Illinois passed the Illinois Compassionate Use of Medical Cannabis Pilot Act, 410 ILCS 130/1, et seq., in 2014. Section 30 of the Act expressly prohibits possessing or using cannabis in a correctional facility, even with a valid medical marijuana card. 410 ILCS 130/30. The Act also provides limited immunity to correctional staff who take actions “to prohibit or prevent the possession or use of cannabis by a cardholder incarcerated at a correctional facility, jail, or municipal lockup facility.” 410 ILCS 130/25(p).
What about actions for denial of prescribed medical marijuana under the federal constitution?
Inmates who are denied medically necessary treatment for pain or other serious conditions may assert claims for deliberate indifference to medical needs under the Fourteenth Amendment of the U.S. Constitution. These claims would not be barred by the Illinois statute. However, to state a federal claim, a plaintiff-inmate would have to present evidence that the correctional officials or staff were deliberately indifferent to his medical condition. In other words, a denial of a preferred or requested treatment is not sufficient to state a constitutional claim when the provided treatment was based on professional medical judgment. Disagreement over the type of treatment prescribed cannot state a claim. Thus, inmates do not have the right to use medical marijuana. They do have the right to adequate treatment for their pain or other serious medical conditions.
Although the Seventh Circuit Appellate Court has not directly addressed whether denial of medical marijuana creates a constitutional claim, cases addressing inmate demands for a specific medication are instructive. For example, in Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063 (7th Cir. 2013), an inmate had a prescription for OxyContin, a narcotic, to relieve his chronic pain when he entered the county jail. The jail physician immediately took the inmate off OxyContin because it was a narcotic and because he did not believe the medication was necessary. Instead, he prescribed a non-narcotic pain medication and some lower dosage narcotic withdrawal medications. The inmate sued, alleging that the physician and jail staff acted with deliberate indifference in failing to provide him with OxyContin as prescribed by his personal physician. The Court disagreed, finding that the decision to provide the inmate with a non-narcotic pain medication was not deliberate indifference. It found that the decision to remove the inmate from OxyContin was a medical decision and was within the realm of accepted professional medical judgment.
A California federal court reached a similar conclusion in a medical marijuana case. In Harris v. Lake Cnty. Jail, No. C-11-6209 NJV, 2012 WL 1355732 (N.D. Cal. April 18, 2012), a California inmate sued over being denied medical marijuana by a correctional facility. California’s statute, which differs from the Illinois Act, left the decision of whether to accommodate an inmate’s medical marijuana prescription to the discretion of the jail officials. The court in Harris held that the inmate “cannot state a deliberate indifference claim based on the denial of medical marijuana because there is no constitutional right to demand jail officials to provide Plaintiff with the medicine of his choosing, including medical marijuana.”
Correctional officials may prohibit cannabis use in their facilities under the Illinois statute. However, to avoid federal liability, officials must provide alternative medical treatment for patients. As with other prescription medications, the medical staff at a correctional facility has the authority to exercise medical judgment and substitute another medication for cannabis without incurring liability.