McGuire v. Thompson
OPINION AND ORDER: The court DENIES AS MOOT the motion to amend 63 ; GRANTS IN PART AND DENIES IN PART the motion to amend 72 as described in this order; DIRECTS the clerk to separately docket the second amended complaint (ECF 72 -1) along with i ts exhibits (ECF 72 -2); GRANTS Dustin E. McGuire leave to proceed against Julie Kolodziej, as administrator of the estate of Dr. Joseph M. Thompson, for Dr. Thompson's delay in providing him with adequate medical treatment for his wrist after he fell on October 1, 2016, in violation of the Eighth Amendment; GRANTS Dustin E. McGuire leave to proceed against Dr. Nancy Marthakis for failing to provide him with pain medication and/or adequate medical treatment for his wrist beginning in late September of 2018, in violation of the Eighth Amendment; DIRECTS the clerk to add the Warden of the Indiana State Prison in his official capacity as a defendant; GRANTS Dustin E. McGuire leave to proceed against the Warden of the Indiana State Priso n in his official capacity for injunctive relief to ensure he is provided with constitutionally adequate medical care for his left wrist as required by the Eighth Amendment; DISMISSES Corizon and Wexford; DISMISSES all other claims; DIRECTS the clerk to request Waiver of Service from (and, if necessary, the United States Marshals Service to serve process on) the Warden of the Indiana State Prison at the Indiana Department of Correction with a copy of this order and the second amended complaint, pursuant to 28 U.S.C. § 1915(d); ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Julie Kolodziej, as administrator of the estate of Dr. Joseph M. Thompson, Dr. Nancy Marthakis, and the Warden of the Indiana State Prison to respond to the secon d amended complaint, as provided for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claims for which Dustin E. McGuire has been granted leave to proceed in this screening order; DENIES the motion for a preliminary injunction 73 ; and DENIES the motion for extension of time 75 . Signed by Chief Judge Jon E DeGuilio on 2/17/2021. (bas)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DUSTIN E. MCGUIRE,
CAUSE NO.: 3:18-CV-760-JD-MGG
JULIE KOLODZIEJ, as Administrator of
the Estate of DR. JOSEPH M.
THOMPSON, et al.,
OPINION AND ORDER
Dustin E. McGuire, a prisoner without a lawyer, filed a motion for leave to
amend along with a proposed second amended complaint. 1 ECF 72. He also filed a
motion for a preliminary injunction. ECF 73. “Leave to amend is to be ‘freely given
when justice so requires.’” Liu v. T&H Machine, 191 F.3d 790, 794 (7th Cir. 1999) (quoting
Payne v. Churchich, 161 F.3d 1030, 1036 (7th Cir. 1998) and Fed. P. Civ. P. 15(a)). A 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,
McGuire previously filed a motion to amend (ECF 63) with a different proposed amended
complaint, but that motion will be denied as moot due to the later filed motion.
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fails to state a claim upon which relief may be granted, or seeks monetary relief against
a defendant who is immune from such relief.
McGuire was originally granted leave to proceed against Dr. Joseph Thompson
in his individual capacity for monetary damages for delaying the receipt of proper
medical treatment for his wrist after he fell on October 1, 2016, in violation of the Eighth
Amendment. See ECF 5. Because Dr. Thompson passed away on May 5, 2019, Julie
Kolodziej, as the administrator of his estate, was substituted as the plaintiff in this
action. See ECF 46. The court subsequently allowed McGuire to amend his complaint in
order to bring an additional damages claim against Dr. Nancy Marthakis for failing to
provide him with pain medication and/or adequate medical treatment for his wrist
beginning in late September of 2018. See ECF 48.
In his motion to amend, McGuire indicates he wishes to add Corizon and
Wexford as additional defendants, and he states that “[e]vents have occurred since
plaintiff filed his complaint which are similar in nature to the violations alleged in the
complaint filed on September 14, 2018.” ECF 72 at 1. The attached proposed second
amended complaint names Julie Kolodziej, as the administrator of the estate of Dr.
