On this page, which I will try to attempt to update regularly, I will post pointers and self-help hints on how to properly litigate a prisoner rights case.
As I've said many times, the law must be accessible to the families and the prisoners it actually affects. Hence, it is vitally important for lawyers to stop mystifying the law and start telling those effected how the law works.
Here are the major points to consider before filing a prisoner suit:
- Exhaustion of Administrative Remedies:
Prisoners are required to exhaust their administrative remedies prior to filing a lawsuit. This means that prisoners must file and advance a “CDC Form 602” through all 3 levels of internal review by prison staff. If the inmate does not file this appeal and have heard (and denied) at all 3 levels of review, a court is likely to throw the case out before the inmate's complaints are heard.
Here's a useful explanation of the administrative appeal process:
Prison administrative appeals are the internal grievance process through
which prisoners, and in some situations non-prisoners, may file a complaint
against prison personnel to challenge a prison policy or practice.
The appeal process is an internal administrative grievance process because
the California Department of Corrections (CDC) is a state administrative
agency, in fact the state's largest. While administrative appeals also may
be filed against the Board of Prison Terms (usually relating to parole
conditions), this manual is limited to complaints against the California Department of Corrections (CDC) for conditions
of confinement and disciplinary actions.
II. EXHAUSTING PRISONERS' ADMINISTRATIVE REMEDIES BEFORE GOING INTO COURT:
Why is this "exhaustion of remedies" important?
The administrative appeal process affects the prisoner's right to have
his/her claims heard in court. According to a steadfast California law, in
nearly every situation, a prisoner must exhaust their administrative
remedies before they can file a lawsuit in court. This applies to both
types of lawsuits frequently utilized by prisoners - known as "Petitions of
Habeas Corpus" and "Writs of Mandate."
Prisoner must exhaust their administrative appeals because any lawsuit they
file without doing so will be dismissed by the court on procedural grounds
without the court ever addressing the substance of the prisoner's claims.
How does the "exhaustion of administrative appeals" requirement impact the
advice given to prisoners?
Well, non-lawyers should never give prisoners legal advice, but it is
appropriate to tell prisoners that they cannot file a lawsuit, and any
attorney representing a prisoner cannot file a suit as well, without the
prisoner first exhausting their administrative remedies. Prisoner lawyers
and activists should sound like a broken record on this issue when talking
to prisoners. Although there are often "informal" forms of advocacy that
can be pursued (e.g. writing the warden, legislators, inspector generals,
etc.) a lawsuit can only be filed after the administrative appeal is
What is the rationale for requiring the exhaustion of administrative
The exhaustion requirement is intended to allow prison officials the first
chance to review and correct any prisoner grievance before the court
attempts to "second-guess" the policies of CDC and its officials. It also
demonstrates the prisoner's sincerity in his or her grievance.
When might there be an exception to the exhaustion of administrative
There are a limited number of situations in which a prisoner might not be
required to exhaust their administrative remedies.
In a lawsuit where the prisoner is claiming his/her civil rights were
violated - also called a "Section 1983 action" named after the federal law
(42 U.S.C. Sec. 1983) - the federal courts in California (the "9th Circuit")
are split on whether a prisoner seeking only monetary damages, rather than
"injunctive relief" (asking the prison/ prison official to take a particular
course of conduct) would require the exhaustion of administrative remedies.
Given this split by the courts, it is safe right now to continue to exhaust
the administrative remedies.
There is some California law as well that does not require the exhaustion
of administrative remedies where the prisoner can prove that an
administrative remedy is not adequate or available. For example, if the
prisoner can show that their administrative appeals are being disregarded or
not timely addressed under the required response times, the prisoner may
circumvent the exhaustion of remedies requirement. Be careful, however, to
thoroughly document any instance in which a prisoner wants to prove futility
of the appeal process because a court will strictly scrutinize this
The exhaustion requirement is also excused when a prisoner can prove with
certainty that the administrative appeal will fail because the challenged
policy or practice has been consistently maintained and defended.
Another exception applies when waiting for the exhaustion of remedies would
require the prisoner to "suffer an unreasonable risk of irreparable harm."
