Fla. Admin. Code Ann. R. 33-103.007 - Appeals and Direct Grievances to the Office of the Secretary

(1) In the event that an inmate feels that the grievance has not been satisfactorily resolved during the formal grievance procedure, an appeal may be submitted according to the time limits set forth in rule 33-103.011, F.A.C., using Form DC1-303, Request for Administrative Remedy or Appeal, to the Office of the Secretary without interference from staff. Form DC1-303 is incorporated by reference in rule 33-103.006, F.A.C.

(2) Grievance appeals - If the grievance appeal is not a direct grievance to the Office of the Secretary, the inmate shall:

(a) Attach a copy of his formal grievance and response, except when appealing issues regarding requests for protective management, admissible reading material, sentence structure (release date calculations), inmate banking, emergencies or allegations of reprisal. (These may be filed directly to the Office of the Secretary).

(b) Attach a copy of his informal grievance and response, except when appealing issues regarding one of the types identified in paragraph (3)(a) - (j) of this rule.

(c) Attach any other documentation that the inmate has that is pertinent to the review and that the inmate wants reviewed.

(d) Submit the complete form with attachments to the Office of the Secretary in accordance with subsection 33-103.007(5), F.A.C. Failure to submit a complete grievance shall result in the grievance being returned to the inmate without action.

(e) If the inmate is filing an amendment to a previously filed grievance or appeal, the inmate shall clearly state this at the beginning of PART A of Form DC1-303, Request for Administrative Remedy or Appeal.

(f) If the inmate is claiming visual impairment, they shall clearly state that in the first line of their grievance in order to receive the five additional days to file their grievance as outlined in subsection 33-103.011(1), F.A.C.

(3) Direct Grievances.

(a) Emergency grievances and grievances of reprisals, protective management, admissible reading material, grievances concerning sentence structure (release date calculations), inmate banking issues or sexual abuse grievances when the abuse is alleged to have been committed by the Warden of the institution where the inmate is currently housed may be filed directly with the Office of the Secretary using the Request for Administrative Remedy or Appeal, Form DC1-303. Grievances alleging a violation of the Health Insurance Portability and Accountability Act (HIPAA) must be filed directly with the Office of the Secretary using the Request for Administrative Remedy or Appeal, Form DC1-303. The following shall apply:

1. The inmate shall state at the beginning of Part A of Form DC1-303 that the grievance concerns either an emergency or is a grievance of a reprisal. When alleging HIPAA violations, the inmate shall state that the grievance concerns HIPAA at the beginning of Part A of Form DC1-303. The inmate or the third party filer of a sexual abuse grievance shall state at the beginning of Part A of Form DC1-303 that the grievance is a sexual abuse related grievance. On Form DC1-303 the third party filer shall check the box next to Third Party Grievance Alleging Sexual Abuse.

2. The inmate must clearly state the reason for not initially bringing the complaint to the attention of institutional staff and by-passing the informal and formal grievance steps of the institution or facility, except in the case of a HIPAA violation grievance which must be filed directly with the Office of the Secretary. In the case of a sexual abuse grievance, the inmate or the third party filer must clearly state that the formal grievance step of the institution or facility was by-passed because the abuse is alleged to have been committed by the Warden of the institution where the inmate is currently housed.

3. The inmate may forward grievances of these types to the Office of the Secretary in a sealed envelope by following the procedure set out in paragraph (5)(e), below. When a direct grievance alleging violation of HIPAA is received at the Office of the Secretary, the Bureau of Policy Management and Inmate Appeals shall forward the grievance to the Office of the Assistant Secretary for Health Services for investigation and response. The disclosure of medical information in a grievance authorizes staff to review the information and to use and disclose the medical information necessary to investigate in order to respond. Following preparation of a response and signature of the responding employee, the grievance shall be returned to the Bureau of Policy Management and Inmate Appeals to ensure appropriate filing and routing.

