WISCONSIN DEPARTMENTOF CORRECTIONS
PROPOSED RULEMAKING ORDER
INTRODUCTORY CLAUSE
The Wisconsin Department of Corrections proposes an order to
amend sections
DOC 303.82(4)
,
DOC 327.26
(2)
(a)
,
DOC 327.26
(2)
(b)
;
repeal
DOC 310 appendix;
and recreate chapter DOC 310, relating to inmate complaint procedures.
RULE SUMMARY
C.
Explanation of agency authority:
The department of corrections is responsible for the supervision of all inmates, including their
D.
Related statute or rule:
Chapters
DOC 302
,
304
,
306
,
308
,
309
,
310
,
311
,
313
,
314
,
316
,
324
,
325
,
326
, and
327
, relating to the supervision of inmates.
E.
Plain language analysis:
The rule:
1.
Reorganizes and updates the rule chapter.
2.
Repeals the following definitions: Administrator, appropriate reviewing authority, calendar day, civil rights grievance, director, emergency, malicious injury, reprisal, significant issue, and working days.
3.
Amend the following definitions: corrections complaint examiner, institution complaint examiner, and moot. (Section
DOC 310.03
.)
4.
Creates the following definitions: calendar year, complaint record, days, division, employee, good cause, institution, PREA, reviewing authority, sexual abuse, and staff member. (Section
DOC 310.03
.)
5.
Repeals the following subchapters: Communication of procedures, Organization of inmate complaint review system, Group complaints, Records, Suspension of provisions of this chapter and Appendix.
6.
Creates the following subchapters: PREA, Filing of complaint appeal and Complaint processing following release.
7.
Defines all filing deadlines as calendar days for consistency throughout the chapter.
8.
Creates language to forbid the department from retaliation of inmates using the ICRS.
9.
Updates the chapter to clarify the filing of complaints by limiting the annual number of complaints an inmate can file to 25 unless certain circumstances apply and limits the original complain to 500 words on no more than two pages.
10.
Creates a subsection to address requirements of the Prison Rape Elimination Act (PREA).
11.
Creates language to clarify the appeals process. The appeal process must be written in 500 words on no less than two pages. Amends the appeal filing time
frame from 10 calendar days to 14 days, repeals the 5 working days to issue a written receipt, amends the time frame for the CCE to make a recommendation to the Secretary from 35 working days to 45 days, amends the time frame for an inmate to file an appeal if he doesn’t hear back for the ICE from 30 working days to 45 days
12.
Creates language in the processing section to require date stamping of complaints, allows the inmate extra time to re-file returned complaints, amends the time frame for the ICE to acknowledge receiving the complaint in writing from 5 working days to 10 calendar days, creates a 10 day time frame for the ICE to return complaints and amends the ICE time frame to make a recommendation to the reviewing authority or reject the complaint from 20 working days to 30 days.
13.
Repeals the ability to dismiss or affirm complaint with modifications. Complaint can now be dismissed or affirmed in whole or part, amends the time frame for the reviewing authority to make a decision from 10 working days to 15 days and amends the time frame from 30 working days to 45 days an inmate must wait to appeal if he doesn’t get a response.
14.
Repeals the ability for the Secretary to adopt the CCE’s recommendation with modifications, amends the time frame for the Secretary to make a decision from 10 working days to 45 days and amends the wait time for the inmate to proceed if he doesn’t hear back from 45 working days to 90 days.
15.
Creates language to allow complaints to be processed under this chapter if the inmate is released.
16.
Amends time frame for the inmate to inform decision maker the implementation of an affirmed complaint hasn’t been done from 30 working days to 60 days.
17.
Creates language to allow the ICE to access protected health information in order to investigate.
18.
Corrected references to DOC 310 in other DOC chapters.
F.
Summary of and comparison with existing or proposed federal regulations that are intended to address the activities to be regulated by the proposed rule:
The Federal Regulations for the Prison Rape Elimination Act (PREA) National Standards require that
departments
provided
inmates with
multiple internal ways to privately report sexual abuse and sexual harassment, retaliation for reporting such incidents, and staff neglect or violation of responsibilities that may have contributed to such incident. (
28 C.F.R. Part 115.51
(a))
The Federal PREA Regulations provide that staff shall accept reports made verbally, in writing, anonymously, and from third parties and shall promptly document any verbal reports. (
28 C.F.R. Part 115.51
(c)) Wisconsin rules permit inmates or third parties to file a complaint using the inmate complaint review system or may use alternative methods of filing, including submission of the complaint directly to the warden.
The PREA regulations require that the department shall not impose a time limit on when
a
n inmate may submit a grievance regarding an allegation of sexual abuse.
