1

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

KEVIN D. DARRAH, 

 

 Plaintiff, 

 vs. Civil Action 2:12-cv-899 

 Judge Smith 

 Magistrate Judge King 

DR. KRISHER, et al., 

 Defendants.

REPORT AND RECOMMENDATION

 Plaintiff, a former inmate at Lebanon Correctional Institution 

(“LeCI”) and current inmate at the Madison Correctional Institution 

(“MaCI”), brings this civil rights action under 42 U.S.C. § 1983 

claiming a denial of his right under the Eighth Amendment to the 

United States Constitution for denial of medical care. This matter is 

before the Court on Defendants Eddy, Krisher, Weil and the State of 

Ohio on Behalf of Karen Stanforth’s Motion for Summary Judgment, Doc. 

No. 40 (“Motion for Summary Judgment”). For the reasons that follow, 

it is RECOMMENDED that the Motion for Summary Judgment be GRANTED in 

part and DENIED in part. 

I. BACKGROUND 

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

maintains “a Drug Formulary, specifically developed for the ODRC and 

its institutions, that lists standardized medications that may be 

prescribed and dispensed for inmates without prior authorization from 

. . . the ODRC Office of Correctional Health Care [“Drug Formulary”].” 

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Declaration of Andrew D. Eddy, M.D., Doc. No. 40-9, ¶ 4 (“Eddy 

Declaration”).1

 “Medications not listed on the Drug Formulary [nonformulary drugs] require authorization prior to prescribing or 

administering to inmates.” Id. at ¶ 5. To obtain prior 

authorization, an advanced level provider must submit a “Request for 

Non-Formulary Drug Prior Authorization” (“PA request”) to the ODRC 

Office of Correctional Health Care. Id. at ¶ 5. Formulary 

medications “should be prescribed before prescribing non-formulary 

medications.” Id. at ¶ 6. 

 Plaintiff entered the Correctional Reception Center (“CRC”) on 

September 25, 2006. Declaration of Kevin Darrah (“Darrah 

Declaration”), Doc. No. 44-1, ¶ 1; Declaration of Brian Wittrup

(“Wittrup Declaration”), Doc. No. 51-2, ¶ 4.2

 Prior to his 

incarceration, plaintiff was diagnosed with plantar hyperkeratosis 

(“HPK”)3

 at the Cleveland Clinic. Darrah Declaration, at ¶ 2; Doc. No. 

44-4, PAGEID#:401 (Cleveland Clinic chart note dated August 30, 2005). 

HPK, a form of psoriasis, is a congenital disease that causes skin to 

thicken and build up on plaintiff’s feet, creating thick calluses that 

crack open and form fissures. Id.; Rodney L. Carlson, D.P.M.’s Expert 

 

1

 Defendant Eddy is a licensed doctor board certified in Internal Medicine. 

Id. at ¶¶ 2-3. 2

 Brian Wittrup, the Chief of ODRC’s Bureau of Classification, has access to 

the transfer history of current ODRC inmates. Id. at ¶¶ 2-3. 3

 Throughout the record, the parties use various terms to refer to plaintiff’s 

skin condition. See, e.g., Motion for Summary Judgment, pp. 3, 10 (referring 

to “Plantar Keratoderma”); Plaintiff’s Response and Memorandum in Opposition 

to Defendant’s [sic] Motion for Summary Judgment, Doc. No. 44, pp. 1-2 

(“Opposition”) (referring to page numbers appearing at the bottom of page) 

(referring to “plantar hyperkeratoderma” and “HPK”). The record does not 

reflect a material distinction between these terms. For ease of reference, 

the Court will therefore refer to plaintiff’s skin condition simply as “HPK.” 

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Report (“Carlson Expert Report”), Doc. No. 40-3, PAGEID#:255 (“Carlson 

Expert Report”);4 Declaration of Dr. Richard Bozian in Support of 

Plaintiff’s Opposition to Motion for Summary Judgment, Doc. No. 44-2, 

PAGEID#:340 - PAGEID#:341 (“Bozian Declaration”); Expert Report of Dr. 

Richard Bozian, Doc. No. 44-2, PAGEID#:432 - PAGEID#:384 (“Bozian 

Report”).5

 The Cleveland Clinic prescribed Soriatane, a second 

generation retinoid used to treat severe psoriasis conditions. Doc. 

No. 44-4, PAGEID#:401; Darrah Declaration, ¶ 4; Carlson Expert Report, 

PAGEID#:255 (noting further that Acitretin is another name for 

Soriatane); Eddy Declaration, ¶ 7 (same); Doc. No. 40-8, PAGEID#:268 

(same). 

 On November 29, 2006, plaintiff was transferred from CRC to MaCI 

and, on December 22, 2006, to LeCI. Wittrup Declaration, ¶¶ 5-6. 

Corrections Medical Center (“CMC”) dermatologists examined plaintiff 

in December 2006 and noted that his HPK had been “successfully 

treated” with Soriatane and that “[m]ultiple other treatments [were] 

ineffective.” Doc. No. 44-5, PAGEID#:405 (CMC consultation requests 

dated December 14 and 21, 2006). The CMC dermatologists at LeCI 

prescribed Soriatane, a non-formulary medication. Darrah Declaration, 

¶ 5; Declaration of Jennifer A. Clayton, R.N., B.A., C.C.H.P., Doc. 

No. 51-3, ¶¶ 7, 9 (“Clayton Declaration”);6

 Doc. No. 44-5, PAGEID#:405 

 

4

 Rodney L. Carlson is a contracting podiatrist with ODRC. Declaration of 

Rodney L. Carlson, Doc. No. 40-2, ¶ 2 (“Carlson Declaration”). 5

 Richard Bozian, M.D., F.A.C.P. is plaintiff’s medical expert who is a 

medical doctor licensed to practice medicine in the State of Ohio. Bozian 

Report, p. 1. 6

 Jennifer A. Clayton, a licensed Registered Nurse, is the Director of Nursing 

for ODRC’s Office of Correctional Healthcare. Id. at ¶¶ 2, 4-5. 

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- PAGEID#:406 (CMC dermatology consultation requests and reports dated 

December 14 and 21, 2006; June 20, 2007; and September 5, 2007). In 

September 2007, plaintiff reported “good results” with this drug, id. 

at PAGEID#:406, and the medical records reflect that plaintiff’s HPK 

was “much improved on Soriatane” in December 2007. Doc. No. 44-5, 

PAGEID#408 (Consultation report and recommendations dated December 20, 

2007). Plaintiff continued to be successfully treated with Soriatane 

while he was incarcerated at LeCI. Darrah Declaration, at ¶ 5; Doc. 

