United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
plaintiff Quavon Davis is proceeding on a claim in this case
that defendant Daniel Layman dispensed the wrong medication
to him, in violation of his rights under the Eighth
Amendment. Before the court is defendant's motion for
summary judgment. Dkt. #36. For the reasons explained below,
I am granting defendant's motion and closing this case.
the parties' proposed findings of fact, I find the
following facts to be undisputed unless otherwise noted.
Quavon Davis is an inmate at the Columbia Correctional
Institution, where defendant Daniel Layman is employed as a
correctional officer. As part of defendant's regular job
duties, he delivers medications to inmates. He received
“pre-service training” in medication delivery in
October or November of 2016 and he has received refresher
training on medication delivery each year since 2016. Certain
medications prescribed to inmates are controlled by officers
to document compliance and prevent the risks of an
inmate's overdosing or selling medications to other
inmates. The controlled medications come in a blister pack.
To receive their controlled medication, inmates in general
population must report to a designated area on their housing
unit when medication pass is called on the unit.
Division of Adult Institutions's policy on medication
delivery requires the correctional officer to show the
medication container, package and label to the inmate, who is
then responsible for verifying that his name, medication,
dose, time and delivery method or route are correct before
ingesting the medication. Further information on medication
delivery is included in Columbia's inmate handbook, which
is provided to every inmate housed at the institution and
made available in the institution library. The handbook
requires inmates to take all medications as directed and to
notify the unit officer of any concerns they may have
regarding medication or directions before consuming any
medication. The handbook also states that “[a]n inmate
should ensure his name is on the medication card and it is
the correct medication.”
approximately 9:00 p.m. on April 20, 2017, plaintiff reported
to the medication cart for his bedtime medication. Defendant
was working in plaintiff's housing unit at this time and
removed plaintiff's medication card (blister pack) from
the cart. (Defendant says that he showed the card to
plaintiff and that plaintiff nodded yes, which defendant
understood to mean that plaintiff had reviewed the medication
card and was confirming that he was receiving the correct
medication. Plaintiff says that defendant never showed him
the medication card.) Defendant then popped the medication
from the blister pack into plaintiff's hand, and
plaintiff swallowed it. Immediately after consuming the
medication, plaintiff asked defendant, “What did you
just give me?” Defendant looked at the medication card
and saw that he had inadvertently given plaintiff the wrong
medication, which was 10 mg of Cyclobenzaprine (a muscle
relaxant). Defendant also had plaintiff take the anti-anxiety
medication that plaintiff was supposed to have received.
immediately called the health services unit and informed a
nurse of the error. He gave the nurse the name of the
medication and dose given to plaintiff, as well as the names
of other medications that are prescribed to plaintiff. A
short time later, a nurse called defendant back and informed
him that plaintiff would be fine. Defendant relayed this
information to plaintiff.
the second shift ended at 10:00 p.m., defendant followed up
with plaintiff, who said that he was not feeling well, that
he felt dizzy and that his stomach hurt. (Defendant says that
he relayed this information to the health services unit, was
told to continue to monitor plaintiff and passed along this
information to the incoming third-shift staff. Plaintiff says
that because defendant did not take plaintiff
“seriously” and left for the day, plaintiff told
a correctional officer on the third shift that he needed help
and the third shift officer notified health services.)
saw a nurse the same evening and complained of sleepiness and
numbness in his tongue. According to plaintiff's medical
record, plaintiff's tongue appeared normal in color and
size, he talked and swallowed without difficulty, he was
alert and oriented and he had no shortness of breath.
(Plaintiff says that the nurse told him that his
“vitals” were elevated.) The nurse further noted
that she consulted with Dr. Manlove, who recommended
follow-up as needed. Plaintiff did not receive any further
medical treatment related to this incident.
reviewing plaintiff's inmate complaint with respect to
this incident, the inmate complaint examiner determined that
both defendant and plaintiff failed to follow the
department's medication delivery policy. According to the
inmate complaint examiner's decision, defendant did not
present plaintiff the prescribed medication and dose at the
prescribed time and plaintiff did not verify that he was
receiving the correct medication.
prevail on an Eighth Amendment deliberate indifference claim,
plaintiff must show that defendant was aware that plaintiff
was being subjected to a substantial risk of serious harm but
was either “deliberately indifferent” or
consciously refused to take reasonable measures to prevent
the harm. Forbes v. Edgar, 112 F.3d 262, 266 (7th
Cir. 1997). Any time a prisoner receives the wrong
medication, there is a risk of harm. Robbins v. Waupun
Correctional Institution, 2016 WL 5921822, at *3 (E.D.
Wis. Oct. 11, 2016) (“Administering the wrong
medication may well pose a substantial risk of harm,
depending on the circumstances.”). However, courts have
found that “one isolated mistake does not allow a
plausible inference of deliberate indifference.”
Id. (quoting Morrison v. Utz, 2012 WL
293548, at *2 (C.D. Ill. Jan. 31, 2012)). 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
reasonable jury would not conclude from the undisputed facts
in this case that defendant was deliberately indifferent to a
serious risk of harm to plaintiff. Although the parties
dispute whether defendant followed the department's
medication delivery policy by showing the medication blister
pack to plaintiff so plaintiff could verify what he was
taking, the dispute does not affect the outcome of this case.
At most, defendant's one-time error in failing to follow
department policy amounts to negligence or gross negligence.
Richmond v. Dart, 2012 WL 567245, at *2 (N.D. Ill.
Feb. 17, 2012) (“The officer, the nurse-and Plaintiff
himself, for that matter-all may have been negligent for
failing to confirm that the medication in question was being
taken by the right inmate. But neither negligence nor gross
negligence implicates the Constitution.”); Davis v.
Baker, 2010 WL 779502 (S.D. Ind. Feb. 26, 2010)
(granting summary judgment to defendant on claim that
defendant handed inmate wrong medication one time);
Kirkwood v. Sirin, 2006 WL 587698 *3 (E.D. Wis. Mar.
9, 2006) (no constitutional claim for ...