[Title 28 CFR 40]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 40 - STANDARDS FOR INMATE GRIEVANCE PROCEDURES]
[From the U.S. Government Printing Office]


28JUDICIAL ADMINISTRATION12002-07-012002-07-01false40PART 40JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 40--STANDARDS FOR INMATE GRIEVANCE PROCEDURES--Table of Contents




      Subpart A--Minimum Standards for Inmate Grievance Procedures

Sec.
40.1  Definitions.
40.2  Adoption of procedures.
40.3  Communication of procedures.
40.4  Accessibility.
40.5  Applicability.
40.6  Remedies.
40.7  Operation and decision.
40.8  Emergency procedure.
40.9  Reprisals.
40.10  Records--nature; confidentiality.

    Subpart B--Procedures for Obtaining Certification of a Grievance 
                                Procedure

40.11  Submissions by applicant.
40.12  Notice of intent to apply for certification.
40.13  Review by the Attorney General.
40.14  Conditional certification.
40.15  Full certification.
40.16  Denial of certification.
40.17  Reapplication after denial of certification.
40.18  Suspension of certification.
40.19  Withdrawal of certification.
40.20  Contemplated change in certified procedure.
40.21  Notification of court.
40.22  Significance of certification.

    Authority: 42 U.S.C. 1997e.

    Source: Order No. 957-81, 46 FR 48186, Oct. 1, 1981, unless 
otherwise noted.



      Subpart A--Minimum Standards for Inmate Grievance Procedures



Sec. 40.1  Definitions.

    For the purposes of this part--
    (a) Act means the Civil Rights of Institutionalized Persons Act, 
Public Law 96-247, 94 Stat. 349 (42 U.S.C. 1997).
    (b) Applicant means a state or political subdivision of a state that 
submits to the Attorney General a request for certification of a 
grievance procedure.
    (c) Attorney General means the Attorney General of the United States 
or the Attorney General's designees.
    (d) Grievance means a written complaint by an inmate on the inmate's 
own behalf regarding a policy applicable within an institution, a 
condition in an institution, an action involving an inmate of an 
institution, or an incident occurring within an institution. The term 
``grievance'' does not include a complaint relating to a parole 
decision.
    (e) Inmate means an individual confined in an institution for 
adults, who has been convicted of a crime.
    (f) Institution means a jail, prison, or other correctional 
facility, or pretrial detention facility that houses adult inmates and 
is owned, operated, or managed by or provides services on behalf of a 
State or political subdivision of a State.
    (g) State means a State of the United States, the District of 
Columbia, the commonwealth of Puerto Rico, or any of the territories and 
possessions of the United States.
    (h) Substantial compliance means that there is no omission of any 
essential part from compliance, that any omission consists only of an 
unimportant defect or omission, and that there has been a firm effort to 
comply fully with the standards.



Sec. 40.2  Adoption of procedures.

    Each applicant seeking certification of its grievance procedure for 
purposes of the Act shall adopt a written grievance procedure. Inmates 
and employees shall be afforded an advisory role in the formulation and 
implementation of a grievance procedure adopted after the effective date 
of these regulations, and shall be afforded an advisory role in 
reviewing the compliance with the standards set forth herein of a 
grievance procedure adopted prior to the effective date of these 
regulations.



Sec. 40.3  Communication of procedures.

    The written grievance procedure shall be readily available to all 
employees and inmates of the institution. Additionally, each inmate and 
employee shall, upon arrival at the institution, receive written 
notification and an oral explanation of the procedure,

[[Page 750]]

including the opportunity to have questions regarding the procedure 
answered orally. The written procedure shall be available in any 
language spoken by a significant portion of the institution's 
population, and appropriate provisions shall be made for those not 
speaking those languages, as well as for the impaired and the 
handicapped.



Sec. 40.4  Accessibility.

    Each inmate shall be entitled to invoke the grievance procedure 
regardless of any disciplinary, classification, or other administrative 
or legislative decision to which the inmate may be subject. The 
institution shall ensure that the procedure is accessible to impaired 
and handicapped inmates.



Sec. 40.5  Applicability.

    The grievance procedure shall be applicable to a broad range of 
complaints and shall state specifically the types of complaints covered 
and excluded. At a minimum, the grievance procedure shall permit 
complaints by inmates regarding policies and conditions within the 
jurisdiction of the institution or the correctional agency that affect 
them personally, as well as actions by employees and inmates, and 
incidents occurring within the institution that affect them personally. 
The grievance procedure shall not be used as a disciplinary procedure.



