BOP Program Statement 1330.18 § 16

ELIMINATION ACT (PREA)

Title 42 U.S.C. §15607 (a) required the Attorney General to publish a final rule adopting national

standards for the detection, prevention, reduction, and punishment of prison rape. Title 42 USC

§ 15607(b) states that the national standards shall apply immediately to the Federal Bureau of

Prisons upon adoption of the final rule. The final rule is published in Title 28 C.F.R. Part 115.

This section only addresses administrative remedy procedures in relation to issues of sexual

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abuse, and shall not constitute the sole response of the agency to allegations of sexual abuse.

Appropriate steps to address the safety and security of inmates shall be made in accordance with

the other provisions of the PREA regulations, and the Program Statement Sexually Abusive

Behavior Prevention and Intervention Program.

§115.52 Exhaustion of administrative remedies.

(a) An agency shall be exempt from this standard if it does not have

administrative procedures to address inmate grievances regarding sexual abuse.

The Federal Bureau of Prisons has an administrative remedy system, and therefore section

115.52 (a) does not apply. The following sections, 115.52 (b) through 115.52 (g), apply to

inmates seeking a formal review of issues relating to sexual abuse. For any issue not specified in

sections 115.52 (b) through 115.52 (g) below, the administrative remedy system outlined in

Sections 1 through 15 of this Program Statement applies.

(b)(1) The agency shall not impose a time limit on when an inmate may submit a

grievance regarding an allegation of sexual abuse.

“Sexual abuse” is defined for the purposes of this section in 28 C.F.R. § 115.6, as referenced in

the Bureau’s policy on Sexually Abusive Behavior Prevention and Intervention Program.

Administrative remedies regarding allegations of sexual abuse may be filed at any time. For all

other issues, the 20 calendar day period specified in Section 8 of this Program Statement shall be

followed. Accordingly, administrative remedies regarding an allegation of sexual abuse shall not

be rejected as untimely under Section 11 of this Program Statement, above.

Once filed, the inmate should follow the time requirements for appeal, as stated in Section 9 of

this Program Statement, above.

(2) The agency may apply otherwise-applicable time limits on any portion of a

grievance that does not allege an incident of sexual abuse.

If the inmate includes on a single form multiple unrelated issues, the portion of the

administrative remedy regarding allegations of sexual abuse should be accepted and processed.

The inmate shall be advised to use a separate form for each unrelated issue.

(3) The agency 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.

Inmates are not required to attempt informal resolution under Section 7 of this Program

Statement, above, regarding allegations of sexual abuse.

(4) Nothing in this section shall restrict the agency’s ability to defend against an

inmate lawsuit on the ground that the applicable statute of limitations has

expired.

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(c) The agency shall ensure that

(1) an inmate who alleges sexual abuse may submit a grievance without

submitting it to a staff member who is the subject of the complaint, and

(2) such grievance is not referred to a staff member who is the subject of the

complaint.

Matters in which specific staff involvement is alleged may not be investigated by either staff

alleged to be involved or by staff under their supervision. Allegations of physical abuse by staff

shall be referred to the Office of Internal Affairs (OIA) in accordance with procedures

established for such referrals. Where appropriate, e.g., when OIA or another agency is assuming

primary responsibility for investigating the allegations, the response to the Request or Appeal

may be an interim response and need not be delayed pending the outcome of the other

investigation.

(d)(1) The agency shall issue a final agency decision on the merits of any portion

of a grievance alleging sexual abuse within 90 days of the initial filing of the

grievance.

(2) Computation of the 90-day time period shall not include time consumed by

inmates during the course of an administrative appeal.

(3) The agency may claim an extension of time to respond, of up to 70 days, if the

normal time period for response is insufficient to make an appropriate decision.

The agency shall notify the inmate in writing of any such extension and provide a

date by which a decision will be made.

(4) At any level of the administrative process, including the final level, if the

inmate does not receive a response within the time allotted for reply, including

any properly-noticed extension, the inmate may consider the absence of a

response to be a denial at that level.

Time frames in this section are consistent with Section 12 of this Program Statement, above.

(e)(1) Third parties, including fellow inmates, staff members, family members,

attorneys, and outside advocates, shall be permitted to assist inmates in filing

requests for administrative remedies relating to allegations of sexual abuse, and

shall also be permitted to file such requests on behalf of inmates.

(2) If a third party files such a request on behalf of an inmate, the facility may

require as a condition of processing the request that the alleged victim agree to

have the request filed on his or her behalf, and may also require the alleged

victim to personally pursue any subsequent steps in the administrative remedy

process.

