[Cite as Skaggs v. Ohio Dept. of Rehab. & Corr. , 2021-Ohio-3140.]

{¶1} On May 26, 2021, the magistrate issued a decision recommending judgment in favor of Defendant. On June 10, 2021, Plaintiff filed a doc ument captioned “Motion to Deny This Magistrate Decision to Deny Plaintiff’s Complaint”. Therein, the basis of Plaintiff’s request is for the Court to review the magistrate’s May 26, 2021 decision and recommendation. Accordingly, the Court construes Plaintiff’s f iling as objections to the magistrate’s decision under Civ.R. 53(D)(3)(b). 1 For the reasons set forth below, the Court adopts the magistrate’s decision as its own.

Standard of Review {¶2} Civ.R. 53(D)(4)(b) provides that, “[w]hether or not objections are timely filed, a court may adopt or reject a magistrate’s decision in whole or in part, with or without modification.” However, when a party files objections to a mag istrate’s decision, the court “shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues, and appropriately applied the law.” Civ.R. 53(D)(4)(d). {¶3} In reviewing the objections, the court does not act as an appel late court but

rather conducts “a de novo review of the facts and conclusions in the magistrate’s

1 Pursuant to Civ.R. 53(D)(3)(b)(i), Plaintiff’s filing is untim ely. Nevertheless, in the interest of justice, the Court will consider Plaintiff’s objections. JASON SKAGGS

Plaintiff

v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

Defendant Case No. 2019-00650JD

Judge Patrick E. Sheeran

JUDGMENT ENTRYCase No. 2019-00650JD -2- JUDGMENT ENTRY

decision.” Ramsey v. Ramsey , 10th Dist. Franklin No. 13AP-840, 2014-Ohio-1921, ¶ 17 (internal citations omitted). Objections “shall be specific an d state with particularity all grounds for objection.” Civ.R. 53(D)(3)(b)(ii). They must be supported “by a transcript of all the evidence submitted to the magistrate relevant to tha t finding or an affidavit of that evidence if the transcript i s not available.” Civ.R. 53(D )(3)(b)(iii). {¶4} Civ.R. 53(D)(3)(b)(iii) provides that “[t]he objecting party sh all file the transcript or affidavit with the court within thirty days after filing objections.” Plaintiff did not provide a transcript of the evidence to support his objecti ons or an affidavit of evidence. When an objecting party fails to properly support hi s objections with a transcript or affidavit, “the trial court must accept the magis trate’s factual findings and limit its review to the magistrate’s legal conclusions.” Triplett v. Warren Corr. Inst. , 10th Dist. Franklin No. 12AP-728, 2013-Ohio-2743, ¶ 13. Accordingly , the Court accepts the magistrate’s factual findings as true, and restricts its consid eration of Plaintiff’s objections to a review of the m agistrate’s legal conclusions.

Background {¶5} On May 23, 2019, Plaintiff filed a complaint against Defendant seeking to recover damages for changes made to his prescription medication s and injuries sustained during incidents where force was used on him while he was having seizures. The case proceeded to trial before a magistrate on the issues o f liability and damages. At trial, the magistrate made the following factual findings: [P]rior to entering prison in 2008, he was placed on seizure

medication in 2003 and has continued to take seizure medication since that time. Plaintiff stated that he suffers from grand mal sei zures, complex partial seizures, and stare seizu res. Plaintiff explained that when he has a seizure, he often loses control of his bodily movements and tha t he is unable to recall events that occurred while was suffering from his seizure.Case No. 2019-00650JD -3- JUDGMENT ENTRY

Plaintiff stated that with the aid of his medications, Topamax and Keppra,

his seizures have been controlled. Plaintiff explained that he was transferred to the London Correctional Institution in January 2016 and began to have prob lems with seizures shortly thereafter. Plaintiff stated that at some poi nt defendant’s medical staff discontinued his seizure medi[c]ation. The decis ion to remove plaintiff from Topamax occurred on February 5, 2016, and the decision to remove plaintiff from Keppra occurred on February 9 , 2016. Plaintiff’s Exhibit 1. Plaintiff was gradually weened off both medi[c]ations over the next couple of months. Plaintiff testified that he be gan to experience frequent seizures t hat were witnessed by staff and o ther prison employees. Plaintiff believes that the medications should neve r have been discontinued and that by removing him from his medications , he began to have frequent seizures. Plaintiff stated that it appe ared to him

that defendant did not believe that his seizures were real.

Plaintiff described several incidents where he received conduct reports for his actions while he was having a seizure. Plainti ff emphasized that he has no ability to control his actions when he is having a seizure. Plaintiff testified that on April 27, 2016, he suffered a seizu re, and he was unable to respond to corrections officer’s orders, unable to co ntrol himself, became aggressive, and grabbed the arm of the corrections offic er. In a second incident on July 3, 2016, corrections officer Baker was escorting plaintiff when plainti ff became “dead weight” and was taken to the floor. In a third incident on July 28, 2016, corrections officers Sexton and Mets found plaintiff lying down and shaking. At some point plaintif f attempted to grab Sexton by the right arm. The corrections officers grabbed plaintiff by the shoulders, placed him on the wall, attempted to place handc uffs onCase No. 2019-00650JD -4- JUDGMENT ENTRY