Circumstances fitting these criteria may include when a prisoner is suffering
from severe medical neglect and risks severe physical harm if they wait for
their administrative remedy to exhaust, or if awaiting a transfer would
threaten their personal safety, etc. The prisoner should state on an
emergency 602 why the appeal should be handled on an emergency basis and
submit the appeal directly to the appeals coordinator. It will either be
rejected and returned to the prisoner for regular treatment, or it will be
handled according to the following timetable:
· The informal and or first level is bypassed;
· The second level response must be completed in 5 working days;
· The third level is submitted directly to the appeals coordinator rather
than the CDC Director in Sacramento. The Appeals Coordinator must
then send via facsimile the emergency 602 to the Chief of Inmate
Appeals for the third level review. Third level review must be completed
in 5 working days. 15 CCR Sec. 3084.7(a)(2)(C).
Another form of an emergency 602 may be filed if the 602 challenges a
disciplinary action where time credit is lost, or affects an imminent
Bear in mind, even if these exceptions apply, it is always a good practice
for the prisoner to file an administrative appeal - even while their lawsuit
is pending. Likewise, if the administrative appeal process looks futile, it
is even more important to pursue the "informal" channels like contacting
III. HOW DOES A PRISONER FILE AN ADMINISTRATIVE APPEAL?
An administrative appeal is initiated by a prisoner filling out CDC
Form "602." A copy of a blank 602 form is attached hereto as Exhibit 1.
The rules covering 602's are in Title 15 of the California Code of
Regulations and the CDC Department Operations Manual (DOM). Prisons are
required to have copies of both in the prison law library. According to
CDC's DOM 54100.3, prisoners are required to be informed of the 602 internal
grievance processes upon arrival at the institution.
State law - Title 15, Sec. 30842.1(c) - requires that 602 forms be "readily
available" in all prisons, re-entry facilities, and parole offices.
A prison can attach one additional page to the 602 explaining the grievance
and any supporting documents as well.
Prisoners must date, sign and re-submit the 602 at each level of appeal. A
prisoner's family member, interested party or attorney, however, may assist
in the drafting of the 602.
Can prisoner file a group or "class action" 602?
Yes, prisoners can file a group or "class action" 602 that raises the same
concerns of multiple prisoners. To file a group 602, one prisoner must file
the appeal and behalf of others who are named (with CDC numbers) on the
appeal. The appeal response is provided only to the prisoner who filed the
appeal, and he/she is required to share the response(s) with the
IV. WHAT TYPE OF CLAIMS CAN A 602 RAISE
In theory, "any inmate or parolee under the department's jurisdiction
may appeal and departmental decision, action, condition or policy which they
can demonstrate as having an adverse effect upon their welfare."
This right to file a 602 extends over any issue for which CDC has
control. This right, as explained below, however is not absolute. Prisoner
can have their 602's summarily denied for a number of reasons.
Can CDC retaliate against a prisoner for filing a 602?
In theory and law, no. Under Title 15 Sec. 3084.1(d), no reprisals can be
taken against prisoners who file 602's excluding placing limits on the
number of 602s filed by prisoner who meet the criteria (enumerated below)
for "abuse" of the 602 processes.
What are the rights for non-English speaking prisoners to file a 602?
CDC rules - Title 15 CCR Sec. 3084.1(b) - places an affirmative duty on
prison officials to provide assistance to non-English speaking persons to
"ensure that they too have access to the appeal process." If the prisoner
has a primary language other than English, and their 602 lacks clarity
because of a language barrier, the Appeals Coordinator must arrange an
interview to clarify or complete the appeal.
V. TIME LIMITS ON AN ADMINSTRATIVE APPEAL
When must a prisoner file a 602?
Prisoner generally has 15 working days to file a 602 from the date that
the grievance arose. Working days do not include weekends and holidays.
One exception to the 15-day rule applies for challenges to employee
misconduct for which the prisoner has one year from the date of the
The same 15-day rule applies to appeals to the original 602. Prisoners have
15 days to re-submit an appeal after a response is received. A late-filed
appeal may be rejected. However, the prison does have discretion to accept
a late filed appeal.
