Okennard v. Hollingsworth et al

Filing 75

ORDER DENYING 42 Motion for Preliminary Injunction; ADOPTING 54 Report and Recommendations. Signed by Judge G. Patrick Murphy on 05/21/13. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BROCK E. OKENNARD,

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Plaintiff,
vs.
DAVID SKOZE, et al.,
Defendants.

CIVIL NO. 12-51-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court on the Report and Recommendation of United States
Magistrate Judge Donald G. Wilkerson (Doc. 54), recommending that Plaintiff’s motion for a
preliminary injunction be denied (Doc. 54).

Plaintiff, Brock E. Okennard, is currently

incarcerated at the United States Penitentiary in Marion, Illinois (“USP-Marion”). He filed the
instant action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), alleging that Defendants violated his constitutional rights when they acted
with deliberate indifference to his serious medical needs. Plaintiff suffers from a degenerative
eye condition known as Keratoconus in both eyes, and he alleges that he needs a corneal transplant
to treat his condition. Plaintiff also alleges that Defendants, who are medical providers at
USP-Marion, refuse to schedule the surgery or transfer him to a federal medical facility where he
can receive adequate medical care for his eye condition.
On January 17, 2013, Plaintiff filed a motion seeking a preliminary injunction that would
compel Defendants to transfer him to a federal medical facility for evaluation and treatment by a
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corneal specialist (Doc. 42). On February 5, 2013, Magistrate Judge Wilkerson held a hearing on
Plaintiff’s motion (Doc. 53). At the hearing, Plaintiff modified his requested relief and asked for
an order compelling Defendants to administer a Visual Evoked Potential Test (“VEP Test”), which
would then be used to determine whether Plaintiff is eligible for corneal transplant surgery on
either eye (Doc. 54).
Magistrate Judge Wilkerson issued his Report and Recommendation and found that
Plaintiff failed his burden of establishing the elements required to obtain a preliminary injunction,
and recommended denying Plaintiff’s motion (Doc. 54). Plaintiff filed a timely objection to the
Report and Recommendation (Doc. 56), to which Defendants filed a timely response (Doc. 62).
Defendants then filed a motion requesting leave to supplement the record with newly discovered
factual information relevant to the Plaintiff’s request for a preliminary injunction (Doc. 63).
With leave of the Court, Defendants filed a supplemental brief and two new exhibits, to which
Plaintiff filed a response (Docs. 69, 71, 72).
Since timely objections have been filed, this Court must undertake a de novo review of the
Report and Recommendation. 28 U.S.C. §§ 636(b)(1)(B), (C), FED. R. CIV. P. 72(b); SDIL-LR
73(1)(b); Harper v. City of Chicago Heights 824 F. Supp. 786, 788 (N.D. Ill. 1993). In doing so,
the Court “need not conduct a new hearing on the entire matter, but must give ‘fresh consideration
to those issues to which specific objections have been made.’” Id. (emphasis added) (citations
omitted). In doing so, the Court has the discretion to “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
The matter is ripe for ruling, and for the following reasons, the Court adopts Magistrate Judge
Wilkerson’s Report and Recommendation.

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DISCUSSION
A. Legal Standard for Obtaining a Preliminary Injunction
In order to obtain a preliminary injunction, Plaintiff had the burden of establishing that: (1)
he is likely to succeed on the merits of his claim; (2) he has no adequate remedy at law; and (3) he
is likely to suffer irreparable harm without the injunction. Planned Parenthood of Indiana, Inc. v.
Comm'r of Indiana State Dep't Health, 699 F.3d 962, 972 (7th Cir. 2012), citing Am. Civil
Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 589–90 (7th Cir. 2012). In the context of prisoner
litigation, the scope of the Court’s authority to enter an injunction is circumscribed by the Prison
Litigation Reform Act (“PLRA”). Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012). Under
the PLRA, preliminary injunction relief “must be narrowly drawn, extend no further than
necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive
means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). See also Westefer, 682 F.3d at
683 (noting the PLRA “enforces a point repeatedly made by the Supreme Court in cases
challenging prison conditions: prison officials have broad administrative and discretionary
authority over the institutions they manage”) (internal quotation marks and citation omitted).
Here, Plaintiff objected to Magistrate Judge Wilkerson’s findings that Plaintiff was
unlikely to succeed on the merits of his deliberate indifference claim, and that he was unlikely to
suffer irreparable harm without the injunction (Doc. 56). The Court will now review the portions
of Magistrate Judge Wilkerson’s Report and Recommendation pertaining to those objections.
B. Plaintiff Okennard is Unlikely to Succeed on the Merits
To establish an Eighth Amendment claim for deliberate indifference to a serious medical
need, there are “two high hurdles, which every inmate-plaintiff must clear.” Dunigan ex rel.

