Jean Germain v. Bobby Shearin

Filing

OPINION ATTACHMENT. [15-6050]

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STATE OF MARYLAND

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES
DIVISION OF CORRECTION

PROGRAM:
DCD #:

OF
CORRECTION
DIRECTIVE

185-002

TITLE:
DIVISION

ADMINISTRATIVE REMEDY PROCEDURES
Administrative Remedy Policy

ISSUED:

August 4, 2008

EFFECTIVE:

August 27, 2008

AUTHORITY:
APPROVED:
I.

References:
A.
B.
C.

III.

Suits by Prisoners, 42 U.S.C.§ 1997e(a)
Correctional Services Article, §§ 10-201 through 10-210, Annotated Code of
Maryland
Courts and Judicial Proceedings Article, §§ 5-1001 through 5-1007, Annotated
Code of Maryland
COMAR 12.02.27 and COMAR 12.07.01.
DCD 175-2 and 250-1

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Applicable to: All Division of Correctione
i inmates housed in Division of Correction
institutions and facilities
0, v
5
-60 policy for the operation and management of
Purpose:
To establish
. 15
Administrative Remedy Procedure (ARP).
No
D.
E.

II.

Paul O’Flaherty
Assistant Commissioner
J. Michael Stouffer
Commissioner

IV.

Definition:

V.

the

Administrative Remedy Procedure means the procedure established by the
Commissioner of Correction for inmate complaint resolution.

Policy:
A.

The Division of Correction encourages staff and inmates to make a good faith
effort to resolve all institutionally related inmate complaints at the lowest possible
level. Inmates are encouraged, but not required, to seek resolution of complaints
through the informal resolution process. Inmates may seek formal resolution
through the Administrative Remedy Procedure.

B.

Formal resolution under the Administrative Remedy Procedure consists of two
levels:
1.

Filing a request for administrative remedy with the Warden, and

2.

Appealing to the Commissioner, if not satisfied with the response.

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DCD 185-002

C.

D.

The purposes of the Administrative Remedy Procedure are to solve inmate
problems and to be responsive to inmate concerns. When the Division of
Correction finds that a request for administrative remedy or an appeal is
meritorious in whole or in part, the Administrative Remedy Procedure, to the
extent possible, should provide the inmate with meaningful relief.

E.

VI.

An inmate not satisfied with the outcome of the Administrative Remedy
Procedure Process may seek further administrative review in accordance with
regulations of the Inmate Grievance Office (IGO).

It is the policy of the Division of Correction that requests for administrative
remedy and appeals under the Administrative Remedy Procedure should be
answered on the merits and substantive relief provided to the inmate where
warranted. Nevertheless, inmates must adhere to the time periods and other
requirements set forth in this Directive and should not expect that any late
submission will be considered.

Procedures:
A.

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Inmates may seek relief through the Administrative Remedy Procedure for issues
that include, but are not limited to:
1.
2.
3.
4.

d 5policies and procedures;
Division of Correction and institutional
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Medical services; 0,
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-courts;
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to
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Religious liberties;

5.
6.

Use of force;

7.

Sentence computation and diminution of confinement;

8.

Institutional conditions affecting health, safety, and welfare; and

9.
B.

Lost, damaged, stolen, destroyed, or improperly confiscated property;

Administration and operation of this procedure.

Inmates may not seek relief through the Administrative Remedy Procedure on the
following issues:
1.

Case management recommendations and decisions;

2.

Maryland Parole Commission procedures and decisions;

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DCD 185-002

3.

Disciplinary hearing procedures and decisions; and

4.

Decisions to withhold mail.

C.

Inmates may seek relief concerning case management recommendations and
decisions both through informal resolution and under IGO regulations.
Disciplinary hearing decisions may be appealed under a wholly separate
procedure in accordance with COMAR 12.02.27, applicable DPSCS directives,
and under IGO regulations. Under no circumstances should inmates use the
Administrative Remedy Procedure to raise any issue concerning disciplinary
hearing procedures and decisions. Decisions to withhold mail may be appealed
pursuant to DCD 250-1.

