The opinion
mag oy
UNITED STATES DISTRICT COURT TuCHARD □□□□
SOUTHERN DISTRICT OF OHIO :
EASTERN DIVISION S21 JUN 23. ABIO: 10
Tibor Sebestyen, SOUTHERN bis¥-OH0
Plaintiff, Case No. 2:17-0v-850-
Vv. Judge Michael H. Watson
Dr. John Gardner, ef ai., Magistrate Judge Deavers
Defendants.
OPINION AND ORDER
Tibor Sebestyen (“Plaintiff’), an inmate proceeding pro se, sues
Defendants under 42 U.S.C. § 1983 and the Americans with Disabilities Act
("ADA"). Am. Compl., ECF No. 26. The gist of Plaintiffs Amended Complaint is
that he was denied contact lens solution and disinfectant solution while he was
incarcerated at both Chillicothe Correctional Institution (“CCI”) and London
Correctional Institution (“LoCI”); he was denied access to the Ohio State
University Eye Clinic; and he was denied entry into LoCl’s Blind Program. /d. He
alleges that he eventually became legally blind while incarcerated. /d. The only
Defendants remaining in the case are Mrs. B. Higginbothim (“Higginbothim’),
Health Care Administrator at CCI; Mrs. Roberta Murphy (“Murphy”), Health Care
Administrator at LoCl; Mrs. Popovich (“Popovich”), an Inmate Case Worker at
LoCl who is in charge of the Blind Program; and Dr. John Gardner (“Dr.
Gardner’), Chief Medical Officer for the Ohio Department of Rehabilitation and
Correction (collectively, “Defendants”). Plaintiff sues Higginbothim for deliberate
indifference under § 1983, and he sues Murphy, Gardner, and Popovich for
deliberate indifference under § 1983 and under Title li of the ADA. R&R 2, ECF
No. 70. Defendants moved for summary judgment. Mot. Summ. J., ECF No. 61.
Magistrate Judge Deavers, to whom this case was referred, issued a
Report and Recommendation (“R&R”) that recommended the Court grant
Defendants’ motion. R&R, ECF No. 70. Magistrate Judge Deavers
recommended granting summary judgment to Defendants on Plaintiffs ADA
claims because he cannot sue Defendants in their individual capacities under the
ADA and because Plaintiff fails to raise a genuine dispute of material fact against
Defendants in their official capacities under Title Il of the ADA. R&R 5-6, 14-16,
ECF No. 70. Specifically, Magistrate Judge Deavers concluded that Plaintiff
failed to identify a specific service or program that he was denied participation in,
failed to offer any evidence that any denial of participation was due to his vision
impairment, and failed to adequately allege retaliation under the ADA. /d. at 15—
16.
As for the deliberate indifference claims under § 1983, Magistrate Judge
Deavers assumed that Plaintiff satisfied the objective requirement of suffering
from a sufficiently serious medical need but concluded that Plaintiff offered only
conclusory allegations that Defendants were subjectively aware of a serious risk
and disregarded that risk. R&R 20-21, ECF No. 70. Additionally, the R&R
concluded that the medical records showed Plaintiff was provided medical care
for his eye condition such that his claim, at best, amounted to a disagreement as
Case No. 2:17-cv-550 Page 2 of 8
to the proper course of treatment, which cannot form the basis for a successful
deliberate indifference claim. /d. at 21.
Finally, the R&R recommended rejecting Plaintiff's deliberate indifference
claim against Higginbothim, which was based on his transfer to LoCl. The R&R
noted that Plaintiff alleged the transfer occurred in violation of ODRC policy, but a
violation of prison policies does not, alone, establish a violation of § 1983. E.g.,
Young Bey v. McGinnis, No. 98-1930, 1999 WL 776312, at *2 (6th Cir. Sept. 23,
1999) (Plaintiff's [contention that the defendants failed to comply with MDOC
policy, rules and regulations is not cognizable under §1983, which does not
provide redress for violations of state law.”). The R&R also concluded there was
no evidence Higginbothim was even involved in the transfer. /d. at 22.
Plaintiff timely objected to the R&R. Obj., ECF No. 71. Under Federal
Rule of Civil Procedure 72(b), the Court reviews de novo those portions of the
R&R that Plaintiff specifically objected to. Fed. R. Civ. P. 72(b). The objections
can be broken down as follows:
1. Plaintiff argues that, as an unrepresented inmate, he is prohibited
from possessing a copy of his medical files and that the medical files
submitted by Defendant are incomplete. Obj. 1, ECF No. 71. He
contends that he needs the full medical files to prove his “true
medical extent and lack of proper treatment.” Obj. 1, ECF No. 71.
