Heard, Anthony v. Taylor et al

Filing 7

ORDER that that plaintiff Anthony P. Heard, Jr. may have until July 28, 2020, to submit a supplement to his complaint. Signed by District Judge James D. Peterson on 7/7/2020. (rks),(ps)

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

ANTHONY P. HEARD, JR.,
Plaintiff,
v.

OPINION and ORDER

LT. TAYLOR and SGT. SAYLOR,

20-cv-555-jdp

Defendants.
Plaintiff Anthony P. Heard, Jr., appearing pro se, is a prisoner at Wisconsin Secure
Program Facility. Heard alleges that correctional officers gave him medication after his
prescription for that medication ended. He seeks leave to proceed in forma pauperis, and he
has made an initial partial payment of the filing fee as previously directed by the court.
The next step is for me to screen Heard’s complaint and dismiss any portion that is
legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for
money damages from a defendant who by law cannot be sued for money damages. 28 U.S.C.
§§ 1915 and 1915A. In doing so, I must accept his allegations as true, see Bonte v. U.S Bank,
N.A., 624 F.3d 461, 463 (7th Cir. 2010), and construe the complaint generously, holding it to
a less stringent standard than formal pleadings drafted by lawyers. Arnett v. Webster, 658 F.3d
742, 751 (7th Cir. 2011). Heard’s complaint does not state a claim for relief because he does
not allege wrongdoing severe enough to violate the United States Constitution. I’ll give him a
chance to supplement his complaint to further explain his claims.

ALLEGATIONS OF FACT
Heard had been prescribed lithium, a psychotropic medication, but that medication was
discontinued on March 9, 2019. At some point shortly after, Heard “was angry having an
[outburst] about the medication.” Dkt. 1, at 2. It’s unclear whether Heard means that he was
upset about the medication being discontinued. Despite the cancellation of the medication,
defendant Sergeant Saylor asked his supervisor, Lieutenant Taylor, if he could give Heard
lithium to “keep him from acting out.” Id. Rather that discussing the issue with nursing staff
as is required by prison rules, Taylor approved Saylor giving Heard lithium. Heard describes
the lithium as being “expired.” By that it’s unclear whether Heard is referring to his prescription
having been discontinued or whether he means that the medication he was given that day was
expired.
Within a few days, Heard began experiencing pain in his side. Heard talked to nurses
about the problem on March 15. Heard believes that the pain was caused by the medication
or his fearful reaction to having taken it; he bases this belief on his experience taking lithium
for most of his life. Heard won a grievance about the incident.

ANALYSIS
Heard contends that defendants violated the Eighth Amendment to the United States
Constitution by giving him lithium even after his prescription for it was discontinued. The
Eighth Amendment prohibits prison officials from acting with conscious disregard toward
prisoners’ serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). A “serious
medical need” is 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,

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584–85 (7th Cir. 2006). A medical need is 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. 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). A defendant “consciously disregards” an inmate’s need
when the defendant knows of and disregards “an excessive risk to an inmate’s health or safety;
the official must both be aware of the facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Snipes v. Detella,
95 F.3d 586, 590 (7th Cir. 1996). However, inadvertent error, negligence, gross negligence,
and ordinary malpractice are not cruel and unusual punishment within the meaning of the
Eighth Amendment. Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996).
Unlike many cases in which a prisoner contends that officials failed to treat a medical
problem, I take Heard to be saying that defendants caused a medical problem by giving him
lithium even though his prescription had been discontinued. But Heard’s allegations are
insufficient to state an Eighth Amendment claim. It’s clear that security staff shouldn’t be
making their own decisions about dispensing medications; that’s a job for medical staff. But
there’s little reason to think that one extra dose of a medication that Heard says he had taken
for most of his life could cause a problem serious enough to violate the Eighth Amendment.
Heard says that he suffered side pain days later, and that he knows that the pain was
caused by the lithium because of his experience taking it. But that statement is too vague to
support a reasonable inference that he was indeed harmed by one extra dose. Heard also
perhaps suggests that the lithium had reached its expiration date, but there’s no reason to think
that this would make the medication dangerous. And even if his pain was caused by the lithium,

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he doesn’t explain whether defendants had reason to know that he would be harmed by it.
Defendants were perhaps negligent in dispensing it, but that’s not enough to state a
constitutional claim, and Heard cannot maintain a diversity-jurisdiction case in this court: he
alleges that he and defendants are all Wisconsin citizens.
So as currently constructed, Heard’s complaint does not state a claim for relief. But
because he appears pro se, I will not dismiss the case outright. See Felton v. City of Chicago, 827
F.3d 632, 636 (7th Cir. 2016) (“when a plaintiff—especially a pro se plaintiff—fails to state a
claim in his first complaint, he should ordinarily be given a chance to amend.”). It’s possible
that Heard could provide more detail that would explain why receiving the extra dose was so
dangerous, how he knows that his pain was caused by the medication, or how he knows that
defendants were aware of a risk of harm in giving him the medication. So I will give him a
chance to file a supplement to his complaint to include any such information. If Heard fails to
respond to this order, I will conclude that he fails to state a claim upon which relief may be
granted, and I will assess him a strike under 28 U.S.C. § 1915(g).

ORDER
IT IS ORDERED that plaintiff Anthony P. Heard, Jr. may have until July 28, 2020, to
submit a supplement to his complaint.
Entered July 7, 2020.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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