In this chapter, the following terms have the meanings indicated. Terms Defined. “Administrative remedy procedure” means the procedure established by the Commissioner for inmate complaint resolution. “Commissioner” means the Commissioner of Correction. “Disciplinary proceeding” means Division of Correction and Patuxent Institution disciplinary proceedings. “Division” means the Division of Correction. “Executive Director” means the Executive Director of the Inmate Grievance Office, or a designee, appointed under Correctional Services Article, §10-203, Annotated Code of Maryland. Fair Value. “Fair value” means the worth of inmate property at the time of the loss, damage, or theft of the property. “Fair value” is the lesser of the: Actual cost of the property at the time of acquisition, less any amounts attributable to depreciation, wear, use, and other factors which decrease the value of the property; or Reasonable cost of the property at the time of acquisition, less any amounts attributable to depreciation, wear, use, and other factors which decrease the value of the property. “Filed” means that a grievance has been physically received by the Office according to requirements under this chapter. “Grievance” means the complaint of any individual in the custody of the Commissioner or confined to the Patuxent Institution against any officials or employees of the Division or the Patuxent Institution arising from the circumstances of custody or confinement. “Grievant” means an inmate in the custody of the Commissioner or confined to the Patuxent Institution who files a grievance with the Office. “Maryland Tort Claims Act” means State Government Article, §§12-101—12-110, Annotated Code of Maryland. “Office” means the Inmate Grievance Office. “Prejudice” means a finding that one or more procedural errors undermine confidence in the outcome of a proceeding; that is, but for the error or errors there is a reasonable probability that the result would be different. “Property grievance” means a grievance filed by an inmate that the inmate's personal property has been improperly withheld, lost, damaged, stolen, or destroyed through the negligence or other wrongful act or omission of an employee or official of the Division of Correction or Patuxent Institution. “Secretary” means the Secretary of Public Safety and Correctional Services. “Substantial evidence” means such relevant evidence as a reasonable mind could reasonably accept as adequate to support a conclusion without reassessing credibility or substituting judgment. “Treasurer” means the State Treasurer's Office. If a State or federal court receives a grievance from a grievant, the State or federal court may refer the grievance to the Office. The Executive Director shall conduct a preliminary review of each grievance properly filed with the Office. If a grievance arises from a disciplinary proceeding, the grievant shall properly exhaust all Division or Patuxent Institution appeal procedures before filing the grievance with the Office. If the administrative remedy procedure applies to a particular situation or occurrence, the grievant shall properly exhaust the administrative remedy procedure before filing a grievance with the Office. The Executive Director, when conducting a preliminary review of a grievance, and the administrative law judge conducting a hearing concerning a grievance shall liberally consider the circumstances of the grievance when determining if the grievance is properly before the Office. The Executive Director is appointed as provided in Correctional Services Article, §10-203, Annotated Code of Maryland. The Executive Director shall: Act as chief administrative officer for the Office ensuring that all records and files are properly maintained; Docket and acknowledge receipt of a grievance; Conduct a preliminary review of each grievance as required under Regulation .06 of this chapter; Prepare a written summary of the grievance that specifies issues that may be considered at a hearing; Compile documents that may be considered in a preliminary review or a hearing that include, without limitation: Institutional reports, Classification records, Disciplinary proceeding records, Administrative remedy procedure decisions, and Any other information or citations of law that may be useful in determining the merits of the grievance; If necessary, conduct a preliminary investigation of the grievance; If a hearing is necessary, make a preliminary determination of a grievant's request for a representative or witness, or both; If a hearing is necessary, refer the grievance to the Office of Administrative Hearings; and Prepare the record of the agency, when requested, for judicial review. A grievant shall file a grievance in writing: In a format approved by the Office; or Using an administrative remedy procedure form. The grievant shall include the following in the written grievance: Date of the grievance; Grievant's name and inmate number; Grievant's postal address; Nature of the grievance, including not more than one claim for relief; Information concerning the situation or occurrence that is the subject of the grievance, to include any relevant: Date; Time; Place; and Name of an official, employee, inmate, or other individual involved; Name and location of any witness requested and a proffer of each witness's testimony; Name and location of a requested hearing representative; A copy of any claim filed with the Treasurer under the Maryland Tort Claims Act, and, if