United States District Court, S.D. Indiana, Terre Haute Division
EDWARD J. NIKSICH, Plaintiff,
CORIZON INC., et al. Defendants.
ORDER DISCUSSING MOTION FOR SUMMARY JUDGMENT
MAGNUS-STINSON, CHIEF JUDGE
Edward Niksich is an inmate currently incarcerated at Wabash
Valley Correctional Facility (“Wabash Valley”).
He brought this action pro se under 42 U.S.C. § 1983
against three doctors who provided him medical care at Wabash
Valley; their employer, Corizon, Inc.; and the Warden of
Wabash Valley, Richard Brown. He alleges that the defendants
provided him deficient medical care for his Hepatitis C and
End-Stage Liver Disease in violation of the Eighth Amendment.
He seeks monetary damages and injunctive relief. The Court
recruited counsel to represent Mr. Niksich and engaged a
neutral medical expert under Federal Rule of Evidence 706 to
aid the Court in understanding the medical evidence and Mr.
Niksich's medical treatment.
pending are the defendants' motions for summary judgment,
one by Drs. Benjamin Loveridge, Samuel Byrd, and Richard
Hinchman,  and Corizon (the “Medical
Defendants”), and a second by Warden Brown. For the
reasons explained below, the Medical Defendants' motion
for summary judgment is granted in part and
denied in part, and Warden Brown's
motion for summary judgment is granted.
Summary Judgment Legal Standard
judgment is appropriate when the movant shows that there is
no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a). A “material
fact” is one that “might affect the outcome of
the suit.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute about a material fact is
genuine only “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. If no reasonable jury
could find for the non-moving party, then there is no
“genuine” dispute. Scott v. Harris, 550
U.S. 372, 380 (2007).
survive a motion for summary judgment, the non-moving party
must set forth specific, admissible evidence showing that
there is a material issue for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The Court views the
record in the light most favorable to the non-moving party
and draws all reasonable inferences in that party's
favor. Barbera v. Pearson Education, Inc.,
906 F.3d 621, 628 (7th Cir. 2018). The Court cannot weigh
evidence or make credibility determinations on summary
judgment because those tasks are left to the fact-finder.
Johnson v. Advocate Health & Hospitals Corp.,
892 F.3d 887, 893 (7th Cir. 2018).
following factual background is drawn from the undisputed
evidence submitted by the parties. Many of the facts that
follow are disputed. The Court notes some of these disputes,
but whether noted or not, the facts stated are not
necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed
evidence are presented in the light most favorable to
“the party against whom the motion under consideration
is made.” Premcor USA, Inc. v. American
Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir.
Niksich has been an inmate with the Indiana Department of
Correction since 1990. Filing No. 152-1 at 1. He was
diagnosed with Hepatitis C that same year. Id. On
November 28, 2012, Mr. Niksich's liver failed due to his
Hepatitis C and advanced cirrhosis. Id. at 2. Mr.
Niksich had, and continues to have, End-Stage Liver Disease
(“ESLD”). Filing No. 144-1 at 2. After his liver
failed, he was in a coma and hospitalized for seven days.
Filing No. 152-1 at 2. When he regained consciousness, he was
told by a Corizon physician that his ESLD was terminal.
Id. ESLD can only be cured by a liver
transplant. Filing No. 144-1 at 2.
Mr. Niksich's Treatment at New Castle by Defendant Dr.
Niksich was transferred to New Castle Correctional Facility
(“New Castle”) in 2014, where he was under the
care of defendant Dr. Loveridge until May 2015. Filing No.
152-1 at 2. During this time, Mr. Niksich was enrolled in the
Chronic Care Clinic, which meant he was evaluated every 90
days by a medical provider and regularly underwent lab work
to monitor his liver functioning and health. Filing No. 144-2
2014, Mr. Niksich was experiencing abdominal pain. Dr.
