Bean v. Marthakis

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JOSHUA BEAN,

Plaintiff,

v. CAUSE NO. 3:24-CV-142-DRL-MGG

NANCY MARTHAKIS, WILKS,

STEPHANIE RILEY, DOCTOR,

CHRISTINA CHICO, KIMBERLY

PFLUGHAUPT, DIANE THEWS,

KAREN J. FAGAN, TIFFANY TURNER,

JACQUELINE MONACO, TEAGAN

NELSON, ROXANNE LISTON,

IRASEMA A. HERNANDEZ, BETTY

BOGGS, RON NEAL, and KRISTEN

DAUSS,

Defendants.

OPINION AND ORDER

Joshua Bean, a prisoner without a lawyer, filed a complaint and a motion seeking

injunctive relief. ECF 1 and 2. “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)

(quotations and citations omitted). Nevertheless, under 28 U.S.C. § 1915A, the court 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 a defendant who is immune from such relief.

Mr. Bean alleges he is being denied adequate medical treatment for a heart

condition that began after he received a COVID vaccine booster in July 2022. ECF 1 ¶ 7.

This is not the first time he has raised these claims. In Bean v. Marthakis, 3:23-cv-747 (N.D.

Ind. filed August 1, 2023), he sued five of these same defendants based on events that

happened from July 21, 2022, to February 5, 2023. The court screened that complaint and

found it did not state a claim. Mr. Bean voluntarily dismissed that case. Almost a year

later, he filed this case.

Here, he sues fourteen medical providers and two high-ranking Indiana

Department of Correction officials. To prevail on an Eighth Amendment claim for a

denial of medical treatment, Mr. Bean 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 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 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). It is not enough that a

medical professional be mistaken in his or her judgment. Hildreth v. Butler, 960 F.3d 420,

425–26 (7th Cir. 2020). To state a claim, an inmate must plausibly allege the treatment

decision was “blatantly inappropriate.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014).

A. Nancy B. Marthakis, MD.

Dr. Marthakis was one of the previously sued defendants whom the court found

Mr. Bean did not state a claim based on events through February 5, 2023. Because his

prior lawsuit was dismissed without prejudice, the court will review all the allegations

against Dr. Marthakis.

With this complaint, Mr. Bean provided 137 pages of medical records. ECF 1-1.

They show he was seen for chest pain on August 12, 2022. Id. at 1. He was examined by a

nurse using the protocol for Emergency Nursing Chest Pain, which included a chest and

cardiac exam—all of which were normal. Id. at 2. He was given an EKG that was also

normal. Id. at 4. On August 5, 2022, the results of an extensive blood test were all normal

except for slightly elevated LDL cholesterol. Id. at 6-7. His LDL cholesterol was 117 –

which is near optimal. See Lipid Panel, John Hopkins Medicine.1

On September 6, 2022, Mr. Bean was seen by an Advanced Practice Nurse (APN)

for complaints of ongoing chest pain and Xanthomas. ECF 1-1 at 8. Xanthomas is a skin

condition that can be caused by high blood cholesterol levels. Xanthoma, Mount Sinai

1 See https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/lipid-

panel#:~:text=Near%20optimal%3A%20100%20to%20129,190%20mg%2FdL%20and%20higher.

Hospital.2 The APN performed a cardiovascular exam that was normal. ECF 1-1 at 10.

She ordered another EKG, more lab work, and a chest x-ray. Id. All the test results were

normal, except for his alkaline phosphatase which very slightly low, but his prior test for

it was normal. Id. at 12, 13, 14, and 17.

On October 11, 2022, Mr. Bean saw Dr. Marthakis.3 ECF 1 ¶ 13. He alleges she was

deliberately indifferent because she prescribed prednisone, a steroid, for his heart

condition. Id. However, none of his test results showed he had a heart condition. He

complained of chest pain and prednisone “may relieve the inflammation, pain and

discomfort of many different diseases and conditions.” Prednisone and other corticosteroids,

Mayo Clinic.4 The complaint does not plausibly allege Dr. Marthakis was deliberately

indifferent when she prescribed prednisone.

Mr. Bean alleges Dr. Marthakis was deliberately indifferent to his chest pain

during an appointment on October 24, 2022. ECF 1 ¶ 14. The medical record for that visit

indicates the reason for the visit was because Mr. Bean “wants fiber [and] reported he

used to buy the psyllium fiber powder from OTC/commissary and has not been able to

orde[r] it.” ECF 1-1 at 18. After the appointment, Mr. Bean filed a grievance and was told

“Provider did not order fiber . . . you were educated on ordering foods high in fiber off

2 See https://www.mountsinai.org/health-library/diseases-

conditions/xanthoma#:~:text=Xanthomas%20are%20lesions%20on%20the,frequently%20yello

wish%2Dcolored%20skin%20lesions.

3 The complaint says this meeting occurred on October 11, 2023, but the medical records and the

chronological order of the complaint clearly show this was a scrivener’s error and the meeting

was on that date in 2022. See ECF 1-1 at 15.

4 See https://www.mayoclinic.org/steroids/art-20045692.

of Commissary.” Bean v. Marthakis, 3:23-cv-747, ECF 1-1 at 1. Before the appointment, on

October 19, 2022, Mr. Bean put in a request for healthcare related to chest pain. ECF 1-1

at 20. However, the October 24, 2024, visit was not related to that request for health care

– it was an “Established patient” visit. ECF 1-1 at 18. It was not a sick call visit. See ECF

1-1 at 1, 72, and 131 (medical records showing “sick visit” or “sick call”). Based on the

medical records provided, the complaint does not plausibly allege Dr. Marthakis was

deliberately indifferent during the October 24, 2022, visit.

