IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SHANE BAKER, 

 

 Plaintiff, 

 

 V. Case No. 2:13-cv-0034 

 Judge Smith 

 Magistrate Judge King 

JOEL E. KAYE, M.D., et al., 

 

Defendants. 

 

REPORT AND RECOMMENDATION 

Plaintiff Shane Baker, a former inmate at the Pickaway 

Correctional Institution (“PCI”), filed this action under 42 U.S.C. § 

1983 against various employees of PCI and the Ohio Department of 

Rehabilitation and Correction (“ODRC”), alleging that defendants acted 

with deliberate indifference to plaintiff’s medical needs in violation 

of the Eighth Amendment to the United States Constitution. The 

Amended Complaint, ECF 11, also alleges state law claims for medical 

negligence and violations of O.A.C. § 5120:1-8-19, O.A.C. § 5120:1-8-

09, and O.R.C. § 5120.01. The only claims remaining pending in this 

case are plaintiff’s claims under 42 U.S.C. § 1983 alleging deliberate 

indifference on the part of defendants Andrew Eddy, M.D., and John 

Gardner in their individual capacities. See Report and 

Recommendation, ECF 17, p. 12-13; Order, ECF 19; Preliminary Pretrial 

Order, ECF 23. This matter is now before the Court on Defendants John 

Gardner and Dr. Andrew Eddy’s Motion for Summary Judgment 

(“Defendants’ Motion”), ECF 41. Plaintiff opposes Defendants’ Motion, 

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Opposition to Motion of Summary Judgment (“Plaintiff’s Response”), ECF 

44, and defendants have filed a reply. Defendants’ Reply, ECF 47. 

For the reasons that follow, it is RECOMMENDED that Defendants’ 

Motion, ECF 41, be GRANTED. 

I. Background 

 Plaintiff alleges that, while he was incarcerated at PCI, 

defendants acted under color of state law and in their individual 

capacities to deny him medical care in contravention of the Eighth 

Amendment to the United States Constitution. Amended Complaint, ¶ 5. 

Plaintiff specifically alleges that he was denied necessary treatment 

for a broken hand. Id. at ¶¶ 25-32. 

On February 24, 2011, plaintiff reported to a nurse at PCI that 

he had fallen on his left hand the previous day; the nurse wrapped 

plaintiff’s hand in an Ace bandage. ECF 43-1, p. 15. An x-ray 

revealed a transverse fracture extending from the mid shaft of the 

fourth metacarpal, a mild apex dorsal angulation, and an approximate 

three millimeter medial displacement. Id. at p. 12. Nneka Ezeneke, 

M.D., reviewed the x-ray on February 24, 2011, spoke with a hand 

surgeon, and concluded that plaintiff did not require further 

emergency evluation. Id. at pp. 10, 15. Dr. Ezeneke placed 

plaintiff’s hand in a splint and completed a consultation request for 

plaintiff to be seen at a hand clinic. Id. at pp. 10-11. 

Dr. Ezeneke’s consultation request was discussed on February 24, 

2011 during a collegial review session with Dr. Ezeneke and defendants 

Dr. Eddy, the State Medical Director for ODRC, Affidavit of Dr. Andrew 

Eddy (“Dr. Eddy Affidavit”), ECF 43-1, ¶ 4, and Gardner, the Regional 

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Nurse Practitioner for ODRC, Affidavit of John Gardner (“Gardner 

Affidavit”), ECF 43-3, ¶ 5. The three concluded that plaintiff should 

wear the splint for six weeks, that the fracture would most likely 

heal, and that Dr. Ezeneke would reconsider the course of action taken 

if a future x-ray revealed significant deformity or angulation. Id. 

at p. 10; Dr. Eddy Affidavit, ¶¶ 9-10; Gardner Affidavit, ¶¶ 9-10. 

