Steed, Robert v. Syed et al

Filing 9

ORDER Dismissing 1 Complaint pursuant to Fed. R. Civ. P. 8. Amended complaint due 8/6/2015. Signed by District Judge James D. Peterson on 7/16/2015. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ROBERT STEED,

v.

Plaintiff,

OPINION & ORDER
15-cv-55-jdp

DR. SYED, RN T. JOHNSON, RN WARNER,
WARDEN THOMAS, and WARDEN DOUMA,
Defendants.

Plaintiff Robert Steed is a prisoner in the custody of the Wisconsin Department of
Corrections at the Columbia Correctional Institution. He has filed a civil complaint under 42
U.S.C. § 1983 in which he alleges that, while he was incarcerated at the New Lisbon
Correctional Institution, he received the wrong pain medication, which was ineffective and
gave him an allergic reaction. He seeks leave to proceed in forma pauperis and has paid the
initial partial payment of the filing fee as previously directed by the court.
The next step is for the court to screen the complaint and dismiss any portions that
are legally frivolous, malicious, fail to state a claim upon which relief may be granted, or ask
for money damages from a defendant who by law cannot be sued for money damages. 28
U.S.C. §§ 1915 and 1915A. In screening any pro se litigant’s complaint, the court must read
the allegations of the complaint generously. Haines v. Kerner, 404 U.S. 519, 521 (1972). After
considering plaintiff’s allegations, I conclude that at this point, he states only Wisconsin-law
negligence claims that cannot by themselves be heard in this court. I will give plaintiff an
opportunity to submit an amended complaint further detailing his constitutional claims.

ALLEGATIONS OF FACT
Plaintiff Robert Steed is a prisoner currently incarcerated at the Columbia
Correctional Institution. The events in plaintiff’s complaint took place while plaintiff was
incarcerated at the New Lisbon Correctional Institution (NLCI).
On October 8, 2014, plaintiff submitted a health request for a refill of an ibuprofen
prescription to treat chronic neck and back pain. I understand plaintiff to be saying that he
usually takes pain medication at least twice a day. Plaintiff states that “[his] medication was
discontinued,” which I understand to mean that plaintiff had a prescription for ibuprofen but
that it was discontinued at some point. Plaintiff does not say who discontinued the
medication, nor does he focus on the two-day lapse as a cause of harm. On October 10,
Nurse T. Johnson responded, stating that the prescription was “renewed.”
Defendant Syed “sent down” pills that plaintiff thought were ibuprofen. However,
when plaintiff ingested the pills, his “mouth would instantly get numb, and [he would suffer]
agonizing stomach cramps, which followed with diarrhea.” Plaintiff never had these problems
with ibuprofen. Plaintiff asked to see the blister pack, and it did not say that the medication
was ibuprofen. Plaintiff believes that he received Tylenol instead, although he does not
explain how he knows this. Plaintiff states that Syed did not follow proper protocol in
making sure he was not allergic to the Tylenol or informing plaintiff of the medication
change.
Plaintiff states that several times between October and December 2014, he “was
prescribed” Tylenol instead of ibuprofen. I understand him to be saying that his prescription
was refilled, albeit with the new medication. Defendant Syed has never explained why he
changed the medication. The Tylenol is not strong enough to prevent plaintiff from suffering

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severe pain. Plaintiff believes that Syed made the medication change because, at some earlier
point in 2014, he filed an inmate grievance about other decisions Syed made about plaintiff’s
treatment.
Plaintiff argues that the “medication administration ‘system’” at NLCI “is unable to
reliably provide medication to treat patients with medical conditions.” By this I understand
plaintiff to be saying that either the switch in medication or failure to provide Dr. Syed with
proper information caused plaintiff to be given incorrect medication. Defendant Warner, the
Health Services Unit manager, has “approv[ed] and ratif[ied]” the system under which staff
is “managing several carts full of blistered-packed pills and paperwork” that he believed led to
the problem in his case.

ANALYSIS
At the heart of the case is plaintiff’s allegation that defendant Dr. Syed changed
plaintiff’s medication for chronic neck and back pain from ibuprofen to Tylenol. Plaintiff
brings Eighth Amendment deliberate indifference, First Amendment retaliation, and state law
medical malpractice claims regarding that decision.
The Eighth Amendment prohibits prison officials from acting with deliberate
indifference to prisoners’ serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103-04
(1976). A “serious medical need” may be a condition that a doctor has recognized as needing
treatment or one for which the necessity of treatment would be obvious to a lay person.
Johnson v. Snyder, 444 F.3d 579, 584-85 (7th Cir. 2006). A medical need may be serious if it
is life-threatening, carries risks of permanent serious impairment if left untreated, results in
needless pain and suffering, significantly affects an individual’s daily activities, Gutierrez v.

