ROBERSON v. TALBOT et al

Filing 95

ORDER Granting Defendants Motions for Summary Judgment and Directing Entry of Final Judgment - A prison inmate is entitled to adequate medical care, Farmer, 511 U.S. at 832, and that is what Mr. Roberson received. An inmate cannot demand specific care and is not entitled to the best care possible. Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006); Boyce v. Moore, 314 F.3d 884, 888-89 (7th Cir. 2004); Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999). The undisputed summary jud gment evidence demonstrates that the defendants were not deliberately indifferent to Mr. Robersons serious medical needs. The defendants motions for summary judgment, dkt. 80 and dkt. 83 , are granted. Final judgment consistent with this Order shall now enter. This action is dismissed with prejudice (SEE ORDER FOR ADDITIONAL INFORMATION). Signed by Judge James Patrick Hanlon on 5/14/2020. Copies distributed pursuant to distribution list. (DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PAUL ROBERSON,

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Plaintiff,
v.
DR. PAUL TALBOT;
WEXFORD of INDIANA, LLC; and
CORIZON MEDICAL SERVICES,
Defendants.

No. 1:17-cv-04110-JPH-DML

Order Granting Defendants’ Motions for Summary Judgment
and Directing Entry of Final Judgment
Pending before the Court are the motions for summary judgment of defendants Dr. Paul
Talbot and Wexford Health Sources (called Wexford of Indiana in the complaint), dkt. 80, and
defendants Corizon Medical Services and Dr. Talbot, dkt. 83. At all times relevant to this lawsuit,
Dr. Talbot was employed first by Corizon and thereafter by Wexford to provide medical services
at the Pendleton Correctional Facility (PCF) in Indiana. The Court recruited pro bono counsel for
Mr. Roberson, who filed a single response applicable to both motions. Dkt. 91. The defendants
filed separate replies and the motions are ready for decision. For the reasons explained in this
Order, both motions, dkt. [80] and dkt. [83] are granted.
I. Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The movant bears the initial responsibility of informing the district court of the basis of
its motion and identifying those portions of designated evidence that demonstrate the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After “a
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properly supported motion for summary judgment is made, the adverse party must set forth specific
facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986) (quotation marks and citation omitted).
A factual issue is material only if resolving the factual issue might change the outcome of
the case under the governing law. See Stokes v. Bd. of Educ., 599 F.3d 617, 619 (7th Cir. 2010)
(citing Anderson, 477 U.S. at 248). A factual issue is genuine only if there is sufficient evidence
for a reasonable jury to return a verdict in favor of the non-moving party on the evidence presented.
See Anderson, 477 U.S. at 248. In deciding a motion for summary judgment, the Court “may not
‘assess the credibility of witnesses, choose between competing reasonable inferences, or balance
the relative weight of conflicting evidence.’” Stokes, 599 F.3d at 619.
Instead, the Court accepts as true the evidence presented by the non-moving party, and all
reasonable inferences must be drawn in the non-movant’s favor. Whitaker v. Wis. Dep’t of Health
Servs., 849 F.3d 681, 683 (7th Cir. 2017) (“We accept as true the evidence offered by the nonmoving party, and we draw all reasonable inferences in that party’s favor.”). “When a motion for
summary judgment is properly made and supported, an opposing party may not rely merely on
allegations or denials in its own pleading; rather, its response must – by affidavits or as otherwise
provided in this rule – set out specific facts showing a genuine issue for trial. If the opposing party
does not so respond, summary judgment should, if appropriate, be entered against that party.” Fed.
R. Civ. P. 56(e)(2).
“As the ‘put up or shut up’ moment in a lawsuit, summary judgment requires a non-moving
party to respond to the moving party’s properly-supported motion by identifying specific,
admissible evidence showing that there is a genuine dispute of material fact for trial.” Grant v. Tr.
of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017) (internal quotations omitted). “Such a dispute

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exists when there is sufficient evidence favoring the non-moving party to permit a trier of fact to
make a finding in the non-moving party’s favor as to any issue for which it bears the burden of
proof.” Id. (citing Packer v. Tr. of Ind. Univ. Sch. of Med., 800 F.3d 843, 847 (7th Cir. 2015)). The
non-moving party bears the burden of specifically identifying the relevant evidence of record, and
“courts are not required to scour the record looking for factual disputes.” D.Z. v. Buell, 796 F.3d
749, 756 (7th Cir. 2015).
Finally, a plaintiff opposing summary judgment may not inject “new and drastic factual
allegations,” but instead must adhere to the complaint’s “fundamental factual allegation[s].”
Whitaker v. Milwaukee Cnty., 772 F.3d 802, 808 (7th Cir. 2014).
II. Facts
Consistent with S.D. Ind. L.R. 56-1(e), the material facts asserted by the defendants are
supported by designated evidence, that is, "citation to a discovery response, a deposition, an
affidavit, or other admissible evidence.” Most of what's identified by the plaintiff as contested
issues of material fact, in contrast, are not supported by citation to designated evidence. See, e.g.,
Dkt. 91 at p. 2 (asserting that Dr. Talbot altered medical records). Accordingly, except where
specifically noted otherwise, the Court accepts the statements of undisputed material facts asserted
by the defendants. The facts are still, of course, viewed in the light most favorable to Mr. Roberson
as the non-moving party. Whitaker, 849 F.3d at 683.
Background
At all times relevant to the complaint, Mr. Roberson was an inmate at PCF. He has been
incarcerated by IDOC since 2011. Corizon was, and Wexford is, the employer of Dr. Talbot. These
companies have contracts with the State of Indiana to provide health services to the inmates at
PCF. Dr. Talbot provided health services to the PCF inmates. This action, commenced on

