United States District Court, N.D. Indiana, South Bend Division
STEPHEN M. DEANE, Plaintiff,
RON NEAL, et al., Defendants.
OPINION AND ORDER
P. SIMON, JUDGE
M. Deane, a prisoner without a lawyer, filed a motion for a
preliminary injunction. He seeks to be sent to an outside
consultation in relation to the medical treatment for a
recurring wound on his left foot. “The purpose of
preliminary injunctive relief is to minimize the hardship to
the parties pending the ultimate resolution of the
lawsuit.” Platinum Home Mortg. Corp. v. Platinum
Fin. Group, Inc., 149 F.3d 722, 726 (7th Cir. 1998).
“In order to obtain a preliminary injunction, the
moving party must show that: (1) they are reasonably likely
to succeed on the merits; (2) no adequate remedy at law
exists; (3) they will suffer irreparable harm which, absent
injunctive relief, outweighs the irreparable harm the
respondent will suffer if the injunction is granted; and (4)
the injunction will not harm the public interest.”
Joelner v. Village of Washington Park, Illinois, 378
F.3d 613, 619 (7th Cir. 2004).
instant motion, Deane alleges that he has suffered a
reoccurring wound on his left foot since May 2015. Since
April 2017, Deane has been under the care of Dr. Nancy
Marthakis at the Indiana State Prison, but she has examined
Deane's foot on only two occasions. In November 2018, Dr.
Marthakis ordered X-rays and diagnosed the injury as a
tailor's bunion but said that “we don't fix
bunions.” On February 25, 2019, Dr. Marthakis told
Deane that his request for an outside consultation was denied
by Wexford Medical Services until other measures were
attempted, including periodic debridement,  continued use of
crutches, and a transfer to a different dorm. When Deane
refused the periodic debridement, Dr. Marthakis forced him to
accept or reject the treatment plan as a whole. When he
refused to accept the entire treatment plan, she confiscated
his crutches, discontinued his enrollment in the chronic care
clinic for wound care, and refused to consider other
diagnoses, such as chronic osteomyelitis.
also maintains that, since his last appointment with Dr.
Marthakis. medical staff is refusing to treat him. He cites a
medical request from April 26, 2019, in which he asks to see
an outside specialist. ECF 28-1 at 4. The nurse responded
that medical staff might be able to send him to one if he
would follow the recommended plan and to inform the medical
unit if was willing to do so. Id.
response, the Warden argues that medical staff has frequently
treated Deane's wound and that his objections to the
recommended course of treatment are based solely on his
subjective belief. The Warden has also attached medical
records, which indicate as follows. On July 13, 2018, at a
chronic care visit with Dr. Marthakis, Deane complained of a
persistent callous near the base of the little toe on his
left foot. ECF 46-1 at 378-80. She recommended gym shoes with
gel insoles, ordered X-rays, and prescribed Tylenol.
Id. On July 19, Dr. Marthakis prescribed
antibiotics, including Rocephin and Bactrim, and arranged for
a wound care nurse to meet with Deane twice per week.
Id. at 383-84.
October 25, 2018, Diane Thews, a nurse, examined Deane's
left foot, observing a callous with an open wound with
redness, light yellow drainage, and red streaks on the foot.
Id. at 395-97. Deane reported that he had once had
osteomyelitis on his left foot. Id. Nurse Thews
continued Deane on antibiotic and with wound care and ordered
another X-ray. Id. On October 26, X-rays revealed
that the wound resulted from a tailor's
bunion. Id. at 398. On November 2, Dr.
Marthakis placed Deane on non-weight bearing status to
alleviate pressure on the wound. Id. at 403. On
November 5, Deane reported that his shoes continued to rub
and irritate his wound, and Dr. Marthakis ordered crutches.
Id. at 409-10. On November 7, a nurse noted that the
prison did not have a sufficiently wide shoe to accommodate
Deane's wound. Id. at 416-17. Deane reported
that, in 1999, X-rays revealed that he had osteomyelitis.
Id. On November 19, Dr. Marthakis extended her order
for crutches and non-weight bearing status for another two
weeks. Id. at 437. On November 28, Dr. Marthakis
decided to custom order shoes for Deane. Id. at
January 4, 2019, Dr. Marthakis met with Deane for a chronic
care visit and noted that the custom shoes had been ordered
and that he had received daily wound care. Id. at
184-86. She also ordered additional X-rays of the left foot.
