’ failure to do as they said they would.
Most of the above examples focus on procedural problems you can easily avoid if you are careful. But blundering the facility’s grievance process is by no means the only failure-to-exhaust technicality that could undermine a subsequent lawsuit. If they can’t throw out your lawsuit for a procedural failure-to-exhaust error, government lawyers and courts will then scrutinize what you wrote in your requests and grievances, or, rather, look for things you left out. Specifically, they’ll attack the substance of a grievance by arguing that it didn’t state an important fact an official would need to know to be capable of fully addressing the issue, and, therefore, the grievance was too vague to give adequate notification of the problem.
Considering the lack of education, cognitive ability, and emotional challenges prisoners often face which may impede their ability to clearly express themselves, many courts have held that a statement of facts in a grievance is sufficient if the prison reviewing authority can figure out the problem and who’s responsible for causing it. See e.g., Patterson v. Stanley, 547 Fed. Appx. 50 (5th Cir. 2013). But other courts are less forgiving and require prisoner grievances to list the names of people being accused, what they did, what they knew, and how they caused the prisoner harm. Schillinger v. Kiley, 954 F.3d 990 (7th Cir. 2020); Townsend v. Murphy, 898 F.3d 780 (8th Cir. 2018). It’s hard to say where any given judge will land on this subject or how extensively government lawyers will dissect your grievance. The safest course, then, is to be thorough when writing a grievance.
If you have, say, a medical issue that the facility’s medical provider is ignoring and you expect the matter will end up in litigation, do not attempt to resolve the problem with a vague grievance like this: “Medical providers are not providing adequate care for my hip injury. You’re violating my Constitutional right to medical care!” The statement is too vague for all the reasons this next example is not:
“I have a torn labrum in my right hip. On 11/12/21, I was transported offsite to consult with an orthopedic surgeon, Dr. Barry Hurst. Dr. Hurst reviewed my MRI and X-rays, and said the torn labrum required surgery as soon as possible, that it will not heal otherwise, and will continue to cause pain and fold into the hip joint, eventually destroying it. He said that if the torn tissue is not repaired, it will continue to scratch the femoral head, causing severe arthritis in about a year or two, at which time I’ll need a hip replacement.
On 11/18/21, prison medical provider Nurse Rollins told me that he had reviewed Dr. Hurst’s recommendation with Dr. Haggard and the Utilization Management MD (name withheld from me), and they decided to reject the specialist’s recommendation for surgery, and instead prescribe an ‘alternative treatment plan’ of 600 mg ibuprofen, three times daily.
The treatment plan is inadequate. Pain management will not treat the underlying damage to my hip or prevent further deterioration. I am requesting the medical care recommended by Dr. Hurst.”
The statement is specific. It includes dates, injury, names, and what I’m asking for. I didn’t waste space citing case law or accusing them of violating my Eighth Amendment right to adequate medical care. And yet, I was careful to show that all the people named (who could end up being defendants in a lawsuit) were aware of my medical issue, and deliberately chose an inadequate course of treatment. (The statement, in fact, alleges the elements of an Eighth Amendment medical claim: deliberate indifference to a serious medical need.) Notice that I couldn’t include the name of the Utilization Management doctor but used space to point out that the name was being concealed. It’s not my fault I can’t provide the name, it’s theirs, and I can use that fact in my defense later in court. Notice, too, that I didn’t run on about how ibuprofen is inadequate for pain management of a torn labrum. That’s really a separate issue, and I would file a separate grievance about insufficient pain therapy if I planned to sue over it.
FILING A GRIEVANCE APPEAL
A successful grievance should not have to be appealed, but I’d consider doing it anyway. Why would I appeal a win? To preserve the issue for court, to avoid any question that I failed to exhaust my administrative remedies. If you win the grievance and prison officials renege on the deal or just don’t follow through with what they said they’d do (happens all the time), and then you file a lawsuit, the court should not fault you for failing to appeal the grievance.
Failure to file an appeal is playing with fire, though. If l won a grievance, but it looked like officials weren’t going to honor their promise of relief, I’d file the grievance appeal if the time limit to do so hadn’t yet run out. If the time to appeal had run out, I’d start a new grievance. If they kick back that grievance and say I already grieved the issue and can’t do so again, then I’ve done all I can do and a court will likely side with me on the exhaustion question, if it comes up.
