Cal. Code Regs. tit. 15 § 3485

Current through Register 2024 Notice Reg. No. 45, November 8, 2024

Section 3485 - Appeal Review

(a) The Reviewing Authority for the Office of Appeals shall designate at least one official to assess each written appeal within one business day of receipt to determine if it contains information concerning an imminent risk to personal safety, to institutional security, or of sexual abuse, including acts of sexual misconduct as defined by the federal Prison Rape Elimination Act and the California Sexual Abuse in Detention Elimination Act. In addition, the official shall assess if the grievance alleges that the claimant's Earliest Possible Release Date (EPRD) is erroneous and the claimant is scheduled to be released within 90 calendar days of the date the appeal was received by the Office of Appeals. In all instances described above, the official shall refer the matter to the Institutional or Regional Office of Grievances where the majority of the facts and circumstances that gave rise to the claim occurred to be handled pursuant to subsection 3483(a).

(b) If the Office of Appeals determines that a claim involved staff misconduct and that claim was not referred to the appropriate authority to gather relevant facts according to subsection 3482(b), then the Office of Appeals shall grant that claim and order the Centralized Screening Team to refer the allegation to the appropriate authority to gather relevant facts.

(c) The appeal Coordinator shall acknowledge receipt of each appeal to the claimant in writing within four business days of its receipt indicating the date the appeal was submitted, the date the appeal was received, the calculated date for the department's response, and whether the appeal was disallowed pursuant to subsection 3484(d)(3).

(d) The appeal Coordinator shall ensure that all routine claims appealed by the claimant to the Office of Appeals are reviewed and answered in accordance with this section.

(e) The full record of each claim shall be made available to the Office of Appeals for purposes of conducting its reviews. The record shall include the claimant's grievance, the claimant's appeal, both acknowledgment letters, all related interviews conducted for the Institutional or Regional Office of Grievances, any relevant documentation prepared for the Office of Grievances, any records contained in the department's information technology system, and all department rules and memoranda. The record shall not include any new information provided by the claimant to the Office of Appeals that was not made available to the Office of Grievances for their review.

(f) The Reviewing Authority shall exclude any individual whose personal interaction with the claimant forms part of the claim from participating in the appeal process as to that claim. If the individual in question is the Associate Director of the Office of Appeals, then the Director from the Division of Correctional Policy Research and Internal Oversight shall serve as the Reviewing Authority for that claim.

(g) The appeal Coordinator shall ensure that a written appeal decision is completed no later than 60 calendar days after receipt of the appeal, unless other statutory or regulatory authority requires a response in less than 60 calendar days, and contains one of the following decisions as to each claim in the appeal:

(1) "Denied," meaning that:

(A) the Reviewing Authority found by a preponderance of the evidence available that the decision by the Institutional or Regional Office of Grievances pursuant to subsections 3483(g)(1) or (2) was proper; or

(B) the appeal Coordinator found by a preponderance of the evidence available that the decision by the Institutional or Regional Office of Grievances pursuant to subsections 3483(g)(3) through (10) was proper;

(2) "Granted," meaning that:

(3) "No Jurisdiction," meaning that the claim concerns a policy, decision, action, condition, or omission by an independent entity which requires that the claimant file a grievance with that entity, as described in subsection 3481(e);

(4) "Redirected," meaning that a request for records maintained solely by the Office of Appeals that is made pursuant to the California Public Records Act or the California Information Practices Act shall be redirected to the Public Records Act Coordinator at the Office of Appeals;

(5) "Reassigned," meaning that the claim will be reassigned to the appropriate authority described below because it fits one of the following circumstances:

(A) A claim which was not first submitted in a grievance to an Institutional or Regional Office of Grievances shall be reassigned to the Institutional or Regional Office of Grievances where a majority of the facts and circumstances that gave rise to the claim occurred. The Office of Grievances that is presented with the reassigned claim shall treat the claim as submitted on the date the Office of Appeals received it.

(B) A claim which was first submitted in a grievance but not answered by an Institutional or Regional Office of Grievances shall be reassigned to the Institutional or Regional Office of Grievances where a majority of the facts and circumstances that gave rise to the claim occurred. The Office of Grievances that is presented with the reassigned claim shall treat the claim as submitted on the date that the claim was first received but not answered by an Institutional or Regional Office of Grievances.

(C) A request to implement a remedy shall be reassigned to the Remedies Compliance Coordinator referred to in subsection (j)(2).

(6) "Rejected," meaning that the claim will be rejected because it fits one or more of the following circumstances:

(A) the claimant did not submit the claim within the time constraints required by subsection 3484(b);

(B) the claim concerns an anticipated policy, decision, action, condition, or omission by the department or departmental staff;

(C) the claim is substantially duplicative of a prior claim by the same claimant, unless the prior claim was rejected as anticipatory pursuant to subsection (B);

(D) the claim concerns harm to a person other than the person who signed the appeal;

(E) the claim disputes or contravenes the regulatory framework for the grievance and appeal process itself (specifically, Title 15, Subchapter 5.1, Article 1, Administrative Remedies for Incarcerated and Supervised Persons);

(7) "Disallowed," meaning the appeal package will be discarded because it was contaminated with organic, toxic, or hazardous materials that may threaten staff safety or institutional security;

(8) "Identified as Staff Misconduct," meaning that the claim involves an allegation of staff misconduct and was referred to the appropriate authority for the gathering of relevant facts, resulting in exhaustion of the administrative remedies process for the claim;

(9) "Pending Legal Matter," meaning that the substance of the claim concerns pending litigation by a party other than the claimant (excluding class action litigation), pending legislation, or pending regulatory action, resulting in exhaustion of the administrative remedies process for the claim; or

(10) "Time Expired," meaning that the department was not able to respond to the claim within 60 calendar days, resulting in the grievance level decision serving as the department's final decision and exhaustion of the administrative remedies process for the claim.

