N.Y. Comp. Codes R. & Regs. tit. 7 § 701.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 701.5 - Procedure

Note:

If an inmate is deaf or hard-of-hearing, any expression of difficulty in communicating or understanding shall be considered a request for assistance. Reasonable accommodations (including assignment of a sign language interpreter, if needed, and a grievance clerk) will be made to ensure the inmate's full access to all steps in the grievance process.

(a)Filing the complaint.

(1) Time limit for filing. An inmate must submit a complaint to the clerk within 21 calendar days of an alleged occurrence on an inmate grievance complaint form (form #2131). If this form is not readily available, a complaint may be submitted on plain paper. The complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility.

Note:

Exceptions to this time limit or any appeal time limits may be approved by the IGP supervisor under section 701.6(g) of this Part.

(2) Contents. In addition to the grievant's name, department identification number, housing unit, program assignment, etc., the grievance should contain a concise, specific description of the problem and the action requested and indicate what actions the grievant has taken to resolve the complaint, i.e., specific persons/areas contacted and responses received. The IGP supervisor shall review the grievance complaint and designate the grievance code and title. If the IGP supervisor determines that the grievance may be a harassment, discrimination or strip frisk/strip search grievance, it shall be processed in accordance with the respective expedited procedure (section 701.8, 701.9 or 701.10 of this Part). The clerk shall consecutively number and log each grievance at the time of receipt.

(3) Like grievances. "Like grievances" may be consolidated at the option of the IGP supervisor or IGRC and assigned one grievance calendar number. The first complaint received will be given the next sequential grievance number in the clerk's log (form #2136). The grievants shall select three or four spokespersons from their number to be grievants of record and to represent them at the hearing and to ensure expeditious processing of the cases. Any like complaint submitted at this time or during processing may be addressed under the same grievance calendar number. A list of the names of every inmate who submitted a complaint on the issue shall be included with the grievance materials and submitted with any appeal which may result. Every effort will be made to notify all of the grievants of the response at each level to which the grievance is appealed either by written response, posting on inmate bulletin boards or radio announcement. Not every complainant may receive an individual written response, but the three or four grievants of record will. If none of the grievants of record appeal to the next level, any inmate who submitted a complaint may continue the appeal. Any inmate on the list of those submitting the complaint will be given the number of the grievance of record to submit to the court in order to verify exhaustion of the IGP.

(b)First step, IGRC.

(1) Informal resolution. The representatives of the IGRC shall have up to 16 calendar days after a grievance is filed to resolve it informally. If the matter is resolved to the satisfaction of the grievant, the resolution and the grievant's consent must be entered on the inmate grievance complaint form.

(2) IGRC hearing.

(i) If there is no resolution, the full committee shall conduct a hearing to answer the grievance or make a recommendation to the superintendent.

(ii) The clerk, together with the staff, shall schedule the hearing to take place within 16 calendar days after receipt of the grievance, making certain that the grievant and all direct parties and witnesses, if any, are afforded an opportunity to appear (except as exempted in section 701.7[d] of this Part).

(a) Any inmate whose confinement status precludes his/her attendance at an IGRC hearing and who will be released within 30 calendar days shall be given the option of having the hearing held in his/her absence or postponed until release from confinement. The grievant's decision shall be obtained in writing. If the grievant is not scheduled for release from confinement within 30 calendar days, the hearing shall be held in his/her absence. If any person elects not to appear, the clerk shall so inform the IGRC.

(b) If a grievant does not appear for the hearing without a legitimate reason (visit, parole hearing, program committee, sick call, keeplock, etc.), the IGRC will hold a hearing in absentia. The IGRC has the authority in this circumstance to dismiss and close the grievance by majority vote (3 of 4), or to make a recommendation on the action requested and forward same to the grievant.

(c) If a grievant misses three scheduled hearings due to legitimate reasons, the IGRC shall act on the grievance at the third scheduled hearing.

(iii) The full IGRC shall conduct the hearing at the time and place set. The grievant or his/her advisor and any other direct party to the grievance may present relevant information, comments, or other evidence in furtherance of their respective positions. The IGRC shall be the judge of the relevance and materiality of the evidence offered.

(3) Committee decision/recommendation.

(i) After the chairperson closes the hearing, the committee shall deliberate in private session. Its decision must be communicated to the grievant and any direct party in writing with reasons stated, within two working days. In its discretion, the IGRC may also communicate its decision to the grievant orally immediately after its deliberations.

(ii) Matters which neither require superintendent/central office action nor involve changes in policy may be resolved by agreement of the committee, the inmate, and the party directly affected. Committee decisions which do require superintendent or central office action, including, but not limited to, changes in institutional or departmental policy or procedure, shall be written in the form of recommendations and referred to the superintendent. Any matter on which the committee cannot reach a decision by majority vote shall also be referred to the superintendent for action and response.

(4) Dismissals.

(i) The IGRC may dismiss and close a grievance after a hearing if it determines, by majority vote (3 of 4), that:

(a) the grievant has made no effort to resolve the complaint through existing channels;

(b) the grievant has not been or will not be personally affected by the issue in his/her complaint;

(c) the grievant is seeking a decision or an appeal of a decision otherwise attainable through the established procedures for:

(1) temporary release, family reunion and media review programs;

(2) disciplinary and time allowance committee proceedings;

(3) central monitoring (CMC), inmate claims, or record's review (freedom of information requests, expunction) procedures; or

(4) any other program or procedure having a written appeal mechanism which extends review to outside the facility (see section 701.3[e] of this Part);

(d) the grievant is seeking action with respect to any policy, regulation, rule or action of an agency not under the supervision of the Commissioner of Correctional Services (see section 701.3[f] of this Part); or

(e) the grievance is institutional in nature and only affects or no longer affects a grievant who has been released or paroled (see section 701.6[i] of this Part).

