United States District Court, S.D. Ohio, Eastern Division
Brandon J. Ashdown, Plaintiff,
Tim Buchanan, et al., Defendants.
L. GRAHAM UNITED STATES DISTRICT JUDGE.
a civil rights action under 42 U.S.C. §1983 brought by
plaintiff Brandon J. Ashdown against Tim Buchanan, the warden
of Noble Correctional Institution (“NCI”),
Charles Bradley, the warden of the Franklin Medical Center
(“FMC”), Vanessa Sawyer, alleged to be the
“head” of the medical unit at NCI, and unnamed
FMC transport staff and FMC doctors and staff. Plaintiff
alleged that his Eighth Amendment rights were violated by the
acts of the defendants while he was being transported on June
5, 2015, from The Ohio State University Medical Center to FMC
and from FMC to NCI following surgery for his inguinal
hernia. By order dated February 2, 2018, the court dismissed
the named defendants as parties, but permitted the case to
proceed in regard to unnamed Franklin Medical Center
transport officers, doctors and staff. On March 29, 2018, the
Ohio Attorney General's Office entered a limited
appearance on behalf of the State of Ohio, which is an
interested party due to the fact that state employees and
agents have been sued as unnamed defendants. Doc. 36.
made discovery requests to the State of Ohio, seeking to
learn the identity of the unnamed defendants. When he failed
to receive a response, plaintiff moved for an order directing
the State of Ohio to produce documents pertaining to the
alleged events. In its response to the motion, the State of
Ohio disclosed the identity of Dr. David Weil, the FMC Chief
Medical Officer during the relevant time period. The State of
Ohio also noted that its efforts to obtain information
concerning transport staff were delayed when the contact
person for discovery information was replaced and discovery
requests had to be reinitiated. See Doc. 44. By
order dated July 25, 2018, the magistrate judge granted the
motion to compel. The magistrate judge found that the State
of Ohio's attempts to partially meet plaintiff's
discovery requests were woefully inadequate, and ordered the
State to respond to plaintiff's discovery requests within
thirty days of the date of the order.
August 24, 2018, the State of Ohio filed a combined response
to the discovery order and a motion to dismiss the complaint
for failure to exhaust administrative remedies. See
Doc. 48. The state submitted the affidavit of Jill Glispie,
Correctional Warden's Assistant at FMC. Doc. 48-1. Ms.
Glispie stated that the FMC shift records would not show
which officers transported plaintiff to the hospital, and
would only identify the names of staff who worked that shift.
In addition, the June 2015 shift rosters were not located.
Affid., Para. 8(a). Ms. Glispie further stated that although
the Ohio Attorney General's Office requested infirmary
logs, such logs were only used for inmates housed at FMC, not
transitional inmates such as plaintiff. Affid., Para. 8(b).
Ms. Glispie also noted that FMC did not have a chief
transport officer, and that, although there are receiving and
discharge officers who track inmates in and out of FMC with
an electronic log, the logs for 2015 were inadvertently
deleted when FMC switched computer servers. Affid., Para.
8(c). Ms. Glispie reported that there are no records at FMC
that identify the officers who transported plaintiff to and
from the hospital on June 5, 2015. Affid., Para. 8(d). No
evidence has been presented to refute this information.
January 28, 2019, plaintiff filed a document which included a
motion for default judgment pursuant to Fed.R.Civ.P. 37 as a
sanction for the State of Ohio's failure to provide him
with the requested discovery, as well as a response to the
State of Ohio's motion to dismiss. See Doc. 60.
By order filed on May 30, 2019, the State's motion to
dismiss was converted to a motion for summary judgment, which
is still pending. This matter is now before the court on the
June 26, 2019, report and recommendation of the magistrate
judge recommending that plaintiff's motion for default
judgment be denied without prejudice.
report specifically advised the parties that objections to
the report and recommendation were due within fourteen days,
and that the failure to object to the report and
recommendation “will result in a waiver of the right to
de novo review by the District Judge and waiver of
the right to appeal the judgment of the District
Court.” Doc. 72, p. 6. The time period for filing
objections to the report and recommendation has expired, and
no objections to the report and recommendation have been
court agrees that the motion for default judgment should be
denied. However, the court disagrees that the motion should
be denied without prejudice to being renewed depending on the
outcome of the summary judgment motion. Rather, the court
will address the merits of the motion based on the current
court has considered the factors identified in Harmon v.
CSX Transp. Inc., 110 F.3d 364, 366-67 (6th Cir. 1997).
Although the magistrate judge found that the State's
initial response to plaintiff's discovery requests was
inadequate, there is no evidence that the State's delay
in responding to those requests was due to willfulness, bad
faith or fault. There has been no showing of a deliberate
failure to cooperate in discovery which prejudiced the
plaintiff. Neither the State of Ohio nor the unnamed
defendants were warned that a failure to cooperate could lead
to the entry of default judgement, an extreme sanction of
last resort. See Patton v. Aerojet Ordnance Co., 765
F.2d 604, 607 (6th Cir. 1985). Aside from the order
compelling discovery, less drastic sanctions have not been
employed. The entry of default judgment as a sanction under
Rule 37 is not warranted in this case.
issues aside, the court notes that Dr. Weil has not been
served, and that the unnamed defendants have not been
identified or served. The State of Ohio has entered a limited
appearance and is not named as a party defendant in this
case. As the State of Ohio argued in its response, even if
the State of Ohio is named as a party in the future, it would
be entitled to absolute immunity from suit under the Eleventh
Amendment. The entry of default judgment against the State of
Ohio, Dr. Weil and the unnamed defendants is inappropriate on
these grounds as well.
discussed above, the court adopts the report and
recommendation (Doc. 72) in part. Plaintiff's motion for