IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MARK EDWARD HURST, 

 Plaintiff, 

vs. Civil Action 2:11-cv-1090 

 Judge Smith 

 Magistrate Judge King 

OHIO DEPARTMENT OF REHABILITATION 

AND CORRECTION, et al., 

 Defendants. 

 

ORDER AND 

REPORT AND RECOMMENDATION 

Plaintiff Mark Hurst, a former state prisoner, originally filed 

this action under 42 U.S.C. § 1983 against defendants Ohio Department 

of Rehabilitation (“ODRC”), Gary Mohr, Mona Parks, Dr. David Weil, 

Karen Stanforth, Ralph Wilson, and six unidentified members of the 

“Collegial Review Committee,” alleging that defendants acted with 

deliberate indifference to his medical needs in violation of the 

Eighth Amendment to the United States Constitution. The Court 

previously granted summary judgment in favor of the original 

defendants on all claims except the § 1983 individual capacity claim 

against Dr. Weil. As to that claim, the Court concluded that “there 

remain[ed] a genuine issue of material fact as to whether the medical 

decisions made in this case were such a substantial departure from 

accepted professional judgment as to amount to deliberate 

indifference.” Report and Recommendation, Doc. No. 47, p. 16; Opinion 

and Order, Doc. No. 52. Plaintiff thereafter filed the Amended 

Complaint, Doc. No. 58, asserting claims against John Gardner and Dr. 

Case: 2:11-cv-01090-GCS-NMK Doc #: 88 Filed: 02/19/14 Page: 1 of 7 PAGEID #: <pageID>
2 

Andrew Eddy, the previously unidentified members of the “Collegial 

Review Committee.” 

This matter is now before the Court on plaintiff’s Motion to 

Compel, Doc. No. 84, and on plaintiff’s Motion for Summary Judgment, 

Doc. No. 78. 

Motion to Compel 

In his Motion to Compel, plaintiff seeks to require “the 

Defendants to provide readable printed names to match every signature, 

and initial, with a job[] title, to every Medical Document relating to 

Plaintiff, that the ODRC has on record.” Id. at p. 2. On August 1, 

2013, following a status conference, the Court directed that all 

discovery be completed by January 15, 2014. The parties were advised 

that the discovery completion date “requires that discovery requests 

be made sufficiently in advance to permit timely response by that 

date. Discovery related motions, if any, must be filed prior to the 

discovery completion date.” Order, Doc. No. 68, p. 1. Plaintiff’s 

Motion to Compel was filed on February 4, 2014, i.e., more than two 

weeks after the deadline for filing discovery related motions. 

Although plaintiff indicates that the motion relates to discovery 

requests propounded during the discovery period, plaintiff has not 

explained why the Motion to Compel was not filed “prior to the 

discovery completion date.” See Order, Doc. No. 68, p. 1. 

Furthermore, nothing in plaintiff’s Motion to Compel even suggests 

that the motion could not have been filed by the January 15, 2014 

deadline. Plaintiff simply has not shown that he was diligent in 

attempting to meet the case management deadline. Plaintiff’s Motion 

to Compel, Doc. No. 84, is therefore DENIED. 

Case: 2:11-cv-01090-GCS-NMK Doc #: 88 Filed: 02/19/14 Page: 2 of 7 PAGEID #: <pageID>
3 

Motion for Summary Judgment 

Plaintiff moves for summary judgment on his remaining claims. The 

standard for summary judgment is well established. Pursuant to Rule 

56(a) of the Federal Rules of Civil Procedure, summary judgment is 

appropriate if “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). Id. In making this determination, the evidence “must 

be viewed in the light most favorable” to the non-moving party. 

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary 

judgment will not lie if the dispute about a material fact is genuine, 

“that is, if the evidence is such that a reasonable jury could return 

a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986). However, summary judgment is appropriate if 

the opposing party “fails to make a showing sufficient to establish 

the existence of an element essential to that party’s case, and on 

which that party will bear the burden of proof at trial.” Celotex 

Corp. v. Catrett, 477 U.S. 317, 322 (1986). The “mere existence of a 

scintilla of evidence in support of the [opposing party’s] position 

will be insufficient; there must be evidence on which the jury could 

reasonably find for the [opposing party].” Anderson, 477 U.S. at 252.

 The “party seeking summary judgment always bears the initial 

responsibility of informing the district court of the basis for its 

motion, and identifying those portions” of the record which 

demonstrate “the absence of a genuine issue of material fact.” 

Celotex Corp., 477 U.S. at 323. The burden then shifts to the 

nonmoving party who “must set forth specific facts showing that there 

Case: 2:11-cv-01090-GCS-NMK Doc #: 88 Filed: 02/19/14 Page: 3 of 7 PAGEID #: <pageID>
4 

is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting 

Fed. R. Civ. P. 56(e)). “Once the moving party has proved that no 

material facts exist, the non-moving party must do more than raise a 

metaphysical or conjectural doubt about issues requiring resolution at 

trial.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th 

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 586 (1986)). 