On November 23, 2022, a nurse practitioner saw him for chest pain and ordered

an echocardiogram. ECF 1-1 at 21-23. On December 29, 2022, Dr. Marthakis discussed his

chest pain and the results of that test. Id. at 26-28. Mr. Bean alleges she was deliberately

indifferent because she prescribed him Crestor (the generic version is called rosuvastatin)

and refused to conduct further tests. ECF 1 at ¶ 15. He asserts rosuvastatin only lowers

cholesterol and would do nothing to treat his pain, but “[l]owering your blood level of

cholesterol and fats with rosuvastatin has been shown to prevent heart disease, angina

(chest pain), strokes, and heart attacks.” Rosuvastatin, National Library of Medicine

(emphasis added).5 Dr. Marthakis also ordered lipid testing during this visit. The

complaint does not plausibly allege Dr. Marthakis was deliberately indifferent when she

prescribed rosuvastatin and lipid testing during this visit.

On July 18, 2023, a nurse saw Mr. Bean for chest pain and dizziness. ECF 1-1 at 44-

45. The nurse called Dr. Marthakis. Id. at 45. Mr. Bean alleges Dr. Marthakis was

5 See https://medlineplus.gov/druginfo/meds/a603033.html.

deliberately indifferent because she did not immediately refer him to a cardiologist. ECF

1 ¶ 16. The medical record shows Mr. Bean was stable. ECF 1-1 at 45. He told the nurse

he was able to relieve the pain by eating high protein foods. Id. He had already received

extensive cardiac evaluations. Id. at 4, 6-7, 10, 12-14, 25, and 40. A referral to a cardiologist

had recently been denied. Id. at 36 and 41. Mr. Bean was scheduled for a follow up visit

with his provider. Id. at 45. The complaint does not plausibly allege Dr. Marthakis was

deliberately indifferent for not immediately referring him to a cardiologist at that visit.

On July 20, 2023, Mr. Bean was found unresponsive in his cell. ECF 1 ¶ 17. After

guards found him, he got up and walked to medical. ECF 1-1 at 47. Mr. Bean alleges it

was deliberately indifferent for Dr. Marthakis to refer him to Dr. Martin because his chest

pain and dizziness might be caused by his mental health medications. He argues he had

those symptoms before he began taking bupropion. However, chest pain, dizziness and

loss of consciousness are side effects and/or symptoms of bupropion overdose.

Bupropion, National Library of Medicine.6 Mr. Bean wanted to be given immediate heart

treatment, but his vital signs were normal and he was scheduled to see Dr. Martin later

the same day. ECF 1-1 at 46-47. There is no indication Mr. Bean was in immediate need

of medical treatment. The complaint does not plausibly allege Dr. Marthakis was

deliberately indifferent for referring him to Dr. Martin to reevaluate his mental health

medications.

6 See https://medlineplus.gov/druginfo/meds/a695033.html#side-effects.

Mr. Bean alleges Dr. Marthakis was deliberately indifferent because she did not

order an EKG or other testing on August 7, 2023, when he reported chest pain and other

heart related symptoms to a nurse. ECF 1 ¶ 18. The complaint includes many medical

records, but none for that date. Included are two EKGs from shortly before: one on July

25, 2023, and another on July 26, 2023. ECF 1-1 at 48 and 53. Also included is an EKG and

an echocardiogram performed the next day on August 8, 2023. Id. at 70-71. Prisoners are

“not entitled to demand specific care[, nor are they] entitled to the best care possible.”

Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). The complaint does not plausibly allege

Dr. Marthakis was deliberately indifferent for waiting a day to have additional testing

performed.

Mr. Bean alleges Dr. Marthakis was deliberately indifferent because she did not

provide him with treatment on September 7, 2023, after he told her that he was having

chest pain and other heart related symptoms. ECF 1 ¶ 19. There is no medical record of

this visit, but records show she had referred him for a chest x-ray that was done on

August 23, 2023, he had an EKG on September 11, 2023, and Dr. Marthakis ordered a

chest CT that was done on September 21, 2023. ECF 1-1 at 74, 96, and 100. The complaint

does not plausibly allege Dr. Marthakis was deliberately indifferent.

Mr. Bean alleges Dr. Marthakis was deliberately indifferent on September 14, 2023,

when she continued him on several medications which he believes help his heart but

make it difficult for him to breathe. ECF 1 ¶ 20. He also alleges she was deliberately

indifferent for not treating his chest pain. Id. Medical records show he said the medication

“brings down the ‘inflammation in and around my heart.’” ECF 1-1 at 97. Dr. Marthakis

did continue him on those medications. Id. at 99. She also noted extensive testing had not

yielded a diagnosis, that he was schedule for a chest CT, and that she discussed his case

with Psychiatry/Dr. Martin. Id. A psychological evaluation had been conducted only

days before this visit (on September 8, 2023) “due to [Mr. Bean] being fixated on having

a heart condition with no evidence suggesting this.” Id. at 87.

Patient said he has difficulty breathing and claimed that he was out of

breath walking to writer’s office and was out of breath right now. He also

said he consistently has chest pain. He described his symptoms as

“overwhelming” and “debilitating.” Patient stated that he has to “remind

[him]self to breathe” and that he “wakes up suffocating.” He did not

present with any signs of trouble breathing nor pain/discomfort (no

hyperventilating, no body clutching, no facial grimacing/wincing, no

gasping, speech rate/tone/volume was [within normal limits]). He was

respectful to writer but presented as somewhat smug.