If a 602 is rejected for being filed in an untimely manner, the prisoner can
file in court claiming that the administrative remedies were exhausted by
the time barred rejection of the 602 -- although this method of exhaustion
is not recommended.
A late-filed 602 may be excused if the reason for the delay was that a
previous filed 602 was rejected for lack of documentation, and the
documentation was not previously available.
When must CDC respond to a prisoner 602?
Generally, CDC must respond to 602's according to the following timeline:
· 10 working days to complete a response at the first informal level;
· 5 working days for the Appeals Coordinator to assign the appeal to the
appropriate staff and set the due date for the formal first level appeal
· 30 working days to complete a response at the first formal appeal level;
· 20 working days to complete a response at the second level of review (or
30 working days if the first formal level is waived); and
· 60 working days to complete a response at the third level.
(For authority, see 15 CCR Sec.s 3084.6(b) and 3084.5(a)(3).
The time limits begin when the appeals are received by a staff member at
the informal appeal, and when received by the appeals coordinator for all
other appeal levels.
When can CDC delay their response on a 602?
Unfortunately, there all too many circumstances in which CDC can justify
delaying a response to a 602. Delay excuses may be justified when staff or
inmate witnesses are unavailable, when the agency decision is unusually
complex, or if the appeal involves other state agencies or jurisdictions.
What notice does CDC have to provide if a 602 is delayed?
CDC is required to tell a prisoner that his/her 602 response is delayed -
including the reason(s) for the delay and an estimate of the time needed to
complete the review - at the first and second formal appeal levels. At the
third level - often referred to as the "DRB Level" or the "Departmental
Review Board" level, CDC is not required to give the prisoner any excuse for
the delay or a response time estimate.
Given the frequency of delays to the 602 processes, prisoners should keep
careful records of the 602 response times of CDC.
VI. NAVIGATING THROUGH THE 602
In order to exhaust an administrative remedy, a prisoner must move
through four appeal stages:
1. Informal Level
2. First Formal Level
3. Second Formal Level
4. Third "DRB" Formal Level
A prisoner's 602 can be granted at any level, but exhaustion only occurs
if the prisoner reaches the Third "DRB" Formal Level with some exceptions.
1. INFORMAL APPEAL
Prisoners are required to attempt to informally resolve the
grievance directly with the staff member. Hence, the prisoner is first
required to fill out the 602 and present it the staff member responsible for
the challenged conduct or policy. The staff member has 10 working days to
write a response in Part "C" of the 602, sign, and date it and return it to
Not all 602s require the prisoner to seek informal review. The following
is a list of appeals that do not require an informal review:
· Appeals of classification committee actions
· Serious CDC disciplinary rule violations (or CDC 115's)
· Classification staff representative (CSR) actions
· Departmental regulations
· Policies and operational procedures
· Alleged misconduct by a Correctional Officer
· Denial of a Request for Reasonable Modification or Accommodation Request
· Any action "which the appeals coordinator determines cannot be resolved
· Emergency appeals
Any prisoner who believes that their 602 does not require an informal
review should write "Bypass-informal review not required" in Part "C" of the
602 and submit it directly to the institution's appeals coordinator for
Because 602's are not assigned an "appeal number" at the informal level,
602's at this stage are often "lost" or "misplaced." Therefore, it is
crucial for prisoners to document the filing of the 602 (date, time, person)
at this stage.
2. FIRST LEVEL APPEAL
Once the informal level has been completed or waived, the prisoner can
amend the 602 in Part "D" and submit it to the prison's Appeals Coordinator
for formal processing. A prison's Appeals Coordinator must be one staff
member at no less rank than a CC-II. (DOM 54100.3)
Before the appeal is accepted, it is reviewed by the prison's Appeals
Coordinator who "screens" the 602 to make certain it complies with CDC
rules. If the 602 is rejected, the prisoner must be notified of the
reason(s) by delivery of CDC Form 695 "Appeals Screening Form." CDC rules
provide that CDC must "provide clear instructions regarding further action
the inmate must take to qualify the appeal for review."
Appeals can be denied or "screened out" for the following reasons:
· The challenged policy or practice is not within the jurisdiction of CDC
· The appeal is a duplicate, previously reviewed or presently under review
· The appeal challenges an action/decision which has not been implemented or
· The informal review level was not pursued/ completed
· The 602 is incomplete or lacks the necessary accompanying documentation
· The prisoner did not file the 602 in a timely manner.
