[Cite as Magby v. Sloan, Warden, 2019-Ohio-4317.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
RONALD MAGBY, : OPINION
Plaintiff-Appellant, : CASE NO. 2019-A-0032 - vs - :
BRIGHAM SLOAN, WARDEN, et al., :
Defendants-Appellees. :
Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2018 CV 0608.
Judgment: Affirmed in part, reversed in part, and remanded.
Ronald Magby, pro se, PID# A692-721, Lake Erie Correctional Institution, 501 Thompson Road, P.O. Box 8000, Conneaut, OH 44030 (Plaintiff-Appellant).
Timothy J. Bojanowski, Struck Love Bojanowski & Acedo, PLC, 3100 West Ray Road, Suite 300, Chandler, AZ 85226 (For Defendants-Appellees, Gillespie, Chief Medical Officer; L. Witt, Medical Administrator; Pritchard, Deputy Warden; Reberra, Medical Director; Swanson, Advanced Level Provider; and Brigham Sloan, Warden).
Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor, Columbus, OH 43215, and Mindy Worly, Assistant Attorney General, Criminal Justice Section, Corr. Unit, 150 East Gay Street, 16th Floor, Columbus, OH 43215 (For Defendants-Appellees, Cheryl Williams, State Medical Director; Gary Mohr, Director; and Kimberly Clipper, Warden).
Gina DeGenova Bricker, Assistant Prosecutor, 21 West Boardman Street, 5th Floor, Youngstown, OH 44503 (For Defendant-Appellee, Jerry Greene, Sheriff Mahoning County Justice Center).
MATT LYNCH, J.
{¶1} Plaintiff-appellant, Ronald Magby, appeals the January 31, 2019 Judgment Entry of the Ashtabula County Court of Common Pleas, dismissing Magby’s
Complaint for, inter alia, injunctive relief and restraining order. For the following
reasons, we affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
{¶2} On December 30, 2016, Magby received an aggregate eight-year prison
sentence following his convictions in Mahoning County Court of Common Pleas Case
No. 2016 CR 00038, for the following offenses: Aggravated Arson, Domestic Violence,
and Attempted Murder. Additional counts for Kidnapping and Felonious Assault were
merged prior to sentencing. Magby’s convictions were affirmed on appeal in State v.
Magby, 7th Dist. Mahoning No. 17 MA 0006, 2019-Ohio-877.
{¶3} On September 19, 2018, Magby filed a Complaint for Preliminary
Injunction/(TRO) Temporary Restraining Order against defendants-appellees Brigham
Sloan, Warden of the Lake Erie Correctional Institution; Gary Mohr, former Director of
the Ohio Department of Corrections and Rehabilitation; Cheryl Williams, State Medical
Director; Kimberly Clipper, Warden of the Lorain Correctional Institution; Jerry Greene,
Mahoning County Sheriff; L. Witt, Medical Administrator at Lake Erie Correctional
Institution; Mr. Pritchard, Deputy Warden at Lake Erie Correctional Institution; Ms.
Swanson, Advanced Level Provider at Lake Erie Correctional Institution; Ms. Reberra,
Medical Director at Lake Erie Correctional Institution; and Ms. Gillespie, Chief Medical
Officer at Lake Erie Correctional Institution.
{¶4} The Complaint sought a temporary restraining order, immediate medical
attention/surgery, an order for discovery, declaratory judgment, compensatory/punitive
damages, the appointment of counsel, and a demand for jury trial. Magby asserted his
2 claim to injunctive relief “for immediate medical attention/surgery due to the Claim
Defendants’ Deliberate Indifference to his serious medical needs from an
Inadvertment [sic] failure to Act/provide adequate medical Care proscribed [sic] by the
Eighth Amendment of the United States Constitution as cruel and unusual
punishment.”