ECF 1-1 at 87 (brackets omitted). The complaint does not plausibly allege Dr. Marthakis

was deliberately indifferent to his chest pain or the impact of his medication on his

breathing.

Mr. Bean saw Dr. Marthakis on October 4, 2023, to discuss his Chest CT. ECF 1-1

at 116. She ordered that CT in response to his complaints of shortness of breath. Id. at 100.

She told him the results indicated he had mild emphysema. ECF 1 ¶ 21. “Emphysema is

a type of COPD (chronic obstructive pulmonary disease). COPD is a group of lung

diseases that make it hard to breathe and get worse over time.” Emphysema, National

Library of Medicine.7 The medical records show Dr. Marthakis told Mr. Bean he had mild

COPD. ECF 1-1 at 117. Mr. Bean alleges he “was coughing really bad.” ECF 1 ¶ 21. The

7 See https://medlineplus.gov/emphysema.html.

medical records show he began coughing after “he did peak flows.” ECF 1-1 at 116. Peak

flows are done with a peak flow meter which “can tell you and your health care provider

how well you blow air out of your lungs.” How to Use Your Peak Flow Meter, National

Library of Medicine.8 The peak flow test required Mr. Bean to “[b]low out as hard and

fast as [he could] in a single blow” and to repeat this several times. Id. This testing

monitored Mr. Bean’s shortness of breath.

Mr. Bean complained that the problem was with his heart and not his lungs. ECF

1 ¶ 21. He alleges Dr. Marthakis was deliberately indifferent On October 4, 2023, for not

ordering a heart CT, for not treating his “pulse being stuck in a permanent state of

tachycardia,” for not addressing his feeling of suffocation, and for not ordering another

echocardiogram. Id. He alleges she was deliberately indifferent for ordering nurses to not

give him an EKG and to place him in a medical holding cell when he was waiting to be

returned to his housing unit from medical. Id. ¶ 22.

The medical records attached to the complaint demonstrate Dr. Marthakis was not

deliberately indifferent. The echocardiogram performed two months earlier did not show

a significant problem with his heart. See ECF 1-1 at 71. She was testing and monitoring

his lung problems which the Chest CT confirmed. “Tachycardia is the medical term for a

heart rate that is faster than 100 beats per minute.” Tachycardia, Yale Medicine.9

Tachycardia is not always abnormal. Id. Over the prior fourteen months before this visit,

8 See https://medlineplus.gov/ency/patientinstructions/000043.htm.

9 See https://www.yalemedicine.org/conditions/tachycardia.

Mr. Bean’s pulse rate was recorded at least twenty-six times. ECF 1-1 at 1, 4, 9, 15, 22, 27,

27, 29, 44, 46, 48, 53, 55, 58, 60, 61, 66, 68, 70, 72, 76, 82, 90, 96, 98, 103, and 108. On only

four prior occasions was his pulse above 100. ECF 66, 82, 90, and 96. His pulse was not

“stuck in a permanent state of tachycardia” as he alleges. Nevertheless, Dr. Marthakis

ordered monitoring of his pulse and blood tests. ECF 1-1 at 118-19.

Mr. Bean alleges Dr. Marthakis was deliberately indifferent by refusing to allow

him to see specialists outside of the prison. ECF 1 ¶ 23. Mr. Bean was seen by Meridian

Radiology on September 7, 2022; December 8, 2022; August 8, 2023; and August 23, 2023.

ECF 1-1 at 12, 25, 71, and 74. He was seen by Franciscan Health on September 21, 2023.

Id. at 100. Prisoners are “not entitled to demand specific care[, nor are they] entitled to

the best care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). “[M]edical

professionals are not required to provide ‘proper’ medical treatment to prisoners, but

rather they must provide medical treatment that reflects ‘professional judgment, practice,

or standards.’” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008). “[A] constitutional

violation exists only if no minimally competent professional would have so responded

under those circumstances.” Johnson v. Dominguez, 5 F.4th 818, 825 (7th Cir. 2021)

(citations and quotations omitted). This complaint does not plausibly allege that Dr.

Marthakis was deliberately indifferent and the claims against her will be dismissed.

B. Kimberley Pflughaupt, DNP (Doctorate of Nursing Practice).

DNP Pflughaupt was one of the previously sued defendants whom the court

found Mr. Bean did not state a claim based on events through February 5, 2023. Because

his prior lawsuit was dismissed without prejudice the court will review all the allegations

against DNP Pflughaupt.

On January 13, 2023, DNP Pflughaupt saw Mr. Bean for chest pain. ECF 1-1 at 29.

On January 24, 2023, she requested he be sent for an outside cardiology evaluation. Id. at

33. The cardiology referral was denied by Dr. Wilks who recommended “an exercise

stress echo.” Id. at 36. On January 31, 2023, she requested a stress echo test. Id. at 37. Mr.

Bean alleges she was deliberately indifferent to have requested a stress echo because she

originally requested a cardiology evaluation. ECF 1 ¶¶ 23-24. The cardiology evaluation

had been denied. It was not deliberately indifferent for DNP Pflughaupt to follow Dr.

Wilks’ recommendation and refer him for a stress echo test to continue to evaluate his

condition.

