United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING DEFENDANTS' MOTION FOR SUMMARY
WALTON PRATT, JUDGE
matter is before the Court on a Motion for Summary Judgment
Dkt. , filed by the defendants Drs. Paul Talbot, Mike
Person, Fakhry Rafiq, Licensed Practical Nurse Beitler
(“LPN Beitler”), and Nurse Practitioner
Brubaker (“NP Brubaker”) (collectively,
“the Defendants”). Also pending is pro
se Plaintiff Richard Kelly's (“Mr.
Kelly”) Motion to Clarify, Dkt. . Mr. Kelly, an
Indiana inmate, filed this action pursuant to 42 U.S.C.
§ 1983 alleging that Defendants have failed to treat his
degenerative hip and spine damage and other medical
conditions in violation of his Eighth Amendment rights under
the U.S. Constitution. Generally, he asserts that the
Defendants have not provided him adequate treatment for his
nerve and arthritis pain and have not referred him to
specialists as necessary. For the following reasons, the
Motion for Summary Judgment, Dkt. , is
granted and the Motion to Clarify, Dkt.
, is granted to the extent that it was
considered in ruling on summary judgment.
SUMMARY JUDGMENT STANDARD
Rule of Civil Procedure 56(a) provides that summary judgment
is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” In ruling on
a motion for summary judgment, the admissible evidence
presented by the non-moving party must be believed and all
reasonable inferences must be drawn in the non-movant's
favor. Hemsworth v. Quotesmith.com, Inc., 476 F.3d
487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555
F.3d 582, 584 (7th Cir. 2009) (“We view the record in
the light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor.”).
However, “[a] party who bears the burden of proof on a
particular issue may not rest on its pleadings, but must
affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires
trial.” Hemsworth, 476 F.3d at 490. Finally,
the non-moving party bears the burden of specifically
identifying the relevant evidence of record, and “the
court is not required to scour the record in search of
evidence to defeat a motion for summary judgment.”
Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir.
following statement of undisputed material facts is not
necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed
evidence are presented in the light reasonably most favorable
to Mr. Kelly as the non-moving party. See Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150
Mr. Kelly's Condition
Kelly has suffered serious pain in his back, leg, and hips
for many years due to spine and nerve damage. In September
2007, the Neurology Specialty Clinic at Wishard Memorial
Hospital diagnosed him with mild peripheral
neuropathy and chronic L4
radiculopathy.Peripheral neuropathy can have a small
number of treatable causes and, in Mr. Kelly's case,
these were considered and tested for and ruled out in 2008
November 2010, Mr. Kelly had a follow-up consultation. The
specialist strongly suspected that Mr. Kelly was suffering
from idiopathic peripheral neuropathy or hereditary sensorimotor
neuropathy. In both cases, treatment of the symptoms
is the only treatment course and these conditions cannot be
reversed. A lumbar radiculopathy can have several causes and
should be managed based on symptoms. Mr. Kelly also had a
consultation in February 2011. The consultant recommended
increasing Mr. Kelly's Ultram to up to 200mg twice a day
and to continue Neurontin at the current dosage.
2011, Mr. Kelly saw a neurosurgeon. According to Mr. Kelly,
the surgeon suggested replacing Tramadol with Norco every
four hours as a long-term treatment. The records state:
“It would be appropriate per the facility physician to
increase [Ultram] if necessary to something like Norco 5/325
one to two tablets p.o. every four to six hours p.r.n. pain.
I will leave that up to the discretion of the attending
physician there.” Dkt. -1, at 53.
Mr. Kelly's radiography tests reveal degenerative bone
disease. On November 4, 2011, a lumbar MRI showed
degenerative changes, and bony growth. On October 29, 2012, a
cervical MRI demonstrated osteophytes without significant nerve
involvement. Mr. Kelly's September 22, 2015 x-ray
of his hips demonstrated minimal osteophyte formation with
preserved joint spaces. “Bony degeneration” and
“osteophytes” are terms associated with
osteoarthritis, which is a progressive disease managed
symptomatically with physical therapy, medications, weight
management, surgery, and joint replacement, when available
March 2013, Mr. Kelly had an MRI and evaluation by a
neurologist. The neurologist was able to rule out multiple
sclerosis, stroke, and tumor as causes of his symptoms. The
neurologist determined that Mr. Kelly did not need further
neurologic care and recommended a follow-up visit with an
orthopedist. During the times relevant to Mr. Kelly's
claims, he was incarcerated and treated at the Pendleton
Correctional Facility (“Pendleton”) and the New
Castle Correctional Facility (“New Castle”).
Mr. Kelly's Medical Care at Pendleton (Dr. Person,
Dr. Kiani, and Dr. Talbot)
Kelly began seeing Dr. Person in February 2014. Mr. Kelly
reported to Dr. Person that he had surgery on his lumbar
spine in May 2011. Since the surgery, Mr. Kelly has
experienced pain in both legs and weakness in his left
His medications included Ultram, Baclofen, and Neurontin for
his neuropathy pain. On March 17, 2014, Dr. Person evaluated
Mr. Kelly to follow-up on his complaints of neuropathy pain.
