Gabel v. Hudson et al

Filing 77

REPORT AND RECOMMENDATIONS re 62 MOTION for Summary Judgment filed by Stuart Hudson, Miles Finney. It is RECOMMENDED that defendants' Motion for Summary Judgment be granted. Objections to R&R due by 5/20/2016. Signed by Magistrate Judge Norah McCann King on 5/3/2016. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KERMIT GABEL,
Plaintiff,
Civil Action 2:14-cv-1057
Judge Watson
Magistrate Judge King

vs.
STUART HUDSON, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff,

formerly

a

state

inmate

proceeding

without

the

assistance of counsel, brings this civil rights action under 42 U.S.C.
§

1983,

claiming

that

he

was

denied

medical

and

dental

care

in

violation of his rights under the Eighth and Fourteenth Amendments to
the

United

States

Constitution

while

incarcerated

at

the

Marion

Correctional Institution (“MCI”). This matter is now before the Court
on defendants’ Motion for Summary Judgment, ECF No. 62.
filed

a

memorandum

in

opposition

to

the

motion,

Plaintiff has
Response

to

Defendants[’] Motion for Summary Judgment, ECF No. 73, and defendants
have filed a reply in support of their motion, Defendants’ Reply in
Support of Their Motion for Summary Judgment (Doc. 62), ECF No. 74.
For the reasons that follow, it is recommended that the Motion
for Summary Judgment, ECF No. 62, be granted.1

1

In opposing the Motion for Summary Judgment, plaintiff complains that he has
been denied discovery and represents that he intends to file “a future motion
to compel.” Response to Defendants[’] Motion for Summary Judgment, PAGEID#
369. However, the discovery completion period ended on November 1, 2015, and
any motion to compel should have been filed prior to that date. Preliminary
Pretrial Order, ECF No. 39, PAGEID# 172. The Court therefore regards the

1

Background
The Complaint, ECF No. 1, names as defendants Stuart Hudson,
identified in the Complaint as the Chief of Bureau of Medical Services
of the Ohio Department of Rehabilitation and Correction (“ODRC”), and
Dr. Miles Finney, identified as a contract dentist at MCI. Plaintiff
alleges that defendant Hudson was deliberately indifferent to pain
resulting from plaintiff’s “degenerative bone disease of spine and
both hips,” id. at ¶ 21, because of his “repeated refusal to allow
spinal treatment at OSU pain clinic as was recommended by no less than
fifteen medical professionals over a 5-6 year period . . . .” Id. at ¶
12. According to plaintiff,
Defendant Stuart Hudson’s repeated refusal to
pain clinic spinal procedure has caused plaintiff
excruciating pain every day for months on end
effects of the last spinal treatment has worn
treatment was given 2/18/11.

allow OSU
to suffer
since the
off. Last

Id. at ¶ 14.
The Complaint also alleges that, on November 22, 2010, defendant
Finney

wanted

to

extract

plaintiff’s

tooth

when

he

should

have

replaced the filling that had fallen out of the tooth. Id. at ¶¶ 3940.
Plaintiff Gabel asked Dr. Finney why the filling could not
be replaced? Defendant Finney replied “IF YOU WERE ON THE
OUTSIDE IT COULD BE FILLED BUT HERE I’M REQUIRED TO EXTRACT

Motion for Summary Judgment as ripe for resolution.

2

IT.
*

*

*

Defendant Finney claims plaintiff has gum disease and
“loose teeth[.]” This is his excuse for wanting to extract
the tooth rather than refill the tooth. Dr. Finney made
these decisions 11/22/10.
Now TWO AND A HALF YEARS LATER PLAINTIFF HAS BEEN GIVEN NO
TYPE OF MEDICATION FOR TOOTH ACHE. PLAINTIFF HAS HAD NO
TREATMENT FOR GUM DISEASE. DR. FINNEY’S DIAGNOSIS HAS BEEN
THE ONLY DENTIST TO MAKE THESE DECISIONS. . . .
Id. at ¶¶ 41, 45-46 (as in original).
The

Complaint

names

both

defendants

in

their

individual

and

personal capacities, id. at ¶ 7, and seeks “damages and injunctive
relief. . . .” Id. at ¶ 5.2
Standards
1. Summary Judgment
The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part:
The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).

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 (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

2

Plaintiff’s release from prison renders his claim for injunctive relief
moot. See Parks v. Reans, 510 F.App’x 414, 415 (6th Cir. 2013).

