VERMILLION v. CORIZON HEALTH INC. et al

Filing 72

Entry Discussing Motion for Preliminary Injunction - Plaintiff Jay Vermillion brought this action pursuant to 42 U.S.C. § 1983 alleging that the defendants failed to treat him for his kidney stones and the pain associated with them. Vermillio n has filed a motion for a preliminary injunction and the defendants were directed to respond to that motion. For the following reasons, the motion for a preliminary injunction, dkt. 23 , is denied. For the reasons stated in this Order, Vermillion's motion for a preliminary injunction, dkt. 23 must be denied. (See Order). Signed by Judge Jane Magnus-Stinson on 7/13/2017. (APD) Modified on 7/13/2017 to correct distribution (APD).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JAY F. VERMILLION,

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)
Plaintiff,
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)
v.
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)
CORIZON HEALTH INC., DR. PAUL A. )
TALBOT, RUBY BEENY LPN,
)
)
Defendants.
)

No. 1:16-cv-01723-JMS-MPB

Entry Discussing Motion for Preliminary Injunction
Plaintiff Jay Vermillion brought this action pursuant to 42 U.S.C. § 1983 alleging that the
defendants failed to treat him for his kidney stones and the pain associated with them. Vermillion
has filed a motion for a preliminary injunction and the defendants were directed to respond to
that motion. For the following reasons, the motion for a preliminary injunction, dkt. [23], is
denied.
I. Standard
A preliminary injunction is an extraordinary equitable remedy that is available only when
the movant shows clear need. Goodman v. Ill. Dep’t of Fin. and Prof’l Regulation, 430 F.3d 432,
437 (7th Cir. 2005). A party seeking a preliminary injunction must show (1) that its case has
“some likelihood of success on the merits,” and (2) that it has “no adequate remedy at law and
will suffer irreparable harm if a preliminary injunction is denied.” Ezell v. City of Chi., 651 F.3d
684, 694 (7th Cir. 2011). If the moving party meets these threshold requirements, the district
court “weighs the factors against one another, assessing whether the balance of harms favors the
moving party or whether the harm to the nonmoving party or the public is sufficiently weighty

that the injunction should be denied.” Id. The district court’s weighing of the facts is not
mathematical in nature; rather, it is “more properly characterized as subjective and intuitive, one
which permits district courts to weigh the competing considerations and mold appropriate relief.”
Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895–96 (7th Cir. 2001) (quoting Abbott Labs. v.
Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992))
II. Facts
Vermillion’s claims in this case are based on medical care he has received for his urinary
tract problems. Vermillion alleges that he has experienced severe pain in his abdomen, blood in
his urine, and the passage of a kidney stone. He alleges that he has not received adequate
treatment for these conditions. He seeks an order directing that he be seen by an outside
urologist. 1
The Parties
During all times relevant to his Complaint, Vermillion was a 57 year-old inmate
incarcerated at the Pendleton Correctional Facility (“Pendleton”). He has a history of an enlarged
prostrate that is controlled by Flomax and Aspirin for pain.
Defendant Corizon is a medical service provider who, at all times relevant to the
Complaint, provided medical services for the Indiana Department of Correction (“IDOC”),
including Pendleton.