No. 44-5, PAGEID#407 - PAGEID#:410 (Consultation requests and report 

and recommendations dated through April 2009). 

On January 18, 2011, plaintiff was transferred from LeCI back to 

MaCI. Wittrup Declaration, ¶ 7. On January 31, 2011, he was seen in 

Nursing Sick Call (“NSC”) and reported that he had not received 

Soriatane since his transfer to MaCI. Doc. No. 40-1, PAGEID#:252 

(interdisciplinary progress notes dated January 31, 2011). On the 

same day, nursing personnel contacted defendant Dr. David C. Weil 

about ordering Soriatane. Id.; Doc. No. 40-5, PAGEID#265 (form 

labeled “Orders” dated January 31, 2011). On February 17, 2011, 

plaintiff was again seen in NSC and inquired about reordering 

Soriatane, but he did not complain of pain during this visit. Doc. 

No. 40-1, PAGEID#:252 (interdisciplinary progress notes dated February 

17, 2011). 

Defendant Weil examined plaintiff on March 2, 2011, noting that 

plaintiff’s heels were fissuring, but that plaintiff was in no 

apparent distress. Doc. No. 40-6, PAGEID#:266 (interdisciplinary 

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progress notes dated March 2, 2011). Defendant Weil also noted that 

plaintiff had previously used Soriatane, with “good effect[,]”and that 

other creams had had no effect, requiring plaintiff to walk on his 

toes. Doc. No. 40-1, PAGEID#:252 (interdisciplinary progress notes 

dated March 2, 2011). Defendant Weil went on to note that plaintiff 

was under the impression that his prior authorization for Soriatane 

was still in effect. Doc. No. 40-6, PAGEID#:266. Defendant Weil 

ordered plaintiff’s previous medical charts, a copy of the most recent 

prior authorization for Soriatane, and Soriatane for plaintiff. Doc. 

No. 40-5, PAGEID#:265 (form labeled “Orders” dated March 2, 2011); 

Doc. No. 44-10, PAGEID#:428 (form labeled “Orders” dated March 28, 

2011, referencing, inter alia, order placed March 22, 2011). 

Defendant Weil further instructed plaintiff to “kite” (send a note) if 

he did not receive a response. Doc. No. 40-6, PAGEID#:266. 

 Plaintiff filed an informal complaint on March 19, 2011, 

complaining that, because he was not taking Soriatane, he was “in 

excruciating pain” and had “open wounds that [made him] more 

susceptible to staph infection.” Doc. No. 44-19, PAGEID#:465 

(informal complaint resolution signed by plaintiff on March 19, 2011) 

(emphasis in original). On about March 22, 2011, plaintiff sent a 

kite to MaCI’s medical department, again complaining that, because he 

was not taking Soriatane, he had “two very large fissures (one on each 

heel)” that were “causing excruciating pain” which placed him “in a 

great deal of danger for staph infection.” Doc. No. 44-20, 

PAGEID#:466 (emphasis in original). On the same day, plaintiff also 

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filed a skin complaint form, complaining that he was not receiving 

proper treatment for his feet. Doc. No. 44-24, PAGEID#:470. 

Defendant Karen Stanforth responded by arranging for plaintiff to meet 

with defendant Weil on March 22, 2011. Doc. No. 44-19, PAGEID#:465 

(response to informal complaint dated March 22, 2011). On that day, 

defendant Weil again placed an order for Soriatane. Doc. No. 44-10, 

PAGEID#:428 (form labeled “Orders” dated March 28, 2011, referencing, 

inter alia, order placed March 22, 2011). 

 Upon examination on March 28, 2011, defendant Weil noted “large 

plaques/fissures” on plaintiff’s heels. Doc. No. 44-13, PAGEID#:448 

(interdisciplinary progress notes dated March 28, 2011). During this 

visit, plaintiff was upset because he had not yet received Soriatane 

for his heels. Id. On the same day, defendant Weil again attempted 

to reorder this medication. Doc. No. 44-10, PAGEID#:428 (form labeled 

“Orders” dated March 28, 2011). Because of plaintiff’s pain and 

difficulty walking, defendant Weil placed plaintiff on medical lay-in 

for 20 days. Doc. No. 44-24, PAGEID#:472 (medical restriction 

statement dated March 28, 2011); Darrah Declaration, ¶ 10. 

Defendant Weil examined plaintiff again on April 4, 2011, and 

noted “plaque and fissures” on plaintiff’s heels. Doc. No. 44-13, 

PAGEID#:449 (interdisciplinary progress note dated April 4, 2011). 

Defendant Stanforth also examined plaintiff on that day and noted 

“several calluses with some deep cracks/fissures at heel areas. No 

signs of infection identified.” Id. Plaintiff expressed frustration 

with his inability to obtain Soriatane. Id. On the same day, 

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defendant Weil submitted a prior authorization requesting Soriatane 

for plaintiff. Doc. No. 40-8, PAGEID#:268 (“Request for Non-Formulary 

Drug Prior Authorization” form dated April 4, 2011). In support of 

this request, defendant Weil explained that plaintiff’s heels were 

“very hard, fissured” and that plaintiff was “walk[ing] on [his] 

toes[.]” Id. Defendant Weil further explained that plaintiff had 

been on Soriatane since entering ODRC’s custody until plaintiff was 

transferred to MaCI from LeCI. Id. Defendant Weil went on to explain 

that other steroid creams had not helped plaintiff’s condition. Id. 

 On April 6, 2011, defendant Dr. Krisher denied the PA request for 

Soriatane, explaining that an alternative formulary medication, 

Methotrexate, was available. Id.; Eddy Declaration, ¶¶ 7-8. 

Defendant Krisher ordered that “high potency steroids” and folic acid 

be used and that another medication, Dovenex, be prescribed as needed. 

Doc. No. 40-8, PAGEID#:268; Eddy Declaration, ¶ 8. Defendant Krisher 

further ordered that plaintiff’s liver enzymes be monitored. Id. 