(
28 C.F.R. Part 115.52
(b
)(
1))
The department may apply otherwise-
applicable
time limits to any portion
of
a
grievance that does not alle
ge an incident of sexual abuse. (
28 C.F.R. Part 115.52
(b
)(
1))
Wisconsin has a similar rule.
The PREA regulations require that the
department shall not require an inmate to use any informal grievance process, or to otherwise attempt to resolve with staff, an
alleged
incident of sexual abuse.
(
28 C.F.R. Part 115.52
(b
)(
1))
An inmate who alleges sexual assault may submit a
grievance without submitting it to a staff member who is a subject in the complaint first.
(
28 C.F.R. Part 115.52
(b
)(
1))
Wisconsin has a similar rule.
The PREA regulations require that
third
parties, including fellow
inmates
, staff members, family members, attorneys and outside
advocates
shall be permitted to assist
inmates
in filing
request
for
administrative
remedies relating to allegations of sexual abuse, and shall be permitted to file such requests on behalf of inmates.
(
28 C.F.R. Part 115.52
(e
)(
1))
Wisconsin has a similar rule.
The PREA regulations require that the department
shall establish procedures for filing of an emergency grievance alleging that an inmate is subject to a substantial risk of imminent sexual abuse. (
28 C.F.R. Part 115.52
(f
)(
1))
Wisconsin has a similar rule. Wisconsin rules permit inmates to contact any staff member who is not the subject of the allegation for immediate corrective action.
The PREA regulations require that the department may
discipline
an inmate for filing a grievance
related
to alleged sexual abuse only where the agency demonstrates tha
t
the inmate filed the grievance in b
ad faith
. (
28 C.F.R. Part 115.52
(g))
Wisconsin has
a similar rule. The warden may discipline an inmate for filing a complaint related to alleged sexual abuse only where the warden demonstrates that the inmate filed the complaint in bad faith.
The Department of Justice provides
informative
standards that may be
adopted or
applied
by departments
to permit inmate grievance procedures
within the institution that affect them personally
. (
28 C.F.R. Part 40.
5
)
The standards provide that a grievance procedure shall afford a successful grievant a meaningful remedy. (
28 C.F.R. 40.6
)
The regulations provide that an institution may require an inmate to attempt informal resolution before the inmate files a grievance. (
28 C.F.R. 40.7
(a))
. Wisconsin rules have a similar rule.
The
federal
regulations permit institutions to include inmates with an advisory role for employees and inmates in the operation of the grievance system. (
28 C.F.R. 40.7
(b))
The Wisconsin rules permit inmates to submit grievances and respond to inquiries, if applicable from institution complaint examiners.
The
federal
standards provide that no inmate or employee who appears to be involved in the matter shall participate in the resolution of the grievance. (
28 C.F.R. 40.7
(c))
Wisconsin rules provide that inmates submit complaints to designated complaint examiners.
The federal standards provide that e
ach grievance shall be answered in writing at each level of decision and review along with simple directions how to seek further review, if applicable.
(
28 C.F.R. 40.7
(f))
Each response shall be made within fixed time limits at each level.
Wisconsin rules adopt time limits for each level of the review process.
Each grievant shall be entitled to review by a person or other entity, not
under
the institution’s supervisor or control, of the disposition of all grievances, including alleged reprisals by an employee against an inmate. (
28 C.F.R. 40.7
(f))
Wisconsin rules have similar provisions.
The grievance procedure shall contain special provisions for responding to grievances of an emergency nature. (
28 C.F.R. 40.8
)
Wisconsin rules have
emergency procedures for PREA related complaints
.
G.
Comparison with similar rules in adjacent states:
1.