{¶5} The Complaint alleged, in relevant part, as follows:
Plaintiff suffered an injury prior to his incarceration that involved Charcoal lighter fluid on November 24, 2015. After being rushed to St. Elizabeth Hospital, Plaintiff was life flighted to Akron’s Burn Unit in Akron, Ohio. Plaintiff was treated and admitted in as a patient with third degree burns.
Thirty days later, Akron police came to the Hospital on December 23, 2015. While there, Mahoning County extradited Plaintiff back to Youngstown for Criminal Charges related to his injuries sustained. There were some visits back and forth to the Hospital up in Akron concerning Plaintiff’s injuries. During those times, Plaintiff was receiving treatment. While there, Dr. Andrews examined Plaintiff and made a determination that Plaintiff will need surgery. However, that never occurred due to Court dates and Judge Shirley Christian not wanting to hear about Plaintiff’s scheduled Doctor appointments for treatment. The Judge denied the Doctor[’s] Orders.
The same was done after Plaintiff was sentenced, convicted, and transported to (ODRC) Lorain Correctional Institution where nothing was done [as] far as immediate medical treatment/surgery, despite the fact that Plaintiff had sent in kites to medical requesting treatment/surgery and nothing was done. After 2 months of being in Lorain Correction(s) Plaintiff was transported to the Lake Erie Correctional Institution as his parent Institution. While here at Lake Erie, nothing is being done [as] far as medical treatment/surgery, just Cleaning and Bandaging. The State[’s] Medical Monitor visited with Plaintiff, and took pictures of his injury that display growing pathogen(s) behind the ears, neck, chest and back area, causing Plaintiff severe pain and suffering. Nothing is being done to provide Plaintiff with medical treatment/surgery, despite Plaintiff’s many efforts in contacting Medical through the Kite system.
3 {¶6} On October 16, 2018, Greene filed a Motion to Dismiss, pursuant to Civil
Rule 12(B)(6).
{¶7} On October 22, 2018, Clipper and Mohr filed a Motion for Judgment on the
Pleadings, pursuant to Civil Rule 12(C).1
{¶8} On November 28, 2018, Sloan, Witt, Pritchard, Swanson, Reberra, and
Gillespie filed a Motion to Dismiss Plaintiff’s Complaint, pursuant to Civil Rules 8 and
12(B)(6).
{¶9} On December 31, 2018, Magby filed a Motion Requesting for the Court to
Move Forward with the Order to Show Cause/Temporary Restraining Order &
Appointment of Counsel. Magby’s Motion sought “immediate action” that he be
“transported to an outside hospital to be treated and examined by qualified
doctors,” but was otherwise unresponsive to the Motions filed by the defendants.
{¶10} On January 31, 2019, the trial court entered a Judgment Entry granting
the defendants’ Motions and denying the Complaint.
{¶11} With respect to Greene’s Motion, the trial court found: Magby “failed to set
forth the elements of any recognizable cause of action against Defendant Sheriff
Greene”; “if Plaintiff was alleging a Section 1983 claim on the part of Sheriff Greene, the
purported claim would be barred by the applicable two-year statute of limitations”; and
“if the claim against Sheriff Greene was not barred by the statute of limitations or the
case was not dismissed for failure to state a claim, it appears the proper venue would
be the Mahoning County Court of Common Pleas rather than this court due to the
events and issues Plaintiff references occurring in Mahoning County and with the
1. Although Williams was not identified as a movant in the Motion, the record indicates that she is and has been represented by the same attorney as the other “State Defendants” (Clipper and Mohr) both before the trial court and on appeal.
4 Mahoning County Sheriff.”
{¶12} With respect to Clipper and Mohr’s Motion, the trial court found: Magby
“has failed to give a factual rendering of what these Defendants have done” or “plead
the elements of a deliberate indifference claim”; and “Plaintiff has not attached an
affidavit of prior civil actions in compliance with [R.C.] 2969.25[A] nor has he attached
an affidavit stating whether a grievance was filed relating to each of his claims and the
date a decision was received [in compliance with R.C. 2969.25(A) and (C)].”
