Gabel v. Hudson et al
Filing
23
OPINION and ORDER sustaining 11 Objection to Magistrate Judge Order; adopting and affirming 7 the Report and Recommendation; finding as moot 20 Defendants' Motion to Stay. Signed by Judge Michael H. Watson on 12/28/12. (jk1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KERMIT GABEL,
Plaintiff,
vs.
Civil Action 2:12-cv-597
Judge Watson
Magistrate Judge King
DR. STUART HUDSON, eta/.,
Defendants.
OPINION AND ORDER
On July 9, 2012, the United States Magistrate Judge issued an Order and
Report and Recommendation recommending that the state law claim of negligence
be dismissed as against defendants Dr. Stuart Hudson, Dr. Ralph Lyons, Dr. Huling
and Ed Castaneda, but permitted this claim, as asserted against defendant Dr. Miles
Finney, to proceed. This matter is before the court on objections filed by plaintiff,
Doc. No. 12, and by the State of Ohio, Doc. No. 11 , making a special appearance
pursuant to O.R.C. § 109.361. The Court will consider these objections de novo.
See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b).
I.
BACKGROUND
Plaintiff, an inmate at the Marion Correctional Institution ("MCI"), brings this
civil rights action under 42 U.S.C. § 1983 in connection with the claimed denial of
plaintiff's constitutional right to medical and dental care. Plaintiff also asserts a
supplemental state law claim of negligence.
Plaintiff alleges, inter alia, that defendant Finney, a contract dentist at MCI,
refused to replace a filling that had fallen out, and instead indicated only that he
would extract the affected tooth. Complaint, Doc. No.5, 1m 47-49. Plaintiff alleges
that, in refusing to replace the filling, this defendant has denied plaintiff his
constitutional right to dental care and, moreover, has violated a consent decree
issued by this Court. 1 Plaintiff also alleges that he has been diagnosed with gum
disease but that the condition has not been treated. /d. at 1f64.
The Magistrate Judge concluded that plaintiff's supplemental state law claim
of negligence could not proceed in this Court against the defendant state officials
unless and until the Ohio Court of Claims had determined that the state officials are
not entitled to civil immunity under O.R.C. § 9.86.
Order and Report and
Recommendation, p. 2 (citing O.R.C. §2743.02(F)); Leaman v. Ohio Dept. of Mental
Retardation & Developmental Disabilities, 825 F.2d 946, 952-53 (6th Cir. 1987);
Haynes v. Marshall, 887 F.2d 700, 704 (6th Cir. 1989); Johns v. University of
Cincinnati Med. Assocs., 804 N.E.2d 19, 24 (Ohio 2004)). The Magistrate Judge
expressed no opinion, based on the present record, whether defendant Finney may
properly be characterized as a state official entitled to this protection. /d. at 3.
1
See Stipulation for Injunctive Relief, Fussell v. Wilkinson, 1:03-cv-704 (S.D. Ohio
November 22, 2005), Doc. No. 140. That order contemplates "an in-depth study of the existing
dental program [maintained by the ODCR], [in order to] identify areas of need, and make
recommendations." /d. at ~112. Those recommendations "shall be incorporated into" the
Stipulation and "become binding and enforceable .... " /d. at ~113.
2
However, the Magistrate Judge concluded that it was clear that, to the extent the
claim of negligence is asserted against the remaining defendants, that state law
claim could not proceed. /d. It was therefore recommended that the state law claim
of negligence be dismissed as against defendants Hudson, Lyons, Huling and
Castaneda. 2
II.
PLAINTIFF'S OBJECTIONS
Plaintiff objects to the Magistrate Judge's conclusion that the state law claim
of negligence cannot proceed against the defendant state officials until the Ohio
Court of Claims has determined that the state officials are not entitled to civil
immunity under O.R.C. § 2743.02(F). Doc. No. 12, p. 1. 3 In so objecting, plaintiff
points out that he previously attempted to adjudicate these claims in the Ohio Court
of Claims. /d. (citing to
Complaint,~ 3 and
Exhibit 1, attached thereto). In that state
action, which named Ohio Department of Rehabilitation and Corrections as a
defendant, plaintiff asserted a claim of professional malpractice by Dr. Finney and
asserted that the dental treatment that he received violated the Eighth Amendment
right to be free from cruel and unusual punishment. Exhibit 1, p. 1, attached to
Complaint. The Ohio Court of Claims first noted that it lacked jurisdiction to consider
plaintiff's Eighth Amendment claim. /d. at 1-2. The state court also concluded that,
2
The Magistrate Judge also concluded that the action could proceed as against all named
defendants on plaintiff's federal constitutional claims of denial of medical and dental care under 42 U.S.C.
§ 1983. /d.
3
After first identifying the state law claim of negligence as the subject of his objection, plaintiff later
erroneously represents that the Magistrate Judge concluded that the federal claim could not proceed. /d.
3
because plaintiff asserted a dental claim, he was required to file an affidavit of merit
pursuant to Ohio Civ. R. 10(0)(2). /d. at 3. Because plaintiff did not submit an
affidavit of merit as required by that rule, the state court concluded that plaintiff had
failed to state a claim for relief. /d. (citing Fletcher v. Univ. Hosps. of Cleveland, 120
Ohio St. 3d 167 (2008)). The Ohio Court of Claims therefore dismissed plaintiff's
Eighth Amendment claim for lack of subject matter jurisdiction and dismissed
plaintiff's dental claim without prejudice. /d. at 3.
