The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JASON SETH PERRY, )
)
Plaintiff, )
)
v. ) No. 1:18-cv-03373-JRS-TAB
)
GREGORY, et al. )
)
Defendants. )
Order Discussing Motion for Preliminary Injunction
Plaintiff, Jason Seth Perry (“Perry”) initiated this lawsuit alleging that his medical
providers have been deliberately indifferent to a variety of medical conditions. He has filed several
motions for a preliminary injunction and temporary restraining order. He seeks injunctive relief
in the form of treatment for chronic Hepatitis C (“HCV”) and evaluation by various medical
specialists for other alleged medical conditions. More specifically, Perry requests that this Court
order the defendants to send him to be evaluated by a qualified ear, nose and throat specialist
(“ENT”); liver specialist; heart specialist; lung specialist; and brain specialist. Dkt. 105, p. 2. Mr.
Perry also generally requests treatment for hepatitis A and hepatitis B.
I. Preliminary Injunction Standard1
“A preliminary injunction is an extraordinary equitable remedy that is available only when
the movant shows clear need.” Turnell v. Centimark Corp., 796 F.3d 656, 661 (7th Cir. 2015). “To
survive the threshold phase, a party seeking a preliminary injunction must satisfy three
requirements.” Valencia v. City of Springfield, Illinois, 883 F.3d 959, 966 (7th Cir. 2018) (internal
1 Perry’s motions are labeled as motions for Temporary Restraining Order and a Preliminary Injunction.
Because the defendants have had the opportunity to respond to his motions, they are properly treated as
motions for preliminary injunction. Fed. R. Civ. P. 65.
quotations omitted)). It must show that: (1) “absent a preliminary injunction, it will suffer
irreparable harm in the interim period prior to final resolution of its claims”; (2) “traditional legal
remedies would be inadequate”; and (3) “its claim has some likelihood of succeeding on the
merits.” Id. Only if the moving party meets these threshold requirements does the court then
proceed to the balancing phase of the analysis. Id. In the balancing phase, “the court weighs the
irreparable harm that the moving party would endure without the protection of the preliminary
injunction against any irreparable harm the nonmoving party would suffer if the court were to grant
the requested relief.” Id.
II. Facts
Perry is currently incarcerated at the Wabash Valley Correctional Facility. His current
medical conditions include, acid reflux disease, postnasal drip, chronic HCV mild-moderate
restrictive airway disease, and antisocial personality disorder. He also sometimes complains of low
back pain.
A. Hepatitis C
Perry has been diagnosed with chronic HCV, which is a viral disease that causes
inflammation of the liver. Dkt. 110-3, ¶ 6. Chronic HCV is treatable with Direct-Acting Antiviral
oral medications (“DAAs”). Id. At the time the defendants responded to the motion for preliminary
injunction, Perry’s chronic HCV was being monitored but not treated with DAAs. Id. However,
the defendants explained that Perry is in the next group of HCV patients scheduled to receive
DAA treatment. Id. He has signed a medical consent form to be treated with DAAs. Dkt. 110-1,
¶ 8. Perry contends in reply in support of his motion for injunctive relief that he has been denied
DAAs because he has too much Zantac for his gastroesophageal reflux disease (“GERD.”) Dkt.
115. Acid suppressing medications such as Zantac cannot be taken with the antiviral therapy used
to treat HCV. Dkt. 121-1, ¶ 7. Perry is aware of this, as this information is stated in the consent of
treatment that he signed. Id. Nursing staff has also explained to him that he cannot take Zantac or
any other acid suppressing medication while he is receiving antiviral therapy. Id. His Zantac was
previously prescribed “KOP,” which means that he could keep the medication with him and take as
needed. Id., ¶ 8. However, to ensure that Perry does not take acid suppressing medications while
receiving antiviral therapy, one of the nurses took Perry’s KOP Zantac. Id. Perry can take Zantac
or antiviral therapy, but he cannot take both. Id., ¶ 9.
