United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
R. LEICHTY JUDGE, UNITED STATES DISTRICT COURT.
Russell Ybarra, a prisoner without a lawyer, filed a second
amended complaint. See ECF 1, 26, and 115. The first
58 paragraphs are the same as the original complaint, the
first amended complaint, and the second amended complaint.
When the court screened the two prior complaints, it reached
the same conclusion about which claims from those paragraphs
could proceed and which had to be dismissed. ECF 3 and 46.
Mr. Ybarra has not presented a reason to change the analysis
of those first 58 paragraphs. Therefore, the court will not
modify its previous rulings as to them:
[Mr.] Ybarra plausibly alleged Nurse Practitioner Diane Thews
was deliberately indifferent to his need for medical
treatment of his chronic eczema and psoriasis in violation of
the Eighth Amendment by refusing to provide him with Minerin
Creme, a non-prescription moisturizer, for the treatment of
his chronic eczema and psoriasis even though he is indigent
and unable to purchase it or an alternative from commissary.
He plausibly alleged Wexford Medical has a policy or practice
of denying needed non-prescription medical products to
indigent inmates in violation of the Eighth Amendment.
Finally, he plausibly alleged Dr. Marthakis violated the
Eighth Amendment by denying him medical treatment for glass
in his right foot. As previously explained (ECF 3), none of
the other allegations in the original complaint (all of which
are repeated in the amended complaint) state a claim.
ECF 46 at 1-2. See also Minch v. City of Chicago,
486 F.3d 294, 301 (7th Cir. 2007) (“the law of the case
doctrine embodies the notion that a court ought not to
re-visit an earlier ruling in a case absent a compelling
reason, such as manifest error or a change in the law, that
filing by an unrepresented party “is to be liberally
construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and
citations omitted). Nevertheless, pursuant to 28 U.S.C.
§ 1915A, the court must review the merits of a prisoner
complaint and dismiss it if the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief.
second amended complaint, Mr. Ybarra now alleges Dr. Nancy
Marthakis was deliberately indifferent because she prescribed
hydrocortisone cream rather than minerin cream for his
psoriasis and eczema. For medical professionals to be held
liable for deliberate indifference to a serious medical need,
they 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). The U.S. National Library of Medicine
explains that hydrocortisone “[temporarily] relieves
itching associated with minor skin irritations, inflammation
and rashes due to: eczema, psoriasis.”
Hydrocortisone, National Institutes of Health,
available at https://dailymed.nlm.nih.gov/dailymed.
Minerin cream is not a medication and is not included in the
U.S. National Library of Medicine. Rather, it is “a
moisturizer to treat or prevent dry, rough, scaly, itchy skin
and minor skin irritations.” Minerin Cream,
WebMD, available at https://www.webmd.com/. As such,
it was not deliberately indifferent for Dr. Marthakis to have
prescribed hydrocortisone rather than minerin cream.
Ybarra argues hydrocortisone should not have been prescribed
for a year because he does not believe it is a long-term
treatment. Hydrocortisone provides only temporary relief and
has limitations generally on its daily use. See
Hydrocortisone, National Institutes of Health, available
at https://dailymed.nlm.nih.gov/dailymed. However,
there is no indication it cannot be used for a year or more.
Id. Though Mr. Ybarra disagrees with Dr.
Marthakis' decision to prescribe hydrocortisone, a mere
disagreement with a medical professional about the
appropriate course of treatment does not establish deliberate
indifference. Arnett v. Webster, 658 F.3d 742, 751
(7th Cir. 2011).
Ybarra alleges Dr. Marthakis prescribed coal tar shampoo even
though it had not successfully controlled his symptoms when
previously prescribed by another doctor. However, topical
psoriasis treatments can stop working-or start working even
if they failed in the past. See Topical Treatments for
Psoriasis, WebMD, available at
“Coal tar can be very effective. Some people see
complete clearing with coal tar and long remissions.”
