The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DANIEL COLBERT, as Brother and ) CASE 1:23 CV 1414
Administrator of Estate of Decedent )
Nicholas Michael Colbert, )
Plaintiff,
v. ) JUDGE DONALD C. NUGENT
CUYAHOGA COUNTY, OHIO, et al., )
Defendants. ) MEMORANDUM OPINION
This Matter is before the Court on the Motion for Judgment on the Pleadings filed by
Defendants, Chanda Zitiello RN, Thomas Tallman D.O., Leslie Chute RN, and the MetroHealth
System (“MetroHealth Defendants”). (Docket #25.)
Factual and Procedural Background
On May 10, 2019, Nicholas Colbert committed suicide while in custody at the Cuyahoga
County Jail. Plaintiff alleges that Defendants were aware of Nicholas Colbert’s recent suicide
attempt and knew that Nicholas Colbert was withdrawing from multiple substances when
initially evaluated at the Jail, yet he was not provided necessary screening, medical care or
attention at the time of booking and/or while in custody. (Complaint at Paragraphs 27-32.)
After being booked into the jail, Nicholas Colbert was initially held in a general
population pod before being moved to a Veteran’s Pod — an area of the jail designated for pre-
trial detainees and/or inmates who have a history of military service. (Complaint at Paragraphs
39 and 42.) Plaintiff states that despite the obvious risk involved given Nicholas Colbert’s
history of suicide/self harm, and the fact that he was either under the influence and/or
withdrawing from illegal substances, Nicholas Colbert was permitted to maintain possession of
the string from the hood of his sweatshirt,' which was “of such length and substance that it could
be used for self-harm.” (Complaint at Paragraphs 33-35.) He later tied the string to the end of
the bunk in his cell and hung himself. (Complaint at Paragraph 49.)
Plaintiff alleges Nicholas Colbert received no medical care while in custody and that
Nicholas Colbert was ignored by jail staff who were not at their assigned stations; did not make
required rounds; and, falsified documents indicating they were checking on inmates/detainees
when they were not. (Complaint at Paragraphs 45-46.)
On May 10, 2021, Nicholas Colbert’s brother Daniel Colbert, as Administrator of
Nicholas Colbert’s Estate, filed a lawsuit in the Cuyahoga County Court of Common Pleas, Case
No. CV 21 947395. That lawsuit was removed to Federal Court on June 10, 2021, Case No. 21
CV 1161, and voluntarily dismissed without prejudice on August 4, 2022.
On July 22, 2023, Daniel Colbert (“Plaintiff”), filed the instant Complaint, as Brother and
Administrator of the Estate of Nicholas Colbert, naming Cuyahoga County, MetroHealth and
oo
While being booked, Nicholas Colbert was recorded on surveillance video
removing the string from the hood of his sweatshirt and tying it around his waist to hold
up his pants. (Complaint at Paragraphs 33-34.) Thereafter, he wrapped the string around
his waist on the outside of his pants, where Plaintiff alleges it was objectively observable.
(Complaint at Paragraph 25.)
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multiple individuals, in their individual and/or official capacities, as Defendants. Plaintiff raises
the following claims:
1. A 42 U.S.C. § 1983 claim against all Defendants;
2. Supervisory liability under 42 U.S.C. § 1983 against Defendants Armond Budish,
Earl Leiken, Kenneth Mills, Eric J. Ivey, Dr. Thomas Tallman, Antonio Brunello,
Chanda Zitiello, and Cuyahoga County;
3. Willful, wanton, reckless, malicious, and bad faith conduct against all Defendants;
4. Intentional infliction of emotion distress against all Defendants;
5. Negligent hiring, training, retention, discipline, and supervision against
Defendants Budish, Leiken, Mills, Ivey, Tallman, Brunello, Zitiello, and
Cuyahoga County;
6. Failure to intervene against all Defendants;
7. Wrongful death against all Defendants;
8. Survivorship against all Defendants;
9. Fifth and Fourteenth Amendment Due Process against all Defendants;
10. Americans with Disabilities Act and Section 504 Claim against all Defendants;
11. Medical malpractice against all Defendants;
12. 42U.8.C. § 1983 Monell Claim Against Defendant Cuyahoga County and/or
MetroHealth;
13. Vicarious liability/respondeat superior against MetroHealth.
On April 11, 2024, the MetroHealth Defendants filed their Motion for Judgment on the
Pleadings. (Docket #25.) The MetroHealth Defendants argue that the allegations raised in the
Complaint against them are barred in their entirety under Ohio’s four-year medical claim statute
of repose; are time-barred under Ohio’s one-year medical claim statute of limitations; and, are
not otherwise subject to refiling. Plaintiff filed a Response in Opposition on May 28, 2024.
