United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
R. KNEPP II, UNITED STATES MAGISTRATE JUDGE.
January 10, 2016, Plaintiff Bennie Shough
(“Plaintiff”) filed a Complaint against
Defendants Management & Training Corp., MTC Medical, LLC,
Correctional Officer Skidmore, and John Does 1-4
(“Defendants”). (Doc. 1). On March 26, 2016,
Plaintiff moved to amend the complaint (Doc. 5-1 at 1-14),
which the Court marginally granted (Doc. 7). In the Amended
Complaint, Plaintiff alleges five counts, pursuant to 42
U.S.C. § 1983: (1) inadequate policies, procedures, and
training; (2) Eighth Amendment violations; (3) Fourteenth
Amendment violations; (4) negligence; and (5) punitive
damages. Id. Defendants filed an Answer.
(Doc. 8). Jurisdiction is proper under 28 U.S.C. § 1331.
The parties consented to the undersigned's exercise of
jurisdiction in accordance with 28 U.S.C. § 636(c) and
Civil Rule 73. (Doc. 12). Pending before the Court is
Defendants' Motion for Summary Judgment (Doc. 27), to
which Plaintiff filed opposition (Doc. 35), and Defendants
filed a reply (Doc. 41). Also before the Court are: (1)
Plaintiff's motion to strike the affidavit of Dr. Wilson
and for sanctions (Doc. 33), Defendants' response (Doc.
40) and notice of filing of original notarized affidavit
(Doc. 42), and Plaintiff's reply (Doc. 43); (2)
Plaintiff's unopposed motion to strike the affidavit of
Warden Turner (Doc. 37); (3) Plaintiff's unopposed motion
to supplement the record with his notarized affidavit (Doc.
38); and (4) Plaintiff's motion to strike hearsay
statements (Doc. 39), and Defendants' opposition
thereto(Doc. 44). For the reasons stated below,
Defendants' motion for summary judgment is granted in its
entirety and the case is dismissed with
case arises out of an incident on January 20, 2014,
the North Central Correctional Complex (“NCCC”),
the institution at which Plaintiff was then incarcerated.
(Amended Complaint, Doc. 5-1, at 4 & Plaintiff's
Affidavit, Doc. 38-1, at 1). Plaintiff suffered a right
shoulder injury “from an altercation by another inmate
and while being physically restrained and forced to the
ground by Correctional Officer Sgt. Skidmore.” (Amended
Complaint, Doc. 5-1, at 4). Officer McCurry intervened into a
verbal altercation between Plaintiff and another inmate by
placing Plaintiff into handcuffs. (Plaintiff's Affidavit,
Doc. 38-1, at 1-2). Officer McCurry shoved Plaintiff into
walls as he moved him away from the altercation. Id.
at 2. At some point during transport, Plaintiff
“squared up and planted [his] feet in order to stop
officer McMurray [sic] from shoving and pushing [him] into
the wall.” (Plaintiff's Affidavit, Doc. 38-1, at
2). Officer McCurry then “grabbed [Plaintiff] by the
handcuffs and forcefully slammed [Plaintiff] to the ground
causing [his] entire body weight to fall on [his] right
shoulder.” Id. Plaintiff felt a sharp pain in
his right shoulder and “[his] shoulder became
dislocated and came out of [sic] socket.” Id.;
see also (Amended Complaint, Doc. 5-1, at 4).
McCurry and an unknown correctional officer took Plaintiff
for medical treatment before taking him to
segregation. (Plaintiff's Affidavit, Doc. 38-1, at
2). Plaintiff complained of right shoulder and left thumb
injuries. (Doc. 36-1, at 3). A registered nurse examined him
and listed the objective physical findings, including a small
abrasion inside the right elbow, and assessed: had no signs
of symptoms of shortness of breath. Id. Plaintiff
was released to segregation. Id. A progress note,
also dated January 20, 2014, indicates Plaintiff was
prescribed ibuprofen. (Doc. 36-1, at 6).
the date of the incident, to Plaintiff's transfer to
another facility on March 26, 2014, he was housed in a
segregation unit. (Amended Complaint, Doc. 38-1, at 2-3).
While in segregation, Plaintiff verbally complained to
correctional officers that his shoulder was out of the
socket. (Plaintiff's Affidavit, Doc. 38-1, at 2). Two
days after the incident, on January 22, 2014, Plaintiff
submitted a Health Services Request, seeking treatment for
his shoulder. (Plaintiff's Affidavit, Doc. 38-1, at 2
& Doc. 36-1, at 1). The following day, he was evaluated
by Dr. Stein, given ibuprofen for pain, referred for x-rays,
and returned to segregation. (Plaintiff's Affidavit, Doc.
38-1, at 2 & Doc. 36-1, at 5).