available, the Treasurer's letter directing the inmate to file a grievance with the Office; and If the grievance is based on: An appeal from the administrative remedy procedure, a copy of all related paperwork, including the: Request for administrative remedy; Warden's response and receipt of the warden's response; Appeal; and Commissioner's response and receipt of the Commissioner's response; An appeal from a disciplinary proceeding, a copy of all related paperwork, including the: Notice of inmate rule violation and disciplinary hearing; Hearing record; Appeal to the warden; and Warden's response to the appeal; A challenge of a classification or case management action, a copy of all related paperwork, including the: Notification of classification action; or Notification of case management action; A challenge of a calculation of sentence or diminution credit transaction, a copy of all related paperwork, including the: Notification of calculation of sentence; or Notification of diminution credit action; or A property claim, a copy of all related paperwork, including the: Property inventory form; Property confiscation form; Commissary form; Order form; and Receipt. The grievant shall place the grievance and related documents in a sealed envelope addressed to the Executive Director at the current address of the Office. Except as otherwise provided in this chapter, a grievant shall file a grievance within 30 days of the date that the: Situation or occurrence that is the subject of the grievance took place; or Grievant knew or should have known of the situation or occurrence that is the subject of the grievance. If the grievance is based on an appeal from the administrative remedy procedure, a grievant shall file the grievance within 30 days of the date that the: Grievant received the Commissioner's response concerning the appeal; or Commissioner's response to the appeal was due to the grievant. If the grievance is based on an appeal from a disciplinary proceeding, a grievant shall file the grievance within 30 days of the date that the: Grievant received the warden's final response to the appeal; or Warden's response to the appeal was due to the grievant. If a grievant filed a complaint with a court and the court dismissed the complaint because the grievant did not exhaust administrative remedies, the grievant may file a grievance, based on the subject of the complaint filed with the court, with the Office within 30 days of the date the order of dismissal was entered or filed by the court. The Office may dismiss any disciplinary proceeding appeal and any grievance within the scope of the administrative remedy procedure that has not been properly exhausted through all institutional remedies in a timely manner. A time limitation or procedural bar may be waived for a grievance which represents a continuing problem or for which good cause is shown for a failure to proceed in a timely fashion. The Executive Director shall conduct a preliminary review of a grievance and determine if the grievance should: Be dismissed; or Proceed to a hearing. The Executive Director shall dismiss a grievance on preliminary review as wholly lacking in merit if: The grievant is not in the custody of the Commissioner or the Director of the Patuxent Institution at the time the grievance is received by the Office; The grievance is not brought against any official or employee of the Division or the Patuxent Institution; The grievance is not filed within the time constraints and does not meet the exceptions under Regulation .05 of this chapter; The grievant did not properly exhaust remedies available under the administrative remedy procedure or the disciplinary proceeding; The grievant does not establish a claim for which the Office can grant relief; or The grievance is moot. The Executive Director shall notify the grievant, in writing, of the decision to dismiss the grievance on preliminary review. The Executive Director's decision to dismiss a grievance following a preliminary review is final. General. If after conducting a preliminary review, the Executive Director decides the grievance should proceed to a hearing, the Executive Director, or a designee, shall notify the grievant and all other individuals determined necessary for the hearing of the date, time, and location of the hearing. To the extent that security considerations permit, a hearing conducted under this chapter shall be open to the public. An administrative law judge of the State Office of Administrative Hearings shall preside over the hearing. Prehearing discovery procedures do not apply to inmate grievance proceedings. During a hearing, the grievant may: Be represented by an attorney licensed to practice law in the State, another inmate, or may appear without representation; Call witnesses determined by the Office or the presiding administrative law judge to have competent and relevant testimony that is not unduly cumulative or repetitive; and Present or request the presentation of documents and records determined by the Office or the presiding administrative law judge to be competent and relevant and not unduly repetitious in the determination of the merits of the grievance. The administrative law judge shall conduct the hearing according to standards established under State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. General. At a hearing, the burden of proof is a preponderance of the evidence and rests with the grievant. A decision at a hearing shall be