him, and ordered him to comply. When plaintiff failed to compl y, corrections officers deployed pepper spray. Plaintiff continue d to become more aggressive until officers gained control of him. At some point plaintiff was placed in the hole (restrictive housing) with handcuffs on that plaintiff says were too tight. Plaintiff testified that his wrists were damaged by the

handcuffs. Plaintiff testified that in October 2016, his diagnosis was con firmed and defendant prescribed Depakote and Keppra. Plaintiff believ es he should have been prescribed Topamax. Plaintiff acknowledged th at he was never denied seizure medication and was continually provide d medications; however, plaintiff believes he should have never h ad Topamax and Keppra removed from his prescription plan. Plainti ff also stated that Disability Rights Ohio became involved in his case and his conduct reports were amended to show that he was not breaking p rison rules but that he was suffering from medical issues. Plaintiff added that he is currently on Keppra and Topamax. Landon Khols, the health care administrator at the Allen-Oakwoo d Correctional Institution, testified that plaintiff is on the he althcare load for defendant. Khols examined a list of prescription medi[c]ations that plaintiff has been prescribed since 2017 and noted that dating back to Ma rch 2017 plaintiff has been consistently provided with various combinati ons of seizure medications, including Divalproex (Depakote), Levetirac etam (Keppra), and Carbamazepine. {¶6} As a result, the magistrate found that Plaintiff stated a medic al malpractice claim which was barred by the statute of limitations. Furtherm ore, the magistrate found that, even if his medical malpractice claim was timely, Plainti ff cannot prevail because he failed to present any expert witness testimony to establish the standard of care,Case No. 2019-00650JD -5- JUDGMENT ENTRY

breach of that standard of care, and proximate care of his inju ries. In his objections, Plaintiff argues that the magistrate erred when he (1) construe d his claim as one for medical malpractice instead of ordinary negligence, and (2) whe n he found that his claim was barred by the statute of limitations. Plaintiff argu es that Defe ndant h as been engaging in ongoing negligence against him from January 2016 un til 2020 by delaying and keeping him from being prescribed the correct seizure medic ation.

Law and Analysis {¶7} A review of the magistrate’s legal conclusions reveals that he neither erred in construing Plaintiff’s claim as one for medical malpractice nor finding that Plaintiff’s claim was barred by the statute of limitations. Indeed, if ODR C’s alleged negligent acts or omissions arise in the course of medical diagnosis, care, or treatment of an inmate, then it is a claim for medical malpractice. Foy v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 16AP-723, 2017-Ohio-1065, ¶ 23. The neglige nce Plaintiff alleges involves Defendant’s medical staff altering Plaintiff’s seizure medications, Topamax and Keppra, in February 2016. Indeed, such actions arise out of De fendant’s medical diagnosis, care, or treatment of Plaintiff. Thus, the Court fi nds no error with the magistrate construing Plaintiff’s allegations as a claim for me dical malpractice. {¶8} Additionally, Plaintiff was aware Defendant’s medical staff alt ered his seizure medication in February 2016 and Plaintiff believes he s hould have always been prescribed Topamax and Keppra. Indeed, this is a cognizable ev ent that should reasonably alert Plaintiff to pursue his remedies regarding an error in his medical care.

See Hans v. Ohio State Univ. Med. Ctr. , 10th Dist. Franklin No. 07AP-10, 2007-Ohio3294, ¶ 10, quoting Allenius v. Thomas , 42 Ohio St.3d 131, 134, 538 N.E.2d 93 (1989). Despite Plaintiff’s contention that Defendant’s negligence was ongoing until 2020, it is clear that Plaintiff believes Defendant began mishandling his m edical treatment in 2016. Thus, the Court finds no error with the magistrate’s legal find ing that Plaintiff’s medical malpractice claim is time-barred. See R.C. 2305.113(A).Case No. 2019-00650JD -6- JUDGMENT ENTRY

{¶9} Assuming arguendo that the Court were to construe Plaintiff’s claim as ordinary negligence, his claim would likewise be barred by the two-year statute of

limitations. See Vellky v. Kent State Univ. , 10th Dist. Franklin No. 85AP-171, 1985 Ohio App. LEXIS 6767, 3 (Aug. 1, 1985), citing R.C. 2743.16. Genera lly, a cause of action for negligence accrues when the wrongful act was committed. O’Stricker v. Jim Walter Corp. , 4 Ohio St.3d 84, 87, 447 N.E.2d 727 (1983). As stated above, Plaintiff claims Defendant’s discontinuation of Plaintiff’s seizure medication, which led to several useof-force incidents, occurred in 2016. Consequently, Plaintiff’ s May 2019 complaint cannot survive the statute of limitations. Therefore, Plaintif f’s objections are

OVERRULED. {¶10} For the reasons stated above, the Court finds the magistrate pr operly determined the factual issues and appropriately applied the law in this case. Accordingly, the Court adopts the magistrate’s decision and rec ommendation as its own, and judgment is rendered in favor of Defendant. Court cos ts are assessed against Plaintiff. The clerk shall serve upon all parties notice of thi s judgment and its date of entry upon the journal.

PATRICK E. SHEERAN Jud g e

Filed August 18, 2021 Sent to S.C. Reporter 9/13/21