Litigating Conditions of Confinement

10/21/2020

The below case makes me wonder what the administrative remedy process actually looks like for conditions of confinement claims. Has anyone represented a client in such a matter? A Westlaw search for these cases in the 10th Circuit and D. Kansas (where Leavenworth is) reveals only 9 reported cases that made it to federal court, and in many of them the case is dismissed for failure to exhaust.

Brenner Fissell

EIC

2 Comments

Bill Cassara

10/21/2020 04:56:33 pm

Most clients with whom I discuss this issue know that filing a 138 complaint is a direct ticket to more mistreatment. In the short term facilities they just deal with it. I spoke to a client today who said they have been denied medical care due to COVID, and that a guard slapped him when he complained. He won't pursue it further as he is now a "short-timer."

Capt Nick Stewart, USMC

10/22/2020 09:02:48 am

Over the course of 1 year in confinement, I was in the Quantico brig, Camp Lejeune brig, and like LaViolet, in the Charleston brig.

Unlike LaViolet, I never had an issue with basic human dignity and physical safety. But at probably each facility, I filed complaints about certain things, mainly about deliberate administrative negligence that prejudiced me.

Not to say that what I offer is gospel, the following administrative process is how I went about addressing problems:

1) Submit to the appropriate facility staff member a DD-510, requesting the issue be resolved. Make a handwritten copy for yourself. Wait 5 business days.

2) When the original DD-510 goes unanswered, submit another DD-510 to the staff member above the original staff member who didn't respond. Refer to the originally submitted DD-510. Make a handwritten copy for yourself. Wait 5 business days.

3) Submit a sealed request mast to the brig CO that refers to the unanswered DD-510s. If the issue is serious enough, skip the DD-510s altogether, and submit a sealed request mast. Make a handwritten copy for yourself. (I requested mast on at least 1 if not 2 occasions.)

4) Point to chapter and verse in NAVMC 1700.23, and professionally remind staff they have 24 hours to get a written response from the CO. When Chief Greenway refuses to send it up to the CO and says, "We don't follow no NAVMC 1700.23," say, "Okay," and go back to your cell. On your way back to your cell, ask to see your counselor, and let him know that you are going back to your cell to retrieve the Article 138 complaint you have already written.

5) When senior brig staff come to you in the galley to let you know what they have done to fix your issue, and then when they ask if you want to withdraw your request mast as moot, say, "No, I would like the request mast to remain on record and to get a written response from the CO."

As everyone can see, the administrative remedy process in confinement is actually very simple. There is no reason a service member such as PFC LaViolet should have had trouble first addressing the conditions of his confinement by exhausting the administrative remedy process available to him at Naval Consolidated Brig Charleston. And there is no reason why a PFC should have had trouble understanding that he would need to pursue medical help so that he could later substantiate his claim with "clinically documented psychological trauma."

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Litigating Conditions of Confinement

Brenner Fissell

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