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Vermillion’s initial motion for a preliminary injunction also described a colonoscopy and
appeared to be based at least in part on concerns Vermillion had regarding treatment for
gastrointestinal conditions or treatment that was otherwise not related to the claims in the
complaint. Vermillion was therefore directed to clarify the basis of his request for injunctive
relief and he has done so, explaining his contention that he has not received adequate care for his
urinary tract conditions.
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Defendant Dr. Talbot is a licensed general practitioner who, at all times relevant to the
Complaint, was a physician providing medical services to inmates at Pendleton. Dr. Talbot saw
inmates as they were placed on his schedule for a variety of medical conditions, including
urinary tract infections and kidney stones.
Defendant Nurse Beeny is a licensed practical nurse who, at all times relevant to the
Complaint, was a nurse providing medical services to inmates at Pendleton. As a licensed
practical nurse, Nurse Beeny did not prescribe medication for patients. Licensed practical nurses
also did not diagnose or make treatment plans or decisions; these decisions must be made by the
doctor or nurse practitioner. A licensed practical nurse triages or assesses a patient and follows
the doctor’s orders and treatment plan.
Treatment for Vermillion’s Enlarged Prostate and Urinary Tract Issues
At the times relevant to the complaint, Vermillion was enrolled in the Chronic Care
Clinic for his history of hypertension, diabetes, hyperlipidemia and enlarged prostate. Common
symptoms of an enlarged prostate include inability to urinate, urinary tract infection, blood in the
urine, and pelvic pressure. These symptoms are similar to the symptoms caused by urinary tract
infections (“UTI”) or kidney stones. As an inmate enrolled in the Chronic Care Clinic,
Vermillion is seen by a provider every 90 days and undergoes routine testing for his chronic
conditions, including his enlarged prostate. Medical staff monitored Vermillion’s enlarged
prostate through monthly appointments and symptomatic treatment for his pain complaints. He
was routinely prescribed Flomax for urinary issues and Aspirin for associated pain.

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Vermillion’s Treatment in April 2016
On April 8, 2016, Vermillion submitted a healthcare request form complaining that “my
urine was blood red at 5:00 a.m. and by 8:00 a.m. it was dark as coffee.” Vermillion told medical
staff he had a sample to submit. That same day, Nurse Beeny examined Vermillion in nursing
sick call. Vermillion told Nurse Beeny he had been peeing blood since March 17, 2016.
Vermillion showed Nurse Beeny two Tylenol bottles full of what he claimed was his urine. This
was the first time Vermillion had notified medical staff of these complaints. He had normal vital
signs. Nurse Beeny had Vermillion provide a sterile sample and performed a urine dipstick test
to further evaluate his condition. The results were positive for white blood cells in Vermillion’s
urine, indicating a UTI. Nurse Beeny notified the staffing physician, Dr. Talbot, of the urine
dipstick results and requested orders due to Vermillion’s signs and symptoms of a UTI. Dr.
Talbot ordered additional urine and blood testing to further evaluate Vermillion’s condition.
These included a urinalysis to test for urinary issues; testing for Gonorrhea and Chlamydia; a
prostate-specific antigen (“PSA”) test for prostate function; a complete blood count (“CBC”) to
evaluate overall health including potential infection, anemia, etc.; and a comprehensive
metabolic panel (“CMP”) to investigate overall organ function and conditions such as diabetes or
liver or kidney disease. Dr. Talbot also prescribed Bactrim (an antibiotic) for the UTI.
A UTI is an infection in any part of a patient’s urinary system, kidneys, ureters, bladder
and urethra. UTIs are caused by bacteria, most commonly E. coli, that enters the urinary system.
Common symptoms of UTIs include, among other symptoms, pelvic or abdominal pain, cloudy
urine, and blood in the urine. UTIs cause inflammation and it is not uncommon for them to cause
bleeding and discolored urine. The proper treatment for a UTI is antibiotics.

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Kidney stones are caused by the crystallization of minerals, which occurs when there is
not enough urine or when levels of salt-forming crystals are present. Kidney stones may be
caused by many different things, including calcium oxalate, uric acid, cysteine, or xanthine.
Common symptoms of kidney stones include severe abdominal pain that comes in waves and
fluctuates in intensity, pain in urination, pink, red or brown blood in urine, nausea and vomiting,
persistent need to urinate, needing to urinate more frequently than usual, fever and chills, and
urination in small amounts only. The standard treatment and care for a patient passing a kidney
stone is hydration and anti-inflammatory medications, such as Advil of Aleve, to reduce
inflammation, pain, and permit the kidney stones to pass in its own course.
On April 12, 2016, the lab results from Vermillion’s urine culture revealed abnormal
levels of E. coli bacteria in his urine. E. coli is the most common form of bacteria that causes a
UTI and a level above 10,000 cfu/ml indicates a UTI. Vermillion’s urine culture revealed a
bacteria level of 50,000 to 100,000 cfu/ml, also supporting a UTI diagnosis. Vermillion’s blood
work further revealed that he did not have an acute kidney stone issue or other complication with
his kidney, liver, or prostate. Vermillion’s blood work was unremarkable, except for high
glucose (diabetes) and triglyceride (cholesterol) levels. Vermillion did not have excess chemicals
in his blood that contribute to the formation of stones, such as calcium or uric acid. Further,
Vermillion’s CBC and urinalysis did not indicate that he had an infection or excess white blood
cells, or crystals which are also indications of kidney stones. Finally, Vermillion’s PSA was
normal, revealing that he had a normal functioning prostate.
That same day, Dr. Talbot examined Vermillion in a follow-up appointment in the
Chronic Care Clinic. Vermillion’s urine had cleared up and he did not present with blood in his

