Hurst v. Ohio Department of Rehabilitation and Correction et al

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 12-3-12. (ga)

v

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

MARK EDWARD HURST,
Case No. 2:11-CV-1090
Judge Smith
Magistrate Judge King

Plaintiff,
vs.

OHIO DEPARTMENT OF REHABILITATION
AND CORRECTION, et al.,
Defendants.

OPINION AND ORDER
Plaintiff Mark Hurst, a former state prisoner, brings this action
against defendants Ohio Department of Rehabilitation ["ODRC"], Gary
Mohr, Mona Parks, Dr. David Weil, Karen Stanforth, Ralph Wilson, and
six unidentified members of the "Collegial Review Committee" under 42
U.S.C.

§

1983, alleging that defendants acted with deliberate

indifference to his medical needs in violation of the Eighth Amendment
to the United States Constitution.

On October 23, 2012, the United

States Magistrate Judge issued a Report and Recommendation, Doc. No.
47, recommending that Defendants'

~tion

for Summary Judgment, Doc.

No. 36, be granted as to all of plaintiff's claims except for the§
1983 individual capacity claims against Dr. Weil.
before the Court on Dr. Weil's Objections to the

This matter is
~gistrate

Judge's

Report and Recommendation ("Defendant's Objections"), Doc. No. 50.
Plaintiff has not filed objections, but he has filed a response to

Defendant's Objections.

Doc. No. 51.

1

For the reasons that follow,

Defendant's Objections are OVERRULED.

The Report and Recommendation

is ADOPTED and AFFIRMED.
Plaintiff

alleges

that,

while

at

the

Madison

Correctional

Institution ("MaCI"), he was denied necessary surgery and rehabilitation
for a rotator cuff tear.

David C. Weil, M.D., was employed by the ODRC

and treated plaintiff while he was incarcerated at the MaCI.
referred

plaintiff

to

an

orthopedic

specialist

to

determine

plaintiff's rotator cuff tear qualified for surgical repair.
2010, that specialist ordered surgery for the tear.
2010,

Dr.

necessary."

Weil

cancelled that surgery as

Exhibit

B,

attached to

Dr Weil
if

In December

However, in March

"not immediately medically

Defendants'

Motion

for

Summary

Judgment, pp. 14-15. Dr. Weil explained the cancellation of plaintiff's

surgery as follows:
Due to the fact the [sic] Mr. Hurst did not present
to me with any complaints regarding his shoulder
since October of 2010, I decided to postpone Mr.
Hurst's surgery on March 4, 2011 until such time
that I could conduct a face to face assessment of
any ongoing pathology.
This was communicated to
the Collegial Review Committee who deemed this
course of action reasonable due to the large time
gap
as
mentioned
above.
Accordingly,
the
postponement and ultimate cancellation of his
surgery came with an invitation via an order to the
staff to accommodate follow-up with me if he had
any residual symptoms.
Declaration of David C. Weil, M.D., , 8, attached to Defendants'
for Summary Judgment.

After plaintiff's release from prison,

~tion

another

physician expressed his doubt that, at that point, plaintiff's rotator
cuff tear could be repaired.

Plaintiff's Response, Appendix 7, at pp.

2-5, Doc. No. 38.

2

The Magistrate Judge recommended that, as the motion relates to Dr.
~tion

Weil, Defendants'

for Summary Judgment should be denied:

Under the circumstances, a jury could reasonably find
that Dr. Weil disregarded a known risk by cancelling
plaintiff's rotator cuff surgery, to plaintiff's detriment.
See Plaintiff's Response, Appendix 7, at p. 2 (Dr. Jackson
advised plaintiff "that his rotator cuff tear may not be
repairable
this
long post
injury-a concern is
fixed
contracture of the supraspinatous with muscle wasting that
prevents pulling the rotator cuff back to its insertion for
repair. Rotator cuff repairs are more predictably repairable
within a few months of injury.").
Plaintiff's treatment for
shoulder pain continued throughout this relevant period and
even after his surgery was cancelled. See Defendants' Motion,
Exhibit B, at pp. 11-13; Plaintiff's Response, Appendix 1.
Report and Recommendation, pp. 15-16.
When a magistrate judge issues a report and recommendation
regarding a dispositive pretrial matter, such as a motion for summary
judgment, the district court must review de novo any portion of the
report and recommendation to which a specific objection is made.
R. Civ. P. 72(b); 28 U.S.C.

