Grove v. Ohio Department of Rehabilitation and Correction (ODRC)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARK GROVE,

Plaintiff,

Case No. 2:18-cv-1492

v. Chief Judge Algenon L. Marbley

Magistrate Judge Elizabeth P. Deavers

OHIO DEPARTMENT OF

REHABILITATION AND

CORRECTION, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, Mark Grove, an inmate in the Chillicothe Correctional Institution (“CCI”) at the

time he filed his initial and amended complaints (ECF Nos. 8, 107)1, who is proceeding without

counsel, brings this civil rights action under 42 U.S.C. § 1983.2 (Id.) Plaintiff filed his Amended

Complaint on May 13, 2020. (ECF No. 107.)3 In that pleading, Plaintiff names as Defendants

Gary C. Mohr; Andrew Eddy, M.D.; John Gardner, M.D.; Beth Higginbotham; Ms. Bottorf;

Edward Michelson, M.D.; Robert C. Ryu, M.D.; Abid J. Rana, M.D.; Gary Atrip; Hisham M.

Awan, M.D.; Joseph S. Yu, M.D.; Corby Free; Dr. Gary Krisher; Dr. Andrew J. Krieger; Dr.

Larry Houts; Roseanne Dove; and 50 Jane and John Doe Defendants. This matter is before the

Court for consideration of a motion to dismiss filed by Defendants Michelson, Ryu, Awan, Yu,

and Krieger (collectively, the “OSU Defendants”). (ECF No. 111.) Plaintiff has filed a response

1 On January 11, 2021, Plaintiff filed a Notice of Change of Address indicating that he has been

released from CCI and now resides in Georgia. (ECF No. 155.)

2The Court dismissed Plaintiff’s state law claims on initial screening. (ECF Nos. 11, 16.)

3 In connection with granting certain Defendants’ motions for a more definite statement, the

Court directed Plaintiff to file an Amended Complaint. (ECF Nos. 93, 103.)

(ECF No. 150) and the OSU Defendants have filed a reply (ECF No. 153). For the reasons that

follow, it is RECOMMENDED that the Court GRANT the OSU Defendants’ Motion to

Dismiss.

I. BACKGROUND

The substantive allegations relating to the OSU Defendants appear to be set forth

between Paragraphs 77 through 112 of the Amended Complaint and relate to Plaintiff’s

“re-broken right arm.” (ECF No. 107 at 20-28.) According to these allegations, on June 26,

2015, Plaintiff was seen in the emergency room of The Ohio State University Wexner Medical

Center by Drs. Michelson, Krieger, Ryu, Yu, Awan, Does 1-50 and another doctor not named as

a defendant in this action. (Id. at ¶ 78.) The OSU Defendants “determined that Plaintiff’s right

arm is re-broken ….and requires surgery to implant an artificial elbow….” (Id. at ¶ 79.)

According to Plaintiff, the x-ray of his arm revealed that

Plaintiff’s right arm humerus bone is re-broken and re-severed from the bones and

screws of the lower arm, i.e. the screw that had been placed through the upper arm

humerus bone and into the bones of the lower arm at the elbow area during a

previous surgery to attach the upper arm humerus bone to the bones of the lower

arm, has broken through the humerus bone and is protruding out from the bones of

the lower arm approximately ¾ inch at the elbow area. Only muscles, tendons,

veins and nerves attach the upper arm humerus bone to the lower arm elbow area.

(Id. at ¶ 77.)

Plaintiff posits that, because the ODRC’s Collegial Review Board may not have

wanted to pay for the surgery, the OSU Defendants “refused” treatment and “sent [him]

back to prison with only their recommendation and request that [he] receive an orthopedic

consult and right arm surgery.” (Id. at ¶ 79.) On July 2, 2015, this request was denied

following the collegial review process. (Id. at ¶¶ 80, 81.) On July 7, 2015, Plaintiff was

advised that the x-rays did not show that his arm was re-broken and that his pain was

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arthritis from an old injury. (Id. at ¶ 82.) Plaintiff was similarly advised on July 9, 2015,

and he undertook the grievance process that day. (Id. at ¶¶ 83, 84.)

Plaintiff believed the OSU Defendants had provided the incorrect x-rays and medical

information to CCI and the ODRC. (Id. at ¶ 86.) On October 23, 2016, during a consult

with a neurosurgeon at OSU, Plaintiff learned that the OSU Defendants had provided the

correct x-rays. (Id. at ¶ 87.) Between November 23, 2016 and February 8, 2017, the Doe

Defendants denied OSU’s request for a consult and arm surgery. (Id. at ¶ 88.)