(b) Emergency Grievances. An emergency grievance may be filed directly with the Secretary. Upon receipt, staff of the Bureau of Policy Management and Inmate Appeals shall take the following actions as soon as possible, but no later than two calendar days following receipt:

1. Review complaint and contact staff for additional information if necessary;

2. If an emergency is found to exist, initiate action to alleviate the condition giving rise to the emergency;

3. Provide a formal response to the inmate within 15 calendar days; and

4. If an emergency is not found to exist, it will be clearly marked on the grievance "not an emergency, " signed and dated by the responding employee, and returned to the inmate within three working days of receipt as his reasons for by-passing the previous level of review will not be valid.

5. An inmate may file an emergency grievance if they believe they are subject to a substantial risk of imminent sexual abuse. When receiving an emergency grievance from an inmate expressing belief they are subject to a substantial risk of imminent sexual abuse the institution must take immediate corrective action. Staff handling this grievance shall provide an immediate response within 48 hours and shall issue a final decision within 5 calendar days from the receipt of the grievance. The final decision will document the agency's determination whether the inmate is in substantial risk of imminent sexual abuse and the action taken in response to the emergency grievance.

(c) Grievances filed directly with the Office of the Secretary that are grievances of reprisal, protective management, admissible reading material, sentence structure (release date calculations), inmate banking issues, or a grievance alleging a violation of HIPAA shall be responded to according to established time frames.

(d) Upon receipt of the direct grievance and following review of the same, if it is determined that the grievance is not an emergency grievance, a grievance of reprisal, protective management, admissible reading material, sentence structure (release date calculations), inmate banking issues, or a grievance alleging a violation of HIPAA, the grievance shall be returned to the inmate with the reasons for return specified advising the inmate to resubmit his or her grievance at the appropriate level. The other applicable procedures in rule 33-103.007, F.A.C., governing the processing of appeals to the Office of the Secretary shall apply to these types of grievances.

(4) Procedural Requirements.

(a) The inmate shall fill out the identifying data at the top of the form by printing his committed name, Department of Corrections number, and institution or facility name and shall check the appropriate box.

(b) The inmate shall state his grievance in Part A. If additional space is needed, the inmate shall use attachments rather than multiple copies of Form DC1-303. Only 2 additional pages of narrative will be allowed. If the inmate writes his complaint anywhere other than within the boundaries of Part A Box or on the 2 allowable attachment pages, his grievance or appeal shall be returned for non-compliance.

(c) The inmate shall sign and date the form, indicating his Department of Corrections number. If the inmate fails to sign the grievance or appeal, it shall result in a delay in addressing the grievance until it can be verified that it is that inmate's grievance or appeal.

(d) The form shall be legible and the grievance or appeal shall be clearly stated.

(e) Included facts shall be accurately stated.

(f) Each grievance or appeal shall address only one issue or complaint.

(g) When filing a grievance appeal, the inmate shall attach a copy of the formal grievance and the response to the formal grievance to Form DC1-303. Any other pertinent documentation shall also be attached.

(h) If the inmate is filing an amendment to a previously filed grievance or appeal, the inmate shall clearly state this at the beginning of PART A of Form DC1-303, Request for Administrative Remedy or Appeal. Amendments are to be filed only regarding issues unknown or unavailable to the inmate at the time of filing the original grievance and must be submitted within twenty days of the date reflected on the department's response to the appeal.

(i) If the inmate or third party is filing a grievance involving sexual abuse, it shall be clearly stated in the first line of the grievance that it is a grievance related to sexual abuse. Also on Form DC1-303 the third party filer shall check the box next to Third Party Grievance Alleging Sexual Abuse. If this statement is not included in the grievance and if the third party box is not checked, the grievance shall be responded to. This will not be a reason to return the grievance without action to the filer.

(j) The inmate shall submit the grievance or appeal to designated staff by placing it in a locked grievance box. Locked boxes shall be available to absolutely all inmates. A staff person from classification, the grievance coordinator's office, or the assistant warden's office shall be responsible for the key. If the staff member collecting the grievances or appeals is from classification or the assistant warden's office, he or she shall retrieve the box and deliver it to the institutional grievance coordinator.

(k) Grievances and appeals shall be picked up and forwarded to central office by the institutions daily, Monday through Friday. This includes grievances and appeals filed by inmates in special housing units. The grievance box shall be brought to each such inmate Monday through Friday.