 During a telephone conference on April 7, 2011, defendant 

Stanforth advised plaintiff and plaintiff’s wife, Lacona Darrah, that 

defendant Krisher had denied the request for Soriatane. Doc. No. 44-

13, PAGEID#:450 (interdisciplinary progress notes dated April 7, 

2011). Upon defendant Stanforth’s recommendation, plaintiff agreed to 

try Methotrexate. Id. Dr. Weil was advised of this decision and 

prescribed this medication following “priority lab draws” to assess 

plaintiff. Id. On April 11, 2011, plaintiff picked up the 

Methotrexate and folic acid for self-administration, verbalizing his 

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understanding of the dosage instructions. Doc. No. 40-10, PAGEID#:273 

(interdisciplinary progress notes dated April 11, 2011). 

 Although plaintiff reported to the infirmary at least ten times 

after beginning Methotrexate, the progress notes do not refer to 

plaintiff’s HPK again until June 14, 2011. Doc. No. 44-14, 

PAGEID#:451 - PAGEID#:453 (interdisciplinary progress notes dated 

April 13, 2011 through May 26, 2011). On that date, defendant Weil 

examined plaintiff who reported that his feet were “no worse but no 

better[.]” Id. at PAGEID#:453. Upon plaintiff’s request, defendant 

Weil increased plaintiff’s Methotrexate dosage. Id. 

 On July 7, 2011, plaintiff filed an informal complaint, 

complaining that, because he was not taking Soriatane, he was “in 

constant, severe pain” and “prone to infection[.]” Doc. No. 44-21, 

PAGEID#:467 (informal complaint resolution submitted by plaintiff on 

July 7, 2011) (emphasis in original). In response to this complaint, 

defendant Stanforth discussed plaintiff’s HPK with Defendant Weil “who 

[had] concerns that [plaintiff claimed] ‘severe’ pain yet . . . told 

[defendant Weil that plaintiff] want[ed] to ‘run on the track.’” Id.

Defendant Stanforth advised plaintiff that “[t]his is conflicting 

information and difficult to understand. We offered a wheelchair for 

long distance walking but, again, you declined this and instead want 

to ‘run’ on your painful feet. (?)” Id. Defendant Stanforth further 

advised plaintiff to sign up for sick call so defendant Weil could 

determine if a stronger dose of Methotrexate was needed. Id. 

 On July 28, 2011, plaintiff filed a grievance, explaining that 

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“the Level of pain in my feet is the same whether I’m sitting, 

standing, walking, or running. . . . I run to stay in good health. If 

I’m going to be in severe pain, no matter what I do, I might as well 

try to stay Healthy.” Doc. No. 44-22, PAGEID#:468 (notification of 

grievance signed by plaintiff on July 28, 2011 that stated further 

that “[a]n inmate in my block just had a foot amputated because of an 

infection”). Plaintiff complained that the Methotrexate was “not 

working” and that he was at a “high risk of infection” because of 

another inmate’s recent staph infection diagnosis. Id. Plaintiff 

went on to contend that Soriatane had “cleared up” his HPK and asked 

that he be prescribed that medication “immediately.” Id.7

 

 On that same day, plaintiff was seen for a podiatry consultation. 

Doc. No. 44-14, PAGEID#:454. The podiatry note reflects “multiple 

areas of severe HPK buildup” with “pain to palpitation.” Id. 

Plaintiff’s HPK lesions were debrided. Nevertheless, it was noted 

that plaintiff’s “palmo-plantar keratoderma” was “stable in nature.” 

Id. 

 Thereafter, plaintiff continued to be seen for follow-up visits. 

Id. (reflecting three examinations in August and September 2011). On 

September 17, 2011, plaintiff filed a skin complaint form, complaining 

that he had obtained no relief from HPK affecting both soles of his 

feet. Doc. No. 44-25, PAGEID#:473. An assessment revealed rough 

scaling on plaintiff’s soles. Id. Plaintiff was advised to continue 

 

7

 On appeal, the Chief Inspector concluded on October 13, 2011 that “the 

medical staff is giving you proper care within the ODRC guidelines.” Doc. 

No. 44-23, PAGEID#:469 (Decision of the Chief Inspector on a Grievance 

Appeal). 

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taking his medications as prescribed, to maintain good hygiene, to 

apply cool compresses to reduce itching, and to avoid irritating 

soaps/detergents. Id. at PAGEID#:474. At his request, plaintiff was 

also referred to “Doctor Sick Call” (“DSC”) for evaluation. Id. 

 Defendant Weil examined plaintiff on November 1, 2011, and noted 

plaintiff’s complaint that the Methotrexate provided no benefit and 

that his heel fissures were not closing. Doc. No. 44-16, PAGEID#:459 

(“Chronic Disease Clinic Baseline Medical Data” dated November 1, 

2011). Defendant Weil noted fissures on both heels and prescribed 

another medication, Elavil, for “pain for [the] time being[.]” Id. at 

PAGEID#:460 - PAGEID#:461. 

 Plaintiff had a follow-up visit in DSC on November 15, 2011. He 

complained that the Methotrexate had had no effect on his HPK. Doc. 

No. 44-14, PAGEID#:454 (interdisciplinary progress notes dated 

November 15, 2011). The record reflects that an “attempt to restart 

Soriatane” would be made through plaintiff’s private insurance “or 

Canada.” Id. See also id. at PAGEID#:455 (reflecting that on 

November 17, 2011 plaintiff was advised that a prescription for 

Soriatane would be placed at plaintiff’s chosen pharmacy and that 

plaintiff would “either enroll privately [through his wife] . . . or 

secure Canadian supply[.]”). Id. 

 On November 21, 2011, a prescription for Soriatane was placed at 

a non-ODRC pharmacy. Id. A December 29, 2011 notation indicates that 

there was a “custody issue . . . [with the] entry of [the] box of 

Soriatane.” Id. at PAGEID#:455 - at PAGEID#:456. On January 26, 

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2012, defendant Weil filed a PA request to permit plaintiff to receive 

the Soriatane that Ms. Darrah had purchased. Doc. No. 44-7, 

PAGEID#:418 (“Request for Non-Formulary Drug Prior Authorization” 

dated January 26, 2012). Defendant Eddy approved the request, 

permitting a 90-day prescription. Id. Plaintiff received the 

Soriatane sometime in February 2012. Doc. No. 44-14, PAGEID#:457 

(interdisciplinary progress notes dated March 12, 2012, noting that 

plaintiff has been taking Soriatane for one month). During a podiatry 

examination on March 12, 2012, plaintiff reported that his feet had 

improved after using Soriatane for a month. Id. A nurse requested a 

new order for Soriatane on March 21, 2012 “so wife [Ms. Darrah] may 

order it again (comes from Canada)[,]” noting that the medication 

helps plaintiff’s feet. Id. This request was granted. Id. 