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Nyman v. Winnebago County, 165 F.3d 587, 590 (7th Cir. 1999). First, the plaintiff must
demonstrate that his medical condition is “objectively, sufficiently serious.” Greeno v. Daley,
414 F.3d 645, 653 (7th Cir. 2005), citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal
quotations omitted). A serious medical condition is one “that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay person would perceive the need for
a doctor’s attention.” Edwards v. Snyder, 478 F.3d 827, 830–31 (7th Cir. 2007). Second, the
plaintiff must demonstrate that a state official acted with a sufficiently culpable state of mind.
Greeno, 414 F.3d at 653. A prisoner must demonstrate that the prison official “knew of a
substantial risk of harm to the inmate and disregarded the risk.” Id. The Seventh Circuit has
held that “a difference of opinion among physicians on how an inmate should be treated cannot
support a finding of deliberate indifference.” Norfleet v. Webster, 439 F.3d 392, 397 (7th Cir.
2006), citing Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir.2001). Rather, in order “[t]o infer
deliberate indifference on the basis of a physician's treatment decision, the decision must be so far
afield of accepted professional standards as to raise the inference that it was not actually based on
a medical judgment.” Norfleet, 439 F.3d at 397.
Plaintiff generally objected to Magistrate Judge Wilkerson’s conclusion that he is unlikely
to succeed on the merits of his claim for deliberate indifference (Doc. 62). Plaintiff specifically
objected to Magistrate Judge Wilkerson’s findings regarding his current treatment to the extent
that the findings conclude the treatment Plaintiff is receiving is adequate (Doc. 62). Plaintiff also
objected to Magistrate Judge Wilkerson’s citation to medical records from 2007 and 2008
indicating that corneal transplant surgery was not recommended, and to Dr. Derek Melton’s
January 2013 note indicating there was “no obvious need for anything other than the [prescribed

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medications]” (Doc. 62).
The crux of Plaintiff’s objections is that he believes the treatment he is currently receiving
is inadequate, and therefore, he is likely to succeed on the merits of his deliberate indifference
claim.

For the purposes of this discussion, the Court will assume that Plaintiff’s medical

condition was sufficiently serious. Having considered Plaintiff’s objections, the Court agrees
with Magistrate Judge Wilkerson that Plaintiff is unlikely to succeed on the merits of his claim
because there is no indication in the record that Defendants were deliberately indifferent to
Plaintiff’s needs.
Plaintiff has received, and continues to receive, a substantial amount of medical care for his
eye condition (Doc. 54). Plaintiff has regular optometry consultations with Dr. Derek Melton,
various prescription eye drops, and custom contact lenses designed to treat Keratoconus (Doc. 54).
However, Plaintiff contends that the treatment he is currently receiving is not adequate. He states
that the physician currently treating him, Dr. Derek Melton, is not a corneal specialist qualified to
evaluate an adequate course of treatment for Plaintiff (Doc. 62). Plaintiff also states that the
contact lenses and eye drops that he is currently being treated with have not corrected his vision,
his eyesight has continued to deteriorate, and he is still experiencing pain (Doc. 62). While
Plaintiff believes he should be evaluated by a corneal specialist and needs a corneal transplant, the
Eighth Amendment does not confer a constitutional right on inmates to demand a certain specialist
or demand specific care.