D.

Every inmate in the Division of Correction, regardless of physical condition,
security level, administrative status, language barrier or housing assignment is
entitled to submit a request for administrative remedy on those issues that qualify,
and to appeal to the Commissioner if not satisfied with the response. If asked,
wardens and staff shall ensure that assistance in filing requests for administrative
remedy and appeals under the Administrative Remedy Procedure is available to
inmates who are disabled or who are not functionally literate in English. Wardens
shall ensure that the proper forms for using the Administrative Remedy Procedure
are readily available in all housing units.

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E.

F.

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Inmates are responsible for usinge Administrative Remedy Procedure in good
i the
v
faith and in an honest and ,straightforward manner. When filing a request for
0 appeal, inmates should briefly and clearly state the
administrative remedy 5 an
-60 or
facts giving rise to the complaint and the relief requested.
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Division of Correction will not allow any retaliation to be taken against

inmates who use the Administrative Remedy Procedure in good faith. Inmates
may use the Administrative Remedy Procedure to pursue complaints of any
retaliation against them. When a claim of retaliation is confirmed, the Warden
shall take appropriate action in accordance with Department of Public Safety and
Correctional Services standards of conduct.
G.

Inmates may not file request for administrative remedy or appeals on behalf of
other inmates, staff, or other third persons (such as visitors). Inmates are also
restricted from filing class action complaints under this Directive.

H.

All requests for administrative remedy and appeals to the Commissioner shall be
submitted in the name under which the inmate is committed to the custody of the
Commissioner of Correction and shall include the inmate’s identification number.
An inmate may also include a religious name or name authorized by court order.

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DCD 185-002

I.

The transfer of an inmate does not terminate the administrative remedy process,
although transfer of an inmate may be relevant to any relief. An inmate who is
transferred after an incident but prior to filing a request for administrative remedy
shall submit the request to the Warden of the inmate’s current institution, within
the appropriate time period.

J.

Except as provided in Section VI.K of this Directive, inmates may submit any
number of requests for administrative remedy on issues that qualify under the
Administrative Remedy Procedure.

K.

The Commissioner of Correction may limit the number of requests an inmate may
file if the inmate has misused the Administrative Remedy Procedure by filing
requests that are frivolous, unnecessarily duplicative, or which contain
threatening, obscene or abusive language or material.
1.

The Warden shall make a written recommendation to the Commissioner
regarding the number of requests to which the inmate should be limited
and the duration of the limitation using the Administrative Remedy
Procedure Limitation Request, Appendix 1 to this Directive. The
recommendation must provide a compelling reason for the limitation. The
Warden’s responsibilities under this section may be delegated only to an
Assistant Warden.

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2.

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The Commissioner shall review the recommendation to limit an inmate’s
use of the Administrative Remedy Procedure and respond in writing by
approval or disapproval of the recommendation. The Commissioner’s
responsibilities under this section may only be delegated to an Assistant
Commissioner.

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3.

4.

L.

An inmate may appeal a decision by the Commissioner to limit the
number of administrative remedy requests to the IGO. Any appeal must
be received by the IGO within 30 days of the date the inmate receives the
Commissioner’s decision.
The Warden may dismiss any requests for administrative remedy that
exceed the limit approved by the Commissioner. Regardless of any
dismissal, staff shall investigate and take appropriate action on any issue
in a request if failure to do so could result in serious harm.

Time Periods and Filing Procedures at the Institutional Level:
1.

An inmate may, at any time, attempt informal resolution of a complaint,
using both correspondence and discussion with staff, as well as the
Informal Inmate Complaint Form, Appendix 2 to this Directive.

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DCD 185-002

2.

Inmates are encouraged to use informal resolution, but attempting
informal resolution does not suspend or stay the deadline for filing a
formal request for administrative remedy or any other time period.

3.

An inmate must date, sign, and submit Request for Administrative
Remedy, Appendix 3 to this Directive, within the later of:
a.

b.

4.

Thirty (30) calendar days of the date on which the incident
occurred; or
Thirty (30) calendar days of the date the inmate first gained
knowledge of the incident or injury giving rise to the complaint.