{¶13} With respect to Sloan, Witt, Pritchard, Swanson, Reberra, and Gillespie’s
Motion, the trial court found: the “Complaint is devoid of facts that establish conduct on
the part of any Defendant for which they may be held liable”; inasmuch as the
Complaint “indicates Plaintiff is receiving medical care and treatment for his
wounds/injuries” but “is not satisfied with the medical treatment he is receiving” and “not
being provided with surgery that he believes is necessary,” Magby’s claims are based
on medical malpractice; and Magby “has not met the requirements of Civ.R. 10(D)(2) for
medical malpractice actions contemplated in O.R.C. 2305.113.”
{¶14} On March 1, 2019, Magby filed a Notice of Appeal. On appeal, Magby
raises the following assignments of error:
{¶15} “[1.] The trial court abused its discretion when it denied appellant Magby’s
preliminary injunction/(TRO) restraining order without first conducting a hearing as
mandated by procedure in an injunction action pursuant to Ohio Revised Code
§3767.04.”
{¶16} “[2.] The trial court abused its discretion and violated appellant Magby’s
Fourteenth Amendment right to due process of law and its equal protections when it
5 failed to address his Complaint for a preliminary injunction/(TRO) Temporary
Restraining Order after appellant demonstrated and satisfied the criteria set forth in
Ohio Civ.R.P. 65(A)(B) by showing a serious medical need attaching to the Complaint,
an affidavit detailing his injuries and gruesome color photographs in support.”
{¶17} “[3.] The trial court abused its discretion and violated appellant Magby’s
Fourteenth Amendment right to Due Process and Equal Protection of the law when it re-
cast appellant’s Complaint for Preliminary Injunction/(TRO) Temporary Restraining
Order into that of a medical malpractice complaint requiring an affidavit of merit contrary
to the criteria set forth in an injunction action that only requires facts shown by affidavit
or by verified complaint based on an appellant’s own belief sufficient enough to show
cause for a hearing.”
{¶18} Preliminarily, we address the argument raised by defendants Mohr,
Clipper, and Williams, that Magby’s failure to challenge the lack of compliance with the
mandatory requirements of R.C. 2969.25 and R.C. 2969.26 is sufficient to affirm the
dismissal of the Complaint as to these defendants. We disagree.
{¶19} “At the time that an inmate commences a civil action or appeal against a
government entity or employee, the inmate shall file with the court an affidavit that
contains a description of each civil action or appeal of a civil action that the inmate has
filed in the previous five years in any state or federal court.” R.C. 2969.25(A). Likewise,
“if the inmate’s claim in the civil action * * * is subject to the grievance system for the
state correctional institution, jail, workhouse, or violation sanction center in which the
inmate is confined, the inmate shall file both * * * [a]n affidavit stating that the grievance
was filed and the date on which the inmate received the decision regarding the
6 grievance” and “[a] copy of any written decision regarding the grievance from the
grievance system.” R.C. 2969.26(A)(1) and (2).
{¶20} Attached to Magby’s Complaint are two affidavits. One contains the
following averment: “I Have filed the following Civil action with in the last five years: •
Notice of Appeal in Case No. 17-MA-0006 filed 1/13/17 stemming from Criminal Case
No. 16CR38 from Judge Christian, Shirley J.”
{¶21} The other affidavit avers: “I, affiant asserts, since my incarceration in
2015, I have been trying to seek medical attention to resolve some of the issues that
have gotten wors[e] by utilizing Kite and Grievance system inside the prison(s) I was
and remain housed in.” Attached to the affidavit are kites, inmate requests/complaints,
informal complaint resolutions, and health service requests submitted between March
2017 and August 2018. These documents contain both dates and dispositions.
{¶22} Magby’s Complaint satisfies the requirements of R.C. 2969.25 and R.C.
