Northrup v. Indiana Department of Correction et al

Filing 31

OPINION AND ORDER DENYING 6 MOTION for Preliminary Injunction filed by Kyler Northrup. The order to show cause 25 is DISCHARGED. Signed by Judge Robert L Miller, Jr on 9/8/21. (ksp)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KYLER NORTHRUP,
Plaintiff,
v.

CAUSE NO. 3:21-CV-458-RLM-MGG

INDIANA DEPT. OF CORRECTION,
et al.,
Defendants.
OPINION AND ORDER
Kyler Northrup, a prisoner proceeding without a lawyer, moves for a
preliminary injunction. The court ordered a response from Westville Correctional
Facility Warden John Galipeau, which has now been received.
As a preliminary matter, Warden Galipeau was originally ordered to respond
to the motion by August 20. He didn’t do so, and the court issued an order requiring
him to show cause why the response hadn’t been filed. He promptly responded to the
show cause order two days after it was issued (and before the deadline set in the
order), explaining that defense counsel inadvertently failed to calendar the original
deadline because it was set before the Warden entered an appearance in the case.
Along with his response to the show cause order, the Warden filed a response to the
preliminary injunction motion totaling 432 pages with attachments. Warden
Galipeau has since remedied his omission, and his failure to comply with the original
order caused only a very short delay in briefing on the motion. Under the

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circumstances, the court finds no basis to take any further action against the
Warden.1 The order to show cause is discharged.
Turning to the merits, Mr. Northrup claims that is he receiving
constitutionally inadequate care for a shoulder injury. He was granted leave to
proceed on damages claims against six medical providers at Westville; a claim under
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978), against
Wexford of Indiana, LLC, and its parent company Wexford Heath Sources, Inc., for
maintaining an official policy or custom of failing to adequately train and monitor
medical staff and inmate workers in the Westville infirmary; and a claim for
permanent injunctive relief against Warden Galipeau related to his ongoing need for
constitutionally adequate medical care. In his motion for a preliminary injunction,
Mr. Northrup seeks an order requiring that he be immediately taken to an outside
medical facility for “shoulder surgery” and “follow-up care.”
“[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 in original).
“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

1 This is the second time in recent weeks that counsel for the Indiana Attorney
General has missed a deadline this court set for responding to a preliminary injunction, and
asserted as an explanation an inadvertent failure to calendar the deadline because no
appearance had been filed when the deadline was set. See Deane v. Neal, et al., 3:21-CV315-RLM-MGG. The court understands that mistakes can happen, but in cases filed by a
prisoner, an order setting briefing on a preliminary injunction motion often will be issued at
screening, before defendants have appeared in the case. The court trusts that counsel will
take greater care in the future to review the entire docket at the time an appearance is
entered to ensure compliance with deadlines that may have been set earlier.

