Jay F. Vermillion v. Corizon Health, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 3, 2019*
Decided April 3, 2019
Before
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18‐1517
JAY F. VERMILLION,
Plaintiff‐Appellant,
v.
CORIZON HEALTH, INC., et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:16‐cv‐01723‐JMS‐DLP
Jane Magnus‐Stinson,
Chief Judge.
O R D E R
Jay Vermillion, an Indiana inmate, believes that a prison doctor and nurse
deliberately disregarded his urinary tract pain in violation of the Eighth Amendment.
He sued them and Corizon Healthcare Services (the prison’s healthcare provider), but
the district court entered summary judgment for all defendants. We affirm.
We review the record in the light most favorable to Vermillion. Hernandez v. Dart,
814 F.3d 836, 840 (7th Cir. 2016). Vermillion suffered from hypertension, diabetes,
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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hyperlipidemia, and enlarged prostate, which was treated with Flomax and aspirin.
On April 8, 2016, Vermillion noticed blood in his urine and went to the infirmary. Ruby
Beeny, a prison nurse, took a urine sample and performed a dipstick test, which
revealed the presence of white blood cells. Vermillion, who also complained of pelvic
discomfort, reported to Beeny that he had seen blood in his urine for about three weeks;
she states, however, that this was the first time he had told her. Beeny shared
information about Vermillion’s condition with Dr. Paul Talbot, a prison doctor, who
diagnosed Vermillion with a urinary tract infection. The doctor prescribed an antibiotic
and ordered additional testing, including bloodwork and a urine culture. The lab work
of Vermillion’s urine revealed abnormal levels of bacteria, which was consistent with a
urinary tract infection. The bloodwork was negative for any sign of kidney stones, like
high levels of calcium or uric acid.
Vermillion says he reported ongoing pain to Dr. Talbot at an appointment on
April 12. Notes from the appointment reflect Vermillion’s statement that he no longer
had difficulty urinating and that his urine had cleared up; Vermillion appears to have
attributed the improvement to his having passed a kidney stone. Dr. Talbot told
Vermillion that the lab results from April 8 had not come back and that his symptoms
did not indicate any new issues that merited additional treatment. The doctor advised
Vermillion to return to the infirmary if he again had blood in his urine. Vermillion says
he asked for something to treat his pain, though Dr. Talbot disputes this, saying that
Vermillion did not express being in any pain. But that evening, Vermillion’s pain
worsened, and he began to urinate uncontrollably. He again saw blood in his urine and
said that the flow was obstructed until he finally passed what he believes was another
kidney stone. He did not, however, report this episode to Dr. Talbot or Beeny.
In the following weeks, Vermillion continued to see blood in his urine and
experience pain while urinating. But blood test results from five appointments over
seven months were unremarkable, revealing neither the presence of abnormal bacteria
in his urine nor higher levels of calcium or uric acid that could form kidney stones.
Vermillion sued Dr. Talbot, Beeny, and Corizon under 42 U.S.C. § 1983 for failing
to treat the pain associated with his urological issues. After a fraught discovery process,
the defendants moved for summary judgment, supported by affidavits from Dr. Talbot,
Beeny, and a medical expert, who said that the prison medical staff’s treatment was
reasonable. The court granted the motion, concluding that even if Vermillion had
passed a kidney stone on April 12, Dr. Talbot had reasonably diagnosed and treated

