Webinar presenter Carrie Hill of the National Sheriffs Association answered a number of your questions after her presentation, "Understanding the Prison Litigation Reform Act: Impacts and Responses." Here are a few of her responses.
Audience Question: Under the three strikes rule, must the entire lawsuit be dismissed or merely one of the claims such as suits filed seeking money damages against defendants and their official capacities?
Carrie Hill: Are you looking at the whole suit or just one part of it as being dismissed? There’re actually some lower courts decisions that are starting to really address that. It goes both ways. We would like to have the whole case, the who issue dismissed. But I'm going to argue even if it's one portion of it, some of the decisions have said no, that's not a full frivolous lawsuit for purposes of the three strikes rule, but again, we are seeing the lower court decisions wrestling with this very particular issue. You and I are going to argue that it should be dismissed in part but again, the lower courts are not seeing that necessarily on the way that I would like them to.
Audience Question: How should we document notification to an inmate regarding the grievance process? Do we need to have them sign something confirming receipt of notification or is it sufficient for an officer to document this notification?
Carrie Hill: I think there's a couple of ways to do it. One, I do think it's very important that we have a practice that its released in the same way every single time. We hand it to the inmate. Ideally, have it signed by the inmate or it's enough that the officer sign it in the presence of the inmate. If you're doing it electronically, when they open it, one would argue that it has been received. If you're doing it through paper, you can have them sign. If the inmate refuses, then the deputy/officer, they could just sign. But by all means, please let them know the next steps. It's in the document itself whether electronic or paper that it should state the next step. I'd also recommend, I can't give you legal advice, but that you tell the inmate the next steps verbally as well.
Audience Question: If security is made aware of medical grievances, do we need to be concerned about HIPAA implications?
Carrie Hill: If I understand it correctly, the answer is yes. We know that medical has received certain grievances and that is why I want to be a part of the process. I know people argue HIPAA – about the electronic transfer of electronic records. Understanding that we have a law enforcement exemption. But between the Sheriff's Office or the jail owns the medical records unless you are, like in some jurisdictions the county provides it. There are a few cases of that in California and Minnesota, and that's a little bit different. But regardless of this, somebody from the agency has that need to know so that you can see whether or not there's an issue or not. Again, not getting into a specific jurisdiction, but the security side of the house was not following and tracking any of the medical grievances. They were just relying on the medical providers and ultimately it can lead to a class action lawsuit. The inmates had been grieving the fact that they weren't being seen timely, they weren't referred. So, I want you a part of that process, doesn't mean everybody has to be, but definitely somebody – a lieutenant or captain to oversee that so at least we have some type of accountability. But remember, we have a duty to protect, we have a need to know and I want to make sure that my medical providers are doing what they're supposed to be doing. If not, at the end of the day, it's our job to provide medical care. How we provide it is irrelevant to the court. The liability will rest with the sheriff and/or the director of the facility.
Audience Question: Does the PLRA address situations where the family brings a lawsuit against the facility for an inmate who died during custody?
Carrie Hill: I'm going to argue at that point, the inmate can exhaust. This is all about the inmate exhausting. I would argue that the family doesn't have to exhaust, right. It would be very attuned to an inmate being moved to a different facility. They don't have to necessarily exhaust because they're somewhere else. So, I would argue in this case, unless I missed something that the family can file that lawsuit directly in federal court. But this brings up a really good point. If you have an inmate who is released and they have filed a grievance, my recommendation to you is to finish that grievance, that process, mail it to the inmate. So, again, we don't have these issues of 'it wasn't resolved'. You absolutely want it to close things out from our end. Mail a copy out, keep a copy in the file. I think that's very important as well.
The reason why I love these questions is you get me thinking as well. Doesn't mean I have all the answers, some of you might be going, "No Carrie, that's right," or "That's wrong." I can't give you legal advice but how I would work through it, I could see that family filing directly in federal court. If there had been a grievance, regardless, make sure that it was responded to, so that if the inmate leaves, not in a death situation, but when an inmate leaves, make sure that we're completing it in the file and a copy sent to the inmate.
Click Here to Watch a Recording of "Understanding the Prison Litigation Reform Act: Impacts and Responses."