Logan v. Emam et al

Filing 48

ORDER and REPORT AND RECOMMENDATION: With respect to Plaintiff's Eighth Amendment medical indifference claim, it is RECOMMENDED that the Court GRANT Defendants' 34 Motion for Summary Judgment. To the extent Plaintiff intend ed to assert a state-law medical malpractice claim, it is further RECOMMENDED that the Court decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) over any such state-law claim and that the Court DISMISS any su ch claim without prejudice to Plaintiff asserting such a claim in state court. The Court DENIES Plaintiff's 38 Motion for Copy of Radiology Report. Objections to R&R due by 10/30/2017. Signed by Magistrate Judge Chelsey M. Vascura on 10/16/2017. (kpt)(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
JERRY E. LOGAN,
Plaintiff,
Case No. 2:16-cv-35
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura

v.
HANY A. EMAM, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
This is a prisoner civil rights case involving a claim for Eighth Amendment violations.
This matter is before the Court for consideration of Plaintiff’s Motion for Copy of Radiology
Report (ECF No. 38) and Defendants’ Motion for Summary Judgment (ECF No. 34). For the
reasons that follow, it is RECOMMENDED that Defendants’ Motion for Summary Judgment
be GRANTED. In addition, Plaintiff’s Motion for Copy of Radiology Report is DENIED.
I.
The events giving rise to this action occurred while Plaintiff was incarcerated at
Chillicothe Correctional Institute (“CCI”). On June 30, 2015, Plaintiff underwent oral surgery at
The Ohio State University (“OSU”) Wexner Medical Center in order to remove four impacted
wisdom teeth. Prior to the surgery, Defendant Claire Towning, DDS, who at the time of the
operation was a licensed dentist and a third-year resident in the OSU College of Dentistry, and
Dr. Hany A. Emam, BDS, MS, an Assistant professor in the Division of Oral Maxillofacial
Surgery and Dental Anesthesiology, met with Plaintiff and reviewed the potential risks and
benefits of surgery. (Towning Aff. ¶¶ 1, 3; Enam Aff ¶¶ 1-2, 7-8, ECF No. 34.) Plaintiff orally

consented to the surgery and signed several written consent documents, including for anesthesia,
surgery, and Dr. Towning’s participation in the procedure. (Towning Aff. ¶ 1, 3 (citing PAGEID
## 154-157); Enam Aff. ¶¶ 7-12.) Dr. Emam performed the surgery, and Dr. Towning assisted
him. (Towning Aff. ¶¶ 6, 9; Enam Aff. ¶ 14.) Plaintiff’s impacted wisdom teeth were extracted
without complications, and no follow up was scheduled. (Towning Aff. at ¶ 10 (citing PAGEID
## 150-53); Enam Aff. ¶ 16.)
After awaking from anesthesia, Plaintiff complained of eye pain. An Ophthalmologist
examined Plaintiff and concluded that he had a corneal abrasion that was most likely attributable
to rubbing his eyes after surgery. Plaintiff was prescribed eye drops. (Towning Aff. ¶ 11 (citing
PAGEID ## 161-64); Enam Aff. ¶ 17.)
On January 26, 2016, Plaintiff filed this action and filed an Amended Complaint (ECF
No. 5) on February 2, 2016. Plaintiff names Drs. Emam and Towning as Defendants. According
to Plaintiff’s Amended Complaint (ECF No. 5), several days after the surgery, he reported to the
CCI nurse that he could not taste his food, could not smell, that his cheeks were numb, and that
he could not eat solid food. Plaintiff further alleges that he continues experience side effects
from the June 30, 2015 surgery, including numbness, weight gain, and inability to chew solid
foods. He maintains that Defendants failed to adequately advise him of the risks of surgery, that
the surgery should not have been performed by Dr. Towning because she is not qualified, and
that Dr. Towning damaged his olfactory nerve.
On April 25, 2017, Defendants filed the subject Motion for Summary Judgment (ECF
No. 34). Defendants assert that they are entitled to summary judgment on Plaintiff’s Eighth
Amendment medical indifference claim because they were not deliberately indifferent to
Plaintiff’s serious medical needs. Defendants represent that they were not informed that Plaintiff

