Hurst v. Ohio Department of Rehabilitation and Correction et al

Filing 88

ORDER AND REPORT AND RECOMMENDATIONS. It is RECOMMENDED that plaintiff's Motion for Summary Judgment, Doc. No. 78 , be DENIED. Plaintiff's Motion to Compel, Doc. No. 84 , is DENIED. Signed by Magistrate Judge Norah McCann King on 2/19/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK EDWARD HURST,
Plaintiff,
vs.

Civil Action 2:11-cv-1090
Judge Smith
Magistrate Judge King

OHIO DEPARTMENT OF REHABILITATION
AND CORRECTION, et al.,
Defendants.
ORDER AND
REPORT AND RECOMMENDATION
Plaintiff Mark Hurst, a former state prisoner, originally filed
this action under 42 U.S.C. § 1983 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,” alleging that defendants acted with
deliberate indifference to his medical needs in violation of the
Eighth Amendment to the United States Constitution.

The Court

previously granted summary judgment in favor of the original
defendants on all claims except the § 1983 individual capacity claim
against Dr. Weil.

As to that claim, the Court concluded that “there

remain[ed] a genuine issue of material fact as to whether the medical
decisions made in this case were such a substantial departure from
accepted professional judgment as to amount to deliberate
indifference.”

Report and Recommendation, Doc. No. 47, p. 16; Opinion

and Order, Doc. No. 52. Plaintiff thereafter filed the Amended
Complaint, Doc. No. 58, asserting claims against John Gardner and Dr.

Andrew Eddy, the previously unidentified members of the “Collegial
Review Committee.”
This matter is now before the Court on plaintiff’s Motion to
Compel, Doc. No. 84, and on plaintiff’s Motion for Summary Judgment,
Doc. No. 78.
Motion to Compel
In his Motion to Compel, plaintiff seeks to require “the
Defendants to provide readable printed names to match every signature,
and initial, with a job[] title, to every Medical Document relating to
Plaintiff, that the ODRC has on record.”

Id. at p. 2.

On August 1,

2013, following a status conference, the Court directed that all
discovery be completed by January 15, 2014.

The parties were advised

that the discovery completion date “requires that discovery requests
be made sufficiently in advance to permit timely response by that
date.

Discovery related motions, if any, must be filed prior to the

discovery completion date.”

Order, Doc. No. 68, p. 1. Plaintiff’s

Motion to Compel was filed on February 4, 2014, i.e., more than two
weeks after the deadline for filing discovery related motions.
Although plaintiff indicates that the motion relates to discovery
requests propounded during the discovery period, plaintiff has not
explained why the Motion to Compel was not filed “prior to the
discovery completion date.”

See Order, Doc. No. 68, p. 1.

Furthermore, nothing in plaintiff’s Motion to Compel even suggests
that the motion could not have been filed by the January 15, 2014
deadline.

Plaintiff simply has not shown that he was diligent in

attempting to meet the case management deadline.
to Compel, Doc. No. 84, is therefore DENIED.

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Plaintiff’s Motion

Motion for Summary Judgment
Plaintiff moves for summary judgment on his remaining claims. The
standard for summary judgment is well established.

Pursuant to Rule

56(a) of the Federal Rules of Civil Procedure, summary judgment is
appropriate if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Id.

Fed. R.

In making this determination, the evidence “must

be viewed in the light most favorable” to the non-moving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

Summary

judgment will not lie if the dispute about a material fact is genuine,
“that is, if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.”
477 U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc.,

However, summary judgment is appropriate if

the opposing party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”
Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Celotex

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 252.

The “party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.”
Celotex Corp., 477 U.S. at 323.

The burden then shifts to the

nonmoving party who “must set forth specific facts showing that there

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is a genuine issue for trial.”
Fed. R. Civ. P. 56(e)).

Anderson, 477 U.S. at 250 (quoting

“Once the moving party has proved that no

material facts exist, the non-moving party must do more than raise a
metaphysical or conjectural doubt about issues requiring resolution at
trial.”

Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)).
The Amended Complaint asserts claims against Dr. Weil, Dr. Eddy,
and John Gardner for allegedly denying plaintiff necessary surgery and
rehabilitation in connection with a rotator cuff tear.
Complaint, ¶ 9.

Amended

The Eighth Amendment to the United States

Constitution prohibits cruel and unusual punishment.

In order to

prevail on his claims, plaintiff must prove that each defendant acted
with “deliberate indifference to [plaintiff’s] serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 103-04 (1976).
both an objective and a subjective component.

This standard includes
The objective component

requires a plaintiff to show the existence of a “sufficiently serious”
medical need.

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

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.”

Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing

Farmer, 511 U.S. at 837).

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

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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).

Plaintiff alleges that the cancellation of scheduled rotator cuff
surgery by Dr. Weil, after consultation with Dr. Eddy and John
Gardner, constitutes deliberate indifference to plaintiff’s serious
medical needs.

Plaintiff argues that the evidence attached to his

Motion for Summary Judgment and a “thorough analysis” of this Court’s
October 23, 2012 Report and Recommendation, Doc. No. 47, prove that
Dr. Weil acted with deliberate indifference “and had no cognizable
reason to cancel Plaintiff’s surgery.”
pp. 3-9.

Motion for Summary Judgment,

Plaintiff’s argument is not well taken.

The Report and Recommendation upon which plaintiff relies in this
regard, Doc. No. 47, recommended that Defendants’ Motion for Summary
Judgment be denied as to plaintiff’s § 1983 individual capacity claims
against Dr. Weil.

That recommendation was based on the conclusion

that “there remain[ed] a genuine issue of material fact as to whether
the medical decisions made in this case were such a substantial
departure from accepted professional judgment as to amount to
deliberate indifference.”

Id. at p. 16.

That genuine issue remains

and plaintiff’s reliance on the Report and Recommendation as a basis
for summary judgment is therefore improper.

Furthermore, the

additional evidence1 submitted in support of plaintiff’s Motion for

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Attached to plaintiff’s Motion for Summary Judgment are documents
consisting of, or relating to, ODRC protocols regarding referrals to medical
consultation, the exhaustion of plaintiff’s administrative remedies,
plaintiff’s medical records, plaintiff’s discovery requests and defendants’
responses thereto, declarations and defendants’ résumés, documents exchanged

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Summary is not dispositive of either plaintiff’s claims or of Dr.
Weil’s defenses against those claims.

The Court therefore concludes

that there remains a genuine issue of material fact as to plaintiff’s
deliberate indifference claim against Dr. Weil.

Because plaintiff’s

claims against Dr. Eddy and John Gardner are premised on these
defendants’ agreement with Dr. Weil in cancelling plaintiff’s surgery,
it follows that there also remains a genuine issue as to whether these
defendants were also deliberately indifferent to plaintiff’s serious
medical needs.
Accordingly, it is RECOMMENDED that plaintiff’s Motion for
Summary Judgment, Doc. No. 78, be DENIED.
Plaintiff’s Motion to Compel, Doc. No. 84, is DENIED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
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.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. 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
between the parties during settlement negotiations, and plaintiff’s last
paystub prior to his incarceration. At a minimum, these documents fail to
establish the subjective component of his Eighth Amendment claims. See
Comstock, 273 F.3d at 703. Moreover, evidence of settlement negotiations
cannot be considered on summary judgment. See Fed. R. Evid. 408. In any
event, many of the attached documents were considered by the Court in
resolving, and denying, defendants’ motion for summary judgment. See Doc.
Nos. 36, 38, 47.

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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 Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

February 19, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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