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November 6, 2017, is proceeding on Mr. Talbot’s January 8, 2018, Amended Complaint, dkt. 12-1,
as screened on January 10, 2018. Dkt. 13.
Mr. Roberson's medical conditions and allegations of deliberate indifference
Mr. Roberson alleges that Dr. Talbot has been deliberately indifferent to Mr. Roberson’s
numerous medical conditions that include atrial fibrillation (“a-fib”), prostate and bladder issues,
constipation, allergies, and eczema, and by denying him eye surgery, access to a cardiologist, and
treatment from an outside gastroenterologist. Dkt. 82-1 (Roberson deposition) at pp. 20-22, 52.
At his deposition, Mr. Roberson testified that his a-fib started in 2015, and he thereafter
saw a cardiologist multiple times and received medication for the condition. Id. at p. 28.
Mr. Roberson also testified that he has not had an a-fib episode that required immediate medical
attention since 2015. Id. at p. 29. He also testified that in 2016 he saw an ear, nose, and throat
specialist who recommended a proton pump inhibitor as treatment. Id. at p. 33.
Mr. Roberson also testified that he did not know what caused his frequency of urination or
urine leakage, but agreed that as reflected on his medical records, he had not brought these issues
to Dr. Talbot’s attention in several years . Id. at pp. 41-43.
Mr. Roberson testified in his deposition that in addition to seeing a cardiologist several
times, he has also seen a gastroenterologist and an ENT, received multiple EKGs, had an
endoscopy, and received numerous medications. Id. at p. 52.
Mr. Roberson’s only evidence to support his claims against Wexford is pointing to
Dr. Talbot’s “track record.” Id. at p. 60. Mr. Roberson could not provide an example of something
Dr. Talbot did or did not do that could support the “track record” allegation. Id.
Wexford and Dr. Talbot have submitted the affidavits of Dr. Kirk Parr and Dr. John Unison,
who have opined that Dr. Talbot provided appropriate care and treatment to Mr. Roberson.

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Dkt. 82-2; dkt. 83-3. However, neither affiant has ever treated or examined Mr. Roberson.
Dkt. 90-1.
Other facts will be cited and discussed as necessary below.
III. Discussion
A.

Corizon and Wexford

Mr. Roberson contends that Corizon and Wexford violated his Eighth Amendment rights
when they hired Dr. Talbot because they knew he “would not properly treat [Mr. Roberson’s]
chronic/or existing medical conditions.” Dkt. 12-1 (amended complaint) at pp. 4-5. He pled that
Corizon and Wexford “knew and [were] aware that [Dr.] Talbot would deliberately and negligently
commit malpractice.” Id. at p. 5.
At his deposition, Mr. Roberson testified he was suing Wexford because it had hired
Dr. Talbot, and it had “not complied with things that need to be done.” Dkt. 82-1 at p. 21. He
explained that he had been approved for an eye surgery, but that “Wexford’s panel, whoever their
panel is, decided that I don’t meet the criteria for this eye surgery; and yet on all the paperwork it
says I do meet the criteria.” Id. Later in the same deposition, Mr. Roberson explained that Wexford
should not have hired Dr. Talbot because of his “track record.” Id. at p. 62. When asked to elaborate
on what he meant by “track record,” Mr. Roberson answered, “I’m still gathering information and
will share that with you when I get it.” Id.
Corizon and Wexford seek summary judgment on the basis that there is no evidence that
either entity knew or should have known that Dr. Talbot would be deliberately indifferent to
Mr. Roberson’s serious medical needs. Wexford also contends that Mr. Roberson has not alleged
a policy or practice of hiring physicians that it should have known would be deliberately indifferent
to inmates’ serious medical needs.

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Because Wexford and Corizon act under color of state law by performing a government
function – providing healthcare services to inmates – pursuant to a contract, each is treated as a
government entity for purposes of § 1983 claims. Walker v. Wexford Health Sources, Inc., 940
F.3d 954, 966 (7th Cir. 2019). A successful claim against Wexford and/or Corizon therefore must
be based on a policy, practice, or custom that gives rise to the alleged harm. Id.; see Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978); Glisson v. Ind. Dep’t of Corr., 849 F.3d 372,
378-79 (7th Cir. 2017) (en banc) (“The critical question under Monell . . . is whether a municipal
(or corporate) policy or custom gave rise to the harm (that is, caused it), or if instead the harm
resulted from the acts of the entity’s agents.”)
Mr. Roberson’s policy or practice claim in his amended petition was inferred by giving his
pro se complaint a liberal reading. But on summary judgment, the "put up or shut up" phase of the
case, Grant, 870 F.3d at 568, Mr. Roberson has not designated evidence to support his claim
against either Corizon or Wexford so their motions for summary judgment are granted.
B.

