Al-Zerjawi v. Kline

          MEMORANDUM OF OPINION AND ORDER [Resolving ECF 82 and 107]

          Benita Y. Pearson, United States District Judge

         Pending 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.

         I. Factual and Procedural Background

         The 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. 2.

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 performing surgery.

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).

         Plaintiff 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 No. 51.

         On 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).

         On 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.

         Parties filed timely objections to the report and recommendation. ECF Nos. 107 and 109.

         II. Standards of Review

         A. Objections

         When 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 district judge:

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)).

         B. Summary Judgment

         Summary 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 ...