IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAVID G. FOX,

Plaintiff,

vs. Civil Action 2:12-CV-324 

Judge Watson 

Magistrate Judge King

DOCTOR EDDY, et al.,

Defendants.

REPORT and RECOMMENDATION

Plaintiff, an inmate currently incarcerated at the Ross

Correctional Institution (“RCI”), brings this action against

defendants Ohio Department of Rehabilitation and Correction (“ODRC”)

Chief Medical Officer Dr. Eddy, RCI Chief Medical Officer Dr. Gary

Krisher, RCI Health Care Administrator Lisa Bethel, ODRC Director Gary

Mohr, and RCI Warden Timothy Buchanan under 42 U.S.C. § 1983, alleging

that defendants acted with deliberate indifference to his medical

needs in violation of the Eighth Amendment to the United States

Constitution. Complaint, Doc. No. 3, at 1. This matter is before the

Court on Plaintiff David G. Fox Motion for Preliminary Injunction and

Motion for Temporary Restraining Order (“Plaintiff’s Motions”), Doc.

No. 4, and Defendants’ Motion for Summary Judgment (“Defendants’

Motion”), Doc. No. 17. For the reasons that follow, it is RECOMMENDED

that Defendants’ Motion be GRANTED and that Plaintiff's Motions be

DENIED.

I. BACKGROUND

Plaintiff asserts that he was diagnosed with Hepatitus C by a

prison doctor in 2006 and with cirrhosis of the liver thereafter. 

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Affidavit David Fox, attached to Doc. No. 4, at PAGEID #14.1

 Plaintiff

claims that his condition was monitored when it should have been

treated, that the delay in treatment caused his medical condition to

deteriorate, and that this “neglect” constitutes deliberate

indifference to his serious medical condition. Id. Specifically,

plaintiff claims that he now has stage four cirrhosis that can be

treated only with a liver transplant. Id. Plaintiff asks that he be

administered medications to boost his blood platelet levels, be

evaluated at all Ohio liver transplant centers, and be placed on the

liver transplant list at those centers. Complaint, at 6; Plaintiff’s

Motions, at 3. 

Defendants oppose plaintiff’s request for interim injunctive

relief and move the Court to grant summary judgment in their favor.

Because a court considering a request for interim injunctive

relief must consider the likelihood of plaintiff’s success on the

merits of his claim, see Michigan State AFL-CIO v. Miller, 103 F.3d

1240, 1249 (6th Cir. 1997), the Court will first address defendants’

motion for summary judgment.

II. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

A. Standard

The standard for summary judgment is well established. This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,

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Plaintiff’s affidavit appears in the middle of Doc. No. 4. The Court

will refer to specific portions of the affidavit by reference to the docket

PAGEID numbers.

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which provides in pertinent part:

The judgment sought shall be rendered if the pleadings,

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of

law.

Fed. R. Civ. P. 56(c). Pursuant to Rule 56(c), summary judgment is

appropriate if “there is no genuine issue as to any material fact.” 

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

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

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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)). 

B. Discussion

The Eighth Amendment to the United States Constitution prohibits

cruel and unusual punishment. To prevail on his claims, plaintiff

must prove that defendants acted with “deliberate indifference to

[his] 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). “[N]egligen[ce] in diagnosing or treating a medical condition

does not state a valid claim of medical mistreatment under the Eighth

Amendment.” Estelle, 429 U.S. at 106. For a claim to be cognizable,

“a prisoner must allege acts or omissions sufficiently harmful to

evidence deliberate indifference to serious medical needs.” Id.

Courts have found that hepatitis C is a serious medical

condition, Owens v. Hutchinson, 79 F. App’x 159, 161 (6th Cir. 2003),

and defendants do not contest that plaintiff is infected with

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hepatitis C and that he now suffers from cirrhosis of the liver. See

Defendants’ Reply in Support of Their Motion for Summary Judgment,

Doc. No. 28, at 5. However, the affidavits and medical records

submitted in connection with Defendants’ Motion, Doc. No. 17, and

Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary

Judgment, Doc. No. 23, establish that defendants have not been

deliberately indifferent to plaintiff’s medical conditions. 