 A chronic disease follow-up examination on April 23, 2012 

revealed that plaintiff’s foot “lesions are almost gone. Just some 

scaly flakes remain.” Doc. No. 44-18, PAGEID#:464 (“Chronic Disease 

Clinic Follow Up” dated April 23, 2012). Subsequent evaluations 

revealed continued improvement. Id. Defendant Weil submitted 

additional PA requests for Soriatane (at Ms. Darrah’s expense), which 

were approved by defendant Eddy. Id.; Doc. No. 44-7, PAGEID#:419 - 

PAGEID#:422. 

 Plaintiff filed this action on September 28, 2012, asserting 

various claims against several MaCI and ODRC employees. Complaint, 

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Doc. No. 3.8

 The Court permitted plaintiff’s Eighth Amendment claims 

for deliberate indifference to a serious medical need against 

defendants Weil, Krisher, Eddy, and Stanforth to proceed. Initial 

Screening Report and Recommendation, Doc. No. 4, p. 10; Order, Doc. 

No. 7 (adopting and affirming recommendation). After the filing of 

this action, ODRC began to pay for plaintiff’s Soriatane. Doc. No. 

44-7, PAGEID#:422. 

 Defendants now move for summary judgment on plaintiff’s claims, 

and plaintiff, who is represented by counsel, opposes the motion. See 

Opposition. With the filing of Defendants Eddy, Krisher, Weil and the 

State of Ohio on Behalf of Karen Stanforth’s Reply in Support of Their 

Motion for Summary Judgment, Doc. No. 51 (“Reply”), this matter is 

ripe for resolution. 

II. DEFENDANT KAREN STANFORTH 

 The parties disagree whether plaintiff effected service on 

defendant Stanforth and whether this Court has personal jurisdiction 

over this defendant. By way of relevant background, on September 28, 

2012, the Court recommended that plaintiff’s Eighth Amendment claims 

for deliberate indifference against the defendants be permitted to 

proceed. Initial Screening Report and Recommendation, Doc. No. 4, p. 

10. The Court thereafter granted plaintiff’s request for leave to 

proceed in forma pauperis, and directed the Clerk of this Court to 

mail a courtesy copy of the Complaint and a copy of the order granting 

 

8

 Plaintiff and another inmate originally joined in the single Complaint. The 

Court concluded that the claims of these two inmates had been improperly 

joined and directed the Clerk to create two separate case files addressing 

the claims separately. Initial Screening Report and Recommendation, Doc. No. 

4. 

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such leave to the Attorney General of Ohio, Criminal Justice Section. 

Order, Doc. No. 5, p. 2. 

On October 22, 2012, defendants Krisher, Eddy, Weil and Stanforth 

filed an answer to the Complaint. Answer of Defendants with Jury 

Demand, Doc. No. 6 (“Answer”). The Answer does not assert a defense 

based on insufficiency of service of process or lack of personal 

jurisdiction. On the same day, the Court directed the United States 

Marshals Service to effect service of process on, inter alios, 

defendant Stanforth. Order, Doc. No. 7, p. 1. The summons directed 

to defendant Stanforth was signed on November 8, 2012 by one Kelly 

Graves, apparently an employee of ODRC. Doc. No. 11, pp. 7-9 

(reflecting the signature of Kelly Graves). On December 5, 2012, 

however, the summons was returned to the Court with a note on the 

exterior envelope advising to “RETURN TO SENDER UNABLE TO FORWARD[.]” 

Doc. No. 12-1. On April 3, 2013, the Court conducted a conference 

during which “[t]he parties agree[d] that the Court has subject matter 

jurisdiction under 28 U.S.C. §§ 1331, 1343, that the Court has 

personal jurisdiction over the parties and that venue is proper.” 

Scheduling Order, Doc. No. 20, p. 1. 

 In moving for summary judgment, defendants and the State of Ohio 

now argue in a footnote that “[t]he docket reflects that service was 

returned as unexecuted as to Defendant Stanforth (Doc #:12), and 

accordingly this Court does not have personal jurisdiction over her.” 

Motion for Summary Judgment, p. 1 n.1. Plaintiff disagrees, arguing 

that defendants and the State improperly conflate insufficient service 

of process with establishing personal jurisdiction and that defendant 

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Stanforth has waived and/or forfeited9

 her defenses of insufficiency of 

service of process and lack of personal jurisdiction. Opposition, pp. 

37-39. 

 “Although the questions of personal jurisdiction and service of 

process are closely interrelated, service of process is merely the 

means by which a federal court gives notice to the defendant and 

asserts jurisdiction over [that defendant.]” King v. Taylor, 694 F.3d 

650, 658-59 (6th Cir. 2012) (quoting 5B Charles A. Wright & Arthur R. 

Miller, Federal Practice & Procedure § 1353 at 338 (3d ed. 2004)) 

(internal quotation marks omitted). See also Fed. R. Civ. P. 12(b) 

(listing separately the defenses of lack of personal jurisdiction and 

insufficient service of process). “[W]ithout proper service of 

process, consent, waiver, or forfeiture, a court may not exercise 

personal jurisdiction over a named defendant.” King, 694 F.3d at 655. 

“[I]n the absence of personal jurisdiction, a federal court is 

‘powerless to proceed to an adjudication.’” Id. (quoting Ruhrgas AG 

v. Marathon Oil Co., 526 U.S. 574, 584 (1999)). Accordingly, the 

Court will first consider defendant Stanforth’s service defense. 

A plaintiff has the duty of serving the summons and complaint in 

accordance with Rule 4 and within the time allowed by Rule 4(m). Fed. 

R. Civ. P. 4(c)(1). See also Fed. R. Civ. P. 4(m) (requiring a court 

to dismiss without prejudice an action against a defendant if that 

defendant is not served within 120 days after the complaint is filed, 

but that “if the plaintiff shows good cause for the failure [to effect 

 

9

Because “waiver is the intentional relinquishment or abandonment of a known 

right[,]” “when considering whether a defendant has unintentionally lost the 

defense through his delay and participation in the litigation, the issue is 

more properly considered one of forfeiture.” King, 694 F.3d at 658 n.3 

(internal quotation marks omitted). 