(Docket #28.) The MetroHealth Defendants filed a Reply Brief on June 21, 2024. (Docket #33.)
Standard of Review
Fed. R. Civ. P. 12(c) provides, “[a]fter the pleadings are closed — but early enough not to
delay trial — a party may move for judgment on the pleadings.” The standard of review for a
motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a
claim under Fed. R. Civ. P. 12(b)(6). E.E.O.C. v. JH. Routh Packing Co., 246 F.3d 850, 851 (6"
Cir. Ohio 2001) (citing Grindstaff v. Green, 133 F.3d 416, 421 (6" Cir. Tenn. 1998)). □□□□□
well-pleaded material allegations of the pleadings of the opposing party must be taken as true,
and the motion may be granted only if the moving party is nevertheless clearly entitled to
judgment.” Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235, 240 □□
Cir. 2011) (citation omitted).
Discussion
The MetroHealth Defendants cite Everhart v. Coshocton Cty. Mem. Hosp., Slip Opinion
No. 2023-Ohio-4670, arguing that all of Plaintiff's claims against them are barred under Ohio’s
four-year medical claim statute of repose.
The purpose of a statute of repose is to provide a “fresh start,” “embodying the idea that
at some point a defendant should be able to put past events behind him.” CTS Corp. v.
Waldburger, 573 U.S.1, 9 (2014). Ohio’s medical claim statute of repose, Ohio Rev. Code §
2305.113(C), reads, “No action upon a medical, dental, optometric, or chiropractic claim shall be
commenced more than four years after the occurrence of the act or omission constituting the
alleged basis of the medical, dental, optometric, or chiropractic claim.”
“Medical Claim” is defined as:
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any claim that is asserted in any civil action against a physician, podiatrist,
hospital, home, or residential facility, or against a licenses practical nurse,
registered nurse, advanced practice registered nurse, physical therapist, physician
assistant, emergency medical technician-basic, emergency medical technician-
intermediate, or emergency medical technician-paramedic, and that arises out of
the medical diagnosis, care, or treatment of any person.
Ohio Rev. Code § 2305.113(E)(3) (emphasis added). As stated by the Ohio Supreme Court, the
language of Ohio Rev. Code § 2305.113(C) is “‘clear, ambiguous, and means what it says.’”
“Unless another statutory provision negates their inclusion,” all medical claims asserted in a civil
action against a physician, hospital or registered nurse fall within the scope of the medical claim
statute of repose. Everhart v. Coshocton Cty. Mem. Hosp., Slip Opinion No. 2023-Ohio-4670, □□
12-13.
All of Plaintiffs claims against the MetroHealth Defendants are medical claims as
defined above (claims asserted against a physician, registered nurses and a hospital in a civil
action that arise out of the medical diagnosis, care, or treatment of Nicholas Colbert, a person)
and fall under Ohio’s four-year medical claims statute of repose. Furthermore, “Expiration of the
statute of repose precludes the commencement, pursuant to the savings statute, of a claim that
has previously failed otherwise than on the merits in a prior action.” Wilson v. Durrani, 164
Ohio St.3d 419, | 38. A voluntary dismissal without prejudice is a dismissal otherwise than on
the merits. Plaintiff's Complaint in this case was filed on July 22, 2023, more than four years
after the alleged acts or omissions giving rise to Plaintiff's claims and the Ohio savings statute
does not extend the medical statute of repose.
Conclusion
For the foregoing reasons, the Motion for Judgment on the Pleadings (Docket #25) filed
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by Defendants, Chanda Zitiello RN, Thomas Tallman D.O., Leslie Chute RN, and the
MetroHealth System, is hereby GRANTED.
This case is terminated as to Defendants Chanda Zitiello RN, Thomas Tallman D.O.,
Leslie Chute RN, and the MetroHealth System.
IT IS SO ORDERED.
DONALD C. NUGENT
United States District Ju
DATED: Aug 28 2oof
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