Attorneys question prison grievance system
Wyoming inmates file civil rights violation lawsuits regularly, but that’s only done after the state’s internal grievance procedure fails. Often, the lawsuit fails too, leaving those living in the state’s prisons without a reliable way to protect themselves from injustice, local attorneys say.
The grievances vary broadly in scope — from inmates who alleged poor medical care and staff-perpetrated violence to an inmate who accused staff of wrongly confiscating his PlayStation — court filings show.
Not all complaints have merit, said Doug Bailey, a Cheyenne-based attorney who has reviewed 50 to 75 inmate civil rights cases over the last few years. But in the ones that do, most of the inmates followed the grievance procedure first.
The Wyoming Department of Corrections suggests the best way to resolve civil rights violations is to follow the internal complaint procedure rather than pursue it in court, he said. Bailey has not found this to be the case.
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“I have never seen a single instance in which the grievance procedure resulted in any kind of compensation for the victim, discipline for perpetrators, changes in policy, procedure, or practice, or even an apology — which, surprisingly, is all that some inmates want,” Bailey said.
Despite this, the department believes the grievance system has directly led to changes in practice, outcomes and policy and can trigger other reviews and investigations, said agency spokesperson Paul Martin.
“There are occasions when practices and policies do not align, and in those cases either the individual prevails through the grievance process or the courts correct in awarding damages, whichever applies,” Martin said.
Inmates must first communicate an issue directly with correctional staff, a grievance policy document shows. Then, an inmate can fill out a communication form if he or she is unable to resolve the problem through face-to-face communication. The prisoner can go on to file an inmate grievance, which they can also appeal.
Overall, the purpose of the grievance procedure is to establish an administrative process to resolve valid and justified inmate grievances without involvement of the courts, Martin said. It also provides the courts with a written record, if the matter should go that far.
Not everyone who’s familiar with the system is convinced. The internal process doesn’t work because a state agency, in this case the correctional system, cannot be trusted to investigate itself, said J. Kirk McGill, a Denver-based attorney, who has represented both plaintiffs and defendants in inmate civil rights cases across Wyoming.
“Internal investigations are completely useless as far as I’m concerned,” said McGill. “They’re designed to clear the government of wrongdoing.”
Civil rights lawsuits
When that grievance procedure fails, it’s not easy for an inmate to sue or find an attorney, leaving a massive population of people unprotected, McGill said.
A cell block at the Wyoming Medium Correctional Institution in Torrington is shown in early 2010.
Of course, there are many inmates who really don’t have valid claims, said McGill. But many inmates have been wronged while incarcerated, he added. Prison environments have a rigid power structure along with a group of people who generally aren’t cared about by the public, which opens the door for mistreatment.
Inmates make up a huge population in the United States, which only continues to rise, but they have no political clout, he said.
The U.S. prison population was 1,204,300 at the end of 2021, which is a 1% increase from 2020 and a 25% increase from 2011, according to the Bureau of Justice findings.
It’s actually “un-American” to view inmates as underserving of rights, McGill said. The Constitution was designed to protect all people equally, whether they are considered the worst person or the best. That’s why people who have committed heinous crimes are still given due process in courts.
“My dad always likes to joke that when your client is the little sisters of the poor, that you tend to get some more attention because you’re on the side of right and justness,” McGill said.
Prison is not supposed to be a vacation, but there’s a thin line between it serving as a deterrent and it being abusive under our Constitution, he said. And if it does become abusive, and the internal procedure fails, that doesn’t mean inmates automatically get the opportunity to sue.
State governments and their employees have immunity under the 11th Amendment, McGill explained. As a result, almost no civil right statues override that immunity.
“It means that a vast majority of people being mistreated by the government do not have access to competent legal counsel,” McGill said. “That’s probably the biggest problem, and as a result of that, the defense [in a civil case] tends to win most of time.”
Many lawyers won’t take on inmate cases because they don’t believe they have a strong chance of winning — or even getting paid, he said. This means many inmates don’t get represented.
Even though McGill makes part of his living off these cases, he wishes there were more ways to solve civil rights issues without having to turn to the court system.
An independent monitor in every prison to take complaints and perform audits and investigations would help fix this, he said. It would create a more solid protection system for inmates, so that lawsuits could be avoided. Ideally, it would be a deterrent for civil rights violations before they even occur.
“We’re America. Should we not have the world’s best prisons?,” he said. “I don’t mean best as in best hot tub and swimming pool, but I mean the safest. Where you don’t have to be worried about being stabbed in the back because you joined the wrong prison gang. And we don’t have that in this country, and it is a real problem.”
Medical grievances
There are many reasons that inmates file suit. One of the most common in Wyoming is the denial of adequate medical care, said Bailey, the Cheyenne attorney.
The Wyoming Department of Corrections is contracted with YesCare for prisoner health services, according to Martin. YesCare describes itself as one of the leading U.S. correctional health care providers.
There are guidelines that govern which surgical procedures are deemed elective, and YesCare does not provide elective procedures, the official policy shows.
The Wyoming Medium Correctional Institution is seen on Feb. 18 in Torrington. The facility is Wyoming’s largest prison.
When YesCare providers are accused of violating constitutional rights or breaking medical or nursing standards of care, the Wyoming Department of Corrections still stands by their diagnosis and treatment opinions, said Bailey.
“They rely on YesCare, the very entity the inmate is complaining against,” he said.
For instance, there are several inmates with symptomatic hernias, which is treatable with a simple, inexpensive surgery, Bailey said. This is classified as an “elective” procedure. Hernias are known to cause aching in the lower abdomen or groin region.
