Jackson v. Wall et al

Filing 66

ORDER signed by Chief Judge William C Griesbach on 12/15/2017 GRANTING 54 Motion for Summary Judgment. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

SYLVESTER JACKSON,
Plaintiff,
v.

Case No. 15-C-358

JON LITSCHER,
MICHAEL A. DITTMANN,
TAMMY MAASSEN,
MEREDITH MASHAK,
CO JOHNSTON,
CO MCKNIGHT,
CARLA GRIGGS, and
JOHN DOES 1–36,
Defendants.

DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Sylvester Jackson, a former Wisconsin Department of Corrections inmate, filed this 42
U.S.C. § 1983 action on March 31, 2015, alleging that the Department of Corrections’ policy that
permits correctional officers, rather than nurses and other medical professionals, to distribute
medication to inmates at Columbia Correctional Institution (CCI) and Jackson Correctional
Institution (JCI) violates his constitutional rights. His amended complaint names numerous
individuals, known and unknown, who he claims are responsible for administering this policy. The
court screened the complaint on May 21, 2015 and permitted Jackson to proceed with his sole claim
that the defendants have shown deliberate indifference to inmates’ serious medical need to receive
the correct medications. This matter comes before the court on the defendants’ motion for summary
judgment. For the following reasons, the defendants’ motion will be granted and the case dismissed.

PRELIMINARY MATTERS
Before turning to the parties’ substantive arguments, the court will address two preliminary
matters. First, the defendants assert that their proposed findings of fact must be deemed admitted
because Jackson did not comply with the district court’s local rules regarding summary judgment
procedures. Pursuant to the local rules, along with the motion for summary judgment, the moving
party is required to file either a statement of material facts to which the parties have stipulated or a
statement of proposed material facts as to which the moving party contends there is no material issue
and that entitle it to judgment as a matter of law. Civil L.R. 56(b)(1). The statement of proposed
facts must include numbered paragraphs containing short factual statements and specific references
to affidavits, declarations, parts of the record, and other supporting materials.

Civil L.R.

56(b)(1)(C).
The party opposing the motion must file a response to the moving party’s statement of
undisputed facts which is intended to make clear which, if any, of those facts are in dispute, and to
set forth any additional facts that bear on the motion. The opposing party’s response must reproduce
each numbered paragraph of the moving party’s statement of facts followed by a response to each
paragraph. Civil L.R. 56(b)(2)(B). If the fact is disputed, the party must include a specific reference
to an affidavit, declaration, or other parts of the record that supports the claim that a genuine dispute
exists as to the fact stated by the moving party. Id. If the opposing party believes there are
additional facts that prevent the entry of summary judgment, he should include a statement,
consisting of short numbered paragraphs that set forth each additional fact and include references
to the affidavits, declarations, or other parts of the record that support the assertion. Civil L.R.
56(b)(2)(B)(ii).
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In the instant case, Jackson filed a brief in opposition to the defendants’ motion for summary
judgment but did not file a response to their proposed findings of fact. Instead, Jackson cites to his
amended complaint to support his assertions. However, nonmovants may not “rely on the mere
allegations of their complaint to defeat summary judgment.” Westward Coach Mfg. Co. v. Ford
Motor Co., 388 F.2d 627, 635 (7th Cir. 1968) (citation omitted); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 257 (1986) (“To survive summary judgment, the nonmovant may not simply rely on
the facts alleged in the complaint but must instead produce affirmative evidence.”). In short, Jackson
failed to comply with Civil L.R. 56. The Seventh Circuit has “routinely held that a district court may
strictly enforce compliance with its local rules regarding summary judgment motions.” Schmidt v.
Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir. 2010) (citing Patterson v. Ind.
Newspaper Inc., 589 F.3d 357, 360 (7th Cir. 2009)). Therefore, the court will deem the defendants’
statement of facts admitted for the purposes of summary judgment.
In addition, Jackson listed Does 1 through 36 as defendants in this action. To date, he has
not filed an amended complaint that provides the names of the Doe defendants. Because he has not
identified the Doe defendants in a timely manner, his claims against them will be dismissed with
prejudice. With these considerations in mind, the court now turns to the instant motion.

