TAYLOR v. VAISVILAS et al

Filing 93

ORDER - The Court DENIES Taylor's motion for evidentiary hearing, [dkt. 80 ], because there are no material facts in dispute. To the extent he requests the Court to appoint him a medical expert, [id. at 5], that request is also DENIED, see Brown v. United States, 74 F. App'x 611, 614-15 (7th Cir. 2003) (holding that "no civil litigant, even an indigent one, has a legal right to [a courtappointed medical expert]"). The Court GRANTS the Defendants' motion f or summary judgment on Taylor's Eighth Amendment claim. [Dkt. 68 .] In light of that decision, Taylor's motion for preliminary injunction, [dkt. 82 ], and emergency motion for a ruling on the motion for preliminary injunction, [dkt . 91 ], are DENIED AS MOOT. To the extent Taylor asserts any state law claims against any of the Defendants, the Court relinquishes supplemental jurisdiction over them pursuant to 28 U.S.C. § 1367(c)(3). Judgment shall issue accordingly . The Clerk is directed to enclose a copy of the docket sheet for this matter when this entry is mailed to Taylor, pursuant to his request. [Dkt. 92 .]. Signed by Judge Jane Magnus-Stinson on 8/30/2013. (copies to Plaintiff via US Mail as directed) (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOSEPH TAYLOR,
Plaintiff,
v.
CORIZON MEDICAL SERVICES, et al.,
Defendants.

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1:11-cv-1436-JMS-DKL

ORDER ON PENDING MOTIONS
Presently pending before the Court are multiple motions, including Defendants Corizon
Medical Services (“Corizon”), Pharmacorr, and Dr. William Wolfe’s Motion for Summary
Judgment. [Dkt. 68.] Pro se plaintiff Joseph Taylor, an inmate at the Pendleton Correctional
Facility (“Pendleton”), alleges in his operative complaint that the Defendants have violated 42
U.S.C. § 1983 and his Eighth Amendment right to be free from cruel and unusual punishment
through the denial of adequate medical care under the United States Constitution. [Dkt. 53.]
I.
SUMMARY JUDGMENT STANDARD
A motion for summary judgment asks the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes
clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must
support the asserted fact by citing to particular parts of the record, including depositions,
documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by
showing that the materials cited do not establish the absence or presence of a genuine dispute or
that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P.

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56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant is competent to testify on matters
stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant’s
factual assertion can result in the movant’s fact being considered undisputed, and potentially in
the grant of summary judgment. Fed. R. Civ. P. 56(e).
On summary judgment, a party must show the Court what evidence it has that would
convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325
F.3d 892, 901 (7th Cir. 2003).

The moving party is entitled to summary judgment if no

reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570
F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the nonmoving party and draws all reasonable inferences in that party’s favor. Darst v. Interstate
Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility
determinations on summary judgment because those tasks are left to the fact-finder. O’Leary v.
Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the
cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has
“repeatedly assured the district courts that they are not required to scour every inch of the record
for evidence that is potentially relevant to the summary judgment motion before them,” Johnson,
325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the
moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).
Because Taylor is proceeding pro se, he was notified of the nature of the Defendants’
motion for summary judgment, of the proper manner in which to respond, and of the
consequences of failing to respond properly. [Dkt. 69.] Taylor opposes the motion for summary
judgment, and filed an affidavit in support of his position. [Dkt. 73-1.] Taylor subsequently