On March 30, 2018, Plaintiff obtained a copy of his medical records via counsel. (Id.

at ¶ 89.) Upon his review of these records, Plaintiff discovered that the OSU Defendants

had “deliberately concealed” the facts of his arm injury in an effort to “conceal their own

medical malpractice and deliberate indifference” to his injury and “for other personal

benefits.” (Id. at ¶ 90.)

From October 21, 2013, through April 19, 2017, the date on which Dr. Awan performed

Plaintiff’s elbow replacement surgery, Plaintiff asserts that he suffered unnecessarily as a

result of deliberate indifference to his serious medical needs. (Id. at ¶ 91.) Specifically,

Plaintiff alleges active concealment of the nature of his injury and denial of medical care

as a result of ODRC contracts and policies. (Id. at ¶ 92.) Plaintiff states that he was

informed that the decision of the Collegial Review Board to deny the request for surgery

was final. (Id. at ¶ 93.)

Plaintiff alleges that between June 26, 2015 and April 19, 2017, the OSU Defendants

“continuously acted with deliberate indifference to [his] serious medical needs” in violation of

his Eighth and Fourteenth Amendment rights. (Id. at ¶¶ 99, 100, 101, 102, 103, 110, 112.)

Plaintiff seeks compensatory and punitive damages as well as declaratory and injunctive relief.

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II. LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a plaintiff

must satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure

8(a). Under Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes

legal and factual demands on the authors of complaints.” 16630 Southfield Ltd., P’ship v.

Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013) (emphasis in original).

Although this pleading standard does not require “‘detailed factual allegations,’ … [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter … to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on a

host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted).

In considering whether a complaint fails to state a claim upon which relief can be

granted, the Court must “construe the complaint in the light most favorable to the plaintiff,

accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio

Police & Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir.

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2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet

that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of

a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663.

Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts

sufficient to “provide a plausible basis for the claims in the complaint”; a recitation of facts

intimating the “mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz–Craft

Corp of Mich., Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679.

Finally, “[p]ro se complaints are held to less stringent standards than formal pleadings

drafted by lawyers and therefore are liberally construed.” Olivares v. Michigan Worker’s Comp.

Agency, No. 18-2369, 2019 WL 2299250, at *2 (6th Cir. Apr. 16, 2019) (citing Williams v.

Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (vacating dismissal of civil rights complaint and

remanding for further proceedings)); see also Walker v. Miller, No. 18-3209, 2018 WL 7575709,

at *1 (6th Cir. Oct. 17, 2018) (“But we hold pleadings filed by a pro se litigant ‘to less stringent

standards than formal pleadings drafted by lawyers,’ and [we] may not uphold the dismissal of’ a

pleading by a pro se litigant simply because we think the allegations unlikely.”) (quoting Thomas

v. Eby, 481 F.3d 434, 437 (6th Cir. 2007)). However, “‘pro se plaintiffs are not automatically

entitled to take every case to trial.’” Robinson v. Killips, No. 18-1485, 2019 WL 1931873, at *1

(6th Cir. Feb. 22, 2019) (quoting Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996))

(affirming in part and reversing in part dismissal of pro se complaint).

III. ANALYSIS

The OSU Defendants raise two issues in their motion to dismiss. First, they contend that

Plaintiff has failed to allege their deliberate indifference to his serious medical needs in violation

of the Eighth Amendment. (ECF No. 111 at 4-7.) They also contend that Plaintiff’s claims

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against Defendants Michelson, Ryu, Yu, and Krieger are barred by the applicable statute of

limitations.

In response, Plaintiff challenges, under various theories, the argument that his claims are

time-barred. For example, Plaintiff contends that his claim did not accrue until on or after March

30, 2018, when he discovered the OSU Defendants are liable under a “danger creation theory.”

He also cites to the Defendants’ alleged “continuing violation.” Additionally, he asserts that

equitable tolling principles apply due to the Defendants’ alleged concealment; his inability to

pursue his legal rights as a result of his physical condition; and the exhaustion requirement.

Finally, Plaintiff asserts that he plausibly has asserted a claim for relief against the OSU

Defendants.4 (See generally ECF No. 150.)

In reply, Defendants reconfirm their initial arguments. Additionally, they assert that

Plaintiff has not established any basis for equitable tolling and that neither the state-created

danger theory nor the continuing violation doctrine has any applicability here. Finally, they

contend that Plaintiff’s attempt to invoke the discovery rule is thwarted by the allegations of the

Amended Complaint.

4 Plaintiff appears to be asserting his deliberate indifference claim under both the Eighth and

Fourteenth Amendments. See, e.g., ¶¶ 92, 110, 112. “The Eighth Amendment's prohibition on

cruel and unusual punishment generally provides the basis to assert a § 1983 claim of deliberate

indifference to serious medical needs, but where that claim is asserted on behalf of a pre-trial

detainee, the Due Process Clause of the Fourteenth Amendment is the proper starting point.”