Mr. Kelly requested an upper and lower nerve conduction study
(“NCS”). An NCS is used to determine the extent
of nerve damage, if any. Dr. Person added Effexor XR to Mr.
Kelly's medication regimen to see if it would help his
nerve pain and requested an NCS of both the upper and lower
extremities. On April 28, 2014, Dr. Person evaluated Mr.
Kelly for his complaints of negative side effects from the
Effexor XR. Dr. Person discontinued the Effexor XR at Mr.
2, 2014, Dr. Person met with Mr. Kelly to review the results
of his nerve conduction studies. The studies confirmed that
Mr. Kelly suffered from sensorimotor neuropathy in all four
extremities. The recommendation from the study was an
increase in his Neurontin dose. Mr. Kelly requested
OxyContin and Valium, instead of Ultram and Baclofen, but Dr.
Person determined that there was no clinical reason to switch
Mr. Kelly's medications because the Ultram and Baclofen
were adequately managing his pain. However, Dr. Person did
increase Mr. Kelly's Neurontin to 3600 mg per day as
Person met with Mr. Kelly on June 9, 2014 and June 16, 2014,
regarding pain management. Mr. Kelly continued on Ultram and
Baclofen for his complaints of neuropathy pain. On June 23,
2014, Dr. Person scheduled Mr. Kelly for a steroid injection
for his complaints of back pain. On June 30, 2014, Dr. Person
administered that steroid injection.
Person evaluated Mr. Kelly again on July 24, 2014. Mr. Kelly
continued to complain of lower back pain and left upper
quadrant pain. Dr. Person prescribed Methadone for Mr.
Kelly's complaints of pain and discontinued his Ultram.
On August 14, 2014, Mr. Kelly reported to Dr. Person that
since the change to Methadone, he had a longer lasting level
of some pain relief. On October 30, 2014, Mr. Kelly requested
an increase in his Methadone dose because “it is not
lasting long enough between doses.” Dr. Person
increased Mr. Kelly's Methadone dose from two 10 mg tabs
once per day to two 10 mg tabs twice per day per his request.
November 13, 2014, Mr. Kelly reported to Dr. Person that the
high dose of Methadone had helped but complained about the
timing of the doses. Other than prescribing the medication
for twice a day, Dr. Person had no control as to when
medications are passed out.
December 4, 2014, Dr. Person met with Mr. Kelly for another
round of steroid injections, but he rescheduled the steroid
injections due to Mr. Kelly's complaints that he did not
feel well. On December 18, 2014, Dr. Person evaluated Mr.
Kelly and administered a steroid injection in his right and
left hips for his complaints of hip joint pain due to
calcific bursitis, which he was diagnosed with in 2005.
March 12, 2015, Dr. Person evaluated Mr. Kelly for his
complaints of back pain. Dr. Person increased Mr. Kelly's
Methadone dose to 40 mg twice per day. On March 26, 2015, Mr.
Kelly reported that the higher dose of Methadone was
14, 2015, Mr. Kelly submitted a Request for Health Care
expressing concern to Dr. Kiani that his Methadone
prescription would be expiring in a couple of weeks and that
Dr. Person was leaving the prison. Mr. Kelly stated that he
wanted to make sure Dr. Kiani was going to refill the
Methadone order. Dr. Person responded explaining that the
order was valid until June 12, 2015.
28, 2015, Mr. Kelly submitted a Request for Health Care,
asking for an increase in his Methadone dose. Mr. Kelly was
already on 40 mg of Methadone twice per day, which was a
significant dose. There was no clinical reason to increase
Mr. Kelly's Methadone. Dr. Person had no further
involvement in Mr. Kelly's medical care after June 2015.
25, 2015, Dr. Kiani counseled Mr. Kelly on the need to taper
off of Methadone, instructing that opioid pain medication is
no longer the standard of care for chronic pain management.
Dr. Kiani prescribed Clonidine, a non-opioid pain management
alternative, to eventually replace the Methadone. On July 9,
2015, Dr. Kiani evaluated Mr. Kelly to follow up on his
chronic back pain after he stopped taking Methadone. Mr.
Kelly stated that he had taken the Clonidine with some relief
and requested that the dose be increased. Mr. Kelly also
continued to take Neurontin and Baclofen for back pain. Dr.
Kiani observed that Mr. Kelly was able to walk well. Dr.
Kiani had no further involvement in Mr. Kelly's medical
care after July 10, 2015.
16, 2015, Dr. Talbot evaluated Mr. Kelly for medication
management because his prescriptions for Neurontin and
Baclofen were due to be refilled. Mr. Kelly reported that he
received a benefit from these medications. During this visit,
Mr. Kelly inquired into whether Dr. Talbot would
“renew” his former prescription for Methadone.
Dr. Talbot saw no clinical indication for Methadone, as
opioid pain medications are no longer the standard of care