Mr. Bean alleges DNP Pflughaupt was deliberately indifferent on July 7, 2023,

because she did not request that he be seen by a cardiologist. ECF 1 ¶ 26. As noted, her

prior request was denied. See ECF 1-1 at 36. The complaint does not allege facts from

which it can be plausibly inferred that she was deliberately indifferent to have not tried

again on that date. Mr. Bean also alleges she was deliberately indifferent because she

reduced his prescription for Crestor. Medical records show he was taking 10mg on

January 31, 2023. Id. at 38. On July 18, 2023, they show he was taking 5mg. Id. at 45. It is

unclear why his dosage was reduced, but the complaint does not plausibly allege facts

showing the reduction was outside the range of professional judgment. Moreover, the

complaint does not allege Mr. Bean suffered any injury because of this reduction.

Mr. Bean alleges DNP Pflughaupt was deliberately indifferent on July 21, 2023,

when she prescribed him Mobic (the generic version is called meloxicam) in response to

his complaints of chest pain and did not refer him for a mental health exam though she

told him his symptoms were psychological. ECF 1 ¶ 27. “Meloxicam is in a class of

medications called nonsteroidal anti-inflammatory drugs (NSAIDs). It works by stopping

the body’s production of a substance that causes pain, fever, and inflammation.”

Meloxicam, National Library of Medicine.10 As for not referring Mr. Bean for a mental

health exam, he had a mental health appointment with Dr. Martin only the day before.

See ECF 1-1 at 47.

On August 24, 2023, Mr. Bean met with DNP Pflughaupt, and she told him a

cardiologist had reviewed his test results and recommended a Chest CT. ECF 1-1 at 75.

Mr. Bean disbelieves a cardiologist was consulted. ECF 1 ¶ 28. Even assuming DNP

Pflughaupt ordered a Chest CT without consulting a cardiologist, doing so was not

deliberately indifferent. He says she refused to do more until she had the test results, but

working to get a proper diagnosis was not deliberately indifferent and his medical

records show he was continued on aspirin, Crestor, and meloxicam. ECF 1-1 at 77.

On September 15, 2023, Mr. Bean alleges he went to medical where he again

complained of chest pain and breathing problems. ECF 1 ¶ 29. This was the day after he

had seen Dr. Marthakis with the same complaints where she noted that extensive testing

had not yielded a diagnosis, that a psychological evaluation found he complained of

10 See https://medlineplus.gov/druginfo/meds/a601242.html.

symptoms which were inconsistent with his behavior, and that he was scheduled for a

chest CT. ECF 1-1 at 97-99. Mr. Bean alleges DNP Pflughaupt was deliberately indifferent

because she told him there was nothing wrong with him. Id. This complaint does not

plausibly allege that Mr. Bean needed immediate medical treatment, that he suffered any

injury because of not receiving immediate treatment, or that DNP Pflughaupt was

deliberately indifferent for not providing him with treatment on that day.

On October 9, 2023, Mr. Bean alleges DNP Pflughaupt inaccurately documented

his coughing during his visit with her. ECF 1 ¶ 30. The medical record shows she

indicated he was “coughing a lot while in the office.” ECF 1-1 at 136. Medical records

show also noted his coughing was “forced [with] no obvious distress” and “when patient

left office and was out in hall cough was much less significant only coughed a couple of

times.” ECF 1-1 at 136. Even if her notes were inaccurate descriptions of his coughing, the

complaint does not plausibly show she was deliberately indifferent because she also

prescribed him an “albuterol inhaler” to be used as needed. “Albuterol is used to prevent

and treat difficulty breathing, wheezing, shortness of breath, coughing, and chest

tightness caused by lung diseases such as asthma and chronic obstructive pulmonary

disease (COPD; a group of diseases that affect the lungs and airways).” Albuterol Oral

Inhalation, National Library of Medicine.11 ECF 1-1 at 134 and 136.

Mr. Bean alleges DNP Pflughaupt refused to treat his rapid pulse on October 9,

2023. ECF 1 ¶ 30. His pulse was initially measured at 134 beats per minute. ECF 1-1 at

11 See https://medlineplus.gov/druginfo/meds/a682145.html.

134. The medical record shows she addressed this by rechecking his pulse after he

“calmed down” and it was only 102. Id. at 136. The complaint does not plausibly allege

she was deliberately indifferent because she monitored his pulse and saw that it dropped

when he was not as agitated.

C. Advanced Practice Nurse Diane Thews.

Mr. Bean alleges that Nurse Practitioner Thews refused him treatment for his heart

symptoms on May 4, 2023. ECF 1 ¶ 31. The complaint does not explain what symptoms

he had on that day, but the medical records show that other providers had previously

seen, tested, and treated him with EKGs, blood tests, a chest x-ray, echocardiograms, and

medications. See ECF 1-1 at 1-40. There is no indication he needed additional immediate

treatment by Nurse Practitioner Thews on that date.

Mr. Bean also alleges she told him he would be taken off his anti-depressant

medication if he continued to complain of heart related symptoms. Mr. Bean interpreted

this as a threat; but, as previously noted, chest pain is a side effect of bupropion (his anti-

depressant). See Bupropion, National Library of Medicine.12 Dr. Martin did discontinue

this medication for 30 days in July 2023. ECF 1 ¶ 56. This complaint does not plausibly

allege Nurse Practitioner Thews was deliberately indifferent when she told him this was

a possible course of treatment to address his chest pain.

