Danford v. State of Ohio Department of Rehabilitation and Corrections et al

Filing 117

ORDER REPORT AND RECOMMENDATION : Plaintiffs motions, Doc. Nos. 85, 89, 93, 94, 96, 104, 107, 112, are DENIED. It is RECOMMENDED that the Wexford Motion for Summary Judgment, Doc. No. 90, and the Banks and Sawyer Motion for Summary Judgment,Doc. No. 91, be GRANTED ( Objections to R&R due by 3/1/2012) Signed by Magistrate Judge Norah McCann King on 2/13/12. (rew1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

DONALD D. DANFORD,
Plaintiff,
v.

Case No. 2:10-CV-124
Judge Marbley
Magistrate Judge King

STATE OF OHIO DEPARTMENT
OF REHABILITATION AND
CORRECTIONS, et al.,
Defendants.
ORDER AND REPORT AND RECOMMENDATION
This is a civil rights action under 42 U.S.C. §1983 in which
plaintiff, who is incarcerated at Noble Correctional Institution (“NCI”),
alleges that he was subjected to deliberate indifference to his serious
medical needs in contravention of his rights under the Eighth and
Fourteenth Amendments to the United States Constitution when he was
denied medical care in connection with the August 2009 fracture of his
right ankle.

Complaint, Doc. No. 4, p.5.

Remaining defendants are

Warden Banks of NCI and V. Sawyer, Health Care Administrator of NCI
{hereafter “the State defendants”], and Wexford Health Sources and Sarah
Seeburger,

Health Services Administrator for NCI [hereinafter “the

Wexford defendants”].

This is matter is now before the Court on

Defendants’ Wexford Health Sources, Inc. and Sarah Seeburger’s Motion for
Summary Judgment, Doc. No. 90 (“ Wexford Defendants’ Motion for Summary
Judgment”); Defendants Banks and Sawyers’ Motion for Summary Judgment ,
Doc. No. 91 (“Banks and Sawyer Motion for Summary Judgment”), as well as
on a number of motions filed by plaintiff: Doc. Nos. 85, 89, 93, 94, 96,
104, 107, and 112.
I.

The Court will first address plaintiff’s motions.

PLAINTIFF’S MOTIONS

Throughout the litigation, plaintiff has persisted in his requests
for the appointment of counsel.

He explains that counsel is necessary

to conduct depositions and to retain the services of an expert.1

However,

plaintiff does not identify those persons whose deposition testimony is
necessary to the resolution of the case, and it is not apparent to the
Court that such testimony is in fact necessary.

Furthermore, plaintiff

has not articulated the information sought to be adduced on deposition
nor has he explained why such information is necessary to the resolution
of the issues presented in this action.

Moreover, defendants’ motions

for summary judgment are based on plaintiff’s medical records, which have
been produced to plaintiff and upon which plaintiff also relies in making
substantive response to those motions for summary judgment.2

Therefore,

it does not appear that the services of an outside expert is necessary
to the resolution of plaintiff’s claims.

Finally, plaintiff, although

pro se, has vigorously pursued his claims in this action.

Under these

circumstances, this Court concludes that the appointment of counsel for
plaintiff is not necessary to the full presentation of his claims.
Plaintiff’s most recent motions for the appointment of counsel, Doc. Nos.
89, 107, are therefore DENIED.
Plaintiff has also repeatedly moved to compel additional discovery.
Currently, plaintiff asks that defendants be required to produce the

1
Plaintiff’s earlier motions for the appointment of counsel were also
predicated on the refusal of the Wexford defendants to produce copies of
plaintiff’s medical records to anyone other than counsel for plaintiff.
However, the State defendants have produced plaintiff’s medical records
directly to plaintiff and plaintiff has made substantive response to the
motions for summary judgment.
2

The Wexford defendants have proffered the Affidavit of Thomas Murray,
M.D., in support of their motion for summary judgment. Exhibit B, attached to

Defendants’ Wexford Health Sources, Inc. and Sarah Seeburger’s Motion
for Summary Judgment. The Court concludes that consideration of this
affidavit is unnecessary to the resolution of that motion and has not
considered that affidavit.

