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Perry v. Gregory

United States District Court, S.D. Indiana, Indianapolis Division

October 17, 2019

GREGORY, et al. Defendants.



         Plaintiff, Jason Seth Perry (“Perry”) initiated this lawsuit alleging that his medical providers have been deliberately indifferent to a variety of medical conditions. He has filed several motions for a preliminary injunction and temporary restraining order. He seeks injunctive relief in the form of treatment for chronic Hepatitis C (“HCV”) and evaluation by various medical specialists for other alleged medical conditions. More specifically, Perry requests that this Court order the defendants to send him to be evaluated by a qualified ear, nose and throat specialist (“ENT”); liver specialist; heart specialist; lung specialist; and brain specialist. Dkt. 105, p. 2. Mr. Perry also generally requests treatment for hepatitis A and hepatitis B.

         I. Preliminary Injunction Standard [1]

         “A preliminary injunction is an extraordinary equitable remedy that is available only when the movant shows clear need.” Turnell v. Centimark Corp., 796 F.3d 656, 661 (7th Cir. 2015). “To survive the threshold phase, a party seeking a preliminary injunction must satisfy three requirements.” Valencia v. City of Springfield, Illinois, 883 F.3d 959, 966 (7th Cir. 2018) (internal quotations omitted)). It must show that: (1) “absent a preliminary injunction, it will suffer irreparable harm in the interim period prior to final resolution of its claims”; (2) “traditional legal remedies would be inadequate”; and (3) “its claim has some likelihood of succeeding on the merits.” Id. Only if the moving party meets these threshold requirements does the court then proceed to the balancing phase of the analysis. Id. In the balancing phase, “the court weighs the irreparable harm that the moving party would endure without the protection of the preliminary injunction against any irreparable harm the nonmoving party would suffer if the court were to grant the requested relief.” Id.

         II. Facts

         Perry is currently incarcerated at the Wabash Valley Correctional Facility. His current medical conditions include, acid reflux disease, postnasal drip, chronic HCV mild-moderate restrictive airway disease, and antisocial personality disorder. He also sometimes complains of low back pain.

         A. Hepatitis C

         Perry has been diagnosed with chronic HCV, which is a viral disease that causes inflammation of the liver. Dkt. 110-3, ¶ 6. Chronic HCV is treatable with Direct-Acting Antiviral oral medications (“DAAs”). Id. At the time the defendants responded to the motion for preliminary injunction, Perry's chronic HCV was being monitored but not treated with DAAs. Id. However, the defendants explained that Perry is in the next group of HCV patients scheduled to receive DAA treatment. Id. He has signed a medical consent form to be treated with DAAs. Dkt. 110-1, ¶ 8. Perry contends in reply in support of his motion for injunctive relief that he has been denied DAAs because he has too much Zantac for his gastroesophageal reflux disease (“GERD.”) Dkt. 115. Acid suppressing medications such as Zantac cannot be taken with the antiviral therapy used to treat HCV. Dkt. 121-1, ¶ 7. Perry is aware of this, as this information is stated in the consent of treatment that he signed. Id. Nursing staff has also explained to him that he cannot take Zantac or any other acid suppressing medication while he is receiving antiviral therapy. Id. His Zantac was previously prescribed “KOP, ” which means that he could keep the medication with him and take as needed. Id., ¶ 8. However, to ensure that Perry does not take acid suppressing medications while receiving antiviral therapy, one of the nurses took Perry's KOP Zantac. Id. Perry can take Zantac or antiviral therapy, but he cannot take both. Id., ¶ 9.

         B. Hepatitis B and A

         Perry believes he is a “carrier” of hepatitis B. Dkt. 110-1, ¶ 9. It appears that someone inadvertently entered in Perry's chart that he is a carrier of hepatitis B. Id. But, Perry does not have hepatitis B and he is not a carrier of hepatitis B. Id. Based on his lab results, Perry is immune from getting hepatitis B. Id. This means that Perry has, at some point in his life, received the hepatitis B vaccine. Id.

         On March 21, 2019, Perry received a vaccine for hepatitis A, which should make him immune from contracting the virus. Id. ¶ 10. He will receive a follow-up hepatitis A vaccination in 6-12 months from initial injection. Id.

         C. Shortness of Breath and Chest Pain

         Perry sometimes complains of difficulty breathing with chest pain. Dkt. 110-1, ¶ 11. In March of 2018, an officer refused Perry's request for a breathing treatment. Dkt. 105-1, p. 11. In response to his grievance on this issue, Perry was told that this should not be an issue again. Id., p. 12. Dkt. He has been prescribed rescue inhalers and is sometimes given breathing treatments for his difficulty breathing. Dkt. 110-1, ¶ 10. On February 1, 2019, Dr. Byrd sent Perry for a chest x-ray due to his complaints of difficulty breathing, chronic cough and chest pain. Id. The x-ray was interpreted by an outside radiologist who determined that the x-ray was normal. Id. In March 2019, Dr. Byrd ordered pulmonary function test for Perry to determine how well his lungs are working. Id. The test indicated that Perry has mild restriction of the lungs. Id. Perry's Spirometry[2]is consistent with less than full inspiration/expiration while completing the test, which is not uncommon with spirometry. Id. Medical staff will repeat spirometry if ongoing complaints of shortness of breath or increased shortness of breath. Id. Perry also attributes his shortness of breath to anxiety over his incarceration. Id. Currently, Perry is prescribed an inhaler, which he reports relieves his symptoms of shortness of breath. Id. There is no clinical reason to have Perry evaluated by a “lung specialist.” Id.

         Perry's complaints of chest pain are often associated with his shortness of breath. Dkt. 110-1, ¶ 12. There are also times where Perry complains of chest pain that lasts for several months and radiates up and down the whole left side of his body. Id. None of Perry's complaints of ...

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