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urine. Vermillion also did not complain of difficulty urinating or pain. Objectively, Dr. Talbot
determined that Vermillion’s clinical presentation and the lab results revealed a UTI that was
timely treated and had resolved. Vermillion’s enlarged prostate was mild and improving with
Flomax. Vermillion reported to Dr. Talbot that he believed he had passed a kidney stone. Dr.
Talbot told Vermillion that his testing was negative for kidney stones and he did not present with
an acute kidney stone issue. Although Dr. Talbot had seen no evidence of a kidney stone, he
advised Vermillion to return to the medical unit for further care if his symptoms re-occurred. Dr.
Talbot also re-filled Vermillion’s Aspirin and Flomax prescriptions through October 2016.
On April 14, 2016, Vermillion submitted two healthcare request forms stating that on
April 8, 2016, Nurse Beeny took a urine sample that tested positive for blood but that on April
12, 2016, Dr. Talbot told him that he could not provide treatment because Nurse Beeny failed to
preserve that evidence. Vermillion also complained that Dr. Talbot failed to provide any
treatment for his prostate/bladder and three hours later he was passing more blood and a giant
kidney stone. Medical staff responded that Vermillion’s urine dip stick results did show blood as
a result of a UTI and those results were documented. In addition, the objective testing did not
support that Vermillion had a kidney stone, such as excess chemicals of abnormal kidney, liver
or prostate levels in his blood work. Vermillion had seen Dr. Talbot for his complaints and was
diagnosed with a UTI based on his presentation and the objective data.
On June 15, 2016, repeat lab testing was performed as a routine matter of course for
Vermillion’s chronic condition. The urinalysis was normal with no bacteria or leukocyte,
indicating that Vermillion’s UTI resolved completely and Vermillion had no other urological
issues.

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Dr. Jeremy Fisk, a Board Certified Family Practice physician with experience treating
patients with urinary tract infections and kidney stones, reviewed Vermillion’s medical records
and opined that, while Vermillion had some symptoms that he could misconstrue with a kidney
stone, the combination of his symptoms and laboratory findings were highly consistent with a
UTI. He also opined that Vermillion was appropriately evaluated, correctly diagnosed with a
UTI, and treated appropriately and in a timely fashion by medical staff during his incarceration.
Vermillion’s Recent Care
On June 20, 2016, Vermillion again experienced abdominal pain and submitted a health
care request form. On June 26, 2016, Vermillion requested to see a provider for his prostate
problems. Nursing staff examined him and he was stable with normal vital signs. He reported
pelvic pressure and believed his prostate was swollen again. Vermillion did not have pain or
burning with urination on Flomax. A urine dip stick test was negative. On June 28, 2016, Dr.
Talbot examined Vermillion for his complaints and noted that his enlarged prostate condition
was improving and well-controlled on Flomax. Vermillion reported suprapubic pain that was
relieved upon urination or bowel movements. Dr. Talbot’s examination revealed a normal
bladder and no tenderness to Vermillion’s abdomen or pelvic area. Dr. Talbot ordered additional
lab testing and continued Vermillion’s Flomax and Aspirin prescriptions.
On August 19, 2016, Dr. Talbot examined Vermillion after he complained of bloody
stool. Vermillion first reported that he occasionally saw blood in his stool, but then corrected
himself and reported that the last time he saw blood in his stool was after his 2011 colonoscopy.
His prior colonoscopy revealed a history of polyps. He denied external hemorrhoids. Dr. Talbot’s

