Carrigan-Terrell v. Mohr et al

Filing 47

ORDER ADOPTING the REPORT AND RECOMMENDATION 41 in that the 34 Motion for Summary Judgment filed by Nurse Riker, Doctor Burke, Nurse Maldinado, Doctor Tench, Dr. Tano, Mr. Nicastro, Doctor Nalluri and Jennie Trim is GRANTED and that the 36 Motion requesting denial of Summary Judgment filed by D'Nanekai Carrigan-Terrell is DENIED. Signed by Judge Gregory L Frost on 10/22/13. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
D’NANAKAI CARRIGAN-TERRELL,
Case No. 2:12-cv-00215
JUDGE GREGORY L. FROST
Magistrate Judge Abel

Plaintiff,

v.
GARY MOHR, et al.,
Defendants.
OPINION AND ORDER
In this action, Plaintiff N’Nanakai Carrigan-Terrell, a prisoner at the Ohio Reformatory
for Women (“ORW”), alleges claims under 42 U.S.C. § 1983 against Defendants Genine Trim,
Dr. Suseela Nalluri, Dr. Christy Tinch, Dr. Edmund Burke, Erin Maldonado, Bethany Ritter, and
Dr. Sheila Tano. On July 26, 2013, the Magistrate Judge issued a Report and Recommendation
(ECF No. 41), recommending that the Court grant the motion for summary judgment (ECF No.
34) filed by the State of Ohio on behalf of Defendants. The matter is before the Court pursuant
to 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b) following the Plaintiff’s timely filing of
objections to the Report and Recommendation. (ECF No. 43.) For the reasons set forth below,
the Court OVERRULES Plaintiff’s objections, ADOPTS the Magistrate Judge’s Report and
Recommendation, and GRANTS Defendants’ motion for summary judgment.
I.
Plaintiff objects to the Magistrate Judge’s recommendation that summary judgment be
granted in favor of Defendants. When the Court receives objections to a report and
recommendation on a dispositive matter, the District Judge “must determine de novo any part of
the magistrate judge’s disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3).
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After review, the District Judge “may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.” Id.; see
also Ridenour v. Collins, 692 F. Supp. 2d 827, 829 (S.D. Ohio 2010).
In this case, the Court is reviewing the Magistrate Judge’s recommendation to grant
Defendants’ motion for summary judgment. Summary judgment is appropriate “if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is no genuine
issue of material fact and that the movant is entitled to judgment as a matter of law.”
Fed.R.CivP. 56(a). The Court may therefore grant a motion for summary judgment if the
nonmoving party who has the burden of proof at trial fails to make a showing sufficient to
establish the existence of an element that is essential to that party's case. See Muncie Power
Prods., Inc. v. United Techs. Auto., Inc, 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265(1986)).
In viewing the evidence, the Court must draw all reasonable inferences in favor of the
nonmoving party, who must set forth specific facts showing that there is a genuine issue of
material fact for trial. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)); Hamad v. Woodcrest Condo. Ass'n, 328
F.3d 224, 234 (6th Cir. 2003). A genuine issue of material fact exists "if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party." Muncie, 328 F.3d at 873
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986)). Consequently, the central issue is "'whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Hamad, 328 F.3d at 234-35 (quoting Anderson, 477 U.S. at 251-52).

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II.
Plaintiff is a convicted murderer incarcerated at the Ohio Reformatory for Women
(“ORW”). She filed this action against various Defendants, alleging violations of 42 U.S.C. §
1983 arising from the involuntary administration of psychotropic medication to Plaintiff during
2011.
The State of Ohio and Defendants Genine Trim, Dr. Suseela Nalluri, Dr. Christy Tinch,
Dr. Edmund Burke, Erin Maldonado, Bethany Ritter (erroneously identified in the Complaint as
“Nurse Riker”), and Dr. Sheila Tano moved for summary judgment on Plaintiff’s Complaint.1
(ECF No. 34.) Plaintiff raises several objections to the Magistrate Judge’s report and
recommendation granting summary judgment, all of which are of the same ilk.2 She challenges
the underlying factual assertions made by Defendants in their motion for summary judgment.
Specifically, Plaintiff contends—


She does not have a serious mental illness;



She is not a threat of harm to herself or others;



