SB 77 was introduced on behalf of the Oregon Department of Corrections (DOC). In its original form, SB 77 replicated the exhaustion requirements in the federal Prison Litigation Reform Act (PLRA). Under these requirements an inmate can only bring a claim for mistreatment within a facility after he or she has exhausted the administrative grievance process.

A failure to use this system in a timely manner will result in a case being thrown out before a judgment on the merits. The ACLU opposes the PLRA and the results across the country have been devastating on incarcerated individuals.

SB 77 was heard in the Senate Judiciary Committee on the first day of session. The DOC testified that SB 77 was intended to address the increased harassment of inmates filing small claims actions against other inmates. The majority of SB 77 had nothing to do with this issue, and instead, was a wholesale restriction on inmate access to the judicial system. It prohibited an inmate from bringing any action against a public body unless the inmate had exhausted all administrative remedies. This would have constituted a fundamental policy change, completely independent of the purported inmate-to-inmate small claim issue.

In a January 2008 letter to Congress, the Chair of the National Prison Rape Elimination Commission (created by Congress) wrote that the effect of the same type of exhaustion requirement in the federal PLRA on eliminating sexual abuse in U.S. prisons and jails has undermined the ability of sexual assault victims to gain access to crucial judicial oversight and to obtain necessary relief.

In Oregon, like elsewhere, grievance procedures and requirements are set forth by administrative rules. In short, these provisions establish limited timelines and procedural barriers with which inmates must comply in pursuing a grievance. In Oregon, an inmate must grieve an issue within 30 days of the event and may only raise one event per complaint. Not all inmates can or will be able to comply for many reasons, including: mental capabilities, fear of retaliation, emotional trauma, disabilities, medical crises, language skills, limited access and comprehension of the process. It does not extend deadlines or give any other meaningful resources to inmates. If an inmate does not use the right form, then the grievance will be rejected. If an inmate is unable to file a grievance properly or in a timely manner, the inmate will be barred from pursuing further action within the grievance process. Having failed to pursue all administrative remedies, the inmate would be barred from pursuing a judicial remedy.

The structure of the exhaustion requirement allows inmates’ access to the courts to be controlled by the people that the inmate is trying to sue. For example, a prison or jail can institute as many steps in its grievance procedure as it desires. It can also make the filing deadlines as short as it wants. In one ACLU prison project case in another state, after the inmate successfully went through the three-stage grievance process, the prison simply changed it to a seven step process in order to limit the inmate’s access to a remedy.

The ACLU was the only organization to testify against SB 77. With the help of the ACLU Prison Project, we submitted written testimony from Jeanne Woodford (the former warden of San Quentin State Prison and former director of the California Department of Corrections) and Chase Riveland (the former Secretary of the Washington State Department of Corrections and the former Executive Director of the Colorado Department of Corrections). They urged the Committee not to enact a law that requires prisoners to exhaust all administrative remedies prior to filing suit against a public body in court.

While we would have preferred SB 77 to die in the Senate Judiciary Committee, it was clear that Committee was interested in moving some version of the bill forward. The Senate Judiciary Committee requested that the DOC and the ACLU meet to discuss the ACLU’s concerns. Following this meeting, the DOC agreed to remove the exhaustion requirement entirely, modify other provisions of the law so that it ultimately set some additional requirements related to inmate small claims actions against the government and barred inmate to inmate small claim actions. Access to circuit courts for any kind of action remained untouched. With the most egregious portions removed, the ACLU was neutral and SB 77 A-Eng. passed both chambers.