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Gambino v. Pugh

Court of Appeals of Ohio, Seventh District, Mahoning

March 23, 2018

DAVID A. GAMBINO, PLAINTIFF-APPELLANT,
v.
MICHAEL PUGH, ET AL., DEFENDANTS-APPELLEES.

          Civil Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 14 CV 3227

          For Plaintiff-Appellant David Gambino Pro-se

          For Defendants-Appellees Attorney Timothy Bojanowski

          JUDGES: Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Carol Ann Robb

          OPINION

          DONOFRIO, J.

         {¶1} Plaintiff-appellant, David Gambino, appeals the judgment of the Mahoning County Court of Common Pleas granting summary judgment on his claim for negligence in favor of defendants-appellees, Michael Pugh, Captain Austin, Officer Stump, Officer Bruno, Officer Johnson, Officer Sean Daughtery, and "Medical Proxy for David A. Gambino." Additionally, appellant seeks remand of this action along with an order from this Court granting him a court appointed attorney.

         {¶2} This is a second appeal from this case. The previous appeal was heard by this Court in Gambino v. Pugh, 7th Dist. No. 15 MA 0138, 2016-Ohio-7217. At all times relevant, appellant was a federal inmate incarcerated at the Northeast Ohio Correctional Center (NOCC) in Youngstown, Ohio. At all times relevant, appellees were all employees at the NOCC.

         {¶3} Appellant initially filed what appeared to be a civil rights complaint in the U.S. District Court for the Northern District of Ohio in Gambino v. Pugh, N.D. Ohio No. 4:13CV817, 2013 WL 5519719 (the federal action). In the federal action, appellant filed a complaint alleging five claims which were all dismissed by the court. However, the court in the federal action held that appellant's claims based on Ohio law were dismissed without prejudice.

         {¶4} Appellant then filed this action raising six claims, many of which were identical claims raised in the federal action. Both the federal action and the instant matter concerned treatment appellant received while he was an inmate at the NOCC. Specifically, appellant argued that he was forced to "hold it, " referring to his bowel movements, for a period of approximately six hours because his requests for toilet paper were continually denied. Appellant alleged the delay of receiving toilet paper forced him to hold his bowel movements and subsequently caused him severe rectal damage. In a separate incident, appellant also alleged that correction officers intentionally caused him harm by squeezing or hitting his genitals.

         {¶5} Appellees filed a motion to dismiss appellant's claims on the basis that they were barred by res judicata due to the federal action, they failed to state a claim upon which relief could be granted, or the claims were time barred. The trial court granted appellees' motion and dismissed all of appellant's claims. Appellant appealed the dismissal of all of his claims to this Court.

         {¶6} This Court reversed the trial court's dismissal of appellant's first claim, which appeared to be a claim for negligence concerning the incident where appellant was required to "hold it." Gambino v. Pugh, 2016-Ohio-7217 at ¶ 19. This Court held that appellant's negligence claim was not barred by res judicata and "minimally" stated a claim upon which relief could be granted. Id. at ¶ 21. The case was then remanded back to the trial court to proceed on appellant's sole remaining negligence claim.

         {¶7} Upon remand, appellant began arguing to the trial court that he was being denied equal access to the court. Specifically, appellant argued his access to the court was impaired because he was not provided with various materials from the clerk of courts, his legal mail was improperly addressed, and that he was unable to access: the Ohio Revised Code, the Ohio Rules of Civil Procedure, or Ohio case law as he was a federal prisoner.

         {¶8} In a judgment entry dated November 30, 2016, the trial court ordered appellees to respond to appellant's claim that he was being denied equal access to the court. Appellees responded arguing: (1) while the U.S. Supreme Court has held that access to a law library is not a constitutionally protected right, (2) appellant had access to a law library at his new prison located in Fort Dix, New Jersey, and (3) appellant still had access to the court as he was able to file numerous pleadings, motions, and notices.

         {¶9} Appellant eventually sent requests for production of documents to appellees seeking numerous items including, but not limited to: various policy documents of the NOCC, diagrams of the NOCC, grievances filed against appellees, all electronic communications to and from some of appellees, disciplinary reports, appellant's medical records, and all video and audio recordings which depicted appellant. Appellees responded to appellant's requests for production of documents. But in "Motions for 60 day Extension of Discovery and Trial" dated May 10, 2017, appellant argued that appellees failed to produce approximately 90% of the discovery he requested. The only specific pieces of discovery that were lacking that appellant took issue with in said motions were an injury report supposedly drafted pursuant to the Prison Rape Elimination Act (PREA) concerning appellant, medical documents ...


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