Loveridge prescribed several different pain medications to
Mr. Niksich with varying success. First, Dr. Loveridge
prescribed Ultram, but it made Mr. Niksich nauseous and upset
his stomach. Filing No. 152-1 at 2. Next, Dr. Loveridge
prescribed Tylenol 3, but it was ineffective. Id.
Dr. Loveridge then prescribed Norco 7.25/325, which was
effective for three or four months. Following a conversation
with Corizon's then Regional Medical Director regarding
Mr. Niksich's pain, Dr. Loveridge prescribed morphine,
which was effective in controlling Mr. Niksich's pain.
Id. at 3.
this period, Mr. Niksich asked Dr. Loveridge to schedule a
consultation with a hepatologist or gastroenterologist
(“GI”) to determine why he was experiencing
abdominal pain and how it should be treated, but Mr.
Niksich's requests were denied. Id. Dr.
Loveridge was approached by Nurse Perkins in May 2014
regarding Mr. Niksich. Filing No. 144-2 at 4. After reviewing
Mr. Niksich's record, Dr. Loveridge advised Nurse Perkins
that a consultation with a GI specialist was indicated, and
Nurse Perkins submitted the request. Id.
Corizon's then Regional Medical Director, Dr. Michael
Mitcheff (who is not a defendant), suggested an alternative
treatment plan, and Mr. Niksich was informed that he did not
qualify for a GI specialist. Id. Nevertheless, Dr.
Loveridge attests that the treating medical provider can
always schedule a consultation with an outside specialist if
he or she thinks that is best. Id. Once Dr.
Loveridge began personally overseeing Mr. Niksich's care,
he examined Mr. Niksich and determined that a GI consultation
was unnecessary. Id. at 5.
March 2015, Mr. Niksich's lab results showed, among other
things, that Hepatitis C was “detectable at large
levels in Mr. Niksich's body, ” so Dr. Loveridge
determined Mr. Niksich should be considered for Hepatitis C
treatment. Filing No. 144-2 at 11. He initiated the process
for determining whether Mr. Niksich was a candidate for
Hepatitis C treatment, which begins with an abdominal
ultrasound. Id. It was shortly after he initiated
this process, in late March 2015, when Dr. Loveridge, after
consulting the Regional Medical Director, determined that Mr.
Niksich should be prescribed morphine because his current
pain medication was ineffective. Id.
early April 2015, Dr. Loveridge conducted the next step in
testing to determine if Mr. Niksich was eligible for
Hepatitis C treatment. Id. Mr. Niksich also informed
Dr. Loveridge that the morphine was helping with his pain.
Id. at 12. On April 22, 2015, after further testing,
Dr. Loveridge discussed with Mr. Niksich the risks and
benefits of treating his Hepatitis C. Id. Mr.
Niksich consented to receive Hepatitis C treatment, and Dr.
Loveridge submitted a request for the treatment that day.
Loveridge continued to order the necessary screening tests
before Mr. Niksich could begin Hepatitis C treatment.
Id. at 12-13. Dr. Loveridge renewed Mr.
Niksich's morphine on May 14, 2015. Mr. Niksich was
transferred from New Castle to Wabash Valley on May 29, 2015,
before he began his Hepatitis C treatment, and Dr. Loveridge
had no further involvement in Mr. Niksich's medical care.
Mr. Niksich's Treatment at Wabash Valley
Mr. Niksich's Treatment by Defendant Dr. Byrd
Mr. Niksich was transferred to Wabash Valley, he was placed
under the care of defendant Dr. Byrd and other medical
providers. Mr. Niksich was transferred with several
prescriptions, including one for morphine. Filing No. 144-4
at 2-3. Dr. Byrd examined Mr. Niksich on June 5, 2015, in the
Chronic Care Clinic and notified him that he had been
approved for the Hepatitis C treatment of Harvoni and
Ribavirin. Id. at 3. Dr. Byrd requested those drugs
that same day. Id. Three days later, on June 8,
2015, Mr. Niksich began his twelve-week Hepatitis C
next few months, Dr. Byrd periodically evaluated how the
Hepatitis C treatment was working. Id. at 4-5. On
September 8, 2015, Mr. Niksich received his final doses of
Harvoni and Ribavirin. It was later confirmed that the
treatment had cured Mr. Niksich of Hepatitis C. Id.
to the defendants, once Mr. Niksich had completed his
Hepatitis C treatment, Dr. Neil Martin determined that Mr.
