Parker, Antonio v. Castro, Michael et al

Filing 154

ORDER granting 112 Motion for Summary Judgment; denying 127 Motion for Summary Judgment. Signed by District Judge William M. Conley on 8/30/2024. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ANTONIO PARKER,

v.

Plaintiff,

CHRISTINE HOLMEN and
LORETTA JOHNSON,

OPINION AND ORDER
21-cv-509-wmc

Defendants.
Plaintiff Antonio Parker, who is currently incarcerated at Columbia Correctional
Institution (“Columbia”), is representing himself in this lawsuit against nurses Loretta
Johnson and Christine Holmen. Parker asserts that Johnson and Holmen violated his
Eighth Amendment rights after learning that a correctional officer had given him the wrong
medication. The court previously granted Parker leave to proceed against both defendants
on claims of deliberate indifference to a serious medical need. The parties have crossmoved for summary judgment. (Dkt. ##112, 127.) Because the undisputed evidence
would not permit a reasonable jury to find that defendants acted with deliberate
indifference to Parker’s condition, the court will grant their motion and deny Parker’s
motion.

UNDISPUTED FACTS1
During all times relevant to this lawsuit, Parker was in the custody of the Wisconsin
Department of Corrections (“DOC”) at Columbia, where defendants Holmen and Johnson
were each employed as a “Nurse Clinician 2.”
On March 23, 2021, a correctional officer reported to Columbia Sergeant Terstriep
that he had mistakenly given Parker the wrong medication, although the officer did not
know what medication he had mistakenly given Parker. Sergeant Terstriep then ordered
that same officer to get the “medication card,” and he returned with a medication card for
diphenhydramine (also known as “Benadryl”). Benadryl is used to treat allergy and cold
symptoms and is referred to as a “benign” medication, meaning that its effectiveness and
side effects are well understood, and it very rarely produces significant potential harms.
The most common side effect of Benadryl is sedation, although nausea, vomiting, and
diarrhea are also reported side effects.
While the actual medication mistakenly given to Parker is still unknown,2 Sergeant
Terstriep called a nurse, whose name he could not recall but was identified in an incident

Unless otherwise noted, the following facts are undisputed. The court has drawn these facts from
the parties’ proposed findings of fact and responses, as well as the underlying evidence of record.
In particular, while Parker purports to object to many of defendants’ proposed findings of fact, only
a few have any merit. See Proc. to be Followed on Mot. For Summ. Judg., § II(C), (E). Parker also filed
an unauthorized, sur-reply opposing defendants’ reply in support of their proposed findings of fact
(dkt. #145), which the court has nevertheless considered.

1

In Parker’s inmate complaint, he alleged that the officer mistakenly gave him trazadone,
montelukast, and fluconazole (Complaint History (dkt. #43-2) 8), while defendants represent that
“neither nurse was provided correct information with respect to what medication Plaintiff had been
provided.” (Defs.’ Resp. to Proposed Findings of Fact (dkt. #139) 9.) As a result, what medication
the officer actually gave Parker remains unknown on the record before the court at summary
judgment.

2

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report as “NC2 Johnson” (dkt. #34-1, at 1), in the Health Services Unit (“HSU”) on
March 23 to report that an officer had mistakenly given Benadryl to Parker. In response,
that nurse advised Terstriep to “continue to monitor” Parker for changes in his condition.
(Terstriep Decl. (dkt. #115) ¶¶ 11-12.) According to an incident report, NC2 Johnson
also advised that no further medical assessment was needed at that time. (Dkt. #34-1, at
1.)
Nurse Johnson averred that she did not remember the incident.

However, if

Sergeant Terstriep had told her that Parker was given an allergy medication, Johnson
further averred that she would not have concluded that Parker needed to be assessed by
HSU staff because allergy medications are common over-the-counter drugs with a low risk
of serious side effects. (Johnson Decl. (dkt. #116) ¶¶ 6-8.) In contrast, if Terstriep told
her that Parker had taken trazodone, montelukast, or fluconazole, Johnson added that her
practice would be to make a note in his chart and then contact an advanced care provider.
(Id. ¶ 11.) After reviewing Parker’s medical chart and not seeing such a note, therefore,
suggested to Johnson that Terstriep had not reported that Parker took any of those
medications. (Id. ¶ 12.)
Next, Parker told Columbia Correction Officer Myadze that he had taken the wrong
medication, had an adverse reaction, and asked to see a nurse. Later, while Myadze and
Nurse Holmen were administering medications, Parker further followed-up to ask Myadze
whether he had informed a nurse about Parker’s condition. Myadze responded that he
had forgotten to talk with a nurse, then told Nurse Holmen, “Oh, I forgot to tell you or let
you know that [a Corrections Officer] gave Parker [another inmate’s] medications.”