Mr. Bean alleges Nurse Practitioner Thews refused him treatment for his heart

symptoms and difficulty breathing on August 30, 2023. ECF 1 ¶ 32. He alleges she told

12 See https://medlineplus.gov/druginfo/meds/a695033.html#side-effects.

him nothing could be done until he had his chest CT and a cardiologist review. Id. The

complaint does not indicate that Mr. Bean was having a medical emergency that required

immediate treatment. Medical records show other providers had seen and tested him in

the prior month with EKGs, an echocardiogram, and a chest x-ray. See ECF 1-1 at 48-85.

A chest CT had been requested and a cardiology consult was planned. Id. at 79-80. This

complaint does not plausibly allege Nurse Practitioner Thews was deliberately

indifferent on August 30, 2023.

Mr. Bean alleges Nurse Practitioner Thews refused to provide him with an

echocardiogram or other treatment on September 26, 2023, though he showed her his

EKG from September 11, 2023. ECF 1 ¶ 33. That EKG “show[ed] Sinus Tachycardia,

otherwise normal ECG.” ECF 1-1 at 95. “Sinus tachycardia is a regular cardiac rhythm in

which the heart beats faster than normal.” Sinus Tachycardia, National Library of

Medicine.13 “Tachycardia is the medical term for a heart rate that is faster than 100 beats

per minute.” Tachycardia, Yale Medicine.14 Mr. Bean’s heart rate during the EKG was

barely elevated at 105. ECF 1-1 at 96. Five days this incident with Nurse Practitioner

Thews, his chest CT indicated he had mild emphysema. Id. at 100. The complaint gives

no indication Mr. Bean was having a medical emergency when he met with Nurse

Practitioner Thews on September 26, 2023, that required immediate medical treatment.

Nor does it explain why the EKG results necessitated an echocardiogram or how it was

13 See https://www.ncbi.nlm.nih.gov/books/NBK553128/#:~:text=

Sinus%20tachycardia%20is%20a%20regular,when%20it%20occurs%20at%20rest.

14 See https://www.yalemedicine.org/conditions/tachycardia.

related to his mild emphysema. This complaint does not plausibly allege Nurse

Practitioner Thews was deliberately indifferent on September 26, 2023.

Mr. Bean alleges Nurse Practitioner Thews told his psychiatrist he should be taken

off his anti-depressant medication on September 27, 2023. ECF 1 ¶ 33. There is no

indication his medication was changed or that he suffered any injury because of this

recommendation.

D. Nurse Practitioner Karen J. Fagan.

Mr. Bean alleges Nurse Practitioner Fagan was deliberately indifferent when she

ordered only an echocardiogram on August 1, 2023. ECF 1 ¶ 34. In response to his

complaints of chest pain, Nurse Fagan reviewed his last three EKGs and noted they were

all within normal limits. ECF 1-1 at 65. She also reviewed his last blood test results. Id. at

67. This complaint does not provide facts showing Nurse Fagan was deliberately

indifferent when she ordered only an echocardiogram.

E. Dr. Wilks.

Dr. Wilks was one of the previously sued defendants whom the court found Mr.

Bean did not state a claim based on events through February 5, 2023. Because his prior

lawsuit was dismissed without prejudice the court will review all the allegations against

Dr. Wilks.

Mr. Bean alleges Dr. Wilks was deliberately indifferent when she denied a referral

to cardiology in January 2023. ECF 1 ¶ 35. The medical records show she did not merely

deny the referral at that time—she also asked for information about his family history

and suggested he have an exercise stress echo test. ECF 1-1 at 36. Dr. Wilks decision to

not approve the referral request of DNP Pflughaupt is insufficient to demonstrate that

she was deliberately indifferent because “evidence that some medical professionals

would have chosen a different course of treatment is insufficient to make out a

constitutional claim.” Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016). This complaint

does not plausibly allege Dr. Wilks was deliberately indifferent when she asked for

additional information and testing.

Mr. Bean alleges Dr. Wilks was deliberately indifferent when she did not respond

to a letter he mailed to her on March 24, 2024, because she did not “take any action to

ensure that Plaintiff received proper medical care.” ECF 1 ¶ 36. The medical records show

that from January to August 2023, Mr. Bean received a stress echo test, three EKGs, an

echocardiogram, and a chest x-ray. ECF 1-1 at 40, 48, 53, 70, 71, and 74. In August 2023, a

cardiologist reviewed the test results “and determined that no further cardiac work up

was needed.” Id. at 74. The complaint does not plausibly allege Dr. Wilks was deliberately

indifferent. Moreover, “only persons who cause or participate in the violations are

responsible.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). [P]ublic employees are

responsible for their own misdeeds but not for anyone else’s.” Burks v. Raemisch, 555 F.3d

592, 596 (7th Cir. 2009). “[P]rison officials who reject [or fail to respond to] prisoners’

grievances do not become liable just because they fail to ensure adequate remedies.” Est.

of Miller by Chassie v. Marberry, 847 F.3d 425, 428 (7th Cir. 2017).

F. Dr. Stephanie Riley.

Mr. Bean alleges Dr. Stephanie Riley (or whoever was the Regional Director) was

deliberately indifferent for not responding to letters he mailed on February 16, 2023, and

March 24, 2023. ECF 1 ¶¶ 37 and 38. These letters were similar to the one he mailed to Dr.

Wilks. For the reasons previously explained, the complaint does not plausibly allege Dr.

Riley (or whoever was the Regional Director) was deliberately indifferent for not

responding to Mr. Bean’s letters.