Niksich needed to begin tapering his pain medications, so Dr.
Martin ordered a reduced dosage of morphine. Filing No. 144-4
at 18; Filing No. 144-3 at 157-59. Mr. Niksich attests that
Dr. Martin never examined him. Filing No. 152-1 at 4.
September 10, Mr. Niksich spoke with Dr. Byrd while Mr.
Niksich was visiting the eye clinic and x-ray clinic
(although Dr. Byrd disputes that this interaction occurred).
Id. Mr. Niksich complained about his lack of pain
medication-specifically that he wanted to go back on
morphine-and asked to see a hepatologist, but Dr. Byrd denied
his requests. Id. Five days later, on September 15,
2015, Mr. Niksich felt dizzy and nauseous, experienced
abdominal pain, and was urinating blood. Filing No. 152-1 at
3. Dr. Byrd ordered x-rays, believing the pain to be kidney
pain, prescribed antibiotics, and discontinued Mr.
Niksich's morphine prescription. Id. Three days
later, on September 18, 2015, Dr. Martin prescribed Tylenol 3
for five days to relieve Mr. Niksich's pain from kidney
stones. Id. at 4.
the next several months, Mr. Niksich continued to experience
abdominal pain and complained to Dr. Byrd and other medical
staff about his pain, including on October 16, 2015; November
19, 2015; December 2, 2015; December 18, 2015; January 7,
2016; and January 22, 2016. Id. As detailed further
below, Mr. Niksich did not receive any pain medication during
October 16, 2015, appointment, Mr. Niksich complained about
continuing to urinate blood, but Dr. Byrd denied Mr.
Niksich's request to see a hepatologist. Id. Mr.
Niksich again complained to Dr. Byrd about abdominal pain
during his appointment on November 19, 2015, as he did during
all of his appointments. Id. at 5. Contrary to Dr.
Byrd's evidence, however, Mr. Niksich never stated that
he wanted to remain off opiate therapy. Id.
December 2, 2015, appointment, Mr. Niksich repeated his
request to see an outside specialist because he was still
urinating blood and had low while blood cell and platelet
counts. Id. Dr. Byrd denied the request, stating
that Mr. Niksich needed a liver transplant, or he would not
live much longer. Id. Mr. Niksich also reiterated
that he continued to experience abdominal pain and requested
pain medication. Id. Contrary to Dr. Byrd's
testimony, Mr. Niksich attests that he did not prefer to
remain off opiate pain medication, nor did he express
satisfaction with the treatment plan. Id.
two weeks later, on December 18, 2015, Mr. Niksich again
complained to Dr. Byrd about abdominal pain, but Dr. Byrd
insisted that the pain was in Mr. Niksich's back.
Id. Dr. Byrd told Mr. Niksich he would not prescribe
any pain medication for Mr. Niksich's abdominal pain.
Byrd saw Mr. Niksich again on January 22, 2016. Mr. Niksich
continued to complain of abdominal pain and urinating blood.
Id. Mr. Niksich renewed his request to see a
hepatologist or another specialist to determine why his pain
and symptoms persisted. Id. at 6. Dr. Byrd informed
Mr. Niksich that Corizon's then Regional Medical
Director, defendant Dr. Hinchman, would not permit referral
to a specialist. Id.
February 4, 2016, Mr. Niksich submitted two healthcare
request forms. Filing No. 144-3 at 197-98. One asked whether
he was scheduled to see a specialist to evaluate him for a
liver transplant, and the second stated he was experiencing
abdominal pain and needed pain medication. Id.