2. He argues that Defendants’ deliberate indifference is shown through
the facts that he was continuously prescribed gas permeable contact
lenses when Plaintiff required non-gas-permeable lenses, was
prescribed contact lenses of the wrong strength, and was told to
wear glasses even though glasses did not correct his vision. /d. at 2.
He argues that the contact lenses that he was prescribed, in addition
to failing to correct his vision, caused him great pain. /d.
Case No. 2:17-cv-550 Page 3 of 8
3. Plaintiff also complains that he was transferred to LoCI without first
undergoing a consultation by the Chief Medical Officer. /d. at 3.
4. Plaintiff argues that ODRC policy shows that ODRC is responsible
for paying for contact lens solution and cannot require Plaintiff to
purchase the same. /d.
5. He argues the Collegial Review Board erred in refusing to refer
Plaintiff to an ophthalmologist and in recommending an alternative
care plan. /d.
6. Plaintiff complains that Sarah Youst and Karen Gansl, nonparties,
contradicted themselves in the summaries of service dated March
and April 2017. fd.
7. As for his ADA claim, Plaintiff argues that a Sergeant Baker, also a
nonparty, refused to reclassify Plaintiff as a braille typist unless
Plaintiff was first seen by Dr. Youst. /d. Plaintiff says Sergeant
Baker reclassified other blind inmates as braille typists without
requiring them to see a doctor first and that Sergeant Baker
discriminated against Plaintiff because Sergeant Baker believed
Plaintiff was not blind. /d. at 3-5. Ina similar vein, Plaintiff states
that both Sergeant Baker and Popovich told him that he had to fill
out a reasonable accommodation form before he could be evaluated
for reclassification but that no other visually impaired inmates had to
fill out such a form prior to reclassification. /d. at 5.
8. Plaintiff also cites an October 10, 2018 statement from Dr. Youst,
presumably to show Defendants’ subjective knowledge of the
severity of Plaintiffs medical condition. /d. at 5-6. He contends that
the medical records show that, although he consistently received
some medical treatment for his degenerative vision, the treatment
was So cursory as to amount to no treatment at all. /d. at 7.
Plaintiffs objections are not persuasive.
Plaintiffs ADA claim fails because he did not argue until the objection
stage that he was denied participation in any specific service or program. See
R&R 15, ECF No. 70. Plaintiff failed to mention reclassification as a braille typist
Case No. 2:17-cv-550 Page 4 of 8
in either his Amended Complaint or his response to Defendants’ summary
judgment motion. See Am. Compl., ECF No. 26; Resp., ECF No. 69. It is not
until Plaintiff filed his objections to the R&R that he says he was denied the
service of a braille typist. Obj. 3-5, ECF No. 70. But Plaintiff cannot raise this
argument for the first time on objection, so his ADA claim fails. Harris v. Ocwen
Loan Serv., LLC, No. 17-5399, 2017 WL 8791308, at *2 (6th Cir. Nov. 22, 2017)
(“[A]bsent compelling reasons, [the Magistrate Judge Act] does not allow parties
to raise at the district court stage new arguments or issues that were not
presented to the magistrate” judge (internal quotation marks and citation
omitted)).
Moreover, Plaintiffs objection would not save his ADA claim even if it was
timely raised. Plaintiffs argument that he was denied reclassification as a braille
typist is directed partly at Popovich but also at a nonparty, Sergeant Baker.
Plaintiff fails to even mention Murphy or Dr. Gardner in connection with his
objection and therefore has not raised a genuine dispute of material fact as to
whether those Defendants violated the ADA. Even with respect to Popovich,
Plaintiff cites to no evidence to support his version of events. He cites only to his
grievances, see Obj. 5, ECF No. 70, which are hearsay and cannot be
considered for the truth of the matter asserted. And even if the grievances were
taken as truthful, they show only that Popovich treated Plaintiff differently than
other vision-impaired inmates by saying he needed to fill out a reasonable
accommodation form and be evaluated by a doctor before he could be
Case No. 2:17-cv-550 Page 5 of 8
reclassified to braille typist. Obj. 5-6, ECF No. 71. Plaintiff has offered no
evidence that this different treatment was because of his disability—indeed, his
assertion that other visually impaired inmates were reclassified without having to
fill out such a form or be evaluated undercuts any argument that the denial of
services was connected to his disability.
