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Kelly v. Talbot

United States District Court, S.D. Indiana, Indianapolis Division

July 9, 2018




         This matter is before the Court on a Motion for Summary Judgment Dkt. [94], filed by the defendants Drs. Paul Talbot, Mike Person, Fakhry Rafiq, Licensed Practical Nurse Beitler (“LPN Beitler”), and Nurse Practitioner Brubaker[1] (“NP Brubaker”) (collectively, “the Defendants”). Also pending is pro se Plaintiff Richard Kelly's (“Mr. Kelly”) Motion to Clarify, Dkt. [108]. 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. [94], is granted and the Motion to Clarify, Dkt. [108], is granted to the extent that it was considered in ruling on summary judgment.


         Federal 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., 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. 2001).

         II. FACTS

         The 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 (2000).

         A. Mr. Kelly's Condition

         Mr. 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[2] and chronic L4 radiculopathy.[3]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 and 2009.[4]

         In November 2010, Mr. Kelly had a follow-up consultation. The specialist strongly suspected that Mr. Kelly was suffering from idiopathic peripheral neuropathy[5] or hereditary sensorimotor neuropathy.[6] 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.

         In July 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. [105]-1, at 53.

         Additionally, 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[7] without significant nerve involvement.[8] 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 and appropriate.

         In 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”).

         B. Mr. Kelly's Medical Care at Pendleton (Dr. Person, Dr. Kiani, and Dr. Talbot)

         Mr. 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 leg.[9] 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. Kelly's request.

         On June 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.[10] 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 suggested.

         Dr. 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.

         Dr. 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.

         On 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.

         On 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.

         On 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 “helping”.

         On May 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.

         On May 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.

         On June 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.

         On July 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 for ...

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