United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [Resolving ECF 82 and
Y. Pearson, United States District Judge
before the Court is Defendants' Motion for Summary
Judgment. ECF No. 82. Magistrate Judge Kathleen B.
Burke issued a Report (ECF No. 102) recommending
that the Court grant in part and deny in part Defendants'
Motion for Summary Judgment. Both parties object to the
Report and Recommendation. ECF Nos. 107 and
109. Plaintiff's objection is lodged as a Motion
to Alter or Amend Judgment. ECF No. 107. The Court has
reviewed the relevant portions of the record and the
governing law. For the reasons below, the Court adopts the
magistrate judge's Report and Recommendation in its
entirety and overrules the Parties' objections.
Factual and Procedural Background
Court adopts the magistrate judge's recitation of the
facts as follows:
On February 3, 2014, at approximately 1:00 a.m., Plaintiff,
an inmate at the CRC, was attacked by his cellmate. His
cellmate hit him in the face with a rock. Plaintiff was taken
to the prison medical department and was treated by staff
nurse Phillian. Plaintiff complained that bones in his face
were broken. Phillian assessed him with scratches and bites
on his face and hands, treated his wounds, and sent him to
segregation. On the way to segregation, Plaintiff vomited.
Once in his cell, Plaintiff pressed the emergency alarm
button and complained to the answering officer that his face
hurt and “showed him my fractures.” The officer
called a nurse, who had been present at Nurse Phillian's
exam. The second nurse told Plaintiff to lie down and go to
sleep. Plaintiff alleges that he had suffered a concussion.
Later that morning, Plaintiff told the pill call nurse that
he needed to see a doctor. She told him no because it was not
an emergency. Plaintiff later told the second shift nurse
that he needed to see a doctor and complained that he could
not eat due to pain and jaw dysfunction. The second shift
nurse gave him Ensure to drink and put him on the
doctor's schedule to be seen on February 4. Plaintiff did
not see the doctor, Defendant Dr. Cullen, until February 5.
Dr. Cullen felt Plaintiff's face and assessed him with
broken bones. Plaintiff asked to go to the hospital but Dr.
Cullen explained that x-rays would need to be taken first.
X-rays were taken on February 10. The radiologist assessed a
“probable” facial fracture and recommended
further xrays. Doc. 82-9, p. 17. A second set of
x-rays was taken on February 26, confirming a comminuted
fracture of Plaintiff's zygomatic arch. Doc. 94-8, p.
Thereafter, Plaintiff was scheduled for a CT scan, which
occurred on March 21, and a videoconference, also known as a
Telemed, with a plastic surgeon, which occurred on March 25,
50 days after Plaintiff was attacked. The plastic surgeon
advised that there would be complications addressing
Plaintiff's injuries so long after they occurred and
stated that he would have to talk to his colleagues before
On April 10, Plaintiff was transferred to TCI. There, he was
treated by Defendant Dr. Kline. He had additional CT scans
and plastic surgery consultations. He did not have surgery.
The last plastic surgeon he saw told him that, because he was
not seen immediately after the assault, surgery would be more
extensive (8 hours long instead of 1), he would require more
recovery time (8 months) and he might suffer permanent nerve
damage and excessive scarring. Plaintiff alleges that he
still has pain, dysfunction in his jaw, and an obvious
deformity in his facial bones. He claims that Drs. Cullen and
Kline were deliberately indifferent to his serious medical
needs because they did not send him to the hospital for
timely treatment, delayed his treatment, and let his broken
facial bones heal improperly. He alleges that Drs. Saul and
Eddy, medical directors for the Ohio Department of
Rehabilitation and Correction (“ODRC”), were
deliberately indifferent to his serious medical needs because
they refused to authorize the surgeries and treatment the
doctors and specialists recommended.
Plaintiff also alleges that he suffered an eye injury when he
was assaulted and that this injury was not properly treated.
He claims that he has been told that he will lose the vision
in his left eye completely.
ECF No. 102 at PageID#: 1182-84 (internal citation
and quotation omitted).
filed the instant lawsuit on December 4, 2015. ECF No.
1. Following the initial screening, the Court dismissed
the claims against Defendant Ohio Department of
Rehabilitation and Correction (“ODRC”). ECF
No. 4. The case was referred to the assigned magistrate
judge for general pretrial supervision. ECF No. 20.
Subsequently, the magistrate judge granted Defendants'
unopposed motion to dismiss the Corrections Reception Center
(“CRC”) as a named Defendant in the case. ECF
March 8, 2017, Plaintiff filed an Amended Complaint. ECF
No. 55. The Court dismissed the claims against
Defendants Dr. Rhigi, M. Phillians, D. Bankes, K. Winfield,
and L. Damcheu without prejudice. ECF No. 105.
Plaintiff's claims against Defendants Dr. James Kline,
Dr. Andrew Eddy, Dr. Kenneth Saul, and Dr. Craig Cullen
remain. ECF No. 55. Following discovery, Defendants
filed a motion for summary judgment. ECF No. 82.
Plaintiff responded (ECF No. 94) and Defendants
replied (ECF No. 96).
December 19, 2017, the magistrate judge issued a report in
which she recommended that, Defendants' motion for
summary judgment be granted in part and denied in part.
ECF No. 102. Specifically, the magistrate judge
recommends that Defendants' motion be denied as to
Plaintiff's claim that Defendants Drs. Cullen, Saul, and
Eddy were deliberately indifferent because they delayed
treatment of his facial fracture from February 5 or 6, 2014
until March 25, 2014. The magistrate judge found the delay
“was detrimental to [Plaintiff] because it made
corrective surgery more difficult and less likely to be
successful.” Id. at PageID#: 1181-82. The
magistrate judge also recommends that Defendants Drs. Cullen,
Saul, and Eddy are not entitled to qualified immunity on that
claim. Id. at PageID#: 1182.
filed timely objections to the report and recommendation. ECF
Nos. 107 and 109.
Standards of Review
objections have been made to a magistrate judge's report
and recommendation, the district court's standard of
review is de novo. Fed. R. Civ. 72(b)(3). A
must determine de novo any part of the magistrate
judge's disposition that has been properly objected to.
The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.
Id. Near verbatim regurgitation of the arguments
made in earlier filings are not true objections. When an
“objection” merely states disagreement with the
magistrate judge's suggested resolution, it is not an
objection for the purposes of this review. Cvijetinovic
v. Eberlin, 617 F.Supp.2d 620, 632 (N.D. Ohio 2008),
rev'd on other grounds, 617 F.3d 833 (6th Cir.
2010). Such “general objections” do not serve the
purposes of Fed. R. Civ. P. 72(b). See Jones v.
Moore, No. 3:04CV7584, 2006 WL 903199, at *7 (N.D. Ohio
April 7, 2006). “A party who files objections to a
magistrate [judge]'s report in order to preserve the
right to appeal must be mindful of the purpose of such
objections: to provide the district court ‘with the
opportunity to consider the specific contentions of the
parties and to correct any errors immediately.'”
Id. (citing U.S. v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981)).
judgment is appropriately granted when the pleadings, the
discovery and disclosure of materials on file, and any
affidavits show “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see
also Johnson v. Karnes,398 F.3d 868, 873 (6th Cir.
2005). The moving party is not required to file affidavits or
other similar materials negating a claim on which its
opponent bears the burden of proof, so long as the movant
relies upon the absence of the essential element in the
pleadings, depositions, answers to interrogatories, and
admissions on file. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The moving party must “show that
the non-moving ...