Plaintiff represents that he cannot afford to obtain an expert to provide the
required affidavit of merit and argues that the Ohio Court of Claims has "refused to
rule on immunity issue because the plaintiff is indigent." Doc. No. 12, p. 2. Plaintiff
also argues that the state court's failure to rule on his claims "opens the door'' for this
Court to adjudicate his state claim of negligence. /d.
Plaintiffs objections are without merit. As the Magistrate Judge correctly
concluded, this Court cannot adjudicate plaintiffs state claim of negligence unless
and until the Ohio Court of Claims determines that the state officials are not entitled
to civil immunity under O.R.C. § 9.86. Order and Report and Recommendation, p.
2. Plaintiff has cited to no case law, and this Court is unaware of any authority, that
permits this Court to adjudicate plaintiffs negligence claim in the absence of a
finding on the issue of immunity by the Ohio Court of Claims. This is particularly true
where the Ohio Court of Claims dismissed plaintiffs dental claim for failure to comply
with the Ohio Rules of Civil Procedure. See Exhibit 1, p. 3 (dismissing where, inter
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alia, plaintiff failed to submit an affidavit of merit in accordance with Ohio Civ. R.
1O(D)(2)). Indeed, district courts in this circuit have previously dismissed such pro
se claims for failure to comply with Ohio Civ. R. 10(D)(2). See, e.g., Johnson v.
Rehab. Servs., No. 1:1 0-cv-554, 2011 U.S. Dist. LEXIS 80660, at *8-9 (S.D. Ohio
July 25, 2011) (dismissing pro se plaintiff's medical malpractice claim for failure to
submit affidavit of merit); Perotti v. Medlin, NO. 4:05CV2739, 2009 U.S. Dist. LEXIS
20762, at *5-6 (N.D. Ohio Mar. 16, 2009) (dismissing plaintiff inmate's state medical
malpractice claims in the absence of the required affidavit of merit).
Because
plaintiff has not established that this condition precedent to his state law claim of
negligence has been met, "there is no claim under Ohio law upon which relief may
be granted .... " Haynes, 887 F.2d at 705. See also Bowman
v. Shawnee State
Univ., 220 F.3d 456, 460 n. 3 (6th Cir. 2000). Finally, the Court disagrees with
plaintiff's assertion that a prior a dismissal without prejudice in the Ohio Court of
Claims based on a failure to comply with Ohio Civ. R. 10(d)(2) forever bars a
plaintiff's claim or is otherwise unfair. See, e.g., Ohio Civ. R. 1O(D)(2)(d) (providing
that a dismissal for failure to comply with this rule is "a failure otherwise than on the
merits"); O.R.C. § 2305.19(A) (permitting a claim that "fails otherwise than upon the
merits" to "commence a new action within one year after the date of ... the plaintiff's
failure otherwise than upon the merits or within the period of the original applicable
statute of limitations, whichever occurs later'').
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Ill.
THE STATE OF OHIO'S OBJECTIONS
As noted supra, the Magistrate Judge expressed no opinion, based on the
present record, whether defendant Finney may properly be characterized as a state
official entitled to civil immunity under O.R.C. § 9.86; she therefore permitted the
state law claim of negligence to proceed against defendant Finney. Order and
Report and Recommendation, p. 3. The State of Ohio now objects to the Magistrate
Judge's decision in this regard, arguing that defendant Finney enjoys the same
personal immunity as the other defendants. Doc. No. 11, pp. 2-3. In support of this
position, the State of Ohio notes that the Complaint avers that defendant Finney was
contracted by the state to provide dental care to MCI inmates. /d. at 2 (citing
Complaint,
~ 44 ).
The State contends that, for purposes of Ohio immunity statutes,
an Ohio "officer'' or "employee" includes a person rendering dental services
"pursuant to a personal services contract or purchased service contract with a
department, agency, or institution of the state."
/d. (quoting O.R.C. §
109.36(A)(1 )(b)). Therefore, the State argues, defendant Finney- who is alleged
by plaintiff to be a contracted dental care provider- is entitled to the same personal
immunity as the other defendants. /d. at 3.
The State of Ohio's objection is well-taken. Plaintiff's allegations describe
defendant Finney as a state "officer" or "employee" for purposes of O.R.C. §
109.36(A)(1)(b). This definition, in turn, applies to the term "state employee" as it
appears in O.R.C. § 9.86. See, e.g., Theobaldv. Univ. of Cincinnati, 111 Ohio St.3d
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541, 543 (2006). Defendant Finney is therefore entitled to immunity on plaintiffs
state law claim of negligence.
Accordingly, the State of Ohio's objection, Doc. No. 11, is SUSTAINED. The
state law claim of negligence as against defendant Finney is DISMISSED. With that
exception, the Order and Report and Recommendation, Doc. No.7, is ADOPTED
and AFFIRMED.
In light of this ruling, the motion of defendants Hudson, Finney and Huling to
stay the deadline for their response to the Complaint, Doc. No. 20, which was
originally due on August 30, 2012, is MOOT. These defendants and defendant
Lyons4 may have fourteen days from the date of this Opinion and Order in which to
file a response to plaintiffs Complaint.
IT IS SO ORDERED.
Mi hael H. Watson, Judge
United States District Court
4
The State of Ohio represents that defendant Lyons, who has received service of process, Doc.
No. 15, has not formally requested representation from the Ohio Attorney General's Office. Doc. No. 20,
p. 2 n.2. However, the Ohio Attorney General has joined defendant Lyons in the requested extension of
time pursuant to its authority to enter an appearance in a case to represent its interest even where there
has been no such request by the defendant employee. /d. (citing O.R.C. § 109.361}.
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