Dr. Talbot

As a convicted offender, Mr. Roberson’s § 1983 claims against Dr. Talbot for deliberate
indifference to his serious medical needs arise are evaluated under the Eighth Amendment. See
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.”).
Prison officials have a duty to provide humane conditions of confinement, which includes
adequate medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). To prevail on a claim of
deliberate indifference to serious medical needs, Mr. Roberson must show that (1) he suffered from
an objectively serious medical condition, and (2) the defendants knew about the condition and the

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substantial risk of harm it posed but disregarded that risk. Id. at 837; Pittman ex rel. Hamilton v.
County of Madison, 746 F.3d 766, 775 (7th Cir. 2014); see also Petties v. Carter, 836 F.3d 722,
727–28 (7th Cir. 2016) (en banc) (“To determine if the Eighth Amendment has been violated in
the prison medical context, [courts] perform a two-step analysis, first examining whether a plaintiff
suffered from an objectively serious medical condition, and then determining whether the
individual defendant was deliberately indifferent to that condition.”). The Seventh Circuit recently
explained what is required to establish deliberate indifference:
To prove deliberate indifference, mere negligence is not enough. A plaintiff must
provide evidence that an official actually knew of and disregarded a substantial risk
of harm. The linchpin is a lack of professional judgment. A medical professional is
entitled to deference in treatment decisions unless no minimally competent
professional would have so responded under those circumstances. A prison medical
professional faces liability only if his course of treatment is such a substantial
departure from accepted professional judgment, practice, or standards as to
demonstrate that the person responsible actually did not base the decision on such
a judgment.
Campbell v. Kallas, 936 F.3d 536, 544-45 (7th Cir. 2019) (internal citations and quotations
omitted). Put another way, deliberate indifference means a culpable state of mind equivalent to
criminal recklessness. Rivera v. Gupta, 836 F.3d 839, 842 (7th Cir. 2016).
Mr. Roberson alleged that Dr. Talbot was deliberately indifferent in the following respects:
1.
Discontinuing or not renewing necessary medication or refusing to
re-prescribe the medication to save Corizon’s or Wexford’s money.
2.

Discontinuing needed treatments.

3.

Substituting ineffective medications for effective medications.

4.

Denying the existence of some health issues.

5.
Misdiagnosing new and long-existing chronic medical conditions such as
atrial fibrillation, eczema, and allergies.
6.
Failing to authorize or provide proper procedures and treatments for chronic
health problems.
7

7.

Providing improper care.

8.

Denying care/treatment.

9.

Delaying and denying examinations by a specialist such as a cardiologist.

10.
Entering false or misleading information in his medical file, after the fact,
to hide his mistakes.
11.
Ordering only basic tests, performed on site, rather than the better tests
required to determine the nature and seriousness of his heart condition.
12.
so.

Threatening to put him in lock-up to cover his own bad acts, and then doing

Dkt. 12-1 (amended complaint) at pp. 2-4.
Mr. Roberson pled deliberate indifference in his amended complaint, but in later filings
and his deposition he repeatedly referred to Dr. Talbot’s alleged conduct as negligence. Because
negligence is not sufficient to support a § 1983 claim, the Court will consider Mr. Roberson has
designed evidence to show a disputed genuine issue of material fact as to whether Dr. Talbot was
deliberately indifferent to Mr. Roberson’s serious medical needs. And while there is some
suggestion that not all of Mr. Roberson’s conditions meet the “serious medical need” standard,
some do, and those are the conditions that Mr. Roberson focuses on in his filings and deposition.
For clarity, the Court will discuss each topic area alleged in the amended complaint, in turn.
1.
Discontinuing or not renewing necessary medication to save Corizon’s or
Wexford’s money.
Dr. Talbot argues there is no evidence that he was deliberately indifferent in prescribing
Mr. Roberson’s medications. At his deposition, Mr. Roberson testified at various points about his
medications:
Q. Do you know what medical condition you were suffering from that you were denied
medication for?

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A. I believe one was prostrate issues and/or bladder. We’ve not discovered what the issue
is. Huh. Allergies. Eczema. Huh. I can’t recall any more at the moment.
Dkt. 82-1 at p. 14.
Q. Did those medicines that you were on for your prostate resolve your symptoms?
A. They helped a little, but we were systematically trying other things . . . .
Id. at p. 43.
Q. Was there ever a time frame in which you were receiving Colace and you stopped taking
it?
A. I don’t recall.
Q. So if the records say you stopped taking the Colace as prescribed, you would have no
reason to dispute that?
A. I believe once upon a time we tried different medications. I don’t know that I stopped
or refused to take them. I know we tried several different items to see if they were working
better than others.
Id. at p. 48.
Q.
A.
Q.
A.
Q.
A.

[W]hat is it that Dr. Talbot didn’t do for the eczema that he was required to do?
He denied me the medication for it.
The cream?
Yes.
Told you to get it on commissary?
Yeah.

Dkt. 82-1 at p. 51.
Q. What else is Dr. Talbot doing?
A. Once upon a time, he gave me Flonase. After I fought and fought and fought a year to
get it, he gives it to me one time and then didn’t renew it again. . . .
Dkt. 82-1 at p. 78-79.
In his deposition, Mr. Roberson testified he believed that Dr. Talbot was deliberately
indifferent when he denied him needed medication. The only medications that could implicate a
deliberate indifference claim are the Flonase for allergies and the cream for eczema.
Mr. Roberson’s testimony is equivocal about the reasons why any prostrate or bladder medication,
and Colace for constipation, could have been discontinued. The testimony is that several different

