Kimbrough v. Schneegas

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JOHN WESLEY KIMBROUGH, III,

Plaintiff,

v. CAUSE NO. 3:21-CV-364 DRL-MGG

BRIENNA SCHNEEGAS et al.,

Defendants.

OPINION AND ORDER

John Wesley Kimbrough, III, a prisoner without a lawyer housed at Indiana State

Prison, filed a complaint against a doctor, two nurses, and the company that employs

them because he is unhappy with the care he has received at the prison for a painful

medical condition. ECF 2. He has also filed a motion for a preliminary injunction. “A

document filed pro se is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted

by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations

omitted). Under 28 U.S.C. § 1915A, the court still must review the merits of a prisoner

complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon

which relief may be granted, or seeks monetary relief against an immune defendant.

A. Mr. Kimbrough’s Allegations that Rhiannon Schneegas, Dr. Nancy Marthakis,

Deanna Laughlin, and Michael Mitchief were Deliberately Indifferent to His

Medical Needs.

In November 2020, Mr. Kimbrough began having sharp pains down the back of

his legs and in his hip. ECF 3 at 1-2. By mid-December, standing was difficult. Id. at 2.

Due to past experiences with the medical staff at ISP, he initially avoided seeking medical

help. Id. at 5. However, on December 19, 2019, Correctional Officer Flemming recognized

that he needed medical assistance and called to have Mr. Kimbrough examined. Id. at 6.

Mr. Kimbrough saw Nurse Deanna Laughlin and described his pain to her. Id. She

consulted with Dr. Marthakis and, after that consultation, provided Tylenol and

instructions on exercises for back pain. ECF 2-1 at 10-11. Mr. Kimbrough told Nurse

Laughlin that Tylenol does not work. She responded by saying, “I know, you need an

anti-inflammatory but that it is all I can do for you right now.” ECF 3 at 6.

When Officer Flemming observed that Mr. Kimbrough was still in pain three days

later, she asked what the medical staff had done to help him. ECF 2 at 6. Mr. Kimbrough

said basically nothing, and Officer Flemming then called the medical department and

insisted that Mr. Kimbrough be seen again. Id. He was taken to the medical department

in a wheelchair and seen by Lacey Gorske, Nurse Rhiannon Schneegas, and Jackie

Monaco. Id. Mr. Kimbrough asked how his situation gets fixed. Nurse Schneegas

responded by indicating that, “[i]t doesn’t, you suffer through it like everyone else.” ECF

2 at 6, 40. He was given a seven-day course of prednisone and Naproxen. Id. at 6. He was

instructed to continue with the exercises. Id.; ECF 2-1 at 14-15. Mr. Kimbrough tried to do

the exercises, but they caused more pain. ECF 2 at 7. Some of the exercises were too

painful to do at all. Id.; ECF 2-1 at 31.

On December 27, 2020, Mr. Kimbrough filed a request for health care. ECF 2 at 7.

In his request, he indicated that he had taken his sixth dose of prednisone, that it had not

helped, that he could barely stand for five minutes, and that he had pain when he moved

from standing to sitting. Id. He indicated that he needed “an appropriate evaluation and

diagnostic testing so that adequate medical treatment [could] be rendered.” Id.

He was seen two days later by Nurse Schneegas. ECF 2 at 7-8; ECF 2-1 at 16-17.

She informed him that he had been appropriately evaluated. ECF 2 at 7-8. Nurse

Schneegas contacted Dr. Marthakis and, at the doctor’s direction, provided Mr.

Kimbrough with an injection of Solu-Medrol (an anti-inflammatory) and Toradol (a pain

reliefer). Id. at 8. He was referred to Dr. Marthakis for follow up. Id.

On December 30, Mr. Kimbrough saw Dr. Marthakis.1 ECF 2 at 8-9; ECF 2-1 at 18-

20. She offered Mr. Kimbrough a walker, but he refused. ECF 2 at 8-9. She provided

another seven days of prednisone and two weeks of Naproxen. Id. He explained the pain

he experienced while doing the exercises she had prescribed, and she instructed him to

continue doing the exercises. Id. And she ordered that he be provided with another

injection of Solu-Medrol and another injection of Toradol. Id. at 9. Nurse Schneegas was

to administer the injections. Though the doctor ordered that both medications be

administered, Nurse Schneegas ignored the doctor’s orders and only provided Mr.

Kimbrough with the injection of Solu-Medrol. ECF 2-1 at 21-22. Prior to injecting him, she

commented that “[t]his is a little pain for coming to prison.” ECF 2 at 9.

