What we are generally referred to as "Citizen's Complaints" in California are based on Penal Code §832.5 (See. FN. 1.), and are complaints which can be made by any citizen, including prisoners, against a person who has Peace Officer status. California prison guards are peace Officers under state law. The California Department of Corrections ("CDC") also has a different type of citizen's complaint procedure where any citizen, except prisoners, can bring a complaint regarding Institution or Department policies or procedures.  The two different processes are often confused and/or mixed together.

For free citizens, the Penal Code ("PC") §832.5 complaint made against prison staff is made directly to the Warden of the Institution. The policy and procedures by a free citizen is done in exactly the same manner, so for any non-prisoner free citizen there is little difference in the process. However, for prisoners, only the PC §832.5 citizen's complaint is available, and it must be done through the regular appeals process. The policies and procedures type citizens's complaint directly to the Warden is unavailable to prisoners. In theory, both a prisoner and a free citizen should also be able to make a citizen's complaint directly to the CDC Internal Affairs Division, the Inspector General's Office, or the Attorney General's Office. In practice, however, these agencies want the prisoner to first go through the regular appeals process, often at great personal risk.

The policies and procedures type citizen's complaint for free citizens is not located with the regular appeals regulations, but rather is in with the visiting regulations. However, the statutory language is such that it appears to apply to all appeals, not just visiting appeals, when filed by persons other than prisoners. Based on practice and procedure, complaints are indeed accepted for any issue by following the guidelines set forth in Title 15, California Code of Regulations ("15 CCR"), §3178 (b). (See FN. 2 for text) While this is a form of a citizen's complaint, and sometimes called such, it is not necessarily pursuant to PC §832.5, but can be a PC §832.5 complaint. It can apply to any type of complaint by a non-prisoner.

As a tactical method, when attempting to draw quick attention to a problem, it has been long recommended that the prisoner pursue the issue through the regular appeals system, in California the Form CDC-602, while at the same time, the concerned free citizen also files a parallel complaint through the citizen's complaint process. If there are any intentions of subsequent litigation, then the prisoner must pursue his complaint through each and every step of the three tiered process to satisfy exhaustion of administrative remedy requirements.

When a prisoners wish to file a civil rights violation lawsuit pursuant to Title 42, United States Code ("U.S.C."), §1983, in federal court, the prisoner must now first fulfill the requirements of the Prison Litigation Reform Act ("PLRA"), part of which is located at 42 U.S.C., §19976 (a), (See FN. 3.) The issue is unsettled in the courts as to whether or not a citizen's complaint will fulfill the PLRA requirements, therefore, current thinking is the prisoner should exhaust the regular appeals process in addition to any citizen's complaint.

To date, the only exceptions to the regular appeals process were where the system was not available to the prisoner, e.g., a medical condition may not permit the prisoners to timely file a regular appeal on his own behalf, incompetent prisoners, illiterate prisoners, etc., may possibly allow the filing of a citizen's complaint by another on behalf of the aggrieved prisoners to be accepted as a demonstration of exhaustion of administrative remedies. However, the burden will be on the prisoner to affirmatively prove these unusual circumstances made the regular appeals system unavailable to him. The defendants, usually represented by the State Attorney General, will surely bring a Motion for Summary Judgment on this failure to exhaust issue.

As one federal court in Sacramento stated in an unpublished order that cited the Third Circuit, "Thus, the California citizen's complaint procedure would appear to encompass the characteristics of an available administrative remedy--that is, the citizen complaint process is understandable, expeditious, and treated seriously. Nyhius v. Reno, 204 F.3d 64, 67 (3^rd. Cir. 2000). See also In Re Bayside Prison Litigation, 190 F.Supp.2d 755, 769-73 (D.N.J. 2002). Nevertheless, the question remains whether an inmate can bypass the 'ordinary' prison grievance system in favor of the more streamlined citizen's complaint by having an outsider file the complaint."

This is a very unsettled area of law, a gray area, and therefore it is always recommended that the prisoner make every effort to exhaust administrative remedy through the regular prison grievance system. In the above example, the court is referring to the filing of the citizen's complaint by another on behalf of a prisoner who was medically unable to utilize the regular appeals process. In that case a final decision has not yet been made, however, the magistrate is recommending dismissal because the prisoner has only alleged the medical condition prevented access to the regular appeals process, but cannot prove this fact adequately even though CDC medical records admit to the broken bones and other injuries. This is not enough, the prisoners is also expected to be able to prove the degree of pain from the injuries, and that the level of pain was so debilitating that it rendered the prisoner unable to file an appeal through the regular appeals system. This type of proof would require access to staff and inmate witness that is not allowed to pro se prisoner.

However, if the prisoner were to file a PC §832.5 citizen's complaint through the regular appeals process (See FN. 4.), there is every reason to believe this would satisfy the PLRA for the issues covered in such an appeal--providing the prisoner completely exhausts all three levels of the process. There are many requirements and hurdles for a prisoner inside the prison to overcome to utilize these appeals systems, but few requirements for the free citizen outside the prison to file a complaint.

For persons wishing to make PC §832.5 citizen's complaints against other Peace Officers, e.g., county sheriff deputies, or local police officers, each department has a procedure and will provide a form upon request. These complaints are normally processed by the department's Internal Affairs Division ("IAD"), and are taken quite seriously in most departments. Citizen's complaints on any governmental agency can also be made to a county grand jury by requesting a form from the County Clerk.

