Robbins v. Waupun Correctional Institution et al

Filing 7

SCREENING ORDER signed by Judge Lynn Adelman on 10/11/16 granting 4 Motion for Leave to Proceed Without Prepayment of the Filing Fee. Further ordering that defendants Waupun Correctional Institution and John Doe are DISMISSED. Further ordering t hat on or before November 9, 2016, plaintiff shall file an amended pleading curing the defects in the original complaint as described herein. Further ordering the Secretary of the Wisconsin Department of Corrections or his designee to collect from the plaintiffs prisoner trust account the $328.84 balance of the filing fee as set forth herein. See order. (cc: all counsel, via USPS to plaintiff, Warden) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHANE T. ROBBINS,
Plaintiff,
v.

Case No. 16-CV-1128

WAUPUN CORRECTIONAL INSTITUTION,
WILLIAM POLLARD, ANN SCARPITA, and
JOHN DOE,
Defendants.

SCREENING ORDER

The plaintiff, Shane T. Robbins, who is incarcerated at Waupun Correctional
Institution, is representing himself. He filed a complaint alleging that the defendants
violated his constitutional rights.

This matter comes before the court on plaintiff’s

petition to proceed without prepayment of the filing fee (in forma pauperis). He has
been assessed and paid an initial partial filing fee of $21.61.

See 28 U.S.C.

§ 1915(b)(1).
The court shall screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity.

28 U.S.C.

§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has
raised claims that are legally “frivolous or malicious,” that fail to state a claim upon
which relief may be granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court
may, therefore, dismiss a claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
490 U.S. at 327. “Malicious,” although sometimes treated as a synonym for “frivolous,”
“is more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107,
1109-10 (7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system, plaintiff is
required to provide a “short and plain statement of the claim showing that [he] is entitled
to relief[.]”

Fed. R. Civ. P. 8(a)(2).

Plaintiff need not plead specific facts and his

statement need only “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers
mere “labels and conclusions” or a “formulaic recitation of the elements of a cause of
action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 555).

To state a claim, a complaint must contain sufficient factual matter,

accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint’s allegations “must be

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enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555
(citation omitted).
In considering whether a complaint states a claim, courts should follow the
principles set forth in Twombly by first, “identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at
679. Legal conclusions must be supported by factual allegations. Id. If there are wellpleaded factual allegations, the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that:
(1) he was deprived of a right secured by the Constitution or laws of the United States;
and (2) the deprivation was visited upon him by a person or persons acting under color
of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir.
2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to
give the plaintiff’s pro se allegations, “however inartfully pleaded,” a liberal construction.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
Complaint’s Allegations
Plaintiff alleges that on September 22, 2015, defendant Officer John Doe gave
him another inmate’s medication. According to plaintiff, he suffered serious side effects
from the medication including a massive headache, ringing in his head, and red, veiny
hands. Since the September 22, 2015 incident, correctional staff have given plaintiff the
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wrong medication three times, but he did not take the medications because he noticed
they were wrong. Plaintiff also states that, since all of the recent complaints, officers
have gotten better about showing inmates their medications before disbursing them.
Plaintiff asserts that he would not have received the wrong medication if health
services staff, instead of officers, distributed medication to inmates. Plaintiff claims that
the negligence of non-medical personnel disbursing medication and giving the wrong
medication put his health and life in jeopardy and violates the Eighth Amendment to the
United States Constitution.
For relief, plaintiff would like to see medical personnel disburse medication, to
minimize errors in handing out the wrong medication, and to minimize inmates not
receiving their medication. Plaintiff also seeks declaratory relief. He further asserts that
defendant Scarpita should be held accountable for her part in refusing to look into all the
claims of inmates receiving wrong medication. He states that William Pollard should be
held accountable for his part in refusing to look into inmates receiving wrong
medication.
Discussion
To establish liability under the Eighth Amendment, a prisoner must show: (1) that
his medical need was objectively serious; and (2) that the official acted with deliberate
indifference to the prisoner's health or safety. Farmer v. Brennan, 511 U.S. 825, 834
(1994); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001); see also Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976); Zentmyer v. Kendall County, Ill., 220 F.3d 805,
810 (7th Cir. 2000). Assuming that the plaintiff's ingestion of the wrong medication
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constitutes a serious medical need, a prison official acts with deliberate indifference
when “the official knows of and disregards an excessive risk to inmate health or safety.”
Farmer, 511 U.S. at 837; see also Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir.
2006); Chapman, 241 F.3d at 845 (a finding of deliberate indifference requires evidence
“that the official was aware of the risk and consciously disregarded it nonetheless”).
Negligence does not meet this standard and “even admitted medical malpractice does
not give rise to a constitutional violation.” Norfleet, 439 F.3d at 396 (quoting Walker,
293 F.3d at 1037); see also Estelle, 429 U.S. at 106.
As an initial matter, plaintiff has named Waupun Correctional Institution as a
defendant. State agencies, including the Wisconsin Department of Corrections (DOC),
are not “persons” or suable entities under 42 U.S.C. § 1983. See Ryan v. Ill. Dep’t of
Children and Family Servs., 185 F.3d 751, 758 (7th Cir. 1999). Therefore, because it is
part of the DOC, I will dismiss Waupun Correctional Institution.
Turning to defendant Officer John Doe, plaintiff’s allegation that he gave plaintiff
the incorrect medication one time does not state a claim under the Eighth Amendment.
In order to state a constitutional claim, plaintiff's allegations must allow a plausible
inference that Officer John Doe was deliberately indifferent to a substantial risk of
serious harm to him. Thomas v. Cook County Sheriff’s Dep’t, 604 F.3d 293, 301 (7th
Cir. 2010). Administering the wrong medication may well pose a substantial risk of
harm, depending on the circumstances. However, “[o]ne isolated mistake does not
allow a plausible inference of deliberate indifference.” Morrison v. Utz, No. 11 C 4110,
2012 WL 293548, *2 (C.D. Ill. Jan. 31, 2012); see also Ehrenberg v. Wis. Dep’t of Corr.,
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No. 10 C 1022, 2010 WL 5089484 (E.D. Wis. Dec. 7, 2010) (prisoner stated no
constitutional claim based on allegations that he was given the wrong dosage of
medicine); Davis v. Baker, No. 08 C 1310, 2010 WL 779502 (S.D. Ind. Feb. 26, 2010)
(granting summary judgment to defendant on claim that defendant handed inmate
wrong medication one time); Kirkwood v. Sirin, No. 06 C 0139, 2006 WL 587698 *3
(E.D. Wis. Mar. 9, 2006) (prisoner failed to state constitutional claim for being given
wrong medication on one day). Neither negligence nor gross negligence implicates the
Constitution. Washington v. LaPorte County Sheriff’s Dep’t, 306 F.3d 515, 518 (7th Cir.
2002) (citations omitted); Davidson v. Cannon, 474 U.S. 344, 347 (1986). While the
incident is regrettable, plaintiff is not entitled to recovery under 42 U.S.C. § 1983 for
receiving the wrong medication on one occasion.
Plaintiff also claims that Pollard and Scarpita are liable because they failed to
take action after being repeatedly warned that inmates were receiving the wrong
medication. Moreover, as stated above, plaintiff states that officers tried to give him the
wrong medication three more times after the September 22, 2015 incident. Plaintiff
does not state who warned Pollard and Scarpita, when they were warned, or how many
times they were warned.

