United States District Court, S.D. Ohio, Western Division
Barrett, J. Litkovitz, M.J.
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
Steven Jones, an inmate at the Richland Correctional
Institution proceeding pro se, brings this civil rights
action under 42 U.S.C. § 1983 alleging that defendant
Dr. Ahmed was deliberately indifferent to his
medical needs in violation of the Eighth Amendment during the
time of plaintiff s incarceration at the Southern Ohio
Correctional Facility ("SOCF"). (Docs. 13, 14).
This matter is before the Court on defendant's motion to
strike plaintiffs second response in opposition to
defendant's motion for summary judgment (Doc. 56) and
plaintiffs response in opposition (Doc. 57). This matter is
also before the Court on defendant's motion for summary
judgment (Doc. 47), plaintiffs response in opposition (Doc.
52), and defendant's reply memorandum (Doc. 54).
Motion to Strike (Doc. 56)
moves to strike plaintiffs supplemental memorandum (Doc. 55)
filed in response to his reply memorandum. (Doc. 56).
to strike are governed by Rule 12(f), which provides that a
court "may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter." Fed.R.Civ.P. 12(f). The Local Rules
for the Southern District of Ohio provide:
Opposing and Reply Memoranda. Any memorandum in opposition
shall be filed within twenty-one days after the date of
service of the motion. Failure to file a memorandum in
opposition may result in the granting of any motion that
would not result directly in entry of final judgment or an
award of attorneys' fees. Any reply memorandum shall be
filed within fourteen days after the date of service of the
memorandum in opposition. No additional memoranda beyond
those enumerated are permitted except upon leave of court for
good cause shown.
Ohio Local Civil Rule 7.2(a)(2) (emphasis added). Plaintiff
has neither sought leave of court nor shown good cause for
the filing of his supplemental memorandum in response to
defendant's reply. Accordingly, defendant's motion to
strike (Doc. 56) is GRANTED and plaintiffs
memorandum (Doc. 55) shall be STRICKEN from
the docket of this Court.
Facts on Summary Judgment
February 26, 2014, plaintiff informed SOCF medical staff that
he was experiencing a vision impairment in his left eye that
resulted in severe pain and suffering. (Verified Amended
Complaint, Doc. 14 at ¶ 7). Plaintiff had a follow-up
visit with a nurse practitioner the next day where he
complained that his eye condition had worsened to the point
of total blindness in his left eye. (Id. at ¶
8). Plaintiff states that he told a "shift captain"
that he was blind in his left eye and the shift captain had
immediately referred him to see the nurse practitioner.
nurse practitioner examined plaintiff and suspected that
plaintiff had a retinal detachment. The nurse practitioner
contacted defendant Dr. Ahmed, the Chief Medical Officer at
SOCF, to determine the appropriate course of action and
completed a consultation request for optometry. (Docs. 47-4
at 2; 47-6 at 2; Doc. 47-7 at 2). Based on the information
received from the nurse practitioner, Dr. Ahmed determined
that the suspected retinal detachment was not urgent and
instructed the nurse practitioner to complete the optometrist
referral request. (Declaration of Dr. Ahmed, Doc. 47-1 at
¶¶ 5, 6, 8). Plaintiff, however, states that the
nurse practitioner recommended to Dr. Ahmed that he
immediately be sent to urgent care at the Ohio State
University Hospital ("OSU") and that Dr. Ahmed
overruled the nurse practitioner's recommendation and
instead instructed the nurse practitioner to place plaintiff
on the list to see the rotating prison optometrist, Dr. Jared
Shoemaker. (Verified Amended Complaint, Doc. 14 at ¶ 8).
In the meantime, plaintiff alleges that a deputy warden at
SOCF sensed an urgency and called Dr. Shoemaker directly to
examine plaintiffs eye, even though Dr. Shoemaker only holds
appointments at SOCF every thirty days. (Id. at
¶ 9). However, defendant disputes this fact and contends
that Deputy Warden Cadogan, the Deputy Warden of Special
Services at the time, never made an emergency call to Dr.
