[Cite as Mootispaw v. Wenninger, 2016-Ohio-1287.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
RUSTY EUGENE MOOTISPAW, :
Plaintiff-Appellant, : CASE NO. CA2015-08-024
: OPINION - vs - 3/28/2016 :
SHERIFF DWAYNE WENNINGER, et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Case No. 2014-0407
Rusty Eugene Mootispaw, #A164741, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601, plaintiff-appellant, pro se
Fishel Hass Kim Albrecht LLP, Frank D. Hatfield, Daniel T. Downey, 400 South Fifth Street, Columbus, Ohio 43220, for defendants-appellees, Sheriff Dwayne Wenninger, Matt Hubbard, Austin Falton, and Brian Ductlingar
RINGLAND, J.
{¶ 1} Plaintiff-appellant, Rusty Mootispaw, appeals the decision of the Brown County
Court of Common Pleas granting summary judgment in favor of defendants-appellees,
Sheriff Dwayne Wenninger, Deputy Brian Ductlinger, and Deputy Austin Fulton. For the
reasons detailed below, we affirm.
{¶ 2} Mootispaw is a convicted murderer and inmate at the Chillicothe Correctional Brown CA2015-08-024
Institution ("CCI"). On April 22, 2014, Mootispaw was transported to the Brown County Jail to
testify as a defense witness in a pending criminal matter. Ultimately, Mootispaw was never
called to testify in that matter and was returned to CCI nine days later on May 1, 2014.
Mootispaw filed this lawsuit to recover damages he allegedly sustained due to substandard
medical treatment while in the jail.
{¶ 3} Mootispaw has a history of health problems and has undergone heart surgeries
in 1996 and 2009. Mootispaw is prescribed several medications to control those health
problems; however, during his stay at the jail, Mootispaw alleges he never received any of
those medications, except for aspirin.
{¶ 4} The record before the court is very limited with respect to the cause of
Mootispaw's purported injuries. However, in his deposition, Mootispaw testified that he
requested his medication from the jailhouse guards on several occasions. Although he
acknowledged that the guards would look for the medication, Mootispaw stated that each
time the guards "spun him" by either denying the medication or indicating that the medication
was "not here." One theory advanced by Mootispaw is his belief that his medications were
never transported from CCI to the jail.
{¶ 5} On April 27, 2014, his fifth day of incarceration in Brown County, Mootispaw
told Deputy Fulton "I'm having a stroke." As a result, Mootispaw was tended to by medical
staff and transported to a local hospital. While at the hospital, medical staff confirmed that
Mootispaw was not having a stroke, but provided him with medication and was released from
the hospital within a few hours.
{¶ 6} The next day, Mootispaw exhibited slurred speech and wet his pants. A jail
employee again called for an ambulance and Mootispaw was transported to the hospital for
treatment. Again, doctors concluded that Mootispaw did not suffer a stroke, provided him
with medication, and released him from the hospital after a few hours. Doctors diagnosed -2- Brown CA2015-08-024
Mootispaw with a headache. Two days later, on May 1, 2014, Mootispaw returned to CCI.
{¶ 7} Mootispaw filed this lawsuit presenting a claim of cruel and unusual
punishment, in which he alleges appellees withheld lifesaving medication, which resulted in
injuries of irreparable harm. The trial court granted summary judgment in favor of appellees
after concluding that Mootispaw presented no medical proof of injury and failed to present
any evidence that he was deprived of any constitutional or statutory right. Mootispaw now
appeals, raising five assignments of error for review. For ease of discussion, we will discuss
some of Mootispaw's assignments of error out of order.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED WHEN IT REFUSED TO RECUSE ITSELF
WHEN IT WAS NAMED AS A WITNESS.
{¶ 10} In his first assignment of error, Mootispaw alleges the trial judge erred when he
refused to recuse himself from the case based on allegations of bias and prejudice. This
court, however, has no authority to render a decision with regard to disqualification or to void
a trial court's judgment on the basis of personal bias or prejudice on the part of the trial judge.
Ricker v. Parknavy, 12th Dist. Madison No. CA2003-12-039, 2004-Ohio-5822, ¶ 15; Beer v.
Griffith, 54 Ohio St.2d 440, 441-442 (1978). The Chief Justice of the Ohio Supreme Court, or
appropriate designee, has exclusive jurisdiction to determine a claim that a common pleas
court judge is biased or prejudiced. Beer at 441-442. Here, Mootispaw filed an affidavit of
disqualification, which the Supreme Court denied. This court has no authority to review, let
alone overrule, that decision. Mootispaw's first assignment of error is without merit and
overruled.