2969.26 and, to the extent the trial court based its dismissal of the Complaint on the
failure to comply with these statutes, its ruling is in error. The issue of the Complaint’s
compliance with R.C. 2969.25 and R.C. 2969.26, however, is not dispositive of this
appeal as other grounds exist for granting the defendants’ Motions.
{¶23} Magby’s Complaint alleges the violation of his Eighth Amendment right
proscribing the infliction of cruel and unusual punishments. The United States Supreme
Court has held “that deliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain,’ * * * proscribed by the Eighth
Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976), citing Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859
7 (1976). Thus, “deliberate indifference to a prisoner’s serious illness or injury states a
cause of action under § 1983” regardless of “whether the indifference is manifested by
prison doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally interfering with
the treatment once prescribed.” (Footnotes omitted.) Id. at 104-105. However, “a
complaint that a physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under the Eighth
Amendment” unless the prisoner alleges “acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.” Id. at 106.
{¶24} A valid claim for an Eighth Amendment violation based on deliberate
indifference contains an objective and a subjective component. In order to satisfy the
objective element, the prisoner must demonstrate or, in the present circumstances,
allege, the existence of a “‘sufficiently serious’ medical need’,” i.e., a medical condition
“diagnosed by a physician as mandating treatment” or one that is “so obvious that even
a layperson would easily recognize the necessity for a doctor’s attention.” (Citations
omitted.) Mattox v. Edelman, 851 F.3d 583, 597-598 (6th Cir.2017). The subjective
element requires that the prison official have “a sufficiently culpable state of mind in
denying medical care.” (Citation omitted.) Id. It must be alleged that the official “knows
of and disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825,
837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The United States Supreme Court has
emphasized that “an official’s failure to alleviate a significant risk that he should have
8 perceived but did not, while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment [i.e, support a deliberate indifference claim].”
Id. at 838.
{¶25} “In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted (Civ.R. 12(B)(6)), it must appear beyond doubt from the
complaint that the plaintiff can prove no set of facts entitling him to recovery.” O’Brien v.
Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975),
syllabus; Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988)
(“[i]n construing a complaint upon a motion to dismiss for failure to state a claim, we
must presume that all factual allegations of the complaint are true and make all
reasonable inferences in favor of the non-moving party”). Also, “the proper response to
a failure to comply with Civ.R. 10(D)(2) is a motion to dismiss filed under Civ.R.
12(B)(6),” although such dismissal is otherwise than upon the merits. Fletcher v. Univ.
Hospitals of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 21.
{¶26} “An order granting a Civ.R. 12(B)(6) motion to dismiss is subject to de
novo review.” Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814
N.E.2d 44, ¶ 5.
{¶27} In his first assignment of error, Magby claims he was entitled to an
injunction hearing pursuant to R.C. 3767.04(B)(1), which provides “[a] hearing shall be
held on the application [for a temporary injunction] within ten days after the filing.” The
statute, however, properly applies to actions to abate nuisances pursuant to R.C.
3767.03, not Section 1983 actions.
{¶28} The first assignment of error is without merit.
9 {¶29} The disposition of Magby’s second and third assignments of error is
interrelated and these assignments will be considered jointly. In the second assignment
of error, Magby claims the trial court erred by not addressing his claims for injunctive
relief. In the third assignment of error, he claims the court erred by treating his claims
as claims for medical malpractice, and then dismissing them for failing to comply with
Civil Rule 10(D)(2). Inasmuch as Magby’s Complaint states a claim for violation of the
Eighth Amendment based on deliberate indifference, the court erred in treating the
Complaint as one for medical malpractice and dismissing it without further consideration
of its merits.