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suffered post-operative complications until they were first served with Plaintiff’s complaint.
(Towning Aff. ¶ 12; Enam Aff. ¶ 19.) Defendants further submit that they are entitled to
judgment on Plaintiff’s state-law malpractice claims because they are immune from liability
pursuant to Ohio Revised Code § 9.86 and also because Plaintiff failed to include an affidavit of
merit as required under Ohio R. Civ. P. 10(D)(2).
In his Memorandum in Opposition, Plaintiff does not counter Defendants’ arguments or
challenge any of the evidence upon which they rely. Instead, Plaintiff asks the Court to deny
Defendants’ Motion for Summary Judgment because “Defendants withheld evidence that should
have been submitted with the discovery, once it was sent.” (Pl.’s Mem. in Opp. 1, ECF No. 39.)
Plaintiff also appears to argue that documents he attaches to his Memorandum in Opposition
show that Defendants failed to complete the June 30, 2015 surgery. As best as the undersigned
can discern, Plaintiff premises this argument on his opinion that Defendants should have taken xrays after the surgery. The records Plaintiff attaches to his Memorandum in Opposition reflect
that he underwent a dental examination on February 2, 2017, where it was determined that he
required additional oral surgery to extract three root tips and also that he has refused to proceed
with this surgery. (ECF No. 39 at PAGEID ## 178-79.)
II.
Under Federal Rule of Civil Procedure 56, “[t]he 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). “The moving party has the initial
burden of proving that no genuine issue of material fact exists, and the court must draw all
reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air
Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.

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Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s
assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”).
The burden then shifts to the nonmoving party to “set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “The
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Id. at 255 (citation omitted). “The nonmovant must, however, do more than simply
show that there is some metaphysical doubt as to the material facts, . . . there must be evidence
upon which a reasonable jury could return a verdict in favor of the non-moving party to create a
genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson Cty., 432 F. App’x 435, 441 (6th
Cir. 2011) (internal quotation marks and citations omitted); see also Fed. R. Civ. P. 56(c)
(requiring a party maintaining that a fact is genuinely disputed to “cit[e] to particular parts of
materials in the record”). “When a motion for summary judgment is properly made and
supported and the nonmoving party fails to respond with a showing sufficient to establish an
essential element of its case, summary judgment is appropriate.” Stansberry, 651 F.3d at 486
(citing Celotex, 477 U.S. at 322–23).
III.
The undersigned concludes that Defendants are entitled to summary judgment with
respect to Plaintiff’s Eighth Amendment medical indifference claims.
It is well established that “[t]he Eighth Amendment forbids prison officials from
unnecessarily and wantonly inflicting pain on an inmate by acting with deliberate indifference
toward [his] serious medical needs.” Jones v. Muskegon Cty., 625 F.3d 935, 941 (6th Cir. 2010)
(internal quotations omitted). A claim for deliberate indifference “has both objective and

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subjective components.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011). The
United States Court of Appeals for the Sixth Circuit has explained:
The objective component mandates a sufficiently serious medical need.
[Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004).] The
subjective component regards prison officials’ state of mind. Id. Deliberate
indifference “entails something more than mere negligence, but can be satisfied
by something less than acts or omissions for the very purpose of causing harm or
with knowledge that harm will result.” Id. at 895–96 (internal quotation marks
and citations omitted). The prison official must “be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 896 (internal quotation marks and citation
omitted).
Barnett v. Luttrell, 414 F. App’x 784, 787–88 (6th Cir. 2011); see also Jones, 625 F.3d at 941
(“[T]he prison official must have acted with a state of mind similar to recklessness. Thus, to
prove the required level of culpability, a plaintiff must show that the official: (1) subjectively
knew of a risk to the inmate’s health, (2) drew the inference that a substantial risk of harm to the
inmate existed, and (3) consciously disregarded that risk.” (citations omitted)).
The Sixth Circuit has also noted that in the context of deliberate indifference claims:
“[W]e distinguish between cases where the complaint alleges a complete denial of
medical care and those cases where the claim is that a prisoner received
inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th
Cir. 1976). Where a prisoner alleges only that the medical care he received was
inadequate, “federal courts are generally reluctant to second guess medical
judgments.” Id. However, it is possible for medical treatment to be “so woefully
inadequate as to amount to no treatment at all.” Id.
Alspaugh, 643 F.3d at 169. See also Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013) (“If
the plaintiff’s claim, however, is based on the prison’s failure to treat a condition adequately . . .
the plaintiff must place verifying medical evidence in the record to establish the detrimental
effect of the delay in medical treatment.” (internal quotation marks and citation omitted)).
Moreover, “when a prison doctor provides treatment, albeit carelessly or inefficaciously, to a
prisoner, he has not displayed a deliberate indifference to the prisoner’s needs, but merely a
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degree of incompetence which does not rise to the level of a constitutional violation.” Id. at 591
(quotation marks and citation omitted).
Applied here, Plaintiff has failed to adduce any facts upon which the Court could rely to
conclude that a genuine issue of facts exits with respect to the subjective prong of the deliberate
indifference test. Rather, the unrefuted evidence reflects that Defendants, both of whom were
licensed dentists, became involved in Plaintiff’s care in June 2015 in connection with the surgery
they performed and that they: reviewed Plaintiff’s x-rays, test results, and prior examination
notes; that they met with Plaintiff and discussed the risks of the surgery; that they obtained
verbal and written consent for the surgery; and that they removed four wisdom teeth and a tissue
sample for pathological evaluation without incident. Defendant Emam represents that all
procedures “were carried out in accordance with the standard of care” for oral surgery. (Emam
Aff ¶ 15.) Moreover, Defendants did not learn of the post-operative complications until after
Plaintiff filed this action. (Towning Aff. ¶ 12; Enam Aff. ¶ 19.)
Plaintiff’s contention that Defendants should have taken post-operative x-rays does not
alter the Court’s conclusion. At most, it reflects Plaintiff’s disagreement with Dr. Emam’s
representation that the procedures were carried out in accordance with the standard of care,
which is insufficient to establish an Eighth Amendment violation. See, e.g., Owens v.
Hutchinson, 79 F. App’x 159, 161 (6th Cir. 2003) (“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) (“[A] difference of opinion
between [a prisoner] and the prison health care providers and a dispute over the adequacy of [a
prisoner’s] treatment . . . does not amount to an Eighth Amendment claim.”). Plaintiff’s

