Gabel v. Hudson et al

Filing 7

ORDER, REPORT AND RECOMMENDATION that the state law claim of negligence be dismissed as against defendants Hudson, Lyons, Huling and Sactaneda re 5 Complaint filed by Kermit Gabel. Objections to R&R due by 7/26/2012. The United States Marshal Service is DIRECTED to effect service of process on all named defendants who shall have forty-give (45) days to respond to the complaint. Signed by Magistrate Judge Norah McCann King on 7/09/12. (rew)

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, et al.,
Defendants.

ORDER and
REPORT AND RECOMMENDATION
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.
law claim of negligence.

Plaintiff also asserts a supplemental state
This matter is now before the Court for the

initial screen of the Complaint, Doc. No. 5, required by 28 U.S.C. §§
1915(e), 1915A.
Plaintiff alleges that he suffers from serious, and worsening,
back

and

hip

impairments.

Injections

for

pain

relief

had

been

administered on several occasions by personnel at the Corrections Medical
Center [“CMC”], but plaintiff was eventually referred to the Ohio State
University Medical Center [“OSU”] for those injections.

Plaintiff

underwent several procedures at OSU in 2010 and 2011 and experienced
immediate pain relief.

However, defendant Hudson, the Chief of the

Bureau of Medical Services of the Ohio Department of Rehabilitation and
Correction [“ODRC”], allegedly denied permission for further treatments
at OSU.

Defendant Lyons, the Medical Director at MCI, “has done nothing

to assist this plaintiff [in obtaining] treatment. . . .”

Complaint,

Doc. No. 5, ¶ 39.
Plaintiff also alleges 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.
¶¶ 47-49.

Id. at

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.

Id. at ¶64.

According to

plaintiff, defendants Lyons and Huling, the Director of Dental Services
for ODRC, failed to provide “proper supervision” of defendant Finney and
failed to order him to replace plaintiff’s filling, thereby rendering
these defendants equally liable for the claimed denial of dental care.
Id. at ¶ ¶74-75.

Plaintiff also appears to assert a similar claim

against defendant Castaneda, a former Health Care Administrator at MCI.
Id. at ¶ 78. The Complaint seeks injunctive relief and suggests monetary
relief as well.

Id. at p.12.

Plaintiff’s supplemental state law claim of negligence cannot
proceed in this Court against the defendant state officials unless and
until the Ohio Court of Claims has determined that the state officials
are not entitled to civil immunity under O.R.C. § 9.86.
2743.02(F);

See O.R.C. §

Leaman v. Ohio Dept. of Mental Retardation & Developmental

1

See Stipulation for Injunctive Relief, Fussell v. Wilkinson, 1:03-cv704 (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.” Id. at ¶112.
Those recommendations “shall be incorporated into” the Stipulation and “become
binding and enforceable . . . .” Id. at ¶113.

2

Disabilities, 825 F.2d 946, 952-53 (6th Cir. 1987).

See also 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).

Although the

Court expresses no opinion, on the present record, whether defendant
Finney may properly be characterized as a state official entitled to this
protection, it is clear that, to the extent that the claim of negligence
is asserted against the remaining defendants, that state law claim cannot
proceed at this point.

It is therefore RECOMMENDED that the state law

claim of negligence be dismissed as against defendants Hudson, Lyons,
Huling and Castaneda.
At this juncture, the Court concludes that the action can
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.
The United States Marshal Service is DIRECTED to effect
service of process, by certified mail, on each of the named defendants,
who shall have forty-five (45) days after service of process to respond
to the Complaint.
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); F.R. Civ. P. 72(b).

28

Response to objections must be

filed within fourteen (14) days after being served with a copy thereof.
F.R. Civ. P. 72(b).

3

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 (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).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
DATE: July 9, 2012

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