(ii) In such cases, the IGRC shall clearly cite the portions of this section and of section 701.3(a), (b), (e) and (f), or 701.6(i) of this Part which provide the basis for dismissal, and shall, where appropriate, refer the grievant to appropriate existing mechanisms.

(iii) If a grievant believes that a dismissal in his/her case is not authorized by this directive, he/she may apply directly to the facility IGP supervisor for review within seven calendar days after receipt of the IGRC's decision to dismiss the grievance. If the supervisor determines that the grievance does not fall into one of the categories cited in this section, then the grievance will be returned to the IGRC for a hearing and recommendation. The supervisor's written response shall be forwarded to the grievant within seven calendar days of receipt. An inmate may pursue a complaint that the IGP supervisor failed to reinstate an improperly dismissed grievance by filing a separate grievance.

(iv) If there is less than a majority vote to determine whether a complaint constitutes a grievable issue, the IGRC will hear the grievance and provide its recommendations with reasons stated on the specific requested action(s).

(c)Second step, appeal to the superintendent.

(1) Filing an appeal. If the grievant or any direct party wishes to appeal to the superintendent, he or she must complete and sign the appeal section on the IGRC response form (form #2131) and submit it to the grievance clerk within seven calendar days after receipt of the IGRC's written response. If no appeal is filed upon denial by the IGRC, it will be presumed that the grievant or direct party accepts the committee's recommendation. An exception to this appeal time limit may be approved by the IGP supervisor under section 701.6(g) of this Part.

(2) Referral to the superintendent. In all cases where action by the superintendent is required, the grievance papers and all relevant supplemental data shall be transmitted to the superintendent. Such transmittal shall be within one working day after receipt of an appeal.

(3) Superintendent's action. The superintendent's office shall date stamp all grievances forwarded showing when they were received. The superintendent or his designee shall determine if the grievance is departmental in nature.

(i) Departmental issue. If a matter concerns an altering or revision of a departmental policy/directive, the superintendent shall promptly forward the grievance papers and a recommendation regarding said policy to the IGP supervisor for forwarding to the CORC which shall render a decision in accordance with the third step. Such transmittal must be within seven calendar days from the time the appeal was received. The grievant, the grievance clerk, and the direct party, if any, shall receive notice of said transmittal. Departmental issues which do not involve creation or revision of a departmental policy or directive shall be answered by the superintendent within 20 calendar days from the time the appeal was received.

(ii) Institutional issue. If a matter concerns an institutional issue, the superintendent shall render a decision on the grievance and transmit said decision, with reasons stated, to the grievant, the grievance clerk, and direct party, if any, within 20 calendar days from the time the appeal was received.

(4) Implementation of decisions. The IGP supervisor or the superintendent must verify compliance with superintendents' responses that require some form of implementation. Documentation of compliance must be filed with the grievance record. If a decision is not implemented within 45 days, the grievant may appeal to CORC citing lack of implementation as a mitigating circumstance.

(d)Third step, appeal to the central office review committee (CORC).

(1) Appeal.

(i) If the grievant or any direct party wishes to appeal to the CORC, he or she must complete and sign form #2133 and submit it to the grievance clerk within seven calendar days after receipt of the superintendent's written response to the grievance. The superintendent's response form contains simple directions for appeal to the CORC. An exception to this appeal time limit may be approved by the IGP supervisor under section 701.6(g) of this Part.

(ii) The grievance clerk shall transmit the signed appeal and the accompanying grievance papers to the IGP supervisor within one working day after receipt of the signed appeal statement. The supervisor must forward appeals within seven calendar days to the CORC.

(2) The CORC.

(i) The CORC shall consist of the deputy commissioner and counsel, deputy commissioner for correctional facilities, deputy commissioner for program services, deputy commissioner for administrative services, and the deputy commissioner and chief medical officer, or their designees expressly authorized to act for them. A representative of the office of diversity management will attend CORC hearings and have input on grievances alleging discrimination, but will not vote.

(ii) The CORC functions on behalf of the commissioner and under his authority. CORC decisions have the effect of directives. Decisions requiring remedial action must be implemented by the facility and/or departmental office to which they apply.

(iii) The director, IGP, is not a voting member of the CORC. The director will, however, be responsible for the administrative function of the IGP. The director, IGP, as the commissioner's designee, shall ensure implementation of CORC decisions.

(3) CORC action.

(i) The IGP central office staff shall date stamp all appeals showing when they were received and shall notify facility grievance staffs in writing as grievances are received. The facility IGP staff shall forward a copy of the written notice of receipt to the grievant of record. If a grievant does not receive a copy of the written notice of receipt within 45 days of filing an appeal, the grievant should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.

(ii) The CORC shall review each appeal, render a decision on the grievance, and transmit its decision to the facility, with reasons stated, for the grievant, the grievance clerk, the superintendent, and any direct parties within 30 calendar days from the time the appeal was received.

(4) Implementation of decisions. The director, IGP, must obtain verification of compliance with CORC dispositions. Documentation of compliance must be filed in the central office and facility grievance records.

N.Y. Comp. Codes R. & Regs. Tit. 7 § 701.5