N THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DONALD D. DANFORD,

Plaintiff,

v. Case No. 2:10-CV-124

Judge Marbley

Magistrate Judge King

STATE OF OHIO DEPARTMENT

OF REHABILITATION AND

CORRECTIONS, et al.,

Defendants.

ORDER

Plaintiff, a state prisoner, claims that he was denied

constitutionally required medical care following the August 2009 fracture

of his right ankle. On February 13, 2012, the Magistrate Judge denied

plaintiff’s various motions and recommended that defendants’ motions for

summary judgment be granted. Order and Report and Recommendation, Doc.

No. 117. Plaintiff has filed objections to those denials and that

recommendation. Objection, Doc. No. 119. For the reasons that follow,

plaintiff’s objections are OVERRULED. The Order and Report and

Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.

Plaintiff objects to the denial of his motions to appoint counsel,

to compel discovery and to strike various motions and filings by

defendants. In his objections to the denial of his motions to appoint

counsel and motions to compel, plaintiff asserts that he requires counsel

to conduct depositions. He also asserts, without elaboration, that he

has properly identified the persons whose deposition testimony is

necessary and that he has properly articulated the information sought. 

In his objections to the denial of his motions to strike, plaintiff, who

does not appear to contest the Magistrate Judge’s finding that the

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challenged filings were timely filed, argues that the doctrine of res

judicata prevents “the same defendants” raising arguments previously

ruled upon by this Court. Finally, in his objections to the

recommendation that summary judgment be granted to defendants, plaintiff

again argues that defendants improperly delayed his initial surgery and

the removal of surgical staples. Objections, Doc. No. 119, pp. 2-6.

In considering plaintiff’s objections to the Magistrate Judge’s

denial of his motions, the Court will overturn the decision of the

Magistrate Judge only if the decision was clearly erroneous or contrary

to law. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). Because the

decision of the Magistrate Judge in this regard was neither clearly

erroneous nor contrary to law, plaintiff’s objections to the denial of

his motions to appoint counsel, motions to compel discovery and motions

to strike are OVERRULED. As the Magistrate Judge noted, defendants’

motions for summary judgment are based on plaintiff’s medical records,

which have been made available to plaintiff. Indeed, plaintiff has made

substantive response to defendants’ motions for summary judgment.

Plaintiff has failed to identify any additional, relevant information

that is necessary to the resolution of the issues in this case.1

 Under

these circumstances, plaintiff’s motions to appoint counsel and to compel

discovery were properly denied. In addition, plaintiff did not raise his

res judicata argument in his motions to strike, see Doc. Nos. 93, 94, 96,

104, so there can be no error in the Magistrate Judge’s failure to

address this argument in denying these motions. Plaintiff did raise a

similar argument in his responses to the motions for summary judgment,

1

Plaintiff insists that medical records relating to another inmate who

allegedly suffered a similar injury are relevant and have been improperly

denied him. This Court agrees with the Magistrate Judge that such records are

simply not relevant to the resolution of plaintiff’s claim that the named

defendants were deliberately indifferent to plaintiff’s medical needs.

2

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see Doc. No. 97, p.1; Doc. No. 100, p.1, and in one motion to appoint

counsel, see Doc. No. 89, p.2, but his argument has no merit. Even

assuming that the decision of the Magistrate Judge was inconsistent with

the Court’s prior orders, (an assumption that the Court declines to

make), the Federal Rules of Civil Procedure make clear that an order or

decision that resolves fewer than all the claims in an action “may be

revised at any time before the entry of a judgment adjudicating all the

claims and all the parties’ rights and liabilities.” Fed. R. Civ. P.

54(b).

In short, plaintiff’s objections to the Magistrate Judge’s denial

of his various motions are DENIED.

Plaintiff also objects to the Magistrate Judge’s recommendation that

defendants’ motions for summary judgment be granted. The Court will

consider this matter de novo. See 28 U.S.C. §636(b); Fed. R. Civ. P.

72(b). As the Magistrate Judge correctly recognized, the United States

Constitution does not prohibit medical malpractice in the prison context

and a plaintiff inmate may not succeed on a claim of deliberate

indifference based only on negligence. Comstock v. McCrary, 273 F.3d

693, 703 (6th Cir. 2001) (“When a prison doctor provides treatment,

albeit carelessly or inefficaciously, . . . he has not displayed a

deliberate indifference to the prisoner’s needs, but merely a degree of

incompetence which does not rise to the level of a constitutional

violation.”). Here, the uncontroverted evidence establishes that

plaintiff received substantial medical care following the fracture of his

ankle. His claims that defendants delayed the initial surgery and the

subsequent removal of surgical staples amount to, at most, negligence. 

Those claims, however, do not rise to constitutional proportions. In

short, plaintiff’s objections to the Magistrate Judge’s recommendation

3

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in this regard are without merit.

The Order and Report and Recommendation, Doc. No. 117, is ADOPTED

and AFFIRMED. Defendants’ motions for summary judgment, Doc. Nos. 90,

91, are GRANTED. Plaintiff’S motion for a writ of mandamus, Doc. No.

110, is DENIED as moot. 

The Clerk is DIRECTED to enter FINAL JUDGMENT in favor of

defendants.

 s/Algenon L. Marbley 

 Algenon L. Marbley

 United States District Judge 

4

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