United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON JUDGE
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.
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
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.
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.)
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.)
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
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.)
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.)
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)
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.
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. He also seeks compensatory
and punitive damages.
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).
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 ...