United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
Xzavior Goodwin, appearing pro se, is a prisoner at the
Columbia Correctional Institution. He brings this lawsuit,
alleging that a correctional officer gave him the wrong
medication and that he failed to receive prompt medical
attention after he fell because of dizziness he suffered from
has made an initial partial payment of the filing fee for
this lawsuit, as previously directed by the court. The next
step in this case is for me to screen the complaint. In doing
so, I must 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.
Goodwin is a pro se litigant, I must read his allegations
generously. Haines v. Kerner, 404 U.S. 519, 521
(1972) (per curiam). After considering his allegations, I
will allow him to proceed on an Eighth Amendment claim that
defendant Correctional Officer Zerber failed to get him
prompt medical attention after he fell. But I will stay
service of the complaint so that Goodwin can correct other
problems with his allegations preventing him from proceeding
with other claims.
is incarcerated at the Columbia Correctional Institution. On
December 21, 2016, defendant Correctional Officer Zerber
performed the night medication pass. He gave Goodwin
medication and said “these are your new pills.”
Goodwin swallowed them. As Zerber set the medication back in
the cart, he told Goodwin that he gave him
“Gordon's” medication. Goodwin told Zerber
his last name. Zerber said “oops, then hurried and put
Gordon's medication back in the cart.” Goodwin
asked Zerber to see what medication he had been given, but
Zerber said “he don't know where he put
them.” Zerber offered Goodwin his correct medication,
but Goodwin refused because he was concerned about the
medication he had already taken.
Gavinski called the Health Services Unit (HSU), and Goodwin
was seen by Nurse Jess and Nurse Young at his cell. Goodwin
said that he had a slight headache, his legs were weak, his
mouth was dry, and he “didn't feel good at
all.” Jess took his vitals but did not take him back to
the HSU. Goodwin's blood pressure was high, despite him
not having a history of hypertension. By this time, Goodwin
had pain in his legs “as if weights were tied around
them, ” blurred vision, a stomachache, dizziness, and a
painful, long-lasting erection.
than night, Goodwin attempted to climb onto his top bunk, but
he was dizzy and lightheaded. He slipped and fell. His leg
was bruised and bleeding, and he says he also suffered
injuries to his neck, face, and shoulders. Defendant Zerber
said he would call the HSU. A half hour later, Sergeant
Gavinski came to Goodwin's cell and asked what was wrong.
Goodwin asked to be seen by the HSU. Gavinski said that the
HSU would not see him “unless [he] was dying” but
he did contact the HSU. HSU staff told Gavinski to give
Goodwin a bandage, which Goodwin considered far too little to
treat his injuries.
contends that defendants Correctional Officer Zerber and
Warden Michael Dittman violated his Eighth Amendment rights.
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. 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).
unclear whether Goodwin attempts to bring an Eighth Amendment
claim against Zerber for giving him the incorrect medication,
because he states in his complaint that Zerber was negligent
for doing so. I agree with this assessment: there is nothing
in Goodwin's allegations that suggest that Zerber
intentionally gave him the incorrect medication. Mere
negligence does not violate the Eighth Amendment, so Goodwin
cannot bring an Eighth Amendment claim against Zerber for
giving him the incorrect medication. I would allow Goodwin to
proceed on a negligence claim, but I cannot because he does
not explain whether he has complied with Wisconsin's
notice-of-claim statute, Wis.Stat. § 893.82, by
notifying the attorney general about his state law claims.
This notice is required before a plaintiff can sue defendants
under state law theories. Section 893.82(3) states:
Except as provided in sub. (5m), no civil action or civil
proceeding may be brought against any state officer, employee
or agent for or on account of any act growing out of or
committed in the course of the discharge of the
officer's, employee's or agent's duties ...
unless within 120 days of the event causing the injury,
damage or death giving rise to the civil action or civil
proceeding, the claimant in the action or proceeding serves
upon the attorney general written notice of a claim stating
the time, date, location and the circumstances of the event
giving rise to the claim for the injury, damage or death and
the names of persons involved, including the name of the
state officer, employee or agent involved.
Goodwin does not address the notice-of-claim requirement in
his complaint, so I cannot allow him to proceed on a
negligence claim at this point. I will give him a short time
to submit a supplement to his complaint explaining whether he
has complied with the notice-of-claim statute.
also appears to attempt to bring claims against the nurses
who only took his vitals instead of taking further action
after hearing about his being given incorrect medication, but
he does not name those nurses as defendants, so he cannot
proceed on claims against them. He is free to amend ...