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actual x-rays of his ankle as well as the medical records of another
inmate

who allegedly

suffered

a similar

injury

but whose outcome,

plaintiff believes, was better than was plaintiff’s. Doc. Nos. 85, 112.
All parties, including plaintiff, have referred to plaintiff’s medical
records in connection with defendants’ motions for summary judgment.

It

is not apparent to the Court that review of plaintiff’s actual x-rays is
necessary to the resolution of the issues presented in this case.
Moreover, the medical records of another inmate are simply irrelevant to
whether the named defendants were deliberately indifferent to plaintiff’s
medical needs.

Accordingly, plaintiff’s motions to compel, Doc. Nos. 85,

112, are DENIED.
Finally, plaintiff has filed a number of motions seeking to strike
filings by the defendants.

Doc. Nos.

93, 94, 96, 104.

He moves to

strike the Wexford Defendants’ Motion for Summary Judgment on the grounds
that it was not timely filed and that plaintiff did not receive a copy
of the motion in timely fashion.

Doc. Nos. 93, 94, 96.

The

Wexford

Defendants’ Motion for Summary Judgment, Doc. No. 90, was in fact timely
filed, and plaintiff has now received a copy of motion, as evidenced by
his substantive response to the motion, Doc. No. 100.

Under these

circumstances, plaintiff’s motions to strike the Wexford Defendants’
Motion for Summary Judgment, Doc. Nos. 93, 94, 96, 104, are DENIED.
Plaintiff has also moved to strike the reply filed in support of the
State defendants’ motion for summary judgment, arguing that the Federal
Rules of Civil Procedure do not authorize the filing of a reply in
response to an answer.

However, plaintiff’s response to the State

defendants’ motion for summary judgment, Doc. No. 97, is not an answer
within the meaning of Fed. R. Civ. P. 7(a).

Moreover, the local rules

of this Court, S.D. Ohio R. 7.2(a)(2), expressly authorize the filing of

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a reply memorandum.

Plaintiff’s m6tion to strike the reply in support

of the Defendants Banks and Sawyers’ Motion for Summary Judgment, Doc.
No. 104, is therefore DENIED.
II.

MOTIONS FOR SUMMARY JUDGMENT
A.

Factual Background

After plaintiff slipped and broke his ankle at NCI on August 29,
2009, he was stabilized at NCI and then transported to the emergency
department at Marietta Memorial Hospital, where x-rays were taken.
Complaint, p.5; Affidavit of Vanessa Sawyer, ¶ 6, attached as Exhibit
A to Banks and Sawyer Motion for Summary Judgment.3

The dislocation

was reduced and plaintiff’s ankle was placed in a splint. Id., ¶ 7;
Exhibit C to Banks and Sawyer Motion for Summary Judgment.

Plaintiff

was provided pain medication and was directed to consult with an
orthopedic specialist, with the notation “will need surgery.”

Exhibit

C, attached to Banks and Sawyer Motion for Summary Judgment.
Plaintiff was returned to NCI, where he was admitted to Inmate Health
Services and where his medical records indicate that a referral to an
orthopedic specialist should be made “ASAP.”

Exhibits E, F, attached

to Banks and Sawyer Motion for Summary Judgment. On September 8, 2009,
Mohammad Al-Quaimi, M.D., an orthopedic specialist, examined plaintiff
and scheduled open reduction internal fixation surgery for September
11, 2009.

Exhibits H, I, attached to Banks and Sawyer Motion for

Summary Judgment; see also Complaint, p.6.

Prison clinical notes

indicate that, while awaiting surgery, plaintiff was provided pain
medication.

Id. Plaintiff was returned to NCI on September 12, 2009.

Exhibit J, attached to Banks and Sawyer Motion for Summary Judgment;

3
Although both motions for summary judgment include plaintiff’s medical
records, for ease of reference the Court will refer only to the exhibits
attached to the Banks and Sawyer Motion for Summary Judgment .

4

see also Complaint, p.6.

Dr. Al-Quaimi’s operative notes indicate, “I

will see him in the office in 2 weeks.”

Id.

Notes from NCI indicate

that, upon his return, plaintiff was instructed to keep his leg
elevated, was prescribed Ultram, 50 mg., and was instructed “[t]o
notify staff if pain not eased.”

