Brown v. Millar

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DANA BROWN, B-45793, )

)

Plaintiff, )

)

vs. ) Case No. 3:24-cv-000304-GCS

)

SALLY MILLAR and )

WEXFORD HEALTH SOURCES, INC., )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Plaintiff Dana Brown, an inmate of the Illinois Department of Corrections

(“IDOC”), brings this civil rights action pursuant to 42 U.S.C. § 1983 for alleged

deprivations of his constitutional rights at Centralia Correctional Center (“Centralia”).

(Doc. 1). Specifically, Plaintiff alleges that Defendant Sally Millar administered an insulin

dose that was too high, and Wexford’s failure to adequately staff the prison caused or

worsened the harm he suffered. The Complaint is now before the Court for preliminary

review under 28 U.S.C. § 1915A.1 Under Section 1915A, the Court is required to screen

prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a)-(b).

Any portion of a complaint that is legally frivolous, malicious, fails to state a claim upon

which relief may be granted, or asks for money damages from a defendant who by law

1 The Court has jurisdiction to resolve Plaintiff’s motions and to screen his Complaint due

to his consent to the full jurisdiction of a magistrate judge (Doc. 5) and the limited consent to the

exercise of magistrate judge jurisdiction as set forth in the Memorandums of Understanding

between the IDOC, Wexford, and this Court.

is immune from such relief must be dismissed. See 28 U.S.C. § 1915A(b). At this juncture,

the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez

v. Plymouth Ambulance Service, 577 F.3d 816, 821 (7th Cir. 2009).

THE COMPLAINT

Plaintiff is dependent on insulin, which he receives by injection three times a day.

(Doc. 1, p. 7). His doses are administered via a “KwikPen,” an insulin dispenser that

allows dosages to be adjusted up or down by the twist of a knob. The dosage selected is

displayed in a window. Plaintiff alleges that the KwikPen has a bright yellow warning

label that indicates the contents cannot be transferred to a different syringe or a severe

overdose may occur. An overdose can cause very low blood sugar and can jeopardize a

patient’s life. Plaintiff alleges that Eli Lilly makes a specific needle to be used with the

Kwik Pen because the use of a generic syringe can result in an overdose of up to five

times.

Plaintiff alleges that on November 16, 2021, at 3:45 am, Defendant Sally Millar was

the nurse assigned to distribute medications in his living area. (Doc. 1, p. 8). Millar told

Plaintiff that she had forgotten the needle for his quick pen. Plaintiff said that he would

wait for Millar to get the correct needle from the healthcare unit, but Millar informed him

that she had already used another syringe to draw his dose. At this time, Plaintiff did not

know that the KwikPen had a sticker that warned against using an alternative syringe.

Millar assured Plaintiff that the dose was the same as his normal dose and that he would

be fine, but she also told him not to tell anyone about the incident so that she would not

get in trouble.

Within an hour of receiving the insulin, Plaintiff’s condition quickly deteriorated,

and he could tell his sugar level was low. He ate a whole box of cakes and four packets

of ramen noodles that he had in his cell to no avail. He then fell asleep for the next ten

hours. When he awoke, his entire body and his bedding were drenched in sweat. He was

upset and distraught, as he realized he may have been given an overdose of insulin.

Around 4:00 pm a non-party nurse came to Plaintiff’s cell. The nurse asked

Plaintiff what was wrong with his KwikPen, and he told her what happened with Millar.

The nurse asked if Plaintiff was okay and told him he was lucky to be alive because the

insulin he receives is highly concentrated, and he was administered five times the dose

he should have received. (Doc. 1, p. 9).

Plaintiff states that he is suing Millar in her individual capacity for acting with

deliberate indifference when she knowingly ignored the warnings on his KwikPen and

administered a dose that was five times higher than what was appropriate. He sues

Wexford for “developing policies, procedures and practices of not providing adequate

medical treatment, by not ensuring that a regularly assigned doctor is employed at

Centralia.” He further alleges that Wexford is at fault because there was no doctor on site

to direct a response to his overdose, and he was not examined after the overdose. He also

alleges Wexford has not ensured that the medical unit staff is properly trained.

Based on the allegations in the Complaint, the Court designates the following

claims:

Claim 1: Eighth Amendment deliberate indifference claim against

Defendant Millar for administering an unsafe dose of Plaintiff’s

KwikPen insulin;

Claim 2: Monell claim against Wexford for failing to adequately staff

Centralia and/or for failing to adequately train staff.

