United States District Court, W.D. Wisconsin
LEANDER J. GREGG, Plaintiff,
THE STATE OF WISCONSIN, EAU CLAIRE COUNTY JAIL, CORRECT CARE SOLUTIONS, OFFICER J. KERNS, OFFICER OATES and DAVID P., RN, Defendants.
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE.
20, 2019, I dismissed this case brought by pro se plaintiff
LeAnder J. Gregg against staff at the Eau Claire County jail
because plaintiff's allegations did not support a
constitutional claim against any defendant. Dkt. #11. In his
complaint, plaintiff alleged that while he was incarcerated
at the Eau Claire County jail, defendant Officer Oates gave
him medication belonging to another inmate. After he took the
medication, plaintiff started having stomach pain and called
the on-duty nurse, defendant David P., who stated that the
medication cups had not been labeled and that Oates had given
plaintiff medication belonging to another inmate with a
similar name. David P. said the medication could be causing
the stomach pain and offered plaintiff a slice of pizza to
ease the symptoms. However, defendant Officer Kerns stated
that plaintiff could not have the pizza. Kerns also denied
plaintiff's request to be sent to the hospital. I
concluded that plaintiff's allegations suggested that
defendants acted negligently, at the most, and did not
support a claim of deliberate indifference under the Eighth
Amendment or objective unreasonableness under the Fourteenth
Amendment. Plaintiff has now filed a motion for
reconsideration and for leave to supplement his complaint.
Dkt. #13. He requests permission to supplement his complaint
with allegations that (1) nursing staff and security staff
took no precautions to insure that medications were given to
the correct inmates; (2) the medication that plaintiff was
given by mistake was an antibiotic; (3) plaintiff is allergic
to most antibiotics; (4) plaintiff's allergy was noted in
his jail medical file; (5) plaintiff had a severe allergic
reaction to the antibiotic; (6) Officer Kerns never asked
nursing staff whether plaintiff should go to the hospital;
and (7) plaintiff's allergic reaction lasted for several
days and caused him extreme discomfort.
new allegations are sufficient to state a claim under the
Eighth and Fourteenth Amendments against defendants Officer
Kerns, Officer Oates and Nurse David P. As discussed in the
previous screening order, it is not clear whether
plaintiff's claims fall under the Eighth Amendment, which
protects convicted prisoners from cruel and unusual
punishment, or the Fourteenth Amendment, which applies to
claims brought by pretrial detainees. A prison or jail
official violates the Eighth Amendment if the official acts
with “deliberate indifference” to a
“substantial risk of serious harm” to an
inmate's health or safety. Farmer v. Brennan,
511 U.S. 825, 832 (1994). A prison or jail official violates
the Fourteenth Amendment if the official's actions are
“objectively unreasonable.” Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2473 (2015); Miranda v.
County of Lake, 900 F.3d 335, 350-53 (7th Cir. 2018).
This means that the official acted (1) purposefully,
knowingly or recklessly when considering the consequences of
his or her actions on plaintiff; and (2) the actions were
unreasonable in light of the totality of the circumstances.
Miranda, 900 F.3d at 352-53. A showing of negligence or even
gross negligence is not sufficient under either the Eighth or
Fourteenth Amendment. Id.
allegations that medical and security staff failed to take
reasonable measures to insure that medications were delivered
to the right inmates suggest that defendants Oates and David
P. disregarded the risk that plaintiff and other inmates
could suffer serious consequences from taking another
inmate's medication. This is particularly true with
respect to plaintiff, who has a severe antibiotic allergy
that was documented in his medical file. Plaintiff's
allegations also suggest that defendant Kearns disregarded
plaintiff's need for medical attention by failing to
check with medical staff about whether plaintiff should go to
the hospital or receive other treatment for his severe
allergic reaction. Therefore, plaintiff may proceed with
constitutional claims against David P., Oates and Kearns.
Plaintiff will have to conduct discovery to learn the full
name of David P. Early in this lawsuit, Magistrate Judge
Stephen Crocker will hold a preliminary pretrial conference
at which he will discuss with the parties the most efficient
way to identify David P. and will set a deadline within which
plaintiff is to amend his complaint to include the identify
of the unnamed defendant.
may also proceed against Correct Care Solutions, which was
responsible for managing health care at the jail. An entity
such as a county or a company acting under color of law may
be held liable for a constitutional violation under §
1983 if it maintains a policy or custom that is “the
direct cause or moving force behind the constitutional
violation.” Woodward v. Correctional Medical
Services of Illinois, Inc., 368 F.3d 917, 926-27 (7th
Cir. 2004). See also Glisson v. Indiana Dep't of
Corrections, 849 F.3d 372, 378-79 (7th Cir. 2017)
(“[A] private corporation that has contracted to
provide essential government services is subject to at least
the same rules that apply to public entities.”).
Plaintiff's allegations suggest that Correct Care
Solutions may have been responsible for a training policy or
custom that caused medical staff to deliver incorrect
medications to inmates.
plaintiff's allegations do not state a claim against the
State of Wisconsin or Eau Claire County jail. The State of
Wisconsin is not implicated by plaintiff's allegations
because Eau Claire County, not the state, administers the
jail, and plaintiff does not include any allegations
suggesting that any state employee was involved in violating
his constitutional rights. Additionally, the State of
Wisconsin is not a proper defendant for a § 1983 action.
Smith v. Gomez, 550 F.3d 613, 618 (7th Cir. 2008).
The “Eau Claire County jail” is also not a suable
entity for purposes of § 1983, because the jail is just
a building and not a legal entity. Smith v. Knox County
Jail, 666 F.3d 1037, 1040 (7th Cir. 2012).
Plaintiff LeAnder J. Gregg's motion for reconsideration,
dkt. #13, is GRANTED, and the judgment is VACATED. The clerk
of court is directed to REOPEN this case.
Plaintiff is GRANTED leave to proceed on his claims that
defendants Officer Kerns, Officer Oates, Nurse David P. and
Correct Care Solutions violated his rights under the Eighth
or Fourteenth Amendments by giving him the wrong medication
and failing to provide him appropriate medical treatment
Plaintiff is DENIED leave to proceed on any other claim. The
State of Wisconsin and Eau Claire County jail are dismissed
from this case.
clerk of court is directed to forward copies of
plaintiff's complaint, motion for reconsideration,
completed summons forms and this order to the United States
Marshal for service on defendants.
the time being, plaintiff must send the defendants a copy of
every paper or document he files with the court. Once
plaintiff has learned what lawyer will be representing the
defendants, he should serve the lawyer directly rather than
the defendants. The court will disregard any documents
submitted by plaintiff unless plaintiff shows on the
court's copy that he has sent a copy to the defendants or
to defendants' attorney.
Plaintiff should keep a copy of all documents for his own
files. If plaintiff does not have access to a photocopy
machine, he may send out ...