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Kimbrough v. Thompson

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

June 18, 2019

JOSEPH THOMPSON, et al., Defendants.



         John Wesley Kimbrough, III, a prisoner housed at the Indiana State Prison, has suffered from rectal bleeding since 2015. Kimbrough initially filed a complaint and motion for preliminary injunction without the benefit of counsel. (ECF 2; ECF 5.) Counsel was appointed to represent him, and the motion for a preliminary injunction was denied with leave to refile. (ECF 17; ECF 19.) Kimbrough's appointed counsel then filed a renewed motion for preliminary injunction. (ECF 28.) In it, Kimbrough sought an order directing that he be evaluated by and, if medically necessary, treated by a gastroenterologist. In response, Warden Neal indicated that Kimbrough had been scheduled for a colonoscopy. (ECF 33.) Warden Neal further asserted that the motion for a preliminary injunction was therefore moot - an assertion that Kimbrough disagrees with. (ECF 33; ECF 34.) The motion was taken under advisement and Warden Neal was directed to promptly notify the court of the availability of the report following the colonoscopy and Kimbrough's treatment plan going forward. (ECF 37.)

         The colonoscopy was performed on March 28, 2019, and the report shows that Kimbrough suffers from “mild colitis with occasional cryptitis and slight architectural distortion of crypts” - changes seen in early inflammatory bowel disease. (ECF 52-1 at 1.) Warden Neal, through counsel, initially represented that “[n]o further treatment was recommended.” (ECF 52.) Warden Neal further represented that “medical staff at Indiana State Prison indicated Kimbrough continues to receive medication for G.I. complaints” and “[t]he intention is to continue treating Kimbrough on site as symptoms present.” (Id.). In response, Kimbrough asserted that, although a colonoscopy was performed, Warden Neal did not agree to allow Kimbrough to receive a full evaluation from a gastroenterologist. Thus, no further treatment was recommended because the physician that performed the test was not asked to provide treatment recommendations - not because it is not needed. (ECF 53.) Additionally, while Warden Neal indicated that Kimbrough was receiving medication, the record did not disclose what medication he was receiving for his condition. (ECF 52; ECF 54.)

         Because Warden Neal's filings left key questions unanswered, he was asked to provide additional information. (ECF 61.) Warden Neal then indicated that, when the colonoscopy was scheduled, Dr. Mark Nelson was not given any instructions other than to perform a colonoscopy due to a prior complaint of rectal bleeding and potential hemorrhoids. The report provided following the colonoscopy did not contain treatment recommendations. A few days after the colonoscopy was performed, Kimbrough saw Dr. Marthakis and was provided with his colonoscopy results. Dr. Marthakis assessed Kimbrough as having diverticulosis. Kimbrough was told that he could continue using Pepcid or Zantac, and he was provided with information about managing the symptoms of diverticulosis, including eating a diet high in fiber. Dr. Marthakis saw Kimbrough again on May 20, 2019. When she asked if he was purchasing high fiber items for his diverticulosis, Kimbrough responded by indicating that there was no evidence that it would help his condition, and that he has an expert that indicated it would not be helpful.

         On May 24, 2019, counsel for Dr. Marthakis provided her with an additional 1-page progress note from Dr. Nelson.[1] The progress note is dated April 2, 2019, and it indicates that the colonoscopy yielded “mild findings of inflammatory bowel disease” and recommended consideration for treatment with mesalamine or sulfasalazine. (ECF 64-2 at 12.) Following receipt of this additional information, counsel for Kimbrough contacted counsel for the defendants. Counsel for the medical defendants indicated that:

[B]ased on the records contained in the email, staff has looked into this issue, and it appears an order was entered for additional labs and medication. As you correctly note, the finding was “very mild” IBS. However, Mr. Kimbrough has been enrolled in chronic clinic, to ensure consistent labs and monitoring, given the diagnosis of the mild IBS.[2]

(ECF 65-3 at 2.)

         Dr. Marthakis saw Kimbrough on May 30, 2019, to discuss his condition and determine what treatment was appropriate. She asked Kimbrough to submit to a digital rectal exam to determine the presence of rectal bleeding and determine if new medication was necessary. He refused to submit to the exam. He did submit to a blood draw and all results were normal. The Zantac was discontinued because Kimbrough reported that he had stopped taking it. Neither mesalamine nor sulfasalazine were prescribed for Kimbrough. There are no records before the court that demonstrate that Kimbrough was enrolled in a chronic clinic for this condition.

         “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). To obtain a preliminary injunction, the moving party must show (1) he will suffer irreparable harm before the final resolution of his claims; (2) available remedies at law are inadequate; and (3) he has a likelihood of success on the merits. See BBL, Inc. v. City of Angola, 809 F.3d 317, 323-24 (7th Cir. 2015). The court then “weighs the competing harms to the parties if an injunction is granted or denied and also considers the public interest.” Korte v. Sebelius, 735 F.3d 654, 665 (7thCir. 2013).

         Because Kimbrough is a prisoner, the scope of the court's authority is further limited by the Prisoner Litigation Reform Act (“PLRA”).

The PLRA circumscribes the scope of the court's authority to enter an injunction in the corrections context. Where prison conditions are found to violate federal rights, remedial injunctive relief must be narrowly drawn, extend no further than necessary to correct the violation of the Federal right, and use the least intrusive means necessary to correct the violation of the Federal right. This section of the PLRA enforces a point repeatedly made by the Supreme Court in cases challenging prison conditions: Prison officials have broad administrative and discretionary authority over the institutions they manage.

Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012) (quotation marks, brackets, and citations omitted).

         The first question the court must address is whether the motion for preliminary injunction is moot because Kimbrough has now had a colonoscopy performed. It is not. Kimbrough continues to suffer from rectal bleeding. A board-certified gastroenterologist has now found that he suffers from mild inflammatory bowel disease and has recommended that the physicians responsible for Kimbrough's care consider prescribing either mesalamine or sulfasalazine. Yet, neither have been prescribed. Thus, the fact that a colonoscopy was performed does not demonstrate that Kimbrough is now receiving constitutionally adequate care for his condition.

         Next, the court must consider whether Kimbrough will suffer irreparable harm if injunctive relief is not granted. The medical evidence before this court establishes that Kimbrough has suffered from long-standing rectal bleeding and that, prior to counsel filing a motion for preliminary injunction on Kimbrough's behalf, very little was done to arrive at an appropriate diagnosis of Kimbrough's condition. Instead, he was repeatedly provided with treatment for hemorrhoids despite the absence of any evidence that he suffered from hemorrhoids and despite his reports that the medications provided were not helping his condition. The medical records establish that, although Kimbrough was not diagnosed as anemic, his hemoglobin was, at one point, down to 14.5, a note indicates “he has low iron” levels, and he was prescribed iron for a time. (ECF 13-2 at 11-12, 17, 20.) When a colonoscopy was finally performed, it yielded treatment recommendations that, to date, have not been followed. The evidence further establishes that Kimbrough's condition causes him pain and discomfort.[3]According ...

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