Thompson v. United States Federal Prison Industries, 73-2573. Summary Calendar.

• Decision Date: 19 April 1974
• Docket Number: No. 73-2573. Summary Calendar.,73-2573. Summary Calendar.
• Citation: 492 F.2d 1082
• Parties: Willie THOMPSON, Plaintiff-Appellant, v. UNITED STATES of America, FEDERAL PRISON INDUSTRIES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

492 F.2d 1082 (1974)

Willie THOMPSON, Plaintiff-Appellant, v. UNITED STATES of America, FEDERAL PRISON INDUSTRIES, Defendant-Appellee.

No. 73-2573. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

April 19, 1974.

Willie Thompson, pro se.

Ralph E. Harris, Asst. U. S. Atty., ElPaso, Tex., for defendant-appellee.

Before BELL, GODBOLD and GEE, Circuit Judges.

BELL, Circuit Judge:

Willie Thompson, who is presently imprisoned in the Federal Correctional Institution at Anthony, New Mexico-Texas, filed an action, styled as a mandamus action under 28 U.S.C.A. § 1361, in the district court below seeking "back compensation" and industrial good time for an injury allegedly suffered during the course of his employment with the Federal Prison Industries.¹ The district court granted the Government's motion to dismiss. We vacate and remand with direction.

The district court dismissed on the ground that 28 C.F.R., § 301.1 et seq. requires an inmate to be within 30 days of release before claims for compensation can be filed and that appellant had not exhausted his administrative remedy in that the Inmate Compensation Board had not finally ruled on appellant's claim for disability benefits. As will be seen, the district court did not reach the question whether appellant was due partial interim compensation under the applicable regulations.

Appellant alleged that in November, 1971 while confined in the United States Penitentiary at Leavenworth, Kansas, he injured his lower back in the process of moving racks of shoes, a job to which he had been assigned by the Federal Prison Industries. Appellant alleged that he reported the injury to his work supervisor. He was hospitalized in that institution, but later transferred to the Medical Center at Springfield, Missouri, where he underwent surgery for the removal of a ruptured disk in January or February, 1972. He further alleged that it is still necessary for him to use back and leg braces, as well as crutches to move about.

As a result of this allegedly work-related impairment, appellant sought wages and good time credits that he would have earned had the injury not occurred. He rests his claim on 28 C.F.R. § 301.10.²

Appellant also argued that he had exhausted all administrative avenues for relief and attached to his answer to the Government's motion to dismiss, copies of letters denying relief from the Safety Officer of the Springfield Penitentiary and the Director of the Bureau of Prisons.³

By virtue of the enactment of 18 U.S.C.A. § 4126, the Federal Prison Industries is authorized to compensate inmates or their dependents for injuries sustained in the course of their employment with the corporation. These payments are to be made in accordance with the rules and regulations promulgated by the Attorney General of the United States. 28 C.F.R., § 301 et seq. sets forth the procedures and regulations governing inmate accident compensation. 28 C.F.R., § 301.5 includes the bar to processing a claim for accident compensation until 30 days before the disabled prisoner is to be released from custody. This remuneration is intended, like civilian workmen's compensation laws, to supplement lost wage capacity when the prisoner returns to the economic community; and therefore cannot be practically determined until near the release date. Included among these regulations is a provision permitting payment of partial compensation to an inmate for lost wages resulting from his industries-related injury.⁴ It is evident by the terminology of the section itself that this kind of compensation is not only claimable, but also collectable, while the injured is still in custody. Cf. Granade v. United States, 2d Cir., 1966, 356 F.2d 837, 843.

The focus of appellant's claim is for relief in terms of the partial interim 66 2/3 per cent compensation allowed under the regulation, note (4), and the good time credit, if any, which may flow from such relief. This narrow claim was not considered by the district court. Indeed, the government missed the import of the claim altogether in its answer. It will be necessary therefore to vacate and remand the case to the district court for consideration of the claim as filed rather than as it was construed by the government.