Id. On January 9, Deane received the custom shoes.
Id. at 193. On January 14, Dr. Marthakis noted that
X-rays revealed no osteomyelitis in the left
foot. Id. at 209. On January 15, Dr.
Marthakis prescribed Tylenol due to Deane's complaints of
pain. Id. at 215. On January 17, Dr. Marthakis noted
a lack of improvement, prescribed Mobic, and submitted a
request for a referral to a podiatrist. Id. at
223-25. On January 24, medical staff renewed Deane's low
floor pass. Id. at 236. On January 25, medical staff
photographed the wound and sent the images to support the
referral request, and Dr. Marthakis ordered additional
X-rays, which revealed no significant changes. Id.
at 241-46, 253.
February 19, 2019, an alternative treatment plan was proposed
in response to the podiatry referral. Id. at 268-69.
This plan included sharp debridement, non-weight bearing
status, placement in another dormitory, a change in
medication, and no footwear on the left foot. Id. On
February 22, medical staff provided Deane with crutches to
facilitate his non-weight bearing status. Id. at
278-79. On February 25, Deane refused to comply with the
treatment plan. Id. at 282-88. She discontinued
wound care and crutches but invited him to submit a medical
request if he wanted to resume treatment for the wound.
9, 2019, Deane submitted a medical request to complain about
the foot wound. Id. at 291-92. The nurse
observed a dime-sized closed wound with no drainage,
swelling, redness, or any sign of infection. Id. The
nurse applied antibiotics and bandages but refused
Deane's request for his own wound care supplies.
Id. On May 10, Deane submitted another medical
request, and a nurse examined the wound. Id. at
obtain a preliminary injunction, Deane must show that he has
a reasonable likelihood of success on the merits. 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 an
objective and subjective component by showing: (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). Deliberate
indifference means 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 a serious medical need, 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). A mere
disagreement with medical professionals about the appropriate
course of treatment does not establish deliberate
indifference, nor does negligence or even medical
malpractice. Arnett v. Webster, 658 F.3d 742, 751
(7th Cir. 2011).
record indicates that Dr. Marthakis and Deane discussed the
left foot wound for the first time in July 2018. At that
time, she ordered X-rays, prescribed antibiotics and pain
medication, recommended gym shoes and insoles, and arranged
regular wound care for plaintiff. On October 25, X-rays
revealed that that wound resulted from a bunion. X-rays also
confirmed the absence of osteomyelitis. To alleviate pressure
on the wound, Dr. Marthakis responded by placing him on
non-weight bearing status and ordering him to use crutches
for about a month. When informed that the prison did not have
medically appropriate shoes for Deane, she custom ordered
shoes for him. When Dr. Marthakis noticed a lack of
improvement after Deane received the new shoes, she submitted
a referral request for a podiatry referral. To this point,
the record contains no indication of deliberate indifference
but indicates Dr. Marthakis responded reasonably by finding
that a tailor's bunion caused the wound and by pursuing
new treatment options once other options proved ineffective.
response to the referral request, Dr. Marthakis was advised
to proceed with a more conservative treatment plan. On
February 25, 2019, she presented this plan to Deane, and he
refused to undergo the debridement procedure. She responded
by removing him from wound care and taking his crutches.
While it is possible that she made these decisions out of
spite as Deane alleges, it seems unlikely because she also
invited him to submit a medical request if he wanted to
resume treatment. Instead, it appears that Dr. Marthakis
simply considered the wound care, crutches, the new dorm
assignment, non-weight bearing status, and debridement as
parts of a single inseverable treatment plan, which Deane had
the record contains three medical requests since that time,
which indicate that medical staff are willing to treat Deane
and that he has suffered no harm as a result of Dr.
Marthakis' decisions. On April 19, 2019, he submitted a
request asking for an outside consultation. The nurse
responded that he may be able to see an outside specialist if
he complied with the treatment plan and to let medical staff
know if he was willing to do so. On May 9, he submitted a
request to complain about his wound, and a nurse responded by
applying antibiotics and bandages to his wound. The nurse
also observed that the wound was closed with no signs of
infection. On May 10, he submitted another request, and
another nurse examined his wound. Therefore, the ...