Sec. 40.6  Remedies.

    The grievance procedure shall afford a successful grievant a 
meaningful remedy. Although available remedies may vary among 
institutions, a reasonable range of meaningful remedies in each 
institution is necessary.



Sec. 40.7  Operation and decision.

    (a) Initiation. The institution may require an inmate to attempt 
informal resolution before the inmate files a grievance under this 
procedure. The procedure for initiating a grievance shall be simple and 
include the use of a standard form. Necessary materials shall be freely 
available to all inmates and assistance shall be readily available for 
inmates who cannot complete the forms themselves. Forms shall not demand 
unnecessary technical compliance with formal structure or detail, but 
shall encourage a simple and straightforward statement of the inmate's 
grievance.
    (b) Inmate and employee participation. The institution shall provide 
for an advisory role for employees and inmates in the operation of the 
grievance system. In-person hearings and committees consisting of either 
inmates or employees or both are not required by this paragraph, but 
they are permitted so long as no inmate participates in the resolution 
of any other inmate's grievance over the objection of the grievant.
    (c) Investigation and consideration. No inmate or employee who 
appears to be involved in the matter shall participate in any capacity 
in the resolution of the grievance.
    (d) Reasoned, written responses. Each grievance shall be answered in 
writing at each level of decision and review. The response shall state 
the reasons for the decision reached and shall include a statement that 
the inmate is entitled to further review, if such is available, and 
shall contain simple directions for obtaining such review.
    (e) Fixed time limits. Responses shall be made within fixed time 
limits at each level of decision. Time limits may vary between 
institutions, but expeditious processing of grievances at each level of 
decision is essential to prevent grievance from becoming moot. Unless 
the grievant has been notified of an extension of time for a response, 
expiration of a time limit at any stage of the process shall entitle the 
grievant to move to the next stage of the process. In all instances 
grievances must be processed from initiation to final disposition within 
180 days, inclusive of any extensions.
    (f) Review. The grievant shall be entitled to review by a person or 
other entity, not under the institution's supervision or control, of the 
disposition of all grievances, including alleged reprisals by an 
employee against an inmate. A request for review shall be allowed 
automatically without interference by

[[Page 751]]

administrators or employees of the institution and such review shall be 
conducted without influence or interference by administrators or 
employees of the institution.

[Order No. 957-81, 46 FR 48186, Oct. 1, 1981, as amended by Order No. 
1618-92, 57 FR 38773, Aug. 27, 1992; Order No. 1955-95, 60 FR 13902, 
Mar. 15, 1995]



Sec. 40.8  Emergency procedure.

    The grievance procedure shall contain special provision for 
responding to grievances of an emergency nature. Emergency grievances 
shall be defined, at a minimum, as matters regarding which disposition 
according to the regular time limits would subject the inmate to a 
substantial risk of personal injury, or cause other serious and 
irreparable harm to the inmate. Emergency grievances shall be forwarded 
immediately, without substantive review, to the level at which 
corrective action can be taken. The procedure for resolving emergency 
grievances shall provide for expedited responses at evey level of 
decision. The emergency procedure shall also include review by a person 
or entity not under the supervision or control of the institution.



Sec. 40.9  Reprisals.

    The grievance procedure shall prohibit reprisals. ``Reprisal'' means 
any action or threat of action against anyone for the good faith use of 
or good faith participation in the grievance procedure. The written 
procedure shall include asurance that good faith use of or good faith 
participation in the grievance mechanism will not result in formal or 
informal reprisal. An inmate shall be entitled to pursue through the 
grievance procedure a complaint that a reprisal occurred.



Sec. 40.10  Records--nature; confidentiality.

    (a) Nature. Records regarding the filing and disposition of 
grievances shall be collected and maintained systematically by the 
institution. Such records shall be preserved for at least three years 
following final disposition of the grievance. At a minimum, such records 
shall include aggregate information regarding the numbers, types and 
dispositions of grievances, as well as individual records of the date of 
and the reasons for each disposition at each stage of the procedure.
    (b) Confidentiality. Records regarding the participation of an 
individual in the grievance proceedings shall be considered confidential 
and shall be handled under the same procedures used to protect other 
confidential case records. Consistent with ensuring confidentiality, 
staff who are participating in the disposition of a grievance shall have 
access to records essential to the resolution of the grievance.



