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Kimbrough v. Thompson

United States District Court, N.D. Indiana, South Bend Division

December 18, 2018

JOHN WESLEY KIMBROUGH, III, Plaintiff,
v.
JOSEPH THOMPSON, et al., Defendants.

          OPINION AND ORDER

          PHILIP P. SIMON JUDGE

         John Wesley Kimbrough, III, a prisoner without a lawyer, filed a motion to amend his complaint. I will permit the amendment, although a motion was not necessary because, pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), Kimbrough may amend his complaint once as a matter of course.

         Kimbrough's amended complaint names numerous individuals as defendants, all relating to the medical care received while incarcerated at the Indiana State Prison. Pursuant to 28 U.S.C. § 1915A, I must review the complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A. Courts apply the same standard under Section 1915A as when deciding a motion under Federal Rule of Civil Procedure 12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). In deciding whether the complaint states a claim, I must bear in mind that “[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         Here, Kimbrough's amended complaint exceeds 200 pages. In a nutshell, his amended complaint alleges that he began noticing blood in his stool in August of 2015, that he has received inadequate medical care for his condition, and that each of the defendants named in this complaint played a role in him receiving inadequate care.

         Kimbrough told a member of the medical staff about his rectal bleeding during a visit on March 6, 2017. (ECF 16-1 at 7.) Stool samples were analyzed and blood was drawn. (Id. at 7-8.) On an unknown date, Kimbrough saw Dr. Thompson and he confirmed that occult blood was found in the stool samples. (Id. at 8.) Several months went by, and on September 27, 2017, Kimbrough saw Dr. Thompson again. (Id.) Dr. Thompson performed a rectal exam and identified blood, but he did not feel any lumps or nodules. (Id. at 9.) Dr. Thompson requested a colonoscopy for Kimbrough. (Id.) More blood work was done in October. (Id.) In November, Kimbrough learned that the Regional Medical Director had denied Dr. Thompson's request for a colonoscopy. (Id.) Instead, the Regional Medical Director, Dr. Carl Kuenzli, instructed that Kimbrough should be given anti-hemorrhoid suppositories and monitored. (Id.) More blood work was done and more stool samples were collected. (Id. at 10.)

         In February of 2018, Kimbrough saw Dr. Nancy Marthakis for the first time. (Id.) Dr. Marthakis told Kimbrough that his latest stool samples were positive for occult blood. (Id.) She wanted to do a rectal exam, but Kimbrough refused because one had already been performed on September 27, 2017. (Id.) Dr. Marthakis told him that she wanted him to use suppositories and hemorrhoid cream, even though Dr. Thompson found no signs of hemorrhoids. (Id.) Kimbrough expressed concern about taking drugs without a sure diagnosis, and he asked if there was a way to find out for sure what was wrong. (Id.) She said “yeah, a colonoscopy, ” but she would not request one for Kimbrough. (Id.)

         Kimbrough saw Dr. Marthakis again on March 29, 2018. (Id. at 13.) During this visit, Kimbrough tried to ask a question about his lab results, but the doctor interrupted and became confrontational. (Id.) Kimbrough shared that his reading suggested that he had a serious medical emergency, but Dr. Marthakis ignored him and indicated that she wanted to do a rectal exam. (Id. at 13-14.) He reminded her that they talked about this before - he already had a rectal exam and no internal or external hemorrhoids were detected. (Id. at 14.) Dr. Marthakis told Kimbrough that the visit was over because he refused treatment. (Id.) Kimbrough indicated that he was not refusing treatment and that he needed to tell her about his stomach pain, but the doctor reiterated that he refused treatment and the visit was over.[1] (Id.)

         On May 25, 2018, Kimbrough saw Dr. Marthakis and she again wanted to perform a rectal exam. (Id. at 28.) Kimbrough consented to the exam because he did not want her to have a reason to deny him adequate medical care. (Id.) The exam was performed in a violent manner. (Id.) Dr. Marthakis identified blood, but she did not find hemorrhoids. (Id. at 28-29.) Nonetheless, she again wanted to prescribe hemorrhoid cream. (Id.) She again denied Kimbrough's request that she order a colonoscopy. (Id. at 29.)