She “can provide evidence” that she did not let her hygiene “slip”;



Defendants administered her medication for “punitive” reasons;



Defendants held hearings at times she was unable to attend, violating her due process
rights; and



Defendants have lied to the Court about Plaintiff refusing to attend the hearing;

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Also named as Defendants were Gary Mohr, Elizabeth Wright, a “Captain Putt,” and a “Dr. Welch.”
The Court previously dismissed the claims against these Defendants. (ECF No. 8.)
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In addition to recommending that the Court grant Defendants’ motion for summary judgment on the
merits, the Magistrate Judge’s Report and Recommendation also recommended that (1) claims against
Defendants Trim and Burke be dismissed for failure to state a claim for relief against these Defendants
and (2) Defendant Nicastro be dismissed pursuant to Fed. R. Civ. P. 4(m) for Plaintiff’s failure to obtain
service of process upon Nicastro. (ECF No. 41 at PageID# 339-40.) Plaintiff does not raise specific
objections to these aspects of the Report and Recommendation. Finding no error in them, the Court
adopts the Magistrate Judge’s recommendations as to these Defendants as part of the Opinion and Order.
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In Washington v. Harper, 494 U.S. 210 (1990), the United States Supreme Court held
that the “the Due Process Clause permits the State to treat a prison inmate who has a serious
mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or
others and the treatment is in the inmate’s medical interest.” Id. at 227. Due process does not
require a judicial decisionmaker. Rather, medical professionals and corrections officials may
decide to involuntarily medicate a prisoner without violating the strictures of due process. Id. at
231.
In his Report and Recommendation, the Magistrate Judge relied on Washington v. Harper
to uphold Ohio Department of Rehabilitation and Correction Policy 67-MNH-07 (the “ODRC
Policy”) and its application to Plaintiff. Under the ODRC Policy, involuntary psychotropic
medication is permitted only if it is “demonstrated by clear and convincing evidence that the
inmate suffers from a serious mental illness and as a result of the illness there is a substantial
likelihood of serious harm to self or others; significant property damage; or that the inmate is
gravely disabled.” (ODRC Policy 9-10, ECF No. 34-22 at PageID# 297-98.) An Involuntary
Medication Committee consisting of three mental health professionals (including at least one
psychiatrist and one psychologist or licensed independent social worker) determines whether an
inmate may be involuntarily medicated. (Id. at PageID# 290, 298.) The Involuntary Medication
Committee must give the inmate at least 24 hours notice prior to the involuntary medication
hearing. (Id. at PageID# 298.) An inmate has a right to attend the hearing and present witnesses;
however, the inmate may be excluded from the hearing if the inmate poses a risk to institutional
security and order. (Id. at PageID# 299.) Regardless of whether the inmate attends the hearing,
the ODRC Policy provides that the inmate has the right to an “Inmate Advisor” to assist the

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inmate during the process; if the inmate is not present for the hearing, the ODRC Policy
empowers the Inmate Advisor to “exercise the rights of the inmate on the inmate’s behalf.” (Id.)
At the conclusion of the hearing, the Involuntary Medication Committee must decide,
based on the evidence presented at the hearing, whether the involuntary administration of
psyschotropic medication will be allowed. (Id.) Each committee member must document his or
her decision. (Id.) “If the decision is not unanimous, involuntary medication will not be
administered unless the psychiatrist is in the majority, authorizing medication use.” (Id.) An
initial finding to permit involuntary medication shall be in effect for no more than 30 days. (Id.
at PageID# 300.) If the treating psychiatrist recommends that involuntary medication should
continue, there must be a second hearing, after which the Involuntary Medication Committee
may approve continued medication for up to 180 days. (Id.) The process may then be repeated
every 180 days “as long as the medication is clinically indicated and the inmate meets the criteria
for administration of involuntary psychotropic medication and refuses voluntary psychotropic
medication.” (Id.)
Defendants presented summary judgment evidence that they followed ODRC Policy 67MNH-07 in the administration of antipsychotic drugs against Plaintiff’s will. Specifically,
Defendants presented declarations from Plaintiff’s treating psychiatrist (Defendant Dr. Suseela
Nalluri), three individuals who served on Plaintiff’s Involuntary Medication Committee (Dr.
Sheila Tano, Dr. Christy Tinch, Psy.D., and Erin Maldonado, LISW-S), and the psychiatric nurse
who served as Plaintiff’s “inmate liaison” during two involuntary medication hearings
(Defendant Bethany Ritter, BSN). The various declarations and evidence put forth by
Defendants indicate that—