· A group appeal has not complied with the rules on such appeals
(For authority, see 15 CCR Sec.3084.3(c)(1-8))
602's also may be denied for "abuse" of the 602 process. Abuse of the
602 can also be established by CDC showing that:
· Excessive appeals - defines as "more than one appeal in a seven calendar
day period." If excessive, the first 602 will be processed while the rest
(excluding emergency appeals) will be denied. The appeals coordinator must
then consult with the Chief of Inmate Appeals to determine the course of
action on the suspended appeals.
· Finding of "abuse" results in a limit of one appeal per month for a
consecutive six month period.
· The 602 contains "inappropriate statements" defined as "false information,
obscene, or slanderous statement."
· Excessive verbiage - meaning too wordy or pointless, immaterial
statements. This rule does not apply to non-English speakers.
· The prisoner refuses to cooperate with the appeal reviewer, such as
refusing to be interviewed.
(For authority, see 15 CCR Sec. 3084)
When does a 602 get a "log number" assigned?
If a 602 is cleared as acceptable for review, it will be assigned a "Log
Number" which is used to track the 602 through the appeals process.
What happens at the First Level Appeal?
The prison's appeals coordinator will assign the duty to respond to the 602
to the supervisor of the person who committed the challenged act or policy.
The first level reviewer may not be anyone who participated in the
challenged action/ policy, or anyone who is of lower administrative rank
than any participating staff.
The appeals coordinator can by-pass the first formal level if the issue can
not be resolved by the supervisor.
What are the investigative obligations of the First Level Reviewer?
The first level reviewer is required to personally interview the prisoner
who filed the appeal.
An interview is not required when:
1) The first formal level is bypassed - requiring an interview at the second
2) The appeal is granted
3) The prisoner has been transferred to another prison or released (Unless
it is a disciplinary appeal - in which an interview is discretionary - an
interview must be conducted via telephone).
(If the transferred prisoner is not available for a phone interview, a case
worker at the new prison must conduct the interview and provide a written
report to the appeals coordinator).
How is a decision issued?
The first level reviewer states their decision in writing on Part "E" of
the 602 form. A copy of the decision is placed in the prisoner's Central
File, and the original 602 is returned to the prisoner, along with notice to
the Appeals Coordinator.
Special circumstances that apply to classification decisions:
Of particular importance to SHU prisoners, for challenges to classification
decisions, the first level reviewer may refer a 602 to the classification
committee for review. If done, this is considered a partial grant of the
appeal, and if still dissatisfied with the classification committee's
recommendation, the appeal can be pursued to the second level.
3. SECOND LEVEL APPEALS
A prisoner who is dissatisfied with the decision of the first level can
appeal to the second level by returning the original 602 to the appeals
coordinator, and filling out Part "F" on the 602 explaining why they are
appealing, and by attaching any additional information useful to the appeal.
The second level reviewer must be an institutional head (warden or
superintendent), regional parole administrator, or designee. Such persons
may review their own first level decision.
Although there is space in Part "G" of the 602 for the second level
response, almost all appeals are written on a separate form, where after the
appeals coordinator will log the decision, and return the original appeal to
4. THIRD LEVEL APPEALS
Third level appeals are handled by the Director of CDC, or a designee of
the Director and is done under the direction of the Chief of the Inmate
The prisoner must fill out Part "H" of the 602 indicating the basis for
their dissatisfaction of the second level response. The appeal is then sent
through the US mail to the Director. After review, the Director's response
will be sent to the prisoner minus any documents that the prisoner sent in
support of the appeal (unless the prisoner requests otherwise when the
appeal is submitted).
The third level appeal represents the exhaustion of the administrative
remedies. If still unhappy with the decision, a prisoner can now file a
If the 602 is granted at this level (or a lower level), the warden or
designee has up to 90 calendar days to implement the action or decision
provided such delay does not threaten the safety of any person or prison.