{¶30} Magby’s Complaint expressly asserts that his claims are based on the
defendants’ “deliberate indifference to [his] serious medical needs proscribed [sic]
by the Eighth Amendment.” He describes third degree burns on his ears, neck, chest,
and back as swelling, discharging fluids, and seeping blood. The wounds are “pulling
tighter.” These conditions cause him severe pain and suffering. Magby further alleges
the existence of pathogens (disease-causing bacteria or virus) in the wounds. He
claims that he was instructed by a “Dr. Andrews” that surgery is warranted: if the
pathogens are not removed, he runs a risk of developing cancer.
{¶31} Magby claims the defendants “failed to Intervene and provide [him] with
the necessary medical attention” despite his efforts to bring his condition to the attention
of prison officials by kites and the obvious nature of his wounds. The kites, inmate
requests/complaints, informal complaint resolutions, and health service requests
attached to the Complaint attest that his complaints were made known to at least some
of the defendants.
10 {¶32} Construing these allegations as true and the inferences to be drawn
therefrom in Magby’s favor, the Complaint fairly states a deliberate indifference claim,
satisfying the objective element of serious physical harm and the subjective element of
a culpable state of mind in denying medical care, at least with respect to certain
defendants.
{¶33} We note that a deliberate indifference claim is properly an action under
Section 1983, to which Civil Rule 10(D)(2)’s Affidavit of Merit requirement does not
apply. “On its face, Ohio Civ.R. 10(D)(2) does not apply to the Plaintiffs’ § 1983 claims
because those claims allege violations of [their] rights as guaranteed by the United
States Constitution, and do not raise medical claims under Ohio law. Neither Ohio nor
any other State may alter or negate the rights protected by the United States
Constitution or modify the means by which Congress provided for the enforcement of
those rights.” Muncy v. Siefker, N.D. Ohio No. 3:12cv2301, 2013 WL 1284233, *3;
Johnson v. Muskingum Cty. Sheriff’s Dept., S.D. Ohio No. 2:13-cv-0025, 2013 WL
5923111, *4 (cases cited).
{¶34} Magby has only pled valid claims, however, against those defendants who
it is alleged were actually aware of his serious medical need. “Critical to the subjective
inquiry is the requirement of specific evidence that each individual defendant acted with
deliberate indifference.” Ruiz-Bueno v. Scott, 639 Fed.Appx. 354, 359 (6th Cir.2016).
The only defendants against whom such allegations are raised are the medical
providers (Witt, Swanson, Reberra, Gillespie, and Williams). These individuals have
been shown to have had direct contact with Magby and/or addressed complaints raised
by Magby through kites and other communications. No such allegations apply to the
11 defendants who are administrative officials (Sloan, Pritchard, Mohr, Clipper, and
Greene). These individuals are alleged to be responsible in various ways for inmate
safety and health care, but they are not otherwise specifically associated with Magby’s
safety and health care. Not only does the Complaint fail to satisfy the subjective
element of a valid claim as to these defendants, but the principle of vicarious liability is
not recognized in Section 1983 actions. Pembaur v. Cincinnati, 475 U.S. 469, 479, 106
S.Ct. 1292, 89 L.Ed.2d 452 (1986) (Ҥ 1983 could not be interpreted to incorporate
doctrines of vicarious liability”); Gubanc v. Warren, 130 Ohio App.3d 714, 719, 721
N.E.2d 124 (9th Dist.1998) (“[t]here is no respondeat superior liability in a Section 1983
claim,” rather, “a plaintiff must show that an individual defendant committed the act that
caused the constitutional deprivation”).
{¶35} To the extent indicated above, Magby’s second and third assignments of
error are with merit.
{¶36} For the foregoing reasons, the January 31, 2019 Judgment Entry of the
Ashtabula County Court of Common Pleas is affirmed as to defendants Sloan,
Pritchard, Mohr, Clipper, and Greene; reversed as to defendants Witt, Swanson,
Reberra, Gillespie, and Williams; and remanded for further proceedings consistent with
this opinion. Costs to be taxed against the parties equally.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.