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

Plaintiff suffers from schizoaffective disorder and anti-social personality disorder, and
also displays symptoms of mood swings and psychosis;



Plaintiff suffers from serious symptoms, including assaultive and aggressive behavior,
mood swings, delusions of grandiosity, mania and psychosis, disorientation, and poor
insight and judgment;



Dr. Nalluri made involuntary medication requests for Plaintiff on three occasions in 2011,
pursuant to the ODRC Policy;



Dr. Nalluri requested involuntary medication of Plaintiff based on Plaintiff’s serious
mental illness and refusal to take psychotropic medication;



Dr. Nalluri opined that Plaintiff poses a serious threat to others when she is not taking
psychotropic medication, as evidenced by several assaults committed by Plaintiff against
corrections officers;



Plaintiff chose not to attend an involuntary medication hearing on February 8, 2011, and
Defendant Ritter advocated on Plaintiff’s the Plaintiff’s position against receiving
psychotropic medication;



The Involuntary Medication Committee unanimously determined after the February
hearing that Plaintiff should receive psychotropic medication for 30 days;



At the next Involuntary Medication Committee hearing, the 30-days review scheduled for
March 9, 2011, Plaintiff was not permitted to attend because Plaintiff’s escalating anger
caused a concern for the safety of Plaintiff and others attending the hearing;



At the March 9, 2011 hearing, Defendant Ritter once again advocated on Plaintiff’s
behalf;

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

The Involuntary Medication Committee unanimously determined after the March 9, 2011
hearing that Defendant should receive psychotropic medication for 180 days;



Plaintiff attended the 180-day review hearing convened by the Involuntary Medication
Committee on September 7, 2011, and was also represented by an inmate liaison;



Following the September 7, 2011 hearing, the Involuntary Medication Committee
unanimously determined that Plaintiff should receive psychotropic medication for 180
days.



At all times, the decisions to administer psychotropic medication were based on medical
necessity and not as a form of punishment.

(ECF Nos. 34-1, 34-6, 34-13, 34-16.)
The common thread running through Plaintiff’s objections is that she disputes the
evidence that Defendants submitted in support of their summary judgment. But Plaintiff failed
to submit any evidence in response to the motion for summary judgment. For example, Plaintiff
claims that she was not permitted to attend the February 8, 2011 hearing, but does not offer
evidentiary support for this objection to rebut the evidence Defendants put forward to document
the fact that Plaintiff chose not to attend. Plaintiff’s remaining objections are filled with
conclusory assertions unsupported by evidence offered in response to Defendants’ motion for
summary judgment. Accordingly, Plaintiff failed to meet her burden of creating a genuine issue
of material fact on her claim of constitutional due process violations. In lieu of evidence,
Plaintiff presented argument and unsupported factual assertions that Defendants lacked the
proper factual predicate for administering antipsychotic drugs or for conducting hearings in her
absence. But without proper Rule 56 evidence, the Court cannot find that the Magistrate Judge
erred in his determination that summary judgment was appropriate in this case.

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As to Plaintiff’s failure to produce evidence to overcome summary judgment, she argues
that she was not given the opportunity to conduct ample discovery. In essence, Plaintiff
contends that she should have been given additional time for discovery under Fed. R Civ, P.
56(d) in order to allow her the opportunity to properly respond to Defendants’ motion for
summary judgment. But the record does not support Plaintiffs’ plea for additional discovery.
There is no evidence that Defendants failed to respond to properly served discovery requests.
Rather, the record indicates that Plaintiff served untimely discovery requests.
III.
For the foregoing reasons, the Court OVERRULES Plaintiff’s objections (ECF No. 43)
to the Magistrate’s Report and Recommendation (ECF No. 41). The Court therefore ADOPTS
the Magistrate Judge’s recommendation and GRANTS Defendants’ motion for summary
judgment (ECF No. 34). In light of the grant of summary judgment to Defendants, Plaintiff’s
“motion requesting denial of summary judgment” (ECF No. 36) is DENIED.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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