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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).
On the first prong, “the applicant need not show that [he] definitely will win the case.”
Illinois Republican Party v. Pritzker, 973 F.3d 760, 763 (7th Cir. 2020). “[A] mere
possibility of success is not enough.” Id. at 762. “A strong showing . . . normally
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 v. Nat. Res. Def.
Council, 555 U.S. at 22.
Mandatory preliminary injunctions – “those requiring an affirmative act by the
defendant” like the one Mr. Northrup seeks – are “cautiously viewed and sparingly
issued.” Mays v. Dart, 974 F.3d 810, 818 (7th Cir. 2020) (quotation marks omitted).
In the prison context, the court’s ability to grant injunctive relief is significantly
circumscribed; any remedial injunctive relief “must be narrowly drawn, extend no
further than necessary to remedy the constitutional violation, and use the least
intrusive means to correct the violation of the federal right.” Westefer v. Neal, 682
F.3d 679, 681 (7th Cir. 2012) (citations and internal quotation marks omitted).
Under the Eighth Amendment, inmates are entitled to adequate medical care,
although “[n]ot every ache and pain or medically recognized condition involving some
discomfort” will give rise to an Eighth Amendment claim. Thomas v. Blackard, 2
F.4th 716, 722 (7th Cir. 2021) (citation omitted). Inmates are “not entitled to demand
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specific care,” Walker v. Wexford Health Sources, Inc., 940 F.3d 954, 965 (7th Cir.
2019), or to “the best care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir.
1997). Rather, they are entitled to “reasonable measures to meet a substantial risk of
serious harm.” Forbes v. Edgar, 112 F.3d at 267. Mere disagreement with a medical
professional about the appropriate course of treatment doesn’t establish an Eighth
Amendment violation. Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003). Instead,
the court must “defer to medical professionals’ treatment decisions unless there is
evidence that no minimally competent professional would have so responded under
those circumstances.” Walker v. Wexford Health, 940 F.3d at 965 (citation and
quotation marks omitted). “[N]egligence, gross negligence, or even recklessness as
the term is used in tort cases is not enough” to establish an Eighth Amendment
violation. Hildreth v. Butler, 960 F.3d 420, 425–426 (7th Cir. 2020). To prevail, the
inmate must show deliberate indifference, “a culpability standard akin to criminal
recklessness.” Thomas v. Blackard, 2 F.4th at 722.
Warden Galipeau submitted medical records showing that Mr. Northrup is 36year-old man who suffered a traumatic brain injury before his incarceration, suffers
from seizures as a result. Mr. Northrup arrived at Westville in January 2020. He was
prescribed the seizure medication Keppra, which is the same medication he took
before his incarceration. He has also been given a soft helmet to wear to prevent
injury to his head in the event of a seizure. Mr. Northrup broke his right shoulder
when he suffered a seizure and fell on November 29, 2020. An emergency signal was
called and Mr. Northrup was immediately seen by medical staff. He reported that he
“got dizzy on the way to the bathroom” and fell. It was noted that he wasn’t wearing
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his helmet. He acknowledged that he didn’t wake up for “med pass” that day and had
missed his dose of Keppra. He was given pain medication and an ice pack for his
shoulder. An x-ray was taken that day. A prison physician ordered that Mr. Northrup
be admitted to the infirmary and given Tylenol 3 with codeine, a cold compress, an
elastic bandage, and a splint. (ECF 29 at 1-12.)
Mr. Northrup went to the nurse’s station in the infirmary later that night and
asked for something to help him sleep. The nurse noted that he had a blank stare and
that he was starting to sway backwards. He fell into a nightstand and landed on his
right shoulder. The nurse checked his vital signs and did a neurological check, both
of which were within normal limits. Mr. Northrup denied feeling dizzy or light-headed
and told her, “I don’t know what just happened.” He told the nurse he had missed
about three doses of Keppra that week, which required labs to be drawn. He was told
to stay in bed and use the call light if he needed anything and to wear his helmet if
he was up walking around. (Id. at 13-14.)
A prison doctor saw Mr. Northrup later that morning and said the x-ray
showed a fracture of his humerus (the long bone between the elbow joint and the
shoulder). The doctor said Mr. Northrup was being referred to an outside orthopedist
for evaluation and treatment. Mr. Northrup remained in the infirmary for continued
observation for the next 24 hours. He was given over-the-counter pain medications
upon his release from the infirmary, with additional prescription pain medications
available from medical staff during the daily medication pass. It was noted that
“hopefully this will be an incentive for the pt. to get his AM Keppra.” He was given a

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“lay in” pass so that he would be excused from leaving his cell and would have meals
brought to him. (Id. at 14-31.)
Mr. Northrup’s right shoulder was x-rayed again on December 2 in preparation
for his offsite orthopedic appointment. An outside orthopedic doctor recommended
surgery the next day. Prison medical staff saw him immediately after his return from
the visit with the orthopedic doctor. They noted that his sling was in place, and it was
ordered that he receive Tylenol 3 with codeine as needed. Medical staff saw Mr.
Northrup on December 5 to assess his shoulder. The nurse noted that Mr. Northrup
wasn’t wearing his sling correctly, and instead had it “loose hanging at his side so it
was not being effective.” He was reminded on the correct way to wear the sling.
Medical staff saw Mr. Northrup on December 7, 9, and 11 to prepare for outpatient
surgery on his shoulder. Later on December 11, Mr. Northrup was seen in the urgent
care after reporting that he had passed out. He told medical staff that he had missed
a dose of Keppra the previous day. He was instructed on the importance of remaining
compliant with his medication regimen. (Id. at 31-49.)
Medical staff saw Mr. Northrup on December 16 in preparation for his
orthopedic surgery scheduled later that day. He declined the offer of an ice pack for
shoulder pain and left for the outside hospital. He returned from his offsite surgery
around 6:00 p.m. His vital signs were within normal limits. It was noted that he was
properly wearing a shoulder immobilizer, and he was given a prescription for
Naproxen and Tylenol 3 with codeine for pain. The nurse noted that he wasn’t
wearing his helmet, and he was reminded to wear the helmet at all times to prevent

