Medical Neglect

The Prison Ignored His Medical Emergency

Prisoner Legal Aid

If he told staff he was in serious trouble and nobody came, the single most useful thing you can do this week is put it on paper while the facility still remembers the date. Two pieces of paper. A dated written complaint from him inside the facility, and a written request from you for his medical file covering those days. Everything that could ever happen in this case is built on those two documents.

If he is still in danger right now

Call the facility and ask for the Health Services Administrator by title. Say what the symptom is, when it started, and ask what is being done. Write down the time you called, the name you were given and what you were told. That note is evidence.

In a federal facility, a complaint about a threat to his health right now has to move fast. Under 28 C.F.R. 542.18, if the Request is determined to be of an emergency nature which threatens the inmate's immediate health or welfare, the Warden shall respond not later than the third calendar day after filing. He should write the word emergency on the form and say what the threat is.

There is a second route if he is afraid of what follows a complaint about staff. Under 28 C.F.R. 542.14(d)(1), if the inmate reasonably believes the issue is sensitive and the inmate's safety or well-being would be placed in danger if the Request became known at the institution, the inmate may submit the Request directly to the appropriate Regional Director. He marks it Sensitive and explains in writing why he did not file inside. He does not have to hand a complaint about the officers to those officers.

What you can do today and this week

Have him start the written complaint. The first step in a federal facility is informal: under 28 C.F.R. 542.13(a) an inmate shall first present an issue of concern informally to staff. That is the BP-8 stage. The formal written request is the BP-9, and under 28 C.F.R. 542.14(a) the deadline for completion of informal resolution and submission of a formal written Administrative Remedy Request, on the appropriate form (BP-9), is 20 calendar days following the date on which the basis for the Request occurred. Calendar days, not business days. Our page on filing a grievance walks through the forms.

If he is in a county jail, those form numbers do not apply. Ask the jail in writing for its own grievance form and its deadline, and keep the answer.

Ask for the medical file. Under 28 C.F.R. 513.42(a) an inmate may review records from his or her medical file (including dental records) by submitting a request to a staff member designated by the Warden. Expect a wait on the notes. Under 28 C.F.R. 513.42(d), if any records are determined by staff not to be releasable based upon the presence of harm, the inmate will be so advised in writing and provided the address of the agency component to which the inmate may address a formal request for the withheld records. A refusal is not the end. It comes with the next address.

Request it yourself. This is the one step you can take without waiting on him, and almost nobody knows it exists. Under 28 C.F.R. 513.63, a request for records concerning an inmate made by an authorized representative of that inmate will be treated as in 513.61, on receipt of the inmate's written authorization, dated within three months of the date of the request letter. 28 C.F.R. 513.61 tells you how to write it: mark FREEDOM OF INFORMATION ACT REQUEST on the face of the letter and on the envelope, describe the records sought including the approximate dates covered, and give his full name, current address, date and place of birth. The envelope marking is the detail that gets letters bounced. How to request records has the wording.

Send it certified mail and keep your copy. If you want help with the letters, request a free case review or call the Prisoner Legal Aid Family Help Line at 786-408-5073 or text 727-635-0600. We prepare the paperwork and connect families with independent civil rights attorneys.

What the law actually requires

The rule comes from a 1976 Supreme Court case, Estelle v. Gamble, which held that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain the Eighth Amendment forbids. The important half for you is what counts as deliberate indifference. The Court said it includes intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Delay is in the rule. An emergency that went unanswered for hours is the thing the case is about.

Now the hard part. In the same case the Court also said that a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Poor care is not automatically a federal claim. Something more than a mistake has to be shown.

Farmer v. Brennan, decided in 1994, gives the something more. An official is responsible only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. The other side of the same rule: officials who knew are not liable if they responded reasonably to the risk, even if the harm ultimately was not averted. A bad outcome alone does not answer the question.

You do not have to prove what a guard was thinking. Farmer says a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious, and that a risk which was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past can support that finding. Obvious is provable. Documented is provable. That is why the grievance and the medical file matter more than anything you can say on the phone. Our explainer on what deliberate indifference means goes deeper, and the medical neglect hub covers the rest of these cases.

If he has not been convicted yet, a different amendment governs. In City of Revere v. Massachusetts General Hospital the Supreme Court said the due process rights of such a person are at least as great as the Eighth Amendment protections available to a convicted prisoner. His protection is not less because his case is still open.

The clocks that are already running

The 20 calendar days on the BP-9 run from the incident, not from the day you found out. If the Warden answers, the appeal is the BP-10, and under 28 C.F.R. 542.15(a) it goes to the Regional Director within 20 calendar days of the date the Warden signed the response. The signature date, not the day it arrived. The BP-11 to the General Counsel follows within 30 calendar days of the date the Regional Director signed, and appeal to the General Counsel is the final administrative appeal.

If nobody answers, he is not stuck. Under 542.18, if the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.

Finish the chain. Federal law says no action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. 1997e(a). A lawsuit filed before that chain is done gets thrown out on the paperwork, and the facts never get heard.

One more trap, because it decides cases. Federal law also says no Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act. 42 U.S.C. 1997e(e). Get the physical consequences of the delay written into a medical record now, while they are still visible.

Your checklist

• Call the facility today, ask for Health Services by title, and write down the time, the name and the answer.
• Have him file the informal complaint, then the BP-9, inside 20 calendar days of the incident.
• Have him mark it emergency if his health is still at risk, and Sensitive if complaining inside would endanger him.
• Have him ask the Warden's designated staff member to see his medical file.
• Send your own request for his medical records, with his signed authorization dated within three months of your letter, marked FREEDOM OF INFORMATION ACT REQUEST on the letter and the envelope.
• Send everything certified mail and keep a copy of every page.
• Write down the names of anyone else who saw him ask for help.

What to do next

Start the two documents at the top of this page this week. The 20 day clock is the hardest one to fix later. If you are not sure what to write, bring us what you have: request a free case review, or call the Prisoner Legal Aid Family Help Line at 786-408-5073 or text 727-635-0600 and tell us the date it happened. Our guide to the first 72 hours covers what to gather, what one family did when the prison would not treat cancer shows how these start, and if the delay has left him worse, read the compassionate release material on our other site.