Joseph Thompson, Dr. Nancy Marthakis, Corizon, and Wexford as defendants. Many of
the facts are largely identical to those set forth in the original and amended complaints,
and any relevant differences will be added below. The current defendants have filed a
response in opposition to McGuire’s motion, arguing that the amendment would be
futile, that he unduly delayed bring his new claims, and that he has repeatedly failed to
cure deficiencies. See generally ECF 74.
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Allegations in the Proposed Second Amended Complaint
McGuire is an inmate at the Indiana State Prison. On October 1, 2016, he was
injured by falling down the stairs. As a result, he was seen by Nurse Collins for his
injuries, which included a swollen left wrist. Nurse Collins informed Dr. Thompson of
McGuire’s injuries; however, he did not come out of his office to personally observe
them. The next day, Nurse Collins again examined McGuire and noted that McGuire’s
left wrist was hurting and swollen with a bump on the top and a bruise on the palm.
She informed Dr. Thompson of these injuries, but he again did not come out of his office
to personally examine them. He did, however, prescribe Tylenol #3 for the pain.
On October 3rd, McGuire’s wrist was x-rayed. The x-ray technician told McGuire
that the results would likely look “normal” due to the swelling. The technician told Dr.
Thompson that the wrist needed to be x-rayed after the swelling went down. However,
Dr. Thompson waited nearly eight months to order an x-ray for McGuire’s wrist. The xray revealed McGuire’s wrist was broken. Dr. Thompson then ordered a second x-ray,
which again showed that McGuire had a broken wrist. Dr. Thompson scheduled him to
see an orthopedic surgeon on June 29, 2017, who applied a cast to McGuire’s left wrist.
After the cast was removed, the orthopedic specialist recommended surgery.
On September 14, 2017, McGuire was seen by hand surgeon, Randolph J. Ferlic.
He told McGuire that surgery was required because Dr. Thompson waited too long to
put his wrist in a cast. McGuire had wrist surgery on January 8, 2018. During a post3
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surgery follow-up visit on March 13, 2018, Dr. Ferlic informed McGuire that he would
need ongoing physical therapy for his wrist. He also noted that if he was still having
pain or discoloration by October, his wrist would need to be evaluated. He was never
given physical therapy.
In September of 2018, McGuire’s wrist turned purple and began causing him an
extreme amount of pain. Later that month, he saw Dr. Nancy Marthakis and informed
her of the pain. She ordered an x-ray. The x-ray, which was performed on September 28,
2018, showed “internal fixation of the scaphoid“ with a “partial nonunion” but “no
acute fracture or dislocation.” ECF 72-1 at 10 & ECF 72-2 at 188. When McGuire met
with Dr. Marthakis to discuss those results on November 13, 2018, she told him
“nothing has changed” since his surgery. ECF 72-1 at 10. Despite McGuire’s repeated
complaints of pain and requests for additional help, Dr. Marthakis refused to order
physical therapy, have his wrist reevaluated further, or provide any pain medication.
Approximately one year later, McGuire’s wrist turned purple again and became
cold to the touch. He saw Dr. Marthakis on December 3, 2019. He was in “so much pain
that [he] was crying.” Id. She noted the discoloration and prescribed naproxen, an antiinflammatory pain medication. According to McGuire, Dr. Marthakis denied his
requests for physical therapy and reevaluation due to cost concerns. Allegedly, she also
told McGuire, “I won’t see you for your left wrist anymore because you [have] a federal
lawsuit” pending. Id. at 11.
In February of 2020, he stopped Dr. Marthakis on her way to work and told her
that the naproxen was not helping. She repeated that she would not see him due to the
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lawsuit. He subsequently put in multiple healthcare requests but has not been
evaluated since December 3, 2019. On December 4, 2020, he saw Dr. Marthakis for a
chronic care visit. When he tried to discuss his ongoing wrist issues, she told him to
leave her office. McGuire alleges that he is still having pain and discoloration in his left
wrist as of the date of this filing.