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physical exam was normal and he diagnosed Vermillion with potential internal hemorrhoids and
ordered further testing.
On October 24, 2016, Vermillion was seen in a Chronic Care Clinic appointment and
reported that his enlarged prostate was improving. Vermillion stated that he was able to start and
stop his stream. His physical exam was normal and he had no complaints. The medical provider
ordered Vermillion to continue on his current medications. The medical provider also ordered an
off-site consult for a follow-up colonoscopy.
On December 13, 2016, Vermillion went off-site for a colonoscopy with a specialist. The
colonoscopy revealed polyps and hemorrhoids that were excised during the procedure. The
colonoscopy results did not reveal cancer or pre-cancerous lesions. The specialist performing the
colonoscopy, Dr. Nisi, ordered a repeat colonoscopy in five years. No further care was
recommended.
On January 26, 2017, Dr. Talbot saw Vermillion in a Chronic Care Clinic visit.
Vermillion reported for the first time that his Flomax had not worked for more than year. Dr.
Talbot noted that Vermillion’s reporting conflicted his prior statement to providers that Flomax
controlled his urination. Dr. Talbot counseled Vermillion about his colonoscopy results and
hemorrhoid/polyp removal. Dr. Talbot ordered further testing to evaluate Vermillion’s condition,
which were again negative for kidney, bladder, or prostate issues.
III. Discussion
As previously mentioned succeed in obtaining preliminary injunctive relief, Vermillion
must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable
harm if preliminary relief is not granted, that the balance of equities tips in his favor, and that it

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is in the public interest to issue an injunction. United States v. NCR Corp., 688 F.3d 833, 837
(7th Cir. 2012). 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). The movant bears the burden of proving his
entitlement to such relief. Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).
A. Likelihood of Success on the Merits
The defendants argue that Vermillion has not shown that he is reasonably likely to
succeed on the merits of his claim. The underlying claim in this action is that the defendants have
exhibited deliberate indifference in violation of the Eighth Amendment to his urinary tract issues.
Specifically, Vermillion alleges that in the Spring of 2016, he experienced pelvic pain, blood in
his urine, and a kidney stone. To prevail on his Eighth Amendment deliberate indifference
medical claim, Vermillion must demonstrate two elements: (1) he suffered from an objectively
serious medical condition; and (2) the defendant knew about his condition and the substantial
risk of harm it posed, but disregarded that risk. Farmer v. Brennan, 511 U.S. 825, 8374 (1994);
Pittman ex rel. Hamilton v. County of Madison, Ill., 746 F.3d 766, 775 (7th Cir. 2014); Arnett v.
Webster, 658 F.3d 742, 750-51 (7th Cir. 2011). The individual defendants and Corizon each
argue that Vermillion does not have a reasonable likelihood of success on the merits of these
claims. For the reasons discussed below, the Court agrees.
1. Claims against the Individual Defendants
The defendants do not argue that Vermillion did not suffer from an objectively serious
medical condition, but they do argue that there is no evidence that they were deliberately
indifferent to it. “[C]onduct is ‘deliberately indifferent’ when the official has acted in an
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intentional or criminally reckless 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. Freeman, 394 F.3d 469, 478 (7th
Cir. 2005) (quoting Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998)). “To 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 v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). See
Plummer v. Wexford Health Sources, Inc., 609 Fed. Appx. 861, 2015 WL 4461297, *2 (7th Cir.
2015) (holding that defendant doctors were not deliberately indifferent because there was “no
evidence suggesting that the defendants failed to exercise medical judgment or responded
inappropriately to [the plaintiff’s] ailments”). In addition, the Seventh Circuit has explained that
“[a] medical professional is entitled to deference in treatment decisions unless no minimally
competent professional would have [recommended the same] under those circumstances.” Pyles
v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014).
The defendants argue that Vermillion cannot show that they were deliberately indifferent
to his need for medical care because he experienced a common UTI that was treated
appropriately. The evidence here is that Nurse Beeny responded to Vermilion’s complaints and
performed a physical examination and urine test. She determined that Vermillion’s symptoms
and test results indicated a UTI. Nurse Beeny then contacted Dr. Talbot for orders. Dr. Talbot
ordered urine and blood work to rule out other conditions and antibiotic medication to treat the
UTI. To the extent that Vermillion asserts that he suffered from a kidney stone, Dr. Fisk has
opined that he was appropriately diagnosed with and treated for a UTI. Vermillion’s

