United States District Court, N.D. Indiana, South Bend Division
BRODERICK V. BULLOCK, SR., Plaintiff,
OPINION AND ORDER
JON E. DEGUILIO JUDGE
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).
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.
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
Jackson v. Kotter, 541 F.3d 688, 697-98 (7th Cir.
2008) (quotation marks and citations omitted).
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
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.
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” 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
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,
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,