United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Damon
R. Leichty Judge
Jerome
Derrell Robertson, a prisoner without a lawyer, filed a
complaint alleging that his mental health needs are not being
met in a constitutionally adequate manner while being housed
in administrative segregation at the Westville Correctional
Facility. He also filed a motion for a preliminary
injunction. ECF 3. After screening, Mr. Robertson was granted
leave to proceed against the Warden of the Westville
Correctional Center in his official capacity on an injunctive
relief claim to provide him with constitutionally adequate
mental health care as required by the Eighth Amendment. He
was not permitted to proceed on any other claims, including
claims for monetary damages, because he has previously
accrued three “strikes;” and an inmate who has
struck out can proceed in forma pauperis only if he
is “under imminent danger of serious physical
injury.” Abdul-Wadood v. Nathan, 91 F.3d 1023,
1025 (7th Cir. 1996) (quoting 28 U.S.C. § 1915(g)).
The
court directed that the Warden respond to the motion for
preliminary injunction and file an affidavit or declaration
with the court explaining how Mr. Robertson's mental
healthcare needs are being addressed in a manner that
satisfies the requirements of the Eighth Amendment. The
Warden has filed his response, and Mr. Robertson has now
filed a reply. Accordingly, Mr. Robertson's request for a
preliminary injunction is ripe for decision.
As an
initial matter, Warden Galipeau spent a considerable portion
of his response brief advancing an argument that the court
lacks subject matter jurisdiction. This argument is
misplaced. The court has granted Mr. Robertson leave to
proceed on an Eighth Amendment claim against the Warden in
his official capacity to provide him with constitutionally
adequate mental health care. Thus, Mr. Robertson is
proceeding on a claim “arising under the Constitution,
laws, or treaties of the United States, ” so the court
has subject matter jurisdiction under 28 U.S.C. § 1331.
Furthermore,
as noted in the court's screening order (ECF 6), the
Warden has both the authority and the responsibility to
ensure that Mr. Robertson receives constitutionally adequate
mental health treatment. See Gonzalez v. Feinerman,
663 F.3d 311, 315 (7th Cir. 2011) (“[T]he warden . . .
is a proper defendant [for] injunctive relief [and is]
responsible for ensuring that any injunctive relief is
carried out.”). This does not mean, as Warden
Galipeau's response suggests, that he would be ordered to
deliver medical care personally (see, e.g.,
ECF 9 at 6, noting that a warden could neither provide
radiation therapy for a cancer patient nor require a medical
provider to do so). However, if Mr. Robertson is not
receiving constitutionally adequate medical care from the
providers to whom the Warden has delegated that obligation,
then it is the Warden's responsibility to ensure he
receives such care-either by negotiating a solution with the
providers at the facility, if possible, or by providing Mr.
Robertson with access to medical providers outside the
facility who are willing to provide constitutionally adequate
care. Thus, Warden Galipeau has the authority to grant the
relief Mr. Robertson was granted leave to pursue-namely,
access to constitutionally adequate medical care.
Turning
to the merits of the motion, “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 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. 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). While every inmate is entitled to receive
constitutionally adequate medical care, Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976), before an inmate 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 Mazurek v. Armstrong, 520 U.S. 968, 972 (1997);
Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012).
Here,
Mr. Robertson alleges that that his mental health needs have
been neglected for the past eighteen months while he has been
in administrative segregation. He asserts that he does not
receive treatment even though he complains of constant
anxiety attacks, major depression, and hearing voices that
tell him to harm himself and others. According to Mr.
Robertson, a mental health worker chats with him at the front
of his cell occasionally while other inmates listen, but that
is the extent of the care he receives. That same individual
then documents that Mr. Robertson refused care-an allegation
that Mr. Robertson denies here.
Mr.
Robertson's medical records tell a different story.
According to his medical records, Mr. Robertson has received
regular care for his mental health needs throughout his time
in administrative segregation. ECF 9-2. Mr. Robertson has
been checked on during mental health “rounds”
approximately every week for the last year. ECF 9-1 ¶
10. In addition to these informal check-ins at the front of
his cell, he has had several visits with mental health
workers outside of his cell. Id. The records show
that he has been offered an out-of-cell visit approximately
once a month, but that Mr. Robertson regularly refuses those
visits. ECF 9-2. Mr. Robertson, on the other hand, contends
that these records have been falsified in this manner, and
that he has not refused visits.
