Thomas, David v. Wall, Edward et al

Filing 9

ORDER dismissing plaintiff's complaint as to his claims under the Eighth Amendment. Plaintiff's state law claims are REMANDED to the Circuit Court for Dane County, Wisconsin under 28 U.S.C. § 1367(c)(3). The motion filed by defendants Sgt. Foster, Edward Wall and Michael Dittmann for leave to file an amended answer, dkt. # 5 , is DENIED as moot. Defendants are free to renew their motion in state court. Signed by District Judge Barbara B. Crabb on 4/6/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DAVID THOMAS,
OPINION AND ORDER
Plaintiff,
16-cv-166-bbc
v.
EDWARD WALL, MICHAEL DITTMANN
and SGT. FOSTER,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se prisoner David Thomas has filed a complaint in which he alleges that
defendant Sgt. Foster (a correctional officer) dispensed the wrong medication to him on one
occasion. As a result, plaintiff says that he “black[ed] out” and hit his head when he fell.
Plaintiff says that defendant Edward Wall (the former Secretary of the Wisconsin
Department of Corrections) and defendant Michael Dittman (the warden of the Columbia
Correctional Institution, where plaintiff is incarcerated) may be held liable because they
allow correctional officers without any medical training to dispense medication to prisoners.
Plaintiff raises three state law claims in his complaint, along with one federal claim under the
Eighth Amendment.
Plaintiff filed his complaint in state court, but defendants removed the case to this
court under 28 U.S.C. §§ 1441 and 1446. Because plaintiff is a prisoner, I am required to
screen the complaint under 28 U.S.C. § 1915A to determine whether it states a claim upon

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which relief may be granted.
To prevail on a claim under the Eighth Amendment, a prisoner must show that an
official was aware of a substantial risk that the prisoner would be seriously harmed, but the
official consciously failed to take reasonable measures to prevent the harm. Farmer v.
Brennan, 511 U.S. 825 (1994). Plaintiff’s allegations do not state a claim under that
standard.
Plaintiff does not allege that defendant Foster knowingly gave him the wrong
medication. Rather, plaintiff says that Foster made a mistake. That may be negligence, but
it is not a violation of the Eighth Amendment. Zentmyer v. Kendall County, Illinois, 220
F.3d 805, 812 (7th Cir. 2000) (“Failing to dispense medication exactly as prescribed may
constitute negligence.”); Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006)
(“Negligence does not meet this [Eighth Amendment] standard; therefore, even admitted
medical malpractice does not give rise to a constitutional violation.”).
Plaintiff says that defendants Wall and Dittmann may be held liable for failing to give
medical training to nonmedical staff such as Foster who dispense medications. However,
plaintiff does not allege that Foster gave him the wrong medication as a result of a lack of
medical training. In fact, plaintiff does not allege that Foster needs any medical training to
do her job.

Rather, plaintiff alleges that Foster realized she gave plaintiff the wrong

medication after looking at his name tag more closely. That is not a problem that could be
solved with more medical training. Further, plaintiff identifies no reason why Wall and
Dittmann should have been aware of a substantial risk that Foster or any officer dispensing

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medications would give a prisoner the wrong medication as a result of failing to read the
prisoner’s name tag closely. Accordingly, Wall and Dittmann cannot be held liable for
Foster’s mistake, at least not under the Eighth Amendment.
When a federal court dismisses all of the federal claims in a removed case, the general
rule is to remand the case to state court to resolve the remaining state law claims. Cadleway
Properties, Inc. v. Ossian State Bank, 478 F.3d 767, 769-70 (7th Cir. 2007); 28 U.S.C. §
1367(c)(3). Particularly because I am dismissing the federal claims at such an early stage of
the case, I see no reason to retain jurisdiction over the state law claims.

ORDER
IT IS ORDERED that
1. Plaintiff David Thomas’s complaint is DISMISSED as to his claims under the
Eighth Amendment.
2.

Plaintiff’s state law claims are REMANDED to the Circuit Court for Dane

County, Wisconsin under 28 U.S.C. § 1367(c)(3).
3. The motion filed by defendants Sgt. Foster, Edward Wall and Michael Dittmann

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for leave to file an amended answer, dkt. #5, is DENIED as moot. Defendants are free to
renew their motion in state court.
Entered this 6th day of April, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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