(h) If a claim is rejected as untimely under subsection (g)(6)(A), the appeal decision shall also include the following dates as determined by the appeal Coordinator: the date the claim was discovered, the date the claim was submitted, the date the claim was received, and the time constraint for submission of the claim pursuant to subsection 3484(b). A claim that is rejected as untimely by the Office of Grievances may not be appealed by the claimant.

(i) The written appeal decision shall be sent to the claimant within two business days of completing the written appeal decision letter. If the Reviewing Authority or appeal Coordinator grants a claim, then a copy of the decision shall be simultaneously sent to the appropriate Institutional or Regional Grievance Coordinator.

(j) Implementation of remedy.

(1) If the Office of Appeals grants a claim, then the Institutional or Regional Reviewing Authority shall ensure that the corresponding remedy is implemented no later than 30 calendar days after the decision was sent to the claimant, unless:

(A) the remedy requires the disbursement of funds, in which case the remedy shall be implemented no later than 90 calendar days after the decision was sent to the claimant; or

(B) the remedy requires budget authorization outside the department's existing authority, in which case the remedy shall be implemented no later than one year after the decision was sent to the claimant.

(2) If the remedy has not been implemented and the applicable time constraint has passed, then the claimant may submit a CDCR Form 602-3 directly to the Remedies Compliance Coordinator by regular mail sent to the "Remedies Compliance Coordinator, Department of Corrections and Rehabilitation, P.O. Box 942883, Sacramento, California 95811." Correspondence directed to this address shall not be opened by any departmental staff other than those in the Office of Appeals.

(k) Additional local processes and procedures may be promulgated by the Office of Appeals so long as they are consistent with this Article, pursuant to PC section 5058(c)(1).

(l) Exhaustion.

(1) Completion of the review process by the Office of Appeals resulting in a decision of "denied," "granted," "no jurisdiction," "identified as staff misconduct," "pending legal matter," or "time expired" in accordance with subsections (g)(1) through (g)(3) and (g)(8) through (g)(10) of this section constitutes exhaustion of all administrative remedies available to a claimant within the department.

(2) Completion of the review process by the Office of Appeals resulting in a decision to "redirect," "reassign," or "reject" a claim in accordance with subsections (g)(4) through (g)(6) of this section does not constitute exhaustion of all administrative remedies available to a claimant within the department. Nor does completion of the review process resulting in a "disallowed" decision in accordance with subsection (g)(7) of this section because the claimant may submit a new grievance regarding the same claim or claims so long as it is submitted within the time constraints set forth in subsection 3484(b).

Cal. Code Regs. Tit. 15, § 3485

Note: Authority cited: Section 5058, Penal Code. Reference: Sections 832.5 and 5054, Penal Code; and Section 35.107, Title 28, Code of Federal Regulations.

1. Renumbering and amendment of former section 3483 to new section 3485 and new form CDC 1872 filed 9-13-2005; operative 9-13-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 37).
2. Amendment of subsections (i)(2)-(3) filed 10-18-2007 as an emergency; operative 10-18-2007 (Register 2007, No. 42). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 3-26-2008 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 10-18-2007 order transmitted to OAL 2-4-2008 and filed 3-18-2008 (Register 2008, No. 12).
4. Renumbering of former section 3485 to section 3476 and new section 3485 filed 3-25-2020 as an emergency; operative 6/1/2020 (Register 2020, No. 13). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 11-9-2020 or emergency language will be repealed by operation of law on the following day.
5. Emergency filed 3-25-2020 and operative 6-1-2020 extended 60 days pursuant to Executive Order N-40-20 and an additional 60 days pursuant to Executive Order N-66-20 (Register 2020, No. 42). A Certificate of Compliance must be transmitted to OAL by 3-9-2021 or emergency language will be repealed by operation of law on the following day.
6. Renumbering of former section 3485 to section 3476 and new section 3485 refiled 2-25-2021 as an emergency, with amendments to subsections (c)(1), (c)(3), (d) and (e); operative 3/10/2021 (Register 2021, No. 9). Emergency expiration extended 60 days (Executive Order N-40-20) plus an additional 60 days (Executive Order N-71-20). A Certificate of Compliance must be transmitted to OAL by 10-8-2021 or emergency language will be repealed by operation of law on the following day.
7. Renumbering of former section 3485 to section 3476 and new section 3485 refiled 10-4-2021 as an emergency, with amendments to subsections (c)(1), (c)(3), (d) and (e); operative 10/8/2021 pursuant to Government Code section 11346.1(d) (Register 2021, No. 41). A Certificate of Compliance must be transmitted to OAL by 1-6-2022 pursuant to Government Code section 11346.1(h) or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 10-4-2021 order, including amendment of section heading and repealer and new section, transmitted to OAL 12-7-2021 and filed 1-5-2022; amendments operative 1/5/2022 pursuant to Government Code section 11343.4(b)(3) (Register 2022, No. 1).
9. Change without regulatory effect amending subsection (g)(6)(E) filed 7-1-2024 pursuant to section 100, title 1, California Code of Regulations (Register 2024, No. 27).