    Subpart B--Procedures for Obtaining Certification of a Grievance 
                                Procedure



Sec. 40.11  Submissions by applicant.

    (a) Written statement. An application for certification of a 
grievance procedure under the Act shall be submitted to the Office of 
the Attorney General, U.S. Department of Justice, Main Justice Building, 
Washington, DC 20530, and shall include a written statement describing 
the grievance procedure, a brief description of the institution or 
institutions covered by the procedure, and accompanying plans for or 
evidence of implementation in each institution.
    (b) Evidence of compliance with established standards. An applicant 
seeking certification of a grievance procedure as being in substantial 
compliance with the standards promulgated herein should submit evidence 
of compliance with those standards, including the following information:
    (1) Instructional materials. A copy of the instructional materials 
for inmates and employees regarding use of the grievance procedure 
together with a description of the manner in which such materials are 
distributed, a description of the oral explanation of the grievance 
procedure, including the circumstances under which it is delivered, and 
a description of the training, if any, provided to employees and inmates 
in the skills necessary to operate the grievance procedure.
    (2) Form. A copy of the form used by inmates to initiate a grievance 
and to obtain review of the disposition of a grievance.

[[Page 752]]

    (3) Information regarding past compliance. For a grievance procedure 
that has operated for more than one year at the time of the application, 
the applicant shall submit information regarding the number and types of 
grievances filed over the preceding year, the disposition of the 
grievances with sample responses from each level of decision, the 
remedies granted, evidence of compliance with time limits at each level 
of decision, and a description of the role of inmates and employees in 
the formulation, implementation, and operation of the grievance 
procedure.
    (4) Plan for collecting information. For a grievance procedure that 
has operated for less than one year at the time of the application, the 
applicant shall submit a plan for collecting the information described 
in paragraph (b)(3) of this section.
    (5) Assurance of confidentiality. A description of the steps taken 
to ensure the confidentiality of records of individual use of or 
participation in the grievance procedure.
    (6) Evaluation. A description of the plans for periodic evaluation 
of the grievance procedure, including identification of the group, 
individuals or individual who will conduct the evaluation and 
identification of the person or entity not under the control of 
supervision of the institution who will review the evaluation, together 
with two copies of the most recent evaluation, if one has been 
performed.
    (c) Fair and effective procedures. The Attorney General shall also 
certify a grievance procedure under the Act, even if the procedure is 
not in substantial compliance with the standards promulgated herein, if 
the Attorney General determines that the procedure is otherwise fair and 
effective for the consideration and disposition of grievances filed by 
inmates. If a grievance procedure is not in substantial compliance with 
all standards herein, the applicant shall identify the aspects in which 
the procedure is in substantial compliance and those in which it is not, 
describe the other relevant features of the procedure, and explain why 
the procedure is otherwise fair and effective.

[Order No. 1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.12  Notice of intent to apply for certification.

    The applicant shall post notice of its intent to request 
certification in prominent places in each institution to be covered by 
the procedure and shall provide similar written notice to the U.S. 
District Court(s) having jurisdiction over each institution to be 
covered by the procedure. The notices shall invite comments regarding 
the grievance procedure and direct them to the Attorney General.



Sec. 40.13  Review by the Attorney General.

    The Attorney General shall review and respond to each application as 
promptly as the circumstances, including the need for independent 
investigation and consideration of the comments of agencies, and 
interested groups and persons, permit.



Sec. 40.14  Conditional certification.

    If, in the judgment of the Attorney General, a grievance procedure 
that has been in existence less than one year is at the time of 
application in substantial compliance with the standards promulgated 
herein or is otherwise fair and effective, the Attorney General shall 
grant conditional certification for one year or until the applicant 
satisfies the requirements of Sec. 40.15, whichever period is shorter.

[Order No. 1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.15  Full certification.

    If, in the judgment of the Attorney General, a grievance procedure 
that has been in existence longer than one year at the time of 
application is in substantial compliance with the standards promulgated 
herein or is otherwise fair and effective, the Attorney General shall 
grant full certification. Such certification shall remain in effect 
unless and until the Attorney General finds reasonable cause to believe 
that the grievance procedure is no longer in substantial compliance with 
the minimum standards or is no longer fair and effective, and so 
notifies the applicant in writing.

[Order No. 1955-95, 60 FR 13903, Mar. 15, 1995]

[[Page 753]]



Sec. 40.16  Denial of certification.