{¶ 11} Assignment of Error No. 2:
{¶ 12} THE TRIAL COURT ERRED BY DENYING APPELLANT APPOINTMENT OF
COUNSEL AND EXPERT WITNESS. -3- Brown CA2015-08-024
{¶ 13} In his second assignment of error, Mootispaw argues the trial court erred by
denying his motion for counsel and for an expert witness. However, litigants have no
generalized right to appointed counsel or designation of expert witness fees in civil actions.
State ex rel. Jenkins v. Stern, 33 Ohio St.3d 108, 110 (1987). There is no pertinent reason to
appoint counsel or allocate funds for an expert witness in the present case. Therefore, we
find Mootispaw's second assignment of error is without merit and overruled.
{¶ 14} Assignment of Error No. 4:
{¶ 15} THE TRIAL COURT ERRED BY NOT GIVING APPELLANT "NOTICE OF
UNDERSTANDABILITY OF THE SUMMARY JUDGMENT RULES. [sic]
{¶ 16} In his fourth assignment of error, Mootispaw alleges the trial court erred by
failing to notify him of the rules for summary judgment. "Courts should not afford litigants
special treatment simply because they are proceeding without the benefit of counsel."
Pinnacle Credit Servs., LLC v. Kuzniak, 7th Dist. Mahoning No. 08 MA 111, 2009-Ohio-1021,
¶ 30. This court has previously acknowledged that pro se litigants are bound by the same
rules and procedures as litigants with retained counsel. CAT-Rental Store v. Sparto, 12th
Dist. Clinton No. CA2001-08-024, 2002 WL 237359, *2 (Feb. 19, 2002). "Although a court
may, in practice, grant a certain amount of latitude toward pro se litigants, the court cannot
simply disregard the Rules of Civil Procedure in order to accommodate a party who fails to
obtain counsel." Kuzniak at ¶ 30. Accordingly, Mootispaw's argument that he was entitled to
special treatment or a "notice of understandability," is without merit. The record reveals that
the trial court held Mootispaw to the same standards, and properly afforded him the same
process as any other litigant. Mootispaw's fourth assignment of error is overruled.
{¶ 17} Assignment of Error No. 3:
{¶ 18} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING
APPELLEE(S) MOTION FOR SUMMARY JUDGMENT. -4- Brown CA2015-08-024
{¶ 19} Assignment of Error No. 5:
{¶ 20} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPLYING
APPELLANT TO BE AN OPPORTUNIST TO DEFRAUD APPELLEE'S [sic] OUT OF
MONEY.
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[Cite as Mootispaw v. Wenninger, 2016-Ohio-1287.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
RUSTY EUGENE MOOTISPAW, :
Plaintiff-Appellant, : CASE NO. CA2015-08-024
: OPINION - vs - 3/28/2016 :
SHERIFF DWAYNE WENNINGER, et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Case No. 2014-0407
Rusty Eugene Mootispaw, #A164741, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601, plaintiff-appellant, pro se
Fishel Hass Kim Albrecht LLP, Frank D. Hatfield, Daniel T. Downey, 400 South Fifth Street, Columbus, Ohio 43220, for defendants-appellees, Sheriff Dwayne Wenninger, Matt Hubbard, Austin Falton, and Brian Ductlingar
RINGLAND, J.
{¶ 1} Plaintiff-appellant, Rusty Mootispaw, appeals the decision of the Brown County
Court of Common Pleas granting summary judgment in favor of defendants-appellees,
Sheriff Dwayne Wenninger, Deputy Brian Ductlinger, and Deputy Austin Fulton. For the
reasons detailed below, we affirm.
{¶ 2} Mootispaw is a convicted murderer and inmate at the Chillicothe Correctional Brown CA2015-08-024
Institution ("CCI"). On April 22, 2014, Mootispaw was transported to the Brown County Jail to
testify as a defense witness in a pending criminal matter. Ultimately, Mootispaw was never
called to testify in that matter and was returned to CCI nine days later on May 1, 2014.
Mootispaw filed this lawsuit to recover damages he allegedly sustained due to substandard
medical treatment while in the jail.
{¶ 3} Mootispaw has a history of health problems and has undergone heart surgeries
in 1996 and 2009. Mootispaw is prescribed several medications to control those health
problems; however, during his stay at the jail, Mootispaw alleges he never received any of
those medications, except for aspirin.