Winkler v. Madison County, 893 F.3d 877, 890 (6th Cir. 2018) (quoting Phillips v. Roane

County, 534 F.3d 531, 539 (6th Cir. 2008)). While the deliberate indifference framework is the

same, Plaintiff is a state inmate and his claim here is properly analyzed under the Eighth

Amendment. Griffith v. Franklin Cty., Kentucky, 975 F.3d 554, 566–67 (6th Cir. 2020).

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Because the conclusion that Plaintiff has failed to state a claim would be dispositive as to

all the OSU Defendants, the Court will begin its analysis there. 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 Cnty., 625 F.3d 935, 941 (6th Cir. 2010) (internal quotations and citations omitted). A

claim for deliberate indifference “has both objective and 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 Cnty., 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 Taylor v. First Med.

Mgmt., No. 18-5282, 2019 WL 1313828, at *2 (6th Cir. Feb. 21, 2019) (holding that, to satisfy

the subjective component, “the prisoner must show that the defendant recklessly disregard[ed]

the substantial risk of serious harm” by showing that “the defendant 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”) (internal quotation marks and 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. Where a prisoner alleges only that the medical care

he received was inadequate, federal courts are generally reluctant to second guess

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medical judgments. However, it is possible for medical treatment to be so

woefully inadequate as to amount to no treatment at all.

Alspaugh, 643 F.3d at 169 (internal quotations and citations omitted). “A prisoner’s allegation

that a prison has failed to treat [a prisoner’s] condition adequately . . . is evaluated under the

effect-of-delay standard[,]” which “‘requires the submission of verifying medical evidence to

establish “the detrimental effect of the delay in medical treatment.’” Anthony v. Swanson, No.

16-3444, 2017 WL 2992224, at *3 (6th Cir. July 14, 2017) (quoting Santiago v. Ringle, 734 F.3d

585, 590 (6th Cir. 2013) (citation omitted)). Additionally, “[o]rdinary medical malpractice does

not satisfy the subjective component.” Grose v. Corr. Med. Servs., Inc., 400 F. App'x 986, 988

(6th Cir. 2010); see also Santiago, 734 F.3d at 591 (“[W]hen 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 degree of incompetence which does not rise to the level of a

constitutional violation.”) (internal quotation marks and citations omitted). Moreover, “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.” Apanovitch v. Wilkinson, 32 F. App'x 704, 707 (6th Cir. 2002).

Applying the above principles, Plaintiff has not alleged and therefore failed to state a

claim against the OSU Defendants’ for deliberate indifference to his serious medical needs. The

Amended Complaint contains only the following factual allegations directed to these Defendants.

They examined Plaintiff in the emergency room at the Wexner Medical Center on June 26, 2015.

(ECF No. 107 at ¶ 78.) They determined that his right arm was re-broken and required surgery

to implant an artificial elbow. (Id. at ¶ 79.) They recommended and requested that Plaintiff

receive an orthopedic consult and right arm surgery. (Id.) Their recommendation and request

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were communicated to CCI/ODRC officials and the Collegial Review Process was undertaken

shortly thereafter. (Id. at ¶¶ 80-83.) Dr. Awan performed Plaintiff’s elbow replacement surgery

on April 19, 2017. (Id. at ¶ 91.) Dr. Awan provided follow-up care. (Id. at 44-46, Exhibit G.)5

Plaintiff’s attempt to set forth the OSU Defendants’ deliberate indifference based on these

limited factual allegations relies solely on conclusory assertions and speculation. For example,

Plaintiff asserts that Drs. Michelson, Krieger, Ryu, and Yu “deliberately concealed” his medical

condition. (ECF No. 107 at ¶ 90.) This bare and vague allegation is insufficient to support

Plaintiff’s claim of deliberate difference against these Defendants. Not only does it fail to meet

the minimum pleading standard, it is inconsistent with other allegations in the Amended

Complaint. First, despite his charge of concealment, Plaintiff alleges that the OSU Defendants’

recommendation was communicated to CCI/ODRC officials. (Id. at ¶¶ 80-87.) Further, while

Plaintiff alleges that he discovered the alleged “concealment” in 2018, he also alleges that, at a

Telemed appointment with an OSU neurosurgeon on October 3, 2016, he confirmed that the

correct x-rays from his June 26, 2015 visit to the emergency room had been provided to

CCI/ODRC. (Id. at ¶ 87.) These inconsistent assertions fail to plausibly allege any “deliberate

conceal[ment]” undertaken by Drs. Michelson, Krieger, Ryu, or Yu.

