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THE FDOC PRISONER INVESTIGATION PROCEDURE

THE FDOC PRISONER INVESTIGATION PROCEDURE (By Melvin Perez). This article will outline the prisoner investigation procedure, dispel many notions prisoners have concerning same, and point out remedies a prisoner can pursue should DOC officials fail to follow their own rules governing prisoner investigations. Florida Administrative Code (hereinafter FAC), 33-602.220(3)(e)(1)-(4) provides a number of reasons for which a prisoner can be placed in administrative confinement (AC) pending investigation. These are the following: 1) pending an evaluation for placement in close management. 2) Special review against other inmates, disciplinary, program change or management transfer. Transfers for this reason shall be given priority. 3) Pending an investigation into allegations that the inmate is in fear of a staff member. The protection process outlined in subsection (d) above shall be utilized for this purpose. Paragraph (c) above shall not apply. 4) Any other reason when the facts indicate that the inmate must be removed from the general inmate population for the safety of any inmate or group of inmates or for the security of the institution. AC is defined in 33-602.220(2)(a) as "a temporary confinement status that may limit conditions and privileges as provided in subsection (5) as a means of promoting the security, order and effective management of the institution. Otherwise the treatment of the inmates in AC shall be as near to that of the general population as assignment to AC shall permit. Any deviation shall be fully documented as set forth in the provisions of this rule." While this rule may sound good to many, we who have been there know that this is merely wishful thinking. The beatings, gassing, and atrocities that are carried out by some guards in these units have been well documented. But much more remains to be addressed. Rule 33-602.220(3)(e) provides that the investigating officer shall have the authority to request that the senior correctional officer place the prisoner in AC for this reason. Further, when a decision is made to place a prisoner in AC, the reason for such placement shall be explained to the prisoner and the prisoner shall be given an opportunity to present verbal comments on the matter. The prisoner shall also be allowed to submit a written statement. See: 33-602.220(2)(b). However, this rarely takes place. Subsection 220(2)(c) states that the Institutional Classification Team ("ICT") shall review prisoners in AC within 72 hours. The only exception to being reviewed within 72 hours is when the ICT cannot complete its review within the allotted timeframe due to a holiday. If the review cannot be completed within 72hours, the action of the senior correctional officer shall be reviewed within 72 hours by the duty warden, documented on the DC6-229, Daily Record of Special Housing, and evaluated within five days by the ICT. INVESTIGATION TIME FRAMES. Under 33-602.220(3)(e) " the length of time spent in this status shall not exceed 15 working days unless one 5 working day extension is granted by the ICT. This extension shall be documented on the Daily Record of Special Housing." Keep in mind, that the ICT must grant this extension. ICT refers to the team consisting of the warden or assistant warden, classification supervisor, a correctional officer chief, and other members as necessary when appointed by the warden or designated by rule. See: 33-602.220(1)(h). This means that the security threat group coordinator or administrative lieutenant cannot grant this extension, only the ICT. After this first extension, if it is necessary to continue the prisoner's confinement, written authorization must be obtained from the State Classification Office ("SCO") for a 30 day extension. This authorization shall be attached to the DC6-229. The SCO shall have the authority to authorize one additional 30 day extension. See: 33-602.220(3)(e). This means 5 days plus 30 days. You should always challenge a 30 day extension since the SCO almost never grants the 30 day extension. Most times a staff member at the institution just tells you that the extension was granted to keep you in confinement when it was never approved. And remember the extension can only come from the SCO and must be attached to the 229, not just written in by institutional staff. If it is not attached it was not approved. Which means that a staff member made a false report or submitted inaccurate information on a state document which is a Third Degree Felony punishable by up to 5 YEARS in State Prison. SCO refers to a staff member at the central office level who is responsible for the review of prisoner classification decisions. Duties include approving or rejecting ICT recommendations. See: 602.220(1)(i).If the prisoner remains in AC after the 15 working day limitation period, he or she should ask any ICT member (via request or confinement visits) if an extension beyond the 15 days limits was granted by the ICT. If one was granted, and the prisoner remains in AC after the five days extension, the prisoner should ask, if an extension