{¶ 4} The record before the court is very limited with respect to the cause of
Mootispaw's purported injuries. However, in his deposition, Mootispaw testified that he
requested his medication from the jailhouse guards on several occasions. Although he
acknowledged that the guards would look for the medication, Mootispaw stated that each
time the guards "spun him" by either denying the medication or indicating that the medication
was "not here." One theory advanced by Mootispaw is his belief that his medications were
never transported from CCI to the jail.
{¶ 5} On April 27, 2014, his fifth day of incarceration in Brown County, Mootispaw
told Deputy Fulton "I'm having a stroke." As a result, Mootispaw was tended to by medical
staff and transported to a local hospital. While at the hospital, medical staff confirmed that
Mootispaw was not having a stroke, but provided him with medication and was released from
the hospital within a few hours.
{¶ 6} The next day, Mootispaw exhibited slurred speech and wet his pants. A jail
employee again called for an ambulance and Mootispaw was transported to the hospital for
treatment. Again, doctors concluded that Mootispaw did not suffer a stroke, provided him
with medication, and released him from the hospital after a few hours. Doctors diagnosed -2- Brown CA2015-08-024
Mootispaw with a headache. Two days later, on May 1, 2014, Mootispaw returned to CCI.
{¶ 7} Mootispaw filed this lawsuit presenting a claim of cruel and unusual
punishment, in which he alleges appellees withheld lifesaving medication, which resulted in
injuries of irreparable harm. The trial court granted summary judgment in favor of appellees
after concluding that Mootispaw presented no medical proof of injury and failed to present
any evidence that he was deprived of any constitutional or statutory right. Mootispaw now
appeals, raising five assignments of error for review. For ease of discussion, we will discuss
some of Mootispaw's assignments of error out of order.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED WHEN IT REFUSED TO RECUSE ITSELF
WHEN IT WAS NAMED AS A WITNESS.
{¶ 10} In his first assignment of error, Mootispaw alleges the trial judge erred when he
refused to recuse himself from the case based on allegations of bias and prejudice. This
court, however, has no authority to render a decision with regard to disqualification or to void
a trial court's judgment on the basis of personal bias or prejudice on the part of the trial judge.
Ricker v. Parknavy, 12th Dist. Madison No. CA2003-12-039, 2004-Ohio-5822, ¶ 15; Beer v.
Griffith, 54 Ohio St.2d 440, 441-442 (1978). The Chief Justice of the Ohio Supreme Court, or
appropriate designee, has exclusive jurisdiction to determine a claim that a common pleas
court judge is biased or prejudiced. Beer at 441-442. Here, Mootispaw filed an affidavit of
disqualification, which the Supreme Court denied. This court has no authority to review, let
alone overrule, that decision. Mootispaw's first assignment of error is without merit and
overruled.
{¶ 11} Assignment of Error No. 2:
{¶ 12} THE TRIAL COURT ERRED BY DENYING APPELLANT APPOINTMENT OF
COUNSEL AND EXPERT WITNESS. -3- Brown CA2015-08-024
{¶ 13} In his second assignment of error, Mootispaw argues the trial court erred by
denying his motion for counsel and for an expert witness. However, litigants have no
generalized right to appointed counsel or designation of expert witness fees in civil actions.
State ex rel. Jenkins v. Stern, 33 Ohio St.3d 108, 110 (1987). There is no pertinent reason to
appoint counsel or allocate funds for an expert witness in the present case. Therefore, we
find Mootispaw's second assignment of error is without merit and overruled.
{¶ 14} Assignment of Error No. 4:
{¶ 15} THE TRIAL COURT ERRED BY NOT GIVING APPELLANT "NOTICE OF
UNDERSTANDABILITY OF THE SUMMARY JUDGMENT RULES. [sic]
{¶ 16} In his fourth assignment of error, Mootispaw alleges the trial court erred by
failing to notify him of the rules for summary judgment. "Courts should not afford litigants
special treatment simply because they are proceeding without the benefit of counsel."
Pinnacle Credit Servs., LLC v. Kuzniak, 7th Dist. Mahoning No. 08 MA 111, 2009-Ohio-1021,
¶ 30. This court has previously acknowledged that pro se litigants are bound by the same
rules and procedures as litigants with retained counsel. CAT-Rental Store v. Sparto, 12th
Dist. Clinton No. CA2001-08-024, 2002 WL 237359, *2 (Feb. 19, 2002). "Although a court
may, in practice, grant a certain amount of latitude toward pro se litigants, the court cannot
simply disregard the Rules of Civil Procedure in order to accommodate a party who fails to
obtain counsel." Kuzniak at ¶ 30. Accordingly, Mootispaw's argument that he was entitled to
special treatment or a "notice of understandability," is without merit. The record reveals that
the trial court held Mootispaw to the same standards, and properly afforded him the same
process as any other litigant. Mootispaw's fourth assignment of error is overruled.