Medical providers responded that he was scheduled for an
Byrd evaluated Mr. Niksich on February 10, 2016, due to Mr.
Niksich's complaints of abdominal pain. Dr. Byrd was
“puzzled” by Mr. Niksich's continued
complaints of abdominal pain because Mr. Niksich did not
“seem to carry a lot of fluid for Ascites to account
for abdominal pain, ” nor should Hepatitis C cause any
pain since Mr. Niksich was cured. Id. at 201. Dr.
Byrd noted that “unfortunately” Mr. Niksich was
treated with morphine in the past, which Dr. Byrd told Mr.
Niksich “seemed to be a drastic measure” given
that he needs to know if there is a spike in abdominal pain
“due to his high risk of [spontaneous bacterial
peritonitis].” Id. Dr. Byrd suggested that Mr.
Niksich purchase Tylenol from the commissary to treat his
abdominal pain. Id.
Niksich repeated his request to see a specialist to Dr. Byrd
on February 19, 2016, because he was still urinating blood
and experiencing abdominal pain. Filing No. 152-1 at 6. But
Dr. Byrd again denied his request. Id.
Niksich filled out a healthcare request form on March 10,
2016, because he was experiencing abdominal pain and
requested pain medication. Filing No. 144-3 at 221.
Specifically, he requested an appointment with Dr. Byrd,
stating “I am still having abdominal pain[.] I would
like pain medication renewed but know you will not do
it.” Id. Nursing staff could not provide him
any treatment other than referring him to Dr. Byrd, who did
not see him that day. Filing No. 152-1 at 6.
days later, on March 12, 2016, Mr. Niksich was evaluated by
nursing staff. He informed them that he has been having
abdominal pain “for a long period of time” and
that morphine helped his pain. Filing No. 144-3 at 223. He
further stated that some days the pain is “unbearable
and other days it isn't as bad.” Id. Mr.
Niksich was sent back to his cell without any additional pain
medication. Dr. Byrd attests that he was not made aware of
this complaint at the time. Filing No. 144-4 at 14.
Niksich submitted another healthcare request form on March
21, 2016. He requested an appointment with Dr. Byrd, stating:
“Dr. Byrd again I am requesting that you represcribe my
pain medication, that you took me off. I am having abdominal
pain, as in the past. . . . This is an ongoing issue and it
is not getting better. [P]lease renew my pain medication
prescript[ion].” Filing No. 144-3 at 225. On March 23,
2016, Mr. Niksich was dizzy, nauseous, urinating blood, and
had abdominal pain. Filing No. 152-1 at 6. He was taken to
Terre Haute Regional Hospital to receive treatment.
Niksich had returned to Wabash Valley by April 1, 2016. Dr.
Byrd examined Mr. Niksich that day due to continued
complaints of abdominal pain. Filing No. 144-3 at 234. Dr.
Byrd's evidence reflects that he convinced Mr. Niksich to
hold off on opiate pain management “as long as [Mr.
Niksich] is assured this is an option given his terminal
state.” Id. Contrary to Dr. Byrd's
evidence, Mr. Niksich attests that he did not did not agree
to hold off receiving pain medication. Filing No. 152-1 at 6.
Dr. Byrd also noted that, “given [Mr. Niksich's]
terminal state, a request for opiate treatment would be
reasonable, however this will have to be evaluated/approved
by [the Regional Medical Director].” Filing No. 144-3
weeks later, on April 22, 2016, Dr. Byrd examined Mr. Niksich
who complained of abdominal pain. Dr. Byrd noted that
Tylenol, Tylenol 3, and Tramadol (Ultram) have not provided
pain relief for Mr. Niksich in the past, but that morphine
had “successfully treated” his pain. Filing No.
