Aspirin is made "available" to jail inmates in the living units. Inmates must request the aspirin from the unit detention officer. Inmates do not have to make a medical request.
Q? Does making aspirin (an over the counter medication) "available" consitutute "use" of property for purposes of the TTCA or civil rights. Cases hold the failure to give medications is non-use but what about making medications available? Appreciate input. Les Sachanowicz, Bexar County.

As I recall it, the Supreme Court in Texas Dep't of Crim. Justice v. Miller instructed that, for purposes of the Tort Claims Act, unless the medication was the causative factor of the injury (rather than incorrectly treating it or masking diagnotically-useful symptoms), the causation standard of Bossley would not be satisfied, so the issue of "use" or "nonuse" would be essentially academic. What is left open is the situation in which an inmate would suffer an injury BECAUSE he/she took aspirin. In light of your question, "use" claims require negligent use by an employee. There is an argument that a "making available" claim under the circumstances you infer is, in actuality, a non-actionable claim of negligent supervision. See Lamar Univ. v. Doe.

From a federal civil rights perspective, it is generally doubtful that making medication available to inmates who need it rises to the level of deliberate indifference to serious medical needs (the applicable standard per Hare v. City of Corinth), unless your jail personnel have actual subjective knowledge that aspirin will harm, rather than help, a particular inmate's condition.

In either case, an inmate ought to know whether he/she is aspirin intolerant. If they voluntarily take aspirin despite that condition, they get what they pay for.

Scott: Thanks for the input. This issue is up on interlocutory appeal in John Keith Jones v. Sheriff Ralph Lopez, 01-51057, @ the 5th Circuit. This is a wrongful death case where the plaintiff died of esophageal varices. I will spare you all the gory details. Regardless, briefs including the Miller argument have been submitted. I like the non-actionable claim of negligent supervision twist. Oral argument is cheduled for the first week in January/03 in No O'Leens. Interesting appelate issues. Thanks Les

As you are probably aware thanks to Rose Garcia, the Supreme Court yesterday granted a petition for review in San Antonio State Hosp. v. Cowan, a case in which "use" was predicated on the hospital's allowance of a patient to keep his own items, which he used to kill himself. I know that's not directly applicable to your facts, but perhaps the court will provide some analysis on supervision of use of property, as opposed to actual use by an employee. At the least, that should be of some analogous support to you (if the court's decision comes out the right way). Of course, the opinion won't issue until long after oral argument in the Fifth Circuit.