Golden v. Baenen et al

Filing 35

ORDER signed by Judge J P Stadtmueller on 7/17/13 denying 24 defendants' Motion to Dismiss; defendants subject to Plaintiff's Eighth Amendment claims (Baenen, Hamblin, Zwiers, and Brandenberg) shall file an answer to Plaintiffs Eighth Amendment claims not later than 14 days after the entry of this order. See Order. (cc: Plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PARISH GOLDEN,
Plaintiff,
v.

Case No. 12-CV-1270-JPS

MICHAEL BAENEN, GARY HAMBLIN,
JEANANNE ZWIERS,
C.O. II BRANDENBERG, and T. HUCK,
Defendants.

ORDER

Parish Golden, a prisoner, filed his complaint in this matter on
December 12, 2012. (Docket #1). In it, he asserts 42 U.S.C. § 1983 claims
against various defendants involved in the State of Wisconsin’s prison
system. (Docket #1). The defendants filed a motion to dismiss certain of those
claims and the corresponding defendants. (Docket #24). That motion is now
fully briefed, and the court renders its decision. (Docket #25, #30, #33).
1.

Claims and Background
Mr. Golden has sued the following defendants: Michael Baenen, the

warden of Green Bay Correctional Institution (“GBCI”); Gary Hamblin, the
secretary of Wisconsin’s Department of Corrections (“DOC”); Jeananne
Zwiers, the health services manager at GBCI; C.O. II Brandenberg, a
correctional officer at GBCI who allegedly provided Mr. Golden with
incorrect medications; and T. Huck, a mailroom employee at GBCI, who
allegedly sent out Mr. Golden’s mail in the wrong format. (Compl. ¶¶ 9–13).
There are three remaining claims in this matter,1 the first of which Mr.
Golden asserts against Baenen, Hamblin, Zwiers, and Brandenberg, and the
latter two of which he asserts only against Huck.

1

At screening, the Court dismissed Mr. Golden's second claim, which
alleged a negligence claim against Bradenberg. (Compl. ¶ 96(b); Docket #18, at 4).

Mr. Golden’s first claim is an Eighth Amendment inadequate medical
care claim against defendants Baenen, Hamblin, Zwiers, and Brandenberg
(every defendant with the exception of T. Huck). (See Compl. ¶¶ 15–70). This
first claim actually has two separate parts.
The first part of the first claim stems from Mr. Golden’s allegation that
Brandenberg accidentally provided Mr. Golden with an incorrect medication.
(Compl. ¶ 19). Specifically, he alleges that on May 28, 2012, Brandenberg
provided him with the wrong pill while she was administering medication
to Mr. Golden at his cell. (Compl. ¶ 19). Mr. Golden immediately realized
that this was not the correct medication and informed Brandenberg of the
mistake, to which Brandenberg responded “my fault.” (Compl. ¶¶ 19–22).
Mr. Golden returned the pill to Brandenburg, who threw the pill away.
(Compl. ¶ 20). To be clear, Mr. Golden did not take the incorrect medication at
this time.
After this incident, Mr. Golden sent several letters to Baenen and
Zwiers informing them of this incident and complaining about the potential
problems that arise from Green Bay Correctional Institution’s (“GBCI”)
policy of allowing correctional officers to distribute medications—a policy
also in effect in the rest of Wisconsin’s prisons. (See, e.g., Compl. ¶¶ 23, 25, 28,
31). Baenen and Zwiers responded to Mr. Golden’s letters, noting Mr.
Golden’s responsibility for knowing his own medications, and refusing to
change the policy. (See, e.g., Compl. ¶¶ 24, 26).
Mr. Golden’s complaint identifies his issues with both the actions of
Brandenberg in providing the incorrect medication and with the broader
policy of GBCI and the DOC to allow correctional officers to administer
medication. (See Compl. ¶¶ 15–70). In this regard, he seeks an injunction
requiring the DOC to change its medication delivery practice (Compl.
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¶ 136–137), a declaration that the defendants’ actions are unconstitutional
(Compl. ¶ 139), and nominal damages against Brandenberg for her delivery
of the wrong medication (Compl. ¶ 141).
The second part of Mr. Golden’s first claim identifies a separate
situation in which he was prescribed a medicated shampoo; the prison
ordered the shampoo, but delivery took several days, during which time Mr.
Golden’s symptoms allegedly worsened. (Compl. ¶¶ 79–83). Mr. Golden
complains that this occurrence was due to GBCI’s prescription ordering
system, propagated by Baenen, Hamblin, and Zwiers, which he alleges is
outdated and unduly slow. (Compl. ¶¶ 84–96(a)). He asserts that these issues
result in serious risk of harm to inmates through the exacerbation of
symptoms and unnecessary pain and suffering, and requests the issuance of
an injunction requiring the DOC to change its prescription ordering practices.
(Compl. ¶¶ 90, 136).
Mr. Golden’s second and third remaining claims both relate to
interference with his mail and are both asserted only against Huck. (Compl.
¶¶ 97–130). The second claim is an interference with mail claim, in which Mr.
Golden points out that Huck incorrectly sent out a letter from Mr. Golden as
non-certified when it should have been sent out certified. (Compl.
¶¶ 97–115). The third claim is a retaliation claim, in which Mr. Golden asserts
that Huck again interfered with Mr. Golden’s mail, but did so due to Mr.
Golden’s having filed a complaint against Huck. (Compl. ¶¶ 116–130). Mr.
Golden seeks an injunction against Huck’s actions, as well as nominal and
punitive damages against him, as a result of these alleged actions. (Compl.
¶¶ 138, 142, 143).