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medications were being tried to see what worked best. Id. at pp. 43 & 48. It is not deliberate
indifference for a medical professional to try different medications to determine which is the most
effective course of treatment. See Lockett v. Bonson, 937 F.3d 1016, 1024 (7th Cir. 2019) (noting
that choosing different medications is not deliberate indifference unless it is a substantial departure
from acceptable professional judgment). And there is no evidence that this conduct created a
substantial risk of harm to Mr. Roberson that Dr. Talbot ignored.
Dr. Talbot’s affidavit explains that he examined Mr. Roberson and prescribed treatment
for eczema on numerous occasions: 2015: August 28 and November 7; 2016: June 10, September
26, November 1, 3, 11, 18, and 30; and December 6, 19, 21, and 23; 2017 : January 6, 10, 11, 17,
18, 19, 20, 24, and 25, and February 6 and 14. He was examined by Dr. Talbot and other medical
providers, and was treated with Prednisone, Diprolene, hydrocortisone, Zantac, Loratidine,
Triamcinolone Acetonide cream, Bactrim, Desonide, Rocephin, Eucerin, Benadryl by injections
and orally, Claritin, Hibiclens soap, and Permethrin. Dr. Talbot ordered these medications,
discussed the issue with Mr. Roberson, had biopsies conducted, and changed the medications when
Mr. Roberson reported they did not work, all in an effort to find an effective treatment. When they
concluded that Mr. Roberson’s blood thinner, Coumadin, may have caused the eczema issues, it
was discontinued but only after a review of Mr. Roberson’s medical history. It was replaced with
baby aspirin. Dkt. 84-1 at ¶¶ 136-160. Dr. Talbot’s affidavit supports each statement with a citation
to the medical record, dkt. 84-2.
The only evidence Mr. Roberson has designated in support of his claim that Dr. Talbot
altered the medical records is Mr. Roberson's own statement. But that statement is general and
speculative and amounts to an unsupported allegation. Mr. Roberson's own statement is not
sufficient to demonstrate a genuine issue of material fact concerning Dr. Talbot’s treatment of his

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eczema. See Amadio v. Ford Motor Co., 238 F.3d 919, 927 (7th Cir. 2001) (“It is well-settled that
speculation may not be used to manufacture a genuine issue of fact.”). 1
If Dr. Talbot declined to provide a cream medication for Mr. Roberson’s eczema, and told
him to buy a cream from the commissary, it was not an act of deliberate indifference. The medical
record supports the fact that Dr. Talbot did not ignore the eczema, but instead was very active in
its treatment.
As to the assertion that Dr. Talbot would not prescribe Flonase, the medical records and
Dr. Talbot’s affidavit show that Mr. Roberson had an active prescription for Flonase from
Dr. Talbot for the period June 10 to September 7, 2016. Dkt. 84-1 at ¶¶ 97-98; dkt. 84-2 at
pp. 139-46. In the middle of this period, on July 22, 2016, Mr. Roberson told Dr. Talbot that his
allergies were seasonal, so Dr. Talbot advised him he could purchase Claritin from the
commissary. Dkt. 84-1 at ¶ 99; dkt. 84-2 at pp. 168-70. Dr. Talbot did not ignore Mr. Roberson’s
seasonal allergies, assuming they are a serious medical need, but treated the allergies with
medication. Id. Mr. Roberson has not submitted evidence to suggest otherwise. There is no
deliberate indifference concerning the medication Flonase.

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The basis for Mr. Roberson’s allegations appears to be an incident where Dr. Talbot wrote
in the medical records that Mr. Roberson refused to stay overnight in the HRU (hospital restraint
unit), but Mr. Roberson wrote a note clarifying that he was not refusing. Both Dr. Talbot’s
statement and Mr. Roberson’s note are included in the medical records. This incident is not
evidence that any other records have been falsified or changed, nor does it support such an
inference. See Gorbitz v. Corvilla, Inc., 196 F.3d 879, 882 (7th Cir. 1999) (declining, on certain
facts, to make a “reasonable inference” because it would be pure speculation). This allegation is
also discussed infra at p. 21.
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2.

Discontinuing needed treatments.

Mr. Roberson has not identified any needed treatment that Dr. Talbot discontinued. The
amended complaint does not allege a specific treatment that was discontinued, in Mr. Roberson’s
deposition he did not name one, and in response to the summary judgment motions he has not
provided evidence of one. There was no deliberate indifference in this regard.
3.

Substituting ineffective medications for effective medications.

Mr. Roberson alleges in his amended complaint that Dr. Talbot substituted effective
medications with ineffective medications, but he did not include any specific instances or examples
of this having occurred. Dkt. 12-1. He was not required to, as his only pleading requirement was
to provide “notice pleading.” Fed. R. Civ. P. 8. But at the summary judgment stage, he must
designate evidence in support of his claim that creates a genuine issue of material fact, and he has
not done so. Mr. Roberson did not testify as to any such medication switch in his deposition, and
he has not submitted evidence to suggest that such incidents occurred. With no evidence that this
conduct occurred, there was no deliberate indifference by Dr. Talbot.
4.

Denying the existence of Mr. Roberson’s health issues.

Mr. Roberson alleges Dr. Talbot denied that Mr. Roberson had a medical condition that he
actually had. The Court does not have to decide whether this could constitute deliberate
indifference because Mr. Roberson has not designated any evidence in support of this allegation.
See dkt. 90-1 (Mr. Roberson’s affidavit); dkt. 91 at p. 2. Since Mr. Roberson has not designated
any evidence showing that the alleged conduct occurred, there was no deliberate indifference by
Dr. Talbot.

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5.

Misdiagnosing new and chronic medical conditions.