1 Mr. Kimbrough takes issue with being charged for this visit. ECF 2 at 7-8. He believes that,

according to the IDOC’s policies, he should not have been charged. However, the Constitution

does not require free medical care. Poole v. Isaacs, 703 F.3d 1024, 1027 (7th Cir. 2012). Furthermore,

a violation of an IDOC policy does not amount to a Constitutional violation. See Scott v. Edinburg,

346 F.3d 752, 760 (7th Cir. 2003)(“However, 42 U.S.C. § 1983 protects plaintiffs from constitutional

violations, not violations of state laws or, in this case, departmental regulations and police

practices.”).

Dr. Marthakis ordered x-rays of Mr. Kimbrough’s spine, and those were

performed on December 31, 2020. ECF 3 at 2; ECF 2 at 10; ECF 2-1 at 23. The x-ray report

indicates that Mr. Kimbrough has intervertebral disc narrowing at L4-5 and L5-S1

consistent with mild degenerative disc disease. ECF 2-1 at 23.

On January 14, 2021, Mr. Kimbrough submitted another health care request form.

ECF 2 at 10-11; ECF 2-1 at 28. That form indicated that Mr. Kimbrough was still in extreme

pain and that the prednisone had not helped. ECF 2-1 at 28. He also reported a new

symptom: “whenever my sciatic nerve causes pain in my right hip – tingling and

numbness can be felt in my right big toe, portions of my foot, my calf, and a small portion

of the back of my thigh.” ECF 2 at 11; ECF 2-1 at 28.

Mr. Kimbrough was seen by Nurse Block on January 20, 2021. ECF 2 at 11; ECF 2-

1 at 24-26. The nurse called Dr. Marthakis and, after speaking with her, offered Mr.

Kimbrough a wheelchair or walker. ECF 2 at 11. She also offered to have Mr. Kimbrough

moved to housing that is closer to the dining hall. Id. Mr. Kimbrough refused these offers

because he found using an assistive device embarrassing; he wanted to continue to walk

and did not want to become comfortable with his new symptoms.2 Id. He was prescribed

another Toradol injection, though it did not help. Id. Mr. Kimbrough indicates that he

was again referred to Dr. Marthakis for follow up, although notes from the visit do not

indicate that a referral was made. ECF 2 at 12; ECF 2-1 at 24-26.

2 He ultimately did use a wheelchair when needed, despite his initial refusal.

Several days passed without Mr. Kimbrough seeing Dr. Marthakis. Mr.

Kimbrough asked Nurse Brenda, who was passing out medications, to inquire about his

appointment. ECF 2 at 12. When she did, Nurse Schneegas responded with simply “We

know who Kimbrough is.” Id. Still the follow-up appointment was not scheduled. On

January 30, 2021, Mr. Kimbrough asked Officer Flemming to call to find out what was

going on because his pain was terrible. Id. Officer Flemming spoke to Nurse Schneegas

who indicated that she would not schedule Mr. Kimbrough to see anyone because he just

wanted shots and did not want to do his exercises. ECF 2 at 13.

He submitted an emergency grievance on February 1, 2021. ECF 2 at 13; ECF 3 at

7; ECF 2-1 at 53-55. He was told that his situation was not an emergency. ECF 2 at 15-16.

On February 2, 2021, Mr. Kimbrough saw Nurse Brenda. ECF 2 at 14. She indicated

that she told Nurse Schneegas that they needed to do something for Mr. Kimbrough

because he was walking very badly. Id. Nurse Schneegas responded by saying that all he

wants is shots. Id. She again refused to schedule Mr. Kimbrough to be seen by a provider.

Id.

On February 3, 2021, Mr. Kimbrough’s aunt called in an effort to obtain care for

him. ECF 2 at 15. Following that call, an email was sent from the Warden’s office to

medical staff indicating that Mr. Kimbrough needed to be seen. ECF 2 at 16. On February

5, 2021, Mr. Kimbrough saw Dr. Marthakis again. Id. She explained the results of the x-

rays. She also explained that, without an MRI, she could not know the condition of the

discs themselves. Id. Dr. Marthakis indicated she believed that the discs are rubbing

against the nerve that runs along his spine and causing the nerve to become inflamed. Id.

at 17. She indicated she would treat the inflammation, muscle spasms, and pain with

several medications. Id. One of those medications was Cymbalta. Id. Mr. Kimbrough

asked about side-effects he should be aware of and she indicated there were none. Id. She

sought approval to provide Mr. Kimbrough with Cymbalta, Naproxen, and Flexeril. Id.