Shoemaker. (Ahmed Declaration, Doc. 47-1 at ¶ 7;
Declaration of Dr. Shoemaker, Doc. 47-2 at ¶ 11;
Declaration of Anthony Cadogan, Doc. 47-11 at ¶ 7).
had an appointment with Dr. Shoemaker, the rotating prison
optometrist, on March 7, 2014. (Shoemaker Declaration, Doc.
47-2 at ¶¶ 3, 4, 6). Upon examining plaintiff, Dr.
Shoemaker suspected that plaintiffs macula was detached.
(Id. at ¶ 12). Plaintiffs drooping upper retina
would not allow Dr. Shoemaker to confirm whether plaintiffs
macula was off; therefore, he immediately referred plaintiff
to OSU for further examination out of caution rather than
urgency. (Id. at ¶¶ 12-13; Doc. 47-8 at
2). The OSU emergency ophthalmology examination findings
revealed: "left eye retinal detachment-superiorly which
is drooping down and obstructing view of posterior pole.
Likely macula off-but not viewable." (Doc. 47-8 at 2).
The discharge instructions from OSU stated: "Please
return to [Emergency Department] if symptoms worsen.
Ophthalmology will call the prison case manager for
scheduling of your surgery." (Id. at 3). Eleven
days later, on March 18, 2014, plaintiff underwent retinal
detachment surgery of the left eye. (Id. at 15).
on these facts, plaintiff brings an Eighth Amendment
deliberate indifference claim against Dr. Ahmed, alleging
that a delay in treatment of his eye and Dr. Ahmed's
decision not to immediately transfer him to OSU caused him to
"experience pain and suffering and remain sight-impaired
for an extended period of time." (Verified Amended
Complaint at ¶ 10).
Summary Judgment Standard
motion for summary judgment should be granted if the evidence
submitted to the Court demonstrates that there is no genuine
issue as to any material fact, and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986). A grant of summary judgment is proper if
"the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of
law." Satterfield v. Tennessee, 295 F.3d 611,
615 (6th Cir. 2002). The Court must evaluate the evidence,
and all inferences drawn therefrom, in the light most
favorable to the non-moving party. Satterfield, 295
F.3d at 615; Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio, A1S U.S. 574, 587 (1986); Little Caesar
Enters., Inc. v. OPPC, LLC, 219 F.3d 547, 551 (6th Cir.
trial judge's function is not to weigh the evidence and
determine the truth of the matter, but to determine whether
there is a genuine factual issue for trial.
Anderson, 477 U.S. at 249. The trial court need not
search the entire record for material issues of fact,
Street v. J.C Bradford & Co., 886 F.2d 1472 (6th
Cir. 1989), but must determine "whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law." Anderson, 477 U.S.
at 251-52. "Where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving
party, there is no 'genuine issue for trial.'"
Matsushita, 475 U.S. at 587. "In response to a
properly supported summary judgment motion, the non-moving
party 'is required to present some significant probative
evidence which makes it necessary to resolve the parties'
differing versions of the dispute at trial." Matson
v. Montgomery Cty. Jail Med. Staff Pers., 832 F.Supp.2d
846, 849 (S.D. Ohio 2011) (quoting Sixty Ivy St. Corp. v.
Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987)).
plaintiff is a pro se litigant, his filings are liberally
construed. Spotts v. United States, 429 F.3d 248,
250 (6th Cir. 2005) (citing Haines v. Kerner, 404
U.S. 519, 520 (1972) (stating that the Court holds pleadings
of pro se litigants to less stringent standards than formal
pleadings drafted by lawyers)); Boswell v. Mayer,
169 F.3d 384, 387 (6th Cir. 1999) (pro se plaintiffs enjoy
the benefit of a liberal construction of their pleadings and
filings). However, a party's status as a pro se litigant
does not alter his duty to support his factual assertions
with admissible evidence. Matson, 832 F.Supp.2d at
851-52 (citing Viergutz v. Lucent Techs. Inc., 375
Fed.Appx. 482, 485 (6th Cir. 2010)). When opposing a motion
for summary judgment, a pro se party cannot rely on
allegations or denials in unsworn filings. Id.
(citing Viergutz, 375 Fed.Appx. at 485).