3

verdict for the non-moving party.”
477 U.S. 242 (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.
Catrett, 477 U.S. 317, 322 (1986).
of

evidence

in

insufficient;

support

there

of

must

the
be

Celotex Corp. v.

The mere existence of a scintilla

opposing

evidence

reasonably find for the opposing party.

party’s
on

position

which

the

will

jury

be

could

Anderson, 477 U.S. at 251.

The party moving for 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.
323.

Catrett, 477 U.S. at

Once the moving party has met its initial burden, 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 former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino
Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995)(“nonmoving party
must present evidence that creates a genuine issue of material fact
making it necessary to resolve the difference at trial”).
burden

of

production

has

so

shifted,

the

party

“Once the

opposing

summary

judgment cannot rest on the pleadings or merely reassert the previous
allegations.

It is not sufficient to ‘simply show that there is some

metaphysical doubt as to the material facts.’”
Super

Am.

LLC,

284

F.Supp.2d

858,
4

862

(S.D.

Glover v. Speedway
Ohio

2003)(citing

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986).

Instead, the non-moving party must support the assertion that

a fact is genuinely disputed.

Fed. R. Civ. P. 56(c)(1).

2. Medical Care in the Prison Context
The

Eighth

Constitution

and

Fourteenth

proscribe

needs of prisoners."

Amendments

"deliberate

to

indifference

the
to

United
serious

States
medical

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

The

Constitution does not, however, prohibit medical malpractice within
the prison context.

Id.; Webster v. Jones, 554 F.2d 1285, 1286 (4th

Cir. 1977); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077,
1081 (3d Cir. 1976).

Of course, a dispute over the course of medical

treatment is likewise not actionable under §1983.
F.2d 201 (5th Cir. 1977).

Young v. Gray, 560

On the other hand, the needless suffering

of pain when relief is readily available gives rise to a cause of
action against those whose deliberate indifference caused the inmate's
unnecessary pain.

Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976).

There are two parts to a claim of denial of medical care, one
Flanory v. Bonn, 604 F.3d 249, 253 (6th

objective, one subjective.

Cir. 2010) citing Farmer v. Brennan, 511 U.S. 825, 833 (1994).

In

order to satisfy the objective component, the inmate must demonstrate
the

existence

of

a

sufficiently

serious

medical

need;

for

the

subjective component, the inmate must demonstrate that the defendant
possessed a sufficiently culpable state of mind in denying medical
care.
plaintiff

Id., at 253 - 54.
must

allege

“To satisfy the subjective component, the

facts

which,
5

if

true,

would

show

that

the

official being sued subjectively perceived facts from which to infer
substantial
inference,

risk
and

to

that

the
he

prisoner,
then

that

he

disregarded

did

that

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

in

fact

risk.”

draw

Comstock

the
v.

The requisite state of

mind “entails something more than mere negligence” but “less than acts
or omissions for the very purpose of causing harm or with knowledge
that harm will result.”

Farmer, 511 U.S. at 835.

Defendant Hudson
As noted supra, plaintiff alleges that he suffered pain resulting
from

his

“degenerative

bone

disease

of

spine

and

both

hips,”

Complaint, ¶ 21. This Court concludes that this is a sufficiently
serious medical need to satisfy the objective component of plaintiff’s
claim against defendant Hudson. However, the Court also concludes that
plaintiff has not established the subjective component of his claim
against this defendant.
Plaintiff

alleges

that

defendant

Hudson

refused

to

permit

treatment of plaintiff’s spinal condition at a pain clinic, thereby
causing plaintiff to experience “excruciating pain.” Complaint, ¶ 14.
Defendants have established that defendant Hudson was, at the relevant
time, “Chief of the ODRC Office of Correctional Healthcare. Mr. Hudson
oversees administrative functions and is not involved in any clinical
decision making.” Affidavit of Andrew D. Eddy, M.D., ¶ 5, ECF No. 6211.
Former inmate Kermit Gabel. . . had been sent to the pain
clinic at The Ohio State University Medical Center for an
epidural steroid injection. . . treatment on February 18,
6

2011. A return visit scheduled for April 1, 2011 was
cancelled on March 9, 2011 after Inmate Gabel’s chart was
reviewed by an advanced level provider at his institution
and the advanced level providers at the ODRC Bureau of
Medical Services . . . . Mr. Hudson is not an advanced
level provider and was not involved in this decision.
Id. at ¶ 6. Plaintiff does not dispute these assertions. See generally
Response

to

Defendants[’]

Motion

for

Summary

Judgment.