She also requested physical therapy. Id. She indicated that physical therapy was a

requirement before she could request either an MRI or a consultation with a specialist. Id.

at 17-18.

On February 9, 2021, Mr. Kimbrough began receiving Cymbalta. Id. at 18. It left

him feeling drowsy and drugged. Id. He says it also interfered with his sleep and caused

vivid dreams and night sweats. Id. The next day, he learned that Dr. Mitchief denied both

the request for Naproxen and the request for Flexeril. Id. at 19. After three days of

Cymbalta, Mr. Kimbrough decided that he could not continue taking it due to the side

effects. Id.

On February 11, 2021, Mr. Kimbrough’s aunt called the Warden’s office again. Id.

She inquired about the denial of Naproxen and Flexeril. Id. at 19-20. On February 13, 2021,

Mr. Kimbrough began receiving both mediations. Id. at 20. But, by February 20, 2021, he

had his last dose of Flexeril, and his medications were limited to Naproxen, ibuprofen,

and Tylenol. Id. He began taking large doses of these medications in an attempt to control

pain. Id. at 20-21. He told his aunt, who called the Warden’s Office again on March 4,

2021. In response, he was taken via wheelchair to see Dr. Marthakis the same day. Id. at

21-22. He told her about the side effects from the Cymbalta and his pain. Id. at 22. She

offered more prednisone, but he refused because it had already been tried and it did not

help. Id. He was also worried about the side effects, especially the suppression of his

immune system in the middle of the COVID-19 pandemic. Id. Dr. Marthakis offered to

move Mr. Kimbrough to G-dorm so he could have Flexeril three times a day and Solu-

Medrol injections twice a day. Id. Mr. Kimbrough refused because quarantined inmates

are housed in that dorm and he did not want to risk getting COVID-19. Id. Dr. Marthakis’s

treatment plan consisted of trying to control inflammation and pain with Tylenol, Solu-

Medrol, meloxicam, and Flexeril. Id. She wanted to try these treatments for six to eight

weeks prior to requesting an MRI. Id. at 22-23. She indicated that, if she requested an MRI

before trying medications and physical therapy, Dr. Mitchief would deny it. Id. at 23. She

further indicated that if the treatment did not work, she would request the MRI in six to

eight weeks. Id. Mr. Kimbrough asked for crutches to help him stand. Id. She agreed but

indicated that they should only be used for emergencies. Id. He was instructed to come

to the medical department twice a day for Solu-Medrol injections, at the same time that

diabetic patients report for injections. Id.

Beginning on March 5, 2021, he reported to the medical department twice a day

for his injections. Id. at 24. For his initial appointments, he was pushed to the medical

department in a wheelchair. Id. But on the afternoon of March 6, 2021, Nurse Schneegas

was in charge, and she indicated that Mr. Kimbrough should not come at the same time

as the diabetics. Id. When Mr. Kimbrough arrived, Nurse Schneegas indicated that he was

not authorized to use the wheelchair; she indicated he should be using the crutches

instead. Id. On the afternoon of March 7, 2021, Nurse Schneegas told officers that, if they

brought Mr. Kimbrough over in a wheelchair, she would take it away from him. Id. at 25.

Mr. Kimbrough walked to the medical department though it caused him excruciating

pain. Id. at 26.

Mr. Kimbrough asked Nurse Schneegas why she told the officers they could not

bring him in a wheelchair. Id. He explained that using his crutches to come to the medical

department was contrary to the treatment plan that he and Dr. Marthakis had discussed.

Id. at 26-27. And he accused Nurse Schneegas of interfering with that plan. Id. at 27. He

ultimately threatened to sue Nurse Schneegas, referencing his recent settlement of

another lawsuit. Id. She responded by indicating that she “heard about [his] lawsuit.” Id.

On March 8, 2021, Nurse Schneegas again informed officers not to let Mr.

Kimbrough come to the medical department in a wheelchair. Id. at 28. As Mr. Kimbrough

contemplated his options, he understood that Nurse Schneegas was setting it up so she

could say he refused care. Id. The medications were not helping and caused disagreeable

side effects. Id. at 28, 30. An officer called the medical department to ask if Mr. Kimbrough

could come in a wheelchair, and Nurse Laughlin reiterated that Mr. Kimbrough could

not come in a wheelchair. Id. at 28-29. The prospect of a painful walk was too much, so

Mr. Kimbrough opted not to walk to the medical department that day. Id. On March 10,

2021, Mr. Kimbrough received a refusal form that appears to have been signed by him,

but he asserts that he did not sign it. Id. at 29; ECF 2-1 at 32.