§

Fed.

636(b); United States v. Curtis, 237

F.3d 598, 603 (6th Cir. 2001).

"The court shall grant summary

judgment 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."

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

Dr. Weil objects to the Report and Recommendation as contrary to
law and based on clearly erroneous factual findings.
Objections, pp. 6, 9.
entirely clear.

Defendant's

Dr. Weil's objections are not, however,

Rather than specifically designating the portion of

the Report and Recommendation that he questions and the basis for his
objections, Dr. Weil makes the same general arguments as he did in
Defendants'

~tion

for Summary Judgment.

3

Dr. Weil essentially argues

- as he did in Defendants' frbtion for Summary Judgment,

see

Defendants' frbtion for Summary Judgement, p. 12 - that this case

represents a "simple disagreement as to the type of treatment and not
a constitutional violation."

Defendant's Objections, p. 11.

The Eighth Amendment to the United States Constitution prohibits
cruel and unusual punishment.

To prevail on his § 1983 individual

capacity claim against Dr. Weil, plaintiff must prove that Dr. Weil
acted with "deliberate indifference to [his] serious medical needs."
Estelle v. Gamble, 429 U.S. 97, 103-04 (1976).

This standard includes

both an objective and a subjective component.

The objective component

requires a showing of a "sufficiently serious" medical need.
v. Brennan, 511 U.S. 825, 834

(1994).

Farmer

The subjective component

requires a plaintiff to "allege facts which, if true, would show that
the official being sued subjectively perceived facts from which to
infer substantial risk to the prisoner, that he did in fact draw the
inference, and that he then disregarded that risk."
McCrary, 273 F.3d 693, 703

837).

(6th Cir. 2001)

Comstock v.

(citing Farmer, 511 U.S. at

However, "a plaintiff need not show that the official acted

'for the very purpose of causing harm or with knowledge that harm will
result."'

Id.

(quoting Farmer, 511 U.S. at 835).

"Instead,

'deliberate indifference to a substantial risk of serious harm to a
prisoner is the equivalent of recklessly disregarding that risk.'"
Id.

(quoting Farmer, 511 U.S. at 836).

On the other hand, a dispute

over the course of medical treatment is not actionable under §1983;
where an inmate has received some medical care and the dispute is over
the adequacy of that care, federal courts "are generally reluctant to

4

second guess medical judgments

"

Graham ex rel. Estate of

Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004);
Westlake v. Lucas, 537 F.2d 857, 860 n.5

(6th Cir. 1976).

Defendant does not object to the Magistrate Judge's conclusion
that a reasonable jury could find that plaintiff suffered a serious
medical need, i.e., a "complete tear of the rotator cuff with
retraction of the supraspinatus muscle and tendon."

Report and

Recommendation, pp. 11-12.

As to the subjective component, Dr. Weil does not expressly
object to the Magistrate Judge's conclusion that "[a] reasonable jury
could find that Dr. Weil both subjectively perceived facts from which
to draw an inference, and did draw an inference, that a substantial
risk to plaintiff existed."

Id. at p. 12.

He does, however, argue

that this case represents a "simple disagreement as to the type of
treatment and not a constitutional violation."
Objections, p. 11.

Defendant's

According to Dr. Weil, he "made a medical

determination based upon the large gaps in requesting treatment that
the surgery was not medically necessary at the time," and "[h]e did
not have any knowledge that harm would result" from cancelling
surgery.

Id. at pp. 7-11.

The Magistrate Judge addressed these same arguments in making her
recommendation and this Court agrees with that recommendation.

Dr.

Weil knew of plaintiff's rotator cuff tear and knew, too, that surgery
had been recommended by the specialist to whom he had referred
plaintiff.

See Dr. Weil Declaration, attached to Defendants' frbtion

for Summary Judgment as Exhibit A, at

5

~~

6-7.

Defendant Weil

cancelled that surgery, purportedly because of gaps in his treatment,
but the medical records suggest that there were no gaps in plaintiff's
treatment.
p. 11

See Defendants'

~tion

for Summary Judgment, Exhibit B, at

(the orthopedic specialist's "report and recommendation[]"

providing that plaintiff reported shoulder pain on December 5, 2010),
p. 13 (plaintiff's December 20, 2010 prescription for Motrin and
February 28, 2011 prescription for ibuprofen).

There is also evidence

suggesting that plaintiff's rotator cuff may no longer be repairable.