         On June 7, 2018, Kimbrough was so weak that he was taken to the medical department in a wheelchair. (Id.) He was unable to see Dr. Marthakis because she was in a meeting, but a nurse relayed that Dr. Marthakis said that they were going to schedule him for an outside hospital visit for further testing in a few days. (Id. at 34.) That testing never occurred. (Id.)

         On June 12, 2018, a nurse brought Kimbrough an iron pill. (Id. at 37.) He had never been told that he needed iron or that he was anemic. (Id.) He later learned that the Regional Medical Director (Rebecca Hess) ordered the iron pills. (Id. at 38.) Dr. Marthakis indicated that the iron pills were the only treatment he would be receiving at that time. (Id.) A nurse that was present reviewed Kimbrough's latest labs and told Kimbrough he was anemic. (Id.) Kimbrough was told that normal iron levels are between 60 and 170, and his iron level was 36. (Id.) He was told to take the iron and that they would check his blood in a month to see if his levels had normalized. (Id. at 38-39)

         On June 29, 2018, Kimbrough had an appointment with Dr. Marthakis. (Id. at 45.) Dr. Marthakis told him that she “had a conference call with some people” regarding his health and “she was instructed to only give [Kimbrough] iron pills and more Pepcid.” (Id.) She further indicated that “she was doing everything she could to build a case for [Kimbrough] to go to the outside hospital but ‘they' just want her to monitor [him].” (Id.) Dr. Marthakis asked about the effectiveness of the hemorrhoid cream and suppositories, and Kimbrough told her that they were not effective. (Id.) He also told her that Dr. Thompson had prescribed hemorrhoid suppositories once before and they did not work. (Id.) Dr. Marthakis then said, “I know you're not going to like this but, I want to do another rectal exam to prove to ‘them' that this treatment of hemorrhoid cream and suppositories are not working.” (Id.) He submitted to the exam, and it was again performed in a violent manner. (Id. at 46.) Once again, blood was present. (Id.) When Kimbrough asked if he was scheduled to go to the hospital, Dr. Marthakis said that he was not - “all she can do is try to build a stronger case for ‘them' to approve [him] to go to the hospital.” (Id.) Dr. Marthakis prescribed fiber pills and Zantac. (Id. at 47.) Kimbrough's complaint does not report that he has received any additional medical care between June and the filing of his complaint on October 31, 2018.

         Kimbrough has named fourteen defendants in his complaint: Dr. Joseph Thompson, Corizon, Wexford of Indiana, LLC, Dr. Nancy Marthakis, Susan E. Jones, Sherri Fritter, Rebecca Hess, Nikki Tafoya, William Van Ness, Mark Newkirk, Joshua Wallen, Dr. Carl Kuenzli, Commissioner Robert Carter, and Warden Ron Neal. He seeks injunctive relief in the form of additional medical care and a soy-free diet.[2] He also seeks compensatory and punitive damages.

         Under the Eighth Amendment, inmates are entitled to adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish liability, a prisoner must satisfy both objective and subjective components by showing that: (1) his medical need was objectively serious; and (2) the defendant acted with deliberate indifference to that medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is “serious” if it is one that a physician has diagnosed as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). On the subjective prong, the plaintiff must establish that the defendant “acted in an intentional or criminally reckless manner, i.e., the defendant must have known that the plaintiff was at serious risk of being harmed and decided not to do anything to prevent that harm from occurring even though he could have easily done so.” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005).

         For a medical professional to be held liable for deliberate indifference to an inmate's medical needs, he or she must make a decision that represents “such a substantial departure from accepted professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008). Although the Eighth Amendment does not entitle an inmate to a specific form of treatment, prison medical staff cannot simply continue with a course of treatment that is known to be ineffective. Greeno, 414 F.3d at 654-55. Furthermore, a delay in providing treatment can ...


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