Mr. Bean alleges Dr. Riley was deliberately indifferent on or around October 5,

2023, when she recommended he get medical treatment for COPD without having

examined him. ECF 1 ¶ 39. This was not deliberately indifferent because his Chest CT on

September 21, 2023, showed he had emphysema which is a type of COPD. See ECF 1-1 at

100 and Emphysema, National Library of Medicine.15 He alleges she should have approved

the Offsite Pulmonary Function Test requested by DNP Pflughaupt on September 29,

2023. Id. “Pulmonary function tests are a group of tests that measure breathing and how

well the lungs are functioning.” Pulmonary Function Tests, National Library of Medicine.16

Because the Chest CT had already shown that he had emphysema, the complaint does

not plausibly allege that Dr. Riley was deliberately indifferent when she recommended

COPD treatment rather than additional testing.

G. Dr. Chistina Chico and Unknown Others.

Mr. Bean alleges Dr. Christina Chico and other unknown persons conspired to

liable and slander him. ECF 1 ¶ 40-43. He alleges Dr. Chico did liable and slander him.

Id. Perhaps because he knows these claims cannot be brought under 28 U.S.C. § 1983, Mr.

15 See https://medlineplus.gov/emphysema.html.

16 See https://medlineplus.gov/ency/article/003853.htm.

Bean presents them as state law claims. See Paul v. Davis, 424 U.S. 693, 712 (1976) (“interest

in reputation . . . is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation

without due process of law.”). District courts have supplemental jurisdiction over state

claims “in any civil action of which the district courts have original jurisdiction[.]” 28

U.S.C. § 1367(a). As explained in this opinion, this complaint does not state a federal

claim. “Ordinarily, when a district court dismisses the federal claims conferring original

jurisdiction prior to trial, it relinquishes supplemental jurisdiction over any state-law

claims under 28 U.S.C. 1367(c).” Doe-2 v. McLean County Unit Dist. No. 5 Bd. of Dirs., 593

F.3d 507, 513 (7th Cir. 2010). Such is the case here. This court will not retain supplemental

jurisdiction over these state court claims.

H. Registered Nurse Tiffany Turner.

Mr. Bean alleges Registered Nurse Tiffany Turner was deliberately indifferent on

July 20, 2023, because she followed the orders of Dr. Marthakis and refused to provide

him with medical treatment. ECF 1 ¶ 44. Medical records show Mr. Bean was found

unresponsive on the floor, but was able to get up and walk to medical. ECF 1-1 at 47. He

complained of chest pain, but his breathing was even and nonlabored. Id. His walk was

steady and strong. Id. Nurse Turner took his vitals and blood glucose levels—all of which

were normal. Id. at 46-47. Nurse Turner consulted with Dr. Marthakis who told her Mr.

Bean needed to see Dr. Martin. Nurse Turner verified that he had an appointment with

Dr. Martin later that day. There is no indication Mr. Bean had an emergency medical

problem or that Nurse Turner acted outside the scope of accepted medical practice and

judgment.

Mr. Bean alleges Nurse Tiffany Turner was deliberately indifferent on July 28,

2023, because she did not give him an EKG test. ECF 1 ¶ 45. He alleges also refused him

an EKG on August 10, 2023. Id. at ¶ 46. Medical records show Mr. Bean saw Nurse Tiffany

for chest pain on July 28, 2023. ECF 1-1 at 61. She took his vitals signs, which were normal.

Id. She noted he was oriented and his skin was warm; his lungs were clear; his heart rate

was regular and sounded normal; his breathing was even and unlabored. Id. at 62-63. Mr.

Bean yelled at Nurse Turner and demanded he be sent to an outside medical facility. Id.

at 63. When he refused to stop yelling, he was removed by guards. Id. There is no

indication Mr. Bean needed yet another EKG on July 28, 2023, or that he suffered any

injury because he did not get one that day. Only days before, he had an EKG on July 26

and one before that on July 25. ECF 1-1 at 48 and 53. The complaint does not show Mr.

Bean needed another one on July 28, 2023. Again, prisoners aren’t “entitled to demand

specific care[, nor are they] entitled to the best care possible.” Forbes, 112 F.3d at 267.

I. Registered Nurse Jacqueline Monaco.

Mr. Bean alleges Registered Nurse Jacqueline Monaco was deliberately indifferent

to his complaints of chest pain when she told him on July 17, 2023, that he would not get

a cardiologist consultation. ECF 1 ¶ 47. She was correct that he had been denied a

cardiologist consultation months earlier and there is no indication he had yet been

approved for a cardiologist referral. See ECF 101 at 36. But the next month, a cardiologist

did review his case. Id. at 75. That cardiologist and test results from several EKGs, a chest

echocardiogram, and Chest X-rays found he did not have a serious heart problem. ECF

48, 53, 70, 71, 74, and 75. It is unclear what treatment Mr. Bean believes Nurse Monaco

should have provided on July 17, 2023, but the complaint does not plausibly allege that

she was deliberately indifferent—or that he suffered any injury because of a lack of

treatment being provided during that visit.

Mr. Bean alleges Nurse Monaco was deliberately indifferent because she refused

to give him an EKG on October 8, 2023, when his heart rate was 101. ECF 1 ¶ 48.

Medical records show that in addition to his pulse, she took his temperature, blood

pressure, and respiration. ECF 1-1 at 131. She listened to his lungs and noted he was

alert with a regular, normal-sounding heartbeat. Id. at 132. “Tachycardia is the medical

term for a heart rate that is faster than 100 beats per minute.” Tachycardia, Yale

Medicine.17 It can be caused by anxiety and is not always abnormal. Id. Mr. Bean had

recently been cleared by a cardiologist and diagnosed with mild emphysema. ECF 1-1 at

75 and 100. Given his medical history and that his heart rate was the slowest possible

tachycardia, the complaint does not plausibly allege that Nurse Monaco was

deliberately indifferent to have decided Mr. Bean did not need another EKG.