Illinois
Illinois requires inmates to attempt to resolve any issues with his or her counselor before filing a complaint. (20 Ill. Adm. Code 504.810 § (a))
If the complaint cannot be resolved on the lowest level, an inmate may file a complaint within 60 days of the incident that gave rise to the complaint. 20 Ill. Adm. Code §
504.810
(a)
)
The
60 day requirement can be waived by the department if good cause is shown for an untimely filing. (20 Ill. Adm. Code §
504.810
(a)) Wisconsin also requires that inmates attempt to resolve any issues on the lowest level before filing a formal complaint. (DOC 310.07 (1)-(2)) If the issue cannot be resolved, an inmate has 14 days from the incident that gave rise to the complaint in which he or she may file a formal complaint. (DOC 310.07 (1)-(2))
An inmate may receive an extended time limit for submitting the complaint beyond 14 days if the inmate can show good cause. (DOC 310.09(5) (d))
In Illinois, if there is an emergency situation in which there is a substantial risk of harm to the offender, complaint proceedings will be expedited. (20 Ill. Adm. Code §
504.840
(a)-(b)) Wisconsin has a similar provision. (DOC 310.11(8))
Illinois requires only that details of the incident be included in a complaint. (20 Ill. Adm. Code §
504.810
(b)) Wisconsin has more requirements for how a complaint should be filled out. Wisconsin requires that the complaint be neatly handwritten or typed on the correct form, that the complaint include an original inmate signature, that the complaint include only 500 words or two pages of description, and that the complaint not contain any obscene or threatening language or a foreign substance. (DOC 310.07 (2) (a)-(g))
Illinois rules require a grievance officer to review complaints weekly. (20 Ill. Adm. Code §
504.830
(a)) Although Wisconsin rules do not require officers to review complaints weekly, the rules do require an Institution Complaint Examiner (ICE) to acknowledge receipt of a complaint in writing within 10 days of receipt. (DOC 310.09 (3))
Illinois allows the grievance officer to reject a complaint if (1) the issue had previously been addressed and no new information is presented or (2) the issue does not affect the inmate in question. (20 Ill. Adm. Code §
504.830 (a) (1)
-
(2)
) Like in Illinois, the ICE in Wisconsin may reject a complaint if 1) the issue had previously been addressed and no new information is presented or (2) the issue does not affect the inmate in question. (DOC 310.09 (5) (b)
,(
f)) Furthermore, the ICE may also reject a complaint if (1) the complaint is made solely to harass a person, (2) if the compla
i
nt does not raise a significant issue regarding policies, rules, living conditions, or employee actions that affect the inmate, (3) if there is insufficient information in the complaint to properly resolve the issue, (4) if complaint content and timeline requirements are not met, (5) if the issue is moot, (6) if the complaint contains obscene or threatening language, or (7) if the complaint contains a foreign substance. (DOC 310.09 (a)-(h))
In order to complete an investigation, Illinois allows the inmate to appear before the grievance officer, and the grievance officer may also call witnesses. (20 Ill. Adm. Code §
504.830
(c)) In order to complete an investigation, Wisconsin gives the ICE complete access to facilities, inmates, employees and department records to make a determination about the complaint (DOC 310.09 (6))
Illinois rules requires the grievance officer to report his or her findings to the chief administrative officer, who in turn provides the inmate with a written decision within 2 months of receipt of the written grievance when reasonably feasible. (20 Ill. Adm. Code §
504.830
(d)) Wisconsin rules
allows the ICE to make a recommendation to the reviewing authority, which must occur within 30 days from the date of receiving the complaint. (DOC 310.09 (8)) The reviewing authority has 15 days of receiving the recommendation to a make a decision. (DOC 310.10 (1))
When inmates feel their issue has not been resolved adequately, Illinois allows inmates to appeal to the director within 30 days after the initial decision. (20 Ill. Adm. Code §
504.850
(a)) On the other hand, Wisconsin requires that inmates appeal a complaint decision to the Corrections Complaint
Examiner(
CCE) within 14 days of the decision (DOC 310.11 (1)) or within 14 days if the inmate has not received a response after 45 days of receipt of acknowledgment. (DOC 310.08(1))
When a complaint is on appeal in Illinois, the director has discretion in determining whether the complaint requires a hearing before the administrative board. (20 Ill. Adm. Code §
504.850
(b)) After an administrative board hearing, the director must review the findings of the board and make a final decision concerning the complaint within 6 months of receiving the appealed complaint. (20 Ill. Adm. Code §
504.850
(f)) In Wisconsin, after the CCE makes a determination about the appeal, the CCE must send a recommendation to dismiss or affirm the appeal to the secretary of the department of corrections within 45 days. (DOC 310.11 (9)) The secretary then has 20 days to make a decision about the appeal after receiving the CCE’s recommendation. (DOC 310.12 (1))
Illinois’s inmate complaint rules states that inmates that are unable to speak or read English may request the procedure to be conducted in the inmate’s own language. (20 Ill. Adm. Code §
504.810 (d) (2)
)
Wisconsin’s DOC 310 does not contain any similar rules.
Illinois does not address the issue of confidentiality specifically. Wisconsin requires that all filed complaints must be kept confidential, though confidentiality may be waived by the inmate. (DOC 310.14 (1)
,(
3))
Illinois allows records of the complaint process to be maintained in offender’s master file without restriction (20 Ill. Adm. Code §
504.860
) whereas Wisconsin mandates that a record of the complaint process cannot be maintained in the inmate’s file unless a reviewing authority gives permission, or maintaining a record in the inmate’s file is reasonably necessary to investigate the complaint, administer a remedy, or for litigation purposes. (DOC 310.14 (2)-(4))
Illinois refers to people within state custody for correctional purposes as offenders. Wisconsin refers to people within state custody for correctional purposes as inmates. The Illinois system used to resolve inmate issues upon request is referred to as a grievance system. The Wisconsin system used to resolve inmate issues upon request is referred to as a complaint system.
2.