McGuire has sued both Dr. Thompson—who has since been substituted by the
administrator of his estate—and Dr. Marthakis for monetary damages. He now wishes
to add monetary damages claims against Corizon and Wexford as the medical
providers contracted by the Indiana Department of Correction to provide care to
inmates. Finally, he requests injunctive relief in the form of adequate medical care for
his current wrist issues.
Analysis of McGuire’s Claims
Under the Eighth Amendment, inmates are entitled to constitutionally adequate
medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish liability, a prisoner
must satisfy both an objective and subjective component by showing: (1) his medical
need was objectively serious; and (2) the defendant acted with deliberate indifference to
that medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is
“serious” if it is one that a physician has diagnosed as mandating treatment, or one that
is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). On the subjective prong, the
plaintiff must establish that the defendant “acted in an intentional or criminally reckless
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manner, i.e., the defendant must have known that the plaintiff was at serious risk of
being harmed and decided not to do anything to prevent that harm from occurring even
though he could have easily done so.” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005)
(internal quotation marks, brackets, and citations omitted).
Here, as to the claims involving Dr. Thompson, he was allegedly aware he
needed to order another x-ray after the swelling in McGuire’s wrist went down, but he
nevertheless delayed getting that x-ray for nearly eight months. This delay in treatment
harmed McGuire. Because the complaint alleges that Dr. Thompson knew McGuire
needed medical attention, but unnecessarily delayed it, the complaint states a plausible
claim against Julie Kolodziej as the administrator of Dr. Thompson’s estate. See Gutierrez
v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997); Arnett v. Webster, 658 F.3d 742, 752-53 (7th
Cir. 2011); Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008).
As to Dr. Marthakis, she was allegedly aware McGuire was in severe pain due to
his wrist yet delayed providing him pain medication for approximately one year. She
also allegedly refuses to provide any additional treatment or therapy despite knowing
that McGuire is still suffering from his injury. Although further fact-finding may reveal
that Dr. Marthakis had a valid reason for her actions, based on these allegations,
McGuire has stated a plausible claim against her. See Arnett, 658 F.3d at 753 (collecting
cases and noting that a “delay in treating non-life-threatening but painful conditions
may constitute deliberate indifference” and that a “refusal to provide an inmate with
prescribed medication or to follow the advice of a specialist can also state an Eighth
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Amendment claim if the delay exacerbated the injury or unnecessarily prolonged an
As to Corizon, the defendants argue that all of the claims against Corizon fall
outside of the statute of limitations. See ECF 74 at 5–6. McGuire admits that Corizon has
not been responsible for providing care within the prison since April 1, 2017, when
Wexford took over the medical contract. See 72-1 at 17, 19. It is undisputed that
Indiana’s two-year limitations period applies to this case. Behavioral Inst. of Ind., LLC v.
Hobart City of Common Council, 406 F.3d 926, 929 (7th Cir. 2005). The proposed amended
complaint was not filed until January 12, 2021, almost four years after Corizon’s
responsibilities within the prison ceased. ECF 72-1. Therefore, amending the complaint
to add Corizon as a defendant would be futile, and Corizon will be dismissed.
As to Wexford, the defendants argue that McGuire has not plead a valid
constitutional claim against it. A private company performing a state function can be held
liable to the same extent as a municipal entity under Monell v. Dep’t of Soc. Servs. of City of
New York, 436 U.S. 658 (1978). See Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012)
(Monell framework applies to private company providing medical care at correctional
facility). But a corporation “cannot be held liable under § 1983 on a respondeat superior
theory.” Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir. 2005). Rather corporate liability
exists only “when execution of a [corporation’s] policy or custom . . . inflicts the injury.”