based on substantial evidence. Grievance Based on Disciplinary Proceedings. If a grievance is challenging the sufficiency of the evidence presented as part of a disciplinary proceeding: The administrative law judge shall affirm the decision of the disciplinary proceeding if the administrative law judge determines the original decision was based on substantial evidence. The administrative law judge may not substitute judgment on factual matters for that of the trier of fact who has the ability to observe witnesses and to weigh credibility. If a grievance is challenging the interpretation of the law, rules, policy, procedures, or regulations applicable to a disciplinary proceeding, the administrative law judge shall affirm the decision of the disciplinary proceeding if the administrative law judge determines that the interpretation was not erroneous, or an erroneous interpretation was not prejudicial. If a grievance charges that procedures applicable to a disciplinary proceeding were not followed, the administrative law judge shall: Determine if applicable procedures were properly followed; Determine if applicable procedures that were not followed were intended to provide the grievant a procedural benefit; Determine if the failure to follow applicable procedures made the procedure fundamentally unfair; Determine if the failure to follow applicable procedures prejudiced the grievant; and If the administrative law judge determines that applicable procedures were not followed and were intended to provide the grievant a procedural benefit and a failure to follow the applicable procedures made the proceeding fundamentally unfair or otherwise prejudiced the grievant: Vacate the decision of the disciplinary proceeding; and Remand the case for a new disciplinary proceeding, unless a remand could not remedy the procedural deficiency. If a grievance is challenging the sentence imposed at a disciplinary proceeding, the administrative law judge shall affirm the decision of the disciplinary proceeding if the sentence imposed does not violate any federal or State constitutional, statutory, regulatory, or policy requirement. Grievance Based on Institutional Administrative Decisions. If a grievance is challenging administrative decisions, including, but not limited to, classification and case management actions, the administrative law judge shall determine if the decision was: Arbitrary and capricious; or Inconsistent with law. The administrative law judge may determine that an administrative decision is arbitrary and capricious or inconsistent with the law if: The decision maker or makers did not follow applicable laws, regulations, policy or procedures; The applicable laws, regulations, policy or procedures were intended to provide the grievant a procedural benefit; and The failure to follow applicable laws, regulations, policy or procedures prejudiced the grievant. Except as otherwise provided under this regulation, a grievance challenging administrative actions taken in connection with an inmate's property is processed the same as a grievance for any other issue properly before the Office. Except as otherwise provided under §C of this regulation, the grievant has the burden of proof, by a preponderance of evidence, of the following: That the property was lost, damaged, stolen, or destroyed through the negligence or other wrongful act or omission of an employee or official of the Division or the Patuxent Institution; That the grievant was the owner of the property at the time of the alleged loss, damage, theft, or destruction; That the grievant was authorized to possess the property under the rules of the correctional facility in which the grievant was confined at the time of the alleged loss, damage, theft, or destruction; and The fair value of the property at the time of the alleged loss, damage, theft, or destruction. If the grievance concerns inmate property that has been confiscated, the grievant has the burden of proving, by a preponderance of evidence: That the property was lost, damaged, stolen, destroyed, or improperly confiscated through the negligence or other wrongful act or omission of an employee or official of the Division or the Patuxent Institution; That an employee or official of the Division or the Patuxent Institution failed to comply with institutional rules governing disposition of confiscated property; That the grievant complied with all institutional rules governing inmate disposition of confiscated property; That the grievant was the owner of the property at the time of the alleged loss, damage, theft, destruction, or confiscation; and The fair value of the property at the time of the alleged loss, damage, theft, destruction, or confiscation. To the extent that a grievance concerns property that is contraband, the possession of which is a crime under Criminal Law Article, §9-412, Annotated Code of Maryland, the grievance shall be dismissed as without merit. If the administrative law judge decides a grievance in favor of the grievant, the administrative law judge shall: Issue a proposed decision and proposed order recommending that: The grievant be reimbursed for, or given a replacement for, property which has been lost, damaged, stolen, or destroyed; or Improperly confiscated property which has not been lost, damaged, stolen, or destroyed, be returned to the grievant; Note in the proposed decision and proposed order whether the grievant has filed a claim under the Maryland Tort Claims Act; and