On remand the district court should have in mind that the matter of awarding compensation or lost pay under the statute and regulations is a matter for determination by the prison authorities, subject to the supervision of the Attorney General of the United States, 18 U.S.C.A. § 4128. The decision of the prison authorities, once made, is conclusive in the absence of a showing that the decision was arbitrary or capricious.⁵

The federal prison system has now established a formal administrative remedy, effective April 1, 1974, for consideration of complaints such as that of appellant here. Bureau of Prisons policy statement 2001.6, dated February 14, 1974. (Copy appended hereto.) Because the case is to be reconsidered and because it is not clear that it has received the attention of the prison authorities as being based on the claim for partial compensation under 18 C.F.R., § 301.10, supra, the district court is directed to require that appellant exhaust his prison remedy but to retain jurisdiction of the case for a reasonable time while exhaustion is in process.⁶ Cf. Ross v. Henderson, 5 Cir., 1974, 491 F.2d 116.

Vacated and remanded with direction. Appendix to follow.

APPENDIX

BUREAU OF PRISONS WASHINGTON, D. C. 20537 |---------| Policy Statement | 2001.6 | |---------| SUBJECT: ADMINISTRATIVE REMEDY OF COMPLAINTS |------------------| INITIATED BY OFFENDERS IN BUREAU OF | February 14, 1974| PRISONS FACILITIES |------------------| ----------------------------------------------------------------------------- 1. PURPOSE. This Policy Statement establishes procedures by which offenders may seek formal review of complaints which relate to their imprisonment if informal procedures have not resolved the matter. 2. DISCUSSION. Most complaints can be resolved quickly and efficiently through direct contact with staff who are responsible in the particular area of the problem. This is the preferred course of action. Staff awareness of the importance of prompt attention and reply to these routine requests will minimize the use of formal complaint procedures. A viable complaint procedure will serve the inmates, the administration and the courts. It will provide the inmates with a systematic procedure whereby issues raised relating to their confinement, will receive attention and a written, signed response within a short period of time from the administration, including the Central Office, if appealed. Such a procedure assists the administration by providing an additional vehicle for internal solution of problems at the level having most direct contact with the offender. It also provides a means for continuous review of administrative decisions and policies. Further it provides a written record in the event of subsequent judicial or administrative review. A viable Administrative Remedy Procedure should reduce the volume of suits filed in court and will develop an undisputed record of facts which will enable the courts to make more speedy dispositions. If the inmate cannot resolve his complaint informally, and wishes to utilize this Administrative Remedy Procedure, he shall file his complaint with the Warden or his designee. If not satisfied with the institution's reply, he may appeal to the Director or his designee. An inmate may, if he chooses, forward his complaint through the Prisoners' Mail Box or he may file his law suit directly with the appropriate court. However, courts frequently require evidence that administrative remedies have been exhausted before ruling on a complaint and inmates should be so advised. 3. ACTION. The Chief Executive Officer of each Bureau of Prisons facility is responsible for the establishment and monitoring of an Administrative Remedy Procedure which is compatible with the provisions of this Policy Statement. The operation of the program will be the responsibility of the Warden or the Associate Warden. The investigation of complaints and the drafting of the reply should ordinarily be done by department heads or their representatives, subject to review of the Warden or Associate Warden. The final response shall be signed by both the department head or his representative, and the reviewer.

4. PROCEDURES. All inmates should be advised of this Administrative Remedy Procedure. This can be accomplished, among other means, by posting the local Policy Statement on inmate bulletin boards, through inmate publications and by including it in the admission-orientation program. Where appropriate, the local Policy Statement should be translated into Spanish. It is suggested that the forms be maintained by the Correctional Counselors wherever practicable. Experience has demonstrated that complaints can frequently be resolved by the counselor. A record of filings under this procedure shall be maintained in a log and include at least the...