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Bullock v. Hyatte

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

July 8, 2019

BRODERICK V. BULLOCK, SR., Plaintiff,
v.
HYATTE, Defendant.

          OPINION AND ORDER

          JON E. DEGUILIO JUDGE

         Broderick V. Bullock, Sr., a prisoner without a lawyer, is proceeding on a claim for injunctive relief against Warden Hyatte in his official capacity related to injuries he sustained on February 2, 2019, after he was attacked by a fellow inmate at the Miami Correctional Facility. ECF 4. He has filed two motions requesting immediate injunctive relief. ECF 23, 25. The court ordered the defendant, Warden Hyatte, to file a response to the motions, including affidavits and/or medical evidence if necessary, only to the extent Bullock alleges that medication or treatment related to his eye injury is currently being withheld. ECF 26. Warden Hyatte has done so (ECF 34), and Bullock has filed his reply (ECF 37).

         “[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) (emphasis in original). 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 (7th Cir. 2013).

         An injunction ordering the defendant to take an affirmative act rather than merely refrain from specific conduct is “cautiously viewed and sparingly issued.” Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997) (quotation marks and citation omitted). Before Bullock can obtain injunctive relief, he must make a clear showing that the medical care he is receiving violates the Eighth Amendment prohibition on cruel and unusual punishment. See Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012); Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). Bullock, like every inmate, is entitled to receive adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). However, “the Constitution is not a medical code that mandates specific medical treatment.” Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996). Inmates are “not entitled to demand specific care [nor] entitled to the best care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Indeed,

medical professionals are not required to provide proper medical treatment to prisoners, but rather they must provide medical treatment that reflects professional judgment, practice, or standards. There is not one proper way to practice medicine in a prison, but rather a range of acceptable courses based on prevailing standards in the field. A medical professional's treatment decisions will be accorded deference unless no minimally competent professional would have so responded under those circumstances.

Jackson v. Kotter, 541 F.3d 688, 697-98 (7th Cir. 2008) (quotation marks and citations omitted).

         Bullock's main complaint is that he is not receiving adequate care for his right eye injury. It is undisputed that, since the injury occurred on February 2, 2019, Bullock's eye has been examined and treated by multiple medical professionals including an optometrist and an outside ophthalmologist. See ECF 17 at 3-4 (summarizing the medical record). However, Bullock now alleges that prison officials are failing to follow the recommendations of those specialists and are withholding medication in the form of “serum tears” that were prescribed by Dr. Stephen M. Johnson from the Midwest Eye Institute on March 25, 2019. ECF 23 at 1; 25 at 2; see also ECF 22-1. Warden Hyatte, by counsel, has responded as follows, claiming that Bullock's request is moot:

Plaintiff is currently receiving preservative free artificial tears. With regards to Plaintiff's request for serum tears, there is no live controversy remaining. Brown v. Bartholomew Consol. School Corp., 442 F.3d 588, 596 (7th Cir. 2006.); See Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). Wexford of Indiana medical staff have been coordinating with Dr. Stephen Johnson at Midwest Eye Institute and staff at Midwest Cornea Associates and it was noted on May 15, 2019, that while “there isn't an alternative to serum tears[, ] [t]he patient should use preservative free artificial tear[.]” As an alternative to the treatement [sic] demanded by Plaintiff has been provided, the issues raised in his request for preliminary injunction are now moot.

ECF 34 at 4. The court disagrees with both the characterization of the evidence in the record and the conclusion that the request for preliminary injunctive relief is moot.

         Treatment notes from Bullock's March 25th visit to Dr. Johnson indicate the following:

Serum tears will help heal the ocular surface. This may represent a logistical problem. In the meantime preservative free artificial tears is advised. Stem Cell Dysfunction OD. Stem cell transplant is not indicated. Discussed autologous serum eye drops. Factors within the serum can lead to healing of the eye's surface. Central Corneal Opacity OD. The scar does impact vision. However over the next several months it can lessen. At some point spectacle correction may be helpful.

ECF 34-1 at 75 (emphasis added). Dr. Johnson went on to prescribe both serum tears and preservative free artificial tears. Id. On May 15, 2019, in response to a query from Wexford of Indiana, Dr. Johnson's office faxed over the aforementioned treatment notes, confirmed that “there isn't an alternative to serum tears, ” and stated that Bullock should use the preservative free artificial tears. ECF 34-1 at 74 (emphasis added). An email from Lee Ann Ivers of Wexford of Indiana dated June 10, 2019, states that the serum tears, which are “made out of the patient's blood” and need to be “put on ice and transported to Indianapolis” can “only be purchase[d] from the Midwest Cornea Associates.” ECF 34-2. The transportation issue is apparently not prohibitive, however, as the email continues, “[w]e were going to go ahead and do this, but they would not take a check or company card.” ECF 34-2. The artificial tears were purchased from CVS, and Bullock is currently receiving them. Id.

         Although the Warden claims that the matter is now moot because an alternative to the serum tears has been provided, the record belies that assertion. Dr. Johnson's office confirmed that there is not an alternative to the serum tears, which were prescribed to help heal Bullock's eye. Based on the record before the court, it is clear that Dr. Johnson intended the artificial tears to be a temporary measure pending the resolution of any logistical problems rather than a final, definitive treatment. Despite this, the Warden's response indicates that there are no plans for implementing Dr. Johnson's full recommended treatment course now or in the future. Indeed, the Warden has provided no evidence that any of the “logistical problems”[1] are being addressed, nor does he present a medical professional's opinion that differs from that of Dr. Johnson-a specialist who was specifically selected by Wexford and/or prison officials to treat Bullock's eye. Thus, the matter is not moot.

         Turning to the merits, the Warden argues that Bullock has failed to establish a likelihood of success on his Eighth Amendment claim because he is continuing to receive care from Wexford and is being provided with artificial tears. But, as noted above, the fact that Bullock is receiving artificial tears is not dispositive. Bullock has been diagnosed with neurotrophic keratopathy, a rare degenerative disease, in his right eye, [2] and it is undisputed that his vision is significantly impacted by this condition. Dr. Johnson has prescribed serum tears, but Wexford is refusing to provide them and has not presented any evidence of a reasonable, long-term alternate plan. Although the Warden states, correctly, that as a non-medical professional he may reasonably defer to the judgment of medical professionals regarding inmate treatment, the evidence suggests that he is not doing so here as Dr. Johnson's full recommendations are not being carried out, and ...


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