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Simkins v. Grandview Hospital

United States District Court, S.D. Ohio, Western Division

July 26, 2019

RICHARD LEE SIMPKINS, III, Plaintiff,
v.
GRANDVIEW HOSPITAL, et al., Defendants.

         DECISION AND ENTRY ADOPTING IN PART AND REJECTING IN PART UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. #118); SUSTAINING IN PART AND OVERRULING IN PART THE PARTIES' OBJECTIONS THERETO (DOCS. ##121, 122, 124); SUSTAINING DEFENDANT DR. CHRISTOPHER MCINTOSH'S MOTION FOR LEAVE TO FILE OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. #131); SUSTAINING DEFENDANTS' RULE 12 MOTIONS (DOCS. ##17, 35, 51, 66, 68); SUSTAINING IN PART AND OVERRULING IN PART RULE 12 MOTIONS (DOCS. ##30, 36, 61); OVERRULING AS MOOT MOTION TO DISMISS OF DEFENDANT MONTGOMERY SHERIFF'S OFFICE SERGEANT BRIAN LEWIS TO PLAINTIFF'S AMENDED COMPLAINT (DOC. #56) AND PLAINTIFF'S MOTIONS TO STRIKE (DOCS. ##43, 58); OVERRULING PLAINTIFFS' MOTIONS TO STRIKE (DOCS. ##42, 57)

          WALTER H. RICE, UNITED STATES DISTRICT JUDGE

         This matter is currently before the Court on several Objections, Docs. ##121, 122, 124, to the Report and Recommendations of United States Magistrate Judge Michael J. Newman, Doc. #118. That Report and Recommendations concerned Rule 12 motions filed by numerous Defendants.[1]Also before the Court are several Motions to Strike filed by Plaintiff. Docs. ##42, 43, 57, 58.

         I.

         In 2017, pro se Plaintiff Richard Simkins III was injured in a motorcycle accident. This case arises out of his interactions with first responders and numerous medical personnel following that accident. He has asserted claims under 42 U.S.C. §§ 1985 and 1983. He also has asserted numerous state law claims, including medical claims, claims of assault and battery and intentional infliction of emotional distress. In all, Plaintiff sued nearly sixty defendants.

         The following Defendants have moved to dismiss Plaintiff's claims against them:

• City of Dayton, Chief Richard Biehl, Officer Andrew Lane, Joseph S. Wiley and Craig C. Wolfe (Doc. #17);
• Grandview Hospital, Kettering Health Network ("KHN"), Duane Achtermaun, Amy Alexander, Clinton Ball, Andrew Brochu, Susan Bullard, Laura Campbell, L. Kathryn Campbell, Elizabeth Coriell, Loredel Corneja, Liz Conell, Lindsey Dye, Lindsey Elliott, Archie Enoch, Sidarth Goyal, Nicole Farrow, Geoffrey Hahm, Nancy Henne, Grant Huish, David Jenkins, Rebecca Lewis, Michael McPheron, Mike McPheron, Enrique Medina, Jamie Peters, Michael Pillion, Shannon Ravine, Shelby Richardson, Jason Schofield, Michael Stafford, Curt Suite, Nicole Van Home, Jacinta Walker, and Erin Williams (collectively the "KHN Defendants") (Doc. #30);
• Dr. Ganesh Ghooray and Indiana Neuroscience Associates (Doc. #35);
• Sergeant Brian Lewis of the Montgomery County Sheriff's Office (Docs. ##36 and 56);
• Dr. Erich Muckala, Dr. Joseph Blake, Kettering Network Radiologists Inc., Dr. Geoffrey Hahm, Dr. Scott West and Jason Schofield, P.A. (Doc. #51);
• Dr. Christopher Mcintosh, Dr. Patience Lesueur, and Bobcat Emergency Physicians, LLC (Doc. #61);
• Dr. Paul Levy (Doc. #66); and
• Dr. Robin Wright (Doc. #68)

         On May 17, 2019, United States Magistrate Judge Michael J. Newman issued a Report and Recommendations, Doc. #118, recommending that the Court sustain in part and overrule in part Docs. ##17, 30, 36, 56, 61. He also recommended that the Court sustain in their entirety Docs. ##35, 51, 66, 68. More specifically, Magistrate Judge Newman recommended that:

• The Court dismiss all 42 U.S.C. 5 1985 claims because Plaintiff failed to allege class-based discrimination;
• The Court dismiss the 42 U.S.C. § 1983 individual-capacity claims against all Defendants except Lewis, Wiley, Wolfe and Jenkins;
• The Court dismiss the § 1983 official-capacity claims against all Defendants because Plaintiff failed to allege a policy or custom;
• The Court overrule the motions to dismiss the state-law medical battery claims brought against Doctors Mcintosh, Jenkins, Van Home and Enoch, and against KHN and Grandview Hospital;
• The Court dismiss the assault and battery claims against all Defendants except Lewis, Wiley and Wolfe;
• The Court dismiss the intentional infliction of emotional distress claims against all Defendants except Lewis, Wiley, Wolfe and Jenkins; and
• The Court dismiss all claims in which Plaintiff seeks relief under Ohio's criminal statutes.

         Magistrate Judge Newman noted that, for the vast majority of Defendants named in the Complaint, Plaintiff had failed to allege any specific facts that would give rise to a plausible cause of action against them. In the same judicial filing, Magistrate Judge Newman denied as futile Plaintiff's Second Motion for Leave to File an Amended Complaint, Doc. #87.

         Several parties have filed Objections to the Report and Recommendations. Defendants KHN, Grandview Hospital, Dr. Archie D. Enoch, Dr. David Jenkins and Dr. Nicole K. Van Home argue that Magistrate Judge Newman erred by declining to recommend dismissal of: (1) the "medical claims" directed at them; (2) the § 1983 claim against Dr. Jenkins; and (3) the intentional infliction of emotional distress claim against Dr. Jenkins. Doc. #121. In separately-filed Objections, Dr. Christopher Mcintosh also argues that Magistrate Judge Newman erred by declining to recommend dismissal of the "medical claims." Doc. #124.[2] Plaintiff Richard Simkins III, argues that Magistrate Judge Newman erred by recommending that the claims be dismissed with prejudice. Doc. #122.

         Defendant Robin A. Wright, M.D., filed a Response to Plaintiff's Objections, Doc. #126. Her Response was joined by the KHN Defendants, Doc. #128. Plaintiff then filed a Reply, Doc. #134. Plaintiff also filed Responses to the Objections of KHN, Grandview Hospital, Enoch, Jenkins and Van Home, Doc. #127, and to the Objections of Dr. Mcintosh, Doc. #129.

         II.

         When timely Objections to a Report and Recommendations on a dispositive motion are filed, the Court must review those Objections de novo. Fed. R. Civ. P. 72(b)(3). The Court will address the parties' Objections by topic.

         III.

         Several of the Defendants moved to dismiss Plaintiff's medical claims because he failed to attach an affidavit of merit to his Complaint as required by Ohio ...


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