United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING MOTIONS FOR SUMMARY
Jane Magnus-Stinson, Chief Judge
Dennis Mikel, an inmate at the New Castle Correctional
Facility (NCCF), brings this action pursuant to 42 U.S.C.
§ 1983 alleging that the defendants have violated his
rights by failing to treat his medical conditions, including
a hernia, gastroesophageal reflux disease, neck pain, and
allergies. Defendants Nurse Leann Ivers, NP Barbara Brubaker,
Megan Miller, Dr. Christopher Nelson, NP Deborah Perkins and
Dr. Bruce Ippel (the Medical Defendants) seek summary
judgment on these claims, as has Mr. Mikel. For the following
reasons, the Medical Defendants' motion for summary
judgment is granted in part and denied in
part and Mr. Mikel's motion for 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.
2001). Even though the parties have filed cross motions for
summary judgment, the general standards for summary judgment
do not change: with “cross summary judgment motions, we
construe all facts and inferences therefrom ‘in favor
of the party against whom the motion under consideration is
made.'” In re United Air Lines, Inc., 453
F.3d 463, 468 (7th Cir. 2006).
following statement of facts has been evaluated pursuant to
the standards set forth above. Because Mr. Mikel and the
Medical Defendants have each moved for summary judgment, most
of the facts are taken from Mr. Mikel's medical records
and, to that extent, are undisputed. Facts that are disputed
will be identified as appropriate.
Mikel transferred from the Miami Correctional Facility (MCF)
to NCCF in October of 2014. While he was at MCF, he was
treated by Dr. Kim Myers for a hernia, arthritis, neck pain,
acid reflux, and an enlarged prostate. Dkt. 78-23. Dr. Myers
prescribed Naprosyn for his arthritis, which helped his neck
pain. Dkt. 78-23. She also offered a hernia belt and a bottom
bunk pass for treatment of his hernia. Dkt. 78-23. She
prescribed him Zantac for his reflux. Dkt. 78-23. Mr. Mikel
challenges the treatment he received for his neck pain, GERD,
and hernia while he has been at NCCF. He also alleges that
the defendants have been deliberately indifferent to his
allergies to aspirin and bleach.
October 31, 2014, after he was transferred to NCCF, NP
Perkins saw Mr. Mikel for neck pain that she noted was
moderate and intermittent. Dkt. 90-4. She noted that he was
in a motor vehicle accident two years earlier and had disc
problems in his neck that resulted in mild pain and
tenderness. Id. Mr. Mikel states that he actually
told NP Perkins that he was in a car accident 22 years ago
and suffered a mild case of whiplash. Dkt 78-23. He says he
told her that Naproxen worked for his pain and over the
counter medications did not. Dkt. 78-23. She sent a
non-formulary request for Naproxen for his pain. Dkt. 90-4.
January 16, 2015, Mr. Mikel saw NP Perkins again. Dkt. 90-1;
90-4. While she noted that he reported that his neck pain was
moderate and fairly controlled, he says that his pain was
severe and that his prescription medication helped. Dkt.
90-1; Dkt. 78-23. NP Perkins told him that she would submit a
non-formulary request for Naprosyn,  but that if this was not
approved he would have to purchase Aleve from the commissary.
Dkt. 90-4; Dkt. 90-2, pg 255. His prescriptions, including
Naprosyn and Zantac, were continued. Dkt. 90-1.
21, 2015, Mr. Mikel saw NP Brubaker for a chronic care visit.
Dkt. 90-1. In response to Mr. Mikel's complaints of neck
pain, NP Brubaker ordered Naprosyn and noted that he should
avoid aspirin. Dkt. 90-4; Dkt. 90-2, pg 140. It appears that
the non-formulary request for Naprosyn was denied, but it is
unclear who denied the request. Dkt. 90-4. Mr. Mikel believes
that NP Brubaker discontinued these medications, dkt, 78-23,
but NP Brubaker did not control whether these medications
would be approved. Dkt. 90-4.
Mikel saw Dr. Christopher Nelson on October 15, 2015. Dkt.
90-1; 902-, pg. 130-33. Referring to this visit, Mr. Mikel
says, “Dr. Nelson added back my Naprosyn and Prilosec,
but no order was ever generated.” Dkt. 78-23.
December 7, 2015, NP Brubaker ordered a renewal of Naproxen
500 mg for ninety days. Dkt. 90-5; Dkt. 90-2 pg 123. This
orders was apparently filled.
December 2015, Mr. Mikel submitted requests for health care
asking for an egg crate mat for his mattress to help
alleviate his neck pain. Dkt. 78-17.
January 11, 2016, Dr. Ippel saw Mr. Mikel for a chronic care
visit. Dkt. 90-1. He stated that he uses Naprosyn to treat
his neck pain. Dkt. 90-1. Dr. Ippel saw Mr. Mikel again on
March 30, 2016, for a chronic care visit. Dkt. 90-1. Dr.
Ippel states that Mr. Mikel reported he was doing well on his
current medication regimen. Dkt. 90-1. He had been approved
for non-formulary Naprosyn. Dkt. 90-1. Mr. Mikel states, to
the contrary, that he told Dr. Ippel that he was not
receiving his medications on a regular basis. Dkt. 78-23.
23, 2016, Mr. Mikel submitted a request for health care
stating that he had not received his Naproxen refill. Dkt.
78-17, pg. 58. On June 16, 2016, Dr. Ippel ordered renewal of
Naproxen for 90 days. Dkt. 90-5; Dkt. 90-2.
Mikel saw NP Brubaker on July 21, 2016, for a chronic care
visit. Dkt. 90-1; Dkt. 90-5; Dkt. 90-2, pg. 90. The medical
records reflect that he stated that his neck pain was
moderate and had not changed. Dkt. 90-1. Mr. Mikel says he
told NP Brubaker that the pain in his neck was so bad that he
felt like he was having a stroke. Dkt. 78-23. He continued
with his prescription for Naprosyn. Dkt. 90-1; dkt. 90-5.
September 17, 2016, Mr. Mikel requested a renewal of his
medications. Dkt. 90-5; Dkt. 90-2, pg. 197. He was told to
discuss the request with the doctor because his prescriptions
had already expired. Dkt. 90-5; Dkt. 90-2, pg. 197.
September 22, 2016, NP Brubaker requested a refill of
Naproxen. Dkt. 90-5; Dkt. 90-2, pg. 80, 82. The records
state: “Medical director note of 8/16/16 states that
this med will not be renewed after next CCC visit.”
September 28, 2016, Dr. Ippel saw Mr. Mikel for a chronic
care visit. Dkt. 90-1. Dr. Ippel informed Mr. Mikel that his
prescription for Naproxyn was only for periodic symptomatic
control and that he did not require a long-term,
uninterrupted prescription for this medication. Dkt. 90-1.
Mr. Mikel's prescription was scheduled to be stopped.
Dkt. 90-1. Mr. Mikel saw Dr. Ippel on December 16, 2016, for
chronic care. Dkt. 78-19. Dr. Ippel told him that he will
have to get the nonprescription items on the commissary.
Id. When Mr. Mikel stated that he had no money, he