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Mikel v. Ippel

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

September 7, 2018

DENNIS MIKEL, Plaintiff,
DOCTOR IPPEL[1], et al, Defendants.


          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff 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 is denied.

         I. Summary Judgment Standard

         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). 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).

         II. Facts

         The 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.

         Mr. 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.

         A. Neck Pain

         On 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.

         On 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, [2] 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.

         On July 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.

         Mr. 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.

         On 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.

         In 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.

         On 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.

         On May 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.

         Mr. 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.

         On 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.

         On 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.” Dkt. 78-13.

         On 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 ...

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