BACKGROUND
Jackson was an inmate in the custody of the Wisconsin Department of Corrections until April
2017. Defs.’ Proposed Findings of Fact (DPFOF) ¶ 1, ECF No. 56. While in custody, Jackson was
housed at JCI from November 25, 2009 through February 20, 2013. Id. ¶ 2. He was then
transferred to CCI where he was housed from March 26, 2013 through February 4, 2016. Id. ¶ 3.
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He asserts that nurses, rather than correctional officers, should be responsible for distributing
medication and alleges that the defendants have shown deliberate indifference to inmates’ serious
medical need to receive the correct medications from the institution.
While inmates may self-administer some medication as needed, it is Department of
Corrections policy and practice at all Division of Adult Institutions (DIA), other than Taycheedah
Correctional Institution, for correctional officers to deliver medications to inmates as part of their
normal job duties. Id. ¶¶ 17, 26; see also DIA Policy No. 500.80.11, ECF No. 57-2. Individual
institutions may adopt DIA 500.80.11 as written or implement additional procedures specific to that
institution. Id. ¶ 18. Along with DIA Policy No. 500.80.11, each institution’s inmate handbook
explains that institution’s medication delivery process. Id. ¶ 20. The handbook is provided to every
inmate housed at the institution and is available in the institution’s library. Id.
In accordance with DIA Policy No. 500.80.11, officers are responsible for dispensing and
controlling psychotropic medications to document compliance and prevent an inmate from
overdosing or selling the medication. Correctional officers receive training regarding medication
delivery during their orientation and receive annual education on the process. Id. ¶ 25. When
delivering medications, correctional officers compare the label on the blister pack with the inmate’s
“Medication Treatment Record,” contained in the inmate’s medical file, to verify the accuracy in
identifying the correct inmate, medication, dose, time, and route. Id. ¶¶ 15, 31. Health Service Unit
staff are responsible for ensuring that the Medication Treatment Record form and the medication
labels match for each inmate. Id. ¶ 16. Accordingly, when there is a discrepancy between the
medication label and the Medication Treatment Record, the correctional officer must contact the
nurse in the Health Services Unit or the on-call nurse for direction before proceeding with delivery.
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Id. ¶ 33. Once the correctional officer verifies that the medication label matches the Medication
Treatment Record form, he must then show the medication label to the inmate to allow the inmate
to verify the accuracy of the information. Health Services Unit staff are responsible for educating
inmate patients with the names of their medications, the dose of their medications, the time they
should take their medications, and the possible side effects of the medications so that they may
ensure the accuracy of the medications they receive. Id. ¶ 14. Inmates only receive medication
when both he and the correctional officer have verified that they are given the correct medication.
Id. ¶ 32.
CCI has implemented DAI 500.80.11 as it is written, while JCI implemented its own facility
procedure for medication distribution. Id. ¶ 34. JCI’s Inmate Handbook indicates that an inmate
must report to the Health Services Unit and present the correctional officer with his identification
card and state his name, inmate number, and housing unit. The correctional officer then dispenses
the medication into the inmate’s hand. Id. ¶ 36. The inmate is required to check the medication
prior to taking it and verify that he received the correct medication. Id.
In his amended complaint, Jackson alleges that he received the wrong medication from
correctional officers tasked with medication distribution on at least three separate occasions at both
CCI and JCI. First, on January 9, 2011, while housed at JCI, Officer Johnston gave him the
medication of another inmate whose last name was also Jackson. Jackson informed Officer Johnston
that he made an error and did not consume the other inmate’s medication. Id. ¶ 13. On October 26,
2014, at CCI, Officer McKnight gave Jackson another inmate’s medication. Jackson notified Officer
McKnight that he received the wrong medication and did not consume this medication. The
following day, an unknown officer gave Jackson the same medication Officer McKnight incorrectly
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dispensed the day before. Jackson informed this officer of the mistake and did not consume the
medication. Id.

LEGAL STANDARD
Summary judgment is appropriate when the moving party shows that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). The moving party has the burden of showing there are no facts to support the
nonmoving party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All reasonable
inferences are construed in favor of the nonmoving party. Foley v. City of Lafayette, 359 F.3d 925,
928 (7th Cir. 2004). The party opposing the motion for summary judgment must “submit evidentiary
materials that set forth specific facts showing that there is a genuine issue for trial.” Siegel v. Shell
Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (citations omitted). “Material” means that the factual
dispute must be outcome-determinative under the law. Contreras v. City of Chicago, 119 F.3d
1286, 1291 (7th Cir. 1997). A “genuine” issue must have specific and sufficient evidence that, were
a jury to believe it, would support a verdict in the non-moving party’s favor. Fed. R. Civ. P. 56(e);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The nonmoving party must do more
than simply show that there is some metaphysical doubt as to the material facts.” Id. Summary
judgment is properly entered against a party “who fails to make a showing sufficient to establish the
existence of an element essential to the party’s case, and on which that party will bear the burden of
proof at trial.” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal
quotation marks omitted).