On March 13, 2021, Mr. Kimbrough began receiving Flexeril again, but he did not

receive meloxicam. ECF 2 at 30. On March 16, 2021, he learned that Dr. Mitchief did not

approve the meloxicam, and he approved the Flexeril for only seven days. Id. At the

conclusion of that seven days, Mr. Kimbrough’s only medication to manage pain was

Tylenol four times per day. Id. at 31.

On April 1, 2021, Mr. Kimbrough met with Dr. Marthakis for a chronic care visit

for another condition. ECF 2 at 32. During that meeting, he asked her to request an MRI

or send him to a specialist because six to eight weeks of treatment had failed. Id. She

refused because he needed to try physical therapy first. Id. She offered him a Toradol

shot, but he declined because prior Toradol injections had not helped. Id. She offered

prednisone too, and he also declined it because he was worried about the side effects and

because it did not help his condition when previously prescribed. Id. at 32-33.

On April 13, 2021, Mr. Kimbrough developed a new symptom: a sharp pulsing

pain in his right hip that caused his leg to twitch. Id. at 35. As of May 10, 2021, Mr.

Kimbrough reports that he has not received any further treatment or any physical

therapy. ECF 3 at 4; ECF 2 at 38.

Under the Eighth Amendment, inmates are entitled to constitutionally adequate

medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish liability, a prisoner

must satisfy both an objective and subjective component by showing: (1) his medical need

was objectively serious; and (2) the defendant acted with deliberate indifference to that

medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is “serious” if

it is one that a physician has diagnosed as mandating treatment, or one that is so obvious

that even a lay person would easily recognize the necessity for a doctor’s attention. Greeno

v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). Deliberate indifference means that the

defendant “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. Farnham, 394 F.3d 469, 478 (7th Cir. 2005). For a medical professional to be

held liable for deliberate indifference to an inmate’s medical needs, he or she must make

a decision that represents “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.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir.

2008).

That said, “the Constitution is not a medical code that mandates specific medical

treatment.” Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996). “Whether and how pain

associated with medical treatment should be mitigated is for doctors to decide free from

judicial interference, except in the most extreme situations.” Id. Inmates are “not entitled

to demand specific care [nor] entitled to the best care possible.” Forbes v. Edgar, 112 F.3d

262, 267 (7th Cir. 1997). Moreover, adequate care does not require the total alleviation of

pain. Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“To say the Eighth Amendment

requires prison doctors to keep an inmate pain-free in the aftermath of proper medical

treatment would be absurd.”).

A delay in providing treatment can constitute deliberate indifference when it

causes unnecessary pain or suffering. Arnett v. Webster, 658 F.3d 742, 752-53 (7th Cir.

2011); Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008). Here, giving Mr. Kimbrough

the benefit of the inferences to which he is entitled at this stage of the case, he has alleged

facts from which it can be plausibly inferred that Nurse Rhiannon Schneegas, Dr. Nancy

Marthakis, Nurse Deanna Laughlin, and Dr. Michael Mitchief were each deliberately

indifferent to his serious medical needs. He will be granted leave to proceed on these

claims.

In addition, the Clerk will be directed to add Warden Ron Neal as a defendant,

and Mr. Kimbrough will be granted leave to proceed against Mr. Neal in his official

capacity for injunctive relief to receive constitutionally adequate medical care for the

painful condition that developed in November 2020. Gonzalez v. Feinerman, 663 F.3d 311,

315 (7th Cir. 2011).

B. Mr. Kimbrough’s Allegation that Nurse Schneegas Retaliated Against Him.

Mr. Kimbrough’s complaint asserts that Nurse Schneegas retaliated against him

when she denied him care. To prevail on his First Amendment retaliation claim, [Mr.

Kimbrough] must show that (1) he engaged in activity protected by the First Amendment;

(2) he suffered a deprivation that would likely deter First Amendment activity in the

future; and (3) the First Amendment activity was at least a motivating factor in the

Defendants’ decision to take the retaliatory action.” Gomez v. Randle, 680 F.3d 859, 866

(7th Cir. 2012) (quotation marks and citations omitted). Here, Mr. Kimbrough notes that

Nurse Schneegas was aware of a lawsuit filed against other medical staff (ECF 2 at 27),

but he has not plead facts from which it can be plausibly alleged that her knowledge of a

lawsuit that she was not named in had any bearing on her decisions regarding Mr.