Psoriasis Treatment: Coal Tar, American Academy of
psoriasis/psoriasis-coal-tar#. Therefore, it was not
deliberately indifferent to have tried coal tar again though
it had not worked before. When it proved unsuccessful again,
she prescribed an alternative (requested by Mr. Ybarra) that
was not approved by Wexford. This was not deliberately
indifferent and does not state a claim against Dr. Marthakis.
Because Mr. Ybarra is already proceeding on a claim against
Wexford based on these facts, this is not a new claim against
Ybarra alleges Dr. Marthakis falsely told him he could
receive non-prescription products from commissary if he
signed a form. He signed the form, but commissary would not
give him those items for free. To the extent he is trying to
sue because she lied to him, mere verbal abuse does not state
a claim. DeWalt v. Carter, 224 F.3d 607, 612 (7th
Cir. 2000). Though verbal abuse that creates a risk of
physical injury is actionable, it is not plausible to infer
that these statements placed him at risk. See Beal v.
Foster, 803 F.3d 356, 357-58 (7th Cir. 2015). To the
extent there was any risk of physical injury, it was because
of the lack of access to the non-prescription products.
However, Mr. Ybarra is already proceeding on a claim against
Wexford based on not receiving non-prescription products from
medical. These new allegations do not change that claim nor
state an independent claim against Dr. Marthakis.
Ybarra alleges Dr. Marthakis retaliated against him for
prosecuting this lawsuit against her by having prison
officials drug test him. “To prevail on his First
Amendment retaliation claim, [the plaintiff] must show that
(1) he engaged in activity protected by the First Amendment;
(2) he suffered a deprivation that would likely deter First
Amendment activity in the future; and (3) the First Amendment
activity was at least a motivating factor in the
Defendants' decision to take the retaliatory
action.” Gomez v. Randle, 680 F.3d 859, 866
(7th Cir. 2012) (quotation marks and citations omitted).
“There is, of course, a de minimis level of
imposition with which the Constitution is not
concerned.” Ingraham v. Wright, 430 U.S. 651,
Only retaliatory conduct that would deter a similarly
situated individual of ordinary firmness from exercising his
or her constitutional rights constitutes an adverse action
for a claim of retaliation. Otherwise, the retaliatory act is
simply de minimis and therefore outside the ambit of
constitutional protection. This objective inquiry is not
static across contexts, but rather must be tailored to the
different circumstances in which retaliation claims arise.
Prisoners may be required to tolerate more than public
employees, who may be required to tolerate more than average
citizens, before a retaliatory action taken against them is
Dawes v. Walker, 239 F.3d 489, 493 (2nd Cir. 2001)
(citations and quotation marks omitted); see also
Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).
Here, it is not reasonable to believe a prisoner of ordinary
firmness would be deterred from litigating a claim to obtain
healthcare because he was subjected to a single drug test.
Prisoners are regularly subjected to random drug testing.
Whitman v. Nesic, 368 F.3d 931, 935 (7th Cir. 2004)
(“Being made to stand naked twenty minutes as part of a
random drug-testing policy is not a ‘sufficiently
serious' condition of confinement to rise to the level of
a constitutional violation.). The allegation that this drug
test was not otherwise justifiable does not state a claim.
the new paragraphs in the second amended complaint have added
or modified any of the claims on which Mr. Ybarra was granted
leave to proceed based on his first amended complaint. This
case will therefore proceed with the same claims and
defendants. Because all defendants have already filed an
answer in response to these claims, it is unnecessary for
them to file another answer to the second amended complaint.
See ECF 52.
Mr. Ybarra filed a fifth motion asking for preliminary
injunctive relief. See ECF 7, 72, 80, 97, and 122.
This time he asks for treatment “for the eczema and
psoriasis issues on his scalp.” ECF 122 at 1. He also
asks for the defendants to submit photographs of his scalp.
Id. A “preliminary injunction is an
extraordinary and drastic remedy, one that should not be
granted unless the ...