Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(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:
(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 not proper, in which case the Reviewing Authority shall order an
appropriate remedy; 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 not proper, in which case the appeal
Coordinator shall order an appropriate remedy;
(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).
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.
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.