A misdiagnosis, without more, does not establish an Eighth Amendment deliberate
indifference claim. Cesal v. Moats, 851 F.3d 714, 724 (7th Cir. 2017). And even if it were
negligence, negligence – even gross negligence – does not meet the deliberate indifference
standard. Deliberate indifference “requires more than negligence or even gross negligence; a
plaintiff must show that the defendant was essentially criminally reckless, that is, ignored a known
risk.” Huber v. Anderson, 909 F.3d 201, 208 (7th Cir. 2018) (internal quotation omitted). A
plaintiff may be able to demonstrate deliberate indifference if the defendant’s treatment plan was
blatantly inappropriate. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014). The amended complaint
describes two incidents alleging a misdiagnosis. Dkt. 12-1 at pp. 3 & 4.
a.

Misdiagnosis of Mr. Roberson’s skin rash.

Mr. Roberson alleges that he had a tele-visit with a cardiologist for his atrial fibrillation,
and the cardiologist recommended examinations of Mr. Roberson’s thyroid and throat. Id. He
claims that Dr. Talbot refused to have those tests done and “misdiagnosed the problem as acid
reflux” without properly examining him. Id. This appears to be the same incident Mr. Roberson
described in his deposition. In neither description of the event, however, does Mr. Roberson claim
any harm or injury resulted from the alleged misdiagnosis. His diagnosis of atrial fibrillation was
never changed to GERD. See dkt. 84-2. Furthermore, Mr. Roberson admitted in his deposition
that during that event he had multiple symptoms but does not elaborate further about a
misdiagnosis. These other symptoms included constipation, a gastrointestinal concern. Id.
Mr. Roberson testified that Dr. Talbot did not know what caused Mr. Roberson’s symptoms, so he
suggested a proton-pump inhibitor medication (used to reduce the production of stomach acid),
saying “Let’s try this and see if it works. If not, then you need to go see a gastrointestinal

13

specialist.” Id. at p. 55. Construing this exchange in Mr. Roberson’s favor for summary judgment
purposes, it still is not suggestive of a misdiagnosis of any kind.
The second incident possibly alleging a misdiagnosis concerns Mr. Roberson’s skin
condition. Dkt. 12-1 at p. 3-4. Mr. Roberson asserts he had a reaction to Warfarin, a blood thinner,
causing a long period of severe rashes and sores. Id. He asserts Dr. Talbot misdiagnosed the
problem as dry skin and then scabies and would not give him anything for the pain. Id. Dr. Talbot
at one time declined to give Mr. Roberson a Benadryl injection, but when the rash and pain had
worsened, a different provider at the urgent care clinic gave him the Benadryl injection. Id. at p. 4.
Overall, the treatments ordered by Dr. Talbot, such as lotion and soap, were ineffective, but when
Mr. Roberson stopped taking Warfarin the rash went away. Id.
Dr. Talbot’s testimony describes the treatment of Mr. Roberson’s rash. See dkt. 87 at
¶¶ 136-60. He first saw Mr. Roberson about the rash on June 10, 2016. Id. at ¶ 139. Dr. Talbot
examined the rash, made notes, considered Mr. Roberson’s evaluation of the effectiveness of past
medications, and assessed the condition as atopic dermatitis/eczema. Id. He prescribed Prednisone.
Id. Then in November 2016, considering Mr. Roberson’s visits with nurse practitioners and
another doctor, and Mr. Roberson’s reports that a variety of medications were ineffective,
Dr. Talbot ordered a trial of Zantac and Loratidine. Id. at ¶ 142. Shortly after that, Dr. Talbot also
ordered Triamcinolone Acetonide cream to treat the rash. Id. at ¶ 143.
Mr. Roberson saw other medical providers in December 2016 and early January 2017
before seeing Dr. Talbot on January 10, 2017. Id. at ¶¶ 148-51. After examining the rash,
Dr. Talbot took a skin biopsy and ordered Benadryl and Rocephin injections. Id. at ¶ 151. The
doctor saw Mr. Roberson again a week later and learned that only the Benadryl injection had given
him relief. Id. at ¶ 154. Dr. Talbot ordered three more days of Benadryl injections and a trial of

14

topical Hibiclens. Id. On January 20, 2017, Dr. Talbot saw Mr. Roberson again, ordered another
“dose pack” of Prednisone, and examined the rash. Id. at ¶ 156. Mr. Roberson said that the
Hibiclens made his rash worse, and the Benadryl and oral steroids gave him relief. Id. Dr. Talbot
ordered more Benadryl and oral steroids and discontinued the Hibiclens. Id.
On January 24, 2017, Dr. Talbot discussed the biopsy report with Mr. Roberson. Id. at 157.
Mr. Roberson thought his rash might be a parasite infestation. Id. Dr. Talbot therefore ordered a
trial of Permethrin 5%, a medication for scabies. Id. But on February 6, 2017, Mr. Roberson told
Dr. Talbot that the Permethrin worked at first but no longer. Id. at ¶ 159. A physical examination
indicated

the

rash

had

subsided,

with

Dr.