Iowa
Iowa administrative code has only one provision that addresses an inmate complaint system. 201 IAC 50.21(3
)(
c) requires that an inmate complaint system be available to all prisoners and that prisoners unable to read English receive an explanation of the complaint process. (201 IAC 50.21 (3)) The complaint system must include at least one level of appeal, and a jail is allowed to limit the use of the system to ensure it does not become abused.
Iowa does not have any further administrative rules which govern the complaint process for inmates in prison. The Iowa department of corrections has issued a policy and procedure which addresses complaint procedures in institutions. (Policy Number IN-V-46 (eff. 1/2005))
3.
Michigan
There are no Michigan statutes or administrative code rules that set out procedures to address complaint processes. However, MCL §
791.203
gives the director of corrections the power “to supervise and control the affairs of the department, and the several bureaus thereof.” Under this authority, Michigan’s department of corrections implemented Policy Directive 03.02.130 (eff. 7/2007) to address inmate complaints.
4.
Minnesota
There is only one Minnesota administrative code rule that governs inmate complaint procedures. Minn. R. 2911.900 requires that inmates have access to a written complaint procedure that includes at least one level of appeal. Additionally, Minn. Stat. §
243.56
gives inmates the ability to communicate in writing with the facility’s chief executive officer and with the commissioner of corrections. Under this authority, Minnesota’s department of corrections implemented Policy 303.100 (eff. 9/2012) to address inmate complaints.
H.
Summary of the factual data and analytical methodologies that DOC used in support of its determination of the rule’s fiscal effect on small businesses under s.
227.114
, Stats.
The department of corrections has determined that the rule will not have a significant economic impact on a substantial number of small businesses since the rule does not regulate small businesses as that term is defined in s.
227.114
, Stats.
I.
Any analysis and supporting documents that DOC used in support of the department’s determination of the proposed rule’s effect on small businesses or that was used when the DOC prepared an economic impact report.
Not applicable.
J.
Effect on small businesses.
Not applicable.
K.
Agency contact person.
Jeffrey Pugh, Warden
,
Chippewa
Valley Correctional Treatment Facility Department of Corrections, c/o 3099 East Washington Avenue, P.O. Box 7925, Madison, WI, 53707-7925; by phone:
(
715
)
720-2850
; or by email:
DOCAdministrativeRulesCommittee@wisconsin.gov
.
L.
Place where comments are to be submitted and deadline for submission.
Written comments on the proposed rule will be accepted and receive consideration if they are received by ____________. Written comments should be addressed to:
Jeffrey Pugh
, c/o Glen Mercier
II
DOC, P.O. Box 7925, Madison, WI 53707-7925, or by email
:
DOCAdministrativeRulesCommittee@wisconsin.gov
.
TEXT OF RULE
DOC 303.82(4)
The warden’s decision is final regarding the sufficiency of the evidence. An inmate may appeal claims of procedural errors as provided under s.
DOC 310.06(2)
.
SECTION
2
. Chapter DOC 310 is repealed and recreated to read:
COMPLAINT PROCEDURES
DOC 310.01
Purpose
and authority
.
(1)
The
purpose of this chapter is to afford inmates in in
stitutions a process by which grievances may be expeditiously raised, investigated, and decided.
(
2
)
The inmate complaint review system
serves the following objectives
:
(a)
To allow inmates to raise in an orderly fashion issues
regarding
department policies
,
rules, living conditions, and
employee
actions
that
personally
affect
the inmate
or
institution environment
, including civil rights claims
.
(b)
To provide the department an
o
pportunity to
resolve
the issue before an inmate commences a civil action or special proceeding
.
(c)
To encourage communication between inmates and
employee
s
.
(d)
To
review and
explain correctional policy
or practice
to inmates and
employee
s
.
(
e
)
To
identify
errors and deficiencies in correctional policy
or practice
.
DOC 310.02
Applicability.
(1)
T
his chapter applies
to
all inmates in
the department’s
legal custody.
(
2
)
Inmates may file complaints with the department for matters under the department’s authority.
(
3
)
Inmates housed in
other
jurisdiction
s
are
required to file complaints with that jurisdiction for all matters under th
at
jurisdiction
’
s control.
DOC 310.03
Definitions.
In this chapter
:
(1
)
“
Calendar week
”
means Sunday through Saturday.
(
2
)
“
Calendar year
”
means 12 calendar months beginning January 1 and ending December 31.
(
3
)
“
Complaint record” means
ICRS forms and evidence compiled in connection with an ICRS complaint by the ICE or CCE.
(
4
)
“
Corrections complaint examiner
”
or
“
CCE
”
means the employee of the department who is designated by the secretary to process and review complaints appealed to the secretary.
(5)
“Days" means all calendar days including Saturdays, Sundays, and state legal holidays.
(
6
)
“
Department
”
means the department of corrections.