McGuire generally asserts that Wexford, who assumed the responsibility for
prisoner medical care on April 1, 2017, has had continuing policies or procedures since
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that time until the present date that “den[y], delay, or provide low cost alternative
treatments to serious medical conditions and/or they fail to provide access to appropriate
diagnostic testing . . ..” ECF 72-1 at 19. McGuire believes policies and procedures exist
that “favor cutting costs over saving lives” and prevent prisoners from receiving
adequate medical care. Id. He suggests there are alleged contractual financial incentives
that “encourage Wexford to reduce referrals for outside testing and treatment” and
“encourage conservative care to cut costs, which causes their employees to withhold
necessary medical care from prisoners with serious medical conditions requiring
diagnostic testing or outside care.” Id. at 20. McGuire further asserts that Wexford’s
procedure for approving referrals is “extensive and requires several stages of approval
before a prisoner can be approved for outside care” including a “collegial review, in
which, after recommending an outside test or treatment, a prisoner’s treating physician
is required to discuss the inmate’s condition and alternative, lower-cost treatment plans
with the Regional Medical Director” who “frequently overrules treating physicians’
recommendations for outside tests or treatments in favor of cheaper alternatives.” Id.
McGuire asserts that, because of these policies, he has suffered almost four years of
“unnecessary and prolonged pain and suffering and an increased risk of permanent
The court agrees with the defendants that these alleged policies are not, on their
face, unconstitutional. As noted by the Seventh Circuit, “administrative convenience
and cost may be, in appropriate circumstances, permissible factors for correctional
systems to consider in making treatment decisions.” Roe v. Elyea, 631 F.3d 843, 863 (7th
USDC IN/ND case 3:18-cv-00760-JD-MGG document 79 filed 02/17/21 page 9 of 18
Cir. 2011) (emphasis in original). The Constitution is only violated when those factors
are considered “to the exclusion of reasonable medical judgment about inmate health.” Id.
(emphasis in original). McGuire’s proposed amended complaint does not plausibly
suggest that the list of unspecified policies mandated administrative convenience or
cost savings over physician judgment in this case. Rather, he notes that the policies
simply “favor” and “encourage” these things, which is not enough to state a plausible
constitutional violation. See Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599, 602 (7th
Cir. 2009) (To survive dismissal, a complaint must state a claim for relief that is
plausible on its face.).
Moreover, McGuire has pled facts that specifically undercut such an
interpretation. See Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007) (A plaintiff can
plead himself out of court if he pleads facts that preclude relief.); McCready v. Ebay, Inc.,
453 F.3d 882, 888 (7th Cir. 2006) (same). Here, McGuire alleges that less than two
months after Wexford assumed the responsibility for medical care within the prison 2
and approximately two weeks after his x-ray results showed his wrist was still
fractured, McGuire was seen by an outside orthopedic surgeon at the direction of Dr.
Thompson. A little over a month later, he visited the orthopedic surgeon again for cast
removal and was informed that surgery would be necessary. A month after that, he was
seen by an outside hand specialist who ordered a CT scan. Two weeks later, the CT scan
was performed, and a little over a month after that he visited the outside hand specialist
Wexford took over the IDOC contract on April 1, 2017.
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for the second time. The surgery was performed by the hand specialist approximately
two months later, and McGuire visited him for a follow-up two months after that. Based
on these facts—which show that McGuire was seen consistently by outside specialists
within two months of Wexford taking over for Corizon—it is not plausible to infer that
Wexford’s alleged cost-savings policies excluded all reasonable medical judgments
regarding his medical treatment and prevented him from receiving outside care. See e.g.
Barrow v. Wexford Health Servs., Inc., 816 F. Appx. 1, 5 (7th Cir. 2020) (noting that
Wexford’s policies of “collegial review” and “cost minimization” were not facially
unconstitutional and affirming dismissal of inmate’s claim because he did not provide
evidence he was injured by treatment decisions that were driven by cost-savings).
While McGuire alleges that the new doctor, Dr. Marthakis, later refused to have
his wrist reevaluated, to prescribe him pain medication, or to prescribe him physical
therapy, 3 he does not link her refusals to any specific policy. When read in conjunction
with the facts outlined above, McGuire has not plausibly alleged that Dr. Marthakis’s
actions (or inaction) caused him harm as a result of Wexford’s policies rather than her
own personal decisions. See Roe, 631 F.3d at 863; Taylor v. Wexford Health Sources, Inc.,
No. 15 C 5190, 2016 WL 3227310, *4 (N.D. Ill. June 13, 2016) (dismissing inmate’s Monell
claims because “[i]nstead of tying his injury to specific policies, [he] has chosen to
provide a laundry list of ten alleged policies maintained by Wexford”); Peacock v.
