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Taylor v. Litscher

United States District Court, W.D. Wisconsin

June 24, 2019

GEORGE TAYLOR, Plaintiff,
v.
JON LITSCHER, MICHAEL DITTMAN, SERGEANT DOYLE, BRITTANY K. HIBMA, MICHAEL STEPHENS, and THOMAS MITCHELL Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Pro se plaintiff George Taylor is an inmate at Columbia Correctional Institution (CCI). He alleges that defendants Warden Michael Dittman and former Wisconsin Department of Corrections (DOC) Secretary Jon Litscher maintained a policy of having correctional officers, rather than medical staff, distribute prisoners' medications, and that this policy led to defendants Sergeant Doyle, Brittany Hibma, and Michael Stephens providing Taylor the wrong medications or dosages of medication. Taylor also says that on one occasion when he took the wrong medication, defendant Thomas Mitchell ignored his request for follow-up medical attention.

         Taylor has four pending motions. The first two are closely related. Taylor renews his motion for a preliminary injunction barring correctional officers from distributing medication at the prison and ordering that only licensed nurses may distribute medication. Dkt. 40. Taylor has also filed a motion to consider additional evidence in support of his motion for preliminary injunction. Dkt. 65. I will grant his motion to consider the additional evidence. I previously denied Taylor's motion for preliminary injunction because I concluded that Taylor had not shown that he would face irreparable harm if officers continue to distribute medication. Dkt. 17. Taylor has significantly expanded the record and added evidence in support of his claims against defendants for past harm. But Taylor has still not shown that he will face irreparable harm in the future without an injunction, so I will again deny the motion.

         Second, Taylor has filed an unrelated motion for a temporary restraining order allowing him to keep his albuterol inhaler in his cell while in restricted housing. Dkt. 66. I will deny that motion because it is unrelated to the claims in this case.

         Third, Taylor has filed a motion to add 16 additional defendants to the case. Dkt. 80. I will deny the motion because it is too late in the proceedings to join so many new defendants. Taylor may bring his claims against these defendants as a separate lawsuit.

         ANALYSIS

         A. Motions for injunctive relief

          1. Medication distribution policy

         A preliminary injunction is “an extraordinary and drastic remedy” that should be granted only when the movant carries the burden of persuasion by a “clear showing.” Boucher v. School Bd. of Greenfield, 134 F.3d 821, 823 (7th Cir. 1998) (citations omitted). And injunctions that order a defendant to take affirmative action, rather than merely refrain from an action, are “cautiously viewed and sparingly issued.” Knox v. Shearing, 637 Fed.Appx. 226, 228 (7th Cir. 2016) (quoting Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997)). To obtain an injunction, Taylor must show that (1) he will suffer irreparable harm before the final resolution of his claim without a preliminary injunction; (2) traditional legal remedies are inadequate; and (3) his claims have some likelihood of success on the merits. BBL, Inc. v. City of Angola, 809 F.3d 317, 323-24 (7th Cir. 2015). Because Taylor is proceeding as an individual, Taylor must show that he personally will suffer harm if an injunction is not granted-he cannot assert constitutional rights on behalf of other inmates at CCI.

         Taylor has not shown that he will face irreparable harm without an injunction. Taylor has submitted documents suggesting that DOC officials were aware that correctional officers lack the medical training to appropriately administer medication, and that having correctional officers distribute medication was an inherently “unsafe and unhealthy practice.” Dkt. 57, ¶ 20. And Taylor has shown that on numerous occasions he (and other inmates at CCI) received the wrong medication or wrong dosage of medication from officers. This evidence supports Taylor's claim that he was harmed in the past by CCI's policy of having officers distribute medication. But on December 3, 2018, CCI implemented a new electronic medical records system (EMR system) that decreases the chance of continued medication errors.

         The EMR system requires each inmate to wear an identification tag with a barcode on it. Each inmate's medication has a matching barcode. Nurses prepare the medication and sort it into medication carts for different units. Then, during medication pass, inmates report to the medication cart in their unit. An officer scans the inmate's identification tag, retrieves the appropriate medication, and then scans the barcode on the medication. If the barcodes match, the officer gives the inmate the medication and the medical record is updated to reflect that medication was administered. In the restrictive housing unit, where inmates cannot leave their cells, officers use a wireless version of the scanner to distribute medication at each inmate's cell door.

         The EMR system is not perfect-correctional officers still hand out medication, even though the DOC has recognized that it is better to have nurses do it. And because the scanners used in general population are not wireless, the prison needs to revert to the old, paper system when the prison is on lockdown. But the Eighth Amendment sets only the minimum standards that prison officials are required to follow. It does not require prisons to implement the best possible practices. And on a motion for preliminary injunction, relief is further limited by the Prison Litigation Reform Act, which states that injunctive relief to remedy prison conditions must be “narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2); see also Westefer v. Neal, 682 F.3d 679, 681 (7th Cir. 2012). An order requiring nurses to distribute medication would significantly intrude on the prison's operations; CCI would need to either reassign nurses from other duties or hire additional nursing staff just to deliver medication. But the EMR system addresses the risk that officers will distribute the wrong medication without requiring the prison to completely overhaul its day-to-day operations or make staffing changes.

         Taylor has not received the wrong medication since the EMR system was implemented, but he says that officers have accidentally given his medication to his cellmates on two occasions.[1] In their declarations, both of these cellmates say that they did not see Taylor's name on the label until after they had already ingested the medication. Dkt. 49 and Dkt. 50. But they do not explain why, if they were able to check the name on the medication, they could not check it before accepting it.

         More important, Taylor does not explain why he would not be able to check his medication before accepting it. I denied Taylor's previous motion for preliminary injunction in part because I concluded that Taylor was able to recognize the label on his medication, and that he could avoid irreparable harm by refusing to accept medication that did not belong to him. Taylor argues that if he were to refuse medication, he would suffer from pain because he would not receive his prescribed pain medication. But Taylor ...


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