144-3 at 243. Nevertheless, Dr. Byrd stated that morphine
seemed like a drastic measure given the risk of spontaneous
bacterial peritonitis. Id. Dr. Byrd stated further
that pain management would be “at the discretion of the
[Regional Medical Director] given [his] complete lack of
experience with such cases.” Id. Contrary to
Dr. Byrd's evidence, Mr. Niksich attests that he did not
agree to hold off on pain management during that appointment.
days later, on April 27, 2016, Mr. Niksich submitted a
healthcare request form stating, “Dr. Byrd what is
happening with my pain medication prescriptions that we
discussed on 4/22/16.” Filing No. 144-3 at 247. The
next day, on April 28, 2016, a medical provider responded
that the “request [was] sent for approval.”
Id. Also, on April 28, 2016, Dr. Byrd emailed the
then Regional Medical Director, Dr. Kuenzli, requesting
“any suggestions” regarding Mr. Niksich's
pain management. Id. at 250. Dr. Kuenzli replied
with “concerns about using” morphine, so
suggested starting with Norco. Id.
was the first time Mr. Niksich was prescribed pain medication
in more than six months.
2, 2016, Mr. Niksich was dizzy, nauseous, feverish,
experiencing abdominal pain, and urinating blood, which made
it impossible for him to get out of bed. Filing No. 152-1 at
7. Mr. Niksich's cellmate, Dale Fugate, informed a
correctional officer that Mr. Niksich needed to go to the
infirmary. Id. Medical staff told the correctional
officer that he needed to fill out a healthcare request form
before receiving treatment, but Mr. Niksich was too sick to
do so. Id. The correctional officer called the
infirmary again, and he was again instructed to have Mr.
Niksich fill out a healthcare request form. Id.
Despite these instructions, the correctional officer took Mr.
Niksich to the infirmary due to his dire health condition.
Id. Mr. Niksich was then taken to Terre Haute
Regional Hospital by ambulance, where he received treatment
for three days. Id.
Niksich returned to Wabash Valley on May 6, 2016, and was
discharged from the infirmary the next day. Filing No. 144-4
at 17. When discharged, Dr. Byrd told Mr. Niksich that Dr.
Hinchman had denied the request to be evaluated for a liver
transplant. Filing No. 152-1 at 7. According to Dr.
Byrd's evidence, Mr. Niksich complained about the low
dose of Norco he was receiving, but Mr. Niksich disputes
this, asserting that he did not complain about receiving
Norco generally because he was happy to be receiving any pain
medication. Filing No. 152-1 at 7.
Niksich continued to complain to Dr. Byrd regarding abdominal
pain and requesting more effective pain medication over the
next few months. Mr. Niksich submitted two health care
request forms on May 10 and May 14, 2016. The first requested
morphine because Mr. Niksich believed the doctors from the
hospital prescribed it for him. Filing No. 144-3 at 330. The
second requested an appointment with Dr. Byrd, stating that
“[t]he Norco does not work for the pain I am having,
” and he again requested morphine. Id. at 331.
Byrd saw Mr. Niksich on May 20, 2016, for complaints of
abdominal pain. Id. at 332. Dr. Byrd said he would
discuss pain management with Dr. Kuenzli again “given
lack of improvement with Norco.” Id. at 334.
Mr. Niksich submitted additional healthcare request forms on
June 1 and June 9, 2016. Id. at 335-37. He first
requested information about the possibility of a liver
transplant and stated to Dr. Byrd that “[t]he Norco 5mg
does not work for my abdominal pain. We discussed this at our
last visit and you said you would suggest changing my pain
medication back to morphine.” Id. Then, on
June 9, Mr. Niksich informed Dr. Byrd that “[t]he Norco
pain medication does not work for [my] abdominal pain”
and it needed “to be increased or switched to
[morphine] as I was taking from February 2014 until September
23[, ] 2015 when Dr. Byrd refused to renew [the]
prescription. . . . Please . . . renew my prescription for
[morphine].” Id. at 337. Mr. Niksich submitted
further healthcare requests regarding the ineffectiveness of
his pain management for his abdominal pain on June 15 and
June 26, 2016. Id. at 339, 346.
is no evidence that Dr. Byrd provided Mr. Niksich with any
pain medication from October 2015 through April 2016, when
Dr. Byrd eventually prescribed Norco through Dr. Kuenzli. The
Court is surprised-and concerned-that the Medical Defendants
did not present any evidence, let alone mention, that Dr.