Kendrik v. Frank, 310 F. App'x 34, 38 (7th Cir. 2009), citing Forbes v.

Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Dr. Melton is an optometrist with experience treating
patients with traumatic eye injuries, including corneal transplant patients, both inside and outside
the prison (Docs. 47-2, 47-6).

Contrary to Plaintiff’s assertions that his eye condition is

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worsening with the current treatments, his medical records show that his condition has remained
stable, and has not further deteriorated (See, e.g., Doc. 47-6). Plaintiff’s medical records also
indicate that when Plaintiff used his eye medications as prescribed, doctors observed an
improvement in the condition of his eyes, and he self-reported an improvement in his levels of pain
and discomfort (See, e.g., Doc. 47-6).
It should come as no surprise that the current treatments have not actually corrected
Plaintiff’s vision or eased his pain because Plaintiff refuses to use them. Plaintiff’s medical
records are rife with indications that Plaintiff did not wear his contacts lenses or use his eye drops
as prescribed (Docs. 47-6, 47-7, 47-8, 47-9). In February 2013, prison officials found a garbage
bag in Plaintiff’s cell containing multiple boxes, bottles, and tubes of each of his active
prescriptions for his eyes that were still factory-sealed (Doc. 71). In short, Plaintiff’s refusal to
comply with his currently prescribed treatments undoubtedly limits their effectiveness, but that
does not mean that the treatments are wholly inadequate and inappropriate for Plaintiff’s eye
condition.
Plaintiff also contends that Defendants refusal to follow the recommendations of Dr. Fix
and Dr. Alberts to schedule Plaintiff for corneal transplant or evaluation by a corneal specialist is
evidence of Defendants’ deliberate indifference (Docs. 42, 62). However, in May 2011, Dr.
Skoze acted on the recommendations of Dr. Fix and Dr. Alberts and issued a referral request on
Plaintiff’s behalf seeking to have Plaintiff transferred to a facility where he could receive a second
corneal transplant of the left eye and he could be evaluated for a corneal transplant of his right eye
(Doc. 47-2).

The Bureau of Prisons (“BOP”) denied the request and stated it would be

reconsidered once Plaintiff had taken a Visual Evoked Potential (“VEP”) examination and

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Plaintiff was compliant with current treatments (Doc. 47-2). In June 2011, Dr. Skoze arranged
for the VEP test to be conducted at St. Louis University Medical Center (Doc. 47-2). Plaintiff
claimed he could not see the red dot, and for this reason, it was determined that Plaintiff was not a
good candidate for corneal transplants (Doc. 47-2). Since that time, Dr. Melton has continued to
monitor Plaintiff’s eye condition and assess his candidacy for surgery (See Doc. 47-6).
According to Dr. Skoze, he has not scheduled Plaintiff for another VEP test despite Plaintiff’s
demands, because optometry consultations continue to indicate Plaintiff is not a candidate for a
corneal transplant based upon his physical examinations and Plaintiff’s non-compliance with
current recommended treatments (Doc. 47-2). Therefore, the recommendations of Dr. Fix and
Dr. Alberts establish only a difference of opinion from that of Dr. Melton, Dr. Skoze, and the BOP
concerning Plaintiff’s medical condition and the appropriate course of treatment.

A mere

difference of professional opinion does not, however, show that Defendants were deliberately
indifferent to Plaintiff’s needs. Norfleet v. Webster, 439 F.3d 392, 397 (7th Cir. 2006)
The Court agrees with Magistrate Judge Wilkerson’s conclusion that Plaintiff is unlikely to
succeed on the merits because “Plaintiff will only be able to show that he is unhappy about his
course of treatment . . . and that he wants more aggressive treatment; not that Defendants are
deliberately indifferent to his needs” (Doc. 54). As previously stated, Plaintiff has received, and
continues to receive, a substantial amount of medical care from Defendants for his eye condition.
“What we have here is not deliberate indifference to a serious medical need, but a deliberate
decision by a doctor to treat a medical need in a particular manner.” Snipes v. DeTella, 95 F.3d
586, 591 (7th Cir. 1996). Plaintiff’s assertion that his condition necessitated different treatment
boils down to an unsubstantiated disagreement with Defendants’ professional judgment. It is