The parties and the Court will use these designations in all future pleadings and orders

unless otherwise directed by a judicial officer of this Court. Any claim that is mentioned

in the Complaint but not addressed in this Order is considered dismissed without

prejudice as inadequately pled under Twombly. See, e.g., Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007) (noting that an action fails to state a claim upon which relief can be

granted if it does not plead “enough facts to state a claim that is plausible on its face”).

DISCUSSION

To state a claim for deliberate indifference to a serious medical need, an inmate

must show that (1) he suffered from an objectively serious medical condition; and (2) the

defendant was deliberately indifferent to a risk of serious harm from that condition. See

Rasho v. Elyea, 856 F.3d 469, 475-476 (7th Cir. 2017). “Every claim by a prisoner that he has

not received adequate medical treatment is not a violation of the Eighth Amendment.”

Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016). To determine if a medical professional

acted with deliberate indifference, courts look to the provider’s subjective state of mind.

Id. at 728. An inmate need not show that a doctor explicitly intended harm or believed it

would occur, but he must show more than negligence, medical malpractice, or even

objective recklessness. Id. Deliberate indifference is a culpability standard akin to criminal

recklessness. See Thomas v. Blackard, 2 F.4th 716, 722 (7th Cir. 2021).

Generally, caselaw does not support a finding that a single dose of an incorrect

medication is sufficient to state a claim for deliberate indifference. See, e.g., Merriweather

v. Ashley, Cause No. 3:22-CV-727-DRL-MGG, 2023 WL 1100433, at *2 (N.D. Ind. Jan. 30,

2023) (collecting cases for the proposition that a one-time misadministration of

medication does not support a finding of deliberate indifference); Ehrenberg v. Wisconsin

Dept. of Corrections, No. 10-C-1022, 2010 WL 5089484, at *2 (E.D. Wisc. Dec. 7, 2010)

(finding that an inmate did not state a sufficient claim where Plaintiff alleged he was

given the wrong dose of medication on a single occasion). However, there are cases where

inmates have been allowed to proceed on the theory that he received an overdose and

suffered ill-effects. See, e.g., Mitchell v. Williams, Case No. 19-cv-01236-JPG, 2022 WL

594877, at *4-5 (S.D. Ill. Feb. 28, 2022) (analyzing an inmate’s claim against a prison nurse

for giving him an overdose of antibiotics that caused physical ill-effects and finding at

summary judgment that the inmate failed to establish the requisite level of deliberate

indifference); West v. Fuchs, No. 01-2862, 38 Fed. Appx. 323, 326 (7th Cir. April 18, 2002)

(analyzing an inmate’s deliberate indifference claim that staff were deliberately

indifferent for giving him an overdose of a seizure medication that caused ill-effects and

concluding the court was correct to determine there was no deliberate indifference by the

staff so the claim could not survive summary judgment). Here, Plaintiff alleges that

Defendant Millar acted contrary to the medication directions boldly displayed on his

KwikPen when she administered his dose the morning of November 16, 2021. She also

asked him not to tell anyone about her actions so that she would not get in trouble, which

suggests that she knew her actions were incorrect or risky. Plaintiff suffered immediate

effects. At initial review, these allegations are sufficient to proceed against Defendant

Millar.

Plaintiff also faults Defendant Wexford Health Sources, the prison’s medical

contractor, for understaffing and inadequate training of staff. However, Plaintiff does not

explain how either of these alleged issues caused the harm that he suffered, i.e., the

overdose. Most importantly, he does not allege that Wexford knew about the situation

that he faced, or that understaffing slowed down any potential response. In fact, Plaintiff

does not allege that when he first noticed symptoms, he even tried to alert anyone or to

ask for medical assistance. Instead, he laid down and went to sleep without alerting

personnel. Eventually, Plaintiff saw another nurse about twelve hours after the overdose.

He does not allege that he asked her for any specific sort of help or follow-up care and

was denied. Instead, Plaintiff simply says that she asked if he was okay and does not

suggest he told her otherwise. Thus, on the facts presented it is not apparent that

Wexford’s alleged understaffing caused him any harm.

Instead, it appears that the incident he suffered was the misdeed of a single

employee, which is not sufficient to sustain a claim against Wexford. See, e.g., Monell v.

