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Jackson v. McGibbon

United States District Court, E.D. Wisconsin

July 1, 2019

JAMES A. JACKSON, Plaintiff,
ANNETTE MCGIBBON, et al., Defendants.


          William C. Griesbach, United States District Court Chief Judge

         Plaintiff James A. Jackson, who is currently serving a state prison sentence at Redgranite Correctional Institution and representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. Plaintiff has paid the $400.00 filing fee. Regardless of a plaintiff's fee status, the court is required to screen complaints brought by prisoners in accordance with 28 U.S.C. § 1915A.

         Screening of the Complaint

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).

         To state a cognizable claim under the federal notice pleading system, Plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must contain sufficient factual matter “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts the factual allegations as true and liberally construes them in the plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, the complaint's allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         Allegations of the Complaint

         Plaintiff alleges that a doctor ordered him to take 800mg of Gabapentin three times a day approximately every four hours at noon, in the evening, and at bedtime. This resulted in Plaintiff taking his medication at 12:30 p.m., 5:30 p.m., and 8:30 p.m. Plaintiff would retrieve his bedtime medication when “last call” was announced over the intercom, so he would not be taking his evening medication and bedtime medication too close together.

         On October 22, 2018, Correctional Officer McGibbon informed Plaintiff that he could come to pill pass at 7:00 p.m. along with the other members of his housing unit. On October 23 and 24, 2018, Plaintiff arrived at pill pass with his unit and McGibbon dispensed his medication, resulting in Plaintiff taking his medication 1½ or 2 hours earlier than usual. On October 25, 2018, Plaintiff went to pill pass as ordered by McGibbon at approximately 7:00 p.m. C.O. Maas, who was distributing medication that day, advised Plaintiff that he was too early. Plaintiff responded that McGibbon told him that he was required to go to pill pass with his unit. Maas replied that the information on her computer instructed that she was not authorized to give Plaintiff his medications until after 7:50 p.m. and directed Plaintiff to return to his unit until 7:50 p.m. Plaintiff returned to pill pass to obtain his medication at 7:50 p.m. as instructed. That same day, Plaintiff submitted a Health Services Request (HSR) to Health Service Manager (HSM) Thompson explaining that McGibbon instructed Plaintiff to take his medication at pill pass and indicating that taking his medication earlier resulted in stomach pain and very bad headaches. Plaintiff received his medication the next day without incident.

         On October 28, 2018, Plaintiff submitted a second HSR informing the Health Services Unit that he had issues with his medication and noting that he had not received a response from HSM Thompson. On October 30, 2018, Plaintiff presented to an appointment with RN Katherine Thompson to address glaucoma-related concerns. Plaintiff claims that when he attempted to discuss his concerns about his medication, Nurse Thompson stated that he should speak to the doctor about changing the times that he took his medication. Plaintiff responded that McGibbon led him to believe that this conversation had already occurred with the doctor. Dr. Ibirogba Adebola also examined Plaintiff's eyes later that day. Plaintiff alleges that he attempted to inform Dr. Adebola that he was taking his bedtime dose of medication too close in time to his evening dose, but Dr. Adebola simply shook his head. That same day, Plaintiff wrote HSM Thompson a letter because he had not been seen by HSU about his headache and stomach pain. He stated that, although he told McGibbon that he had taken his medication during last call, McGibbon insisted that the time he needed to take his medication had changed. Plaintiff had asked Maas, McGibbon, Sergeant Craig Eckstein, C.O. Medrano, and C.O. Todd Zamzo if he could go to pill pass at last call rather than receive his medication with his unit.

         On November 1, 2018, McGibbon called for Plaintiff to come to pill pass. At approximately 7:25 p.m. Plaintiff arrived and had a discussion with McGibbon regarding his pill pass time. McGibbon suggested that Plaintiff send in an HSR about his concerns. Plaintiff advised McGibbon that he had already submitted an HSR and told McGibbon that the status of his request was confidential. McGibbon stated that Plaintiff would be required to go to pill pass with his unit, at which point he could either take or refuse his medication. If he failed to go to pill pass at that time, he would receive a conduct report.

         Plaintiff sent another HSR to HSU staff on November 1, 2018, informing them about his conversation with McGibbon. Plaintiff also asked if the doctor wanted him to take his medication two hours apart, even though it caused him stomach pain and very bad headaches. The following day, RN Katherine Thompson responded to the HSR, “The order states PM bedtime so you would come with your unit at these times. We can discuss changing the order to different times at your request.” Compl. ¶ 29, Dkt. No. 1 at 10. Plaintiff did not request that his medication pill pass times be changed because that is what the doctor had prescribed.

         On November 2, 2018, Plaintiff submitted an inmate complaint alleging staff misconduct. The next day, he sent an email to the H-east housing unit security supervisor stating, “I wrote a (HSR) to health service manager without a response on or about 10/25/18 concerning my medication being given to me too soon. It causes stomach pains and headaches. I do not wish to go against Doctor's or Gabapentin's instruction.” Id. ¶ 32.

         On November 5, 2018, Plaintiff received a response to his October 25, 2018 HSR. HSM Thompson advised that the Gabapentin should be taken in the morning, at noon, and at bedtime, rather than at noon, in the evening, and at bedtime. Later that day, Plaintiff sent an HSR to HSU, stating that he had not taken his medication at bedtime for several days and he experienced withdrawal symptoms including cramps; pain in his feet, legs, and back; sleeplessness; anxiety; and tremors. Nurse Klenke responded to this request on November 6, 2018, indicating that HSM Thompson changed the order by eliminating the evening dose and requiring that Plaintiff take his medication in the morning, at noon, and at bedtime.

         On November 6, 2018, Plaintiff submitted another HSR requesting an appointment to speak with a doctor about his medication. He stated that the change that had been put in place did not benefit his condition. The next day, Nurse Thompson responded that he had an appointment scheduled for early January. Plaintiff submitted another HSR on November 13, 2018, asking to see a doctor because of pain in his lower back, legs, buttock, hands, ...

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