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.

OPINION AND ORDER

This matter is before the Court for consideration of the Objection filed by Defendants

Wexford Health Sources, Inc. and Sara Seeburger to the Magistrate Judge’s January 3, 2011

Report and Recommendation. Doc. No. 69. The Court reviews the matter de novo. 28 U.S.C. §

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

I.

Plaintiff Donald D. Danford, currently incarcerated at the Noble Correctional Institution

[“NCI”], claims that Defendants were deliberately indifferent to his serious medical needs in

violation of the Eighth Amendment to the United States Constitution. In addition to the state

Defendants,1 Plaintiff has sued Wexford Health Sources, the independent contractor that

provides health care services at NCI, and Sara Seeburger, Administrator of Wexford

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Mr. Banks, Warden at NCI, and V. Sawyer, Health Care Administrator at NCI. 

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[collectively, “the Wexford Defendants”]. The Wexford Defendants filed a Motion for Summary

Judgment, Doc. No. 38, which the Magistrate Judge has recommended be denied. Report and

Recommendation, Doc. No. 63. The Wexford Defendants object to that recommendation. 

In the Complaint, Doc. No. 4, Plaintiff alleges that he suffered injuries to his ankle and

leg after slipping on a dormitory floor at NCI. Id. at 5. Plaintiff was treated for the injury and

underwent surgery. Plaintiff claims, however, that he did not receive rehabilitation or further

treatment “due to the incompetence and practices of NCI / Wexford personnel.” Id. According

to Plaintiff, he continues to suffer pain in his lower leg. Id.

The Wexford Defendants filed a Motion for Summary Judgment on Plaintiff’s claim for

deliberate indifference. Doc. No. 38. In support of their motion, the Wexford Defendants

offered the affidavit of Andrew Eddy, M.D., the Institutional Chief Medical Officer for NCI, in

which Dr. Eddy opines that “the care and treatment provided by [NCI} and [Wexford]’s

physicians and medical staff . . . met and complied with the standard of care required of

physicians and healthcare providers . . . .” Affidavit of Andrew Eddy, M.D. at ¶ 7, attached as

Exhibit B to Motion for Summary Judgment, Doc. No. 38. Dr. Eddy also opined that the

treatment by Wexford “did not cause or contribute to any injury” Plaintiff claims to now suffer. 

Id. at ¶ 8. 

According to the Wexford Defendants, because Plaintiff has failed to rebut Dr. Eddy’s

affidavit with a contrary expert opinion, he could not succeed on a medical malpractice claim

and therefore cannot succeed on his deliberate indifference claim. The Wexford Defendants cite

two cases in support of this argument, Simon v. Miami County Incarceration Facility, No. 3:05-

CV-191, 2006 WL 1401645 (S.D. Ohio May 12, 2006) and Stanley v. Wilson County, No. 3:03-

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0284, 2007 WL 2471693 (M.D. Tenn. August 24, 2007). 

In the Report and Recommendation, the Magistrate Judge observed that, unlike the

Plaintiff in this case, the plaintiffs in Simon and Stanley expressly asserted both Eighth

Amendment and state medical malpractice claims. See Report and Recommendation, Doc. No.

63, at 7 n.3. In Simon, the court relied on the decision of the United States Court of Appeals for

the Sixth Circuit in Napier v. Madison County, Kentucky, 238 F.3d 739 (6th Cir. 2001). Napier

held that, in considering the objective element of an Eighth Amendment claim complaining of a

delay in medical treatment, “verifying medical evidence in the record” is necessary to establish

the alleged detrimental effect. Id. at 742-43. 

According to the Wexford Defendants, Plaintiff’s claim must fail because he has not

come forward with verifying medical evidence as to the alleged detrimental effect of any delay

in medical treatment. As the Magistrate Judge correctly observed, however, the Napier rule

applies when the alleged need for medical care at issue in the case is “seemingly minor or nonobvious.” Report and Recommendation, Doc. No. 63, at 7, citing Blackmore v. Kalamazoo

County, 390 F.3d 890, 898 (6th Cir. 2004). In instances where the need is obvious to even a

layperson, verifying medical evidence is not required. “Instead, it is sufficient to show that

[plaintiff] actually experienced the need for medical treatment, and that the need was not

addressed within a reasonable time frame.” Id. at 900. The Magistrate Judge held that

“genuine issues remain as to whether Plaintiff’s need for care was obvious and whether [the

Wexford] Defendants’ treatment or non-treatment amounted to a constitutional deprivation.” 

Report and Recommendation, Doc. No. 63, at 8. 

