(a)
A person sentenced to incarceration or who is being held pursuant to a pending criminal matter in a county or city jail, or other county or city custodial correctional facility shall not be deprived of the possession or use of any orthopedic or prosthetic appliance, if such appliance has been prescribed or recommended and fitted by a physician.
(b)
If, however, the person in charge of the county or city custodial or correctional facility has probable cause to believe possession of such orthopedic or prosthetic appliance constitutes an immediate risk of bodily harm to any person in the
facility or threatens the security of the facility, such appliance may be removed.
If such appliance is removed, the prisoner shall be deprived of such appliance only during such time as the facts which constitute probable cause for its removal continue to exist; if such facts cease to exist, then the person in charge of the facility shall return such appliance to the prisoner.
When such appliance is removed, the prisoner shall be examined by a physician within 24 hours after such removal.
If the examining physician determines that removal is or will be injurious to the health or safety of the prisoner, he shall so inform the prisoner and the person in charge of the facility. Upon receipt of the physician’s opinion, the person in charge of the facility shall either return the appliance to the prisoner or refuse to return such appliance to the prisoner, informing the physician and
the prisoner of the reasons for such refusal and promptly providing the prisoner with a form, as specified in subdivision (c) of this section, by which the prisoner may petition the superior court of the county in which the facility is located for return of the appliance.
Upon petition by the prisoner, the court shall either order the appliance returned to the petitioner or within two judicial days after the petition is filed receive evidence relevant to the granting or denial of the petition. When evidence is received, the court shall consider the opinion of the physician who examined the prisoner and the opinion of the person in charge of the facility and all other evidence it deems relevant. A decision shall be promptly made and shall be based upon a weighing of the risk of immediate harm to persons within the facility and the threat to the security of the facility created by the appliance’s presence in the facility as against the risk to the health and safety of
the petitioner by its removal.
(c)
The form for a request for return of an orthopedic or prosthetic appliance as required in subdivision (b) of this section shall be substantially as follows:
(Name of the facility) ____ day of ____ 19__
I, ____ (person in charge of the facility), have today received a request for the return of an orthopedic or prosthetic appliance, namely, ____ (description of appliance or device) from the undersigned prisoner.
Signature or mark of prisoner
making request for return of
appliance or device
When the prisoner has signed or made his mark upon such form, the person in charge of the facility shall promptly file the completed form with the superior court.
(d)
No person incarcerated in any facility of the Department of Corrections shall be deprived of the use or possession of any orthopedic or prosthetic appliance unless both the inmate’s personal physician and a department physician concur in the professional opinion that such appliance is no longer needed.