Even if
Mr. Robertson's assertion that the medical records were
falsified is accepted as true and each of the medical records
that indicates that Mr. Robertson refused care is ignored,
the amount of care that Mr. Robertson has received is
substantial. Considering just the month prior to the Warden
filing his response, Mr. Robertson had nine encounters with
mental health staff. ECF 9-1 ¶ 11. On October 7, 2019,
Mr. Robertson was visited at his cell front and medication
was discussed. Id. As a result of this discussion,
his medication was increased. Id. The next day,
medical records indicate that Mr. Robertson was offered an
out-of-cell visit but refused-an assertion that Mr. Robertson
disputes. Id. On October 15, 2019, Mr. Robertson
attended an out-of-cell meeting. ECF 9-2 at 892-897, 920.
During the meeting, Mr. Robertson lamented the quality of his
mental health care and opined that he needed to be treated in
a specialized mental health unit. Id. He was advised
that, given that he does not engage when he has the
opportunity, he would not be considered for a transfer to a
mental health unit where he could receive more intensive
treatment. Id. at 920.
An
individual action plan dated October 15, 2019 outlines
several goals including improving anger management,
maintaining mental health stability while in restrictive
housing, and mitigating self-injurious thoughts, feelings and
actions. Id. at 894-96. Under the plan, individual
therapy is offered monthly and medication management is
offered every ninety days. Id. Mr. Robertson's
medical records indicate that he was offered an out-of-cell
visit on October 22, 2019, in response to a health care
request, but that he refused that out of cell visit. ECF 9-1
¶ 11. On October 24, 2019, he received a visit at the
front of his cell. Id. On October 29, 2019, he had a
medical visit at the chronic care clinic. Id. On
October 31, 2019, he received another visit at the front of
his cell. Id. And, on November 5, 2019, Mr.
Robertson met with a member of the mental health staff for
purpose of medication management. Id. He was
described as pleasant and cooperative, and he indicated that
he was doing well on his current medications and wished to
continue them. Id. Given the extensive nature of the
care, even if he had not been offered two out-of-cell visits
that he denies refusing, the record establishes that he has
received care that is not inconsistent with the Eighth
Amendment. Mr. Robertson has not demonstrated on this record
a right to the extraordinary relief of a preliminary
injunction based on this record of care.
Mr.
Robertson points out various violations of IDOC policy. He
contends that, pursuant to policy, he should not be in
administrative segregation at all. And, he contends that the
IDOC's policy requires that he be granted privacy for
each of his check-ins.[1] He further contends that, if he really did
refuse care, pursuant to the IDOC's policy, there would
be a separate refusal of care form documenting his refusal
and signed by a witness. However, policy violations don't
equate to constitutional violations. Scott v.
Edinburg, 346 F.3d 752, 760 (7th Cir. 2003)
(“However, 42 U.S.C. § 1983 protects plaintiffs
from constitutional violations, not violations of state laws
or, in this case, departmental regulations and police
practices.”). Likewise, they do not warrant injunctive
relief under the circumstances here.
Mr.
Robertson also continues to insist that he needs to be
transferred to a specialized mental health unit for
treatment; but, as explained in this court's screening
order, “[t]he 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.” Westefer v. Neal, 682 F.3d 679
(7th Cir. 2012) (quotation marks, brackets, and citations
omitted). “[T]he 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). Even if
injunctive relief were warranted, it would be limited to
requiring the Westville Correctional Facility to provide Mr.
Robertson with mental health treatment that does not violate
the Constitution.
While
Mr. Robertson insists that he has received inadequate mental
health care, the medical records (aside from any factual
disputes that might exist) show that Mr. Robertson was seen
and treated by mental health staff multiple times during the
period in question. While Mr. Robertson is displeased with
the mental health staff, and would prefer to receive his
mental health treatment in a specialized mental health unit,
the Constitution does not require that Mr. Robertson be
permitted to choose his provider and it does not require that
he receive the treatment of his choice-only treatment that
reflects professional judgment. See Jackson v.
Kotter, 541 F.3d 688, 697 (7th Cir. 2008)
(“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”) (internal quotation
marks and citation omitted). The record suggests that he
received treatment reflecting professional judgment, even if
medical professionals might disagree about the best treatment
option.
Given
the history of extensive treatment, should Mr. Robertson
require additional mental health care, there is nothing in
the record suggesting that an injunction is necessary to
ensure he receives that care. In short, Mr. Robertson has
failed to show a likelihood of success on the merits of his
claim for injunctive relief, and he has failed to demonstrate
that he will suffer irreparable harm in the absence of an
injunction. Because Mr. Robertson's allegations of
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