    If the Attorney General finds that the grievance procedure is not in 
substantial compliance with the standards promulgated herein or is no 
longer fair and effective, the Attorney General shall deny certification 
and inform the applicant in writing of the area or areas in which the 
grievance procedure or the application is deemed inadequate.

[Order No. 1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.17  Reapplication after denial of certification.

    An applicant denied certification may resubmit an application for 
certification at any time after the inadequacy in the application or the 
grievance procedure is corrected.



Sec. 40.18  Suspension of certification.

    (a) Reasonable belief of non-compliance. If the Attorney General has 
reasonable grounds to believe that a previously certified grievance 
procedure may no longer be in substantial compliance with the minimum 
standards or may no longer be fair and effective, the Attorney General 
shall suspend certification. The suspension shall continue until such 
time as the deficiency is corrected, in which case certification shall 
be reinstated, or until the Attorney General determines that substantial 
compliance no longer exists or that the procedure is no longer fair and 
effective, in which case, except as provided in paragraph (b) of this 
section, the Attorney General shall withdraw certification pursuant to 
Sec. 40.19 of this part.
    (b) Defect may be readily remedied; good faith effort. If the 
Attorney General determines that a grievance procedure is no longer in 
substantial compliance with the minimum standards or is no longer fair 
and effective, but has reason to believe that the defect may be readily 
corrected and that good faith efforts are underway to correct it, the 
Attorney General may suspend certification until the grievance procedure 
returns to compliance with the minimum standards or is otherwise fair 
and effective.
    (c) Recertification after suspension pursuant to paragraph (a) of 
this section. The Attorney General shall reinstate the certification of 
an appliant whose certification was suspended pursuant to paragraph (a) 
of this section upon a demonstration in writing by the applicant that 
the specific deficiency on which the suspension was based has been 
corrected or that the information that caused the Attorney General to 
suspend certification was erroneous.
    (d) Recertification after suspension pursuant to paragraph (b) of 
this section. The Attorney General shall reinstate the certification of 
an applicant whose certification has been suspended pursuant to 
paragraph (b) of this section upon a demonstration in writing that the 
deficiency on which the suspension was based has been corrected.
    (e) Notification in writing of suspension or reinstatement. The 
Attorney General shall notify an applicant in writing that certification 
has been suspended or reinstated and state the reasons for the action.

[Order No. 957-81, 46 FR 48186, Oct. 1, 1981, as amended by Order No. 
1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.19  Withdrawal of certification.

    (a) Finding of non-compliance. If the Attorney General finds that a 
grievance procedure is no longer in substantial compliance with the 
minimum standards or is no longer otherwise fair and effective, the 
Attorney General shall withdraw certification, unless the Attorney 
General concludes that suspension of certification under Sec. 40.18(b) 
of this part is appropriate.
    (b) Notification in writing of withdrawal of certification. The 
Attorney General shall notify an applicant in writing that certification 
has been withdrawn and state the reasons for the action.
    (c) Recertification after withdrawal. An applicant whose 
certification has been withdrawn and who wishes to receive 
recertification shall submit a new application for certification.

[Order No. 957-81, 46 FR 48186, Oct. 1, 1981, as amended by Order No. 
1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.20  Contemplated change in certified procedure.

    A proposed change in a certified procedure must be submitted to the 
Attorney General thirty days in advance of

[[Page 754]]

its proposed effective date. The Attorney General shall review such 
proposed change and notify the applicant in writing before the effective 
date of the proposed change if such change will result in suspension or 
withdrawal of the certification of the grievance procedure.



Sec. 40.21  Notification of court.

    The Attorney General shall notify in writing the Chief Judges of the 
U.S. Court of Appeals and of the U.S. District Court(s) within whose 
jurisdiction the applicant is located of the certification, suspension 
of certification, withdrawal of certification and recertification of the 
applicant's grievance procedure. The Attorney General shall also notify 
the court of the certification status of any grievance procedure at the 
request of the court or any party in an action by an adult inmate 
pursuant to 42 U.S.C. 1983.



Sec. 40.22  Significance of certification.

    Certification of a grievance procedure by the Attorney General shall 
signify only that on the basis of the information submitted, the 
Attorney General believes the grievance procedure is in substantial 
compliance with the minimum standards or is otherwise fair and 
effective. Certification shall not indicate approval of the use or 
application of the grievance procedure in a particular case.

[Order No. 1955-95, 60 FR 13904, Mar. 15, 1995]