B. Hepatitis B and A
Perry believes he is a “carrier” of hepatitis B. Dkt. 110-1, ¶ 9. It appears that someone
inadvertently entered in Perry’s chart that he is a carrier of hepatitis B. Id. But, Perry does not
have hepatitis B and he is not a carrier of hepatitis B. Id. Based on his lab results, Perry is
immune from getting hepatitis B. Id. This means that Perry has, at some point in his life, received
the hepatitis B vaccine. Id.
On March 21, 2019, Perry received a vaccine for hepatitis A, which should make him
immune from contracting the virus. Id. ¶ 10. He will receive a follow-up hepatitis A vaccination
in 6-12 months from initial injection. Id.
C. Shortness of Breath and Chest Pain
Perry sometimes complains of difficulty breathing with chest pain. Dkt. 110-1, ¶ 11. In
March of 2018, an officer refused Perry’s request for a breathing treatment. Dkt. 105-1, p. 11. In
response to his grievance on this issue, Perry was told that this should not be an issue again. Id., p.
12. Dkt. He has been prescribed rescue inhalers and is sometimes given breathing treatments for
his difficulty breathing. Dkt. 110-1, ¶ 10. On February 1, 2019, Dr. Byrd sent Perry for a chest
x-ray due to his complaints of difficulty breathing, chronic cough and chest pain. Id. The x-ray
was interpreted by an outside radiologist who determined that the x-ray was normal. Id. In March
2019, Dr. Byrd ordered pulmonary function test for Perry to determine how well his lungs are
working. Id. The test indicated that Perry has mild restriction of the lungs. Id. Perry’s Spirometry2
is consistent with less than full inspiration/expiration while completing the test, which is not
uncommon with spirometry. Id. Medical staff will repeat spirometry if ongoing complaints of
shortness of breath or increased shortness of breath. Id. Perry also attributes his shortness of breath
to anxiety over his incarceration. Id. Currently, Perry is prescribed an inhaler, which he reports
relieves his symptoms of shortness of breath. Id. There is no clinical reason to have Perry
evaluated by a “lung specialist.” Id.
Perry’s complaints of chest pain are often associated with his shortness of breath. Dkt.
110-1, ¶ 12. There are also times where Perry complains of chest pain that lasts for several months
and radiates up and down the whole left side of his body. Id. None of Perry’s complaints of chest
pain have indicated a cardiac event, including a “heart attack.” Id.
On March 22, 2019, Dr. Byrd obtained an electrocardiogram (“ECG”) in response to
Perry’s complaints of chest pain for two months. Id. An ECG can detect irregularities in the
heart rhythm (“arrhythmias”), blocked or narrowed arteries in the heart (coronary artery disease)
that are causing chest pain or a heart attack, previous heart attack damage, and other problems with
the structure of the heart. Id. The machine used to perform the ECG generates an interpretation.
Id. However, the machine’s interpretation cannot be relied upon for diagnosis, mainly because
the parameters set by the manufacturer are too strict and do not allow for any variance. Id. Perry’s
2 Spirometry is a common office test used to assess how well someone’s lungs work by measuring
how much air they inhale, how much they exhale, and how quickly they exhale. Mayo Clinic,
Spirometry, https://www.mayoclinic.org/tests-procedures/spirometry/about/pac-20385201
(visited July 2, 2019).
ECG interpretation stated the following: sinus bradycardia, left axis deviation, abnormal ECG.
Id. Normal sinus rhythm means a normal heart rhythm with a normal rate of 60 to 100 beats per
minute. Id. Sinus bradycardia means a normal heart rhythm with a rate of less than 60 beats per
minute. Id. In this case, Perry’s rate was 58 beats per minute. Id. A heart rate of 58 with a
normal rhythm and no signs or symptoms indicating a problem with blood flow in and out of the
heart is not alarming. Id. Perry’s heart rate is generally in the normal range. Id. On March 20,
2019, when nursing staff evaluated Perry for his complaints of chest pain for two months, his heart
rate was 96 beats per minute and his blood pressure was also normal at 120/84. Id. As for the
left axis deviation, this is a very common abnormal ECG finding that can be a normal variant
due to the patient’s body shape and weight. Id. It can also be associated with an arrythmia or it can
be a sign of a heart attack. Id. In Perry’s case, he did not have an arrythmia and there were no
other signs of a heart attack on the ECG and he had no symptoms of having a heart attack. Id.