Exhibit K, attached to Banks and

Sawyer Motion for Summary Judgment.
Plaintiff was transported to Dr. Al-Quaimi’s office on October 1,
2009.

Exhibits L, M, attached to Banks and Sawyer Motion for Summary

Judgment.

Clinical notes indicate that the “stitches” were to be

left in place until Dr. Al- Quiami next saw plaintiff on October 6,
2009.

Exhibit M, attached to Banks and Sawyer Motion for Summary

Judgment.

On that date, Dr. AlQuaimi removed plaintiff’s staples,

commented that plaintiff was “healing well,” and indicated that
plaintiff was weight-bearing as tolerated and should use crutches for
6 weeks.

Exhibit L, attached to Banks and Sawyer Motion for Summary

Judgment; see also Complaint, pp. 6-7 (indicating that the doctor
instructed him to “put[] pressure on that foot[] ‘as much as [he] can
stand’”).

Nursing notes indicate that plaintiff was using crutches

without difficulty.

Exhibit M, attached to Banks and Sawyer Motion

for Summary Judgment. Plaintiff reported only mild pain and stiffness.
Id.

Plaintiff underwent a follow-up appointment with Dr. Al-Quaimi on

November 17, 2009.
Summary Judgment.

Exhibit N, attached to Banks and Sawyer Motion for
At that point, his crutches were discontinued, he

was directed to use Ibuprofen for pain as needed and was told to
return should his pain worsen or should he have any concerns.

Id.

On December 15, 2009, plaintiff indicated that he “want[ed] low
bunk, low range restriction lifted that was ordered for ankle
injury/surgery.”

Exhibit O, attached to Banks and Sawyer Motion for

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Summary Judgment.

Plaintiff indicated that he “want[ed] to transfer

to another institution where he can work outside the fence and the
restriction is interfering with this.”

Id.

He “report[ed] [his]

ankle is healed” and “fine;” he “denie[d] pain” and indicated that he
has “been doing squats and lunges and everything,” and was “very angry
and emphatic that he doesn’t want to see the [doctor].”

Id.

However, progress notes dated January 6, 2010, indicate that
plaintiff intended to sue “due to length of time between ER & ankle
surgery, and f/u appt not being timely.”

Exhibit N, attached to Banks

and Sawyer Motion for Summary Judgment.
Plaintiff executed the Complaint on January 30, 2010.

Complaint,

p. 8.
B. Standard
Summary judgment is appropriate if the record establishes that
there is no genuine issue of material fact.

Fed. R. Civ. P. 56(a);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).

If the

party moving for summary judgment supports his motion as required by
Fed. R. Civ. P. 56©, the non-moving party “may not rely on his
pleadings alone.”

Arnett v. Myers, 281 F.3d 552, 559 (6th Cir. 2002).

Instead, the non-moving party, like the party moving for summary
judgment, must support his factual assertions by “citing to particular
parts of materials in the record, including depositions, documents, .
. . affidavits or declarations, stipulations . . . , admissions,
interrogatory answers, or other materials.”
56(c)(1)(A).

Fed. R. Civ. P.

“The mere existence of a scintilla of evidence in

support of [the opposing party]’s position will be insufficient; there
must be evidence on which the jury could reasonably find for the
[opposing party].”

Anderson, 477 U.S. at 251; see also Celotex Corp.

6

v. Catrett, 477 U.S. 317 (1986).
The Eighth Amendment guarantees prisoners “a right to medical
care for serious medical needs.”
416, 423 (6th Cir. 2006).

Perez v. Oakland County, 466 F.3d

A failure to provide medical care amounts

to an Eighth Amendment violation only if it is equivalent to “cruel
and unusual punishment.”

Horn by Parks v. Madison County Fiscal

Court, 22 F.3d 653, 660 (6th Cir.1994).

Prison officials will be held

liable for a denial of medical care of constitutional proportions if
they “are so deliberately indifferent to the serious medical needs of
prisoners as to unnecessarily and wantonly inflict pain.”

Id.

The deliberate indifference standard includes both objective and
subjective components.

