Court of Appeals of Ohio, Seventh District, Mahoning
DAVID A. GAMBINO, PLAINTIFF-APPELLANT,
MICHAEL PUGH, ET AL., DEFENDANTS-APPELLEES.
Appeal from Court of Common Pleas of Mahoning County, Ohio
Case No. 14 CV 3227
Plaintiff-Appellant David Gambino Pro-se
Defendants-Appellees Attorney Timothy Bojanowski
JUDGES: Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Carol
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.
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.
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.
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.
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.
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.
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
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.
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 ...