(3) If the inmate declines to have the request processed on his or her behalf, the

agency shall document the inmate’s decision.

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This section is applicable only to allegations of sexual abuse; inmates must personally file

administrative remedies relating to other issues.

The inmate’s approval of the remedy filed on his or her behalf shall be documented, and include

the inmate’s signature. An inmate’s decision to decline to have the remedy processed on his or

her behalf should also be documented, and include the inmate’s signature. The documentation

should be retained in the agency Administrative Remedy File at the appropriate level and on

Sentry in accordance with Section 13 of this Program Statement.

Responses to third party remedies should be provided to the inmate who is the subject of the

remedy.

An inmate is required to personally file any subsequent appeal. However, the inmate may

receive assistance in preparing the appeal in accordance with Section 10 of this Program

Statement, above.

(f)(1) The agency shall establish procedures for the filing of an emergency

grievance where an inmate is subject to a substantial risk of imminent sexual

abuse.

This section applies when an administrative remedy alleges a substantial risk of imminent sexual

abuse. If a remedy meets both of these criteria, the remedy will receive expedited processing, as

described below.

Section 12 of this Program Statement provides for an “emergency” administrative remedy as

required by section 115.52(f). An expedited BP-9 (BP-229) response shall be provided if a

remedy is determined to be of an emergency nature which threatens the inmate's immediate

health or welfare. See 28 C.F.R. § 542.18.

The inmate shall clearly mark “Emergency” on the BP-9 (BP-229), and explain, in writing, the

reason for filing as an emergency administrative remedy under this section.

If an inmate files an emergency administrative remedy with the Warden, the local Administrative

Remedy Coordinator shall make a determination as to whether the remedy alleges a substantial

risk of imminent sexual abuse. If the local Administrative Remedy Coordinator agrees that the

administrative remedy meets the criteria for an emergency administrative remedy, the request

shall be accepted, and receive expedited processing as stated below.

If the remedy is rejected for failing to meet the criteria of an emergency grievance under this

section, a rejection notice will be provided to the inmate, and the remedy will be processed in

accordance with the usual time frames indicated above.

(2) After receiving an emergency grievance alleging an inmate is subject to a

substantial risk of imminent sexual abuse, the agency shall immediately forward

the grievance (or any portion thereof that alleges the substantial risk of imminent

sexual abuse) to a level of review at which immediate corrective action may be

taken, shall provide an initial response within 48 hours, and shall issue a final

agency decision within five calendar days. The initial response and final agency

decision shall document the agency’s determination whether the inmate is in

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substantial risk of imminent sexual abuse and the action taken in response to the

emergency grievance.

If an inmate files the emergency grievance with the institution under Section 12 of this Program

Statement, above, alleging a substantial risk of imminent sexual abuse, an expedited BP-9 (BP-

229) response shall be provided within 48 hours. Best efforts to provide BP-10 (BP-230) and

BP-11 (BP-231) responses within five calendar days should also be made in accordance with the

provisions on exhaustion referenced above. If the inmate does not receive a response within the

time allotted for reply, the inmate may consider the absence of a response to be a denial at that

level.

Inmates may also file “sensitive” administrative remedies under Section 8 of this Program

Statement, above, regarding allegations of sexual abuse. If an inmate reasonably believes the

issue is sensitive and the inmate’s safety or well-being would be placed in danger if the remedy

became known at the institution, the inmate may submit the remedy directly to the appropriate

Regional Director. See 28 C.F.R. § 542.14 (d) (1). “Sensitive” grievances should be processed

in accordance with Section 8 and Section 11 of this Program Statement, and the expedited

response times specified in this section do not apply.

(g) The agency may discipline an inmate for filing a grievance related to alleged

sexual abuse only where the agency demonstrates that the inmate filed the

grievance in bad faith.

The maintenance of an effective sexual abuse prevention policy, and general secure and orderly

running of an institution, requires that inmates be held responsible for manipulative behavior and

false allegations. Allegations of false reports will be considered by staff in accordance with the

procedures and standards of the Inmate Discipline Program policy.

17. INSTITUTION SUPPLEMENT

Each Warden shall forward a copy of any Institution Supplement developed to implement this

Program Statement to the Regional Administrative Remedy Coordinator and to the National

Inmate Appeals Administrator in the Central Office.

Records Retention Requirements

Requirements and retention guidance for records and information applicable to this program are

available in the Records and Information Disposition Schedule (RIDS) on Sallyport.

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