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moved for a preliminary injunction, [dkt. 82], and filed a supplemental affidavit in support of
that request and his opposition to the summary judgment motion, [dkt. 89]. The Court will not
consider any portions of the affidavits that rest on hearsay or deal with matters not relevant to the
claim on which this action has proceeded. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009)
(emphasizing that the Court “may consider only admissible evidence in assessing a motion for
summary judgment”).
II.
BACKGROUND
The material facts are primarily undisputed, except as noted. Corizon contracts with the
Indiana Department of Correction (“IDOC”) to provide medical care to prisoners in Indiana.
[Dkt. 71-2 at 1.] For example, Corizon’s Regional Medical Director, Dr. Michael Mitcheff,
D.O., “hire[s] facility physicians, review[s] requests for non-formulary medications, review[s]
requests for outside consultations, and make[s] alternative treatment suggestions, if appropriate,
among other things.” [Id.] Pharmacorr is a pharmacy that supplies medications ordered by
providers within the IDOC. [Id.] Pharmacorr does not administer medical care, does not make
medical decisions, and has no control or involvement in the decision as to which medications an
inmate may receive. [Id. at 2.]
Taylor has been incarcerated in various Indiana facilities since 1990. [Dkt. 73-1 at 1.]
He is forty-nine-years old, [dkt. 73-1 at 1], and currently incarcerated at Pendleton, [dkts. 73-1 at
1; 20 at 2]. The parties dispute whether Taylor suffers from chronic irritable bowel syndrome
(“IBS”), but making all reasonable inferences in Taylor’s favor as this Court is required to do on
summary judgment, the Court will assume that Taylor does, in fact, suffer from IBS. [Dkt. 73-1
at 1.] Even with that diagnosis, the primary symptom of Taylor’s IBS is ongoing, chronic

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constipation, which he has experienced for the twenty-three years that he has been incarcerated.
[Id. at 3.]
Taylor has taken medications such as Fiber-Lax and Psyllium packets for years, [id.], and
maintains that Psyllium is the most effective in relieving his chronic constipation, [dkt. 89 at 5].
Taylor contends that non-natural laxatives such as Bisacodyn and Docusate compound his
condition and are not as effective. [Dkt. 73-1 at 3-4.]
Dr. Wolfe typically prescribed Taylor Fiber-Lax for his constipation. [Dkt. 71-1 at 2.]
He contends that although he did not believe the medication was necessary since he did not
believe Taylor’s constipation was a serious medical condition, Taylor “has an inflated belief as
to the seriousness of his constipation” and Dr. Wolfe “re-ordered the medications in an effort to
appease Mr. Taylor.” [Id.]
In June 2011, Fiber-Lax was removed from the IDOC formulary list of medications. [Id.]
Inmates could still receive medications that are not on the formulary list if the medication was
medically indicated for the inmate’s condition; however, Dr. Wolfe did not believe that the longterm use of fiber or laxatives was medically indicated for Taylor. [Id.] Accordingly, in July
2011 Dr. Wolfe stopped prescribing Fiber-Lax to Taylor. [Id.] Taylor’s bowel movements went
from once daily to once per week after Dr. Wolfe stopped prescribing the medication. [Dkt. 73-1
at 4.]
Taylor contends that Dr. Wolfe reordered Fiber-Lax for him on certain occasions after it
was removed from the formulary list, but that Dr. Wolfe told him the request was denied by
Corizon’s Regional Medical Director. [Dkt. 73-1 at 5.] Taylor further contends that nurse
practitioners such as Janie Waldstein have continued to prescribe him Psyllium on certain

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occasions, including as recently as March 2013, [dkt. 80 at 3], but that Dr. Wolfe has interfered
with that course of treatment, [dkt. 89 at 4].
Natural fiber powder can be purchased from Pendleton’s commissary for $6.25. [Dkts.
71-3 at 1; 84-1 at 2.] Taylor is aware of the available fiber supplement and alleges that the
Defendants encouraged him to buy it himself. [Dkt. 53 at 14.] Dr. Wolfe attests that the
commissary’s natural fiber powder available is equivalent to what Taylor had been receiving
from Dr. Wolfe, [dkt. 81-4 at 2], which Taylor does not dispute, [see dkt. 87 at 3-4, wherein
Taylor states: “If Dr. Wolfe chooses to himself purchase the $6.25 bottle of ‘fiber substitute’ off
of the inmate commissary, and then issue the same as a prescription to Taylor’s chronic IBS,
Taylor would of course not refuse any such prescribed course of treatment.” (emphases deleted)].
Taylor contends that he is unable to afford the fiber supplement available in the
commissary. [Dkt. 87 at 4.] Taylor’s Pack Lists reveal his purchases at the prison commissary.
[Dkt. 71-3 at 1.] After Fiber-Lax was removed from the IDOC formulary list, Taylor purchased
numerous items from the commissary including peanut butter, ramen noodles, oatmeal cream
pies, coffee, deodorant, and lip balm. [See, e.g., dkt. 71-3 at 12 (August 2011 list spending
$30.50), 13 (September 2011 list spending $52.88), 14 (March 2012 list spending $36.15).]
Those spending habits have continued during this litigation. [Dkt. 84-1 at 4 (March 2013 list
spending $27.81 on items including oatmeal cream pies, strawberry preserves, toothpaste, and
lotion), 5 (April 2013 list spending $19.60 on oatmeal cream pies and strawberry preserves).]
Defendants have moved for summary judgment on Taylor’s federal claim. [Dkt. 68.] As
part of his response, Taylor has moved for a preliminary injunction, asking the Court to require
the Defendants to provide him with Psyllium packets, Fiber-Lax, or an equivalent natural
alternative. [Dkt. 82 at 5.]