 Plaintiff submitted a health services request and treated with a 

nurse on March 3, 2011. ECF 43-1, p. 16. Plaintiff failed to appear 

at doctor’s sick call on March 8, 2011. Id. at p. 17. Plaintiff was 

evaluated by a nurse on March 11, 2011, for a “fight check” and was 

referred to doctor’s sick call. Id. At the March 14, 2011 doctor’s 

sick call, plaintiff was infromed that Dr. Ezeneke had ordered the 

splint to remain in place for six weeks. Id. Plaintiff was also 

prescribed ibuprofen for pain. Id. at p. 18. 

Plaintiff submitted a health services request on April 5, 2011, 

for complaints of continued hand pain. Id. at pp. 17, 19. Plaintiff 

was evaluated by a nurse that same day and was referred to doctor’s 

sick call. Id. at pp. 17, 20. Plaintiff’s left hand was x-rayed for 

a second time on April 7, 2011. The x-ray again revealed a fracture 

extending transversely across the mid shaft of the fourth metacarpal, 

mild apex dorsal angulation and bridging callous. Id. at p. 14. 

Charles H. Muncrief, D.O., diagnosed a healing fracture of the fourth 

metacarpal. Id. Plaintiff was seen in doctor’s sick call on April 8 

and April 22, 2011. Id. at pp. 21-22. The April 7, 2011 x-ray was 

reviewed on both occasions and, on April 22, 2011, it was noted that 

plaintiff’s hand was healing. Id. Another x-ray was ordered to be 

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taken in six weeks; it was noted that plaintiff would benefit from an 

evaluation and treatment at a hand clinic. Id. 

A second consultation request for treatment at a hand clinic was 

submitted on April 22, 2011. Id. at p. 13. This request was 

discussed in a collegial review session with Dr. Ezeneke, Dr. Eddy, 

and Gardner on April 29, 2011. Dr. Eddy Affidavit, ¶ 12; Gardner 

Affidavit, ¶ 12. The April 7, 2011 x-ray was discussed and it was 

determined that, because the fracture was healing and because it 

usually takes a few months for a bone to harden, plaintiff should stay 

in the splint and follow-up x-rays should be taken. Dr. Eddy 

Affidavit, ¶ 12; Gardner Affidavit, ¶ 12. 

A third x-ray, taken on June 1, 2011, revealed a “fracture of the 

mid portion of the fourth metacarpal . . . with evidence of healing 

progress noted with callous formation.” ECF 43-1, p. 23. Comparison 

with the April 7, 2011 x-ray revealed “evidence of increasing callous 

formation indicative of progressive healing” and “[s]olid bony union 

is not evident as yet.” Id. Plaintiff was prescribed ibuprofen, his 

hand continued to be wrapped, and an x-ray was ordered to be taken in 

one month. Id. at pp. 22, 24. 

Plaintiff submitted a health services request and was evaluated 

by a nurse on June 16, 2011, for pain in his hand. Id. at pp. 25-26. 

Plaintiff described the pain as throbbing and intermittent; he 

reported that pain medication was not helpful. Id. at p. 25. 

Plaintiff was given ibuprofen and referred to doctor’s sick call. Id. 

Plaintiff was seen in doctor’s sick call on June 20, 2011. Id. at p. 

26. The doctor noted that plaintiff’s hand was healing. Plaintiff was 

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encouraged to continue wrapping his hand, and was prescribed 

ibuprofen. Id. 

A fourth x-ray was taken on July 11, 2011. Id. at p. 27. “The 

transverse fracture in the mid shaft of the fourth metacarpal [was] 

almost healed,” “[c]allous formation [was] solid,” and there was “[n]o 

change in position or acute complication from 6/1/11.” Id. 

 On September 11, 2011, after his release from prison, plaintiff 

was treated by Ramesh C. Gupta, M.D., at Miami Valley Hospital. 