Kimbrough’s medical care for a separate medical condition. Thus, he may not proceed on

this claim.

C. Allegations against Wexford.

Mr. Kimbrough has also sued Wexford of Indiana, LLC, a private company that is

under contract to provide medical care to inmates housed at Indiana State Prison. A

private company performing a state function can be held liable to the same extent as a

municipal entity under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

See Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012) (Monell framework applies to

private company providing medical care at correctional facility). But a corporation

“cannot be held liable under § 1983 on a respondeat superior theory.” Calhoun v. Ramsey,

408 F.3d 375, 379 (7th Cir. 2005). Rather corporate liability exists only “when execution of

a [corporation’s] policy or custom . . . inflicts the injury.” Id.

Mr. Kimbrough alleges that Wexford has a policy of requiring medical personnel

to pursue less expensive alternatives prior to more expensive treatments. ECF 3 at 7; ECF

2 at 54-58. He alleges that these policies reduce and delay access to adequate care, and

caused the defendants to refuse to send Mr. Kimbrough to a specialist though it was clear

he was suffering from a serious medical condition they were unable to accurately

diagnose and treat. He specifically takes issue with the collegial review process. This

process requires a treating physician recommending outside testing or consultations to

discuss the condition and alternative, lower-cost treatment plans with the Regional

Medical Director, who frequently overrules the recommendations of the treating

physician in favor of less expensive alternatives, even where necessary to provide

constitutionally adequate medical care.

The policies Mr. Kimbrough describes are not, on their face, unconstitutional. As

noted by the Seventh Circuit, “administrative convenience and cost may be, in

appropriate circumstances, permissible factors for correctional systems to consider in

making treatment decisions.” Roe v. Elyea, 631 F.3d 843, 863 (7th Cir. 2011) (emphasis in

original). The Constitution is only violated when those factors are considered “to the

exclusion of reasonable medical judgment about inmate health.” Id. (emphasis in original).

See e.g. Barrow v. Wexford Health Servs., Inc., 816 F. Appx. 1, 5 (7th Cir. 2020) (noting that

Wexford’s policies of “collegial review” and “cost minimization” were not facially

unconstitutional and affirming dismissal of inmate’s claim because he did not provide

evidence he was injured by treatment decisions that were driven by cost-savings). Mr.

Kimbrough alleges that, in practice, the collegial review process routinely results in the

denial of necessary care, and that the policy resulted in him being denied constitutionally

adequate care in that it discouraged the treating physician from making referrals and,

when referrals were made, they were overruled. While further factual development may

demonstrate that his care was not constitutionally inadequate or that the care he received

(or lack thereof) was not due to the alleged policy, Mr. Kimbrough’s complaint plausibly

alleges that the policies he describes resulted in constitutionally inadequate care.

D. Motion for Preliminary Injunction.

As a final matter, Mr. Kimbrough’s request for a preliminary injunction must be

addressed. “[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). “A plaintiff seeking a

preliminary injunction must establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat.

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

As to the first prong, “the applicant need not show that it definitely will win the

case.” Illinois Republican Party v. Pritzker, 973 F.3d 760, 763 (7th Cir. 2020). However, “a

mere possibility of success is not enough.” Id. at 762. “A strong showing . . . normally

includes a demonstration of how the applicant proposes to prove the key elements of its

case.” Id. at 763 (quotation marks omitted).

As to the second prong, “[i]ssuing a preliminary injunction based only on a

possibility of irreparable harm is inconsistent with . . . injunctive relief as an extraordinary

remedy that may only be awarded upon a clear showing that the plaintiff is entitled to

such relief.” Winter, 555 U.S. at 22. “Mandatory preliminary injunctions – those requiring

an affirmative act by the defendant – are ordinarily cautiously viewed and sparingly

issued [because] review of a preliminary injunction is even more searching when the

injunction is mandatory rather than prohibitory in nature. Mays v. Dart, 974 F.3d 810, 818

(7th Cir. 2020) (quotation marks omitted).

Here, Mr. Kimbrough requests that the court order that his condition be evaluated

and, if necessary, treated by a qualified specialist. ECF 3 at 1. He is entitled only to

adequate medical care as required by the Constitution. There may be multiple methods

of providing this care, and Mr. Kimbrough cannot dictate how it is provided.