Wardens should recognize that certain complaints may be ongoing in
nature and therefore not always subject to a strict application of this time
period. For example, the heating system in an inmate’s housing unit has
been malfunctioning for over 60 days. However, the weather has been
unseasonably warm and the inmate has not complained because he or she
has not been cold. The weather suddenly changes and now the inmate is
cold and consequently complains about the malfunctioning heating
system.

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5.

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Requests for administrative remedy concerning sentence computation and
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diminution of confinement are not subject to the 30-day time period.
0,ofvrequest may be filed at any time, inmates are
Although this 5
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encouraged to submit a request concerning sentence computation and
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diminution of confinement as soon as the inmate becomes aware of the
No
problem. Appeals to the Commissioner of Correction concerning sentence
computation and diminution of confinement must be filed within the time
period set forth in Section VI.M.1 of this Directive.

6.

When extraordinary circumstances prevent an inmate from submitting a
request for administrative remedy within the 30-day time period, the
Warden may accept a late filing.

7.

The inmate shall describe a single complaint or a reasonable number of
closely related issues on the request form. “Closely related issues” are
those that arise out of a single occurrence or condition. For example, an
inmate seeking both medical attention and monetary damages due to a
claim of excessive force is clearly raising two closely related issues.

8.

The inmate shall clearly and briefly state the facts giving rise to the
complaint so that the basis for investigation can be determined. The
necessary facts include:

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DCD 185-002

a.
b.

The names(s) of staff involved;

c.

The name(s) of any witnesses;

d.

A brief statement of the facts; and,

e.
9.

The date and location of the occurrence;

A brief statement of the relief requested.

If the inmate includes more than one issue in a single request for
administrative remedy and the issues are not closely related or does not
provide sufficient information to determine the basis for investigation, the
Warden may dismiss the request for procedural reasons.
a.

If the Warden dismisses a request because the complaint contains
multiple unrelated issues or does not provide sufficient information
to determine the basis for investigation, the inmate may resubmit a
request containing a single issue, or a reasonable number of closely
related issues, or may resubmit with additional information needed
to determine the basis for investigation.

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5
dthe request within the original time
b.
The inmate must resubmit
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period or within ie days of the date of dismissal, whichever is
15
later.
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c.
Regardless
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on any issue in
for administrative
No appropriate action do so could result ain request harm.
remedy if failure to
serious
10.

The inmate shall submit the request for administrative remedy to an
officer in the control center of the inmate’s housing unit, a tier officer, or a
custody supervisor. The officer who receives a request for administrative
remedy must sign and date the form and provide the inmate with the
carbonless copy of the request. The officer who receives a request for
administrative remedy must deliver the request to the location designated
by the Warden by the end of that officer’s shift.

11.

Within five business days of the date the inmate submits a request for
administrative remedy, the Warden shall provide the inmate with a receipt
and case number. Inmates are responsible for keeping the carbonless copy
of the request for administrative remedy and any receipts. These
documents are needed in the event of further proceedings.

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DCD 185-002

12.

The Warden shall investigate and respond to all requests for administrative
remedy within 30 calendar days of the date of submission of the request
for administrative remedy.
a.

The Warden is permitted one extension of 15 calendar days to
respond to a request for administrative remedy. The inmate’s
consent to the extension is not required.

b.

If the Warden extends the time to respond, the Warden must
provide written notice of the extension using the Extension Form,
Appendix 4 to this Directive. The completed form must be sent to
the inmate within the original 30 days.

13.

An inmate may withdraw a request for administrative remedy at any time.
An inmate who withdraws a request for administrative remedy shall
submit the withdrawal using the Withdrawal Form, Appendix 5 to this
Directive. Withdrawal of the request may prevent consideration of the
claim at a higher level.

14.

By separate Directive, the Commissioner shall establish standards for the
investigation of requests for administrative remedy and preparing
responses, as well as the duties of wardens and institutional administrative
remedy coordinators.

