Fox v. Eddy et al

Filing 29

REPORT AND RECOMMENDATION that plaintiffs re 4 Motion for preliminary injunction and motion for temporary restraining order be DENIED as Moot and re 17 Motion for Summary Judgment be granted. Objections to R&R due by 9/14/2012. Signed by Magistrate Judge Norah McCann King on 8/28/12. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID G. FOX,
Plaintiff,
vs.

Civil Action 2:12-CV-324
Judge Watson
Magistrate Judge King

DOCTOR EDDY, et al.,
Defendants.
REPORT and RECOMMENDATION
Plaintiff, an inmate currently incarcerated at the Ross
Correctional Institution (“RCI”), brings this action against
defendants Ohio Department of Rehabilitation and Correction (“ODRC”)
Chief Medical Officer Dr. Eddy, RCI Chief Medical Officer Dr. Gary
Krisher, RCI Health Care Administrator Lisa Bethel, ODRC Director Gary
Mohr, and RCI Warden Timothy Buchanan 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.

Complaint, Doc. No. 3, at 1.

This matter is before the

Court on Plaintiff David G. Fox Motion for Preliminary Injunction and
Motion for Temporary Restraining Order (“Plaintiff’s Motions”), Doc.
No. 4, and Defendants’ Motion for Summary Judgment (“Defendants’
Motion”), Doc. No. 17.

For the reasons that follow, it is RECOMMENDED

that Defendants’ Motion be GRANTED and that Plaintiff's Motions be
DENIED.
I.

BACKGROUND
Plaintiff asserts that he was diagnosed with Hepatitus C by a

prison doctor in 2006 and with cirrhosis of the liver thereafter.

1

Affidavit David Fox, attached to Doc. No. 4, at PAGEID #14. 1

Plaintiff

claims that his condition was monitored when it should have been
treated, that the delay in treatment caused his medical condition to
deteriorate, and that this “neglect” constitutes deliberate
indifference to his serious medical condition.

Id.

Specifically,

plaintiff claims that he now has stage four cirrhosis that can be
treated only with a liver transplant.

Id.

Plaintiff asks that he be

administered medications to boost his blood platelet levels, be
evaluated at all Ohio liver transplant centers, and be placed on the
liver transplant list at those centers.

Complaint, at 6; Plaintiff’s

Motions, at 3.
Defendants oppose plaintiff’s request for interim injunctive
relief and move the Court to grant summary judgment in their favor.
Because a court considering a request for interim injunctive
relief must consider the likelihood of plaintiff’s success on the
merits of his claim, see Michigan State AFL-CIO v. Miller, 103 F.3d
1240, 1249 (6th Cir. 1997), the Court will first address defendants’
motion for summary judgment.

II.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
A.

Standard

The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,

1

Plaintiff’s affidavit appears in the middle of Doc. No. 4. The Court
will refer to specific portions of the affidavit by reference to the docket
PAGEID numbers.

2

which

provides in pertinent part:
The judgment sought shall be rendered if the pleadings,
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of
law.

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

Pursuant to Rule 56(c), summary judgment is

appropriate if “there is no genuine issue as to any material fact.”
Id.

In making this determination, the evidence “must be viewed in the

light most favorable” to the non-moving party.
& Co., 398 U.S. 144, 157 (1970).

Adickes v. S.H. Kress

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.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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.”
322 (1986).

Celotex Corp. v. Catrett, 477 U.S. 317,

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
is a genuine issue for trial.”

Anderson, 477 U.S. at 250 (quoting

3

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

“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)).
B.

Discussion

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

To prevail on his claims, plaintiff

must prove that defendants acted with “deliberate indifference to
[his] serious medical needs.”
(1976).

Estelle v. Gamble, 429 U.S. 97, 103-04

This standard includes both an objective and a subjective

component.

The objective component requires a plaintiff to show the

existence of a “sufficiently serious” medical need.
Brennan, 511 U.S. 825, 834 (1994).

Farmer v.

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).

“[N]egligen[ce] in diagnosing or treating a medical condition

does not state a valid claim of medical mistreatment under the Eighth
Amendment.”

Estelle, 429 U.S. at 106.

For a claim to be cognizable,

“a prisoner must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.”

Id.

Courts have found that hepatitis C is a serious medical
condition, Owens v. Hutchinson, 79 F. App’x 159, 161 (6th Cir. 2003),
and defendants do not contest that plaintiff is infected with

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hepatitis C and that he now suffers from cirrhosis of the liver.