The grievance system “is a farce,” he said. YesCare “gets paid tens of millions of dollars a year by Wyoming taxpayers,” but refuses to provide elective surgeries such as hernias, even though “any surgeon will tell you that the standard of care is to repair a symptomatic hernia.”
“Denying a human being a simple surgical procedure that would alleviate his chronic pain in order to save money that you’ve already been paid by the taxpayers is morally wrong, regardless of the offense that human being is in prison for,” Bailey said.
The corrections department does side with the professional discretion of YesCare over the inmate “in a vast majority of cases,” Martin, the agency spokesman, said. When the inmate starts a grievance process, “the licensed provider working within the scope of their licensure prevails,” usually.
After the grievance procedure has failed, the inmate can file a lawsuit if he or she feels civil rights are being violated due to poor health care. Federal Law requires inmates to go through the grievance process before they’re allowed to file suit in any case.
Health care in a prison is similar to other insurance providers in that prescribed medical services may not always align with what an individual wants, Martin said.
“The differences between what a licensed medical provider may prescribe and what an individual would like do not necessarily arise to a violation of a person’s civil rights,” he said.
A current example
There are many other types of failed civil rights grievances that become lawsuits, which include disputes about unprofessional behavior or actions taken by correctional employees and the loss or destruction of an inmate’s property.
Inmates who do come forward with these issues certainly fear retaliation, McGill said.
One inmate believes he may already be dealing with the consequences of filing a lawsuit against Wyoming’s correctional system while still behind bars.
Bailey is representing a Wyoming State Penitentiary inmate who alleges his Eighth Amendment right against cruel and unusual punishment was violated when a corrections officer slammed his head into a concrete floor while he was restrained. The incident, he says, was caught on camera.
A big issue for inmates, in both the internal and external grievance processes, is a lack of evidence, said McGill. When a civil rights lawsuit succeeds, it was often because the incident happened in an area of a prison or jail that has security cameras.
“Nobody sees what goes on in prison cells besides other prisoners, who are in no position to tell anyone anything because they are not going to risk retaliation from the guards for selling someone out,” said McGill. “The guards aren’t going to sell each other out; the blue wall is just as strong in prison guards as it is in the police force. So, how are you going to get your proof?”
The inmate who alleges his civil right violation was caught on camera, Jeremy Lambson, wrote a letter to the Star-Tribune after an article about his lawsuit was published on March 20. He was scheduled to be released in a few weeks, but his active parole grant was denied two days later.
He expected retaliation was a possibility, he said.
“While I am pleased that the public is now able to read about what happened, I would be much happier if I didn’t just recently get my active parole grant rescinded a few days after that article came out,” Lambson wrote on March 28.
For more than three weeks, prisoners in Alabama went on strike refusing to work and demanding humane prison conditions.
He was sentenced to five to six years in prison for strangulation of a household member, and his max release date is Dec. 8, 2024, according to Martin.
Lambson put forward a “tremendous effort” to earn his parole grant through rehabilitative treatment, institutional work as a janitor and remaining write-up free for six months, he wrote in the letter. He simultaneously completed two six-month programs — the Central Wyoming College welding course and an intensive outpatient treatment program.
Lambson acknowledges some behavioral missteps. He received a minor write-up for roughhousing last year, and he received a major write-up for a fight in 2019.
But he had already earned his parole grant, Lambson wrote. He wasn’t even planning on attending the hearing because “there would really be no point,” but his case worker urged him to appear anyway.
After the hearing, Lambson said his parole grant was rescinded. His behavior was cited.
He found himself alone in his small cell, trying to interpret the reason stated on the notice, he wrote.
“Is this referring to all the hard work and effort put forth to successfully complete all that I was tasked to do in order to get my parole grant? Is it a mistaken reference to that incident…that of which happened over four years ago? Is it retaliation brought on because of the lawsuit against the WDOC?” Lambson wrote.
The inmate is at a huge disadvantage, said Bailey. Their criminal history, tattoos, mistakes and choices in the past can be used to suggest the inmate deserved unconstitutional treatment.
“Most come from awful circumstances and have done awful things, for which they are rightfully imprisoned,” Bailey said. “But they are still human beings with rights under the United States Constitution to adequate health care and against cruel and unusual punishment.”
In Lambson’s case, Bailey attempted to resolve the matter without filing a lawsuit. But the department refused to take responsibility, he said.
“Slamming a human being’s head into the concrete floor is morally wrong, regardless of whether he’s in prison for strangulation of a household member,” Bailey said.
Martin is unable to comment on any active litigation. In general, the Wyoming Department of Corrections takes inmates’ civil rights very seriously at all levels, he said. New staff at the training academy receive two days of education on constitutional rights of inmates.
“All policies and procedures are written with constitutional rights in mind,” Martin said. “We expend large sums of State funds to ensure staff is aware of and practicing these policies.”
Fairly simple changes could deeply improve prison conditions, McGill said. They include an independent auditor to create a more successful internal grievance procedure, body cameras on prison guards and in communal areas, and better overall surveillance in facilities.
It’s not a problem with the written Law, McGill believes. It’s a problem with how it’s carried out.
“The reality is that most prisons are terrible, awful places, and therefore having video cameras to show everyone what goes on inside the prison system would shock the conscience of the people,” McGill said. “You’d see a reaction to that, and needless to say, the prison system has enough bad press and doesn’t want more.”
Follow Sofia Saric on Twitter @Sofia_Saric.
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