3 McGuire initially alleges she refused him this care because it “will cost us too much,” but he
later indicates that Dr. Marthakis informed him she would not see him for his wrist anymore because
“you got a federal lawsuit in on your wrist.” ECF 72-1 at 10–11. He also states that Dr. Marthakis told him
she would order an x-ray “even tho I don’t want to because it will cost us money.” Id. at 10. The x-ray was
performed within a few days of this conversation. Id.
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Rigsby, No. 15 C 1884, 2016 WL 1383232, at *3 (N.D. Ill. Apr. 7, 2016) (inmate’s allegation
of “cost-cutting policy is too speculative and untethered to his injury to support his
claim”); see also Bissessur, 581 F.3d at 602 (“A claim [only] has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (internal quotation
marks and citation omitted)). Therefore, amending the complaint to add Wexford as a
defendant would be futile, and Wexford will be dismissed. 4
In addition to monetary damages, McGuire now seeks injunctive relief to ensure
that the defendants “provide access to any and all necessary adequate medical
treatment required to diagnose [his] serious medical condition.” ECF 72-1 at 24. The
defendants argue that McGuire has not provided any additional facts about the care he
is currently receiving that would state a plausible claim for injunctive relief.5 However,
McGuire has added details about an encounter in February of 2020 in which he
attempted to show Dr. Marthakis the purple color of his wrist but she dismissed him,
Even if McGuire had stated a plausible claim against Wexford or Corizon, the court agrees with
the defendants that he engaged in undue delay in bringing them. McGuire waited over two years since
initiating this lawsuit to attempt to add any claims against Wexford or Corizon. He repeatedly sought to
amend his complaint prior to the instant motion; however, this is the first time Wexford and Corizon are
referenced. See ECF 34, ECF 49, ECF 60, ECF 63, ECF 72. McGuire has not suggested that he only recently
became aware of facts that would support such claims, and he does not attempt to explain the delay in
any way. See Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009) (courts are afforded broad
discretion to deny leave to amend including situations where there is undue delay). Moreover, allowing
McGuire to add these claims at this stage would be unduly prejudicial to the defendants. Monell claims
are often complex in nature and can involve substantial additional discovery. See Ferguson v. Roberts, 11
F.3d 696, 706 (7th Cir. 1993) (upholding denial of leave to amend because the proposed complaint
“contained ‘new complex and serious charges’ which would undoubtedly require additional discovery
for the defendants to rebut”).
5 The court previously denied him leave to add a claim for injunctive relief because McGuire did
not provide any details regarding the care (or lack thereof) he had received since a December 2019 visit
with Dr. Marthakis. ECF 62 at 4–5.
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visits with Dr. Marthakis on December 4th and 11th of 2020 during which Dr. Marthakis
ignored his issues, and alleged multiple unanswered healthcare requests from
December 3, 2019, to the present day. Furthermore, McGuire alleges that the medication
prescribed by Dr. Marthakis is not helping and that he is still having pain, discoloration,
and impaired movement in his left wrist.
While the court agrees that the facts in the proposed second amended complaint
regarding McGuire’s current medical care are sparse, giving him the benefit of the
inferences to which he is entitled at this stage, he has stated a plausible claim for
injunctive relief. It is the warden who is “a proper defendant [for] injunctive relief [and
is] responsible for ensuring that any injunctive relief is carried out.” Gonzalez v.
Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). Thus, McGuire may proceed against the
Warden of the Indiana State Prison in his official capacity to receive a permanent
injunction to ensure he obtains constitutionally adequate medical care for his left wrist.
That said, the specific requests McGuire describes throughout his complaint—including
receiving care from an outside specialist, participating in physical therapy, and
mandating that the recommendations of a previous doctor are followed—may not be
ordered even if it is ultimately determined that his current medical care is inadequate.
