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  • Nome Governo: Eric Van Buren
  • Registre Número: 11044-068
  • Idade:42
  • Time Served:14 anos
  • Home Town:Washington D.C.
  • Sentença:VIDA
  • Corrente de carga:Drug Conspiracy
  • Pseudônimo:Big Erk, Freckle Face, Beezer
  • Data de Lançamento:Clemency Candidate
  • Afiliação prisão:Another Chance 4 Legal (AC4L)
  • Círculo de Influência:Marcus Martin, Another Chance 4 Legal
  • Instituição:USP Canaã
  • There is no honor in coming to prison. It does NOT make you a man.

How to Deal with Medical Issues in Prison

medical-neglect-prisons

Many people ask Another Chance 4 Legal and The Art of Winning Litigation foundations for guidance with their or a loved one’s medical issues in prison. What this blogpost will do is breakdown a proven successful method to properly exhaust and forward your medical claim(s) in the court. This is NOT a treatise on how to file a Prison Litigation Reform Act or Federal Tort Claim Act Claim. Ver Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003).

As you may or may not know, prisoners are 2,000-times more likely NOT to receive proper and appropriate medical attention while incarcerated. O Prison Notícias Legal has horror story upon horror story proving that medical negligence in prison is routine. Women prisoners suffer the worst. Medical issues in prison is an issue we intend to address in 2016 and going forward.

STEP 1: Determine Viability of Claim

The best chance for a WINNING claim is one that involves irreparable injury. Irreparable injury is an injury that can not be repaired or that involves continued treatment. The 8th Amendment obligates prison officials to provide adequate medical care. Ver Estelle v. Gamble, 429 U.S. 92, 103 (1976). [Mental health and Dental care are governed that same as medical care]. Ver Tilley v. Owens, 719 F.Supp. 1256 , 1286 (W.D.PA. 1989); Hoptowit v. Raio, 682 F.2d 1237, 1253 (9ª Cir. 1982)

A good example of irreparable injury is Wakefield v. United States, 2014 U.S. Dist. LEXIS 171800 (N.D. FLa. Outubro 16, 2014). This person who was disfigured in prison was a client of The Art of Winning Litigation Foundation. Using The Art of Winning Litigation, we invoked a settlement in this case. A good test to determine the viability of a claim is to ask, is the injury irreparable or can it fix itself without medical intervention? If an injury is not irreparable an does not need medical intervention, we would opine this is NOT a viable claim.

STEP 2: Prove a “Deliberate Indifference” Occurred

(um) Deliberate indifference is a harder standard to prove than mere negligence. It does not matter that prison medical staff was negligent. What matters is that their negligence was the reason for injury AND that it is reasonable to believe a prison medical official should have known, prior to injury, that said injury was possible due to their neglect.

What is legally required is an excessive risk of harm to a prisoner. Ver Farmer v. Brennan, 511 U.S. 825, 836 (1994). Na prisão deliberate indifference is routine. In many prisons every prisoner’s medical gripe is looked at incredulously. This bias creates a culture. This culture has zealots. Também, na prisão, vindictive behavior between prison staff and prisoners is common. These factors are hard to demonstrate legally. When it is a prisoner’s word against a staff member . . . well you can figure that out.

(b) This may sound obvious, but to prove a prison medical claim, one must show an injury occurred. This can done by using circumstantial evidence such as: 1) the inability to perform a specific duty upon release 2) the inability to hold or get a job 3) secondary injuries sustained due to the primary injury. Além disso, direct evidence is great, things such as: 1) Sick Call request 2) medical records (I know it’s easier said than done) 3) complaints (be sure to exhaust all Administrative Remedies) 4) treatment or the lack thereof or the inadequacy of treatment. I know submitting or requesting direct evidence often comes with a price so prisoners have to discern if filing is worth all that comes with it.

(c) Remember the 8th Amendment prohibits “unnecessary and wanton infliction of pain”. A serious medical need is: 1) Something a doctor would perceive as an important or worthy need, enough so that it would comment on or offer treatment for; 2) a medical condition that affects daily activity or will at sometime; 3) chronic and substantial pain is so obvious even a lay person would easily recognize the necessity of medical attention. See Adams v. Poag, 61 F.3d 1537, 1543-44 (11ª Cir. 1995).

Women keep in mind that late stage pregnancy, especially the third trimester, constitutes a serious medical need. Ver Doe v. Gustavus, 294 F. Supp. 2d 1003, 1008 (E.D. WIS. 2003).

(d) Finalmente, prison officials show deliberate indifference when they prohibit you from making your medical condition known to medical staff or if staff is incompetent
to examine, diagnose, treat and refer the medical condition. Ver Hoptowit v. Raio, 682 F.2d 1237, 1252-53 (9ª Cir. 1982).

STEP 3: Properly Exhaust ALL Remedies

A helpful link to prison and jail grievance policies.

(um) This is tricky. The PLRA (Prison Litigation Reform Act) sets limits and requirements on prisoners. The PLRA tells you how to file a 42 U.S.C. Section 1983 claim. There is a BIVENS claim to bring against an official acting outside their official duty. A good example is the BIVENS case itself where policeman ran up in a house without probable cause or a search warrant. Ver Bivens, 403 U.S. 388 (1971). Then there is a FTCA (Federal Tort Claim Act) claim where the United States is the only defendant. Ver CNA v. United States, 535 F.3d 132 (3d Cir. 2008).