(7
)
“Division” means the division of adult institutions
(8)
“Employee” means any staff member, an employee of a contract agency, an
independent
contractor, or a volunteer of the department or
an
institution.
(9)
“Good cause” means substantial grounds, justification
,
or reason to
take a certain action as determined by the examiner.
(
10
)
“
Inmate complaint review system
”
or
“
ICRS
”
means the process by which complaints filed by inmates of adult correctional institutions are investigated and resolved.
(11)
“Institution” means a correctional institution or correctional facility defined under s.
302.01
, Stats.
(12
)
“
Institution complaint examiner
”
or
“
ICE
”
means the person or persons at each institution designated by the warden to process complaints filed under this chapter.
(13
)
“
Moot
”
means
any of the following:
(a)
A
bstract
and not
aris
ing
from
existing facts or rights
.
(
b
A
lready
resolved.
(1
5
)
“
Reviewing authority
”
means a person who is authorized to review and decide an inmate complaint.
(1
6
)
“
Secretary
”
means the secretary of the department or designee.
(1
8
)
“
Staff member
”
or “staff” means a person employed by the department as
a
permanent, project
,
or
limited term employee.
(1
9
)
“
Warden
”
means the warden, superintendent, or
their
designee.
DOC 310.04
Inmate complaint review system.
(1)
T
he department shall maintain an inmate complaint review system
that
shall be accessible to all inmates
in institutions
.
The department shall do all of the following:
(a
)
Provide
access to
written notification of the complaint procedures to inmates
.
(b
)
P
rovide each inmate
written
or oral explanation of the complaint procedures
.
(c
)
P
rovide an inmate the opportunity to a
sk and have questions answered
relating to the complaint procedure
.
(d)
Provide complaint and appeal forms.
(e
)
Permit an inmate to seek assistance to file a complaint.
(
f
)
N
ot subject an inmate to retaliation for participation in the ICRS.
(
g
)
Allow a
n inmate to pursue a complaint of retaliation through the ICRS.
(
2
)
Inappropriate
use of
the ICRS
per 310.07(4)
may be subject to discipline under Ch.
DOC 303
.
(3
)
The
warden shall
designate
an
employee to function as an
institution complaint examiner
or to assist in the process.
DOC 310.05
Exhaustion of administrative remedies.
Before an inmate may commence a civil action or special proceedings, the inmate shall exhaust all administrative remedies the department has promulgated by rule.
DOC 310.0
6
Scope of complaint review system.
(1)
An inmate may use the ICRS to raise issues regarding
policies,
rules, living conditions
,
or
employee
actions
that
personally
affect
the inmate
or
institution environment
.
(2)
An inmate may
raise issues
, including civil rights claims,
through the ICRS regarding classification, disciplinary actions, administrative confinement
,
or request for qualified leave,
and decisions regarding requests to authorize new religious practice or religious property
only after
exhaust
ing
any
of the following
,
as appropriate
:
(a)
The c
lassification
administrative
review process under
ch.
DOC 302
.
(b)
The d
isciplinary
appeal process
under
ch.
DOC 303
.
(c)
The a
dministrative confinement r
eview process under
ch.
DOC 308
.
(d)
A r
equest for
qualified
leave
process
under
ch.
DOC 326
.
(e)
A r
eview process designated by the department for the request of new religious practice or property.
(
3
)
An
inmate
may
not use the ICRS to
challenge any of the following
:
(
b
)
A p
arole commission d
ecision
.
(c)
A c
lassification decision.
(d)
Records
or actions
not
originated
by the division
.
(
e
)
The d
eclination or d
enial of a
public
record request
.
(
f
)
The c
ontent of health care
record
s
.
(
g
)
Actions of the l
egislature.
(h)
Court decisions or orders.
DOC 310.0
7
Filing of complaints.
(1)
Prior to filing a formal complaint,
an
i
nmate shall attempt to resolve the issue
by following the
designated
process specific to the
subject
of the complaint.
The ICE may request inmates to
provide evidence of having followed the
specified process
.
(2)
An inmate shall file a complaint within 1
4 days after the occurrence giving rise to the complaint
.
At the discretion of
the ICE
,
a late complaint
may be accepted
for good cause
.
An inmate
shall
request to file a
late
complaint in the
written
complaint and explicitly
provide
the
reason for the late filing
.
(
3
)
Each complaint shall
meet all of the following requirements
:
(a
)
Be submitted
on
a
complaint
form
provided by the department
.
(
b
)
Be legibly
handwritten or typed
.
(c)
Be filed
only under the name by which the inmate was committed to the department or the legal name
granted by a court
.
(d)
Include the inmate
’s original
signature.
(
e
)
N
ot exceed 500 words total and not exceed two pages
.
(f)
Provide r
elevant supporting documentation
,
which may be
accepted
at the discretion of the ICE
.