Talbot

describing

it

as

scant” and “sparsely present.” Id. Mr. Roberson was counseled to continue using Permethrin. Id.
Then on February 14, 2017, Dr. Talbot saw Mr. Roberson who said that he had quit taking
Warfarin on his own, for unrelated reasons, and his rash had improved. Id. at ¶ 160. Dr. Talbot’s
examination revealed the rash was 80% resolved. Id. Checking Mr. Roberson’s medical history,
he noted that Mr. Roberson had been in a normal sinus rhythm for over a year, and therefore his
stroke risk was very low and no further anticoagulation medication was necessary. Id.
Mr. Roberson signed a refusal form to stop the Warfarin, and Dr. Talbot prescribed a baby aspirin
in its place. Id.
The gravamen of Mr. Roberson’s allegations is that Dr. Talbot misdiagnosed his rash
condition and caused him to suffer pain in the interim. Dkt. 12-1, pp. 3-4. The medical record and
Dr. Talbot’s unrebutted testimony demonstrate that Dr. Talbot, with other medical professionals,
did not ignore or overlook Mr. Roberson’s rash. They treated his condition with an array of
medications to attempt to find resolution for him, but to no avail until Mr. Roberson seemed to

15

have discovered the cause of the rash on his own. On these undisputed facts, Dr. Talbot’s inability
to diagnose the cause of Mr. Roberson’s rash was not deliberate indifference.
The Court's analysis does not end there because “blatantly inappropriate” medical
treatment can be sufficient to show deliberate indifference. See Pyles, 771 F.3d at 409 (“A
prisoner’s dissatisfaction with a doctor’s prescribed course of treatment does not give rise to a
constitutional claim unless the medical treatment was ‘blatantly inappropriate.’” (citing Greeno v.
Daley, 414 F.3d 645, 654 (7th Cir. 2005) (quoting Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir.
1996))).
To demonstrate that his course of treatment for the rash was not blatantly inappropriate,
Dr. Talbot presents the testimony of two other medical doctors who examined the medical record
of Mr. Roberson’s condition and the provided treatments:
Dr. Talbot dealt with Mr. Roberson’s rash appropriately. It was reasonable for Dr.
Talbot to conclude that Mr. Roberson's rash was simply dermatitis. It is not obvious
that the rash Mr. Roberson developed was a reaction to the Warfarin he was taking.
It is unusual to develop a rash in response to Warfarin. Also, Mr. Roberson had a
chronic rash even before he began taking Walfarin. Moreover, other medications
he was taking (such as Zoloft, Amlodarone, and Prozac) were more likely to have
caused his rash. In addition, the Warfarin-induced rashes I have seen usually look
different than what Mr. Roberson described. Mr. Roberson’s complaint that Dr.
Talbot withheld Benadryl shots when more shots were needed is not legitimate
because Benadryl shots for this do not make sense. Such shots are for symptomatic
short-term relief, and oral Benadryl works just as well. It is apparent that Dr. Talbot
made a concerted effort to do the right thing for Mr. Roberson.
Dkt. 82-2 at ¶ 11 (affidavit of Kirk Parr, M.D.).
It is not obvious or certain that Mr. Roberson’s persistent rash from 2016 into 2017
was an allergic reaction to the medication [Warfarin]. This is because Coumadin
toxicity usually presents with black, necrotic tissue shortly after the patient begins
taking Coumadin. Mr. Roberson never described his rash as involving black or
necrotic tissue. Moreover, there are several months when Mr. Roberson was taking
Coumadin and did not complain of a rash.
Dr. Talbot’s treatment of Mr. Roberson’s persistent rash was appropriate. A rash is
a visual diagnosis, and treating a rash can be a matter of trial and error. Dr. Talbot
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appropriately tried many different treatments to clear up the rash and to relieve the
itching and pain. Dr. Talbot reasonably tried a number of treatments, with varying
degrees of success, including Prednisone (an oral steroid often prescribed for skin
conditions such as redness, itching, and irritation), Triamcinolone Acetonide – 5%
(a type of steroid that works by reducing inflammation and suppressing an
overactive immune system), Diprolene (a corticosteroid indicated for the relief of
the inflammatory and pruritic dermatoses), Bactrim (an antibiotic), at least four
Benadryl (antihistamine) injections, and a Rocephin injection (used to treat
bacterial infections). He also appropriately had red patches of the rash biopsied and
had the dressings changed. In discussing the result of the skin biopsy, it appears
from his medical records that Mr. Roberson believed he bad scabies, having been
exposed to it two weeks earlier. It was reasonable and appropriate for Dr. Talbot to
treat Mr. Roberson for scabies with a 5% Permethrin trial. In January of 2017, Mr.
Roberson received Claritin and Benadryl, which were good choices, particularly in
combination, to treat his rash. The treatments seemed to achieve some relief
because when the rash was biopsied it was “scant and mild.” The Permethrin
seemed to work at one point, and then the rash returned. At another point, it
appeared there was scant rash sparing the face and much of the extremities and
sparsely on the trunk.
Dkt. 82-3 at ¶¶ 3 & 4 (affidavit of John Unison, M.D.).
Mr. Roberson has not submitted evidence to rebut Drs. Parr’s and Unison’s testimony so it
is undisputed that Dr. Talbot’s treatment of Mr. Roberson’s rash was not “blatantly inappropriate.”
There is no deliberate indifference regarding Dr. Talbot’s treatment of Mr. Roberson’s skin rash.
b.

Misdiagnosis of Mr. Roberson’s heart condition.

