Medical Neglect

The Prison Will Not Give Him His Medication

Prisoner Legal Aid

Write down three things tonight: the medication, the dose, and the date it stopped. Then ask him to put a written request in to the medical department this week and keep his copy. A stopped prescription already has a paper trail on both sides, because somebody ordered the drug and somebody else stopped it. That trail is what turns "they will not give him his pills" into something a court can look at.

If stopping it could hurt him in the next few days

Some medications can lapse for a week and nothing much happens. Others cannot. Insulin, seizure medication, blood thinners, heart medication, and anything part of an active cancer treatment are in the second group.

If his is one of those, do not wait for the grievance. Call the facility today, ask for the Health Services Administrator by title, give the medication name and the date it stopped, and ask for a wellness check. Write down who you spoke to and when.

Then ask him to mark his written request as an emergency. In a federal facility, if the request is determined to be of an emergency nature which threatens his immediate health or welfare, the Warden has to respond not later than the third calendar day after filing. 28 C.F.R. 542.18. That is the fastest clock in this process and almost nobody uses it.

What he files, step by step

Inside a federal prison the route is fixed, and skipping a step gets the whole thing returned. He starts informally. The regulation says he "shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue" before the formal request goes in. 28 C.F.R. 542.13(a). With his counselor that is the BP-8 stage.

The formal written request is the BP-9, and the deadline "is 20 calendar days following the date on which the basis for the Request occurred." 28 C.F.R. 542.14(a). Calendar days. One complaint per form. Unrelated issues on one form get the whole submission rejected and returned without a response. 28 C.F.R. 542.14(c)(2).

If raising it inside the facility would put him in danger, he does not have to hand it to the people it is about. Where he "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," he may send it straight to the Regional Director, marked "Sensitive," with a written explanation. 28 C.F.R. 542.14(d)(1).

From there it is the BP-10 to the Regional Director within 20 calendar days of the date the Warden signed the response, then the BP-11 to the General Counsel within 30 calendar days of the date the Regional Director signed. The General Counsel is the final administrative appeal. 28 C.F.R. 542.15(a).

In a county or state jail there is no BP-9. The handbook sets the form and the deadline, and some of those are far shorter. Our grievance guide shows what a usable one looks like.

If you want help deciding what to send first, 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.

Get the medical record yourself

This is the step you can take from the outside, and most families never hear about it. He can review records from his own medical file, including dental, by submitting a request to a staff member the Warden designates for it. 28 C.F.R. 513.42(a). Staff review the notes and consultation reports first, for harm. If something is held back, he "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." 28 C.F.R. 513.42(d). A refusal is not the end. It is the next address.

The written route is a Freedom of Information Act request. He marks "FREEDOM OF INFORMATION ACT REQUEST" on the face of the letter and on the envelope both, describes the records and the approximate dates, and gives his full name, current address, and date and place of birth. If the records are to go to you, he also has to include an example of his signature, verified and dated within three months of the request. 28 C.F.R. 513.61(c).

You can make the request yourself. A request by an authorized representative is handled the same way "on receipt of the inmate's or former inmate's written authorization," dated within three months of the date of the request letter, with the identification data the regulation lists. 28 C.F.R. 513.63. Our records request page has the mailing details, and this guide covers the jail side.

The record proves the drug was ordered, who stopped it, and whether anybody wrote down what happened next.

What the law actually requires

The Supreme Court held in 1976 that deliberate indifference to serious medical needs is a constitutional problem, and it said plainly where that indifference can come from. It counts when staff are "intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104 to 105 (1976). Read that last clause again. A prescription that was already ordered and then stopped sits squarely inside it.

Here is the hard part. Poor care is not automatically unconstitutional. The same opinion says "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." Estelle, 429 U.S. at 106. A disagreement about which drug to use, or a slow clinic, usually is not enough on its own.

What the law asks instead is what staff knew. 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." Farmer v. Brennan, 511 U.S. 825, 847 (1994). The flip side: officials who knew and "responded reasonably to the risk, even if the harm ultimately was not averted," are not liable. Farmer, 511 U.S. at 844.

Every family asks the same thing next. How would anyone prove what a nurse or an officer was thinking? Farmer answers it. "A factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842. And a risk that was "longstanding, pervasive, well-documented, or expressly noted by prison officials in the past" is the kind a court may find they knew about. That is the reason to write things down now, in order, with dates.

If he has not been convicted yet, his claim runs under due process rather than the Eighth Amendment, and the Supreme Court has said those rights are "at least as great as the Eighth Amendment protections available to a convicted prisoner." City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983). Our page on deliberate indifference covers how courts apply this, and the medical neglect hub has the rest.

Deadlines and traps

The 20 calendar days for the BP-9 run from the date the problem started, not from the day he gave up asking nicely. 28 C.F.R. 542.14(a). The appeal clocks run from signature dates, not from the day the response reached his hands. 28 C.F.R. 542.15(a).

Silence is not a dead end. "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." 28 C.F.R. 542.18.

Nothing new can be added later. An appeal may not raise issues that were not raised in the lower level filings. 28 C.F.R. 542.15(b)(2). The complaint has to be in the first form.

The grievance chain is not optional paperwork. "No action shall be brought with respect to prison conditions ... 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).

If he is seriously ill and the treatment keeps slipping, read our note on compassionate release too. Different track, same facts.

Your checklist

• Write down the medication name, the dose, and the date it stopped.
• Call the facility today if it is insulin, seizure medication, a blood thinner, heart or cancer medication.
• Ask him to file informally with his counselor, then the BP-9 within 20 calendar days, marked as an emergency if his health is at immediate risk.
• Keep a dated copy of every form, and note the date each response was signed.
• Send your own records request as his authorized representative, with his written authorization dated within three months.
• If filing inside would put him in danger, use the "Sensitive" route to the Regional Director.
• Read the first 72 hours guide.

Start with the letter

Do the records request this week. It needs nobody's permission and it does not wait on his grievance. Then send us the dates. Request a free case review or call the Prisoner Legal Aid Family Help Line at 786-408-5073 or text 727-635-0600.