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Vermillion for a urinary tract infection based on his symptoms and lab results. It also
determined that there was no basis for holding Corizon liable under § 1983.
On appeal, Vermillion argues that summary judgment was improper because
factual disputes exist about the care he received for his pain. He points to ten instances
where he believes that the district court overlooked factual questions, specifically
regarding the manner in which medical staff monitored his chronic urinary tract
conditions, his interactions with Dr. Talbot at the April 12 appointment, and
Dr. Talbot’s refusal to treat Vermillion’s kidney stones. He contends that the district
court credited the defendants’ expert testimony above all else and ignored his sworn
statements about what occurred.
To warrant a trial, Vermillion needed to present evidence that his medical
condition was objectively serious and that the defendants knew of and disregarded an
excessive risk to his health. See Estelle v. Gamble, 429 U.S. 97, 107 (1976); Perez v. Fenoglio,
792 F.3d 768, 781 (7th Cir. 2015). “Neither medical malpractice nor mere disagreement
with a doctor’s medical judgment is enough to prove deliberate indifference ....” Berry
v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010).
The district court appropriately concluded that Vermillion had not raised a
factual question regarding the Eighth Amendment challenge to Dr. Talbot’s treatment
decisions. Given the results of Vermillion’s tests and his complaints, Dr. Talbot believed
that Vermillion was suffering from a urinary tract infection, and accordingly treated
him for that condition. As Dr. Talbot maintains, Vermillion “never presented … with
signs or symptoms of passing a kidney stone” and did not seek “medical treatment
while he was allegedly pass[ing] a kidney stone.” The doctor adds that he “did not
know [Vermillion] was passing a kidney stone and none of his repeat lab studies
indicated” its presence. Vermillion’s disagreement with medical staff about whether
they followed the correct course of treatment does not establish a triable issue unless the
decision was “so far afield of accepted professional standards as to raise the inference
that it was not actually based on a medical judgment,” Norfleet v. Webster, 439 F.3d 392,
396 (7th Cir. 2006); accord Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014), and
Dr. Talbot’s decision was not.
Moreover, Vermillion has not called into question the testimony of the
defendants’ expert witness that Dr. Talbot used his professional judgment in
determining how best to monitor Vermillion urological condition. At summary
judgment, the defendants submitted the affidavit of an expert witness, Dr. Jeremy Fisk,

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a physician specializing in family medicine with experience diagnosing and treating
patients with urinary tract infections. Dr. Fisk stated that Dr. Talbot’s treatment of
Vermillion “was reasonable, appropriate, and within the medical and nursing standard
of practice and care.” This was because: (1) “[m]edical staff appropriately monitored
Mr. Vermillion’s enlarged prostate through routine appointments and symptomatic
treatment for his complaints”; (2) Vermillion’s symptoms on April 8 were consistent
with Dr. Talbot’s diagnosis of a urinary tract infection; and (3) “[m]edical staff
appropriately examined Mr. Vermillion, ordered testing and diagnosed Vermillion with
a [urinary tract infection] based on his symptoms and the urine dipstick results. Medical
staff also property treated Mr. Vermillion with antibiotics and follow‐up appointments
to monitor his condition.” The choice to treat Vermillion with antibiotics and to advise
him to report to medical services if he observed blood in his urine was “a classic
example of a matter for medical judgment.” Estelle, 429 U.S. at 107; Pyles, 771 F.3d
at 411.
Vermillion does identify one disputed fact—whether he reported heightened
pain at his April 12 appointment—but it is immaterial. As Dr. Fisk testified, a common
symptom of a urinary tract infection is abdominal or pelvic pain, so any reports of
pelvic or abdominal pain at the April 12 appointment would have supported
Dr. Talbot’s diagnosis. An inmate is entitled only to reasonable measures from medical
professionals to treat a substantial risk of serious harm, Arnett v. Webster, 658 F.3d 742,
754 (7th Cir. 2011), and Vermillion has presented no evidence that his complaints of
increased pain warranted treatment beyond Dr. Talbot’s decision to prescribe an
antibiotic, Flomax, and aspirin. According to Dr. Fisk, Dr. Talbot’s treatment was
reasonable, and reasonable treatment is all the Constitution requires. See id. at 758.
Vermillion next argues that Beeny acted with deliberate indifference because she
did not adequately treat his pain on or after April 8. But it is undisputed that Beeny, a
licensed practical nurse, did not make treatment decisions for Vermillion, and she
cannot be liable for constitutional deprivations for which she is not personally
responsible. See Minix v. Canarecci, 597 F.3d 824, 833–84 (7th Cir. 2010).
Vermillion also contends that Corizon is liable for Dr. Talbot’s and Beeny’s
actions because it had a policy of not treating prisoners with kidney stones. But
Vermillion has failed to offer evidence that prison medical staff acted with deliberate
indifference, and without evidence of “a pattern of behavior that would support an
inference of a custom or policy,” Vermillion cannot succeed on this claim. Shields v. Ill.
Depʹt of Corr., 746 F.3d 782, 796 (7th Cir. 2014).