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service], the court must extend the time for service for an 

appropriate period”). “Due process requires proper service of process 

for a court to have jurisdiction to adjudicate the rights of the 

parties.” O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 

353 (6th Cir. 2003). It follows that “[a]ctual knowledge of a lawsuit 

does not substitute for proper service under Fed. R. Civ. P. 4.” 

Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 623 

(6th Cir. 2004). A party may file a motion challenging the 

sufficiency of service of process and a court may therefore dismiss a 

complaint for “insufficient service of process.” Fed. R. Civ. P. 

12(b)(5). “When service of process is challenged, the burden rests 

with the plaintiff to establish that service is properly made.” 

McGath v. Hamilton Local Sch. Dist., 848 F.Supp.2d 831, 836 (S.D.Ohio 

2012). 

However, a party may waive or forfeit the defenses of 

insufficient service of process and lack of personal jurisdiction by 

either failing to include the defenses in a responsive pleading (or in 

a Rule 15(a)(1) amendment) or by failing to file a Rule 12(b)(5) 

motion. Fed. R. Civ. P. 12(h)(1). See also Cent. States, Southeast & 

Southwest Areas Health & Welfare Fund v. First Agency, Inc., 756 F.3d 

954, 959 (6th Cir. 2014); Fisher v. Merryman, No. 01-6129, 32 Fed. 

Appx. 721, at *723 (6th Cir. Mar. 21, 2002). As noted supra, defendant 

Stanforth did not assert either of these defenses in her Answer, nor 

did she file a motion under Rule 12(b)(5). Instead, this defendant 

waited more than eighteen months, until the summary judgment stage, 

before raising the issue in a footnote. Moreover, defendant 

Stanforth’s voluntary, active, and extensive participation in this 

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action unquestionably gave plaintiff a “reasonable expectation” that 

this defendant would defend plaintiff’s claims on the merits. See

King, 694 F.3d at 660. Under all these circumstances, this Court 

concludes that defendant Stanforth has waived or forfeited her right 

to object to this Court’s exercise of jurisdiction over her. Fed. R. 

Civ. P. 12(h)(1). See also King, 694 F.3d at 658-61. 

 Defendants’ reliance on O.R.C. § 109.361 does not militate a 

different result. See Motion for Summary Judgment, p. 1 n.1 (arguing 

that the Ohio Attorney General’s appearance on defendant Stanforth’s 

behalf “does not waive personal service and any defenses available at 

law”); Reply, p. 1 n.1 (same). This statute provides that the Ohio 

Attorney “shall represent and defend the officer or employee in any 

civil action instituted against the officer or employee” and does “not 

prohibit the attorney general from entering his appearance in a case 

to protect the interest of the state even though no request for the 

appearance has been made by the officer or employee.” O.R.C. § 

109.361. Nothing in the plain language of this statute provides an 

exception to waiver under Rule 12(h)(1) or otherwise addresses waiver 

or forfeiture of the personal jurisdiction defense. Defendant 

Stanforth cites to no authority that supports her assertion that 

O.R.C. § 109.361 excuses her failure to preserve a defense based on 

insufficiency of service of process or lack of personal jurisdiction. 

In short, the Court concludes that it may exercise personal 

jurisdiction over defendant Stanforth. 

 The Court notes that the motion for summary judgment, as it 

relates to defendant Stanforth, is based only on the defenses of 

insufficient service of process and personal jurisdiction. See Motion 

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for Summary Judgment, p. 1 n.1; Reply, pp. 1 n.1, 15. The Court now 

turns to the merits of the claims against defendants Krisher, Eddy and 

Weil (collectively, “the defendant doctors”). 

III. 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, 

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). 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 (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 (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 251. 

 The party moving for summary judgment always bears the initial 

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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. Catrett, 477 U.S. at 

323. Once the moving party has met its initial burden, 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 former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino 

Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995)(“nonmoving party 

must present evidence that creates a genuine issue of material fact 

making it necessary to resolve the difference at trial”). “Once the 

burden of production has so shifted, the party opposing summary 

judgment cannot rest on the pleadings or merely reassert the previous 

allegations. It is not sufficient to ‘simply show that there is some 

metaphysical doubt as to the material facts.’” Glover v. Speedway 

Super Am. LLC, 284 F. Supp.2d 858, 862 (S.D. Ohio 2003)(citing 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 

(1986)). Instead, the non-moving party must support the assertion 

that a fact is genuinely disputed. Fed. R. Civ. P. 56(c)(1). 

 In ruling on a motion for summary judgment “[a] district court is 

not ... obligated to wade through and search the entire record for 

some specific facts that might support the nonmoving party’s claim.” 

Glover, 284 F. Supp.2d at 862 (citing InteRoyal Corp. v. Sponseller, 

889 F.2d 108, 111 (6th Cir. 1989)). Instead, a “court is entitled to 

rely, in determining whether a genuine issue of material fact exists 

on a particular issue, only upon those portions of the verified 

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pleadings, depositions, answers to interrogatories and admissions on 

file, together with any affidavits submitted, specifically called to 

its attention by the parties.” Id. See also Fed. R. Civ. P. 

56(c)(3).

 B. Official Capacity Claims 

 Plaintiff brings this action against Dr. Krisher, “an agent of 

the State of Ohio”; Dr. Andrew Eddy, ODRC’s “Chief Medical Officer”; 

and Dr. David Weil, MaCI’s “C[hief] M[edical] O[fficer]/Advanced Level 

Provider[,]” in their official and 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 [*10] 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 

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

(2002). 

In the case presently before the Court, plaintiff alleges that 

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defendants acted with deliberate indifference to his serious medical 

needs in violation of the Eighth Amendment to the United States 

Constitution and are liable in their official capacities. See, e.g., 

Complaint, ¶¶ 14, 19, 22, 185-205. Official capacity suits 

“‘generally represent only another way of pleading an action against 

an entity of which an officer is an agent.’” Kentucky v. Graham, 473 

U.S. 159, 165-66 (1985) (quoting Monell v. Dep’t of Social Servs., 436 

U.S. 658, 690 n.55 (1978)). “[A]n official-capacity suit is, in all 

respects other than name, to be treated as a suit against the entity.” 

Id. (citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985)). 