In opposing the Motion for Summary Judgment, Plaintiff submitted his own affidavit

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stating that he was still attempting to obtain medical records relating to his injury. Affidavit of

Plaintiff, at ¶ 4, attached as Exhibit to Memorandum contra, Doc. No. 39. The Magistrate Judge

concluded that, under these circumstances, “Plaintiff should be afforded an opportunity to

complete this discovery in order to meaningfully address these issues.” Report and

Recommendation, Doc. No. 63 , at 8, citing Fed. R. Civ. P. 56(d). The Magistrate Judge

therefore recommended that the motion for summary judgment be denied without prejudice to

renewal. Id.

II.

In their Objection, the Wexford Defendants first argue that the Magistrate Judge

improperly relied on the Sixth Circuit’s decision in Blackmore, supra. According to the

Wexford Defendants, Blackmore “is premised upon the underlying fact that the deliberate

indifference claim was being asserted against a lay person and not a medical professional.” 

Objection, Doc. No. 69, at 9. Because Plaintiff asserts his claim against medical professional,

the Wexford Defendants insist that Plaintiff must come forward with verifying medical evidence

to support that claim. 

In this Court’s view, whether the claim of deliberate indifference is asserted against a lay

person or a medical professional is immaterial. Instead, it is the nature of the alleged serious

medical need that determines whether verifying medical evidence is necessary to establish the

objective element of a deliberate indifference claim. If the condition is not obviously serious,

then verifying evidence is necessary; if the condition is obvious, then such evidence is not

necessary. See Blackmore, 390 F.3d at 900. 

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In this case, the Magistrate Judge concluded that genuine issues of material fact remain

as to whether Plaintiff’s need for care was obvious or not and, in turn, whether the Wexford’s

Defendants’ response to that need amounted to a constitutional deprivation. Report and

Recommendation, Doc. No. 63, at 8. The Court agrees with this conclusion. 

Moreover, because Plaintiff had not yet had the opportunity to obtain his medical

records, the Magistrate Judge was correct in concluding that Plaintiff should be afforded the

opportunity to complete that discovery. The Wexford Defendants have not been unreasonably

prejudiced by that conclusion because, as the Magistrate Judge contemplated, the Wexford

Defendants may renew their motion following the completion of such discovery. Id.

The Wexford Defendants also object to the Magistrate Judge’s reliance on Fed. R. Civ. P.

56(d) in determining that Plaintiff should be afforded the opportunity to complete discovery. 

According to Defendants, Plaintiff did not satisfy the standard for relief under that rule. Rule

56(d) provides that “[i]f an nonmovant shows by affidavit or declaration that, for specified

reasons, [he] cannot present facts essential to justify [his] opposition [to a motion for summary

judgment], the court may: (1) defer the motion or deny it; (2) allow time to obtain affidavits or

declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P.

56(d). Defendants correctly observe that “[b]are allegations or vague assertions of the need for

discovery are not enough” to warrant relief under the rule. See Summers v. Leis, 368 F.3d 881,

887 (6th Cir. 2004). In this case, however, the Court finds that Plaintiff’s articulation, made in

his affidavit, that he was awaiting production of his medical records amounts to more than a bare

allegation or vague assertion of the need for more discovery. Thus, the Court concludes that the

Magistrate Judge correctly applied Rule 56(d). 

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Finally, the Wexford Defendants argue that the Magistrate Judge should have

recommended the grant of the motion for summary judgment because Plaintiff failed to satisfy

the subjective element of his deliberate indifference claim. As the Magistrate Judge outlined, an

Eighth Amendment deliberate indifference to medical needs claim is comprised of both objective

and subjective components. “To satisfy the subjective component, the plaintiff must allege facts

which, if true, would show that the official being sued subjectively perceived facts from which to

infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then

disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). 

The Magistrate Judge did not specifically address the evidence offered by Plaintiff in

opposition to the Wexford Defendants’ motion as it relates to the subjective element of the

claim. The Court notes that, in opposing Defendants’ motion, Plaintiff took the position that

discovery will demonstrate that the Wexford Defendants acted with “ill will” with respect to the

care rendered to him. See Plaintiff’s Memorandum contra, Doc. No. 39, at 4. Because

discovery continues and, in view of the recommendation that Defendants be permitted to file a

renewed dispositive motion following the completion of such discovery, this Court finds no error

in the Magistrate Judge’s failure to award summary judgment on the subjective element of

Plaintiff’s claim against the Wexford Defendants. 

 III.

For the foregoing reasons, the Wexford Defendants’ objections, Doc. No. 69, are

DENIED. The Report and Recommendation, Doc. No. 63, is ADOPTED and AFFIRMED. 

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The Wexford Defendants’ Motion for Summary Judgment, Doc. No. 38, is DENIED without

prejudice to renewal. 

 March 14, 2011 s/Algenon L. Marbley 

DATE ALGENON L. MARBLEY

UNITED STATES DISTRICT JUDGE

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