ROSALES v. CORIZON, INC. et al

Filing 43

Entry - Denying 22 Motion for temporary restraining order and preliminary injunction. (See Entry.) Signed by Judge William T. Lawrence on 9/29/2016. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

OSCAR ROSALES,
Plaintiff,
vs.
CORIZON, INC.,
NEIL JOHN MARTIN M.D.,
Defendants.

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No. 2:16-cv-00080-WTL-DKL

Entry Discussing Motion for a Preliminary Injunction
Plaintiff Oscar Rosales, an inmate at the Wabash Valley Correctional Facility (“Wabash”),
brought this action alleging that he has received inadequate medical care at that facility. He seeks
injunctive relief that would require medical staff to provide him with: (1) a wheelchair; (2) an MRI
of his back, neck, and knees; (3), pain medication; (4) a “complete physical exam” with a Spanish
speaking provider; (5) a consultation with an orthopedic surgeon; and (6) examination by a
urologist. For the following reasons, Rosales’s motion for a preliminary injunction [dkt 22] is
denied.
I. Standard
A preliminary injunction is an extraordinary equitable remedy that is available only when
the movant shows clear need.1 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

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The plaintiff titles his request as on for a Temporary Restraining Order and Preliminary Injunction. Because the
standards are essentially identical and because the defendants have had a full opportunity to respond, the Court treats
the motion as one for a preliminary injunction.

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
Rosales’s claims are based on medical care he has received for his urinary tract problems
and knee, back, and neck pain.
A. Urinary Tract Issues
On November 14, 2014, defendant Dr. Martin saw Rosales for his complaints of pain
and inability to urinate. Dr. Martin’s exam was normal and Dr. Martin recommended that Rosales
restart Pamelor and ordered Flomax. He also ordered a urinalysis.
On December 5, 2014, Rosales complained that he could not urinate that morning and had
groin pain. Dr. Martin discontinued Pamelor and ordered placement of a catheter and a urine
sample. Rosales received relief from his pain and distention with this treatment. However, Rosales
continued to complain of inability to urinate and Dr. Martin ordered re-placement of a catheter and
admission to the infirmary for urinary retention. On December 8, 2014, Dr. Martin examined
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Rosales in the infirmary and noted that the catheter appeared to relive his pain over the weekend
and his bladder was not extended. Dr. Martin diagnosed Rosales with acute urinary retention and
recommended an urgent surgical consult with an urologist.
On December 10, 2014, Rosales went to Terre Haute Regional hospital for a urological
consult with Dr. P. Patel. A CT scan of Rosales’s abdomen and pelvis showed only mild
enlargement of the prostate (as well as degenerative lumbar spine changes.) Dr. Patel
diagnosed Rosales with acute urinary retention and an enlarged prostate. Dr. Patel ordered
surgery to relieve the urinary obstruction and rule out cancer. Rosales returned to Wabash that