January 27, 2014, Plaintiff had x-rays taken of his right
shoulder. (Plaintiff's Affidavit, Doc. 38-1, at 3 &
Doc. 36-1, at 7). Guillermo Zaldivar, M.D., interpreted the
results and his impression was: (1) “[n]o acute changes
noted”; (2) “[s]econd to third degree
acromioclavicular separation” (3) “[m]ost likely
remote, well-healed fracture at distal clavicle”; (4)
“[p]ossible remote posterior shoulder
dislocation”; and (5) “[t]he acromioclavicular
joint appears otherwise unremarkable”. (Doc. 36-1, at
Plaintiff completed another Health Services Request, received
on February 5, 2014, seeking treatment for his right
shoulder. (Doc. 36-1, at 2), and he received various
treatment for shoulder pain in February and March 2014 (Doc.
36-1, at 5-6, 8-11, 14-15).
NCCC, Plaintiff received “minimal medical
care” consisting of ibuprofen and Excedrin for
his shoulder injury. (Plaintiff's Affidavit, Doc. 38-1,
at 3-4 & Amended Complaint, Doc. 5-1, at 5). When he was
transferred to Mansfield Correctional Institution, he
received treatment for his shoulder that consisted of a
sling, Kenalog injections, Flexeril, muscle relaxers, and
shoulder exercises. (Plaintiff's Affidavit, Doc. 38-1, at
3-4); see generally Doc. 36-2 (medical records from
Mansfield Correctional Institution). As of the date his
Affidavit was filed, Plaintiff still experienced shoulder
pain and instances in which his shoulder would dislocate or
“pop” out of the socket. (Plaintiff's
Affidavit, Doc. 38-1, at 4).
to Strike Dr. Wilson's Affidavit and for Sanctions
filed a motion to strike the affidavit of Dr. Wilson,
alleging she is an undisclosed medical expert, and requests
sanctions against Defendants and counsel. (Doc. 33).
Defendants admit the “oversight”, but argues it
poses no prejudice to Plaintiff and, because of
Plaintiff's repeated failure to cooperate with discovery
and failure to provide expert support for his claims, the
Court should nonetheless consider the affidavit because it
would assist the Court. (Doc. 40).Defendants also argue
sanctions are not appropriate in this case. Id.
11, 2017, following a telephonic status conference, the Court
issued a scheduling order requiring Plaintiff's expert
reports be filed on or before June 3, 2017, and
Defendants' experts reports by July 24, 2017. (Doc. 26);
see also Fed. R. Civ. P. 26(a)(2) and (e)(2).
Neither party filed an expert report by the imposed deadlines
or requested additional time to do so. Defendants filed the
motion for summary judgment on August 28, 2017, with Dr.
Wilson's affidavit attached, identifying her as a medical
Rule 56 of the Federal Rules of Civil Procedure in relevant
(h) AFFIDAVIT OR DECLARATION SUBMITTED IN BAD FAITH If
satisfied that an affidavit or declaration under this rule is
submitted in bad faith or solely for delay, the court-after
notice and a reasonable time to respond-may order the
submitting party to pay the other party the reasonable
expenses, including attorney's fees, it incurred as a
result. An offending party or attorney may also be held in
contempt or subjected to other appropriate sanctions.
Fed. R. Civ. P. 56(h).
Court has the ability to enforce pretrial scheduling orders
through Civil Rule 37, Failure to Disclose or Supplement.
That rule states, in its entirety:
If a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless. In addition to or
instead of this sanction, the court, on motion and after
giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of
the orders listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37.
do not alleged the failure to identify Dr. Wilson was
substantially justified, rather admitted it was simply an
“oversight”. (Doc. 40, at 1). Plaintiff alleges
prejudice from this failure, however, “[h]armlessness .
. . is the key under Rule 37, not prejudice. The advisory
committee's note to Rule 37(c) ‘strongly suggests
that ‘harmless' involves an honest mistake on the
part of a party coupled with sufficient knowledge on the part
of the other party.'” Sommer v. Davis, 317
F.3d 686, 692 (6th Cir. 2003) (citing Vance v. United
States, 182 F.3d 920, 1999 WL 455435, at *5 (6th Cir.
1999) (unpublished table decision)). Here, Defendants allege
an honest mistake in failing to disclose Dr. Wilson, however,
Plaintiff had no prior knowledge of her testimony and no
opportunity to cross examine her. The failure to disclose
her, therefore, was not harmless. The Court grants
Plaintiff's Motion to Strike Dr. Wilson's affidavit.
(Doc. 33), and now turns to address whether sanctions are
appropriate in this case.
contends sanctions against both Defendants and defense
counsel are appropriate for the willful violation of Civil
Rules 26, 37, and 56. (Doc. 33, at 5-6). Defendants respond
Plaintiff's request for sanctions is “disingenuous
at best” due to his failure to respond to discovery
throughout the case-providing examples of such. (Doc. 40, at
decision to impose or not impose sanctions is within this
Court's discretion. First Bank of Marietta v.
Hartford Underwriters Ins. Co., 307 F.3d 501, 510 (6th
Cir. 2002); see also Fed. R. Civ. P. 11(b)(1)-(3).
Here, while Plaintiff's alleged lack of cooperation in
discovery, see Doc. 40-1, does not excuse
Defendants' failure to disclose Dr. Wilson as an expert,
it certainly suggests Plaintiff has engaged in similar
behavior that could potentially expose him to sanctions as
well. The Court, however, declines to issue sanctions, and
rather will proceed with adjudication of the matter.
to Strike Warden ...