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15.
Regardless of any dismissal for procedural reasons, staff shall investigate
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and take appropriate action on any issue in a request for administrative
0do v could result in serious harm.
5to , so
remedy if failure
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16.
The Warden shall promptly provide to the inmate any relief ordered in
No
response to a request for administrative remedy or appeal.
17.

M.

If the Warden fails to respond to a request for administrative remedy
within 30 calendar days of the date the request is submitted or within 45
calendar days of the date the request is submitted, if an extension is
required by the Warden under Section VI.L.12.a of this Directive, the
request for administrative remedy is considered denied and the inmate
may appeal to the Commissioner of Correction.

Time Periods and Filing Procedures for Appeals:
1.

All appeals to the Commissioner of Correction must be dated, signed and
submitted, using the Headquarters Appeal of Administrative Remedy
Response, Appendix 6 to this Directive, so that the appeal is received by
the Commissioner’s Office within 30 calendar days of the date the inmate
receives the Warden’s response, or within 30 calendar days of the date the
response from the Warden was due.

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DCD 185-002

Appeals concerning sentence computation and diminution of confinement
are included within this time period.
2.

Unless indigent as defined by DCD 175-2, inmates are encouraged to affix
proper postage and use the United States Postal Service when submitting
an appeal. Inmates may also use institutional courier mail systems to
submit appeals. If an institutional courier system is used, the Division of
Correction has no responsibility for delivery dates exceeding the
applicable time period.

3.

When extraordinary circumstances prevent an inmate from submitting an
appeal so that it is received by the Commissioner’s Office within the 30day time period, the Commissioner may accept a late filing.

4.

An inmate may appeal to the Commissioner even if the Warden finds the
complaint meritorious in whole or in part, for example, if the inmate is
dissatisfied with the relief ordered by the Warden.

5.

When any appeal is received by the Commissioner, the headquarters
administrative remedy coordinator shall, within five business days of the
date the appeal was received, send the inmate Part C of the appeal
notifying the inmate of the date the appeal was received.

6.

7.

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The Commissioner shall investigate and respond to all appeals within 30
calendar days of the date the appeal is received, unless an extension is
required under Section VI.M.9.b of this Directive.

5-6
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N The Commissioner’s investigation of an appeal is not limited by any

investigation conducted by the Warden. When responding to an appeal,
the Commissioner is not limited to affirming or reversing the Warden’s
decision. The Commissioner may take any action in response to an appeal
that is consistent with the major purposes of the Administrative Remedy
Procedure.
8.

A failure by the Warden to respond to a request for administrative remedy
in a timely manner does not prevent the Commissioner from responding to
an appeal on any basis that was available to the Warden.

9.

If the inmate appeals to the Commissioner after the Warden has failed to
respond in a timely manner, the Commissioner may direct the Warden to
investigate the complaint and prepare a recommended response to the
appeal for the Commissioner to review.

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DCD 185-002

a.

The Warden shall investigate and prepare a recommended response
to the appeal on behalf of the Commissioner and provide the
Commissioner with the recommended response within 15 calendar
days of the date of the Commissioner’s order, or earlier if required
by the Commissioner.

b.

If the Warden is directed to investigate and prepare a
recommended response on behalf of the Commissioner, the
Commissioner is permitted one extension of 15 calendar days to
respond to the appeal. The inmate’s consent to the extension is not
required.

c.

If the Commissioner extends the time to respond to an appeal, the
Commissioner must provide written notice to the inmate using the
Extension Form, Appendix 4 to this directive within the original 30
days.

d.

The Commissioner may accept or reject the Warden’s
recommended response, substitute the Commissioner’s response,
or take any action consistent with the purposes of the
Administrative Remedy Procedure, except remanding to the
Warden for further proceedings at the institutional level.

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10.
If the inmate appeals to the Commissioner after the Warden has failed to
iew
respond in a timely manner, and the inmate subsequently receives a
0, v concerning the same request for administrative
response from the Warden
05
-6Warden shall also provide the Commissioner with a copy of
remedy, the
. 15
the untimely response.
No
a.

b.

If the inmate is not satisfied with the Warden’s response, the
inmate may continue with the appeal.

c.