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III.
DISCUSSION
A. Applicable Law
Taylor asserts his Eighth Amendment claim pursuant to 42 U.S.C. § 1983, which
“provides a federal cause of action against any person who, acting under color of state law,
deprives another of his federal rights.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). “[T]he first
step in any [§ 1983] claim is to identify the specific constitutional right infringed.” Albright v.
Oliver, 510 U.S. 266, 271 (1994); see also Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005)
(“[C]onstitutional claims must be addressed under the most applicable provision.”).
The treatment and the conditions of a prisoner’s confinement are evaluated under
standards established by the Eighth Amendment’s proscription against the imposition of cruel
and unusual punishments. Helling v. McKinney, 509 U.S. 25, 31 (1993) (“It is undisputed that
the treatment a prisoner receives in prison and the conditions under which he is confined are
subject to scrutiny under the Eighth Amendment.”). Pursuant to the Eighth Amendment, prison
officials have a duty to provide humane conditions of confinement, meaning that they must take
reasonable measures to guarantee the safety of the inmates and ensure that they receive adequate
food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To
establish a medical claim that a prison official has violated the Eighth Amendment, a plaintiff
must demonstrate two elements: (1) an objectively serious medical condition; and (2) deliberate
indifference by the prison officials to that condition. Johnson v. Snyder, 444 F.3d 579, 584 (7th
Cir. 2006).

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As to the first element, “[a]n objectively serious medical need is one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” King v. Kramer, 680 F.3d 1013,
1018 (7th Cir. 2012) (internal quotation omitted).
As to the second element, “[t]o show deliberate indifference, the plaintiff must
demonstrate that the defendant was actually aware of a serious medical need but then was
deliberately indifferent to it.” Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). “A
medical professional’s deliberate indifference may be inferred when the medical professional’s
decision is such a substantial departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible did not base the decision on such a
judgment.” King, 680 F.3d at 1018-19 (internal quotation omitted). “Deliberate indifference is
more than negligence and approaches intentional wrongdoing.”

Johnson, 444 F.3d at 585

(internal quotation omitted). “[D]eliberate indifference is essentially a criminal recklessness
standard, that is, ignoring a known risk.”

Id. (internal quotation omitted).

negligence is below the standard needed to impose constitutional liability.”

“Even gross
Id. (internal

quotation omitted). The Eighth Amendment does not, however, provide a right to “demand
specific care” or “the best care possible.” Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011).
B. Taylor’s Ability to Pay
The parties primarily focus on whether Taylor’s constipation is a serious medical
condition and, if it is, whether Dr. Wolfe was deliberately indifferent to that condition. After
arguing the merits of those issues, the Defendants also contend that Taylor’s commissary records
reveal that he has the financial means to purchase fiber powder available at the commissary,
should he choose to do so. [Dkt. 70 at 15-16.]