Department of Social Services of City of New York, 436 U.S. 658, 690 (1978) (noting that

wrongful act of a single employee is not enough to impose § 1983 liability on a

municipality). Plaintiff’s failure to train allegations are too generic. He does not allege

what sort of training was needed, who needed to be trained, or how the lack of training

might have caused Millar’s actions and led to his harm. See, e.g., Chatman v. Davis, 839

F.3d 679, 686 (7th Cir. 2016) (finding that an inmate’s failure to train claim about a nurse’s

failure to use the proper asthma attack protocol was insufficient because she did not show

the lack of training posed a risk of substantial harm, Wexford knew about this risk, or the

nurse’s lack of training caused his specific harm). Plaintiff also does not allege that the

policy or practice extended beyond his own one-time experience, and generally single

incidents are insufficient to support claims of this nature. Id. at 685. Thus, Claim 2 against

Wexford is dismissed without prejudice for failure to state a claim.

DISPOSITION

IT IS HEREBY ORDERED THAT Claim 1 of the Complaint (Doc. 1) survives

initial screening as described above against Sally Millar. By contrast, Claim 2 against

Wexford Health Sources, Inc., is insufficient to state a claim, and the Clerk of Court is

DIRECTED to TERMINATE Wexford.

The Clerk of Court is DIRECTED to prepare for Defendant Sally Millar: (1) Form

5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6

(Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of

the Complaint (Doc. 1), and this Memorandum and Order to Defendants’ place of

employment as identified by Plaintiff. If Defendant fails to sign and return the Waiver of

Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were

sent, the Clerk shall take appropriate steps to effect formal service on Defendant, and the

Court will require Defendant to pay the full costs of formal service, to the extent

authorized by the Federal Rules of Civil Procedure.

If a Defendant cannot be found at the work address provided by Plaintiff, the

employer shall furnish the Clerk with the Defendant’s current work address, or, if not

known, the Defendant’s last-known address. This information shall be used only for

sending the forms as directed above or for formally effecting service. Any documentation

of the address shall be retained only by the Clerk. Address information shall not be

maintained in the court file or disclosed by the Clerk.

Defendants are ORDERED to timely file an appropriate responsive pleading to

the Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).

Pursuant to Administrative Order No. 244, Defendants need only respond to the issues

stated in this Merits Review Order.

If judgment is rendered against Plaintiff, and the judgment includes the payment

of costs under Section 1915, Plaintiff will be required to pay the full amount of the costs,

regardless of whether his application to proceed in forma pauperis was granted. See 28

U.S.C. § 1915(f)(2)(A).

Plaintiff is ADVISED that he is under a continuing obligation to inform the Clerk

of Court and each opposing party of any address changes; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later

than 14 days after a transfer or other change of address occurs. Failure to comply with

this order will cause a delay in the transmission of court documents and may result in

dismissal of this action for failure to prosecute. See FED. R. CIV. PROC. 41(b).

Based on the allegations in the Complaint, the Clerk of Court is DIRECTED to

enter the standard qualified protective order pursuant to the Health Insurance Portability

and Accountability Act.

IT IS SO ORDERED.

DATED: November 18, 2024. Digitally signed by

. Judge Sison

Glet Desne ate: 2024.11.18

13:02:08 -06'00"

GILBERT C. SISON

United States Magistrate Judge

NOTICE TO PLAINTIFF

The Court will take the necessary steps to notify the appropriate defendants of your

lawsuit and serve them with a copy of your complaint. After service has been achieved,

the defendants will enter their appearance and file an Answer to the complaint. It will

likely take at least 60 days from the date of this Order to receive the defendants’ Answers,

but it is entirely possible that it will take 90 days or more. When all of the defendants

have filed Answers, the Court will enter a Scheduling Order containing important

information on deadlines, discovery, and procedures. Plaintiff is advised to wait until

counsel has appeared for the defendants before filing any motions, to give the defendants

notice and an opportunity to respond to those motions. Motions filed before defendants’

counsel has filed an appearance will generally be denied as premature. Plaintiff need not

submit any evidence to the Court at his time, unless otherwise directed by the Court.

The Court wishes to remind the Plaintiff that litigation is often viewed as a series of

hurdles that the Plaintiff must clear to get to another hurdle. Initial screening is such a

hurdle, but it is a very low one for the Plaintiff to clear. As noted above, surviving initial

screening only requires the bare statement of a claim that, if proven, could entitle Plaintiff

to some relief. At trial, he will need to prove by a preponderance of evidence that the facts

alleged actually occurred and that those facts satisfy the legal requirements for recovery.

Trial is the highest and most difficult of hurdles for any Plaintiff to clear.

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