same day. Dr. Martin admitted him to the infirmary to monitor his condition and requested
approval for the surgery.
Dr. Patel performed the surgery on December 19, 2014. After examination of the removed
prostate, Rosales was diagnosed with an enlarged prostate and no cancer. Rosales returned to
Wabash the next day and Dr. Martin admitted him to the infirmary and requested a follow-up
appointment with a urologist. Rosales was discharged from the infirmary on December 23, 2014.
Rosales was able to urinate without a catheter, but complained of abdominal cramping. Dr. Martin
examined Rosales on December 30, 2014, and Rosales complained of blood in his urine. Dr. Martin
examined him again the next day and noted that there was still blood in his urine, but less than there
was the previous day. On January 3, 2015, Dr. Martin ordered Cipro to address this issue.
On January 7, 2015, Rosales returned to Terre Haute Regional Hospital for his two-week
follow-up appointment. He complained of frequency, urination at night, painful urination, and
blood in his urine. He also complained of lower abdominal and rectal pain. On exam his abdomen
was soft, non-tender, and he had bladder distention. He was ordered to continue Cipro and Tylenol
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for pain for the next 5-7 days. Corizon medical staff were ordered to observe him for continued
complaints of urgency, frequency, and night urination. The urologist explained that the blood in his
urine should resolve within 8 weeks after the surgery, and if it did not then Rosales may be
experiencing an overactive bladder. A follow-up appointment was ordered in three months to ensure
symptom improvement. Corizon medical staff scheduled that appointment.
On January 14, 2015, Dr. Martin examined Rosales and noted that he experienced urinary
tract infection symptoms after surgery and was placed on Cipro, but continued to complain of some
discomfort. Dr. Martin requested a consult with a urologist. On February 18, 2015, Dr. Martin
examined Rosales while he waited for a urologic consult. Rosales continued to complain of painful
urination, although his bleeding had largely subsided. Dr. Martin awaited the urologist’s
determinations for further care. On April 15, 2015, Rosales went to Terre Haute for a urological
consult. He complained of pain, painful urination, and lack of fluid with ejaculation. A urinalysis
and post-void residual bladder scan were ordered, which were negative. On April 22, 2015, Dr.
Martin examined Rosales in a seven day follow-up after his urologist consultation. Dr. Martin
discussed with Rosales that the urologist found no urological issue with him and recommended
follow-up as needed. Rosales accepted this determination but still complained of painful urination,
hesitancy, and sexual dysfunction. Dr. Martin ordered a urinalysis.
On June 17, 2015, Dr. Martin examined Rosales for his continued complaints of painful
ejaculation. Rosales said that twice since having surgery he has had spontaneous painful
ejaculations at night and also when masturbating. Dr. Martin explained that this was not a level I
or II care issue and encouraged him to stop masturbating, especially to excess.