While it is true that the Warden has both the authority and the responsibility to ensure
McGuire receives the medical care to which he is entitled under the Eighth
Amendment, Gonzalez, 663 F.3d at 315, there may be various ways to do so that do not
involve sending McGuire to a specialist, a surgeon, or a physical therapist. Simply put,
McGuire cannot dictate how such medical care is provided. See Westefer v. Neal, 682 F.3d
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679, 683 (7th Cir. 2012) (The Prison Litigation Reform Act mandates that “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.”) (internal quotation marks, brackets, and citations
omitted)); see also Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (Inmates are “not
entitled to demand specific care [nor] entitled to the best care possible.”). Therefore,
injunctive relief—if granted—would be limited to requiring correctional officials to
provide medical treatment for McGuire’s left wrist to the extent required by the
With regard to the separately filed motion for preliminary injunctive relief (ECF
73), “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). “A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008).
As to the first prong, “the applicant need not show that it definitely will win the
case.” Illinois Republican Party v. Pritzker, 973 F.3d 760, 763 (7th Cir. 2020). However, “a
mere possibility of success is not enough.” Id. at 762. “A strong showing . . . normally
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includes a demonstration of how the applicant proposes to prove the key elements of its
case.” Id. at 763 (quotation marks omitted).
As to the second prong, “[i]ssuing a preliminary injunction based only on a
possibility of irreparable harm is inconsistent with . . . injunctive relief as an extraordinary
remedy that may only be awarded upon a clear showing that the plaintiff is entitled to
such relief.” Winter, 555 U.S. at 22. “Mandatory preliminary injunctions—those requiring
an affirmative act by the defendant—are ordinarily cautiously viewed and sparingly
issued [because] review of a preliminary injunction is even more searching when the
injunction is mandatory rather than prohibitory in nature.” Mays v. Dart, 974 F.3d 810,
818 (7th Cir. 2020) (quotation marks omitted).
[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. This section of 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.
Westefer, 682 F.3d at 683 (quotation marks, brackets, and citations omitted).
Here, McGuire has not adequately demonstrated how he intends to prove the key
elements of his case with regard to the injunctive relief sought. The sparse details set forth
above regarding his current medical care are enough to state a plausible claim for relief
under the more lenient standards of Federal Rule of Civil Procedure Rule 8, but his
motion does not meet the higher threshold required to obtain a preliminary injunction.
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See Pritzker, 973 F.3d at 763 (7th Cir. 2020). The majority of his motion describes past
events and past medical care—the portion that does refer to his current care is speculative
and lacking in detail. For example, McGuire asserts that there is an “increasing risk that
he may not be able to use his left wrist again,” but he does not provide evidence to
support this assertion. ECF 73 at 4. He also laments the lack of physical therapy at the
Indiana State Prison and speculates that if such services are not offered “the Doctor can
submit it down state for referral to an outside hospital,” but he does not explain how the
alleged lack of physical therapy is currently harming him, considering the significant
amount of time that has elapsed between the injury/prior surgery and the present day.
Id. at 3. See e.g. Winter, 555 U.S. at 22 (courts may not issue a preliminary injunction based
“only on a possibility of irreparable harm”). Therefore, the motion will be denied.