Plaintiff’s Response, Exhibit 22. Plaintiff was diagnosed with finger 

stiffness, was given ibuprofen, and was instructed to follow up with 

the Miami Valley Hospital Hand Clinic. Id. Plaintiff underwent hand 

therapy on five occasions from October 19, 2011, through November 16, 

2011. Id. at Exhibits 24-39. 

 Plaintiff underwent surgery on his left ring and left little 

fingers on December 21, 2011. Id. at Exhibits 40-41. The surgeon, 

Eugene Kim, M.D., described plaintiff’s prior treatment as 

conservative and noted that plaintiff “had limited flexion of his left 

ring and small fingers that have been refractory to extensive physical 

therapy.” Id. Dr. Kim diagnosed flexor tendon adhesions of the left 

ring finger and left small finger. Id. The surgery included flexor 

tenolysis and A1 pulley release on the left ring and small fingers, as 

well as a tenolysis and carpal tunnel release of the left flexor 

tendons at the wrist. Id. 

 James Elmes, M.D., provided an Affidavit of Merit in which he 

opines that the medical treatment provided by defendants was negligent 

and “caused injury” to plaintiff. Id. at Exhibit 43. 

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II. Standard 

The standard for summary judgment is well established. This 

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

which provides in pertinent part: “The 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). Pursuant to Rule 56(a), 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.” 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 

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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 

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)). 

III. Discussion 

 Plaintiff asserts claims against Dr. Eddy and John Gardner in 

their individual capacities pursuant to 42 U.S.C. § 1983. Section 

1983 provides in relevant part: 

Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory or 

the District of Columbia, subjects, or causes to be 

subjected, any citizen of the United States or other person 

within the jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured 

in an action at law, suit in equity, or other proper 

proceeding for redress . . . . 

42 U.S.C. § 1983. A prima facie case under § 1983 requires evidence 

of (1) conduct by an individual acting under color of state law, and 

(2) the deprivation of a right secured by the Constitution or laws of 

the United States. Day v. Wayne Cnty. Bd. of Auditors, 749 F.2d 1199, 

1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535 

(1981)). Section 1983 merely provides a vehicle for enforcing 

individual rights found elsewhere and does not itself establish any 

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substantive rights. See Gonzaga Univ. v. Doe, 536 U.S. 273, 285 

(2002). 

 In the case presently before the Court, plaintiff alleges that 

defendants acted with deliberate indifference to his medical needs in 

violation of the Eighth Amendment to the United States Constitution 

because they failed to provide necessary treatment of plaintiff’s 

broken hand. 

 The Eighth Amendment to the United States Constitution prohibits 

cruel and unusual punishment. In order to prevail on his claims 

against each defendant, plaintiff must prove that the defendant 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). 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 

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). 

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In the case presently before the Court, the evidence is 

insufficient to find that defendants acted with the requisite mental 

intent. Plaintiff injured his left hand when he slipped and fell on 

an icy step at PCI on February 23, 2011. See Amended Complaint, ¶ 10; 

ECF 43-1, p. 15. Plaintiff was treated by a nurse and Dr. Ezeneke; xrays were administered and plaintiff was provided ibuprofen, a splint, 

and an Ace bandage by February 24, 2011. ECF 43-1, pp. 10-12, 15. 

Dr. Ezeneke reviewed the x-ray and spoke with a hand surgeon, 

determined that an emergency department evaluation was not necessary, 

and requested a consultation with a hand clinic. Id. at pp. 10, 15. 

Dr. Ezeneke discussed her request with defendants Dr. Eddy and Gardner 

in a collegial review session on February 24, 2011 to determine 

whether the request was medically necessary. See id. at p. 10; Dr. 

Eddy Affidavit, ¶¶ 8-10; Gardner Affidavit, ¶¶ 8-10. The three 

concluded that the fracture would most likely heal on its own, that 

plaintiff should wear the splint for six weeks, and that Dr. Ezeneke 

would reconsider the course of action taken if a future x-ray revealed 

significant deformity or angulation. See ECF 43-1, p. 10; Dr. Eddy 

Affidavit, ¶¶ 8-10; Gardner Affidavit, ¶¶ 8-10. 