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B. Knee, Back, and Neck Pain
Rosales has suffered from, and been treated for, knee, back, and sciatic nerve pain for many
years. His previous allegations that prison medical staff failed to treat these conditions were raised
in an earlier lawsuit filed in this Court. Rosales v. Corizon, et. al, 2:14-cv-61-JMS-WGH. On
December 29, 2015, the court dismissed claims in that case on summary judgment and held that the
medical defendants were not deliberately indifferent to Rosales’s knee, back, neck and sciatic nerve
pain. Specifically, the court stated:
Mr. Rosales suffers from osteoarthritis in his left knee. Appropriate treatment of
osteoarthritis includes conservative measures, including possibly antiinflammatories, injections, and physical therapy, all of which the medical staff and
Dr. Joseph provided to Mr. Rosales. Dr. Joseph addressed Mr. Rosales’ concerns
through diagnostic testing, physical exams, physical therapy, prescribing pain/antiinflammatory medications including Mobic and Tegretol, and attempting to get Mr.
Rosales out of his wheelchair in order to build muscle and reduce atrophy and pain.

Rosales’s claims in this case relate to care he received starting in 2013. At the end of 2012,
he completed physical therapy for his musculoskeletal complaints. Rosales was examined a number
of times during 2013 and 2014 for his complaints of back and knee pain. He was advised to use his
walker and to continue pain medication.
On January 15, 2014, Dr. Dwyer examined Rosales for his complaints of left knee and back
pain. At that time he was using his walker without issue. An exam revealed spine tenderness and
muscle spasm, but negative straight leg raises. Dr. Dwyer ordered repeat x-rays and continued
Mobic and Trofanil for Rosales’s pain. On February 12, 2014, Dr. Dwyer again examined Rosales
for his complaints of chronic lumbar spine pain. Rosales requested x-ray results and pain
medication. Dr. Dwyer’s physical exam was negative. She observed that Rosales’s gait was normal,
and she noted that Rosales was on Mobic and Trofanil. On March 26, 2014, Dr. Dwyer saw Rosales
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in a follow-up and noted that the repeat x-rays showed arthritis in his back and right knee, stable
from the year earlier and arthritis consistent with the old fracture in his left knee. Dr. Dwyer
explained that there was no cure for Rosales’s chronic arthritis pain from old injuries, but prescribed
Pamelor to try to minimize the pain.
On May 27, 2014, Dr. Rajoli saw Rosales for his left knee pain. A physical exam showed
no muscle wasting to the left lower lateral calf, there was no swelling in the joint and range of
motion was normal. Rosales was using a walker and was able to walk without support. Dr. Rajoli
recommended transitioning from the walker to a cane to improve his ability to move around and
reduce falls. Dr. Rajoli instructed Rosales to purchase Aspirin from the commissary as needed for
pain. Rosales also continued on Pamelor. On June 25, 2014, Dr. Lang examined Rosales for his
complaints of back pain and painful urination/urinary obstruction on Pamelor. Dr. Lang
discontinued Pamelor and ordered Mobic for Rosales’s pain. On June 27, 2014, Dr. Lang’s Mobic
request was denied. Rosales was encouraged to strengthen his muscles through mobility and take
anti-inflammatory medication as needed for his arthritis. On August 15, 2014, Dr. Lang performed
manual therapy to Rosales’s neck and other muscles with some improvement. Rosales received
Mobic through August 18, 2014, and continued on the antidepressant Celexa that is also used to
treat chronic pain.
On December 30, 2014, Dr. Martin examined Rosales and noted laxity in his left knee. Dr.
Martin recommended an orthopedist consult. Rosales requested and was provided with a wheel
chair pending his orthopedic consultation to determine if he had an acute injury. On January 23,
2015, x-rays of Rosales’s left knee revealed mild to moderate degenerative change. On February 9,
2015, Rosales went off-site to Terre Haute Regional Hospital for an orthopedic consultation with
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Dr. Kurt Madsen. Dr. Madsen determined that Rosales’s left knee was “dysfunctional.” Dr. Madsen
recommended an MRI of Rosales’s left knee. Corizon medical staff requested an off-site MRI based
on Dr. Madsen’s recommendation. Upon review of the MRI, Dr. Madsen recommended
arthroscopic surgery to the left knee. Surgery was approved and scheduled.
On March 3, 2015, Rosales returned his wheelchair. On April 29, 2015, Dr. Martin
determined that Rosales was deconditioned from his long use of wheelchairs and/or walkers. Dr.
Martin noted that Rosales’s subjective complaints were out of line with the objective findings. Dr.
Martin strongly encouraged Rosales to stop using his wheelchair and walker and saw nothing
specifically wrong with his back. Rosales’s old x-rays showed no fracture and only minimal
degenerative changes and he had no new injury to account for any change that would require further
study. Dr. Martin prescribed prednisone.
On May 6, 2015, Rosales went to Terre Haute Regional Hospital for a left knee
arthroscopy. He returned to Wabash that same day and was admitted to the infirmary for postoperative care and recovery. He received narcotics and kept his leg elevated and in a cryo cuff
to reduce swelling. He was discharged from the infirmary on May 11, 2015 with a bottom bunk
pass, medical lay-in, and crutches. He received Norco for his pain from May 6, 2015 through
May 12, 2015.
On May 13, 2015, Dr. Martin saw Rosales in a follow-up appointment after his discharge.
He still complained of pain so Dr. Martin ordered prescription strength Tylenol for another seven
days. He complained of back pain, but Dr. Martin noted that his prior examination one week earlier
noted no back issues. Dr. Martin charted that Rosales seemed highly motivated to keep

