UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LARRY VINCENT FERRELL,

Plaintiff,

 Civil Action 2:10-cv-1138

v. Judge Algenon L. Marbley

 Magistrate Judge Elizabeth P. Deavers

SHERIFF GEORGE LAVENDER, JR., et al.,

Defendants.

REPORT AND RECOMMENDATION

 Plaintiff, Larry Vincent Ferrell, an Ohio inmate in state custody who is proceeding

without the assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983 against

Sheriff George Lavender, Jr. and Ross County Jail medical staff members Dr. Richard Harris and

Nurse Krista Wooten (collectively “Defendants”). Plaintiff alleges that Defendants were

deliberately indifferent to his serious medical needs in violation of the Eighth Amendment to the

United States Constitution. This matter is before the United States Magistrate Judge for a Report

and Recommendation on Defendants’ Motion for Summary Judgment. (ECF No. 17.) For the

reasons stated below, the undersigned RECOMMENDS that the Court GRANT Defendants’

Motion. 

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I. BACKGROUND

Plaintiff was arrested and booked into Ross County Jail (“Ross”) on August 28, 2010. 

He remained at Ross until October 2011, when he was transferred to Pickaway Correctional

Institution. According to Plaintiff, during his incarceration at Ross, Defendants Harris and

Wooten demonstrated deliberate indifference to his serious medical needs, which included

diabetes and a fractured finger. Defendants Harris and Wooten provided medical care to

Plaintiff from August 2010 through November 2010, until Premiere Correctional Medical

Services began providing medical care at Ross. Between August 28, 2010 and December 2010,

Plaintiff filed eighteen requests and nineteen grievances concerning a variety of issues. He did

not, however, file a single appeal.

Plaintiff filed the instant action on December 17, 2010. In addition to asserting medical

indifference claims under § 1983, it appears that Plaintiff seeks to bring claims pursuant to the

Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and also a state-law

medical malpractice claim. 

 On June 22, 2012, Defendants filed the subject Motion for Summary Judgment. (ECF

No. 17.) Defendants contend that Plaintiff’s § 1983 claims are barred because he failed to

exhaust his administrative remedies. Alternatively, Defendants assert that they are entitled to

summary judgment on these claims because Plaintiff has not alleged personal involvement by

Defendant Sheriff Lavender, and because Defendants Harris and Wooten were not deliberately

indifferent to Plaintiff’s serious medical needs. Defendants further posit that dismissal of

Plaintiff’s HIPAA claims is appropriate because there is no private right of action under HIPPA. 

Finally, Defendants submit they are entitled to judgment on Plaintiff’s state-law medical

malpractice claim because he has offered no evidence of the standard of care. Plaintiff has not

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responded to Defendants’ Motion. 

II. SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the initial

burden of proving that no genuine issue of material fact exists, and the court must draw all

reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air

Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.

Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s

assertion of fact” then the court may “consider the fact undisputed for purposes of the motion”).

“Once the moving party meets its initial burden, the nonmovant must ‘designate specific

facts showing that there is a genuine issue for trial.’” Kimble v. Wasylyshyn, No. 10–3110, 2011

WL 4469612, at *3 (6th Cir. Sept. 28, 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986)); see also Fed. R. Civ. P. 56(c) (requiring a party maintaining that a fact is genuinely

disputed to “cit[e] to particular parts of materials in the record”). “The nonmovant must,

however, do more than simply show that there is some metaphysical doubt as to the material

facts. [T]here must be evidence upon which a reasonable jury could return a verdict in favor of

the non-moving party to create a genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson

Cnty., 432 F. App’x 435, 441 (6th Cir. 2011) (internal quotation marks and citations omitted). 

“When a motion for summary judgment is properly made and supported and the nonmoving

party fails to respond with a showing sufficient to establish an essential element of its case,

summary judgment is appropriate.” Stansberry, 651 F.3d at 486 (citing Celotex, 477 U.S. at

322–23).

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III. ANALYSIS

The Court first addresses Defendants’s arguments in favor of summary judgment with

regards to Plaintiff’s § 1983 medical indifference claims before turning to Plaintiff’s HIPPA and

state-law malpractice claims. 

A. Medical Indifference Claims 

Defendants first argue that the Court should dismiss Plaintiff’s § 1983 medical

indifference claims because he failed to exhaust his administrative remedies. Because the

undersigned concludes that Defendants have properly raised and proven this affirmative defense,

it is RECOMMENDED that the Court DISMISS Plaintiff’s medical indifference claims

WITHOUT PREJUDICE.

Under 42 U.S.C. § 1997e(a), as amended by Prison Litigation Reform Act (“PLRA”), “a

prisoner confined in any jail, prison, or other correctional facility” may not bring an action

challenging “prison conditions” under 42 U.S.C. § 1983 “or any other Federal law . . . until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Jones v. Bock,

549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA

and that unexhausted claims cannot be brought in court.” (citation omitted)). This mandatory

exhaustion requirement applies to all lawsuits relating to prison conditions, regardless of the

nature of the wrong or the relief sought. Porter v. Nussle, 534 U.S. 516, 524 (2002). 

“Exhaustion” under the PLRA means “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93

(2006). To properly exhaust, prisoners must “tak[e] advantage of each step the prison holds out

for resolving the claim internally and . . . follow the ‘critical procedural rules’ of the prison’s

grievance process to permit prison officials to review and, if necessary, correct the grievance ‘on

the merits’ in the first instance.” Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010);

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Jones, 549 U.S. at 217–18 (noting that proper exhaustion requires “[c]ompliance with prison

grievance procedures”). 