Plaintiff alleges that Dr. Krisher is an agent of the State of 

Ohio; that defendant Eddy is ODRC’s agent; and that defendant Weil is 

MaCI’s agent. Complaint, ¶¶ 14, 19, 22. However, the State of Ohio, 

ODRC and MaCI are immune from suit in this Court by virtue of the 

Eleventh Amendment to the United States Constitution. See, e.g., Beil 

v. Lake Erie Corr. Records Dep’t, No. 06-3155, 282 F. App’x 363, at 

*366 (6th Cir. June 13, 2008). See also Regents of Univ. of Cal. v. 

Doe, 519 U.S. 425, 429 (1997) (stating that Eleventh Amendment 

sovereign immunity applies not only to the states themselves but also 

to “state agents and state instrumentalities”). The Eleventh 

Amendment does not, however, preclude official capacity claims for 

prospective injunctive relief. Ex parte Young, 209 U.S. 123 (1908). 

Plaintiff seeks monetary damages and a judgment declaring that 

defendants’ failure to provide medical care violated plaintiff’s 

Eighth Amendment rights. Complaint, p. 42. Plaintiff’s requested 

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declaration would be retroactive in nature. See, e.g., Dye v. 

Hatfield, No. 1:12-cv-1204, 2013 U.S. Dist. LEXIS 159010, at *3 (W.D. 

Mich. Oct. 10, 2013), adopted by, objection overruled by, dismissed in 

part by Dye v. Hatfield, No. 1:12-cv-1204, 2013 U.S. Dist. LEXIS 

158094 (W.D. Mich. Nov. 5, 2013); Sandy Frank Prods. LLC v. Mich. Film 

Office, No. 11-10933, 2012 U.S. Dist. LEXIS 399, at *10-11 (E.D. Mich. 

Jan 4, 2012). Because plaintiff seeks only retroactive relief and 

monetary damages, defendants Eddy, Krisher and Weil are entitled to 

Eleventh Amendment immunity on plaintiff’s official capacity claims. 

C. Individual Capacity Claims 

 Plaintiff also claims that the defendant doctors violated his 

Eighth Amendment rights by denying him medical care between January 

2011 and April 2011 and by providing him “detrimental treatment” 

between April 2011 and February 2012. See, e.g., Opposition, pp. 14-

21. To prevail on these claims, plaintiff must establish that these 

defendants acted with “deliberate indifference to [his] serious 

medical needs.” See Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). 

Deliberate indifference in violation of the Eighth Amendment contains 

both an objective and subjective component. Farmer v. Brennan, 511 

U.S. 825, 835-57 (1994). As for the objective component, a plaintiff 

must establish a “sufficiently serious” medical need. Farmer, 511 

U.S. at 834. A medical need is “sufficiently serious” when it “‘has 

been diagnosed by a physician as mandating treatment or one that is so 

obvious that even a lay person would easily recognize the necessity 

for a doctor’s attention[.]’” Santiago v. Ringle, 734 F.3d 585, 590 

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(6th Cir. 2013) (quoting Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 

2008). However, when a plaintiff bases a claim on “‘the prison’s 

failure to treat a condition adequately,’” id. (quoting Blackmore v. 

Kalamazoo Cnty., 390 F.3d 890, 898 (6th Cir. 2004)), “the plaintiff 

must ‘place verifying medical evidence in the record to establish the 

detrimental effect of the delay in medical treatment[.]’” Id. 

(quoting Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001)). 

 In the case presently before the Court, defendants argue that 

“[p]laintiff failed to submit any evidence that Defendants caused or 

allowed his [HPK] to rise to a serious level, and Defendants instead 

appropriately addressed and provided treatment at all times[.]” 

Motion for Summary Judgment, p. 10. Plaintiff disagrees, contending, 

inter alia, that he entered MaCI with a diagnosis of HPK and a 

prescription for Soriatane. Opposition, pp. 15-21. Plaintiff goes on 

to argue that he had open fissures or wounds on the bottom of his feet 

while at MaCI. Id. Plaintiff submits medical records to support 

these assertions, including a doctor’s diagnosis of his condition and 

evidence of severe fissures while incarcerated at MaCI. See, e.g., 

Doc. No. 44-4, 44-5, 44-7, 44-8, 44-10, 44-11, 44-12, 44-13, 44-14, 

44-15, 44-16, 44-17, 44-18, 44-24, 44-25. Plaintiff also submits the 

affidavit and report of his medical expert, Dr. Bozian. See Bozian 

Declaration; Bozian Report. Plaintiff has established the objective 

prong of his claims. See Santiago, 734 F.3d at 590. 

Turning to the subjective component, plaintiff must establish 

that the defendant doctors had a “‘sufficiently culpable state of 

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mind,’ equivalent to criminal recklessness.” See Santiago, 734 F.3d 

at 591 (quoting Farmer, 511 U.S. at 834, 839-40). This component 

requires more than “mere negligence, but less than ‘acts or omissions 

for the very purpose of causing harm or with knowledge that harm will 

result.’” Miller v. Calhoun Cnty., 408 F.3d 803, 813 (6th Cir. 2005) 

(quoting Farmer, 511 U.S. at 835). More specifically, “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). See also Farmer, 511 U.S. at 838 (“[A]n official’s 

failure to alleviate a significant risk that he should have perceived 

but did not, while no cause for commendation, cannot under our cases 

be condemned as the infliction of punishment.”). 

For instance, “[w]hen a prison doctor provides treatment, albeit 

carelessly or inefficaciously, to a prisoner, he has not displayed a 

deliberate indifference to the prisoner’s needs, but merely a degree 

of incompetence which does not rise to the level of a constitutional 

violation.” Comstock, 273 F.3d at 703. Nevertheless, a prison doctor 

“‘has a duty to do more than simply provide some treatment to a 

prisoner who has serious medical needs; instead, the doctor must 

provide medical treatment to the patient without consciously exposing 

the patient to an excessive risk of serious harm.’” Santiago, 734 

F.3d at 591 (quoting LeMarbe v. Wisneski, 266 F.3d 429, 439 (6th Cir. 

2001)). See also Estelle, 429 U.S. at 104 n.10 (citing as an example 

of deliberate indifference where a prison physician chooses “the 

easier and less efficacious treatment”). Finally, although a 

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difference of opinion between a prisoner and prison health care 

providers, or a dispute over the adequacy of a prisoner’s treatment, 

may constitute medical malpractice, that difference or dispute is not 

sufficient to state a claim for deliberate indifference under the 

Eighth Amendment. Id. at 106; Apanovitch v. Wilkinson, No. 01-3558, 

32 F. App’x 704, 707 (6th Cir. Feb. 5, 2002) (granting summary 

judgment to defendants where medical records showed that prison 

provided plaintiff with orthopedic devices, prescribed pain killers, 

and ordered diagnostic tests). 