(4)
A c
omplaint will not be
processed and a referral
for disciplinary action
may occur
in accordance with
ch.
DOC 303
if
the
complaint
contain
s
any of the following:
(
a
)
O
bscene, profane, abusive
,
or threatening
language unless such language is necessary to describe the factual basis of the complaint
.
(
b
)
A
foreign substance.
(
5
)
Each
c
omplaint may contain only one clearly identified issue.
(
6
)
A c
omplaint must contain sufficient information
for
the department
to investigate and decide the complaint
.
(7)
An i
nmate may not file more than two complaints per calendar week and may not file more than 25 complaints per calendar year except
that any of
the following
are not subject to the filing restrictions contained in this paragraph
:
(a
)
Complaints
regarding
the inmate’s
health and personal safety.
(b)
Complaints made under PREA.
(
8
)
An inmate shall submit a signed complaint by placing it in a receptacle designated for complaints or by submitting it to the ICE office
through
institution
or USPS
mail.
(
9
)
If an inmate is transferred after an incident but before filing a complaint, the inmate shall file
a
complaint
related to the incident
at the currently assigned institution.
The ICE shall refer the complaint to the ICE at the appropriate institution for investigation and reviewing authority decision.
If the transfer is to a contracted facility, the inmate shall file the complaint with the institution where the issue arose.
(10
)
If an inmate is released after an incident but before filing a complaint, the inmate shall file
a
complaint
related to the incident
at the previously assigned institution.
(
11
)
The ICE
may waive any requirements under this section
for good cause.
DOC 310.08
PREA complaint procedure.
An inmate may file a complaint alleging sexual abuse using the procedures under this chapter.
T
he following provisions apply to complaints alleging sexual abuse:
(1)
Notwithstanding s.
DOC 310.07 (2)
, an inmate may file a complaint regarding sexual abuse at any time. If a portion of the complaint alleges an issue
that
does not relate to sexual abuse, the time limits under s.
DOC 310.07
apply.
(2)
Notwithstanding s.
DOC 310.07
(1)
or
(8)
, an inmate is not required to
attempt to resolve the issue with the staff member who is the subject of the complaint or to
file a complaint regarding sexual abuse with the staff member who is the subject of the complaint. The inmate may use an alternative method of filing, including
submission of the complaint directly to the warden
.
(3)
Complaints filed under this section will be referred for
a PREA
investigation.
Department policy shall address the requirements that investigations regarding allegations of sexual abuse be completed within
established time frames.
(
4
)
Third parties, including fellow inmates, staff members, family members, attorneys, and outside advocates, shall be permitted to assist an inmate in filing a request for administrative remedies relating to allegations of sexual abuse and shall also be permitted to file such requests on behalf of inmates.
Requests for administrative remedies filed under this section will be referred for a PREA investigation.
(
5
)
Emergency grievance procedures for complaints alleging a substantial risk of imminent sexual abuse will be handled in the following manner
:
(a)
T
he
inmate may contact any staff member who is not the subject of the allegation for immediate corrective action.
(b)
The i
nmate may file
a
complaint.
Complaints collected under
s.
DOC
310.0
8
shall be immediately forwarded to the warden to determine if immediate action is warranted.
(c)
Reports of substantial risk of imminent sexual abuse outside of the complaint process under this chapter shall be immediately forwarded to the warden to determine if immediate action is warranted.
(d)
Further response will be in accordance with department policy.
(6
)
The warden may discipline an inmate for filing a complaint related to alleged sexual abuse only
if
the warden demonstr
ates that the inmate filed the complaint
in bad faith.
(7)
Time frames are waived for PREA related complaints.
DOC
310.
0
9
Filing
of complaint a
ppeal
.
(1)
An inmate may appeal the reviewing authority decision to the CCE within 1
4
days after the date of the decision or if the inmate does not receive a
decision
45 days
after
the date
the ICE
enters
t
he complaint
.
(2)
Appeals
shall
meet
all of
the following
requirements
:
(a)
Be submitted
on a complaint form provided by the department
.
(b)
Be legibly
handwritten or
typed.
(c)
Be filed
only under the name by which the inmate was committed to the department or the legal name granted by a court.
(d)
Include the
inmate’s
original signature.
(
e
)
Not exceed 500 words total and not exceed two pages.
(f)
Provide relevant supporting documentation
,
which may be accepted at the discretion of the CCE
.
(g)
Be limited
to the issue raised in the original complaint.
(3)
An appeal will not be processed and a referral for disciplinary action may occur
in accordance with
ch.
DOC 303
if the complaint contains any of the following:
(a) Obscene, profane, abusive
,
or threatening language unless such language is necessary to describe the factual basis of the complaint.
(b)
A foreign substance.
DOC 310.
10
Processin
g complaints
.
(1)
The
IC
E shall collect
and date stamp
all complaints
with the date collected
.