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(Parker Dep. (dkt. #119) 10.) Parker also told Holmen directly that an officer had given
him the wrong medication, then asked to be pulled from his cell and checked. (Id.) While
Parker testified that Holmen only laughed in response and said, “Oh, he’ll be all right,”
Parker also acknowledged that he neither heard anyone tell Holmen what medication he
had taken, nor did he feel sick at the time. (Id. at 10-11.) For her part, Holmen declares
that she does not remember any such report by Officer Myadze or Parker, but that it would
have been uncharacteristic of her to respond in that manner. (Holmen Decl. (dkt. #117)
¶¶ 6, 10.)3 Regardless, sometime after Myadze and Holmen stopped at Parker’s cell,
Sergeant Terstriep also told Parker that he would investigate the situation, after which an
unidentified officer placed a “strap” on Parker’s door, leading him to believe that he would
be medically assessed but never was. (Parker Dep. (dkt. #119) 11.)4
Finally, around midnight of March 23, Parker experienced dizziness, an upset
stomach and diarrhea. Concerned that his body was rejecting the medication he was given
by mistake, Parker induced vomiting. After that, Parker claims to have lost consciousness
and fell, hitting his head on the concrete. However, Nurses Johnson and Holmen did not
witness any of those symptoms or his fall, nor is there any evidence from which a reasonable

Parker asserts that Nurses Johnson and Holmen committed perjury by stating that they were never
informed that he was given the wrong medication, and he disputes that the nurses do not remember
the incidents at issue in this lawsuit. However, Parker provides no evidence that the nurses perjured
themselves, particularly when the nurses only stated that they did not remember the incident, and
he lacks personal knowledge to dispute what they remembered.

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Parker also argues that the defendants should identify “John Doe #4,” the still unidentified officer
who put the strap on plaintiff’s door, and apparently, in the alternative, to assume that Sergeant
Terstriep was really John Doe #4. The court will not revisit this issue so late in the case, given that:
(1) the defendants have represented that they could not identify John Doe #4 (dkt. #38); and
(2) the court concluded that plaintiff was not entitled to further discovery to identify Doe
defendants. (Dkt. #40.)

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jury could find that they were later made aware of his symptoms or fall. After experiencing
these medical issues, Parker told Corrections staffers that he was “kind of messed up” and
needed to see a nurse, but staff did not contact a nurse. (Id. at 15.)
OPINION
Plaintiff emphasizes the facts that: a correctional officer gave him pills that were not
prescribed to him; and he eventually fell and hit his head. As a result, plaintiff further
argues that Johnson and Holmen violated nursing protocols and DOC policies by not
immediately removing him from his cell and performing a medical assessment after learning
that an officer had given him the wrong medication. Defendants point out that neither
fact is sufficient for a reasonable jury to find that they personally violated any protocol or
policy, much less the Eighth Amendment deliberate indifference clause.

Even more

specifically, defendants argue that plaintiff has neither offered sufficient evidence to find
that he suffered an objectively serious medical condition, nor in the alternative, that
defendants’ individual responses amounted to deliberate indifference, where Nurse
Johnson had every reason to believe that plaintiff had mistakenly ingested Benadryl, a safe
medication, and Nurse Holmen only knew that he had taken the “wrong” medication.
The Eighth Amendment gives prisoners the right to receive adequate medical care.
Estelle v. Gamble, 429 U.S. 97 (1976). It is well established that “deliberate indifference to
serious medical needs of prisoners constitutes the unnecessary and wanton infliction of
pain proscribed by the Eighth Amendment.” Id. at 104 (quotation marks and citation
omitted). To prevail on a claim of constitutionally inadequate medical care, therefore, an
inmate must demonstrate two elements: (1) an objectively serious medical condition; and

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(2) a state official who was deliberately (that is, subjectively) indifferent to the risks
presented by that condition. Giles v. Godinez, 914 F.3d 1040, 1049 (7th Cir. 2019); Arnett
v. Webster, 658 F.3d 742, 750 (7th Cir. 2011); see also Forbes v. Edgar, 112 F.3d 262, 266
(7th Cir. 1997) (“deliberate indifference” satisfied upon proof that the official was aware
that the prisoner faced a substantial risk of serious harm but disregarded that risk by
consciously failing to take reasonable measures to address it). Summary judgment is
appropriate if the moving party shows that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On
cross-motions for summary judgment, the court evaluates each motion separately,
construing the facts and drawing all reasonable inferences from those facts in favor of the
nonmoving party. Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008). The
court must grant summary judgment when no reasonable jury could find for the nonmoving
party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), as is the case here.
As an initial matter, defendants assert that plaintiff has not established that he
suffered an objectively serious medical condition, having offered no evidence that any
arguable harm done from the original medication error was serious or lasting.