VII. 602's RELATED TO DISCIPLINARY APPEALS
A prisoner can file an administrative appeal to challenge a disciplinary
violation - called a "115" after CDC Form 115. The informal level is
bypassed on a 602 challenging all disciplinary infractions. For serious
infractions, the appeals coordinator also will bypass the first formal
Any "serious" disciplinary violation can be appealed to the Third Level,
while minor offenses or "administrative" disciplinary offenses, or
counseling chronos exhaust at the second level.
A disciplinary appeal must be heard by a person of higher rank than the
person who chaired the disciplinary hearing being challenged.
What is the disposition of a disciplinary 602?
If granted, the charges are dismissed, and the finding of guilt vacated and
a new hearing ordered. If the charges are sustained, the punishment may
stand or be modified.
VIII. CITIZENS COMPLAINTS
Prisoners, and non-prisoners who have had contact with CDC, can file a
special complaint, known as a "Citizens Complaint," challenging a CDC policy
What is a prisoner "citizens complaint?"
A prisoner can file a citizen's complaint against a peace/correctional
officer alleging employee misconduct. The citizen's complaint works much
the same way as a regular 602 with a few exceptions:
· There is a one year, not 15 day, time requirement to file the complaint.
· The informal first level is bypassed.
· The formal first level may be bypassed at the discretion of CDC.
· The 602 - if alleged against a peace officer - must include a signed
Rights and Responsibilities Statement, CDC Form 1858, or else it will be
rejected, unless the Director allows the prisoner to sign Form 1858 at the
appeal interview. Form 1858 ensures that the prisoner knows that it is
illegal to knowingly file a complaint against a peace officer. To do
otherwise is a misdemeanor.
(See Penal Code Sec. 148.6 and 15 CCR Sec. 3084.1(e).
Once filed, the warden or chief deputy warden determines
whether an investigation is warranted. If ordered, investigations are
categorized as either Category I or II. Prisoner and others are notified of
the status and or findings of the investigation(s) only when complete.
If no formal investigation is warranted, the appeal is referred back to the
What kind of "citizen's complaints" can be filed a non-prisoner?
A "citizen's complaint" from a non-prisoner can be filed by writing the
warden of a prison or head administrator of the parole region where the
officer is employed. Non-prisoners also must submit a signed CDC Form 1858.
Complaints by non-prisoners must be answered in 30 days unless there are
If answered, a citizen's complaint will be referred for CDC investigation.
The specific findings are only available upon conclusion of the
investigation. Both complaints and reports must be maintained for 5 years.
IX. OTHER GRIEVANCE CHANNELS:
In addition to or as a compliment to the 602 process, grievances may be
lodged with the following persons/institutions:
1. CDC Ombudsmen
(who is a CDC employee appointed to investigate complaints)
1515 S Street, 5th Floor
Sacramento, CA 95814
2. State Personnel Board
(any non-prisoner may file a complaint against a state employee here)
State Personnel Board
Merit Appeals Office
801 Capitol Mall
Sacramento, CA 94244
3. Office of Internal Affairs
(prisoner or other persons can request investigations of staff misconduct)
Office of Internal Affairs
P.O. Box 3009
Sacramento, CA 95812
4. Office of Inspector General
(especially created to investigate prisoner and youth facility problems)
Office of the Inspector General
801 K Street, Suite 1900
Sacramento, CA 95814
- Board of Controls Claim:
Here is a little known fact that often trips up inmates and their families: prisoners who wish to sue the Department and Corrections & Rehabilitation must first file a “Board of Controls Claim” with a California state agency known as the California Board of Controls. There is a $25 filing fee. Any lawsuit asking for money damages that is filed without first submitting a Board of Controls Claim will be denied.
- Medical Neglect Lawsuits:
Before any doctor can be sued, an inmate (or their family) must first provide “Notice of an Intent to Sue” and submit such to the California Medical Board. The rules for this “notice” are set forth under the California Code of Civil Procedure § 364.
- Obtaining Medical & Prison Records:
Before filing a lawsuit, the prisoner must do his homework. It is imperative to gather and obtain as many relevant and supporting documents as possible prior to filing suit because after the case has begun, the defendants are not likely to share these records. There are variety of means of obtaining medical records or prison c-file records which require release forms. I can be of help in obtaining these records.