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disagreement with this conclusion is not enough to show deliberate indifference. See Pyles, 771
F.3d at 409. Further, the evidence presently before the Court also shows that Vermillion has
continued to receive care for his chronic and acute conditions. He receives medication for his
enlarged prostate and had received further testing which has indicated no ongoing issues.
2. Claims against Corizon
The defendants also argue that Vermillion does not a have a reasonable likelihood of
success on the merits on his claim that Corizon had a policy which resulted in the alleged
deliberate indifference to his medical needs. Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978), stands for the proposition that municipalities are not vicariously
liable for the constitutional violations of their employees under § 1983 unless those acts were
carried out pursuant to an official custom or policy. Id. at 694. Private corporations acting under
color of state law are treated as municipalities for purposes of § 1983. Jackson v. Ill. Medi-Car,
Inc., 300 F.3d 760, 766 n. 6 (7th Cir. 2002). To succeed on a Monell claim, a plaintiff must show
that the municipal policy or custom was the “direct cause” or “moving force” behind the
constitutional violation. Monell, 436 U.S. at 694; Grieveson v. Anderson, 538 F.3d 763, 771 (7th
Cir. 2008). The Court has already concluded that Vermillion has failed to show a reasonable
likelihood of the success on the merits of his claims against the individual defendants. For this
reason alone, Vermillion has no reasonable likelihood of success on his Monell claim against
Corizon. Further, Vermillion has presented no evidence, outside of his own conclusions, that the
alleged wrongful acts of the individual defendants were the result of a Corizon policy. 2

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The Court also notes that Corizon is no longer the contracted health care provider for the
IDOC.
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B. Irreparable Harm, Balance of Harms, and Public Interest
The defendants further argue that Vermillion has not shown that he will experience
irreparable harm if his requested injunctive relief is not granted, that the balance of harms weighs
in his favor, or that the requested relief would be in the public interest. “Irreparable harm is harm
which cannot be repaired, retrieved, put down again, atoned for.... [T]he injury must be of a
particular nature, so that compensation in money cannot atone for it.” Graham v. Med. Mut. of
Ohio, 130 F.3d 293, 296 (7th Cir. 1997). While Vermillion describes his condition as “lifethreatening” he has come forward with no evidence to support this conclusion. There is thus no
evidence that Vermillion will experience an injury that cannot be repaired. The record shows that
Vermillion has been given, and continues to receive, adequate care for his urinary and pain
complaints, including examinations, testing, and medication. For the same reason, he has not
established that the balance of the equities favors him. Finally, Vermillion also has not shown
that the relief he seeks would serve the public interest. Courts have held that prison
administrators “must be accorded wide-ranging deference in the . . . execution of policies and
practices that in their judgment are needed to preserve internal order and discipline and to
maintain institutional security.” Pardo v. Hosier, 946 F.2d 1278, 1280-81 (7th Cir. 1991)
(internal quotations omitted).
IV. Conclusion
For the foregoing reasons, Vermillion’s motion for a preliminary injunction, dkt. [23]
must be denied.
IT IS SO ORDERED.

Date: 7/13/2017

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Distribution:
JAY F. VERMILLION
973683
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
Jeb Adam Crandall
BLEEKE DILLON CRANDALL ATTORNEYS
[e-mail]
Adriana Katzen
BLEEKE DILLON CRANDALL, PC
[e-mail]

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