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a head injury should he have a seizure. The nurse noted that Mr. Northrup said he
understood, but nevertheless removed his helmet. (Id. at 50-62.)
Mr. Northrup stayed in the infirmary for several days. On December 17, it was
noted that he was still wearing the shoulder immobilizer and using an ice pack; he
was given Tylenol and the prescription medication Toradol for pain. He was given
another dose of Toradol later that day. On December 18, he was assessed by medical
staff and then observed for the remainder of the day as he rested with his ice pack
and shoulder immobilizer. The next day, medical staff conducted an assessment of
his shoulder and gave him a prescription for an antibiotic to be taken for 10 days. (Id.
at 63-79.)
Mr. Northrup was given more medication for pain on December 19. Medical
staff reported the next day that he had “good hand grip” and that his surgical dressing
remained intact, there was little swelling, and the bruising to his arm was fading. A
nurse saw Mr. Northrup “climbing up a window sill,” later that day, apparently to
close an upper window, and wasn’t wearing his helmet. When she asked him what he
was doing and why he didn’t have his helmet on, he laughed, stepped down from the
window, and pointed to the helmet on his bedside table. She again told him to wear
the helmet, but according to the nurse, he “just keeps laughing.” (Id. at 80-97.)
Medical staff reported Mr. Northrup’s condition to be improving on December
21. Medical staff observed Mr. Northrup through the night on December 20 and into
the morning as he rested in bed. He was again given pain medication. Medical staff
assessed Mr. Northrup on the morning of December 22, and he took a shower on his
own without incident later that afternoon. Medical staff gave Mr. Northrup ice packs
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and pain medication on December 23. Staff in the infirmary continued to observe him
through the night. (Id. at 98-114.)
Another x-ray of Mr. Northrup’s right shoulder was taken on December 23 in
preparation for a scheduled follow-up appointment with his orthopedic doctor.
Medical staff noted that his surgical dressing remained intact that day. His prison
doctor ordered that he continue to use Tylenol 3 with codeine until his personal
supply was depleted. Later that evening, a nurse was called to Mr. Northrup’s bedside
because he reported having a seizure. The inmate in the bed next to Mr. Northrup
reported that he had “passed out” when he was reaching to change the channel on
the television; the nurse noted that he was alert, using clear speech, and in no
apparent distress. He wasn’t wearing his helmet. Mr. Northrup laughed when this
was pointed out to him. (Id. at 115-23.)
Medical staff gave pain medication on December 24 and continued to observe
him throughout the day. The staff noted no redness or swelling when they removed
his surgical dressing, cleaned the area, and put the shoulder immobilizer back on
later that afternoon. Medical staff gave Mr. Northrup ice packs and pain medication
on December 25. Staff noted the next day that Mr. Northrup was healing “very well.”
(Id. at 123-33.)
Mr. Northrup continued to receive treatment and monitoring of his shoulder
in the infirmary over the following week. He was observed for significant changes,
given pain medication and ice packs, and had his surgical dressing changed regularly.
Mr. Northrup went to a follow-up visit with his orthopedic doctor on January 4. Prison
medical staff reviewed the orthopedic doctor’s orders the next day. The orthopedist
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had ordered that Mr. Northrup was to remove his sling and work on range-of-motion
exercises daily, but to wear his sling at all other times. Mr. Northrup wasn’t wearing
his sling at that time, and he “became defensive” when this was pointed out to him,
but voiced an understanding of the orthopedist’s orders. Mr. Northrup was
discharged from the infirmary on the evening of January 5, and the nurse noted that
he “appears in good spirits, laughing and socializing w/ peers.” (ECF 30 at 1-83.)
Mr. Northrup had an appointment scheduled with a prison physician on
January 13, but for unknown reasons he was a no-show. A shoulder x-ray was taken
on January in preparation for his upcoming orthopedic appointment. On January 20,
Mr. Northrup visited the medical unit reporting “increased seizures.” He reported
that he had no shoulder pain while wearing his sling. Mr. Northrup’s vital signs were
found to be normal after his January 25 follow-up visit with his orthopedist. A prison
physician reviewed the orthopedist’s orders with Mr. Northrup on January 28: he was
to continue doing range-of-motion exercises daily. (Id. at 84-100.)
An emergency signal was called on February 2 after Mr. Northrup had another
seizure. He wasn’t wearing his helmet. He was awake and his vital signs were normal
by the time medical staff saw him. Medical staff saw him again on February 4 and 11
for nurse visits. On February 24, his orthopedist recommended physical therapy and
another follow-up appointment in six weeks. The orthopedist ordered that Mr.
Northrup stop wearing the sling and keep working on increasing his range of motion
