Grievance Battle Tactics Updated

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[Legal] [ULK Issue 60]
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Grievance Battle Tactics Updated

by a Tennessee prisoner January 2018

[MIM(Prisons) has received some well-researched information on filing grievances and fighting the grievance system from several readers. Various court cases and rulings can be contradictory. This is in part due to local court differences, but it's also important to know when a particular decision has been overruled by a higher court. This is hard to stay on top of! We rely on our legally savvy readers to let us know when something important has changed because we don't have the money to pay lawyers to do this work for us.

You will see in these two updates some court cases that appear contradictory. We want to put this information in the hands of our jailhouse lawyers, but we caution everyone to do your own research before relying on a citation for your legal work. This information is just a starting point. - Editor]

Caselaw on legal protections

The First Amendment protects the right of the people "to peaceably assemble, or to petition for a governmental redress of grievances." These rights are severely restricted in prison. Prison officials may ban prison organizations that oppose or criticize prison policies, and court decisions have generally upheld restrictions on those prisoner organizations that are permitted. There is no constitutional right to belong to a gang, or "security threat group" as prison officials often call them, and officials may impose restrictions or take disciplinary action based on gang membership.(1) In some instances courts have declared religious organizations to be security threat groups.(2) Courts have disagreed on the Constitutional status of petitions in prison. Some courts have held that they are protected by the First Amendment, while others have approved restrictions or bans on them.(3, 4) Whether prisoners can be punished for circulating or signing petitions will depend on whether prison rules give notice that such activity is forbidden.(5)

Grievances filed through an official grievance procedure are constitutionally protected(6), even though there is NO constitutional requirement that prisons or jails have a grievance system(7), or that they follow its procedures if they do have one (8), or that they issue decisions that fairly resolve prisoners' problems(9).

1. Westefer v. Snyder, 422 F. 3d 575 (Segregation of gang members and their transfer to supermax prison did not violate their First Amendment rights)
2. Fraise v. Terhune, 283 F. 3d 506, 518-23 (3d cir. 2002) (Courts have upheld classification of The Five Percenters as a "security threat group" and the segregation of prisoners who refuse to renounce all ties with it.)
3. Bridges v. Russell, 757 F. 2d 1155, 1156-57 (11th cir. 1985) (Allegation of transfer in retaliation for a petition stated a claim); Haymes v. Montanye, 547 F. 2d 188, 191 (2d cir. 1976); Stoval v. Bennett, 471 F. supp. 1286, 1290 (M.D. Ala. 1979)
4. Duamutef v. O'Keefe, 98 F. 3d 22, 24 (2nd cir. 1996) (Holding petitions may be prohibited as long as there is a grievance process.) Wolfel v. Morris, 972 F. 2d 712, 716-17 (6th cir. 1992); Nickens v. White, 622 F. 2d 967, 971-72 (8th cir. 1980) (Upholding regulation forbidding "mass protest petitions". Noting that prisoners have alternate methods of expressing their views, I.e. correspondence and an internal grievance procedure.) Edwards v. White 501 F. supp. 8, 12 (M.D. Pa. 1979) (dictum - stating that a ban is permissible because the process of gathering signatures might lead to violence.)
5. Gayle v. Gonyea, 313 F. 3d 677, 680 n. 3 (2d cir. 2002) (Questioning whether prison rules gave notice that petitions were forbidden.) Farid v. Goord, 200 F. supp. 2d 220, 236 (W.D.N.Y. 2002) (Petition was constitutionally protected where no rule forbade it.) Richardson v. Coughlin, 763 F. supp. 1228, 1234-37 (S.D.N.Y. 1991) (Prisoner could not be punished merely for gathering signatures on a petition where prison rules did not specifically prohibit such action.)
6. Hoskins v. Ienear, 395 F. 3d 372, 375 (7th cir. 2005) (per curiam); Gayle v. Gonyea, 313 F. 3d 677, 682 (2d cir. 2002)
7. Lopez v. Robinson 914 F. 2d 486, 494-95 (4th cir. 1990) (The failure to make grievance forms readily available and officers' practice of requiring inmates to tell them why they wanted the form did not violate "clearly established rights".)
8. Wildberger v. Bracknell, 869 F. 2d 1467 (11th cir. 1989); Spencer v. Moore, 638 F. supp. at 316; Azeez v. DeRobertis, 568 F. supp. 8, 10 (N.D. Ill. 1982); Watts v. Morgan 572 F. supp. 1385, 1391 (N.D. Ill 1983)
9. Geiger v. Jowers, 404 F. 3d 371, 374 (5th cir. 2005) (per curiam) (A prisoner does not have a federally protected liberty interest in having those grievances resolved to his satisfaction.)
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