IN 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. 

REPORT AND RECOMMENDATION

This matter is before the Court for consideration of the Plaintiff’s Motion for Summary 

Judgment, Doc. No. 22. For the reasons that follow, it is recommended that Plaintiff’s motion be

denied.

Plaintiff Donald D. Danford [“Plaintiff”], a state inmate, brings this action pursuant to 42

U.S.C. § 1983, claiming that he was denied his constitutional right to medical care in violation of the

Eighth Amendment to the United States Constitution. In his Complaint, Plaintiff alleges that, on

August 29, 2009, he slipped on the floor in his dormitory at NCI, “breaking my right ankle and small

bone in [the] lower portion of [the] same leg, as well as tearing ligaments in [the] same.” Complaint,

Doc. No. 4, at 5. Plaintiff was transported to a hospital in Marietta, Ohio, and received treatment. Id. 

 On September 8, 2009, Plaintiff was treated by an orthopedist in Cambridge, Ohio, who informed

Plaintiff that he needed surgery. The recommended surgery took place on September 11, 2009, and

Plaintiff returned to NCI on September 12, 2009. Id. Plaintiff claims that he suffered extreme pain

and that the removal of surgical staples was delayed eleven days. Id. According to Plaintiff, he did

not receive rehabilitation or further treatment and he continues to experience pain in his “entire lower

leg.” Id. 

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Named as defendants in the Complaint are Terry Collins, Director of the Ohio Department of

Rehabilitation and Correction [“ODRC”]; Warden Banks of the Noble Correctional Institution

[“NCI”]; V. Sawyer, Health Care Administrator of NCI; Wexford Health Sources; and Sara

Seeburger, identified as Health Services Administrator. Defendants Banks and Sawyer filed an

answer in timely fashion. Answer, Doc. No. 13. Defendant Collins, who has not entered an

appearance, was not served with process. Summons Returned Unexecuted, Doc. No. 7. Plaintiff now

moves for summary judgment against the State of Ohio and the ODRC, arguing that they have failed

to timely respond to Plaintiff’s Complaint. Doc. No. 22. 

 There has been no appearance on behalf of the State of Ohio or the ODRC. It is not entirely

clear, however, that the State of Ohio or the ODRC were named as defendants in the Complaint. 

The Complaint names, variously, “State of Ohio Ohio Department of Rehab. & Corr., et al Executive

Director, Terry Collins (O.D.R.C.) . . . .”, id., at 1, and “Ohio Department of Rehabilitation &

Corrections, Exec. Director T. Collins . . .,” id., at 4. A summons was served on “O.C.R.C. Exec.

Director, Terry Collins . . . .” Summons Returned Executed, Doc. No. 10. Counsel for Defendants

Banks and Sawyer, who are employees of the State of Ohio, apparently concluded that the Complaint

did not name either the State of Ohio or its agency as defendants in this action, for he read Plaintiff’s

motion as addressed only to the two state employees who have responded to the Complaint. 

Nevertheless, the Court concludes that summary judgment against the State of Ohio and the

ODRC would be improper. States and their agencies are absolutely immune from actions in federal

courts brought under 42 U.S.C. §1983. Regents of Univ. of Calif. v. Doe, 519 U.S. 425, 429 (1997);

Lawson v. Shelby County, 211 F.3d 331, 334 (6th Cir. 2000). The ODRC is an agency of the State of

Ohio. See Meekison v. Voinovich, 67 Fed. Appx. 900, 901 (6th Cir. June 18, 2003)(unpublished). 

Even if the State of Ohio and the ODRC are named as defendants in the Complaint, plaintiff’s claims

against them could therefore not proceed. 

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It is therefore RECOMMENDED that Plaintiff’s Motion for Summary Judgment, Doc. No.

22, be DENIED and that any claims asserted against the State of Ohio and the ODRC be dismissed

for lack of subject matter jurisdiction. 

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part thereof in

question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy thereof. 

Fed. R. Civ. P. 72(b). 

The parties are specifically advised that failure to object to the Report and Recommendation

will result in a waiver of the right to de novo review by the District Judge and of the right to appeal

the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474

U.S. 140 (1985); Smith v. Detroit Foundation of Teachers, Local 231, etc., 829 F.2d 1370 (6th Cir.

1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

November 19, 2010 s/ Norah McCann King 

DATE NORAH McCANN KING

UNITED STATES MAGISTRATE JUDGE

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