Mr. Roberson alleges that Dr. Talbot misdiagnosed his heart condition (he has a long
history of atrial fibrillation) as gas and gastroesophageal reflux disease (GERD). At his deposition,
Mr. Roberson clarified that his assertion centered around an incident of chest pain, but he added
that there were “multiple symptoms” at the time. Dkt. 82-1 at p. 55. As noted earlier, these other
symptoms included constipation, id., and Mr. Roberson testified that Dr. Talbot did not know the
cause. Dr. Talbot suggested a proton-pump inhibitor medication, saying “Let’s try this and see if
it works. If not, then you need to go see a gastrointestinal specialist.” Id. at p. 55. It is this exchange,
apparently, that is the basis of Mr. Roberson’s contention that Dr. Talbot misdiagnosed his heart

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condition. The amended complaint’s generalized allegation of a misdiagnosis, and Mr. Roberson’s
deposition testimony are the only evidence supporting this component of the claim.
In Dr. Talbot’s affidavit, he testifies about an incident on September 12, 2016, where
Mr. Roberson presented with GERD symptoms. Dkt. 84-1 at ¶ 82. Dr. Talbot counseled him about
eating spicy foods, submitted a request for an outside ENT examination, and ordered an
echocardiogram. Id. This is apparently the incident of which Mr. Roberson complains.
In sum, there is no evidence of a misdiagnosis, of either a new condition or a chronic
condition, at the September 12, 2016, examination. Mr. Roberson’s heart medications were not
changed, and no apparent injury was suffered. Dr. Talbot’s affidavit details his treatment of
Mr. Roberson’s heart issues. Dkt. 84-1 at ¶¶ 34-93. Dr. Talbot ordered EKGs, an echocardiogram,
laboratory tests, and x-rays, conducted physical examinations, prescribed medications, and
monitored the effectiveness of some medications. Id. There was no misdiagnosis or denial of
Mr. Roberson’s heart condition, and no deliberate indifference because of any misdiagnosis.
6.
Failing to authorize or provide proper procedures and treatments for
chronic health problems, causing him to suffer unneeded physical and mental
pain and anguish.
In his amended complaint Mr. Roberson makes several assertions that Dr. Talbot would
not authorize proper medical care or procedures for his chronic health problems. Dkt. 12-1 at
pp. 3-4. But there are no facts pled in support of the conclusory statements. Id. Mr. Roberson did
not respond to the defendants’ motions for summary judgment with evidence of such conduct.
Having examined Mr. Roberson’s deposition testimony, the Court is not aware of any specific
evidence to support this claim. Dkt. 82-1. Mr. Roberson testified that Dr. Talbot delayed sending
him to a cardiologist, but he does not testify to an injury caused by the delay. Id. at p. 15. He
asserted that an unnamed eye doctor recommended eye surgery, but Wexford would not authorize

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the surgery. Id. He does not make this claim against Dr. Talbot, but Wexford, and regardless he
does not have evidence of such occurrence, which was raised for the first time in the deposition.
Id. & dkt. 12-1 at p. 27. The treatment of Mr. Roberson’s skin condition was addressed above.
There are few, if any, factual assertions about Mr. Roberson’s allergies, sore throat, diaphragm,
prostate, bladder, or thyroid, see dkt. 12-1 at p. 2, but no claim of injury. While Mr. Roberson
claims he was unnecessarily kept in pain, he has not attributed that pain to any incident of
deliberate indifference.
Even if a plaintiff can show deliberate indifference, to recover on the claim the plaintiff
must have an injury. “[T]here is no tort – common law, statutory, or constitutional – without an
injury, actual or at least probabilistic.” Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir. 2013); Budd
v. Motley, 711 F.3d 840, 843 (7th Cir. 2013) (a plaintiff must show some cognizable harm, whether
physical or psychological); Thomas v. Illinois, 697 F.3d 612, 614 (7th Cir. 2012) (a § 1983 claim
for money damages must allege an actual injury). More specifically, because Mr. Roberson’s
claims concern delayed medical treatments, examinations, and tests, he “must offer medical
evidence that tends to confirm or corroborate a claim that the delay was detrimental.” Williams v.
Liefer, 733 F.3d 786, 790 (7th Cir. 2013). Mr. Roberson fails to offer any medical evidence that
Dr. Talbot’s alleged delays in treatment caused him detriment.
Mr. Roberson has not shown deliberate indifference on this assertion.
7.

Providing improper care.

Mr. Roberson also alleges that Dr. Talbot has provided improper care or improper “non
acts.” Dkt. 12-1 at p. 4. While possibly attempting a separate claim for “improper care”, this
assertion is duplicative of the description Mr. Roberson uses to describe Dr. Talbot’s medical

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services. Mr. Roberson’s specific claims have been addressed. This “sub-claim” does not warrant
a separate analysis.
8.

Denying care/treatment.