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wheelchair despite the fact that he did not need it. Dr. Martin suspected that this was a safeguard
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against predation from other offenders and advised Rosales to discuss the issue with mental
health. Corizon medical staff coordinated an off-site follow-up consultation with Dr. Madsen. On
June 3, 2015, Dr. Madsen saw Rosales in a follow-up appointment and ordered Rosales’s ace wrap
and knee immobilizer to be discontinued. Dr. Madsen recommended and ordered physical therapy
through Terre Haute Regional Hospital. On June 9, 2015, Dr. Samuel Byrd examined Rosales
in a follow-up appointment after his consultation with Dr. Madsen. Rosales still needed crutches
to walk, but had no increased pain or swelling. Dr. Byrd recommended physical therapy and a
follow-up consultation as ordered by Dr. Madsen.
In July, 2015, Rosales underwent physical therapy and was doing well with gait. The
physical therapist replaced Rosales’s crutches with a cane and determined that he should be weaned
from that quickly. When Rosales complained of back and neck pain, the physical therapist advised
him that his legs were feeling numb because he was not using them and that he should get up
and exercise. However, Rosales used his wheelchair rather than his cane. Dr. Martin told Rosales,
as he had before, that his refusal to walk after his surgery was directly responsible for his
current issue with his knee. On July 21, 2015, the physical therapist determined that Rosales
had adequate strength and ability to walk without assistance and should only use a cane for
long distances. Rosales completed physical therapy on July 23, 2015.
On July 29, 2015, Dr. Martin examined Rosales after he completed physical therapy.
Dr. Martin again told Rosales that his refusal to walk without a wheelchair or walker greatly
hindered his progress. In response, Rosales told Dr. Martin that his knee no longer bothered
him, but that now his back bothered him. Dr. Martin explained that his refusal to walk for
months while sitting in wheelchair and using a walker had greatly deconditioned his core
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muscles and was largely responsible for his back pain. Dr. Martin ordered over the counter
analgesics for six months to see if conservative treatment would improve Rosales’s mechanical
low back pain.
On October 12, 2015, Rosales continued to complain of knee and back pain. Dr. Samuel
Byrd ordered a second round of physical therapy. On October 16, 2015, Rosales began physical
therapy at Wabash. On November 11, 2015, Rosales completed five sessions of physical therapy
and the therapist recommended that Rosales continue to exercise to improve his strength and
gait. Medical staff also encouraged Rosales to continue post-physical therapy exercises.
On January 22, 2016, Dr. Rajoli saw Rosales for his complaints of joint pain. Rosales had
no difficulty getting up on the exam table and did not walk with a cane. Dr. Rajoli’s physical
exam was negative, but Dr. Rajoli gave Rosales one dose of Tordol to alleviate his pain. On
February 3, 2016, Rosales presented to Dr. Rajoli again with pain complaints and was able to
move his back without any range of motion limitations. Dr. Rajoli advised Rosales to continue
with over the counter medications for pain and determined that no further studies or follow-up
appointments were indicated.
III. Discussion
Rosales seeks a preliminary injunction in the form of an order directing that he be provided:
(1) a wheelchair; (2) an MRI of his back, neck, and knees; (3), pain medication; (4) a “complete
physical exam” with a Spanish speaking provider; (5) a consultation with an orthopedic surgeon;
and (6) examination by a urologist.
To succeed in obtaining preliminary injunctive relief, Rosales must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm if preliminary relief is
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not granted, that the balance of equities tips in his favor, and that it 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 Rosales has not shown that he is reasonably likely to succeed on
the merits of his claim. The underlying claims in this action are that the defendants have exhibited
deliberate indifference to his urinary tract issues and knee, back, and neck pain. To prevail on an
Eighth Amendment deliberate indifference medical claim, a plaintiff must demonstrate two
elements: (1) he suffered from an objectively serious medical condition; and (2) the defendant
knew about the plaintiff’s 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).
“[C]onduct is ‘deliberately indifferent’ when the official has acted in an 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
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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). “Disagreement between a prisoner and his doctor, or even between two medical
professionals, about the proper course of treatment generally is insufficient, by itself, to establish