The PLRA circumscribes the scope of the court’s authority to enter an

injunction in the corrections context. Where prison conditions are found to

violate federal rights, remedial injunctive relief must be narrowly drawn,

extend no further than necessary to correct the violation of the Federal right,

and use the least intrusive means necessary to correct the violation of the

Federal right. This section of the PLRA enforces a point repeatedly made by

the Supreme Court in cases challenging prison conditions: Prison officials

have broad administrative and discretionary authority over the institutions

they manage.

Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012) (quotation marks, brackets, and citations

omitted). Therefore, injunctive relief – if granted – would be limited to requiring that Mr.

Kimbrough be provided with constitutionally adequate medical care for his condition, as

required by the Eighth Amendment. Mr. Kimbrough’s motion for a preliminary

injunction will be taken under advisement. The Warden will be required to respond to

the motion and Mr. Kimbrough will have an opportunity to file a reply.

For these reasons, the court:

(1) GRANTS John Wesley Kimbrough, III’s Motion to Correct Record (ECF 6) and

DIRECTS the Clerk to correct the pagination of his Complaint (ECF 1) and Motion for

Preliminary Injunction (ECF 3) as explained in the motion;

(2) DIRECTS the Clerk to add the Warden of the Indiana State Prison in his official

capacity as a defendant;

(3) GRANTS John Wesley Kimbrough, III leave to proceed against the Warden of

Indiana State Prison in his official capacity for injunctive relief to provide constitutionally

adequate treatment for the painful condition that developed in November 2020, as

required by the Eighth Amendment;

(4) GRANTS John Wesley Kimbrough, III leave to proceed against Nurse

Rhiannon Schneegas, Dr. Nancy Marthakis, Nurse Deanna Laughlin, and Regional

Medical Director Michael Mitchief in their individual capacity for compensatory and

punitive damages for providing constitutionally inadequate treatment for the painful

condition that developed in November 2020, in violation of the Eighth Amendment;

(5) GRANTS John Wesley Kimbrough, III leave to proceed against Wexford of

Indiana, LLC for compensatory and punitive damages for following a policy of denying

necessary medical care that resulted in him receiving constitutionally inadequate care for

the painful condition that developed in November 2020, in violation of the Eighth

Amendment

(6) DISMISSES all other claims;

(7) DIRECTS the Clerk to request Waiver of Service from (and if necessary, the

United States Marshals Service to serve process on) the Warden of Indiana State Prison

at the Indiana Department of Correction, with a copy of this order, the complaint (ECF

2), and the motion for preliminary injunction (ECF 3) pursuant to 28 U.S.C. § 1915(d);

(8) DIRECTS the Clerk to request Waiver of Service from (and if necessary, the

United States Marshals Service to use any lawful means to locate and serve process on)

Nurse Rhiannon Schneegas, Dr. Nancy Marthakis, Nurse Deanna Laughlin, Regional

Medical Director Michael Mitchief, and Wexford of Indiana, LLC, at Wexford of Indiana,

LLC, with a copy of this order, the complaint (ECF 2), and the motion for preliminary

injunction (ECF 3) pursuant to 28 U.S.C. § 1915(d);

(9) DIRECTS the Clerk to fax or email a copy of the request for waiver of service,

this order, the complaint (ECF 2), and the motion for preliminary injunction (ECF 3) to

the Warden of the Indiana State Prison;

(10) TAKES the Motion for Preliminary Injunction (ECF 3) UNDER

ADVISEMENT;

(11) ORDERS the Warden of Indiana State Prison to respond to the Motion for

Preliminary Injunction (ECF 3) and file an affidavit or declaration with the court,

explaining how John Wesley Kimbrough, III’s painful condition is being treated in a

manner that comports with the Eighth Amendment’s requirements by June 23, 2021;

(12) GRANTS John Wesley Kimbrough, III, until July 14, 2021, to file a reply to the

Warden’s response;

(13) ORDERS the Indiana Department of Correction and Wexford of Indiana, LLC

to provide the full name, date of birth, and last known home address of any defendant

who does not waive service, if it has such information; and

(14) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Warden of Indiana State Prison,

Nurse Rhiannon Schneegas, Dr. Nancy Marthakis, Nurse Deanna Laughlin, Regional

Medical Director Michael Mitchief, and Wexford of Indiana, LLC to respond, as provided

for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claims

for which the plaintiff has been granted leave to proceed in this screening order.

SO ORDERED.

June 7, 2021 s/ Damon R. Leichty

Judge, United States District Court