(5) Mailing Procedures. The warden or person designated in rule 33-103.002, F.A.C., shall establish a procedure in the institution or facility under his supervision for processing those grievances and appeals that require mailing. Inmates who are filing grievances or appeals that require mailing shall be required to utilize the procedure set forth in this rule when sending their grievances or appeals to the Bureau of Policy Management and Inmate Appeals in central office. The institution or facility shall provide postage for grievances or appeals submitted through this process. Procedures implemented shall include, at a minimum, the following:

(a) The establishment of an office through which grievances and appeals shall be processed.

(b) The establishment of a logging and tracking system to record and document receipt and mailing of inmate grievances and appeals.

(c) A requirement that the staff person designated to accept the grievances and appeals to be mailed shall do the following as to those grievances that are not in a sealed envelope and are placed in the grievance box:

1. For each grievance appeal or direct grievance to the Office of the Secretary, date-stamp the bottom-left portion of the form DC1-303, reflecting the date the grievance or appeal was received or collected from the grievance box.

2. Complete the receipt portion of Form DC1-303 for grievances or appeals being forwarded to central office by entering a logging/tracking number and date of receipt, and shall sign as the recipient.

3. The staff person shall not read or classify the grievance or appeal.

4. Place the grievance or appeal in the mail through the institution or facility mail service within one workday.

(d) Inmates shall have his or her grievance or appeal ready for mailing at the time he or she submits it to staff for processing as described in paragraph (c), above. Once this process has been completed, the grievance or appeal will not be returned to the inmate.

(e) Inmates are also permitted to elect to submit grievances and appeals in sealed envelopes. The inmate must note on the envelope that the content is either an appeal or a direct grievance to the Secretary of the Department. Such a sealed envelope may be placed in the locked grievance box, just as a grievance or appeal that is not in a sealed envelope would be. Such grievances shall be processed as follows by institutional staff:

1. The staff member who retrieves grievances and appeals submitted in this manner from the grievance box shall place a date stamp on the outside of the envelope. The date shall be the same date that the grievance or appeal was retrieved from the grievance box.

2. The staff member who retrieves the sealed envelopes from the grievance box shall not place a logging/tracking number on the envelope nor on the grievance or appeal. Institutional staff shall not open the sealed envelope, except when they have reason to believe it contains contraband.

3. No institutional staff person shall read or classify the grievance or appeal.

4. The institutional staff member designated to accept and mail the grievances shall place the grievance or appeal in the mail through the institution or facility mail service within one workday.

(f) Those grievances and appeals that are placed in the grievance box, whether or not they are in a sealed envelope, will be forwarded to the Bureau of Policy Management and Inmate Appeals after being processed for mailing as described above.

(g) Inmates are also permitted to place their grievances and appeals in a sealed envelope with adequate postage and place that sealed envelope into the locked grievance box.

1. The inmate must note on the envelope that the content is either an appeal or a direct grievance to the Secretary of the Department.

2. The inmate shall place the appeal or direct grievance into the locked grievance box.

3. The mail collection representative shall not open the mail nor ask nor order the inmate open it.

4. The individual processing the appeals and direct grievances shall date-stamp the back of the envelope.

5. The sealed envelope shall not be returned to the inmate's possession.

6. No inmate shall present any other mail in a sealed envelope.

7. The envelope containing the appeal or direct file grievance shall be processed as routine mail pursuant to rule 33-210.101, F.A.C.

(6) Processing of Grievance Appeals and Direct Grievances by Central Office Staff.

(a) Upon receipt of a mailed grievance or appeal by the Bureau of Policy Management and Inmate Appeals, the Bureau of Policy Management and Inmate Appeals shall cause the following to occur:

1. The grievance or appeal shall be examined for compliance with chapter 33-103, F.A.C.

2. Regarding any grievance or appeal that arrives in a sealed envelope, the envelope shall be opened and then attached to the grievance or appeal. The envelope shall not be discarded.

3. Staff shall date the receipt portion of the grievance or appeal. For those grievances that were placed in the grievance box by the inmate, the date on the receipt shall be the same date that the grievance or appeal was taken out of the grievance box, whether or not the grievance is in a sealed envelope. As to any grievance or appeal that was placed directly into privileged mail by an inmate, the date on the receipt shall be the same date placed on the back of the envelope at the moment when the inmate released the grievance or appeal to the mail collection representative. This date shall be placed in the lower left hand corner of the form.