an Eighth Amendment violation.” Id.
1. Urinary Tract Complaints
The defendants argue that Rosales has not shown a likelihood of success on the merits of
his urinary retention claim. The defendants do not argue that the first prong of the deliberate
indifference analysis – an objectively serious medical condition – is not satisfied here. But they do
argue that Rosales has not shown that he was deliberately indifferent to his complaints of urinary
pain.
The record before the Court shows that Dr. Martin has repeatedly responded to Rosales’s
complaints regarding his urinary tract issues. In approximately 2014, Rosales experienced an
enlarged prostate that caused urinary retention. At that time, Dr. Martin prescribed medication and
requested a urinalysis to determine if Rosales had a urinary tract infection. As soon as Rosales
began complaining of urinary retention, Dr. Martin started care to relieve that condition and
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referred him to a urologist for specialty care. The urologist diagnosed Rosales with a benign
enlarged prostate that blocked his urinary tract and performed a procedure to relieve urinary
retention. Rosales then attended several follow-up consultations with the urologist who determined
that as of April 2015, he had no additional urological issues and did not recommend any followup consultations. Dr. Martin relayed this determination to Rosales and continued to monitor his
condition and provide him with advice.
The Court concludes that Rosales has not demonstrated a reasonable likelihood of success
on the merits of this claim. The record before the Court shows that during his course of care for
his urinary tract issues, Dr. Martin examined Rosales, prescribed medications, referred him for
surgical consults, and followed the advice of the urologist. Rosales has provided no evidence that
Dr. Martin was deliberately indifferent his urinary tract complaints.
2. Knee, Back, and Neck Pain
The defendants also argue that Rosales cannot show a reasonable likelihood of success on
the merits of his claims related to his knee, back, and neck pain. Again, they do not argue that
Rosales’s pain complaints are not serious, but they do argue that they have not been deliberately
indifferent to Rosales’s needs.
The medical records reveal that Rosales was diagnosed with arthritis since at least 2009.
Prison medical staff routinely treated him for his arthritic pain with examinations, x-rays, pain
medications, and assistive devices (which included a wheel chair, a walker, and crutches). In
addition, medical staff encouraged Rosales to exercise and refrain from using his wheelchair to
build strength and prevent muscle weakening. All medical providers observed that Rosales was
able to walk on his own but did not want to give up his wheelchair.
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In late 2014, Dr. Martin recognized problems in Rosales’s left knee and recommended a
consult with an orthopedist. Based on the consultant’s advice, Rosales underwent an elective knee
repair surgery. The surgeon monitored Rosales’s healing, determined that his knee had adequately
healed, and recommended physical therapy to improve his strength. Rosales underwent two
courses of physical therapy for his pain complaints. The physical therapists determined that he was
able to do so and reminded him that failing to walk on his own would hinder his progress.
In short, medical staff have continued to monitor Rosales’s condition with examinations
and pain medications. The evidence shows that he is able to walk without assistance, has healed
from his knee surgery, and has appropriate range of motion. No provider has indicated the need
for further treatment to address his arthritis, a wheelchair, or further study. Rosales’s disagreement
with these conclusions is insufficient to show that he has a reasonable likelihood of success on his
claims. See Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014).
B. Irreparable Harm, Balance of Harms, and Public Interest
Rosales also 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). There is no evidence that Rosales will experience an injury that cannot be repaired.
The record shows that Rosales has been given, and continues to receive, adequate care for his
urinary and pain complaints, including examinations, physical therapy, surgery, and pain
medication. For the same reason, he has not established that the balance of the equities favors him.
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Finally, Rosales also has not shown that the relief sought 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, Rosales’s motion for a temporary restraining order and
preliminary injunction [dkt 22] must be denied.
IT IS SO ORDERED.

_______________________________
Date: 9/29/16
Distribution:

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

OSCAR ROSALES
194882
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only
All electronically registered counsel

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