Dr. Ezeneke, Dr. Eddy, and Gardner discussed plaintiff’s course 

of treatment again on April 29, 2011, to determine whether a referral 

to a hand clinic was medically necessary. Dr. Eddy Affidavit, ¶¶ 9, 

12; Gardner Affidavit, ¶¶ 9, 12. Plaintiff’s April 7, 2011 x-ray was 

discussed, and it was determined that plaintiff should remain in the 

splint and that follow-up x-rays should be taken. Dr. Eddy Affidavit, 

¶ 12; Gardner Affidavit, ¶ 12. This decision was premised on the 

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April 7, 2011 x-ray which was read as indicating “that the fourth 

metacarpal fracture was healing, a bridging callous was noted, that it 

was in the same position, but that the bone had not yet hardened, 

which usually takes a few months.” Dr. Eddy Affidavit, ¶ 12; Gardner 

Affidavit, ¶ 12. 

There is no evidence that Dr. Eddy or Gardner had any involvement 

in plaintiff’s medical treatment after April 7, 2011. See Dr. Eddy 

Affidavit, ¶ 13 (“There were no more Consultation Requests and, 

therefore, Baker’s medical condition was never again discussed during 

the collegial review process.”); Gardner Affidavit, ¶ 13 (same). 

Plaintiff nevertheless continued to receive medical treatment at PCI. 

A June 1, 2011 x-ray revealed “evidence of healing[:] progress noted 

with callous formation.” ECF 43-1, p. 23. A fourth x-ray performed 

on July 11, 2011 revealed that the “transverse fracture in the mid 

shaft of the fourth metacarpal [was] almost healed,” “[c]allous 

formation [was] solid,” and there was “[n]o change in position or 

acute complication from 6/1/11.” Id. at p. 27. 

Although there is evidence that Dr. Eddy and Gardner were aware 

of plaintiff’s hand injury, there is no evidence to suggest that 

either defendant subjectively perceived facts from which to draw an 

inference that failure to refer plaintiff to a hand specialist created 

a substantial risk of harm to plaintiff. To the contrary, the April 

7, 2011 x-ray revealed a healing fracture, ECF 43-1, p. 14, the June 

1, 2011 x-ray revealed “evidence of healing progress . . . with 

callous formation,” id. at p. 23, and the July 11, 2011 x-ray revealed 

that the fracture in plaintiff’s fourth metacarpal was “almost healed” 

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and that “[n]o change in position or acute complication from 6/1/11” 

was noted. Id. at p. 27. 

Moreover, there is no evidence in the record that surgical repair 

was the only acceptable method of treating plaintiff’s fractured 

fourth metacarpal. The only evidence presented by plaintiff that his 

medical care was inadequate is an Affidavit of Merit in which 

plaintiff’s expert, Dr. Elmes, states merely that the treatment 

administered by defendants was “negligent.” Plaintiff’s Response, 

Exhibit 43. However, “[m]edical malpractice does not become a 

constitutional violation merely because the victim is a prisoner,” 

Estelle, 429 U.S. at 106, and even negligent medical care in the 

prison context does not rise to the level of a constitutional 

deprivation. Farmer, 511 U.S. at 835. Accordingly, plaintiff has not 

satisfied the subjective component of his deliberate indifference 

claims. Although plaintiff may disagree with his course of medical 

treatment, he has failed to articulate facts or produce evidence even 

suggesting that Dr. Eddy or Gardner acted with deliberate indifference 

to plaintiff’s medical condition. 

Plaintiff has not raised a genuine issue of material fact and 

defendants are therefore entitled to judgment as a matter of law on 

all of plaintiff’s remaining claims. It is therefore RECOMMENDED that 

Defendants’ Motion, ECF 41, be GRANTED. 

 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 

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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 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). 

January 16, 2015 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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