Heard, Anthony v. Taylor et al

Filing 9

ORDER that This case is dismissed for plaintiff's failure to state a claim upon which relief may be granted. Because this case is being dismissed for one of the reasons listed in 28 U.S.C. 1915(g), the clerk of court is directed to record a "strike" against plaintiff.The clerk of court is directed to enter judgment in favor of defendants and close the case. Signed by District Judge James D. Peterson on 7/16/2020. (rks),(ps)

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

ANTHONY P. HEARD, JR.,
Plaintiff,
v.
LT. TAYLOR and SGT. SAYLOR,

OPINION and ORDER
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 a dose of lithium to “keep
him from acting out” despite Heard no longer having an active prescription for that medication.
In a July 7, 2020 order, I stated that Heard’s complaint did not state a claim for relief because
he did not allege wrongdoing severe enough to violate the United States Constitution. Dkt. 7.
Heard’s allegations perhaps supported a state-law negligence claim, but it was clear that
diversity jurisdiction was not present. Id. I gave Heard a chance to supplement his complaint
because it was possible that he could provide more detail explaining why receiving the extra
dose was particularly 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.
Heard has filed a supplement, Dkt. 8, explaining that some common side effects of
lithium are kidney failure and abdominal and side pain. He indeed suffered side pain after
taking the dose. He says that one of the reasons his medication was discontinued was so that
his kidney function could be tested; he says that while taking three doses of lithium a day his
kidney “levels” had indeed increased, which I take to be a warning sign of impaired kidney
function. He states that when he previously said that defendants gave him “expired”

medication, he meant that the prescription was expired, not that the medication itself had
passed its expiration date. He also explains that correctional staff is trained to know the side
effects of the medications they administer, and that the distribution system would have warned
defendants that his prescription was no longer active.
Heard’s supplement is helpful to better understand the circumstances under which he
was given the extra dose of lithium. But he still fails to state a claim under the Eighth
Amendment to the United States Constitution. As I previously explained to him, 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). Assuming that Heard’s
allegations are true, defendants violated prison protocols by giving Heard a medication that he
was no longer prescribed. But violations of prison rules aren’t automatically Eighth Amendment
violations, see, e.g., Earl v. Karl, 721 F. App’x 535, 537 (7th Cir. 2018), and there’s no reason
to think that defendants gave him the medication with the intent of harming him.
Non-intentional acts can violate the Eighth Amendment but the standard is extremely
difficult to meet. Even gross negligence is not enough to violate the Eighth Amendment; rather,
the defendant must act with a sufficiently “culpable state of mind, something akin to criminal
recklessness.” Norfleet v. Webster, 439 F.3d 392, 397 (7th Cir. 2006). Heard alleges that his
kidney “levels” had been high while taking three doses of lithium a day, but there’s no
indication that defendants knew that. Heard’s allegations do not plausibly support a theory
that defendants acted in a criminally reckless way because there’s no reason to think that they
would have perceived a grave risk to Heard from giving him a single dose of a medication that
he had previously been taking three times a day. As I previously stated, Heard may have
negligence claims that he can bring in state court, but he fails to state a claim for relief that can

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be granted in this federal court. So I will dismiss this case and assess him a strike under
28 U.S.C. § 1915(g).

ORDER
IT IS ORDERED that:
1. This case is DISMISSED for plaintiff’s failure to state a claim upon which relief may
be granted.
2. Because this case is being dismissed for one of the reasons listed in 28 U.S.C.
§ 1915(g), the clerk of court is directed to record a “strike” against plaintiff.
See Turley v. Gaetz, 625 F.3d 1005, 1008–09 (7th Cir. 2010). If plaintiff receives
three strikes under § 1915(g), he will not be able to proceed in future cases without
prepaying the full filing fee unless he is in imminent danger of serious physical
injury.
3. The clerk of court is directed to enter judgment in favor of defendants and close the
case.
Entered July 16, 2020.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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