4. The receiving office shall review the grievance or appeal and determine the classification of the grievance or appeal and enter the same on the receipt that is returned to the inmate. The subject matter of the grievance shall be indicated on the receipt according to the classification of the grievance, as specified in rule 33-103.013, F.A.C. A receipt shall be provided to the inmate.

5. In addition to dating the receipt portion of the grievance or appeal, as mentioned above, staff shall date-stamp the grievance or appeal with the current day's date in the upper right corner of the form.

(b) Staff shall determine whether the grievance or appeal has been timely filed. The decision of whether or not the grievance or appeal has been timely filed by the inmate shall be made based upon the following comparisons:

1. In the case of an appeal being filed with the central office, by comparing the receipt date that institutional staff placed on the DC1-303 form or the outside of the envelope in accordance with subparagraph 33-103.007(5)(e) 1., F.A.C., to the return date of the formal grievance (the date the grievance leaves the recipient's office).

2. In the case of a grievance being filed directly at the central office level, by comparing the receipt date on the DC1-303 form to the date of the incident or situation giving rise to the complaint.

(c) The receiving office shall then process the grievance or appeal filed by the inmate in accordance with the provisions of this rule, as appropriate.

(d) A grievance appeal or direct grievance may be returned to the inmate for any one or more of the reasons stated in rule 33-103.014, F.A.C., without further processing.

(e) Following appropriate investigation and evaluation by staff of the Bureau of Policy Management and Inmate Appeals, a response shall be provided to the inmate. The degree of investigation is determined by the complexity of the issue and the content of the grievance.

(f) The response shall state whether the appeal or direct grievance is approved, denied, or being returned and shall also state the reasons for the approval, denial, or return. The criteria considered in approving, denying, or returning an appeal or direct grievance will vary with the facts of the grievance.

(7) The Office of the Secretary has designated the Bureau of Policy Management and Inmate Appeals to receive, review, investigate, evaluate and respond to appeals and direct grievances filed with the Office of the Secretary. Appeals and direct grievances to the Office of the Secretary shall be turned over that same date to the Bureau of Policy Management and Inmate Appeals which shall ensure that the grievance is date-stamped in on the date of receipt.

(8) If the grievance or appeal is returned to the institution or facility for further investigation or response, the inmate may, following receipt of that response, re-file with the Office of the Secretary pursuant to rule 33-103.007, F.A.C., if he is not satisfied with the response.

(9) Copies.

(a) The original copy of the grievance or appeal shall be returned to the inmate. The response shall be stamped "MAILED/FILED WITH AGENCY CLERK" along with the date mailed; the response shall be mailed on the same date that it is stamped. The response is deemed filed with the agency clerk on the date that it is stamped and mailed. The time period for appeal begins to run on the date that the response is stamped and mailed.

(b) One copy shall be forwarded to the Regional Scanning Center for inclusion in the inmate's electronic central office file.

(c) Attachments are considered a part of the grievance and shall not be returned to the inmate, except in those cases where the inmate submits sufficient copies of attachments at the time the grievance appeal is filed.

Notes

Fla. Admin. Code Ann. R. 33-103.007

Rulemaking Authority 944.09 FS. Law Implemented 944.09 FS.

New 10-12-89, Amended 1-15-92, 12-22-92, 4-10-95, 8-10-97, 12-7-97, 10-7-98, 2-17-99, Formerly 33-29.007, Amended 8-1-00, 6-29-03, 2-9-05, 8-21-06, 3-25-08, 6-13-12, 11-7-12, 11-24-13, 4-20-14, Amended by Florida Register Volume 44, Number 207, October 23, 2018 effective 11/7/2018.

New 10-12-89, Amended 1-15-92, 12-22-92, 4-10-95, 8-10-97, 12-7-97, 10-7-98, 2-17-99, Formerly 33-29.007, Amended 8-1-00, 6-29-03, 2-9-05, 8-21-06, 3-25-08, 6-13-12, 11-7-12, 11-24-13, 4-20-14, 11-7-18.