As

defendants emphasize, the court previously held “a reasonable jury would not conclude
that the temporary symptoms of shakiness, lightheadedness and diarrhea experienced by
plaintiff placed him at a substantial risk of serious harm, even if he later fell because he
was lightheaded.” Brown v. Cascadden, No. 18-cv-483-BBC, 2019 WL 6174365, at *3
(W.D. Wis. Nov. 20, 2019). While plaintiff responds that he suffered an objectively
serious medical injury because he fell and hit his head, this case is very close on its facts to

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that found insufficient in Brown. However, the court need not determine whether plaintiff
has produced sufficient evidence of an objectively serious medical condition, because no
reasonable jury could conclude that either defendant acted with deliberate indifference.
Deliberate indifference constitutes more than negligent acts, or even grossly negligent
acts, although it requires something less than purposeful acts. Farmer v. Brennan, 511 U.S.
825, 836 (1994). The threshold for deliberate indifference is met where, among other
situations, “the official knows of and disregards an excessive risk to inmate health or
safety.” Id. at 837. Because these defendants are medical professionals, the relevant
question under the Eighth Amendment is whether their actions were “such a substantial
departure from accepted professional judgment, practice, or standard, as to demonstrate
that the person responsible actually did not base the decision on such a judgment.” Estate
of Cole by Pardue v. Fromm, 94 F.3d 254, 261-62 (7th Cir. 1996). Nothing in this record
supports finding the lack of exercise of medical judgment.
“Administering the wrong medication may well pose a substantial risk of harm,
depending on the circumstances.” Robbins v. Waupun Corr. Inst., No. 16-CV-1128, 2016
WL 5921822, at *3 (E.D. Wis. Oct. 11, 2016). Here, however, the circumstances of the
nurses’ respective interactions with plaintiff would not allow a reasonable jury to find that
either nurse ignored that risk.

Specifically, assuming that Nurse Johnson answered

Sergeant Terstriep’s call at all, no reasonable jury could find that she acted with deliberate
indifference by recommending that staff merely continue monitoring plaintiff having been
told that the plaintiff had been incorrectly given Benadryl, which had well-understood and
limited side effects. Similarly, as to Nurse Holmen, no reasonable jury could find that she

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acted with deliberate indifference having only been told by plaintiff that an officer had
given him the “wrong medication,” but not telling her what medication he had taken, nor
that he was experiencing any symptoms after taking it. Indeed, it is undisputed that
plaintiff had no symptoms when he spoke with Nurse Holmen. Even accepting that when
plaintiff informed her that he had taken the wrong medication, Nurse Holmen allegedly
laughed before observing, “Oh, he’ll be all right,” unprofessional behavior alone is not
enough to show deliberate indifference. Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.
1987) (unprofessional conduct does not violate the Constitution). Further, accepting that
plaintiff experienced frightening symptoms later that evening, it is undisputed that neither
defendant witnessed him experiencing those symptoms, nor was it reported to them.
Finally, plaintiff asserts that Nurses Johnson and Holmen violated various DOC
policies, including the “Medication Occurrence Reporting” policy, by not giving him an
immediate medical check after learning that he had taken the wrong medication, but such
a violation would not give rise to a constitutional claim absent evidence that defendant
had reason to believe the drug mistakenly administered was dangerous or plaintiff was
experiencing possible serious side effects. Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir.
2003) (“42 U.S.C. § 1983 protects plaintiffs from constitutional violations, not violations
of . . . departmental regulations”).
Because no reasonable jury would find that defendants acted with deliberate
indifference to a substantial risk of serious harm, they are entitled to summary judgment,
and plaintiff’s motion for summary judgment must be denied.

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ORDER
IT IS ORDERED that:
1) Defendants’ motion for summary judgment (dkt. #112) is GRANTED.
2) Plaintiff’s motion for summary judgment (dkt. #127) is DENIED.
3) The clerk of court is directed to enter judgment in defendants’ favor and close
this case.
Entered this 30th day of August, 2024.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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