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Taylor concedes that the fiber supplement available at the commissary would be
sufficient to relieve the constipation of which he complains. [See dkt. 87 at 3-4 (“If Dr. Wolfe
chooses to himself purchase the $6.25 bottle of ‘fiber substitute’ off of the inmate commissary,
and then issue the same as a prescription to Taylor’s chronic IBS, Taylor would of course not
refuse any such prescribed course of treatment.”) (emphases deleted)]. He contends, however,
that he is unable to afford the available fiber supplement. [Dkt. 87 at 4.]
Mr. Taylor provides no evidence supporting his contention that he cannot afford the
available fiber supplement and, in fact, his commissary purchases show otherwise. After FiberLax was removed from the IDOC formulary list, Taylor continued to purchase numerous items
from the commissary including peanut butter, ramen noodles, oatmeal cream pies, coffee,
deodorant, and lip balm. [See, e.g., dkt. 71-3 at 12 (August 2011 list spending $30.50), 13
(September 2011 list spending $52.88), 14 (March 2012 list spending $36.15).] Those spending
habits have continued during this litigation. [Dkt. 84-1 at 4 (March 2013 list spending $27.81 on
items including oatmeal cream pies, strawberry preserves, toothpaste, and lotion), 5 (April 2013
list spending $19.60 on oatmeal cream pies and strawberry preserves).]

In light of this

undisputed evidence, the Court finds that there is no issue of material fact regarding Taylor’s
ability to pay for the $6.25 fiber supplement available at the commissary.
C. Whether Defendants Can Require Taylor to Pay
The real question this litigation presents is whether the Defendants can require Taylor to
purchase the medical remedy he seeks instead of providing it to him at no cost.
The Eighth Amendment does not provide a right to “demand specific care” or “the best
care possible.” Arnett, 658 F.3d at 754. The Seventh Circuit Court of Appeals has held that it is
“now well established” that “the Eighth Amendment does not compel prison administrators to

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provide cost-free medical services to inmates who are able to contribute to the cost of their care.”
Poole v. Isaacs, 703 F.3d 1024, 1026 (7th Cir. 2012). An inmate who “opt[s] to refuse treatment
rather than part with his money” cannot prevail on an Eighth Amendment claim because “[e]ven
though he was in pain until he received treatment, the delay in receiving care was of his own
making.” Id. at 1027 (affirming grant of summary judgment in favor of the defendant on
inmate’s claim that required $2.00 co-payment for dental care violated Eighth Amendment).
Both district courts in Indiana have echoed the Seventh Circuit’s holding in Poole in the
context of prescribed over-the-counter medications available for purchase at the prison
commissary. Specifically, they have held that “[n]othing in the Eighth Amendment, which
prohibits certain punishment, requires a state to provide an inmate, free of charge, with a
necessary commodity that would not be free outside the prison walls and which the inmate has
the legal means to obtain.” Martin v. DeBruyn, 880 F. Supp. 610, 614 (N.D. Ind. 1995); see also
Hudgins v. DeBruyn, 922 F. Supp. 144, 150 (S.D. Ind. 1996) (Tinder, J.) (agreeing with
conclusion from Martin). Insisting that an inmate with sufficient funds use those funds to pay
for medical care, even for serious medical needs, “is neither deliberate indifference nor
punishment.” Martin, 880 F. Supp. at 615. Therefore, “‘a prison official violates the Eighth
Amendment by refusing to provide prescribed OTC medicine for a serious medical need only if
the inmate lacks sufficient resources to pay for the medicine. If the inmate can afford the
medicine but chooses to apply his resources elsewhere, it is the inmate, and not the prison
official, who is indifferent to serious medical needs.’” Hudgins, 922 F. Supp. at 150 (quoting
Martin, 880 F. Supp. at 615)).
Based on the cited case law, the Court concludes that the Defendants did not violate
Taylor’s Eighth Amendment rights by refusing to prescribe the desired fiber supplement because