See Plaintiff's Response to Defendants'

~tion

for Summary Judgment,

Doc. No. 38, Appendix 7, at p. 2.
Under the circumstances, a reasonable jury could find that the
medical decisions made in this case were such a substantial departure
from accepted professional judgment as to amount to deliberate
indifference.
2001)

See Lemarbe v. Wisneski, 266 F.3d 429, 439 (6th Cir.

("'[A] prisoner is not required to show that he was literally

ignored by the staff' to prove an Eighth Amendment violation.
See also Rahoi v. Sirin, 252 F.R.D. 464, 475-76

.")

(W.D. Wis. 2008)

(denying summary judgment where a prisoner was provided with pain
medication and other accommodations such as lower bunk and first floor
restrictions for a torn rotator cuff) .
Dr. Weil also objects to the Report and Recommendation on the
basis that the Magistrate Judge made "clearly erroneous" factual
findings that are inconsistent with plaintiff's medical records.

Defendants' Objections, pp. 6-9.

Again, Dr. Weil's objections are not

entirely clear, but they appear to relate to the objections discussed

supra.

He objects to the "factual finding that 'the medical records

6

do not suggest that Dr. Weil had any interaction with Plaintiff
between October 14, 2010 and March 4, 2011, when he cancelled
Plaintiff's surgery' because prescriptions for ibuprofen and Motrin
were continued throughout this period."

Id. at pp. 6-7.

Dr. Weil

also objects to the "factual finding that Plaintiff's treatment for
shoulder pain continued throughout this relevant period."
8.

Id. at p.

According to Dr. Weil, plaintiff did not present to him personally

with any complaints regarding shoulder pain between October 14, 2010
and March 4, 2011, when Dr. Weil cancelled plaintiff's surgery.

Id.

at pp. 6-9.
Dr. Weil's objections are without merit.

Regardless of whether

plaintiff presented to Dr. Weil personally for shoulder pain between
October 14, 2010 and March 4, 2011, the record is replete with
evidence that plaintiff complained of, and was provided medication
for,

shoulder pain during this period.

See Defendants'

~tion

for

Summary Judgment, Exhibit B, at p. 11 (the orthopedic specialist's
"report and recommendation[]" providing that plaintiff reported
shoulder pain on December 5, 2010), p. 13 (plaintiff's December 20,
2010 prescription for Motrin and February 28, 2011 prescription for
ibuprofin); Plaintiff's Response to Defendants'
Judgment,

~tion

for Summary

Doc. No. 38, Appendices 4 and 5 (plaintiff's February 20 and

February 26, 2011 informal complaints expressing his belief that
surgery was necessary and his concern that delay may cause permanent
damage).

Further, the Magistrate Judge did not find, as Dr. Weil

argues, that "the medical records do not suggest that Dr. Weil had any
interaction with Plaintiff between October 14, 2010 and March 4, 2011,

7

•
when he cancelled Plaintiff's surgery because prescriptions for
ibuprofen and Motrin were continued throughout this period."

Compare

Defendant's Objections, pp. 6-7 (quotations omitted; emphasis added),
with Report and Recommendation, p. 15 (finding that (1) plaintiff's
"medical records do not suggest that Dr. Weil had any interaction with
plaintiff between October 14, 2010 and March 4, 2011, when he
cancelled plaintiff's surgery;" and (2) "[p]rescriptions for ibuprofen
and Motrin were continued throughout this period.").
In short, the Court finds no error in the Magistrate Judge's
discussion of the facts of this case or in her analysis of plaintiff's
claims; there remains a genuine issue of material fact as to whether
Dr. Weil's medical decisions in this case were such a substantial
departure from accepted professional judgment as to amount to
deliberate indifference.
Pursuant to 28 U.S.C.

§

636(b) (1), this Court has conducted a

careful de novo review of the Report and Recommendation and
Defendant's Objections.

For the foregoing reasons and for the reasons

detailed in the Magistrate Judge's Report and Recommendation,
Defendant's Objections, Doc. No. 50, are OVERRULED.
Recommendation, Doc. No. 47, is ADOPTED and AFFIRMED.

The Report and
Plaintiff's

§

1983 individual capacity claims against Dr. Weil may proceed.
Defendants'

~tion

for Summary Judgment, Doc. No. 36, is GRANTED as to

plaintiff's remaining claims.

S/ George C. Smith
George C. Smith, Judge
United States District Court

8