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Keeley v. Croft

Court of Appeals of Ohio, Seventh District, Belmont

December 29, 2017


         Civil Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 14 CV 187

          For Plaintiff-Appellant: David Keeley, Pro se

          For Defendants-Appellees: Atty. Michael DeWine Ohio Attorney General Atty. Kelly N. Brogan Assistant Attorney General Criminal Justice Section

          Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro


          WAITE, J.

         {¶1} Appellant David Keeley files a pro se appeal of a February 16, 2017, judgment of the Belmont County Court of Common Pleas granting Appellees' motion for summary judgment and dismissing his civil rights action filed pursuant to 42 U.S.C. 1983. Appellant presents a number of issues on appeal. First, Appellant argues the trial court erred in granting summary judgment in favor of Appellees, as he contends they were subject to liability under 42 U.S.C. 1983 and the evidence showed both that Appellees caused delay in Appellant's surgery and that they acted with deliberate indifference regarding his serious medical issue. Second, Appellant asserts the trial court erred in not ordering Appellees to comply with his discovery requests and in failing to sanction Appellees for inaccurate statements made during Appellant's deposition. For the foregoing reasons, Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

         Procedural and Factual History

         {¶2} On June 19, 2014, Appellant filed a pro se complaint against the following Appellees: Gary Croft ("Croft"), Chief Inspector at Belmont Correctional Institution ("BCCI"); Mona Parks ("Parks"), Assistant Chief Inspector at BCCI; Brad Eller ("Eller"), Health Care Administrator at BCCI; Kelly Riehle ("Riehle"), Institutional Inspector at BCCI; Paul Weidman ("Weidman"), physician at BCCI; Aaron Samuels, ("Samuels") physician at BCCI; Christopher Bagi ("Bagi"), Assistant Ohio Attorney General; and four unknown "John Doe" defendants. The complaint alleged violations of 42 U.S.C. 1983 regarding alleged denial of medical care for Appellant, an inmate at BCCI. All Appellees except Bagi are employed by the Ohio Department of Rehabilitation and Correction ("ODRC").

         {¶3} Appellant is incarcerated at BCCI for a stated prison term of seven years. During two fights with other BCCI inmates, on July 4, 2012 and July 18, 2012, Appellant sustained injuries to his left eye.

         {¶4} In his complaint Appellant raised a single claim of deliberate indifference based on denial of medical care. Appellant alleged that Appellees were deliberately indifferent to his serious medical issue, in violation of the Eighth Amendment, by failing to properly treat his eye injury and causing a delay in scheduling surgery and treatment of his eye, which in turn caused his condition to worsen. Appellant admitted in his complaint that after the first altercation resulted in the initial injury to the eye, he was taken to Ohio State University Hospital ("OSU") for emergency care and shortly thereafter to Franklin County Medical Center ("FMC") for follow up. However, Appellant contended that Appellees were deliberately indifferent to his medical needs because they failed to ensure that subsequent evaluations and hospital visits were undertaken in a timely manner. Due to this failure, his condition was exacerbated. Appellant also alleged that Appellees violated his rights by failing to expediently address his grievances and complaints relating to his eye injury.

         {¶5} Appellees failed to file an answer to the complaint. Instead, the Ohio Attorney General's ("AG") Office filed a motion to dismiss the complaint on Appellees' behalf. In the motion the AG noted that Appellant had filed two previous actions involving the same allegations about his medical care. On May 29, 2013, Appellant sued Croft, Parks and other ODRC officials for negligence. The case was dismissed for lack of subject matter jurisdiction. Appellee Bagi represented Appellees in that action. After that suit was dismissed, Appellant filed a second complaint against the same Appellees, this time adding Bagi as a named defendant. Raising the same allegations regarding delay and inadequacy of medical care, his second suit raised 42 U.S.C. 1983. His second suit was also dismissed by the trial court, because Appellant failed to satisfy the mandatory filing requirements of R.C. 2969.25 and 2969.26. Appellant was required to file an affidavit listing any previous actions filed by him, and did not.

         {¶6} In the instant action, Appellant filed a motion seeking summary judgment against all Appellees on July 30, 2014. Appellant also filed a response to the AG's motion to dismiss. On August 25, 2014, the AG sought to have the motion to dismiss be converted into a motion for summary judgment. On September 24, 2014, the trial court granted Appellees' motion for summary judgment based on res judicata. Appellant appealed that decision and on June 1, 2015, we reversed the judgment of the trial court and remanded the case for further proceedings.

         {¶7} On August 19, 2015, Appellees filed an answer to the complaint, denying that Appellees had been deliberately indifferent to Appellant's medical needs and raising a number of affirmative defenses, including qualified and absolute immunity. Appellee Bagi filed a motion for judgment on the pleadings on January 21, 2016. On that same day, the remaining Appellees filed another motion for summary judgment. Among their arguments, Appellees argued that the ODRC employees who assisted in the grievance process were not subject to 42 U.S.C. 1983 liability, because liability under 42 U.S.C. 1983 cannot be imposed by means of the doctrine of respondeat superior; and that there was no genuine issue of material fact that the Appellee physicians were not deliberately indifferent to Appellant's injury. Appellant filed his response to this motion several months later, on September 16, 2016.

         {¶8} On February 16, 2017, the trial court issued a judgment entry disposing of all pending matters, including: Appellee Bagi's motion for judgment on the pleadings; remaining Appellees' motion for summary judgment; a motion to compel discovery filed by Appellant; a motion by Appellees to strike Appellant's motion for summary judgment; a motion by appointed counsel for Appellant to either withdraw or be re-appointed; and Appellant's motion to continue representation by appointed counsel. The trial court granted Bagi's judgment on the pleadings and the attorney's motion to withdraw, and granted the remaining Appellees' motion for summary judgment. The trial court overruled Appellant's motion for summary judgment, motion to compel discovery, and motion to continue to receive appointed counsel. The court also overruled Appellees' motion to strike Appellant's motion for summary judgment.

         {¶9} Appellant filed this appeal asserting three assignments of error.



         {¶10} In his first assignment, Appellant contends the trial court erred in granting summary judgment in favor of the non-physician Appellees: Croft, Parks and Riehle. Appellant does not argue that the court erred in granting summary judgment to Appellee Bagi. Hence, Appellant has waived any arguments as they pertain to this Appellee and the trial court's decision to grant him summary judgment is affirmed.

         {¶11} Turning to the other three non-physician Appellees, in an appeal of a trial court's decision to grant summary judgment, an appellate court conducts a de novo review, using the same standards as the trial court set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before summary judgment can be granted, the trial court must determine that: (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most favorably in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party. Temple v. Wean United, Inc.,50 Ohio St.2d 317, 327, 364 ...

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