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Vermillion also challenges several of the district court’s procedural rulings. First,
he argues that the court abused its discretion by dismissing his state‐law claims of
malpractice, claims that the defendants had addressed for the first time in their reply
brief. But “[t]he usual practice in this circuit is for district courts to dismiss without
prejudice state supplemental claims whenever all federal claims have been dismissed
prior to trial,” and Vermillion offered no reason why we should depart from that
practice. Hagan v. Quinn, 867 F.3d 816, 830 (7th Cir. 2017) (internal quotation marks
omitted).
Second, Vermillion contends that the court wrongly denied his motions to
exclude Dr. Talbot’s supplemental affidavit, which he believes is void because its
signature page was identical to the signature page on the doctor’s original affidavit. The
defendants explained, however, that Dr. Talbot had fully reviewed, executed, and
attested to the facts in both affidavits, and that the duplication of the signature page
stemmed from a production mistake of counsel’s staff. When defense counsel learned of
this error, they moved to correct it. The district court accepted defense counsel’s
explanation and allowed counsel to correct the error because Dr. Talbot had “sworn to
the truth of the statements asserted” in the supplemental affidavit. We see nothing
improper about the court’s advising Vermillion that it would consider the statements in
the affidavit as it would consider “any other sworn testimony.”
Third, Vermillion says that the district court erred in denying various discovery
motions because he never was able to obtain the information he needed about
Dr. Talbot, Beeny, and Corizon to properly litigate his case (i.e. the mailing addresses
and employment records of individual defendants, Corizon’s financial records, and
other inmates’ medical records). “[T]rial courts retain broad discretion to limit and
manage discovery under Rule 26 of the civil rules.” Geiger v. Aetna Life Ins. Co., 845 F.3d
357, 365 (7th Cir. 2017). The district court observed that Vermillion was able to obtain
relevant and properly requested materials from both defendants and nonparties but
reasonably denied discovery that was overly broad, invasive, or unrelated to
Vermillion’s claims. See Chatham v. Davis, 839 F.3d 679, 686–87 (7th Cir. 2016).
Fourth, Vermillion asserts that the district court should not have denied his
motion for a preliminary injunction directing the defendants to take him to an urologist
outside the prison. The district court, however, appropriately denied the motion after
correctly determining that Vermillion did not have a likely chance of success on the
merits of his case, nor had he shown that he would suffer irreparable harm if the
injunction were not granted. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20

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(2008). With regard to Vermillion’s ongoing urological condition, after reviewing
Vermillion’s recent care, the court reasonably concluded that “[t]he record shows that
Vermillion has been given, and continues to receive, adequate care for his urinary and
pain complaints, including examinations, testing and medications.”
Finally, Vermillion contends that the district court abused its discretion in not
allowing him to amend his complaint to include new defendants who, he said, were
also committing Eighth Amendment violations related to his urological condition. But
Vermillion filed his amended complaint after the pretrial deadline, and the claims he
wished to add were unrelated to his underlying claim and did not belong in this case.
See Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007)
(citing FED. R. C IV. P. 15(a)) (determining district court may deny motion to amend for
“undue delay”); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). In any event,
Vermillion filed a new complaint addressing these later claims and separately litigated
that case.
We AFFIRM the judgment of the district court.

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