The problem remains, that anyone who has dealt with a governmental agency is well aware of, is that when an administrative agency is in systemic denial of its problems, a much publicized common occurrence in the California prison system, these problems will be denied in any complaint, including the citizen's complaint. However, an administrator is far less likely to put his or her name on a denial to a free citizen's complaint than on a denial sent to a prisoner. Especially without first investigating the alleged problem. Prisoner complaints are systematically denied without investigation.

Agencies also often deny any wrong doing to avoid admitting liability, and thus giving an admission which could be used against them in a lawsuit, while quietly making internal changes to avoid recurrence of the problem. Accordingly, often an appeal of any type will usually be denied in writing, yet the desired results are accomplished. The courts are wise to this game, e.g., an after the fact creation of a new regulation or policy reinforces the conclusion that there was no policy in place at the time of an incident. (See Newell v. Sauser (9^th Cir. 1996) 79 F.3d 115.) The same would be true of an after the fact change in a policy or procedure to cover an incident. The agency just won't admit the prisoner had a meritorious appeal. Prisoners often have their appeals denied with the statement, "We were following procedures," yet even though denied on paper in the appeal answer, that procedure is never seen again. Therefore a denial of an appeal is not necessarily a loss.

Also consider the lack of logic in such a statement, "We were following procedures," or the close relative of this the Nuremberg defense, "I was just following orders," which failed to work for the Nazis. Or the common PC §832.5 officer complaint response, "Officer XXX is an officer in good standing." As if that statement addresses any particular issue. Avoidance is something prison appeal responses are well known for using.

Although the citizen's complaint procedure does not generally satisfy administrative appeal exhaustion requirements for a prisoners prior to proceeding to litigation, it does have its uses. When quick problem resolution is needed, there is no faster method than a complaint made by a person who is not a prisoner. Many states other than California also have similar provisions. Citizens in those states need to learn the procedures in their state.

FN. 1. Penal Code §832.5: 832.5. (a) (1) Each department or agency in this state that employs peace officers shall establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public. (2) Each department or agency that employs custodial officers, as defined in Section 831.5, may establish a procedure to investigate complaints by members of the public against those custodial officers employed by these departments or agencies, provided however, that any procedure so established shall comply with the provisions of this section and with the provisions of Section 832.7. (b) Complaints and any reports or findings relating to these complaints shall be retained for a period of at least five years. All complaints retained pursuant to this subdivision may be maintained either in the peace or custodial officer's general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, in accordance with all applicable requirements of law. However, prior to any official determination regarding promotion, transfer, or disciplinary action by an officer's employing department or agency, the complaints described by subdivision (c) shall be removed from the officer's general personnel file and placed in separate file designated by the department or agency, in accordance with all applicable requirements of law. (c) Complaints by members of the public that are determined by the peace or custodial officer's employing agency to be frivolous, as defined in Section 128.5 of the Code of Civil Procedure, or unfounded or exonerated, or any portion of a complaint that is determined to be frivolous, unfounded, or exonerated, shall not be maintained in that officer's general personnel file. However, these complaints shall be retained in other, separate files that shall be deemed personnel records for purposes of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and Section 1043 of the Evidence Code. (1) Management of the peace or custodial officer's employing agency shall have access to the files described in this subdivision. (2) Management of the peace or custodial officer's employing agency shall not use the complaints contained in these separate files for punitive or promotional purposes except as permitted by subdivision (f) of Section 3304 of the Government Code. (3) Management of the peace or custodial officer's employing agency may identify any officer who is subject to the complaints maintained in these files which require counseling or additional training. However, if a complaint is removed from the officer's personnel file, any reference in the personnel file to the complaint or to a separate file shall be deleted. (d) As used in this section, the following definitions apply: (1) "General personnel file" means the file maintained by the agency containing the primary records specific to each peace or custodial officer's employment, including evaluations, assignments, status changes, and imposed discipline. (2) "Unfounded" means that the investigation clearly established that the allegation is not true. (3) "Exonerated" means that the investigation clearly established that the actions of the peace or custodial officer that formed the basis for the complaint are not violations of law or department policy. 

FN. 2. 15 CCR §3178 (b) "Persons other than inmates should address any appeal relating to department policy and regulations to the Director of Corrections. Appeals relating to facility and institution procedures and practices should be addressed, in writing, to the warden, superintendent or regional parole administrator of the facility or institution where an issue of appeal arises. The warden, superintendent or regional parole administrator shall provide a written response within 15 working days. Appeals that are not satisfactorily resolved at this level may be referred in writing to the director. The director shall have 20 working days from the date of receipt to provide a written response."

FN. 3. 42 U.S.C. §1997e (a) "No action shall be brought with respect to prison conditions under §1983 of this title, or any other Federal law, by a prisoners confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." (See also Booth v. Churner (2001) 532 U.S. 731, 121 S.Ct. 1819; Porter v. Nussle (2002) 122 S.Ct. 983.)

FN 4. 15 CCR §§ 3084.5 (a)(3)(G), 3084.1(e), 3084.3 (c)(5), 3291 (b, 3391 (d).