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Sanchez v. Ohio Department of Rehabilitation and Correction

Court of Appeals of Ohio, Tenth District

June 25, 2019

Juan Sanchez, Plaintiff-Appellant,
Ohio Department of Rehabilitation and Correction, Defendant-Appellee.

          APPEAL from the Court of Claims of Ohio, No. 2017-00796JD

         On brief:

          Juan Sanchez, pro se.

         On brief:

          [Dave Yost], Attorney General, and Jeanna V. Jacobus, for appellee.


          SADLER, J.

         {¶ 1} Plaintiff-appellant, Juan Sanchez, appeals from a judgment of the Court of Claims of Ohio granting summary judgment to defendant-appellee, Ohio Department of Rehabilitation and Correction ("ODRC"). For the following reasons, we affirm the trial court.


         {¶ 2} Appellant, an inmate at the Chillicothe Correctional Institution ("CCI"), filed a complaint against appellee in September 2017 alleging that his second toe of his right foot had to be amputated due to "inappropriate medical care and diagnosis by the attending [n]urse [p]ractitioner" during the time period of March 20 through June 24, 2016. (Sept. 29, 2017 Compl. at 1-2.) Appellant attached to his complaint two exhibits. Exhibit A consists of appellant's "handwritten copy of his [m]edical [r]ecord" that "[o]utline[s] treatment from [his] medical file," and exhibit B consists of the decision of the chief inspector on appellant's administrative grievance appeal. (July 11, 2018 Mot. at 1; Compl. at 2.)

         {¶ 3} Pursuant to Civ.R. 53, the matter was referred to a magistrate, and a case management conference was held on December 20, 2017. The magistrate ordered appellant to furnish appellee the names of expert witnesses and a copy of their reports on or before March 30, 2018, and that no discovery would be permitted after May 25, 2018 without leave of the court.

         {¶ 4} On March 12, 2018, appellant filed a document entitled "Notice of Expert Witness and Request for Subpoena of Medical Records." Within it, appellant identified Mr. John Smiley, a retired nurse of 30 years, as his expert witness and indicates Mr. Smiley would be tasked with reviewing his medical records to determine what the proper course of medical treatment should have been to prevent the loss of his toe. Appellant noted "[o]ther expert witnesses may be employed as the situation requires to establish a case of deliberate indifference." (March 12, 2018 Notice at 1.) Appellant requested the clerk issue a subpoena to the health care administrator of CCI to produce medical records pertaining to his right foot and toe amputation.

         {¶ 5} On March 19, 2018, appellee filed a memorandum contra appellant's request for a subpoena arguing that, under Civ.R. 45, a subpoena is not the proper method for seeking discovery from a party and that, regardless, appellant's medical records could not be provided because the procedures set forth in R.C. 5120.21(C) were not followed.

         {¶ 6} On May 7, 2018, appellant filed a motion to stay the proceedings and request for an order for the return of all missing legal documents and a judicial notice of retaliation by appellee. (May 7, 2018 Mot. at 1.) Appellant contended yard officers took his legal papers and work during a "shake down" for contraband. (Ex. A, attached to May 7, 2018 Mot.)

         {¶ 7} Appellant filed answers to appellee's request for admissions on May 17, 2018. Appellant denied he did not have a doctor who will testify as an expert on his behalf that appellee was negligent in providing medical care, and stated:

This matter before the court is not a "negligent" case, but rather a case of "deliberate indifference." In addition, I have been in touch with a doctor, through the expert witness I provided in this matter. Said doctor will provide additional expert testimony once the medial records are sent to Mr. John W. Smiley. Until such time I cannot provide any additional information since such information is currently unknown to me.

(Answers to Req. for Admissions at 1.) Appellant likewise denied he did not send a copy of a report from any expert witness to appellee on or before March 30, 2018. To this question he answered:

The attorney for [appellee] prohibited any report to be send [sic] to it as counsel has unfairly denied the medical record requested to permit the expert witness to evaluate whether or not [appellee] acted with indifference to a known medical condition * * *. As [appellee] and their counsel are aware, a timely request for the medical records have been requested, whether correctly or not, the [appellee]'s attorney cannot deny that the records needed for the expert witness to evaluate were formally requested, and understood, notwithstanding the form the request was made in.

(Answers to Req. for Admissions at 1.)

         {¶ 8} On May 22, 2018, appellant filed a motion for discovery pursuant to Civ.R. 34 asking for all medical records and reports made by appellee's medical staff, The Ohio State University Hospital, and all other attendees involved with his medical treatment to be forwarded to Mr. Smiley to allow Mr. Smiley, and any other expert that he may employ, to produce a report. Appellee filed a memorandum contra again stating appellant had not followed the procedures required by R.C. 5120.21(C). Appellant filed a reply in which he states he has not sought to take personal possession of the medical records, but rather has repeatedly sought for the medical records to be directly sent to his expert before he would proceed with any next step in this case.

         {¶ 9} Appellee moved for summary judgment contending that although appellant provided a name of Mr. Smiley as his expert, he failed to comply with the court's case management order requiring his expert report to be filed on or before March 30, 2018. Appellee maintained that because appellant failed to submit an expert report as required by L.C.C.R. 8(E) in support of his allegations, he would be precluded from presenting any expert testimony at trial. Without any expert testimony, appellee argued, appellant would be unable to establish a prima facie case of medical negligence. Appellee additionally argued that deliberate indifference is a constitutional claim over which the Court of Claims lacks jurisdiction. Accordingly, appellee contended that no genuine issues of material fact remained as to appellee's liability. Appellee supported its motion with an affidavit of counsel averring appellant had not furnished a copy of any expert reports and a copy of appellant's responses to appellee's request for admissions.

         {¶ 10} On June 22, 2018, the magistrate entered an order denying appellant's previous motions for discovery and to stay proceedings; a judge reviewed and approved the order on July 18, 2018. Thereafter, appellant asked for and received an extension of time to file a response to summary judgment. On the day a response was due, appellant asked for a second extension of time, which the ...

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