For all of these reasons, Plaintiffs ADA claims against Popovich, Dr.
Gardner, and Murphy fail.
As for his deliberate indifference claim, Plaintiff argues that Dr. Youst’s
statements in Exhibit F show that Defendants were subjectively aware of
Plaintiff's serious medical condition. Obj. 6, ECF No. 71. But Plaintiff does not
show that Higginbothim, Dr. Gardner, Murphy, or Popovich ever saw Exhibit F let
alone made any of the treatment decisions that Plaintiff believes contradicted Dr.
Youst's advice. Instead, the objections describe: (1) failures by OSU Eye
Physician and Surgeons, LLC to prescribe the proper contact lenses in 2016,
Obj.1-2, ECF No. 71; (2) Gary Artrip, a nonparty, denying an appointment
referral, id. at 2 (referring to ECF No. 61-3 at 24); and (3) the Collegial Review
Board's failure to approve referrals, id. at 3 (referring to ECF No. 61-3 at 46).
Plaintiff cites to no evidence that any named Defendant was involved in those
decisions. It is therefore unclear what, exactly, these Defendants did (or failed to
do) that was deliberately indifferent. In fact, Plaintiff waives any argument that
Dr. Gardner or Higginbothim were deliberately indifferent because he does not
even mention them in his objections. The Court therefore adopts the R&R with
Case No. 2:17-cv-550 Page 6 of 8
respect to Gardner and Higginbothim. The Court offers the following as it relates
to Popovich and Murphy and only in the alternative as it relates to Gardner and
Higginbothim.
Out of an abundance of caution, the Court has reviewed all of the evidence
submitted on the docket. Consistent with the above, Popovich’s requiring
Plaintiff to fill out a reasonable accommodation form or be evaluated prior to
being reclassified as a braille typist is not deliberate indifference to a serious
medical need.
The only evidence that refers to Murphy is summaries of telephone
encounters, ECF No. 61-3 at 53, 68, and a prescription order that she signed,
Mot. Summ. J. Ex. A, ECF No. 69-1 at 2. The summary of telephone
encounters—even if admitted for the truth asserted therein—show merely that
Murphy provided contact lens solution to Plaintiff but informed him that he may
have to pay for it in the future and spoke to Plaintiff about an informal complaint
he had filed, informing him of a future eye appointment. See ECF No. 61-3 at 53,
68. These are insufficient to state a claim against Murphy for deliberate
indifference.
As for the prescription, Plaintiff argues that a doctor at FMC ordered
contact solution be provided as needed but that Murphy reduced the order to
only one bottle per month. Resp. 1, ECF No. 69. Plaintiff says he is unable to
obtain the necessary portion of his medical records to prove that the doctor at
FMC ordered contact solution on an as needed basis. /d. No additional
Case No. 2:17-cv-550 Page 7 of 8
evidence is necessary, however, because the records already produced support
Plaintiff's assertion that contact lens solution was prescribed at one bottle per
month “bimonthly.” Mot. Summ. J. Ex. A, ECF No. 69-1 at 2. Still, that fact is
insufficient to defeat summary judgment because Plaintiff failed to cite to any
evidence that Murphy purposefully or even recklessly reduced the order.
Instead, as Plaintiff himself argues, Murphy’s reduction on the basis that the
“order was unclear,” is, at most, negligent and therefore cannot serve as the
basis for a deliberate indifference claim.
In sum, the evidence does not support a deliberate indifference claim
against Murphy.
The only record referencing Dr. Gardner is his December 19, 2016
approval of Dr. Miller's November 10, 2016 recommendation that Plaintiff be
moved to an institution for the vision impaired, Mot. Summ. J. Ex. A, ECF No. 61-
3 at PAGEID # 695, and the objections fail to argue how Dr. Gardner was
deliberately indifferent to Plaintiffs serious medical needs.
In conclusion, Plaintiffs objections are OVERRULED. The R&R is
ADOPTED, and the Court GRANTS Defendants’ motion for summary judgment,
ECF No. 61. The Clerk shall enter judgment in favor of Defendants and dismiss
this case.
IT IS SO ORDERED. fo LL,
ICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
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