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2.

Discussion
The defendants have moved to dismiss Mr. Golden’s Eighth

Amendment claim against Baenen, Hamblin, Zwiers, and Brandenberg.
(Docket #24). They focus their motion solely upon that claim, and do not
address the First Amendment and retaliation claims against Huck. (Docket
#25, at 1).
The Court should dismiss the claim only if it determines that, taking
all of Mr. Golden’s factual allegations to be true, the allegations in the
complaint are not sufficient to show that Mr. Golden’s Eighth Amendment
claim is facially plausible. See, e.g., Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
572 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Furthermore, because Mr. Golden is proceeding pro se, the Court must
construe his complaint liberally in evaluating both its substantive claims and
its allegations of standing. Gould v. Schneider, 448 Fed. Appx. 615, 618 (7th
Cir. 2011) (citing Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 402 (2008); Erickson
v. Pardus, 551 U.S. 89, 94 (2007); McNeil v. United States, 508 U.S. 106, 113
(1993); McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010); Bridges v. Gilbert,
557 F.3d 541, 546 (7th Cir. 2009); Obriecht v. Raemisch, 517 F.3d 489, 492 n. 2
(7th Cir. 2008); Walters v. Edgar, 163 F.3d 430, 437 (7th Cir.1998)).
As already discussed, Mr. Golden requests nominal damages, an
injunction, and declaratory relief as redress for his Eighth Amendment claim.
The defendants argue that the Court: (1) cannot award the nominal damages
for the alleged “past injury” because Mr. Golden did not suffer a sufficiently
serious injury from receiving the wrong medicine (Docket #25, at 3–4); and
(2) that Mr. Golden lacks standing to pursue injunctive and declaratory relief
because he cannot show any likelihood that he will suffer some injury as a