See

Defendants’ Reply in Support of Their Motion for Summary Judgment,
Doc. No. 28, at 5.

However, the affidavits and medical records

submitted in connection with Defendants’ Motion, Doc. No. 17, and
Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary
Judgment, Doc. No. 23, establish that defendants have not been
deliberately indifferent to plaintiff’s medical conditions.
Plaintiff asserts that he is receiving a substandard level of
care, that nothing is being put on paper about his condition, and that
delays in treatment have caused his liver damage.
Fox, at PAGEID# 4.

Affidavit David

Plaintiff’s medical records, which are not

disputed, show that he has been continually monitored at the Chronic
Care Clinic, has received care at the Gastroenterology Clinic and
Hepatology Clinic at The Ohio State University, has received at least
one liver ultrasound, had blood drawn on November 18, 2011, had labs
performed on May 4, 2012, has met with a dietary technician, and has
received a steroid injection.

See Affidavit of Lisa Bethel, attached

to Defendants’ Motion, Doc. No. 17.

Plaintiff’s medical records show

that he refused, against medical advice, to follow up with the
Gastroenterology Clinic for a recommended liver biopsy on July 6,
2007, an ultrasound of his liver on January 16, 2008, and hemoccult
studies on January 3, 2011.

See Doc. No. 17, Exhibits A, B, D, F.

His medical records also show that, as of February 15, 2012, the
Hepatology Clinic had not recommended a liver transplant and that the
Advanced Level Providers at RCI did not believe that plaintiff met the
criteria for a liver transplant.

Doc. No. 17, Exhibit O.

Plaintiff

has not shown that he is eligible for a liver transplant.
Plaintiff also asserts that he refused the recommended liver

5

biopsy because it was “not needed,” and that defendants “made grave
errors in diagnosis, judgment, and analysis of plaintiff’s condition.”
Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary
Judgment, Doc. No. 23, at 3, 7.

In essence, plaintiff’s claim amounts

to a difference of opinion between him and the prison health care
providers and a dispute over the adequacy of his treatment.

This does

not amount to an Eighth Amendment claim unless the record establishes
that the medical attention actually rendered is “so woefully
inadequate as to amount to no treatment at all.”

Westlake v. Lucas,

537 F.2d 857, 860 n.5 (6th Cir. 1976); accord Owens, 79 F. App’x at
161 (“A patient's disagreement with his physicians over the proper
medical treatment alleges no more than a medical malpractice claim,
which is a tort actionable in state court, but is not cognizable as a
federal constitutional claim.”); Apanovitch v. Wilkinson, 32 F. App’x
704, 707 (6th Cir. 2002) (citing Estelle, 429 U.S. at 107); Miles v.
Booth, 238 F.3d 422, *3 (6th Cir. 2000); Street v. Corr. Corp. of Am.,
102 F.3d 810, 816 n.13 (6th Cir. 1996).

The medical records submitted

by both parties establish that plaintiff has received regular medical
treatment and that plaintiff’s requests for additional treatment have
been granted on multiple occasions.

See Plaintiff’s Memorandum in

Opposition, at 5 (indicating that blood work was drawn on December 5,
2011 upon plaintiff’s request and that letters written to ODRC
resulted in additional treatment).

Al;though plaintiff questions the

adequacy of his medical treatment, no reasonable jury could find that
the treatment actually provided plaintiff has been so woefully
inadequate as to amount to no treatment at all.

Accordingly,

defendants are entitled to judgment as a matter of law.

It is

therefore RECOMMENDED that Defendants’ Motion for Summary Judgment,
Doc. No. 17, be GRANTED.

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III. Plaintiff’s Motions
In light of the foregoing, and because plaintiff has not
established the likelihood of success on the merits of his claims, it
is RECOMMENDED that Plaintiff David G. Fox Motion for Preliminary
Injunction and Motion for Temporary Restraining Order, Doc. No. 4, be
DENIED.
In short, the Court concludes that there is no genuine issue of
material fact and that defendants are entitled to judgment as a matter
of law.

It is therefore RECOMMENDED that Defendants’ Motion, Doc. No.

17, be GRANTED, and that Plaintiff's Motions, Doc. No. 4, be DENIED as
moot.
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
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, 106 S.Ct. 466, 88 L.Ed.2d 435 (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).

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August 28, 2012

s/ Norah McCann King
Norah M cCann King
United States Magistrate Judge

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