beyond the five days was granted by the SCO. This can be done by submitting a request to any ICT member or by asking the AC officer or sergeant since the DC6-229, is at the AC unit and the additional extension must be attached thereto. During any part of this process, if a prisoner feels or is able to prove that DOC officials have failed to follow their own rules and such has caused the prisoner to spend much more time in AC than DOC rules call for, the prisoner may pursue administrative remedies. ADMINISTRATIVE REMEDIES. Prisoners may challenge their continued retention in AC under FAC, 33-103.005. The first step in this type of issue, is to file an informal grievance. An informal grievance shall be submitted to the staff member who is responsible in the particular area of the problem. See:33-103.005(1). In this case, that would be the investigating officer (the inspector), who requested the prisoner to be placed in AC. Arguments a prisoner should consider raising when filing the informal grievance are: 1) That the ICT never approved the five days extension or the SCO the thirty day extension. 2) That the time has passed for such extensions and the prisoner remains in AC. 3) That no security issues justify the prisoner's continued AC retention. 4) That mandatory language and substantive predicates in DOC rules, create a liberty interest for the prisoner to remain in the general population, rather than in AC or 5) That DOC has failed to follow their own rules and the prisoner should be released from AC for such failure. The above grounds are just examples of issues a prisoner can raise. However, some may or may not apply depending on the particular circumstances that are present. Prisoners should raise any other issue that may provide a basis for relief. MANDATORY LANGUAGE AND SUBSTANTIVE PREDICATES. If the prisoner is raising this argument, he should consider the ruling in MaQueen v. Tabah, 839 F.2d 1525 (11th Cir. 1988), which held in relevant part that "mandatory language and substantive predicates in department of corrections rules and regulations concerning administrative segregation... create for inmates a liberty interest in remaining in the general prison population..." Importantly, a rule or regulation creates a liberty interest if it limits the discretion of official. See: Kentucky Dept. of Corrections v. Thompson, 490 U.S.454, 462 (1989). The most common way of limiting discretion is to use "explicitly mandatory language in connection with requiring substantive predicates." See: Hewitt v. Helms, 459 U.S. 460, 472, (1983). Mandatory language often means words like shall, will, or must. See: Flewitt, supra, at 467. Substantive predicates are substantive limitations on official discretion. See: Olim v Wakinekona, 461 U.S. 238, 249 (1983). They can also be procedures or standards that guide decision makers. See: Connecticut Board of Pardons v. Dumschat, 452 U.S. at 467. GRIEVANCES. For more information on the grievances procedure see CH 33-103. But in short, you have 20 days to file an informal grievance. After the denial you must attached the grievance and response to a DC303 form to file to the next step. You have 15 days from the response. If you have to go to central office you do the same. Attach all the prior grievances and responses. You also have 15 days. Judicial remedies on this issue will not be discussed in this article , since the likelihood that the prisoner will still be in AC by the time he or she goes through this process is unlikely. Prisoners should also note, that grievances filed through an official grievance procedure are constitutionally protected. See: Williams v Meese, 926 F.2d 994, 998 (10th Cir.1999). Further, that retaliation against prisoner for pursuing grievance violates right to petition government for redress of grievances guaranteed by first and fourteenth amendments and is actionable under the civil rights code 42 U.S.C. 1983. See: Gayle v. Lucas,133 F.Supp. 2d 266 (S.D.N.Y. 2001). Likewise, a prisoner has a right not to be subject to bogus disciplinary reports in retaliation for his exercise of a constitutional right. See: Nunez v Good, 172 F.Supp. 2d 417 (S.D.N.Y. 2001). While retaliation is used by some DOC staff as a tool to discourage prisoners from filing grievances as shown above, it is contrary to DOC rules and clearly established decisional law. That means that the law imposes a duty on all DOC staff not to retaliate against any prisoner for filing grievances or lawsuit. And if DOC staff violates that law they can be sued and be subject to discipline as outlined in Chapter 33-103.017 which states in pertinent part "Staff found to be obstructing an inmate's access to the grievance process shall be subject to disciplinary action ranging from oral reprimand up to dismissal in accordance with Rules 33-208.001-.003,FAC. Hopefully, the information provided in this article, has cleared many misconceptions people have concerning the prisoner investigation procedure, and will be very useful to law clerks and other prisoners' rights advocates providing assistance to a prisoner with this type of issue.




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