Mr. Roberson also asserts that Dr. Talbot denied medical care and treatment. Dkt. 12-1 at
p. 4. As has been repeatedly noted, Mr. Roberson provided no specific allegations of any denial of
any treatment or care in his amended complaint, and has not submitted any in his summary
judgment response. See dkts. 90 & 91. To the extent Mr. Roberson makes this claim concerning
treatment for his rash, that issue has been discussed above.
If this contention concerns Mr. Roberson’s assertion that Dr. Talbot would not allow him
to see a cardiologist, that claim has no merit. First, Mr. Roberson has alleged no injury or detriment
from a delay in seeing a cardiologist. Additionally, he did see Dr. Ross, a cardiologist, once in
person and several times by video, and continued to take the medication recommended by
Dr. Ross. Dkt. 82-1 at pp. 33-38. After Dr. Ross passed away, Mr. Roberson received several
EKGs, but none were abnormal because, according to Mr. Roberson, they were administered while
he was not in distress. Id. at p. 36. Finally, when asked what symptoms his atrial fibrillation caused
that were not being addressed, Mr. Roberson could not state one, instead saying that he was “not
sure if AFib is causing all kinds of different things.” Id. at p. 37. Again, he has not had an atrial
fibrillation issue that caused him to go directly to the healthcare until since 2015. Id. at p. 41.
On the summary judgment record, there is no evidence of any delay in treatment that could
amount to deliberate indifference.
9.
Delaying and denying examinations by a specialist (in particular a
cardiologist, Dr. Edward Ross).
The immediately preceding discussion addressed Mr. Roberson’s claim of delays in seeing
a cardiologist. Assuming there was a delay in seeing Dr. Ross during Dr. Talbot’s tenure at PCF,
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Mr. Roberson has suffered no compensable injury and thus does not have a constitutional claim.
The same is true for any delay seeing an ENT or gastroenterologist. Mr. Roberson alleges that he
had to work hard and make several demands to see specialists, but in the end he was referred to
specialists and cannot point to any injury caused by delay. See dkt. 82-1.
10.
Entering false or misleading information about Mr. Roberson’s
medical conditions into his medical file to cover his deliberate and negligent
actions.
Dr. Talbot asserts that the only allegation of false information being placed into
Mr. Roberson’s health record concerns whether Mr. Roberson had refused to stay in a Hospital
Restraint Unit (HRU) for observation. Mr. Roberson claimed that Dr. Talbot placed a false note in
the medical record that he had refused to stay overnight in the HRU, but Mr. Roberson had not
refused. Dkt. 87 at p. 61. Dr. Talbot asserts that even if this allegation is true, it has no relevance
to whether Dr. Talbot was deliberately indifferent to any serious medical need of Mr. Roberson’s.
The Court agrees that this issue has little, if any, evidentiary value in the context of the claims Mr.
Roberson asserts in this case.
Mr. Roberson testified in his deposition that Dr. Talbot deliberately wrote in his medical
records that his prostate and bladder “are fine” when in truth they are not. Dkt. 82-1 at p. 44. As
with other contentions, there is no evidence other than Mr. Roberson’s assertion to suggest that
this event occurred or, more importantly, that it caused harm to Mr. Roberson. Mr. Roberson has
not designated evidence showing there was anything wrong with his prostate or bladder. And
when referring to his bladder and/or prostate at his deposition, Mr. Roberson testified that,
“[w]e’ve not discovered what that issue is,” id. at p. 14, and concerning unspecified issues, “I’m
not entirely sure it’s the prostate,” id. at p. 42.

21

On this record, if Dr. Talbot had written that Mr. Roberson’s bladder and prostate were
“fine,” there would be no evidence to demonstrate that the notation was wrong. Mr. Roberson’s
claim is without merit.
11.
Only ordering baseline tests performed on site instead of the tests
required to determine the seriousness of Mr. Roberson’s heart condition.
This claim fails because Mr. Roberson cannot show how he has been injured or harmed by
not immediately being given more comprehensive medical tests.
It bears noting, though, that a decision to forego certain diagnostic testing for simpler
testing is “a classic example of a matter for medical judgment,” see Estelle v. Gamble, 429 U.S.
97, 107 (1976), and not relevant to a deliberate indifference claim.
12.
Threatening to lock up Mr. Roberson to cover his own bad acts and
following up on such threats.
There is no evidence in the summary judgment record, other than Mr. Roberson’s
conclusory testimony, to show that Dr. Talbot threatened to “lock up” Mr. Roberson to cover up
his own bad acts. But taken as true for summary judgment purposes, the contention does not
support a constitutional claim because it has nothing to do with the delivery of medical care. In
other words, whether or not Dr. Talbot threatened Mr. Roberson with lock-up has no relevance to
whether the doctor was deliberately indifferent to Mr. Roberson’s serious medical needs. This
contention has no merit. 2

2

Mr. Roberson has not alleged a First Amendment retaliation claim. If he had, it
nevertheless would be meritless because Dr. Talbot’s alleged threats to lock-up Mr. Roberson were
not made because of Mr. Roberson’s exercise of a protected First Amendment activity, but to –
allegedly – cover up Dr. Talbot’s mistakes.
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V. Conclusion
A prison inmate is entitled to adequate medical care, Farmer, 511 U.S. at 832, and that is
what Mr. Roberson received. An inmate cannot demand specific care and is not entitled to the best
care possible. Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006); Boyce v. Moore, 314 F.3d
884, 888-89 (7th Cir. 2004); Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999). The
undisputed summary judgment evidence demonstrates that the defendants were not deliberately
indifferent to Mr. Roberson’s serious medical needs. The defendants’ motions for summary
judgment, dkt. [80] and dkt. [83], are granted. Final judgment consistent with this Order shall now
enter. This action is dismissed with prejudice.
SO ORDERED.
Date: 5/14/2020

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Distribution:
Paul Roberson
218764
Pendleton Correctional Facility
Electronic Service Participant – Court Only
Douglass R. Bitner
Katz Korin Cunningham, P.C.
[e-mail]
Jeb Adam Crandall
Bleeke Dillon Crandall Attorneys
[e-mail]
Mario Garcia
Brattain Minnix Garcia
[e-mail]
Mary L. Graham
Bleeke Dillon Crandall Attorneys
[e-mail]
Terry Wayne Tolliver
Brattain Minnix Garcia
[e-mail]

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