Dr. Byrd determined that there is no clinical reason to send Perry to be evaluated by a cardiologist.
Id.
D. Other Complaints
Perry asks to be referred to a “brain specialist,” but he has not complained of any
symptoms that would indicate that he requires evaluation by a neurologist. Id. ¶ 13. Perry has
also complained of bumps in the back of his throat and has requested an endoscopy. Id. ¶ 14. Dr.
Byrd has explained to Perry that what he sees in the back of his throat are his lingual tonsils and
taste buds. Id. Perry also complains of a sore throat with mucus. Id. Dr. Byrd has explained to
Mr. Perry that he likely has postnasal drip from allergies and he has prescribed allergy medicine
for that condition. Id. At this time, there is no clinical reason to send Perry to an ear, nose and
throat specialist (“ENT”) for these complaints. Id.
Perry has also complained of lumps and bumps all over his body and believes he has
lymphoma. Id. ¶ 15. There is no indication that Perry has lymphoma. Id. Perry claims he has a
family history of cancer, and other non-specific diseases, for which he seeks evaluation by a
specialist; however, a family history, standing alone, does not necessitate evaluation by an outside
specialist. Id.
III. Discussion
As explained below, Perry has failed to establish his right to injunctive relief. Perry has not
shown that he is likely to succeed on the merits of his claims, that he will suffer irreparable harm
if immediate relief is not granted, or that his legal remedies are inadequate.
A. Likelihood of Success on the Merits
To state a valid Eighth Amendment claim for inadequate medical care, Perry must “allege
acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical
needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A deliberate indifference claim is comprised
of two elements: one objective and one subjective. McGee v. Adams, 721 F.3d 474, 480 (7th Cir.
2013). The defendants do not dispute that Perry suffers from serious medical conditions. To
demonstrate deliberate indifference to a serious medical condition, Perry must show that medical
decisions were “such a substantial departure from accepted professional judgment, practice, or
standards, as to demonstrate that [they] ... did not base the decision[s] on such a judgment.” Proctor
v. Sood, 863 F.3d 563, 568 (7th Cir. 2017).
1. Hepatitis C
The defendants argue that Perry does not have a likelihood of success on the merits of his
claims related to the care he is receiving for his HCV. In their initial response to the motion for a
preliminary injunction, they argue that he will receive DAA treatment soon. In reply in support of
his motion, Perry asserted that he has been denied that treatment. The defendants explain that Perry
cannot receive antiviral therapy while he is taking acid suppressing medication. In short, the
evidence before the Court is that the defendants are willing and prepared to provide Perry with the
request treatment for his HCV if he is not taking acid suppressing medications. Accordingly, no
injunctive relief appears to be necessary as to this claim.
2. Hepatitis B and A
The defendants point out that Perry’s lab results show that he is immune from getting
Hepatitis B. They also state that he has received a vaccine for Hepatitis A and will receive a follow-
up vaccination. Perry contends that he was given the Hepatitis B vaccine in 2002, but he did not
receive the necessary follow-up vaccinations. He concludes therefore that he cannot be immune to
Hepatitis B. In face of the evidence that Perry’s blood tests show that he is immune to Hepatitis B,
not that he has Hepatitis B, and that he has received a vaccination for Hepatitis A and will receive
a follow-up vaccination, he has failed to show that the defendants have exhibited deliberate to
these conditions. He therefore has not shown a likelihood on the success on the merits of these
claims.