An official’s deliberate indifference will

give rise to a constitutional violation if (1) “the medical need at
issue is sufficiently serious,” [i.e., the objective component] and if
(2) the official “subjectively perceived facts from which to infer
substantial risk to the prisoner, [ ] he did in fact draw the
inference, and [ ] he then disregarded that risk” [i.e., the
subjective component]. Comstock v. McCrary, 273 F.3d 693, 703 (6th
Cir. 2001) (internal quotation marks omitted).
The Constitution does not, however, prohibit medical malpractice
within the prison context.

Id.; Wester v. Jones, 554 F.2d 1285, 1286

(4th Cir. 1977); Hampton v. Holmesburg Prison Officials, 546 F.2d
1077, 1081 (3d Cir. 1976).

Moreover, a mere dispute over the course

of medical treatment is not actionable under §1983.
560 F.2d 201 (5th Cir. 1977).
C. Discussion

7

Young v. Gray,

Plaintiff’s claims in this action rely on several allegations.
He complains that defendants delayed the initial surgery and the
removal of surgical staples in the area of the wound.

Complaint, p.6.

Plaintiff also complains that, after the removal of his staples, he
received “[n]o rehabilitation or further treatment due to the
incompetence and practices of the NCI/Wexford personnel.” Id., p.7.
Plaintiff also suggests that he did not receive a wheelchair, that he
was returned to regular housing too early and that he was improperly
returned to work.

Id., p.6.

Finally, plaintiff suggests that, during

an “[e]xtremely painful period” following surgery, he was given only
“one Ultram” three times a day.

Id.

The uncontroverted evidence establishes that none of the named
defendants was deliberately indifferent to plaintiff’s serious medical
needs. He was treated within the prison promptly after suffering his
injury, he was transported to an outside emergency room and underwent
treatment, including surgery, by an orthopedic specialist who
commented that, after removing plaintiff’s staples, that plaintiff was
“healing well.”

After yet another follow-up appointment on November

17, 2009, the orthopedic specialist apparently saw no need for further
specialized treatment.

The records nowhere suggest that a wheelchair

or physical therapy was prescribed for plaintiff.
The fact that surgery may not have been scheduled as quickly as
plaintiff would have liked does not alone give rise to a
constitutional violation; prisoners and non-prisoners alike are
commonly confronted with the difficult schedules of medical

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specialists.

The evidence indicates that prison officials transported

plaintiff to Dr. Al-Quaimi on October 1, 2009 for removal of the
staples.

There is no evidence to suggest that the fact that Dr. Al-

Quaimi did not actually remove the staples until October 6, 2009 is
attributable to defendants or that this delay in the removal of
plaintiff’s staples caused plaintiff harm.
In his unverified Complaint, plaintiff suggests that he suffered
unnecessary pain and suffering throughout this process.

Id., p.6.

He

also suggests that he incurred “longterm damage and harm from the
original accident and their malpractice and indifference” and that he
“still experience[s] pain regularly in that entire lower leg.”
p.7.4

Id.,

See also Plaintiff’s Submission of Available Discovery with

Stated Proof of Claims and Request for the Appointment of Counsel,
Doc. No. 67; Plaintiff’s Rebuttal/Reply to Defendants Banks and Sawyer
Motion for Summary Judgment, Doc. No. 97; Plaintiff’s Rebuttal to
Defendants Banks and Sawyer Memorandum in Opposition, Document #98,
Filed 7/18/11, Doc. No. 103.

In the absence of evidence of deliberate

indifference on the part of any of the defendants, however, plaintiff
cannot prevail on his constitutional claims.
WHEREUPON plaintiff’s motions, Doc. Nos. 85, 89, 93, 94, 96, 104,
107, 112, are DENIED.
It is RECOMMENDED that the Wexford Motion for Summary Judgment,
Doc. No. 90, and the Banks and Sawyer Motion for Summary Judgment,
Doc. No. 91, be GRANTED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file

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The Court notes that plaintiff’s Complaint is unverified, as are his
responses to defendants’ motions for summary judgment. See Doc. Nos. 97, 100.

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and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto. 28
U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must be
filed within fourteen (14) days after being served with a copy
thereof. F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

February 13, 2012
DATE

s/ Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE

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