The Amended Complaint asserts claims against Dr. Weil, Dr. Eddy, 

and John Gardner for allegedly denying plaintiff necessary surgery and 

rehabilitation in connection with a rotator cuff tear. Amended 

Complaint, ¶ 9. The Eighth Amendment to the United States 

Constitution prohibits cruel and unusual punishment. In order to 

prevail on his claims, plaintiff must prove that each defendant acted 

with “deliberate indifference to [plaintiff’s] serious medical needs.” 

Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). This standard includes 

both an objective and a subjective component. The objective component 

requires a plaintiff to show the existence of a “sufficiently serious” 

medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The 

subjective component requires a plaintiff to “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) (citing 

Farmer, 511 U.S. at 837). However, “a plaintiff need not show that 

the official acted ‘for the very purpose of causing harm or with 

knowledge that harm will result.’” Id. (quoting Farmer, 511 U.S. at 

Case: 2:11-cv-01090-GCS-NMK Doc #: 88 Filed: 02/19/14 Page: 4 of 7 PAGEID #: <pageID>
5 

835). “Instead, ‘deliberate indifference to a substantial risk of 

serious harm to a prisoner is the equivalent of recklessly 

disregarding that risk.’” Id. (quoting Farmer, 511 U.S. at 836). 

Plaintiff alleges that the cancellation of scheduled rotator cuff 

surgery by Dr. Weil, after consultation with Dr. Eddy and John 

Gardner, constitutes deliberate indifference to plaintiff’s serious 

medical needs. Plaintiff argues that the evidence attached to his 

Motion for Summary Judgment and a “thorough analysis” of this Court’s 

October 23, 2012 Report and Recommendation, Doc. No. 47, prove that 

Dr. Weil acted with deliberate indifference “and had no cognizable 

reason to cancel Plaintiff’s surgery.” Motion for Summary Judgment, 

pp. 3-9. Plaintiff’s argument is not well taken. 

The Report and Recommendation upon which plaintiff relies in this 

regard, Doc. No. 47, recommended that Defendants’ Motion for Summary 

Judgment be denied as to plaintiff’s § 1983 individual capacity claims 

against Dr. Weil. That recommendation was based on the conclusion 

that “there remain[ed] a genuine issue of material fact as to whether 

the medical decisions made in this case were such a substantial 

departure from accepted professional judgment as to amount to 

deliberate indifference.” Id. at p. 16. That genuine issue remains 

and plaintiff’s reliance on the Report and Recommendation as a basis 

for summary judgment is therefore improper. Furthermore, the 

additional evidence1

 submitted in support of plaintiff’s Motion for 

 

1

 Attached to plaintiff’s Motion for Summary Judgment are documents

consisting of, or relating to, ODRC protocols regarding referrals to medical 

consultation, the exhaustion of plaintiff’s administrative remedies, 

plaintiff’s medical records, plaintiff’s discovery requests and defendants’ 

responses thereto, declarations and defendants’ résumés, documents exchanged 

Case: 2:11-cv-01090-GCS-NMK Doc #: 88 Filed: 02/19/14 Page: 5 of 7 PAGEID #: <pageID>
6 

Summary is not dispositive of either plaintiff’s claims or of Dr. 

Weil’s defenses against those claims. The Court therefore concludes 

that there remains a genuine issue of material fact as to plaintiff’s 

deliberate indifference claim against Dr. Weil. Because plaintiff’s 

claims against Dr. Eddy and John Gardner are premised on these 

defendants’ agreement with Dr. Weil in cancelling plaintiff’s surgery, 

it follows that there also remains a genuine issue as to whether these 

defendants were also deliberately indifferent to plaintiff’s serious 

medical needs. 

Accordingly, it is RECOMMENDED that plaintiff’s Motion for 

Summary Judgment, Doc. No. 78, be DENIED. 

Plaintiff’s Motion to Compel, Doc. No. 84, is DENIED. 

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 

 between the parties during settlement negotiations, and plaintiff’s last 

paystub prior to his incarceration. At a minimum, these documents fail to 

establish the subjective component of his Eighth Amendment claims. See

Comstock, 273 F.3d at 703. Moreover, evidence of settlement negotiations 

cannot be considered on summary judgment. See Fed. R. Evid. 408. In any 

event, many of the attached documents were considered by the Court in 

resolving, and denying, defendants’ motion for summary judgment. See Doc. 

Nos. 36, 38, 47. 

Case: 2:11-cv-01090-GCS-NMK Doc #: 88 Filed: 02/19/14 Page: 6 of 7 PAGEID #: <pageID>
7 

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 Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

February 19, 2014 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

Case: 2:11-cv-01090-GCS-NMK Doc #: 88 Filed: 02/19/14 Page: 7 of 7 PAGEID #: <pageID>