Plaintiff asserts that he is receiving a substandard level of

care, that nothing is being put on paper about his condition, and that

delays in treatment have caused his liver damage. Affidavit David

Fox, at PAGEID# 4. Plaintiff’s medical records, which are not

disputed, show that he has been continually monitored at the Chronic

Care Clinic, has received care at the Gastroenterology Clinic and

Hepatology Clinic at The Ohio State University, has received at least

one liver ultrasound, had blood drawn on November 18, 2011, had labs

performed on May 4, 2012, has met with a dietary technician, and has

received a steroid injection. See Affidavit of Lisa Bethel, attached

to Defendants’ Motion, Doc. No. 17. Plaintiff’s medical records show

that he refused, against medical advice, to follow up with the

Gastroenterology Clinic for a recommended liver biopsy on July 6,

2007, an ultrasound of his liver on January 16, 2008, and hemoccult

studies on January 3, 2011. See Doc. No. 17, Exhibits A, B, D, F. 

His medical records also show that, as of February 15, 2012, the

Hepatology Clinic had not recommended a liver transplant and that the

Advanced Level Providers at RCI did not believe that plaintiff met the

criteria for a liver transplant. Doc. No. 17, Exhibit O. Plaintiff

has not shown that he is eligible for a liver transplant.

Plaintiff also asserts that he refused the recommended liver

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biopsy because it was “not needed,” and that defendants “made grave

errors in diagnosis, judgment, and analysis of plaintiff’s condition.” 

Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary

Judgment, Doc. No. 23, at 3, 7. In essence, plaintiff’s claim amounts

to a difference of opinion between him and the prison health care

providers and a dispute over the adequacy of his treatment. This does

not amount to an Eighth Amendment claim unless the record establishes

that the medical attention actually rendered is “so woefully

inadequate as to amount to no treatment at all.” Westlake v. Lucas,

537 F.2d 857, 860 n.5 (6th Cir. 1976); accord Owens, 79 F. App’x at

161 (“A patient's disagreement with his physicians over the proper

medical treatment alleges no more than a medical malpractice claim,

which is a tort actionable in state court, but is not cognizable as a

federal constitutional claim.”); Apanovitch v. Wilkinson, 32 F. App’x

704, 707 (6th Cir. 2002) (citing Estelle, 429 U.S. at 107); Miles v.

Booth, 238 F.3d 422, *3 (6th Cir. 2000); Street v. Corr. Corp. of Am.,

102 F.3d 810, 816 n.13 (6th Cir. 1996). The medical records submitted

by both parties establish that plaintiff has received regular medical

treatment and that plaintiff’s requests for additional treatment have

been granted on multiple occasions. See Plaintiff’s Memorandum in

Opposition, at 5 (indicating that blood work was drawn on December 5,

2011 upon plaintiff’s request and that letters written to ODRC

resulted in additional treatment). Al;though plaintiff questions the

adequacy of his medical treatment, no reasonable jury could find that

the treatment actually provided plaintiff has been so woefully

inadequate as to amount to no treatment at all. Accordingly,

defendants are entitled to judgment as a matter of law. It is

therefore RECOMMENDED that Defendants’ Motion for Summary Judgment,

Doc. No. 17, be GRANTED. 

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III. Plaintiff’s Motions

In light of the foregoing, and because plaintiff has not

established the likelihood of success on the merits of his claims, it

is RECOMMENDED that Plaintiff David G. Fox Motion for Preliminary

Injunction and Motion for Temporary Restraining Order, Doc. No. 4, be

DENIED.

In short, the Court concludes that there is no genuine issue of

material fact and that defendants are entitled to judgment as a matter

of law. It is therefore RECOMMENDED that Defendants’ Motion, Doc. No.

17, be GRANTED, and that Plaintiff's Motions, Doc. No. 4, be DENIED as

moot.

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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);

Smith v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370

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

1981).

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August 28, 2012 s/ Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

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