(b) Any prisoner seeking damages or injunctive relief based on the conditions of their confinement CAN bring suit under 42 U.S.C. Section 1983. Under Section 1983 a prisoner can seek monetary relief, including nominal, compensatory and punitive damages. Ver Memphis Comm. Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986).

(c) Prisoners having trouble exhausting a claim due to “things beyond [seu] controlar” should look at these cases. Jones v. Brock, 548 U.S. 199, 216 (2007) and Dole v. Chandler, 483 F.3d 804, 809 (7ª Cir. 2006). These cases offer instances when a prison official interferes with the exhaustion process, or if a claim is asked to be dismissed for failure to exhaust when an attempt to was made.

(d) Physical injury must be shown to prevail on any compensatory claim of damages. Ver Davis v. DC, 158 F.3d 1342, 1349 (D.C. Cir. 1998) e Mitchell v. Chifre, 318 F.3d 523, 533-36 (3d Cir. 2003). Also remember a prisoner’s constitutional rights are De Minimis. Por exemplo: A free citizen MUST be given notice BEFORE their property is seized. In prison this is not required and in certain circumstances you have a right to be given notice AFTER your property has been seized. So keep this is mind when filing BIVENS actions.

(e) NOTICE to all prisoners: FTCA forms for injury or loss are being given out in substitute for BP-8 request. Know the difference. Per Mars v. Hanberry, 752 F.2d 254, 255 (6ª Cir. 1985), once you bring a TORT claim for monetary compensation on this form you are “locked in” to the decision of the Agency. If the Agency does not want to give you a monetary settlement then you can not, para a maior parte, appeal this decision to the court. We believe this is a trick because claims of injury or loss that do not have an officer’s acquiescence or a group of prisoners to back it usually lose. Not in all cases but in most cases.

We even know of cases when once a prisoner starts the BP-8 process, then files a FTCA claim (per this form), the administration automatically rips up or denies the
prisoners claims under the PLRA. Recently prisoners have been demanded to file using the FTCA form. Do not be tricked. File your BP-8 go, thru the process, depois
file your FTCA claim if necessary AFTER you are in court.

STEP 4: Time Limits

Know the limits. The duration of the statute of limitations applied by federal courts depends on the structure of the state’s statute of limitations in which the claim arose. Ver Wallace v. Kato, 549 U.S. 384, 387 (2007). If there is a persisting medical condition, one can bring suit anytime during the existence of this condition. FTCA claims must be filed within two years from when the claim arose and 42 USC Section 1983 claims limitations are guided by the state. (See Above).

STEP 5: How To File

(um) Note that we always file claims using what the The Art of Winning Litigation calls fact-based-litigation. We suggest filing the initial BP-8 (Grievance Claim) using a numerical and chronological approach.

For Example:

1. On August 2014, I did not have TB (See Exh. 1)
2. On September 2014, I was placed in the cell with someone who had TB (See Exh. 2)
3. On or about September 2014 to December 2014, I complained to prison officials about being celled w/someone who had TB. (See Affidavit)
4. Em janeiro de 2015, I was moved to a different cell. (See Exh. 3)
5. Em março 2015, I was diagnosed with latent TB (See Exh. 4)
6. Em maio 2015, I began taking medication for latent TB (See Exh. 4)
7. On October 2015, I was diagnosed with liver failure due to the medication I was taking for latent TB. (See Exh. 5)
8. Em novembro 2015, I became ill with severe pain in my lower back & stomach.
9. Per, BOP Policy 12345.678 & C.F.R 1999, No inmate can be housed with any other inmate diagnosed with TB. See Prisoner v. United States 123 F.3d 456 (13ª Cir. 2014).
10. I am asking for punitive and compensatory damages in the amount of $500,000.00 dollars each, due to negligence and pain and suffering.

(b) Do NOT deviate when filing an INITIAL BP-8. Be accurate, brief and clear. DO NOT blame or make accusations. Just state your claim. Litigating angry is one
of the worse ways to litigate. Do not do this, especially when someone has been wronged.

STEP 6: Filing in Court

(um) Once all potential remedies to a claim have been exhausted, it can now brought to court. A federal prisoner housed in a federal prison files to the U.S. District Court where the claim arose.

(b) Do not deviate from the claim made in the Administrative Remedy Process. It must be the same claim, written the same way. This is to ensure credibility. The court will usually assign a Magistrate Judge to oversee initial claims. This judge will make a recommendation to the Article III Judge. The judge will state whether the claim is viable, meritorious or frivolous under the color of law.

(c) Beware, there will be more than one round of summary dismissal action. Ver Alba v. Montford, 517 F.3d 1249, 1254-55 (11ª Cir. 2008); Abbas v. Dixon, 480 F.3d 636, 639-40 (2d. Cir. 2007). Summary dismissal is when the defendant asks that your claim be dismissed because it has no merit. This is why it is important not to waiver or try to sneak in different claims after your initial filing. This usually results in claims being dismissed. Ver Miller v. Donald, 541 F.3d 1091, 1100-01 (11ª Cir. 2008).

PLEASE BEWARE what I have given you is merely an outline of how to properly exhaust your medical claim and bring it into court for the FIRST round of summary motions. If you know someone on prison, we suggest you print this out and send it to them.

“Your health is just as important as your freedom . . . In prison you are in a fight for your life”.

Eric Van Buren
Live form Lockdown

Post-Conviction Strategist
Co-Founder of The TAWL Foundation
Author of The Art of Winning Litigation
Consultant to Bitt of LAW
Consultant to Another Chance 4 Legal

  

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