J. Registered Nurse Teagan Nelson.

Mr. Bean alleges Nurse Nelson was deliberately indifferent on July 18, 2023, when

he complained of chest pain and dizziness. ECF 1 ¶ 49. Medical records show she took

his vital signs and noted his EKG was within normal limits. ECF 1-1 at 44-45. Mr. Bean

argues he had bradycardia because his pulse was only 52 beats per minute. “Bradycardia

is a slow heart rate [with] fewer than 60 times a minute[, but a] slow heart rate isn’t always

17 See https://www.yalemedicine.org/conditions/tachycardia.

a concern.” Bradycardia, Mayo Clinic (phonetic spelling omitted).18 It is unclear what

treatment Mr. Bean believes should have been administered, but the complaint does not

plausibly allege that Nurse Nelson was deliberately indifferent when she scheduled him

for follow up visit based on his symptoms. See ECF 1-1 at 45.

K. Registered Nurse Roxanne Liston.

Mr. Bean alleges Nurse Liston was deliberately indifferent to his complaints of

chest pain and dizziness on August 9, 2023. ECF 1 ¶ 50. Medical records show she took

his vital signs and performed an EKG. ECF 1-1 at 68-69. Mr. Bean believed he had fluid

in his pericardial sac. The chest echocardiogram performed the day before showed he did

not. Id. at 71. Nurse Liston did not yet have those test results, but the complaint does not

plausibly allege she was deliberately indifferent to have him wait for them in his housing

unit since he was able to walk without assistance.

Mr. Bean alleges Nurse Liston was deliberately indifferent when he was brought

to medical on September 11, 2023. ECF 1 at 51. Medical records show he was found

unconscious after he fell in his cell, but he was walking when he arrived in medical. ECF

1-1 at 93-94. Nurse Liston took his vital signs and examined him head to toe. Id. at 90-94.

He had a “bump” on his forehead, but the rest of his body was uninjured, and his pupils

were equal and reactive to light. Id. at 91-94. Mr. Bean alleges Nurse Liston was

deliberately indifferent because she knew he had elevated blood pressure and heart rate.

Nurse Liston gave him an EKG which showed he was normal other than having sinus

18 See https://www.mayoclinic.org/diseases-conditions/bradycardia/symptoms-causes/syc-

20355474.

tachycardia. Id. at 95-96. Sinus tachycardia is “a common condition that happens

sometimes in response to stressful situations.” Sinus Tachycardia, Cleveland Clinic.19 This

complaint does not plausibly allege Nurse Liston was deliberately indifferent or that Mr.

Bean suffered any injury because of her treatment decisions.

L. Registered Nurse Betty Boggs.

Mr. Bean alleges Registered Nurse Betty Boggs was deliberately indifferent to his

complaints of chest pain on July 27, 2023. ECF 1 at 52. There are four nurse visit records

for that day; only the last visit was with Nurse Boggs. ECF 1-1 at 58-59. The first three

visits were with another nurse who saw him at the nurses’ station beginning at 3:54 pm.

Id. at 49. That nurse performed an EKG and found “Sinus Bradycardia with sinus

Arrhythmia Otherwise Normal ECG” Id. at 52. Nurse Practitioner Fagan directed that he

be given another EKG in four and a half hours. Id. Mr. Bean did not want to wait, and

declined to sign a refusal of care form. Id. Two hours later (and again two hours after

that), the nurse noted he remained in the holding cell with unlabored breathing and

without complaints of chest pain. Id. at 54 and 56. Nurse Boggs saw Mr. Bean at 7:30 pm

and reported he was alert and oriented with a steady walk. Id. at 59. He was not holding

his chest and his breathing was even and unlabored. Id. Another EKG was performed,

and the results were the same. Mr. Bean alleges Nurse Boggs was deliberately in different,

but he does not explain what he believes she should have done to treat him nor how he

was injured when she discharged him after the second EKG. Sinus arrhythmia “is a

19 See https://my.clevelandclinic.org/health/diseases/23210-sinus-tachycardia.

common rhythm variation.” Sinus Arrhythmia, National Library of Medicine.20 “Typically

its presence is an indicator of good cardiovascular health.” Id. Sinus bradycardia meant

his heart was beating slower than normal, but his heart rate of 56 was only slightly slower

than the 60 beats at the low end of the normal range. See Bradycardia, Mayo Clinic.21 The

next morning, his pulse was 86 beats per minute. ECF 1-1 at 61. The complaint does not

plausibly allege Nurse Boggs was deliberately indifferent on July 27, 2023.

M. Warden Ron Neal.

Mr. Bean alleges Warden Neal was deliberately indifferent to his need for medical

treatment because he did not send him to a cardiologist after they spoke on August 22,

2023. ECF 1 ¶ 53. As discussed above, Mr. Bean was receiving extensive (and

constitutionally adequate) medical care when he spoke to Warden Neal – including a

review of his case by a cardiologist that same month. See ECF 1-1 at 75. This complaint

does not state a claim against Warden Neal.