(2)
The ICE shall
accept
the complaint
, return
the complaint in accordance with sub. (5)
,
or reject
the
complaint
in accordance with sub. (6)
.
(3
)
The ICE shall assign
a
file number
and classification code to an accepted or rejected complaint.
(4
)
The ICE
shall give written notice to the inmate within 10 days of collection that the complaint has been received.
(5
)
The ICE may return a complaint
within 10 days
if it does not meet the criteria under
s.
310.0
7
(1)
,
(
3
)
,
(
4
)
,
and
(
5
)
to
permit the inmate to resubmit the complaint after correcting issues noted by the ICE.
Inmates will be given one opportunity to correct and resubmit a
returned
complaint.
The ICE may grant up to 10 days for receipt of the corrected complaint.
(
6
)
The ICE may reject a complaint for the following reasons:
(a)
The inmate submitted the complaint solely for the purpose of harassing or causing a
person to suffer emotional distress or to fear bodily injury.
(b)
The inmate does not raise a
n
issue regarding policies, rules, living conditions, or employee actions
that
personally affect the inmate or institution environment
.
(c)
The issue lacks merit or is otherwise frivolous.
(d
)
The inmate does not
provide
sufficient
information
to support a complaint.
(e
)
The inmate submitted the complaint beyond 14 days
after
the date of the occurrence giving rise to the complaint and provides no good cause for th
e ICE to extend the time limits.
(f
)
The issue is moot.
(g
)
The issue has already been addressed through the
inmate’s
prior use of the ICRS
.
(h
)
The complaint
contains obscene, profane, abusive
,
or threatening language unless such language is necessary to describe the factual basis of the substance of the complaint.
(
i
)
The complai
nt contains a foreign substance
, in which case all of the following apply:
1.
Complaints
that
contain a foreign substance will not be included in the complaint record and will be disposed of in accordance with institution procedure.
2.
Inmates who submit a complaint containing a foreign substance may be subject to disciplinary action in accordance with
ch.
DOC 303
.
(7
)
The ICE shall
have full access to
the
institution
,
inmates,
employee
s
, and department records
to investigate the complaint
.
(
8
)
The ICE shall give priority to complaints dealing with health
or
personal safety.
(
9
)
The ICE shall either reject the complaint
or send a recommendation to the appropriate reviewing authority within
3
0 days from the date of
receipt
.
(
10
)
An inmate may appeal a rejected complaint within 10 days to the appropriate reviewing authority who shall only review the basis for the rejection of the complaint.
The reviewing
authority’s
decision is final.
(
1
1
)
The
complaint record shall include the names of persons interviewed and
evidence
that
is relevant, material
,
and not repetitious
.
(
1
2
)
The ICE may recommend to
the reviewing authority that the complaint be
affirm
ed or dismissed in whole or in part.
DOC 310.1
1
R
eviewing authority decision
.
(1)
The reviewing authority shall make a decision within
15
days following receipt of the recommendation
under s.
DOC 310.10 (12)
or appeal of
a
rejected complaint
.
(2)
The reviewing authority shall
affirm or dismiss the complaint in whole or in part or r
eturn the complaint to the ICE for further
investigation
.
(3)
If the
inmate
does not receive
a
decision within
45
days after the
date of acknowledgement
under s.
DOC 310.1
0
(
4
)
,
the
inmate
may appeal to the CCE.
DOC 310.1
2
Review by corrections complaint examiner.
(1)
A
n inmate
may appeal the
reviewing authority decision within 1
4
days after the date of the decision by filing a
typed or legibly printed
request for review with the
CCE
on forms supplied for that purpose.
The institution shall make these forms accessible to inmates.
(2)
The CCE may accept, return
,
or recommend rejection of an appeal or complaint.
(3)
The CCE will only address issues raised in the original complaint
.
(
4
)
The CCE
shall
return
an appeal
if any
of the following
apply
:
(
a
)
A
n original complaint
has not been
filed
except as provided
under
s.
DOC 310.
08
.
(
b
)
The complaint
has been rejected.
(c)
The appeal is premature.
(d
)
The appeal
does not list the complaint file number or
contains more
than one complaint file number.
(e
)
The appeal d
oes not meet the criteria listed under s.
DOC 310.
10
.
(
5)
The CCE may recommend rejection of an appeal
not filed in accordance with
DOC 310.
09
.
(
6
)
Upon good cause
as determined by the
CCE
,
an appeal filed
later than 1
4
days after
the
date of
the
reviewing authority
decision
may be accepted
.
(
7
)
The CCE shall have full access to the
institution
, inmates, employees, and department records to investigate the appeal.
(
8
)
The CCE shall give priority to
health or personal safety
complaints.