 “A prisoner’s failure to exhaust his intra-prison administrative remedies prior to filing

suit ‘is an affirmative defense under the PLRA . . . .’” Surles v. Andison, 678 F.3d 452, 455 (6th

Cir. 2012) (quoting Jones, 549 U.S. at 216). Defendants bear the burden of proof on the

affirmative defense of exhaustion. Napier v. Laurel County, Ky., 636 F.3d 218, 225 (6th Cir.

2011) (citations omitted) (“[F]ailure to exhaust administrative remedies under the PLRA is an

affirmative defense that must be established by the defendants.”). “Summary judgment is

appropriate only if defendants establish the absence of a genuine dispute as to any material fact

regarding non-exhaustion.” Surles, 678 F.3d at 455. 

 Ross’s current grievance procedure is embodied in its Policy and Procedures Manual and

has been in place since before Plaintiff’s arrival. The grievance procedure is readily accessible

to all inmates as it is posted on inmate kiosks throughout the jail. The procedure consists of two

separate steps: a grievance and an appeal.1

 To complete a request, grievance, or appeal, the

inmate fills out a form and is required to indicate with a check-mark on the appropriate line

whether they are filing a request, grievance, or appeal. To properly utilize the grievance

procedure, an inmate must first file a grievance. The Jail Administrator then reviews and

investigates the grievance, resolving it if possible. The Jail Administrator notes the decision on

the bottom of the form and returns it to the inmate. If the inmate is not satisfied with the Jail

Administrator’s decision, he must file an appeal to the Sheriff within five days, excluding

weekends and holidays. The appeal form is identical to that of the grievance form, except the

1

Additionally, inmates may file a request, which is not considered to be part of the

grievance procedure.

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line labeled “Appeal” must be marked by the inmate. The Sheriff then renders a decision within

ten days of receiving the appeal and notes the decision on the bottom of the appeal form. (See

Ross County Sheriff’s Office Policy and Procedure Manual Corrections Division § 50006.3,

ECF No. 17-1.) 

The undersigned concludes that Defendants have satisfied their burden of proving that

Plaintiff failed to exhaust his administrative remedies with regard to his § 1983 claims. 

Defendants submitted the Affidavit of Mike Preston, a Sergeant in the Ross County Sheriff’s

Office, in which he represents that Plaintiff did not file any appeals between his arrival and the

filing of the instant action. (Preston Aff. ¶ 10, ECF No. 17-1.) Plaintiff has not disputed Mr.

Preston’s representation. Accordingly, the undersigned RECOMMENDS DISMISSAL of

Plaintiff’s § 1983 medical indifference claims WITHOUT PREJUDICE for failure to properly

exhaust his administrative remedies. See Boyd v. Corrs. Corp. of Am., 380 F.3d 989, 994 (6th

Cir. 2006) (citing Knuckles El v. Toombs, 215 F.3d 640 (6th Cir. 2000)) (“A dismissal under §

1997e should be without prejudice.”) The conclusion that Plaintiff failed to exhaust his

administrative remedies obviates the need for consideration of Defendants’ alterative bases for

summary judgment on these claims. 

B. HIPAA & State-Law Claims

Defendants correctly assert that to the extent Plaintiff seeks to bring claims under

HIPAA, he lacks standing. HIPAA creates neither an express nor an implied cause of action for

private citizens to enforce its terms. Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006) (finding

that it lacked federal subject matter jurisdiction over plaintiff’s claims alleging violations of

HIPAA because HIPAA confers no private cause of action); accord Siegler v. Ohio State Univ.,

No. 2:11–cv–170, 2011 WL 1990570, at *8 (S.D. Ohio May 23, 2011); Henry v. Ohio Victims of

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Crime Comp. Prog., No. 2:07–cv–0052, 2007 WL 682427, at *2 (S.D. Ohio Feb. 28, 2007). 

Rather, HIPAA expressly limits enforcement of the statute to the Secretary of Health and Human

Services. Acara, 470 F.3d at 571 (citing 42 U.S.C.§§ 1320d-5, d-6); Sneed v. Pan Am. Hosp.,

370 F. App’x 47, 50 (11th Cir. 2010). Accordingly, the undersigned RECOMMENDS that the

Court DISMISS Plaintiff’s HIPAA claims. 

Finally, it is RECOMMENDED that the Court decline to exercise supplemental

jurisdiction over Plaintiff’s remaining state-law medical malpractice claim pursuant to 28 U.S.C.

§ 1367(c)(3). Dismissal of Plaintiff’s federal claims would not divest this Court of subjectmatter jurisdiction. Instead, when a federal court dismisses “all claims over which it has original

jurisdiction,” it must then exercise its discretion to determine whether to exercise supplemental

jurisdiction. See 28 U.S.C. § 1367(c)(3). The United States Court of Appeals for the Sixth

Circuit has held that “[i]f the federal claims are dismissed before trial, the state claims generally

should be dismissed as well.” Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) (internal

quotations marks and citation omitted). 

IV. DISPOSITION

For the reasons set forth above, the undersigned concludes that Plaintiff has not raised a

question of a material fact on the affirmative defense of failure to exhaust administrative

remedies. Thus, with regard to Plaintiff’s § 1983 medical indifference claims, it is

RECOMMENDED that Defendants’ Motion for Summary Judgment be GRANTED and

Plaintiff’s medical indifference claims be DISMISSED WITHOUT PREJUDICE. (ECF No.

17.) It is further RECOMMENDED that Plaintiff’s HIPAA claims be DISMISSED for lack of

standing. Finally, it is RECOMMENDED that the Court DECLINE to exercise supplemental

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jurisdiction over Plaintiff’s remaining state-law medical malpractice claim, DISMISSING this

claim WITHOUT PREJUDICE. 

 V. PROCEDURE ON OBJECTIONS

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 in

question, as well as the basis for objection. 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.

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

The parties are specifically advised that the 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

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: October 26, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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