Plaintiff also asserts that the OSU Defendants refused him treatment at the time of his

examination on June 26, 2015, based on cost considerations. (ECF. No. 107 at ¶ 79.) Not only

does this bare statement fail to meet the pleading standards discussed above, such an allegation,

5 The Court may consider orders, matters of public record, and documents referred to in the

complaint and attached as exhibits. See Currier v. First Resolution Inv. Corp., 762 F.3d 529, 533

(6th Cir. 2014) (citing Henry v. Chesapeake Appalachia, L.L.C., 739 F.3d 909, 912 (6th Cir.

2014)). Thus, the Court may properly consider this Exhibit.

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standing alone, does not state a medical indifference claim. Willard v. Ohio Dep't of Rehabs. &

Corr., No. 2:19-CV-4959, 2019 WL 6609219, at *5 (S.D. Ohio Dec. 5, 2019), report and

recommendation adopted sub nom. Willard v. Ohio Dep't of Rehab. & Corr., No. 2:19-CV-4959,

2020 WL 3166675 (S.D. Ohio June 15, 2020) (citing Winslow v. Prison Health Serv., 406 F.

App'x 671, 674 (3d Cir. 2011) (“[T]he naked assertion that Defendants considered cost in

treating [the inmate's condition] does not suffice to state a claim for deliberate indifference, as

prisoners do not have a constitutional right to limitless medical care, free of the cost constraints

under which law-abiding citizens receive treatment.”)); see also Hendricks v. Kasich, No. 2:12-

CV-729, 2014 WL 2006800, at *11-12 (S.D. Ohio May 16, 2014) (collecting cases).

Additionally, Plaintiff alleges that all the OSU Defendants exhibited “continuing intentional

deliberate indifference” through the date of his elbow replacement surgery in April 2017. (ECF

No. 107 at ¶¶ 91, 99-103.) These vague allegations simply do not provide the level of factual

support sufficient to plausibly allege deliberate indifference. Even under a broad reading of the

Amended Complaint, Plaintiff fails to cite to any other specific actions taken by any of the OSU

Defendants beyond those set forth above. He also fails to cite to any specific inaction on their

parts sufficient to suggest “continuing deliberate indifference.” By way of example, Plaintiff

fails to allege any facts from which it could be determined that he had any additional contact or

continued treatment relationship with Drs. Michelson, Krieger, Ryu and Yu beyond June 26,

2015. Further, while Plaintiff alleges that Dr. Awan performed Plaintiff’s surgery in April 2017,

Plaintiff does not set forth any allegations plausibly suggesting Dr. Awan’s deliberate

indifference in the interim. Likewise, aside from alleging their referral and recommendation and

Dr. Awan’s surgical services, Plaintiff fails to allege that these Defendants were able or obligated

to provide or direct the terms or timing of his medical care relating to his right arm. To the

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extent that a continued denial of care or delayed care could form the basis for liability under the

Eighth Amendment, Plaintiff’s bare allegations of liability simply do not connect the OSU

Defendants’ actions to such a claim.

Finally, Plaintiff also appears, at least to some extent, to allege discrimination within the

context of “the systemic failures in ODRC’s healthcare system.” (ECF No. 107 at ¶¶ 28-36.)

To the extent that Plaintiff is attempting to assert a discrimination claim, any such claim as it

relates to the OSU Defendants also is wholly undeveloped and lacking in factual support.

In sum, it is not possible to infer from the vague, general, and conclusory assertions set

forth in the Amended Complaint that the OSU Defendants consciously disregarded Plaintiff’s

medical condition. Plaintiff's allegations simply do not support plausible inferences that any of

these Defendants had the requisite subjective state of mind necessary to satisfy the “deliberate

indifference” test set forth in Farmer v. Brennan, 511 U.S. 825 (1994). Because the Plaintiff has

failed to sufficiently allege that any of the OSU Defendants acted with deliberate indifference to

his serious medical needs, it is RECOMMENDED that the Court GRANT the OSU

Defendants’ Motion to Dismiss. Accordingly, the Court need not address the issue of whether

Plaintiff’s claims against particular OSU Defendants are time-barred.

IV. RECOMMENDATION

For the reasons stated above, it is RECOMMENDED that the Court GRANT the OSU

Defendants’ Motion to Dismiss. (ECF No. 111.)

PROCEDURE ON OBJECTIONS

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 in

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question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review of by the District Judge

and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the

magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal

the district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding

that defendant waived appeal of district court’s denial of pretrial motion by failing to timely

object to magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation

omitted)).

Date: January 28, 2021 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

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