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Peters, 111 F.3d 1364, 1371-73 (7th Cir. 1997), or otherwise subjects the prisoner to a
substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 847 (1994). For defendants
to be deliberately indifferent to such a need, they must know of the need and disregard it. Id.
at 834. But “the Eighth Amendment is not a vehicle for bringing claims for medical
malpractice.” Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996).
Plaintiff’s allegation that he suffers chronic pain is sufficient to show he has a serious
medical need. But plaintiff falters when it comes to the deliberate indifference part of his
claim. The mere fact that Syed changed plaintiff’s medication from ibuprofen to Tylenol does
not show that Syed was disregarding plaintiff’s need. Plaintiff alleges that he suffered an
allergic reaction to the Tylenol, but plaintiff does not suggest that Syed knew plaintiff would
have this problem. Plaintiff argues that Syed “recklessly disregarded the risk of harm in
failing to inform [plaintiff] of adverse consequences or allergic reaction,” Dkt. 1, at 4, which
would suffice to plead a deliberate indifference claim if I could reasonably conclude that the
provision of ibuprofen to an inmate is inherently reckless. See Collignon v. Milwaukee County,
163 F.3d 982, 988 (7th Cir. 1998) (“Only the criminal recklessness standard provides
adequate notice of what conduct is or is not permitted” under Eighth Amendment.). At best,
plaintiff has stated a malpractice claim against Syed.
Plaintiff’s claim that the Tylenol is not strong enough to alleviate his pain in also
insufficient to show deliberate indifference because he does not say that he informed Syed
about the ineffectiveness of the medication and that Syed disregarded the complaint. If Syed
did not know about the ineffectiveness of the Tylenol, he cannot be liable under the Eighth
Amendment.

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Plaintiff also attempts to bring a First Amendment claim against Syed for changing
the medication in retaliation for a previous inmate grievance plaintiff filed about Syed’s
treatment. To state a claim for retaliation under the First Amendment, a plaintiff must
identify: (1) the constitutionally protected activity in which he was engaged; (2) one or more
retaliatory actions taken by the defendant that would deter a person of “ordinary firmness”
from engaging in the protected activity; and (3) sufficient facts to make it plausible to infer
that the plaintiff’s protected activity was one of the reasons defendants took the action they
did against him. Bridges v. Gilbert, 557 F.3d 541, 556 (7th Cir. 2009). Plaintiff’s grievance is
protected activity and I can reasonably assume that the provision of ineffective pain
medication to “send a message” to a complaining prisoner could deter that person from filing
further grievances. But there is nothing in plaintiff’s allegations that plausibly connects the
medication change to plaintiff’s previous grievance, nor is there any reason to think that Syed
knew that the ibuprofen would cause an allergic reaction or would be ineffective. Again,
plaintiff’s allegations describe a malpractice claim rather than a constitutional violation.
As for the other defendants, plaintiff states that nurse T. Johnson conveyed a health
service request response stating that his ibuprofen prescription was renewed. If anything, this
shows that Johnson helped plaintiff rather than violated his rights, so plaintiff fails to state a
claim against this defendant.
I understand plaintiff to have an alternative theory for the medication switch: that
there are “systematic errors” in the medication system at NLCI that led to him receiving pills
that gave him an allergic reaction, and blames this on defendant nurse Warner, who is the
NLCI Health Services Unit manager. But the mere fact that Warner supervised the system
does not show that she was personally involved in the violation of his constitutional rights.

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Wilson v. City of Chicago, 6 F.3d 1233, 1241 (7th Cir. 1993) (“Neither respondeat superior nor
negligent supervision of subordinates is an authorized ground of liability in a suit under 42
U.S.C. § 1983.”). Finally, plaintiff also names wardens Thomas and Douma as defendants,
but he does not allege that they did anything to violate his rights, so he cannot proceed on
claims against them.
If plaintiff’s allegations are only sufficient to state Wisconsin-law negligence claims,
the case will not be able to proceed in this court. Groce v. Eli Lilly & Co., 193 F.3d 496, 501
(7th Cir. 1999) (“[T]he usual practice is to dismiss without prejudice state supplemental
claims whenever all federal claims have been dismissed prior to trial.”). However, before
dismissing the case (and leaving plaintiff with the option of filing his case in state court), I
will give plaintiff a chance to flesh out his allegations supporting his proposed federal claims.
If plaintiff believes that he can address the various problems with his federal claims discussed
above, he may submit an amended complaint including additional allegations showing how
defendants’ actions showed deliberate indifference toward his medical needs or a desire to
retaliate against him for his prior grievance.

ORDER
IT IS ORDERED that plaintiff Robert Steed’s complaint is DISMISSED for failure to
comply with Federal Rule of Civil Procedure 8. Plaintiff may have until August 6, 2015, to
submit an amended complaint addressing the problems detailed in the opinion above. Should

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plaintiff fail to submit an amended complaint by this deadline, I will direct the clerk of court
to enter judgment dismissing the case.

Entered July 16, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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