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result of the state’s policy (Docket #25, at 4–6 (citing, among other sources,
City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983))).
Interpreting Mr. Golden’s complaint liberally, as the Court must, it is
obliged to disagree with both of the defendants’ arguments and to
accordingly deny their motion to dismiss.
On the nominal damages/“past injury” claim, the Court finds that Mr.
Golden’s complaint adequately alleges serious injury, and thus may escape
the defendants’ motion to dismiss. The defendants are correct that Mr.
Golden has not clearly stated any allegations that he was harmed through
ingesting an incorrect medicine. However, contrary to the state’s assertions,
Mr. Golden has alleged that he was given incorrect medications on multiple
occasions and that his symptoms grew worse after the delay in obtaining his
medicated shampoo. (Compl. ¶¶ 35, 79–83).
Construing his complaint liberally, and further construing all
allegations in Mr. Golden’s favor, the Court must find that these allegations
are sufficient to escape dismissal at this stage. If Mr. Golden had received
incorrect medications on multiple past occasions, it is conceivable that he
may have ingested an incorrect medication unknowingly. If Mr. Golden can
establish that he did, indeed, ingest an incorrect medication unknowingly,
which in turn caused him harm, then he may prevail on this portion of his
claim. Thus, dismissal of that claim would be inappropriate at this stage.
Similarly, if Mr. Golden is, in fact, correct that his prescription medication
was unduly delayed, causing him further injury, then he may prevail on that
aspect of his claim for nominal damages. Therefore, the Court must deny the
defendants’ motion to dismiss with respect to Mr. Golden’s Eighth
Amendment claims for past injury/nominal damages.

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Likewise, the Court must also deny the defendants’ motion to dismiss
Mr. Golden’s claims seeking injunctive and declaratory relief. In this regard,
the defendants make a standing argument: that, because Mr. Golden is not
likely to suffer any injury as a result of the DOC medication administration
or prescription ordering policies, he lacks standing to seek injunctive relief
under Lyons, 461 U.S. at 102. (Docket #25, at 4–5; #33, at 3). At first glance, Mr.
Golden’s potential for injuries does seem to be of the speculative nature that
the Lyons court found could not support standing. Here, however, after
evaluating the situation as a whole, the Court concludes that Mr. Golden
presents a very high potential that he will be harmed in both a real and
immediate sense. Thus, the Court is obliged to find that these circumstances
provide Mr. Golden with the requisite standing under Lyons. 461 U.S. at 102.
Mr. Golden is a prisoner subject to the complained-of policies every day.
Every time that he receives a medication—which, for many medications is at
least once per day—he faces the possibility that he will be given the wrong
medicine by an untrained correctional officer. Mr. Golden may, indeed, be
very vigilant, as the defendants assure us. And, that may reduce his risk of
taking the wrong medication. But, Mr. Golden (just like the administering
correctional officers) is totally untrained, and thus arguably faces a much
higher possibility of ingesting the wrong medication than he would if the
administration were performed by trained professionals. Similarly, if Mr.
Golden becomes sick (quite likely in a prison setting) and is forced to wait for
prescription medication, there is a high likelihood that he will suffer pain and
worsened symptoms. These scenarios are very real, occur everyday, and are
almost entirely outside of Mr. Golden’s control. For all of these reasons, the
Court must also deny the defendants’ motions to dismiss Mr. Golden’s
Eighth Amendment claims for injunctive and declaratory relief.
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3.

Conclusion
Having determined that the defendants’ arguments both fail, the

Court is obliged to deny their motion to dismiss in its entirety. The Court will
allow the plaintiff to pursue his Eighth Amendment claims, at least through
discovery and dispositive motions. In keeping with the Court’s desire to keep
this case moving forward, the Court will require that the defendants file an
answer to the plaintiff’s Eighth Amendment claims not later than fourteen
(14) days after the entry of this order. Upon receipt of the defendants’
answer, the Court will issue a formal scheduling order establishing the
relevant discovery and dispositive motion cutoff dates.
Accordingly,
IT IS ORDERED that the defendants’ motion to dismiss (Docket #24)
be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that the defendants subject to the
plaintiff’s Eighth Amendment claims (Baenen, Hamblin, Zwiers, and
Brandenberg) file an answer to the plaintiff’s Eighth Amendment claims not
later than fourteen (14) days after the entry of this order.
Dated at Milwaukee, Wisconsin, this 17th day of July, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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