Forward the decision and proposed order to the Secretary. Decision and Final Order When the Grievance Is Without Merit. If an administrative law judge conducts a hearing and determines that a grievance is without merit: The administrative law judge shall: Issue the decision and order in writing including: Findings of fact; and Conclusions of law; and Distribute the written decision and order as required under §C(2) of this regulation; and That decision is a final decision for the purpose of judicial review. Submission of Proposed Decision and Proposed Order to Secretary When the Grievance Is Meritorious. If an administrative law judge conducts a hearing and determines that a grievance has merit, in whole or in part, the administrative law judge shall: Issue a proposed decision and proposed order in writing including: Findings of fact; and Conclusions of law; and Forward the proposed decision and proposed order to the Secretary for final action. The Secretary, or a designee, shall review the proposed decision and proposed order of the administrative law judge to ensure that: The Inmate Grievance Office has jurisdiction over the subject matter of the grievance; The findings of fact are supported by the record; The conclusions of law are supported by the findings of fact; The proposed decision constitutes a proper interpretation and application of relevant law; The proposed remedy is appropriate; and Funds have been appropriated or are otherwise available if a monetary award is recommended. Within 15 days of receipt of the proposed decision and proposed order of the administrative law judge, the Secretary shall issue an order that: Affirms the proposed decision and proposed order of the administrative law judge; Reverses the proposed decision and proposed order of the administrative law judge; Modifies the proposed decision and proposed order of the administrative law judge; or Remands the action for further administrative proceedings or consideration. The Secretary's order under §B(4) of this regulation is a final order for the purposes of judicial review. Final Decision—Notifications. If the Executive Director dismisses a grievance without a hearing following a preliminary review, the Executive Director shall, on the date of the decision, send written notification to: The grievant; and If appropriate, the grievant's attorney. If an administrative law judge issues a final decision and order denying and dismissing a grievance as without merit under §A(1) of this regulation, the administrative law judge shall, on the date of the decision, send written notification to the following: The grievant; If applicable, the grievant's attorney; The Office; The warden of the grievant's correctional facility; and The Commissioner or the Director of the Patuxent Institution, whoever is responsible for the custody of the grievant. If the Secretary issues a final decision and order under §B(4) of this regulation, the Secretary, or a designee, shall, on the date of the decision, send written notification to the following: Those individuals identified under §C(2) of this regulation; and The Office of Administrative Hearings. Monetary Damages. If an administrative law judge recommends awarding a grievant monetary damages and the Secretary concurs with that recommendation, the Secretary shall: Include this decision in the Secretary's order under §B(4) of this directive; If the grievant is also pursuing a claim under the Maryland Tort Claims Act, include this information in the order indicating that payment is contingent upon the Treasurer's decision on the tort claim; and Forward the order to the Office of the Treasurer. If the Treasurer decides to pay the award, the Treasurer, or a designee, shall: Arrange for payment to the grievant; and Notify the Secretary, in writing, of the decision and arrangements for payment. If the Treasurer denies payment of the award, the Treasurer shall notify the Secretary, in writing. If notified under §D(4) of this regulation, the Secretary may arrange for payment of the award: From the Department's budget; or Through the Board of Public Works. The grievant is entitled to judicial review of an administrative decision of the Executive Director, an administrative law judge, or the Secretary under this chapter according to Correctional Services Article, §10-210, Annotated Code of Maryland and the Maryland Rules of Procedure. Correctional Services Article, §10-204, Annotated Code of Maryland Effective date: July 21, 1972 Regulation .01B amended effective August 6, 1990 (17:15 Md. R. 1861) Regulation .01F adopted effective November 21, 1983 (10:23 Md. R. 2065) Regulation .02 amended effective August 3, 1977 (4:16 Md. R. 1214) Regulation .02B amended effective August 6, 1990 (17:15 Md. R. 1861) Regulation .02C amended effective August 10, 1987 (14:16 Md. R. 1776) Regulation .02D adopted effective March 1, 1982 (9:4 Md. R. 332) Regulation .02D amended effective November 21, 1983 (10:23 Md. R. 2065); July 15, 1985 (12:14 Md. R. 1432); December 28, 1987 (14:26 Md. R. 2748) Regulation .03D amended effective August 6, 1990 (17:15 Md. R. 1861) Regulation .04 adopted effective April 11, 1983 (10:6 Md. R. 559) Regulation .06 amended effective August 6, 1990 (17:15 Md. R. 1861) Regulation .06B amended effective August 10, 1987 (14:16 Md. R. 1776) Regulations .01—.06 repealed and new Regulations .01—.11 adopted effective June 6, 1994 (21:11 Md. R. 952) Chapter revised effective September 8, 2008 (35:18 Md. R. 1600)