Motion for Extension of Time
Finally, McGuire filed a motion seeking additional time to reply to the defendants’
response to his motion to amend and motion for preliminary injunction. ECF 75. His reply
was due on February 1, 2021, see N.D. Ind. L.R. 7-1(d)(3), but McGuire did not date his
motion until February 4, 2021, making the motion several days too late. Id. at 2. 6 McGuire
has not shown good cause to extend the deadline after the fact. He alleges that he has no
access to the prison law library to investigate his case due to Covid-19 restrictions, but
this does not explain the late extension request. Moreover, although McGuire states that
The motion was scanned and emailed from the Indiana State Prison on February 5, 2021. ECF 75
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he wants an extension in order to obtain court-appointed counsel to assist him with the
case because “it’s very complicated and I personally don’t know how to respond to their
response,” 7 the court has since denied that request because he did not make a reasonable
attempt to obtain counsel on his own. See ECF 77. 8 This case has been pending for almost
two and a half years. In light of this and the fact that McGuire only recently attempted to
add the additional claims and defendants to this lawsuit, the court finds it is in the
interests of justice to deny the request for extension of time—which is related to the
request for counsel—and to proceed without further delay.9
For these reasons, the court:
(1) DENIES AS MOOT the motion to amend (ECF 63);
(2) GRANTS IN PART AND DENIES IN PART the motion to amend (ECF 72) as
described in this order;
(3) DIRECTS the clerk to separately docket the second amended complaint
7 McGuire also asserts that, without an attorney, he will be “unable to properly investigate all facts
necessary for successful litigation of my case because it will require documents that I won’t be allowed to
access along with other extensive work.” ECF 75 at 1. He points to a letter he sent to the clerk asking the
court to order the defendants to turn over discovery materials—namely “all informal and formal grievances
starting from October 1, 2016” and “any and all medical records . . . from October 1, 2016 to current”—as
proof that he cannot obtain the information. ECF 70. However, there is no indication that formal discovery
has been initiated by McGuire or that court intervention would be appropriate at this time. See generally
N.D. Ind. L.R. 26-1 & 26-2; see also N.D. Ind. L.R. 37-1.
In that order the court explained, in detail, the steps McGuire needs to take to try to obtain a
lawyer if he still wishes to do so. ECF 77 at 3. The court hereby ADVISES McGuire that he should also
include a copy of this order with any communications he sends to potential attorneys.
9 McGuire filed a “response” to the court’s order denying him counsel (ECF 78), but nothing in
that response provides a basis for revisiting that decision. McGuire does not assert that he has made any
other effort to obtain counsel on his own, nor does he dispute the court’s characterization of his original
efforts. Moreover, although he asks the court to delay ruling on the motion to amend and the motion for
preliminary injunction until he obtains counsel, as described above, he has not provided a sufficient
reason to do so.
USDC IN/ND case 3:18-cv-00760-JD-MGG document 79 filed 02/17/21 page 17 of 18
(ECF 72-1) along with its exhibits (ECF 72-2);
(4) GRANTS Dustin E. McGuire leave to proceed against Julie Kolodziej, as
administrator of the estate of Dr. Joseph M. Thompson, for Dr. Thompson’s delay in
providing him with adequate medical treatment for his wrist after he fell on October 1,
2016, in violation of the Eighth Amendment;
(5) GRANTS Dustin E. McGuire leave to proceed against Dr. Nancy Marthakis
for failing to provide him with pain medication and/or adequate medical treatment for
his wrist beginning in late September of 2018, in violation of the Eighth Amendment;
(6) DIRECTS the clerk to add the Warden of the Indiana State Prison in his
official capacity as a defendant;
(7) GRANTS Dustin E. McGuire leave to proceed against the Warden of the
Indiana State Prison in his official capacity for injunctive relief to ensure he is provided
with constitutionally adequate medical care for his left wrist as required by the Eighth
(8) DISMISSES Corizon and Wexford;
(9) DISMISSES all other claims;
(10) DIRECTS the clerk to request Waiver of Service from (and, if necessary, the
United States Marshals Service to serve process on) the Warden of the Indiana State
Prison at the Indiana Department of Correction with a copy of this order and the second
amended complaint, pursuant to 28 U.S.C. § 1915(d);
(11) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Julie Kolodziej, as
administrator of the estate of Dr. Joseph M. Thompson, Dr. Nancy Marthakis, and the
USDC IN/ND case 3:18-cv-00760-JD-MGG document 79 filed 02/17/21 page 18 of 18
Warden of the Indiana State Prison to respond to the second amended complaint, as
provided for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to
the claims for which Dustin E. McGuire has been granted leave to proceed in this
(12) DENIES the motion for a preliminary injunction (ECF 73); and
(13) DENIES the motion for extension of time (ECF 75).
SO ORDERED on February 17, 2021
/s/JON E. DEGUILIO
UNITED STATES DISTRICT COURT
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