11.

The inmate may withdraw the appeal using the Withdrawal Form,
Appendix 5 to this Directive if the inmate is satisfied with the
Warden’s response, even though the response was not timely.

If the inmate continues with the appeal, no further action is
required by the inmate. The inmate may but is not required to
supplement the appeal based on the Warden’s response.

Any request for administrative remedy submitted directly to the
Commissioner without first being submitted to the Warden shall be
referred by the Commissioner to the Warden.

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DCD 185-002

a.

The Commissioner shall refer a request for administrative remedy
submitted directly to the Commissioner within 30 calendar days of
the date the request is received by the Commissioner. The referral
shall include the date the request was received.

b.

The Commissioner shall provide written notice of the referral to
the inmate within 30 calendar days of the date the request was
received by the Commissioner. The inmate’s consent to the
referral is not required.

c.

In the event of such a referral, the Warden shall provide the inmate
with a receipt using Part C of the request within five business days
of receiving the referral and shall respond to the inmate within 30
calendar days of the date the Warden receives the referral.

d.

If an extension of 15 calendar days to respond to a referral is
required, the Warden shall provide the inmate with written notice
within 30 calendar days of the date the Warden received the
referral using the Extension Form, Appendix 4 to this Directive.
The inmate’s consent to the extension is not required.

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d 5be treated as if it were an original
e.
In all respects, the referral shall
e
request for administrative remedy, except that no referral by the
iew
Commissioner shall be dismissed by the Warden for lack of
0if v original request was received by the
5 , the
timeliness
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Commissioner within 30 calendar days of the date of the incident
. 15 within 30 calendar days of the date the inmate gained
No or
knowledge of the incident or injury giving rise to the complaint,
whichever is later.
f.

Regardless of any referral, headquarters staff shall investigate and
take appropriate action on any issue in a request for administrative
remedy submitted directly to the Commissioner if failure to do so
could result in serious harm.

12.

By separate Directive, the Commissioner shall establish standards for the
investigation of appeals and preparing responses to appeals, and the duties
of the headquarters administrative remedy coordinator.

13.

Regardless of any dismissal of an appeal for procedural or other reasons,
headquarters staff shall investigate and take appropriate action on any
issue in an appeal if failure to do so could result in serious harm.

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DCD 185-002

14.

N.

If the Commissioner fails to respond to an appeal within 30 calendar days
of the date the Commissioner receives the appeal, or 45 calendar days of
the date received if an extension is required under Section VI.M.9.b of this
Directive, the appeal is considered denied, and the inmate may seek
further administrative review under regulations of the IGO.

Regulations of the Inmate Grievance Office (IGO) include the following:
1.

COMAR 12.07.01.06B provides: “An appeal from the administrative
remedy procedure to the Inmate Grievance Office shall be filed within
30 days from the grievant’s receipt of a response from the Commissioner
[of Correction], or within 30 days of the date the Commissioner’s response
was due.”

2.

COMAR 12.07.01.06E provides: “The Inmate Grievance Office may
dismiss any disciplinary proceeding appeal and any grievance within the
scope of the administrative remedy procedure that has not been exhausted
through all institutional remedies in a timely manner.”

3.

COMAR 12.07.01.06F provides: “A time limitation or procedural bar
may be waived [by the Inmate Grievance Office] for a grievance which
represents a continuing problem or for which good cause is shown for a
failure to proceed in a timely manner.”

4.

5.

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COMAR 12.07.01.07A provides: “The Executive Director shall conduct a
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preliminary review , a grievance to determine whether it should be
0 ofva hearing.”
dismissed or 05 to
-6proceed
. 15
COMAR 12.07.01.07B(4) provides: “A grievance shall be dismissed on
No
preliminary review as wholly lacking in merit if . . . [t]he grievant has
failed to exhaust remedies available under the administrative remedy
procedure or the disciplinary proceeding in a timely manner, and has not
shown good cause for the failure to do so.”

O.

In the Courts of the State of Maryland, judicial review of final decisions in
matters before the IGO is available pursuant to Correctional Services Article, §
10-210.
1.

