Shane Robbins v. William Pollard ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 15, 2018 ∗
Decided August 16, 2018
Before
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 17-3612
SHANE T. ROBBINS, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 16-C-1128
WILLIAM POLLARD, et al., Lynn Adelman,
Defendants-Appellees. Judge.
ORDER
William Robbins, a Wisconsin inmate, appeals the entry of summary judgment
against him on two claims arising out of the mistaken delivery of medicine to him.
The first claim asserts that the prison’s policy of allowing correctional officers to deliver
medicine to inmates violates the Eighth Amendment. The second claim contends that
the correctional officer who gave him the wrong medication acted negligently.
∗We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 17-3612 Page 2
The district court reasoned that no evidence suggested that the prison’s policymakers
knew or ignored that the policy posed a substantial risk of harm to inmates, and the
negligence claim failed as a matter of state law. We agree and affirm the judgment.
The Wisconsin Department of Corrections allows correctional officers to deliver
medicine to inmates at Waupun Correctional Institution. Waupun’s policy requires
officers to receive repeated training on how to deliver medicine safely. To ensure that
inmates receive the correct dosage at the right time, officers must compare the label on
the medication package to the inmate’s treatment record. Prison procedure also dictates
that when an officer shows an inmate his medication, the officer must ask the inmate to
concur that he is receiving the correct medicine, at the right time, and in the right dose.
Trevor Standish, a correctional officer, gave Robbins a 10-milligram dose of
Doxepin in September 2015. This drug treats anxiety, depression, and insomnia.
Robbins was not prescribed the drug, and Standish should not have given it to him.
Standish also neglected to ask Robbins to verify that he was prescribed this drug. About
half an hour after taking it, Robbins says, he experienced a painful headache that lasted
several hours. The next morning his hands had become red and veiny, and later turned
dark purple; he also began experiencing ringing in his ears that continues to this day.
Shortly after Standish gave the Doxepin to Robbins, Standish double-checked the
records and realized his mistake. He swiftly reported the incident to a nurse who,
within a couple of hours of the drug’s delivery to Robbins, checked his vitals. Robbins
told the nurse about his headache, and she told him to drink water to flush the drug out
of his system. After her medical assessment of Robbins, the nurse determined that
“there should be no issues.” Another nurse followed up with Robbins two days later.
Robbins told the nurse about the discoloration in his hands and feet. She told him that
his handcuffs, not the medication, caused that color change.
Robbins sued over this error, but lost in the district court. He accused William
Pollard, the warden of Waupun at the time, and Ann Scarpita, a health-services
manager, of violating the Eighth Amendment by allowing officers to deliver medicine
to inmates. Robbins also brought a state-law negligence claim against Standish for
giving him the wrong medicine. Robbins told the district judge that he had received
incorrect drugs from officers before, though he does not say when, how often, or if any
harm resulted. He also cited an interrogatory response stating that 15 inmate
grievances, filed between 2014 and 2016, mentioned a “medication error” but gave no
further details. The district judge granted summary judgment on the federal claim.
He observed that Robbins did not state the frequency or harm of any drugs
No. 17-3612 Page 3
misdelivered to him, and the other inmates’ grievances about medication errors did not
state whether the “error” was misdelivery. Therefore, a factfinder could not infer that
the prison’s policy created a substantial risk of serious harm, let alone one that the
defendants knew about. Finally, Robbins’s negligence claim against Standish failed. His
pre-filing notices of claim mailed to the state’s Attorney General did not identify
Standish by name, so it did not meet the state-law requirement that the notice include
“the name of the state officer, employee or agent involved.” WIS. STAT. § 893.82(3).
Robbins’s opening brief on appeal is sparse. But we have reviewed the record
de novo to assure ourselves that the district court’s decision is sound. See Estate of
Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017). We begin with Robbins’s Eighth
Amendment claim. He argues that correctional officers do not always follow Waupun’s
policy requiring that they match the delivered drugs to the recipient’s medical record.