In the case presently before the Court, plaintiff contends that 

the defendant doctors were deliberately indifferent to his HPK in 

several different ways. First, he argues that they prescribed 

Methotrexate instead of Soriatane even though Methotrexate was a less 

efficacious treatment. Opposition, pp. 22-26. Plaintiff next 

contends that the defendant doctors denied him Soriatane for nonmedical reasons. Id. at 26-30. Plaintiff goes on to complain that 

the defendant doctors interrupted his prescribed plan of treatment by 

denying him Soriatane. Id. at 30-33. Finally, plaintiff alleges that 

the defendant doctors ignored a substantial risk of harm from 

infection when they denied and delayed the administration of Soriatane 

and instead prescribed Methotrexate. Id. at 33-35. 

Plaintiff’s arguments are not well-taken. As set forth supra, 

the ODRC maintains a Drug Formulary that requires that formulary 

medications be prescribed before non-formulary medications. Eddy 

Declaration, ¶ 6. The Drug Formulary further requires that a provider 

submit a request for non-formulary medications and obtain 

authorization before prescribing non-formulary drugs. Id. at ¶¶ 4-6. 

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In accordance with this Drug Formulary, defendant Krisher, on April 6, 

2011, denied defendant Weil’s PA request for Soriatane, a nonformulary drug, because Methotrexate, an alternative formulary drug, 

was available. Id. at ¶¶ 7-8; Doc. No. 40-8, PAGEID#:268.10 Hindsight 

now reveals that the use of Methotrexate over the next several months 

was not as efficacious as Soriatane in treating plaintiff’s HPK. See 

supra. Plaintiff also offers medical evidence supporting his 

contention that Soriatane is more effective in treating HPK than 

Methotrexate. See Bozian Declaration; Bozian Report. However, the 

Court is not persuaded that the present record establishes that the 

defendant doctors were deliberately indifferent in contravention of 

the United States Constitution. See, e.g., Curry v. Cuyahoga County, 

No. 1:13CV709, 2014 U.S. Dist. LEXIS 137493, at *7 (N.D. Ohio Sept. 

29, 2014) (concluding that defendant prison doctor was not 

deliberately indifferent to the inmate plaintiff when the doctor chose 

to prescribe a certain medication, which in hindsight proved less 

efficacious than the plaintiff’s previously prescribed medication). 

Stated differently, plaintiff has pointed to no evidence that any of 

the defendant doctors knew, at the time that it was prescribed, that 

Methotrexate, “a medication on the ODRC’s Drug Formulary as a 

treatment for psoriasis and rheumatoid arthritis[,]” Eddy 

Declaration, ¶ 7, would expose plaintiff to a substantial risk of 

serious harm or that it would otherwise be less efficacious than 

 

10 According to plaintiff, defendant Eddy, as the final medical authority in 

the approval process, “was also informed that Methotrexate was less 

efficacious than Soriatane and inadequate, but he continued Mr. Darrah’s 

treatment on Methotrexate.” Opposition, p. 24 (citing Doc. No. 44-31 

(defendant Eddy’s deposition transcript in another litigation; Declaration of 

Locona Darrah, Doc. No. 44-3, Exhibit C, PAGEID#:390, attached thereto). 

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Soriatane. 

Although plaintiff now avers that he was in “severe pain . . . 

for the entire period” and that he “regularly informed Defendants of” 

this pain, Darrah Declaration, ¶ 11, the present record reflects that 

the defendant doctors were not deliberately indifferent to plaintiff’s 

condition. After plaintiff agreed to try this medicine in April 2011, 

the defendant doctors monitored and responded to all of plaintiff’s 

documented requests or complaints over the next several months, 

including providing pain medication. See, e.g., Doc. No. 44-13, 

PAGEID#:450; Doc. No. 44-14, PAGEID#:451 - PAGEID#:455, PAGEID#:474; 

Doc. No. 44-16, PAGEID#:459 - PAGEID#:461; Doc. No. 44-22, 

PAGEID#:468; Doc. No. 51-5, PAGEID#:699 – PAGEID#:700. The record 

therefore does not establish that any of the defendant doctors failed 

to respond to plaintiff’s complaints of pain. Moreover, after a 

follow-up visit on November 15, 2011, during which plaintiff 

complained that the Methotrexate had had no effect, a prescription for 

Soriatane was placed at a non-ODRC pharmacy, albeit at Ms. Darrah’s 

expense. Doc. No. 44-14, PAGEID#:454 - PAGEID#:455. Although a 

“custody issue” delayed plaintiff’s receipt of Soriatane, defendants 

Weil and Eddy took steps to ensure that plaintiff received this 

medication in February 2012. Doc. No. 44-7, PAGEID#:418. Plaintiff 

continued to receive Soriatane until at least June 2014. Id. at 

PAGEID#:419 - PAGEID#:422. In short, although he was initially denied 

Soriatane, plaintiff was prescribed Methotrexate, an ODRC-approved 

medication for psoriasis, and was monitored and treated by prison 

medical personnel while taking this medication. “Where a prisoner has 

received some medical attention and the dispute is over the adequacy 

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of the treatment, federal courts are generally reluctant to second 

guess medical judgments and to constitutionalize claims that sound in 

state tort law.” Graham ex rel. Estate of Graham v. Cnty. of 

Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004)) (internal quotation 

marks omitted). Accordingly, the Court is not persuaded that the 

present record establishes that the defendant doctors were 

deliberately indifferent when they prescribed Methotrexate even 

though, in hindsight, it now appears that that medication was less 

effective in treating plaintiff’s HPK than was Soriatane. 

The Court is similarly not persuaded that the defendant doctors 

were deliberately indifferent when they denied plaintiff Soriatane 

“for non-medical reasons.” Opposition, pp. 26-30 (citing Ancata v. 

Prison Health Services, Inc., 769 F.2d 700, 704 (11th Cir. 1985); 

Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 

F.2d 326, 347 (3d Cir. 1987)). As an initial matter, plaintiff’s 

proposition is based on authority from outside this circuit and he has 

not shown that the Sixth Circuit has ever adopted this standard.11 

Moreover, those cases relate to “the withholding of essential medical 

treatment from an inmate who refuses to agree to pay because of 

indigency.” Reynolds, 128 F.3d at 175 (distinguishing Lanzaro, which 

relied on Ancata). In the case presently before the Court, the record 

 

11 Indeed, the Sixth Circuit, in addressing the issue of prisons charging copayments, has previously concluded that “[c]harging inmates who can pay for 

medical care does not constitute deliberate indifference[.]” Washington v. 