See

also

Plaintiff’s Affidavit, attached to Complaint, PAGEID# 11. Based on
this

record,

deliberately

then,

it

cannot

indifferent

to

be

said

that

plaintiff’s

defendant

serious

Hudson

medical

was

needs.

Defendant Hudson is therefore entitled to summary judgment.
Defendant Finney
The
Finney

Complaint

wanted

to

alleges
extract

that,

on

November

plaintiff’s

tooth

22,
when

2010,
he

defendant

should

have

replaced the filling that had fallen out of the tooth. Id. at ¶¶ 3940. In his affidavit attached to the Complaint, Affidavit, PAGEID# 7,
plaintiff

avers

that,

when

asked

why

the

filling

could

not

be

replaced, “Dr. Finney said ‘If you were outside it could be filled,
but here I am required to extract the tooth.’” Id. Plaintiff “suffered
pain from toothache for months as a result of the [ODRC] sub-standard
dental care.” Id. Even assuming that plaintiff’s Affidavit establishes
an objectively serious need for dental treatment, the Court concludes
that plaintiff

has

not

established

that

defendant

Finney

was

deliberately indifferent to that need.
Dr. Finney avers that he examined plaintiff only once, i.e., on
November

22,

2010,

for

a

complaint
7

of

a

“broken

tooth,”

which

defendant Finney diagnosed as a “fractured lower lateral incisor” and
which

required,

in

his

estimation,

extraction.

Affidavit

of

Miles

Finney, D.D.S., ¶¶ 4-5, ECF No. 62-10. See also Treatment-Remarks, ECF
No. 62-8 (referring to “fractured #23). Plaintiff refused extraction
and left. Id. at ¶ 6. Plaintiff did not complain of pain at that time.
Id.

at

¶

4.

Defendant

Finney

also

states

that

the

recommended

extraction “was the appropriate course of treatment for Mr. Gabel’s
tooth and in accordance with ODRC policy and procedures.” Id. at ¶ 8.
Plaintiff

received

dental

treatment

on

a

number

of

occasions

after that date. See Treatment-Remarks, ECF No. 62-8. It was not until
plaintiff was seen by a different dentist on April 1, 2011, that the
record reflects a complaint of pain. Id. at PAGEID# 297. Although
plaintiff expressed to that dentist his belief that it was tooth #23
(i.e., the tooth addressed by defendant Finney) that was causing the
pain, the examining dentist – who had also reviewed x-rays – noted,
“#25 is non-restorable and will need to be extracted to relieve the
pain the patient is experiencing.”
In his response to the Motion for Summary Judgment, plaintiff
appears to argue only that he experienced pain, as evidenced by the
cancelled appointment at the pain clinic - which forms the basis of
his claim against defendant Hudson, not defendant Finney. Response to
Defendants[’] Motion for Summary Judgment, PAGEID# 368-69.3 He offers

3

“Defendants [acted] maliciously against the Plaintiff [and] caused him pain
for over six years in failing to treat him. Why else was Plaintiff making
health care request to the dentist, surely not for a hunger pain, but for
teeth pain and everyone knows how that feels. By failing to adequately treat
the Plaintiff amounts to deliberate lack of dental care. Plaintiff was even

8

no evidence, either professional or lay, that the treatment offered by
defendant

Finney,

but

refused

by

plaintiff,

was

“so

woefully

inadequate as to amount to no treatment at all.” See Westlake v.
Lucas, 537 F.2d at 860 n.5.
The record in this action clearly reflects a dispute over the
course of appropriate dental care, which is of course not actionable
under 42 U.S.C. § 1983. See Young v. Gray, 560 F.2d 201. Under these
circumstances, the Court concludes that defendant Finney is likewise
entitled to summary judgment.4

It is therefore RECOMMENDED that defendants’ Motion for Summary
Judgment, ECF No. 62, be granted.
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).

28

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
scheduled for a pain clinic that was canceled. Why else would the Plaintiff
be scheduled for this clinic if it were not for pain, only to be denied
treatment?”
4
The Motion for Summary Judgment raises a number of other issues. However,
because the Court concludes that plaintiff’s claims fail on the merits, the
Court need not and does not consider the remaining issues addressed in the
motion.

9

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 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).

May 3, 2016

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

10