But to get past summary judgment on his claim against the warden and health-services
manager, Robbins had to supply evidence suggesting that they knew or recklessly
ignored that officers often violated this policy to the detriment of prisoners. For only
then would these two defendants have been deliberately indifferent to a substantial risk
of harm to Robbins’s health, in violation of the Eighth Amendment. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994); Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012).
Nothing in the record suggests that the warden and manager knew about or
ignored signs that correctional officers regularly disregard drug-delivery procedures
and harm prisoners. To the contrary, the single incident detailed in the record reflects
that, although Standish made one error, he acted appropriately afterward. As soon as
Standish realized that he had given Robbins the wrong medicine, he notified a nurse,
who promptly attended to Robbins, and another nurse followed up later. Both nurses
determined Robbins had no long-term adverse reactions to the drug, and no medical
opinion contradicts this. Thus, no reasonable jury could conclude that, by allowing
officers to deliver medicine to inmates, the warden and manager were deliberately
indifferent to a substantial risk of harm to inmates like Robbins.
Citing Flynn v. Doyle, 630 F. Supp. 2d 987 (E.D. Wis. 2009), Robbins replies that he
supplied evidence permitting an inference that the warden and manger ignored a
substantial risk of harm. But the plaintiffs in Flynn presented evidence that correctional
officers at that prison “routinely” administered “wrong doses to the wrong prisoner at
the wrong times.” Id. at 990. The 15 grievances that Robbins relies on, from inmates
citing “medication error,” are not comparable evidence, for three reasons. First, the
interrogatory response does not describe the errors, so we do not know if, like in Flynn,
No. 17-3612 Page 4
the errors were the misdelivery of medicine. Second, these grievances are just
allegations, not findings, of error. Third the misdeliveries in Flynn occurred in a prison
where officers did not receive training in proper medication delivery; Waupun officers,
by contrast, do receive repeated training. See id. at 991. Robbins also says that he has
more than once received the wrong drugs, but this assertion does not help his case
resemble Flynn either. Robbins does not state how often this happened, whether any
injury resulted, or who, if anyone, he told. So a trier of fact could not, as in Flynn, find
that harmful mistakes are “routine” and that prison administrators are liable for them.
Robbins’s Eighth Amendment claim fails for another reason, too. The claim
requires that he show that he experienced serious adverse effects because he took
Doxepin. See Berman v. Young, 291 F.3d 976, 982 (7th Cir. 2002) (stating that plaintiff
must produce evidence that injury had “causal connection” with alleged constitutional
violation). He points to the painful headaches, skin discoloration, and ringing in his ears
that occurred after he took the drug. But he has not supplied medical evidence that the
one mistaken dose of Doxepin caused these effects. He submitted printouts from
medical websites that list Doxepin’s side effects, but the list does not include the effects
that he experienced. And a Waupun physician stated that the small dose of Doxepin
that Robbins received might have caused temporary drowsiness, dry mouth, blurred
vision, or urinary retention, but not the side effects that Robbins asserts.
Robbins’s final argument is about his negligence claim. He says that his notices
of claim did not contain Trevor Standish’s name because the prison would not give it to
him. And, he continues, when he finally did discover Standish’s name, he amended his
federal complaint to include it. From this, Robbins contends that Standish received
actual notice of his claim and therefore suffered no prejudice. But amending his federal
claim only satisfied the federal procedural requirement; it did not satisfy the separate
state-law requirement that Robbins amend his notice of claim with Standish’s name.
Failure to satisfy this requirement defeats the negligence claim. See WIS. STAT.
§ 893.82(5); Kellner v. Christian, 525 N.W.2d 286, 290 (Wis. Ct. App. 1994) (holding that
the requirements of § 893.82(5) must be strictly complied with even when it produces
“harsh consequences”); see also Carlson v. Pepin County, 481 N.W.2d 498, 503 (Wis. Ct.
App. 1992). Moreover, even if we overlooked this defect, Robbins would lose on the
merits. As with his Eighth Amendment claim, Robbins must show causation—that the
medication Standish gave him caused the physical harms he experienced. See Coffey v.
City of Milwaukee, 74 Wis. 2d 526, 531 (1976). And as we have explained, he has offered
no such evidence.
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Accordingly, the judgment is AFFIRMED.