I cannot discern a plausible claim against Pollard and

Scarpita.
If the plaintiff wants to proceed, he must file an amended complaint curing the
deficiencies in the original complaint as described herein.

Specifically, plaintiff’s

amended complaint should include any additional information about how the prison’s
medication distribution practice affected him, as well as when and how he advised
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Pollard and Scarpita about the situation. Such amended complaint must be filed on or
November 9, 2016. Failure to file an amended complaint within this time period may
result in dismissal of this action.
The amended complaint must bear the docket number assigned to this case and
must be labeled “Amended Complaint.” The amended complaint supersedes the prior
complaint and must be complete in itself without reference to the original complaint.
See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 105657 (7th Cir. 1998). If an amended complaint is received, the court will screen it pursuant
to 28 U.S.C. § 1915A.
ORDER
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to proceed without
prepayment of the filing fee (in forma pauperis) (Docket # 4) is GRANTED.
IT IS FURTHER ORDERED that defendants Waupun Correctional Institution and
John Doe are DISMISSED.
IT IS FURTHER ORDERED that on or before November 9, 2016, plaintiff shall
file an amended pleading curing the defects in the original complaint as described
herein.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from the plaintiff’s prisoner trust account the
$328.84 balance of the filing fee by collecting monthly payments from the plaintiff’s
prison trust account in an amount equal to 20% of the preceding month’s income
credited to the prisoner’s trust account and forwarding payments to the Clerk of Court
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each time the amount in the account exceeds $10 in accordance with 28 U.S.C.
§ 1915(b)(2). The payments shall be clearly identified by the case name and number
assigned to this action.
IT IS ALSO ORDERED that a copy of this order be sent to the Warden of
Waupun Correctional Institution.
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing Program, the
plaintiff shall submit all correspondence and case filings to institution staff, who will scan
and e-mail documents to the Court. The Prisoner E-Filing Program is in effect at Dodge
Correctional Institution, Green Bay Correctional Institution, Waupun Correctional
Institution, and Wisconsin Secure Program Facility and, therefore, if the plaintiff is no
longer incarcerated at one of those institutions, he will be required to submit all
correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE

DO

NOT

MAIL

ANYTHING

DIRECTLY

TO

THE

COURT’S

CHAMBERS. It will only delay the processing of the matter.
Plaintiff is further advised that failure to make a timely submission may result in
the dismissal of this action for failure to prosecute. In addition, the parties must notify
the Clerk of Court of any change of address. Failure to do so could result in orders or
other information not being timely delivered, thus affecting the legal rights of the parties.
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Dated at Milwaukee, Wisconsin, this 11th day of October, 2016.
BY THE COURT:
s/ Lynn Adelman
______________________________
LYNN ADELMAN
United States District Judge

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