with daily exercises. Mr. Northrup saw medical staff On February 25 to get clearance
to work in the prison kitchen. More x-rays were taken on March 10 in preparation for
another orthopedic follow-up appointment. Mr. Northrup was seen by medical staff
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on March 22 because he had missed eight doses of his seizure medication that month.
He had his orthopedic follow-up appointment as scheduled a few days later, and his
vital signs were checked upon his return. He was again seen by a nurse on March 29.
(Id. at 101-28.)
A physical therapist saw Mr. Northrup at the prison on April 8. Mr. Northrup
reported a pain level of 0/10 in his shoulder. The therapist gave him instructions on
range-of-motion exercises and gave him a hand-squeeze ball to use in his exercises.
A prison doctor saw Mr. Northrup on April 29 for his chronic care visit. Mr.
Northrup’s medications were renewed on May 2. On May 24, Mr. Northrup’s
orthopedist told him to continue with physical therapy and exercises. Mr. Northrup
reported a pain level of 0/10 when he next saw the physical therapist on June 2,
though he admitted to “slacking” on his range-of-motion exercises, which he
attributed mainly to “being lazy.” Mr. Northrup was given a six-month pass for his
hand-squeeze ball the next day. He had another follow-up with his orthopedist on
June 10, and an additional physical therapy session at the prison on June 17. (Id. at
128-49.)
Mr. Northrup filed this lawsuit on June 21, a day when medical staff saw him
because he had again missed eight doses of his seizure medication. He had also twice
been caught trying to “cheek” or “palm” his medications, meaning that he pretended
to take them but would hide them in his cheek or hand until he thought no one was
looking. Medical staff saw Mr. Northrup for medication management the same day,
and again on June 24 after he was caught “pocketing” his seizure medication, and
labs were ordered to be drawn. The nurses started crushing the seizure medication
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when giving it to him, but on June 26, a nurse saw him pour the crushed medication
into the garbage. Mr. Northrup again refused to take his seizure medication on June
27, 28, and 29. On one of those dates, he told the nurse that he refused to accept the
medication if it is was crushed and complained that she was denying him medication.
It was also noted that he had been seen multiple times without his helmet. Mr.
Northrup refused his seizure medication again on July 7. (ECF 30 at 157-163.)
As recounted in detail above, Mr. Northrup has received extensive treatment
and monitoring of his shoulder injury. The medical records reflect that from the date
of his injury on November 29, 2020, to his filing of the complaint on June 21, 2021,
he was seen by medical staff upwards 50 times. Among other things, he has received
pain medications, multiple x-rays, outside surgery by an orthopedist, prompt followup care, regular dressing changes, and physical therapy. He seems to think he needs
another surgery for his shoulder, but there’s no indication any medical professional
has recommended such treatment. This court must defer to the treatment decisions
of prison medical providers unless no minimally competent professional would have
responded as they did. Walker v. Wexford Health, 940 F.3d at 965. Given the
extensive treatment he has received, the court concludes that Mr. Northrup doesn’t
meet this standard.
The medical records also reflect that Mr. Northrup hasn’t always been
cooperative with medical staff or compliant with treatment recommendations.
Records show that he has skipped his seizure medication on multiple occasions, which
might have led to the seizures that caused and then exacerbated his shoulder injury.
He has also neglected to wear the helmet he was given to protect his head should he
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have a seizure. His cavalier attitude about his seizure medication and his helmet
suggests that he isn’t taking his health problems seriously. He admitted to medical
staff that he became “lazy” and didn’t do the regular range-of-motion exercises he was
told he must do to help his shoulder injury heal properly. He can’t refuse to cooperate
with prison medical staff and then blame them for providing inadequate treatment.
The Eighth Amendment doesn’t entitle an inmate to the treatment of his choosing,
nor can he be permitted to “engineer” a constitutional violation in this fashion.
Rodriguez v. Briley, 403 F.3d 952, 953 (7th Cir. 2005).
Based on the documents before the court, Mr. Northrup hasn’t shown that he
is likely to succeed on his claim that medical providers have been deliberately
indifferent to his shoulder problem. Nor has he demonstrated that he will suffer
irreparable injury if he isn’t granted immediate relief in the form of an order
requiring the Warden to immediately take him to an outside facility for surgery and
other treatment.
For these reasons, the order to show cause is DISCHARGED. The motion for a
preliminary injunction (ECF 6) is DENIED.
SO ORDERED on September 8, 2021
s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT

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