(
9
)
For all accepted appeals, t
he CCE shall
recommend t
hat the reviewing authority decision be
affirm
ed
or dismiss
ed,
in whole or in part
, and send its recommendation
to the secretary within 45 days of receipt of the appeal.
The CCE may extend the time for submitting a recommendation
with
notice
provided
to the inmate.
DOC 310.1
3
Secretary's decision.
(1)
The secretary shall make a decision within
45
days following receipt of the
CCE
’
s
recommendation.
The secretary may extend the time for making a decision for
good
cause
with
notice
provided
to the inmate.
(2)
The secretary shall
affirm or dismiss the
CCE’s recommendation
,
in whole or in part
,
or re
turn the appeal to the CCE for further
investigation
.
(3
)
The
secretary’s
decision is final.
(4)
If the inmate does not receive the
secretary’s
written decision within
90
days of the
date of
receipt
of the appeal
in the
CCE’s
office
, the inmate shall consider the administrative remedies to be exhausted, unless the time has been extended under sub. (1).
DOC 310.
1
4
Complaint processing
following
release
.
If an inmate is released
from an institution
prior to a decision
being made on a complaint or appeal, the complaint will be processed in accordance with this chapter.
DOC 310.1
5
Resolution
of affirmed complaint.
(1)
If the decision requires a change in administrative practice
or policy
, the department shall implement the change
as soon as practicable
.
(2)
If
the resolution of an affirmed
complaint has not been implemented within
60
days, the
inmate
may infor
m the decision-maker in writing
.
DOC 310.1
6
Confidentiality.
(1)
Except as otherwise provided in this section, the department shall ensure
that
complaints filed
under this chapter
are confidential.
(2)
ICRS
staff
may reveal the identity of
inmates
and the nature of the complaint to the extent
reasonably
necessary to investigate the complaint, implement the remedy, or
to respond
to litigation.
(
3
)
The reviewing authority
or
secretary
may waive confidentiality of a complaint if the security, safety, or health of the institution or any person is involved
.
(4)
The reviewing authority or
secretary
may waive confidentiality of a complaint
to satisfy PREA standards and reporting requirements.
(
5
)
A c
op
y of or reference to
a complaint or decision
may not be
placed
in
the inmate’s
institution
files
except
with authorization from the reviewing authority
or as required under
sub.
(2) or (3)
.
(
6
)
An inmate may file a complaint alleging a breach of confidentiality under this section.
(
7
)
An inmate waives confidentiality by making known any aspect of a complaint to persons outside the ICRS.
(
8
)
The confidentiality of the complaint process
does
not prohibit disciplinary action
under
ch.
DOC 303
for
misuse
of the ICRS
.
Misuse of the ICRS
includ
e
s
complaints
that are intended to
do any of the following
:
(a)
Harass.
(b)
Cause emotional distress.
(c)
T
hreaten
to cause harm or bodily injury.
(d)
E
rode the integrity or credibility of employees by knowingly providing
false statements.
(e)
D
isrupt
department or
institution
operations
.
(
9
)
ICRS
staff
may access an
inmate’s
protected health information to investigate, make recommendations, render decisions
,
and decide appeals
when access is related to the complaint,
subject to
any of
the following:
(a)
Written authorization is not required from the inmate.
(b)
Access may include verbal information from a health provider and written health records related to the inmate complaint.
(c)
Protected health information entered into
the record
shall be limited to the minimum necessary to process the inmate complaint
.
(
10
)
For inmates in
restrict
ive
housing
,
staff may inspect
correspondence
in the presence of the inmate
o
nly to the extent necessary to determine if
it
contains contraband.
(1
1
)
Inmates will not have access to other inmate’s complaints through the ICRS.
SECTION
3
. Chapter DOC 310 appendix is repealed.
DOC 327.26
(2)
(a)
Under s.
DOC
310.06
(2)
, the complaint shall be considered denied and may be appealed if the superintendent does not send his or her decision to the complainant within 23 calendar days after the ICI’s receipt of the complaint; and
DOC 327.26
(2)
(b)
Under
s. DOC310.03
(15), the superintendent may designate a CRC staff member to function as ICI in addition to other duties.
Complaint investigation does not have to be the primary responsibility of this person;
SECTION
6
.
This rule shall take effect on the first day of the month following publication in the Wisconsin Administrative Register as provided in s.
227.22 (2) (intro.)
, Stats.
SECTION 7.
Section
Initial Applicability.
Complaints received
on
the
effective
date
of this rule
will be processed under the new rule.
SECTION 8.
Effective Date.
This rule shall take effect on the first day of the month following publication in the Wisconsin Administrative Register as provided in s.
227.22 (2) (intro.)
, Stats.
SECTION 9.
Regulatory Flexibility Analysis.
The proposed rule will not have an effect on small
businesses
, as defined under s.
227.114
.
Fiscal Estimate.
See Attached.