The inmate may seek judicial review of a final decision in matters before
the IGO in the Circuit Court of the County in which the inmate is
confined. Correctional Services Article, § 10-210(b)(2).

2.

Courts and Judicial Proceedings Article, § 5-1003(a)(1) provides: “A
prisoner may not maintain a civil action until the prisoner has fully
exhausted all administrative remedies for resolving the complaint or
grievance.”

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DCD 185-002

P.

Federal law, 42 U.S.C. § 1997e(a) provides: “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.”

Q.

This series of Directives establishes policy and procedure for the operation of the
Administrative Remedy Procedure throughout the Division of Correction.

R.

The institutional administrative remedy coordinator or designee shall complete the
Policy Management Audit Form, Appendix 7 to this Directive in June and
December of each calendar year. When deficiencies are noted, a compliance plan
shall be completed to address each deficiency. A copy of the completed form(s)
shall be forwarded to the:
1.

Institutional audit coordinator; and

2.

Director, Office of Policy Development, Analysis and Management

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The institutional administrative remedy coordinator or designee shall maintain a
copy of the form for review during the Headquarters Administrative Remedy
Audit.

VII.

d5
S.
No institutional directives are required or permitted.
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Attachments:
0, v
5
-60 Remedy Procedure Limitation Request (DOC Form
A.
Appendix 1, Administrative
. 15
No 185-002aR)
B.
Appendix 2, Informal Inmate Complaint Form (DOC Form 185-002bR)
C.
D.

Appendix 3, Request for Administrative Remedy (DOC Form 185-002c)
Appendix 4, Extension Form (DOC Form 185-002dR)

E.
F.

Appendix 5, Withdrawal Form (DOC Form 185-002eR)
Appendix 6, Headquarters Appeal of Administrative Remedy Response (DOC
Form 185-002fR)
Appendix 7, Policy Management Audit Form (DOC Form 1-2aR) and Policy
Management Compliance Plan (DOC Form 1-2bR)

G.

VIII.

Rescissions:
185-001:
185-002:
185-100:
185-101:
185-200:
185-201:

Table of Contents, dated April 1, 1993
Administrative Remedy Procedure Policy, dated February 15, 2005
Administrative Remedy Procedure Description, dated April 1, 1993
Time Frames, dated April 1, 1993
Institution Program Orientation and Management, dated April 1, 1993
Inmate Orientation, dated April 1, 1993

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DCD 185-002

185-202: Staff Awareness, dated April 1, 1993
185-203: Informal Resolution Procedure, dated April 1, 1993
185-204: Preliminary Review of a Request for Administrative Remedy, dated
April 1, 1993
185-205: Administrative Dismissal of a Request, dated April 1, 1993
185-206: Acceptance and Investigation of a Request for Administrative Remedy, dated
April 1, 1993
185-207: Warden’s Response to a Request for Administrative Remedy, dated April 1,
1993
185-208: Providing Relief to a Request for Administrative Remedy, dated April 1, 1993
185-300: Headquarters Program Organization and Management, dated April 1, 1993
185-301: Administrative Dismissal of an Appeal, dated April 1, 1993
185-302: Acceptance and Investigation of a Headquarters Appeal of Administrative
Remedy Response, dated April 1, 1993
185-303: Commissioner’s Response to a Headquarters Appeal of Administrative
Remedy Response, dated April 1, 1993
185-304: Providing Relief to the Inmate, dated April 1, 1993
185-305: Adverse Effect Request, dated April 1, 1993
185-400: Program Description of Procedures for Inmates, dated April 1, 1993
185-401: Submitting a Complaint for Informal Resolution, dated April 1, 1993
185-402: Submitting a Request for Administrative Remedy, dated April 1, 1993
185-403: Submitting a Headquarters Appeal of Administrative Remedy Response, dated
April 1, 1993
185-500: Professional Training and Development, dated April 1, 1993
185-600: Documentation and Reporting, dated April 1, 1993
185-700: Audits, dated April 1, 1993

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Distribution: A
L
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