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contention that Defendants’ Motion for Summary Judgment should be denied because they
withheld evidence is equally unavailing. Plaintiff fails to identify which documents he maintains
were improperly held or how these documents would impact the resolution of Defendants’
Motion.
Plaintiff’s assertion that he was under duress when he signed the consent forms and that
he was not informed of the risks likewise fails to save his Eighth Amendment medical
indifference claim. Despite the unauthenticated evidence Plaintiff attaches to his Memorandum
in Opposition that purports to show that he originally did not consent to the oral surgery at issue
on June 15, 2015 (See ECF No. 39 at PAGEID #180), Defendants’ unrefuted affidavit testimony
and the authenticated exhibits attached thereto shows that Plaintiff subsequently consented to
surgery both orally and in writing on June 30, 2015. (Towning Aff. ¶ 1, 3 (citing PAGEID ##
154-157); Enam Aff. ¶¶ 7-12.)
In summary, with respect to Plaintiff’s Eighth Amendment medical indifference claim,
the undersigned concludes that Defendants have satisfied their burden to show that no genuine
issue of material fact exists precluding entry of summary judgment. It is therefore
RECOMMENDED that the Court GRANT Defendants’ Motion for Summary Judgment with
respect to Plaintiff’s Eighth Amendment medical indifference claim.
Plaintiff’s Motion for Copy of Radiology Report, seeking a Court order compelling
production of a radiology report relating to x-rays taken in January 2017 is DENIED. (ECF No.
38.) “[T]he proponent of a motion to compel discovery bears the initial burden of proving that
the information sought is relevant.” Guinn v. Mount Carmel Health Systems, No. 2:09-cv-226,
2010 WL 2927254, at *5 (S.D. Ohio July 23, 2010) (Kemp, J.) (quoting Clumm v. Manes, No.
2:08–cv–567 (S.D. Ohio May 27, 2010) (King, J.)). The Court is unable to discern how x-rays

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from January 2017 are relevant to Plaintiff’s assertion that Defendants’ actions during the June
30, 2015 surgery violated the Eighth Amendment.
Finally, it is unclear from either Plaintiff’s Complaint or his Amended Complaint
whether he intended to bring a state-law medical malpractice claim. To the extent he intended to
assert a state-law medical malpractice claim, it is further RECOMMENDED that the Court
decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) over any such statelaw claim and that the Court DISMISS any such claim without prejudice to Plaintiff asserting
such a claim in state court. See Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) (“If the
federal claims are dismissed before trial, the state claims generally should be dismissed as well.”
(internal quotations marks and citation omitted)).
IV.
For the reasons set forth above, it is RECOMMENDED that the Court GRANT
Defendants’ Motion for Summary Judgment with respect to Plaintiff’s Eighth Amendment
medical indifference claim. (ECF No. 34.) In addition, to the extent Plaintiff intended to assert a
state-law medical malpractice claim, it is further RECOMMENDED that the Court decline to
exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) over any such state-law claim
and that the Court DISMISS any such claim without prejudice to Plaintiff asserting such a claim
in state court.
Finally, Plaintiff’s Motion for Copy of Radiology Report is DENIED. (ECF No. 38.)
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with

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supporting authority for the objection(s). A Judge of this Court shall make a de novo
determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. §
636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Chelsey M. Vascura________________
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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