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the undisputed evidence shows that Taylor had the financial means to obtain an adequate fiber
supplement at the prison commissary. The parties primarily dispute whether Taylor’s IBS and
resulting constipation are a serious medical need, but even assuming that they are does not
change the Court’s conclusion. Hudgins, 922 F. Supp. at 150 (quoting Martin, 880 F. Supp. at
615) (holding “a prison official violates the Eighth Amendment by refusing to provide prescribed
OTC medicine for a serious medical need only if the inmates lacks sufficient resources to pay for
the medicine.”) (emphasis added)). Any delay Taylor experienced in receiving medical care
because he did not purchase the available fiber supplement with his sufficient commissary funds
“was of his own making.” Poole, 703 F.3d at 1027. For these reasons, the Court concludes that
the Defendants are entitled to summary judgment on Taylor’s Eighth Amendment claim.1
D. Remaining State Law Claims
In light of the Court’s conclusion that the Defendants are entitled to summary judgment
on Taylor’s Eighth Amendment claim, no federal claims remain in this litigation. It is unclear
whether Taylor’s Amended Complaint raises Indiana state law claims. [Dkt. 53.] Out of an
abundance of caution because Taylor may be alleging that the Defendants violated various
provisions of the Indiana Constitution, [see, e.g., id. at 12, 18], the Court will analyze whether to
continue exercising supplemental jurisdiction over any state claims that Taylor asserts.
The district court ultimately has discretion whether to exercise supplemental jurisdiction
over a plaintiff’s state law claims. Carlsbad Tech., Inc. v. HIF BIO, Inc., 129 S. Ct. 1862, 1866
(2009); 28 U.S.C. § 1367(c) (“The district courts may decline to exercise supplemental
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In addition to the foregoing, the federal claims against Corizon and Pharmacorr are deficient
because there is nothing in the evidentiary record to suggest that these entities have a custom or
policy of denying inmates adequate medical care under the Eighth Amendment. Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009). Moreover, the parties apparently
agree that Pharmacorr lacks the necessary personal involvement to be liable under § 1983. [Dkt.
78 at 6.] Thus, the federal claims against Corizon and Pharmacorr cannot survive.

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jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has
original jurisdiction . . . .”). When deciding whether to exercise supplemental jurisdiction, “‘a
federal court should consider and weigh in each case, and at every stage of the litigation, the
values of judicial economy, convenience, fairness, and comity.’” City of Chicago v. Int’l Coll. of
Surgeons, 522 U.S. 156, 173, (1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 n.7 (1988)). It is well-established that the usual practice is to dismiss the state supplemental
claims without prejudice. Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999).
Here, the relevant principles weigh in favor of the Court relinquishing supplemental
jurisdiction over any state law claims Taylor is making. The parties have not developed any
arguments regarding those claims; thus, the Court has not engaged on them and judicial economy
would not be served by keeping them here. Moreover, to the extent Taylor cites the Indiana
Constitution as the basis for his potential state law claims, [dkt. 53 at 12, 18], comity favors an
Indiana state court deciding those constitutional claims. Finally, the Court finds no fairness or
convenience concerns that weigh in favor of this Court retaining supplemental jurisdiction.
For these reasons, the Court, in its discretion, relinquishes supplemental jurisdiction over
any state law claims Taylor asserts, 28 U.S.C. § 1367(c)(3); Thurman v. Village of Homewood,
446 F.3d 682, 687 (7th Cir. 2006) (acknowledging district court’s discretion to decline
jurisdiction over state law claims where all federal claims have been resolved). Therefore, this
action will be remanded to the state court from which it was removed for resolution of any state
law claims Taylor asserts.

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IV.
CONCLUSION
The Court DENIES Taylor’s motion for evidentiary hearing, [dkt. 80], because there are
no material facts in dispute. To the extent he requests the Court to appoint him a medical expert,
[id. at 5], that request is also DENIED, see Brown v. United States, 74 F. App’x 611, 614-15
(7th Cir. 2003) (holding that “no civil litigant, even an indigent one, has a legal right to [a courtappointed medical expert]”).

The Court GRANTS the Defendants’ motion for summary

judgment on Taylor’s Eighth Amendment claim. [Dkt. 68.] In light of that decision, Taylor’s
motion for preliminary injunction, [dkt. 82], and emergency motion for a ruling on the motion
for preliminary injunction, [dkt. 91], are DENIED AS MOOT. To the extent Taylor asserts any
state law claims against any of the Defendants, the Court relinquishes supplemental jurisdiction
over them pursuant to 28 U.S.C. § 1367(c)(3). Judgment shall issue accordingly. The Clerk is
directed to enclose a copy of the docket sheet for this matter when this entry is mailed to Taylor,
pursuant to his request. [Dkt. 92.]
08/30/2013
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
Joseph A. Taylor
DOC # 905002
Pendleton Correctional Facility
Inmate Mail/Parcels
4490 West Reformatory Road
Pendleton, IN 46064
All Electronically Registered Counsel

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