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well-established that an inmate’s mere disagreement with the course of his medical treatment does
not constitute an Eighth Amendment claim of deliberate indifference. Snipes, 95 F.3d at 591.
The Court finds there is no basis for a conclusion that the treatment Plaintiff is currently
receiving is so far afield of accepted professional standards as to raise the inference that it was not
actually based on a medical judgment. Therefore, the Court agrees with Magistrate Judge
Wilkerson’s conclusion that Plaintiff has not met his burden of establishing that he is likely to
succeed on the merits of his § 1983 claim.
C. Plaintiff Okennard is Not Likely to Suffer Irreparable Harm
Plaintiff objected to Magistrate Judge Wilkerson’s finding that he is not likely to suffer
irreparable harm without the injunction (Doc. 56). Plaintiff acknowledges that the VEP test will
not cure his eye condition, but argues that it is a prerequisite to an evaluation by a corneal
specialist, which is necessary to stop and possibly correct Plaintiff’s loss of vision (Doc. 56).
Plaintiff also objected to any finding that Plaintiff “failed” the VEP test and any suggestion that a
second VEP test would not yield measurements (Doc. 56).
Having considered Plaintiff’s objections, the Court agrees with Magistrate Judge
Wilkerson that Plaintiff’s medical records do not support Plaintiff’s allegations of irreparable
harm. The records demonstrate that Plaintiff’s eye condition is “chronic,” and he has been living
with it for a number of years (See Docs. 47-6, 47-7, 47-8, 47-9). Plaintiff’s medical records also
indicate that when Plaintiff used his eye medications as prescribed, doctors observed an
improvement in the condition of his eyes, and he self-reported an improvement in his levels of pain
and discomfort (See, e.g. Doc. 47-6). Additionally, Dr. Fix and Dr. Alberts were each only able to
speculate that Plaintiff’s vision “may” continue to deteriorate if he does not receive an evaluation

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by a corneal specialist and/or corneal transplant surgery (Docs 42-2, 42-3). The only evidence to
support Plaintiff’s allegations of irreparable harm are his own assertions, however, Plaintiff’s
assertions simply cannot be credited. According to the medical records submitted to the Court,
since his initial corneal transplant in 2006, numerous doctors have accused Plaintiff of
malingering, exaggerating his symptoms, and feigning blindness (See Docs. 47-6, 47-7, 47-8,
47-9) More than one doctor has noted that Plaintiff’s reports of pain simply do not correspond
with the results of physical examinations (Docs. 47-6, 47-9). Therefore, the Court finds there is
no evidence that Plaintiff’s condition has worsened or will worsen if the VEP test is not
administered.
The Court also agrees with Magistrate Judge Wilkerson that an injunction mandating the
administration of the VEP test will not directly address the irreparable harm Plaintiff alleges.
The VEP test is not a cure for Plaintiff’s ailment. Moreover, an injunction mandating the
administration of the VEP test will not even guarantee that the BOP will approve Plaintiff’s
requests for an evaluation by a corneal specialist or corneal transplant surgery. The BPO stated
that the VEP test is not the only prerequisite Plaintiff must meet before it will approve his request
(See Doc. 47-2). Plaintiff must also show he is compliant with his current treatments (Doc. 47-2).
Given Plaintiff’s extensive history of non-compliance, there is a very real possibility that an
injunction mandating the administration of the VEP test will not advance Plaintiff’s cause.
Therefore, the Court agrees with Magistrate Judge Wilkerson’s conclusion that Plaintiff
has not met his burden of producing evidence sufficient to show that he would suffer irreparable
harm absent a preliminary injunction.

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CONCLUSION
For the reasons set forth above, Plaintiff’s objections to the Report and Recommendation
are OVERRULED. The Report and Recommendation of Magistrate Judge Wilkerson (Doc. 54)
is ADOPTED in full, and Plaintiff’s motion for a preliminary injunction is DENIED.

IT IS SO ORDERED.
DATED: May 21, 2013
s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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