3. Shortness of Breath and Chest Pain
The defendants argue that Perry is receiving adequate treatment for his shortness of breath
and chest pain. Perry has been prescribed rescue inhalers and breathing treatments for his difficulty
breathing. He has also received a chest x-ray and a pulmonary function test, which did not indicate
a need for further treatment. Perry also received an ECG for his complaints of chest pain. Perry’s
result showed a heartrate of 58 beats per minute. A heartrate of 58 with a normal rhythm and no
signs or symptoms indicating a problem with blood flow is normal. The ECG also indicated a left
axis deviation, which can either indicate normal function or can be a sign of a heart attack. Because
Perry had no other signs of a heart attack, Dr. Byrd states that he did not have one and does not
need to see a cardiologist. Perry argues that because Dr. Byrd asserts that there are two potential
reasons to explain the abnormal ECG result, one of which would indicate a serious heart condition,
then he requires outside evaluation to determine whether he has a serious heart condition.
Perry has failed to show a reasonable likelihood of success on the merits of his claims
regarding his shortness of breath and chest pain at this time. He has received diagnostic testing and
treatment for his shortness of breath. He has not presented evidence that this testing or treatment
is outside the standards of profession judgment. In addition, the defendants have presented
evidence that Perry has received testing and evaluation for his complaints of chest pain. Dr. Byrd’s
conclusion that Perry does not need to see a cardiologist is based not only on his evaluation of the
ECG, but on his understanding of the ECG when considered in conjunction with other indications
of Perry’s heart health. Because Perry has not presented evidence to suggest that this conclusion
is “such a substantial departure from accepted professional judgment, practice, or standards, as to
demonstrate that [Dr. Byrd] ... did not base the decision[s] on such a judgment” he has failed to
show a reasonable likelihood of success on the merits of this claim. See Proctor, 863 F.3d at 568.
4. Other Medical Complaints
Finally, Perry has not shown a reasonable likelihood of success on the merits of any of his
other claims. He has not explained why he requires evaluation by a neurologist. In addition, Dr.
Byrd has explained that the bumps in the back of his throat are his lingual tonsils and taste buds.
Perry has also complained of lumps and bumps all over his body and believes he has lymphoma.
But there is no clinical indication to believe Perry has cancer of any kind. His speculation is
insufficient. He has therefore failed to show that he has a reasonable likelihood of success on the
merits of these claims.
B. Irreparable Harm
The defendants also argue that Perry has not shown that he will suffer irreparable harm.
“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). As already explained, the
defendants have shown that they are ready and willing to provide him treatment for his HCV and
that he is immune from Hepatitis B and has received a vaccination for Hepatitis A. He therefore
cannot show irreparable harm based on any failure to treat or ensure his immunity to hepatitis. In
addition, he has received evaluation and treatment for his complaints of shortness of breath and
chest pain. He has not presented evidence that he will suffer any harm that cannot be repaired
because of any alleged failure to treat these conditions. He also has not shown that he has cancer
or a brain disorder that requires outside specialty care and thus has not shown any potential harm
from these alleged conditions.
C. Adequate Remedy at Law
Finally, the defendants have shown that Perry has an adequate remedy at law for his
medical complaints – he can seek monetary compensation for treatment he believes has been
inadequate.
III. Conclusion
The evidence before the Court at this stage is that Perry has received evaluation and
treatment for the conditions that he complains of in this case. The defendants have indicated that
he will receive treatment for his HCV. Perry has failed to present sufficient evidence to show that
the care he has received is the result of deliberate indifference to his conditions or that he will
suffer harm that cannot be remedied at law. Accordingly, his motions for injunctive relief, dkt.
[103], [105], [141], [145], [146], are each denied. His motions to supplement, dkt. [130], and dkt.
[150], are granted to the extent that the proposed exhibits have been considered.
IT IS SO ORDERED.
Date: 10/17/2019
JAMES R. SWEENEY II, JUDGE
United States District Court
Southern District of Indiana
Distribution:
JASON SETH PERRY
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