Byrd was unable to dispense controlled substances during the
time he was treating Mr. Niksich and explain what, if any,
protocols were in place given this restriction. This is
especially true given that Mr. Niksich directly raised this
concern at the outset of this action by submitting with his
Complaint documents (that the Medical Defendants do not
dispute are authentic) that reflect that Dr. Byrd surrendered
his controlled substance license to the Drug Enforcement
Agency (“DEA”), see Filing No. 2-1 at
2-3, and raised it again in response to an interrogatory
later in the case, see Filing No. 146-1 at 4 (Mr.
Niksich's response to defendant Richard Brown's
second interrogatory, which states that Richard Brown allowed
Dr. Byrd to treat Mr. Niksich's severe pain even though
“Dr. Byrd was unable to prescribe prescription pain
Court takes judicial notice of a declaration Dr. Byrd filed
in Perkins v. Byrd, No. 2:15-cv-336-WTL-MJD, Filing
No. 34-1 at 3. See Parungoa v. Community Health Sys.,
Inc., 858 F.3d 452, 457 (7th Cir. 2017) (“Courts
may take judicial notice of court filings and other matters
of public record when the accuracy of those documents
reasonably cannot be questioned.”). In
Perkins, Dr. Byrd acknowledged that he
“voluntarily surrender[ed] [his] privileges to dispense
controlled substances for three years.” See
id., Filing No. 25-1 at 2-3 (documents dated February 3,
2015, wherein Dr. Byrd voluntarily surrendered his license
with the federal DEA that permitted him to prescribe
controlled substances); see also Filing No. 2-1 at
2-3. Dr. Byrd attested in Perkins that his inability
to prescribe controlled substances has no impact on his
patients because they can receive medications through another
doctor at the facility. Id., Filing No. 34-1 at 3.
But he also noted that “from September to October
2015” he was “the only on-site medical doctor,
” so he “referred patients who might have a need
for controlled substances to the Regional Medical
Mr. Niksich was Referred to Indiana University's
Niksich filed this action on June 8, 2016, approximately a
month after Dr. Byrd told Mr. Niksich that Dr. Hinchman had
denied the request to be evaluated for a liver transplant.
Filing No. 152-1 at 7. Nevertheless, at an indeterminate time
in “early June of 2016, ” Dr. Byrd referred Mr.
Niksich to the Hepatitis C Treatment Committee (made up of
medical providers throughout the Indiana Department of
Correction, including Dr. Hinchman), which determined that
“Mr. Niksich's case should be referred directly to
IU Health Transplant Team.” Filing No. 144-1 at 5. IU
Health Transplant Team is the only entity in Indiana that
performs liver transplants. Id. Dr. Hinchman
directed Dr. Byrd to complete the referral by sending the
necessary paperwork and requesting an appointment.
Id. Still in June 2016, Mr. Niksich's most
recent lab results and medical records were sent to the IU
Health Transplant Team. Id.
18, 2016, the IU Health Transplant Team denied Mr.
Niksich's transplant referral without having examined
him. In short, the letter denying eligibility stated that Mr.
Niksich's incarceration renders him ineligible for a
liver transplant because incarceration does not “lend
itself to the necessary support system or controlled
environment” necessary to ensure proper recovery from a
liver transplant. Filing No. 144-3 at 355. However, the
letter stated that medical providers at Wabash Valley should
let them know if they “could assist in contacting other
transplant programs who might have different candidate
Mr. Niksich's Treatment by Dr. Mary Chavez
on or around July 6, 2016, Mr. Niksich was seen by Dr. Mary
Chavez (who is not a defendant) instead of Dr. Byrd. He
continued to complain about abdominal pain and the
ineffectiveness of Norco to Dr. Chavez. ...