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ANALYSIS
As an initial matter, the defendants assert that the case is moot because Jackson is not entitled
to injunctive relief. Jackson’s claims for injunctive relief are moot because he has been released from
prison. See Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012) (finding claim for injunctive relief
moot where plaintiff was no longer incarcerated); Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir.
2009). Jackson contends his claims are not moot because the Department of Corrections stipulated
“for declaratory and injunctive relief purposes, that a favorable judgment for Mr. Jackson would
apply to all DOC Correctional Institutions (max, medium and minimum) if the ruling is affirmed by
the Seventh Circuit.” ECF No. 64-1. Yet, this stipulation does not prevent Jackson’s claims from
becoming moot upon his release from prison. Accordingly, Jackson cannot proceed on a claim for
injunctive relief.
In addition, the court notes that Jackson appears to have abandoned his claim that Dittmann,
Maassen, Mashak, Johnston, McKnight, and Griggs were deliberately indifferent. There is nothing
in his brief in opposition to the defendants’ motion for summary judgment regarding his claims
against these defendants. Therefore, summary judgment will be granted in their favor. The court
will now address Jackson’s Eighth Amendment claim against DOC Secretary Jon Litscher.
Jackson contends that Litscher is deliberately indifferent to his and other inmates’ serious
medical need to receive correct medication. The Eighth Amendment prohibits “cruel and unusual
punishments.” U.S. Const. Amend. VIII. It imposes a duty on prison officials to take reasonable
measures to guarantee an inmate’s safety and to ensure that inmates receive adequate medical care.
Farmer v. Brennan, 511 U.S. 825, 832 (1994). A prison official’s “deliberate indifference” to a
prisoner’s medical needs or to a substantial risk of serious harm violates the Eighth Amendment.
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Id. at 828; Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). In order to prevail on an inadequate
medical care claim, a prisoner must establish that “the risk of harm to the prisoner is objectively
serious and that the defendant was deliberately indifferent to the risk of harm as a subjective matter.”
Flynn v. Doyle, 672 F. Supp. 2d 858, 876 (E.D. Wis. 2009) (citing Farmer, 511 U.S. at 828). To
succeed on a claim that the delivery of medication to inmates violates the Eighth Amendment on a
systemic, institutional level, the plaintiff must show that “‘there are such systemic and gross
deficiencies in staffing, facilities, equipment, or procedures that the inmate population is effectively
denied access to adequate medical care;’” or “‘repeated examples of negligent acts which disclose
a pattern of conduct by the prison medical staff’” creating an excessive risk of serious harm.
Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983) (citations omitted).
Here, Jackson has not presented any evidence from which a factfinder could conclude that
Litscher is deliberately indifferent to his or other inmates’ medical needs. While Jackson asserts that
allowing correctional officers to distribute or administer medications violates the constitutional
protections of the Eighth Amendment, he has not only failed to present evidence demonstrating that
there are “systemic and gross deficiencies” in the DOC’s procedures, but also failed to even identify
what those deficiencies are. Jackson does not deny that correctional officers receive medication
delivery training upon hire and annually thereafter. The DOC has reduced the risk of incorrect
medication distribution by implementing policies requiring that both the inmate and correctional
officer verify that the inmate receives the proper medication. Although the defendants concede that
Jackson mistakenly received the wrong medication on three occasions, these three isolated incidents
at two separate facilities do not evince a pattern of conduct by prison staff that creates an excessive
risk of serious harm. On a motion for summary judgment, it is the plaintiff’s burden to present
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evidence on each element of his claim; it is not the defendant’s burden to disprove it. Modrowski
v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013). Jackson has not met his burden here. Accordingly,
summary judgment will be granted as to this claim.

CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment (ECF No. 54) is
GRANTED. The Clerk is directed to enter judgment dismissing the case with prejudice.
Dated this 15th day of December, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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