Sommerville, No. 98-5515, 181 F.3d 106, 1999 U.S. App. LEXIS 8173, at *4 (6th 

Cir. Apr. 23, 1999) (citing Reynolds v. Wagner, 128 F.3d 166, 173-75 (3d Cir. 

1997); Lanzaro, 834 F.2d at 346)). See also White v. Corr. Med. Servs., No. 

03-2097, 94 Fed. Appx. 262, at *264 (6th Cir. Mar. 24, 2004) (“It is 

constitutional to charge inmates a small fee for health care where indigent 

inmates are guaranteed service regardless of ability to pay.”). 

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does not establish that the defendant doctors withheld “essential 

medical treatment.” As detailed above, plaintiff received 

Methotrexate, an ODRC formulary medication approved for the treatment 

of psoriasis, in lieu of Soriatane, and was routinely monitored and 

cared for while taking Methotrexate. Although it may be true that 

“Soriatane is the only medication that has ever successfully treated” 

his HPK, id. at 26, the defendant doctors were not deliberately 

indifferent merely because they tested that proposition. 

Plaintiff’s contention that the defendant doctors were 

deliberately indifferent because they interrupted his prescribed plan 

of treatment by denying him Soriatane, id. at 30-33 (citing, inter 

alia, Boretti v. Wiscomb, 930 F.2d 1150 (6th Cir. 1991)), is likewise 

unavailing. Boretti involved an inmate, recovering from a gunshot 

wound, who repeatedly sought assistance from nurses who refused to 

administer the inmate’s prescribed treatment plan. Boretti, 930 F.2d 

at 1152. In the case presently before the Court, however, plaintiff 

was prescribed a different medication approved to treat psoriasis. 

While it is true that plaintiff received Soriatane at LeCI and the 

defendant doctors did not provide that drug to him upon his transfer 

to MaCI, this failure to immediately provide Soriatane from the outset 

of plaintiff’s incarceration at MaCI is not dispositive of the 

subjective prong of plaintiff’s deliberate indifference claim. The 

Ohio Department of Mental Health (“ODMH”) currently regulates all ODRC 

medications. Clayton Declaration, ¶ 5. However, ODMH did not 

regulate LeCI until March 2012. Id. at ¶ 6. Prior to that time, 

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LeCI’s contracting physicians were able to prescribe medication from 

an on-site pharmacy rather than centrally supplied medication. Id. at 

¶ 7. Conversely, institutions such as MaCI, which “were centrally 

controlled by ODMH, could not procure non-formulary, non-approved 

medications” without prior approval. Id. at ¶¶ 8-9 (citing ODRC 

Policy 68-MED-11, Doc. No. 51-4; ODRC Protocol E-I, Section III(21), 

Doc. No. 40-4, PAGEID#:263). At the time that plaintiff was 

transferred from LeCI to MaCI, MaCI medical staff were required to 

first try a formulary medication and request and receive prior 

approval before prescribing a non-formulary medication. Id. at ¶¶ 8-

9; Eddy Declaration, ¶ 6. Under these circumstances, and for the 

reasons previously stated, the Court cannot conclude that the 

defendant doctors were deliberately indifferent when they provided 

plaintiff with Methotrexate, a formulary medication approved to treat 

psoriasis, instead of Soriatane. Cf. Boretti, 930 F.2d at 1152 

(providing essentially no treatment to inmate recovering from gunshot 

wound). 

Finally, plaintiff alleges that the defendant doctors ignored a 

substantial risk of harm from infection when they denied and delayed 

the administration of Soriatane and instead prescribed Methotrexate. 

Opposition, pp. 33-35. According to plaintiff, the defendant doctors 

knew that Methotrexate slows healing and suppresses one’s ability to 

fight infection, that plaintiff had open wounds on his feet, and that 

other inmates on plaintiff’s cellblock had contracted infections. Id. 

As an initial matter, plaintiff offers no evidence that defendant 

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Krisher was actually aware that other inmates on plaintiff’s cellblock 

suffered from infections. In any event, it is significant that this 

claim asserted by plaintiff, who is now receiving Soriatane, relates 

to past events rather than to an on-going denial of the medication. 

Cf. Helling v. McKinney, 509 U.S. 25 (1993)(claim for injunctive 

relief based on risk of future harm to health may proceed). During the 

period of time when plaintiff was prescribed Methotrexate, plaintiff 

was monitored for infection and he did not, in fact, contract an 

infection. Under these circumstances, it simply cannot be said that 

the defendant doctors were subjectively indifferent to this risk 

which, in any event, was not actualized. 

For all of these reasons, the Court is not persuaded that the 

subjective element of plaintiff’s Eighth Amendment claim against the 

defendant doctors has been established. Although plaintiff was 

initially denied Soriatane, he was nevertheless treated by the 

defendant doctors and podiatry consults, was provided pain medication 

and a wheelchair, was sent to medical lay-in for 20 days, was later 

provided alternative medication approved to treat psoriasis and was 

monitored while taking that medication. In short, nothing in this 

record reveals that the defendant doctors were aware of and yet 

disregarded plaintiff’s serious medical needs.12

WHEREUPON, it is RECOMMENDED that Defendants Eddy, Krisher, Weil 

 

12 In light of this Court’s conclusion that plaintiff has failed to establish 

a violation of his constitutional rights by the defendant doctrs, the Court 

need not and does not address these defendants’ arguments regarding qualified 

immunity. See Pearson v. Callahan, 555 U.S. 223 (2009); Saucier v. Katz, 533 

U.S. 194 (2001). 

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and the State of Ohio on Behalf of Karen Stanforth’s Motion for 

Summary Judgment, Doc. No. 40, be GRANTED in part and DENIED in part. 

It is SPECIFICALLY RECOMMENDED that, as it relates to defendant Karen 

Stanforth, the Motion for Summary Judgment be DENIED without prejudice 

to the filing of a motion addressing the merits of the claims asserted 

against her and that, as it relates to defendants Eddy, Krisher and 

Weil, the Motion for Summary Judgment 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 

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 15, 2015 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge

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