to S.C. Reporter 6/23/17
DECISION OF THE MAGISTRATE
PETERSON, Magistrate Judge
Plaintiff, an inmate in the custody and control of defendant,
brought this action for negligence. Plaintiffs complaint
lists four claims for negligence. Plaintiff claims that
defendant refuses to provide him with food that will not harm
his health; plaintiff claims that defendant refuses to allow
him to purchase over-the-counter medications to treat his
medical conditions; plaintiff claims that defendant refuses
to allow him to purchase a wedge pillow to aid in his medical
treatment; and plaintiff claims that defendant refuses to
provide him with a bottom bunk restriction. The issues of
liability and damages were bifurcated and the case proceeded
to trial on the issue of liability.
As an initial matter, subsequent to the trial, on February
28, 2017, plaintiff filed a document titled "motion to
order that medical records be placed into evidence." In
the motion, plaintiff requests that the court order defendant
to submit three medical records as evidence. Plaintiff
relates that the parties forgot to offer the documents as
exhibits. However, at the trial, each party was offered the
opportunity to submit exhibits as evidence. Neither party
offered the medical records identified by plaintiff.
Additionally, it is not defendant's duty to submit
documents into evidence to support plaintiffs case.
Plaintiffs motion is not well-taken and is DENIED.
At trial, plaintiff testified that he suffers from several
health issues including gastroesophageal reflux disease
(GERD), rhinitis, and a hiatal hernia. Plaintiff testified
that due to his health conditions, on multiple occasions in
April and May of 2015, defendant transported him to the Ohio
State University Medical Center (OSUMC) for specialized
treatment. Of relevance to this case, plaintiff stated that
he was examined by an otolaryngologist, whose name he could
not recall, and a gastroenterologist named Dr. Edward Levine.
Plaintiff testified that the physicians at OSUMC determined
that plaintiff suffered from GERD, rhinitis, and a hiatal
hernia. Plaintiff stated that the physicians at OSUMC
recommended or prescribed, among other things, that he take
Flonase and a proton-pump inhibitor, such as Nexium or
Prilosec. Plaintiff provided that the physicians at OSUMC
also recommended that he submit to a special diet tailored
for patients with GERD and that he elevate his head at night
while sleeping. According to plaintiff, when he returned to
the Belmont Correctional Institution (BECI), defendant failed
to provide him the medications, failed to provide the special
diet, and failed to provide him a wedge pillow.
Regarding the special diet, plaintiff testified that the
physicians at OSUMC recommended that he avoid foods that
cause him reflux problems. Plaintiff testified that as a
result, he attempts to avoid tomatoes, tomato sauce, cheese,
high fat foods, spicy foods, onions, peppers, and greasy
foods. Plaintiff stated that through his own independent
research and through trial and error, he determined that the
above-mentioned foods cause him reflux problems. Plaintiff
added that it was also recommended to avoid chocolate,
alcohol, caffeine, and acidic foods.
Plaintiff stated that he spoke with the BECI diet technician,
whom he identified as Ms. Masters, to request a special diet.
Plaintiff asserted that shortly thereafter, Michelle Tatman,
defendant's dietary operations manager, informed him that
there is no special diet for inmates with GERD and that each
inmate is responsible for avoiding or eliminating foods that
cause discomfort. (Joint Exhibit 1). Plaintiff added that
Tatman recommended avoiding chocolate, peppermint, spearmint,
alcohol, caffeinated beverages, and high fat foods. (Joint
Exhibit 3). Plaintiff asserted that such statements by Tatman
conflicted with statements made by the physicians at OSUMC.
According to plaintiff, many of the meals offered at BECI are
prepared with tomatoes, tomato sauces, cheese, or what he
referred to as creamy sauces. Plaintiff testified that such
food items cause him reflux difficulties. Plaintiff added
that several of the meals are spicy or greasy and are
prepared with onions and peppers; plaintiff asserted that
such food items likewise cause him reflux difficulties.
Plaintiff offered a sample menu reflecting items served in
the chow hall at BECI over a three-week period. (Plaintiffs
Exhibit E). Plaintiff also created a chart wherein he noted
the meals that cause him problems with his reflux disease.
(Plaintiffs Exhibit F). Based on the sample menu and his
chart of foods he wishes to avoid, plaintiff determined that
out of the 31 meals listed on the sample menu, only seven are
what he determined to be GERD compatible.
Plaintiff testified that the foods that he has determined to
be incompatible with his GERD cause him discomfort and that
by attempting to manage his condition and due to the lack of
alternative foods available, he has lost 40 pounds over a
period of several months. Plaintiff acknowledged however that
he also purchased a wide range of food in the BECI commissary
but asserted that he did so to determine what would be
compatible with his GERD. Plaintiff added that during this
time period, Masters performed several weekly weight checks
that documented his weight loss.
With respect to his medications, plaintiff testified that the
physicians at OSUMC recommended that he take Flonase and
Prilosec or some other proton-pump inhibitor. Plaintiff
stated that he attempted to purchase the items in the BECI
commissary inasmuch as they are considered over-the-counter
medications, but BECI did not offer them for sale. Plaintiff
explained that he requested that he be allowed to purchase
the items in the commissary but such a request was denied.
However, plaintiff acknowledged that the commissary sells a
generic proton-pump inhibitor. Plaintiff asserted that he
used the generic proton-pump inhibitor that is available in
the commissary but that he did not see any positive results.
Regarding the Flonase, plaintiff testified that he was
instructed to purchase other antihistamines that are
available in the commissary.
Turning to his claim regarding elevating his head while
sleeping, plaintiff testified that everyone agrees that one
way to manage GERD is to elevate the head while sleeping.
Plaintiff stated that as a result he purchased every pillow
offered for sale in the commissary but that even while using
the pillows, he could not achieve the desired result of
elevating his head while sleeping. Plaintiff asserts that the
pillows offered simply do not maintain their form. Plaintiff
therefore requested that he be allowed to purchase a wedge
pillow but such a request was denied.
Finally, concerning plaintiffs desire for a bottom bunk
restriction, plaintiff testified that to get on to a top bunk
he must jump onto the bed because the beds are not equipped
with a ladder. According to plaintiff, such actions cause
problems with his GERD and his hiatal hernia. Plaintiff
conceded however that he is currently assigned to a bottom
bunk. Plaintiff added that he fears a future injury if he is
not granted a bottom bunk restriction.
Michelle Tatman, who is employed by defendant as a Dietary
Operations Manager, testified that she received a degree in
human nutrition from the Ohio State University and that she
received her license as a dietitian in 2013. Tatman testified
that her job duties include developing and approving menus
for inmates at each of the institutions operated by defendant
and managing the diet technicians at each institution by
ensuring they follow policy. Tatman asserted that defendant
has a policy governing therapeutic diets for inmates.
(Defendant's Exhibit 1). Tatman explained that the policy
was created by the dietary operations manager, a position she