{¶ 17} Assignment of Error No. 3:
{¶ 18} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING
APPELLEE(S) MOTION FOR SUMMARY JUDGMENT. -4- Brown CA2015-08-024
{¶ 19} Assignment of Error No. 5:
{¶ 20} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPLYING
APPELLANT TO BE AN OPPORTUNIST TO DEFRAUD APPELLEE'S [sic] OUT OF
MONEY.
{¶ 21} Mootispaw's third and fifth assignments of error are interrelated and will be
addressed together. In his third assignment of error, Mootispaw alleges the trial court erred in
granting judgment in favor of appellees. In his fifth assignment of error, Mootispaw alleges
the trial court implied that he was an opportunist seeking to defraud appellees of money.
{¶ 22} This court reviews summary judgment decisions de novo, which means we
review the trial court's judgment independently and without deference to the trial court's
determinations, using the same standard in our review that the trial court should have
employed. Ludwigsen v. Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008,
2014-Ohio-5493, ¶ 8. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1)
there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as
a matter of law, and (3) the evidence submitted can only lead reasonable minds to a
conclusion which is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82
Ohio St.3d 367, 369-70 (1998).
{¶ 23} The moving party bears the initial burden of informing the court of the basis for
the motion and demonstrating the absence of a genuine issue of material fact. Robinson v.
Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 9. Once this burden is
met, the nonmoving party has a reciprocal burden to set forth specific facts showing there is
some genuine issue of material fact yet remaining for the trial court to resolve. Id. In
determining whether a genuine issue of material fact exists, the evidence must be construed
in favor of the nonmoving party. Vanderbilt v. Pier 27, L.L.C., 12th Dist. Butler No. CA2013-
02-029, 2013-Ohio-5205, ¶ 8. -5- Brown CA2015-08-024
{¶ 24} Mootispaw's complaint states that appellees violated the constitutional
prohibition against cruel and unusual punishment by withholding his medication. In order to
present a valid claim, a plaintiff is required demonstrate both (1) that he suffered a serious
deprivation of human need and (2) that the defendant caused the deprivation by acting with
deliberate indifference. Harris v. Bradley, 5th Dist. Richland No. 2010 CA 0058, 2011-Ohio-
445, ¶ 21; Gubanc v. Warren, 130 Ohio App. 3d 714, 720 (9th Dist.1998). Mere negligence
of the medical needs of an inmate is not sufficient. Gubanc at 720. Instead, a plaintiff must
show that a prison official knew of and disregarded an excessive risk of inmate health or
safety. Id., citing Farmer v. Brennan, 511 U.S. 825, 834-841, 114 S.Ct. 1970 (1994) (defining
"deliberate indifference" in terms of subjective recklessness).
{¶ 25} Based on our review of the evidence, we agree with the trial court that
appellees were entitled to summary judgment. Mootispaw's claims of medical injuries are
entirely speculative, as he presents no medical evidence by way of affidavit or otherwise that
his purported injuries were proximately caused by the failure to provide medication. Although
Mootispaw maintains that he suffered a stroke, the medical records and diagnoses do not
support that contention. Moreover, there is absolutely no evidence in the record to support a
finding that any of the named defendants in this matter were deliberately indifferent with
respect to Mootispaw's medical needs. Instead, the record reflects that when Mootispaw
complained to the prison guards, he was given medical attention and transported via
ambulance to the emergency room where his condition was monitored by medical personnel.
Summary judgment was appropriately granted in this matter.
{¶ 26} Furthermore, with respect to Mootispaw's allegation in his fifth assignment of
error that the trial court implied he was an "opportunist" with an intent to "defraud," we simply
find Mootispaw's allegation to be without merit. The trial court's judgment entry presented the
legal issue before the court and properly applied the law to the facts. Merely because the -6- Brown CA2015-08-024
trial court did not find merit to Mootispaw's claim does not imply bias or prejudice. As a
result, we find Mootispaw's third and fifth assignments of error to be without merit and they
are therefore overruled.
{¶ 27} Judgment affirmed.
PIPER, P.J., and S. POWELL, J., concur.
-7-