· (10) Inmate sued, claiming $1 million in damages because his ice cream had melted;

· (9) Inmate sued, alleging that being forced to listen to his unit manager's country and western music constituted cruel and unusual punishment;

· (8) Inmate sued, claiming that his piece of cake was "hacked up";

· (7) Inmate sued because he was served chunky instead of smooth peanut butter;

· (6) Two inmates sued because the prison would not pay for their sex change operations;

· (5) Inmate sued, alleging that he made only $21.00 during a three month period but had been told he would make $29.40;

· (4) Inmate sued because he was forced to send packages via UPS rather than U.S. mail;

· (3) Inmate sued, demanding L.A. Gear or Reebok shoes instead of Converse;

· (2) Inmate sued, alleging that the prison physicians had implanted an electronic device in his head which broadcast his thoughts over the prison public address system; and

· (1) Inmate sued prison officials for taking away his Gameboy electronic game.²

Although these claims are humorous, they were expensive to the taxpayers. In each of
these cases, the facts alleged in the complaint were clearly not worthy of a Court's time, but the
taxpayers nevertheless had to pay for the judicial resources used in hearing the matter, as well as
the attorneys fees to defend the jails or prisons. Since the passage of the PLRA, Courts are now
required to review the allegations of the Complaint before issuing summonses to the defendants.
If the Court determines that the Complaint fails to state a claim upon which relief can be granted,
the Court shall dismiss the Complaint, without issuing a summons. This new procedure has
drastically reduced the amount of public resources spent in defending these frivolous suits.

In addition, the PLRA has set forth several defenses of which all jail officials should be
aware and utilize to their advantage. The most useful tool created by the PLRA is the
"exhaustion of administrative remedies" requirement. This article will address how County
officials can use the PLRA in this regard to their advantage and thereby reduce jail liability.

The PLRA provides, in relevant part, that "[n]o action shall be brought with respect to
prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C.
1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted."³ In Kentucky, all full
service jails and youth alternative centers are required to have a written policy, setting forth a
grievance procedure.⁴ There is no similar regulation applicable to life safety jails. However, in
order to substantially reduce liability, every jail, regardless of classification, should enact a
grievance procedure. An example of a grievance procedure, an inmate grievance form, and an
inmate grievance appeal form are shown below as Appendixes "A", "B", and "C".

Grievance procedures can limit a jail's and/or a jailer's liability in two distinct ways.
Obviously, if an inmate is allowed to file a grievance about a condition of which the jail
authorities are not aware and do not approve, the condition can be corrected and as such, liability
reduced. Second, if the inmate fails to follow the grievance procedure, as adopted, any complaint
he subsequently files in federal court will be dismissed pursuant to the PLRA's "exhaustion of
administrative remedies" provision. Of course, if the jail has not adopted a grievance procedure,
the inmate does not have to jump through any hoops before he files suit and the jail does not get
the opportunity to correct the problem before a judge gets involved.

The first step of any grievance process should require the inmate to speak to the alleged
offending party, i.e., deputy jailer, medical health professional, etc. If the issue is not resolved at
that stage, then the inmate may file a written grievance form, which should be available to any
inmate upon request. In the sample grievance procedure, attached hereto as Appendix "A", the
written grievance is to the submitted to the Jailer. It is important that the procedure set forth
deadlines for filing a grievance and an appeal. In addition, the procedure should require the
Jailer (or other person responsible for responding to the grievance) to respond to the grievance
within a given period. Failure to respond within that period should be deemed a denial of the
grievance and begin the clock for which an appeal can be filed. In the attached sample grievance
procedure, the appeal is to be submitted to the County Judge Executive or his designee. The
Judge Executive could designate the County Administrator, the County Attorney, or the Judge
Pro Tem, for example. Failure of the County Judge Executive (or his designee) to respond to an
appeal within a given period should likewise deem the response as "denied." However, in order
to avoid liability, both the Jailer and the Judge Executive or other appointed persons, should
conduct a limited investigation into the complaint. Failure to do so, could result in a valid claim
of deliberate indifference, subjecting the official and/or the county to liability.

An important note in this discussion is the fact that the grievance procedure must be
communicated to the inmates. Storing the only written grievance procedure in the Jailer's desk
or County's vault does not communicate much to the inmates. I am currently defending a
County, a Jailer, and several deputy jailers in a case in which the County had adopted a
comprehensive grievance procedure, but has no evidence that the procedure was ever
communicated to the complaining inmate. On behalf of the Defendants, I filed a Motion to
Dismiss for failure to exhaust administrative remedies. The District Court granted my Motion
but the Sixth Circuit Court of Appeals reversed, ruling that a grievance procedure that is not
communicated to the inmate is not an "available" administrative remedy, as defined by the
PLRA. The most effective way to prevent this situation is to require all inmates, upon being
booked into the jail, to sign a document setting forth the procedure. This document should be
retained by the Jail for at least two years.

In addition, it is very important for jails and/or counties to retain copies of all grievances
and appeals filed by inmates for at least two years. Copies of all responses to the grievances and
appeals should also be retained for this period of time. An inmate has one year from the date of
incident in which to file a 1983 action in federal court. However, because Courts are now
required to review the allegations in the complaint before issuing the summonses, it can now take
up to two years for a summons and complaint to be served. Of course, without copies of all
grievances filed in the last two years, it is hard to rebut an inmate's argument that he in fact did
exhaust all available administrative remedies.

As such, whenever a jail and/or jailer is served with a summons and complaint, the jail's
files should be immediately perused for grievances filed by the plaintiff/inmate. If grievances
were filed, copies should be made and forwarded to the assigned attorney. If not, the custodian
of the records should sign a statement to that effect. Furthermore, the custodian of the records of
the County Judge Executive (or his designee) should do the same. This procedure should occur
at the beginning of the case, as a Motion to Dismiss for failure to exhaust administrative
remedies may be filed immediately.

I have defended over 50 jail liability suits since the passage of the PLRA, of which 75 per
cent were dismissed due to the inmate's failure to exhaust administrative remedies. Most
inmates are not aware of this procedural requirement and are not willing to "waste their time"
with filing grievances and appeals. Of the 25 per cent that did not get dismissed on PLRA
grounds, the defending County had either not adopted a grievance procedure or had not
communicated such to the inmates.

The PLRA's exhaustion of administrative remedy requirement may be effectively utilized
to reduce a jail's liability. In enacting the PLRA, Congress sought to reduce frivolous lawsuits in
federal court. Whether county jails use the tool given to them by Congress to their advantage, is
up to them.

1. Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended in scattered sections of 18 U.S.C., 28 U.S.C., and 42 U.S.C. (1996)).
2. 141 Cong. Rec. S14, 629 (daily ed. Sept. 29, 1995).
3. 110 Stat. 1321, 1321-71.
4. 501 KAR 10:140(1)(e) and 501 KAR 12:140(1)(e).