N. Retaliation Claims.

Mr. Bean alleges several defendants retaliated against him for speaking and

writing about the symptoms he was having. ECF 1 ¶ 54-59. “To establish a prima facie

case of unlawful retaliation, a plaintiff must show (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

20 See https://www.ncbi.nlm.nih.gov/books/NBK537011/#:~:text=

Sinus%20arrhythmia%20is%20a%20variation,is%20greater%20than%200.12%20seconds.

21 See https://www.mayoclinic.org/diseases-conditions/bradycardia/symptoms-causes/syc-

20355474.

motivating factor in the Defendants’ decision to take the retaliatory action.” Douglas v.

Reeves, 964 F.3d 643, 646 (7th Cir. 2020) (quotations omitted).

Mr. Bean alleges Nurse Practitioner Thews retaliated by threatening to discontinue

his anti-depressant medication (bupropion) and Dr. Marthakis retaliated by having Dr.

Martin take him off bupropion for thirty days. ECF 1 ¶¶ 55-56. Mr. Bean argues this was

not medically justified because some of his symptoms were not side effects of bupropion.

However, several of his key symptoms (chest pain, dizziness, and loss of consciousness)

are side effects and/or symptoms of bupropion overdose. Bupropion, National Library of

Medicine.22 As discussed, these medical decisions were not deliberately indifferent. The

complaint does not plausibly allege that temporarily discontinuing this prescription (or

suggesting the same) was retaliatory punishment for his protected speech. Nor does it

allege he suffered any injury as a result.

Mr. Bean alleges Nurse Practitioner Thews and Nurses Monaco, Liston, and

Irasema A. Hernandez retaliated by placing him “in a filthy, urine-smelling holding area

allegedly for ‘monitoring’ (when no monitoring occurs).” ECF 1 ¶ 57. The complaint

explains he was routinely put in the holding cell after his appointments ended “until

Plaintiff can be sent back to his cell/housing unit.” Id. ¶ 22. See also id. ¶ 45 (“until the

Plaintiff could be brought back to his housing unit”); id. ¶¶ 47 and 50 (“until Plaintiff

could be brought back to his housing unit”); and id. ¶ 51 (“until he was brought back to

his housing unit”). The complaint does not plausibly allege these placements were

22 See https://medlineplus.gov/druginfo/meds/a695033.html#side-effects.

retaliatory. Rather, it explains they were an administrative process for the movement of

inmates. This use of the medical holding cell would not deter an inmate of reasonable

fortitude.

Mr. Bean alleges there was one occasion where he was in the medical holding cell

for sixteen hours. ECF 1 ¶ 57. Medical records show he was put “in holding cell for

observation” on August 29, 2023. ECF 1-1 at 84. Though Mr. Bean asserts he was not

monitored, he has not plausibly alleged facts showing the placement or the lack of

monitoring on that one day was in retaliation for his talking about his symptoms.

Mr. Bean asserts there was one time when he was dissuaded from seeking medical

attention because he expected to be placed in the holding cell before returning to his

housing unit. ECF 1 ¶ 57. Though he emphasizes the holding cell as the reason he did not

seek medical treatment on September 11, 2023, an inmate of reasonable fortitude would

not be dissuaded from seeking medical treatment merely because he would have to

transfer through the medical holding cell before returning to his housing unit. See Douglas

v. Reeves, 964 F.3d 643, 648 (7th Cir. 2020) (“Prisoners may be required to tolerate more

than public employees, who may be required to tolerate more than average citizens,

before an action taken against them is considered adverse.”).

O. Dr. Kristen Dauss.

Mr. Bean asks to proceed against Dr. Dauss for injunctive relief to obtain

specialized medical treatment. As explained in this opinion, the complaint does not allege

facts from which it can be plausibly inferred that Mr. Bean is not already receiving

constitutionally adequate medical treatment. The complaint does not state a claim for

injunctive relief against Dr. Dauss or anyone else.

P. Preliminary Injunction.

Mr. Bean filed a motion asking for a preliminary injunction requiring that he and

his medical records be sent to a cardiologist. ECF 2. “[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). Mr. Bean

has no chance of success on the merits of this case because the federal allegations in the

complaint do not state a claim.

CONCLUSION

This complaint does not state a claim for which relief can be granted. It is

understandable that Mr. Bean is frustrated by ongoing symptoms for which it has been

difficult to find a diagnosis and treatment, but his medical records show his healthcare

providers have not been deliberately indifferent as they worked to address his medical

needs. Given the detail Mr. Bean provided in his complaint and the volume of medical

records he attached showing the extensive healthcare he has received, it seems rather

unlikely he could file an amended complaint that states a claim, but he will be granted

leave to try because “[t]he usual standard in civil cases is to allow defective pleadings to

be corrected, especially in early stages, at least where amendment would not be futile.”

Abu-Shawish v. United States, 898 F.3d 726, 738 (7th Cir. 2018). Mr. Bean is not required to

file an amended complaint, but if he decides to do so, he needs to write this cause number

on a Pro Se 14 (INND Rev. 2/20) Prisoner Complaint form, which is available from his

law library. He needs to write the word “Amended” on the first page above the title

“Prisoner Complaint.” He needs to complete the form by alleging facts which are based

on (and consistent with) the events described in this complaint.

For these reasons, the court:

(1) DENIES the preliminary injunction motion (ECF 2);

(2) GRANTS Joshua Bean until July 31, 2024, to file an amended complaint; and

(3) CAUTIONS Joshua Bean if he does not respond by the deadline, this case will

be dismissed without further notice.

SO ORDERED.

June 27, 2024 s/ Damon R. Leichty

Judge, United States District Court