When a grievance is lost, it MUST be appealed, or you won’t be able to pursue a lawsuit. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). The time to appeal could be a few days or as long as a month—you must read your prison’s policy on this point. And you must file the appeal within that policy’s time limits. Id., 548 U.S. at 90.
A hitch in the exhaustion process sometimes occurs when a grievance response is not physically sent back to the prisoner until the deadline to appeal the response has lapsed. If this happens to you, try submitting the appeal anyway, and include a written request explaining that the appeal was late because the grievance decision was delivered late (be sure to say exactly when you received it). If they refuse to hear the appeal, submit another grievance about the facility’s failure to timely give notice of the grievance decision. If it’s your word against the word of prison officials about when exactly you got notice of the grievance decision, you will lose in court, unless you can produce something to bolster your credibility, such as a subsequent grievance complaining about the delay that interfered with the appeal process.
There are limitations on the substance of what can be included in an appeal, as well. Prisoners often screw up a grievance by changing the facts when writing an appeal, even when that may be a logical reply to what officials have decided in their grievance responses. This is a trap. Don’t get drawn into arguing with their responses (which may be infuriating nonsense) and forget to stand on your original issue. At this point, your objective is to preserve the issue for court, not persuaded prison officials. You can and should add clarifying facts on appeal, so long as they support your original grievance.
Exhaustion trouble also arises from raising more than one issue in a single grievance. Prison policies usually restrict a grievance to a single issue. Look above at the detailed example of the grievance statement concerning the medical issue I supplied earlier. I could have very easily included a statement that the ibuprofen prescription isn’t sufficient to manage pain caused by a torn labrum. But if I had done so, I would’ve effectively been making two grievances, one about lack of treatment for the injury and the other about lack of adequate pain therapy. If officials rejected the grievance for stating two separate issues, a court would agree.
Prisoners also sometimes introduce additional issues at an intermediate or appellate stage of a grievance and end up undermining all the issues. Again, look at the example grievance statement above, and suppose I submitted it as is, focusing on my request to repair my hip surgically. Then suppose that the officials’ response to my grievance totally ignored the surgical recommendation from Dr. Hurst and instead went on about how ibuprofen is medically sufficient to treat my pain. They’ve missed the point. I’m not grieving the pain issue, so I wouldn’t let them draw me into arguing about medications. I would appeal and say the surgery will stop the pain by fixing the underlying injury, and, more importantly, I’d argue the surgery will prevent further deterioration of the joint and avoid a hip replacement procedure.
If you raise issue “A” at the outset, and then raise issue “B” at the appellate stage of a grievance process and neglect issue “A”, a court might decide that neither issue was fully exhausted. An issue is only exhausted if it is raised at the outset of a grievance (not at an intermediate or appellate stage of the grievance) and appealed all the way through the highest tier of review. Johnson v. Rowley, 569 F.3d 40 (2nd Cir. 2009). However, if you raised more than one issue in a grievance, be it at the outset or at an intermediate stage, and the prison nonetheless processed it, addressing the multiple issues, then you have an argument for exhaustion because the prison didn’t reject it for the procedural mistake and instead decided the grievance on its merits (see Reyes v. Smith, above). Of course, it’s better to avoid exhaustion questions by doing things right in the first place, rather than arguing against dismissal in front of a judge who might be looking for any reason to throw out your lawsuit.
Provided you’ve successfully navigated your prison’s grievance system and timely pursued an appeal, you will receive a final decision from the prison’s highest appellate review authority, usually the warden. Often, the warden’s answer will refer to responses already given at the grievance stage and give a rubber—stamp decision like “Staff responses are appropriate . . .” with little or nothing more said. This is the end of the grievance process, and you’ve exhausted all “administrative remedies as are available.”
If you intend to sue the Federal government under the Federal Tort Claims Act, or sue a State under its own tort claims act, you will still need to file a Notice of Tort Claim with the proper executive offices. Notwithstanding the Notice of Tort Claim process (which you can read about in MEISTER MANUAL For Prisoners’ Lawsuits), if you follow the grievance-exhaustion steps outlined in this chapter, you will also effectively preserve the underlying facts to later support claims in a lawsuit.
