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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JEFFERY A. JOHNSON, 

 

 Plaintiff, 

vs. Civil Action 2:13-cv-0025 

 Judge Watson 

 Magistrate Judge King 

MUSKINGUM CO. SHERIFF’S DEPT., 

et al., 

 Defendants. 

REPORT AND RECOMMENDATION 

Plaintiff Jeffery A. Johnson, an inmate currently incarcerated in 

the Franklin Medical Center (“FMC”),1

 brings this action under 42 

U.S.C. § 1983 against the Muskingum County Sheriff’s Department, 

Muskingum County Sheriff Matthew Lutz, several Sheriff’s deputies, the 

“Sheriff’s Department Food Personal” [sic] (collectively, “Muskingum 

County Defendants”), Nurse Shane Love and Dr. Anthony Khoury 

(collectively, “the Medical Defendants”), alleging civil rights 

violations “under the Fifth, Eighth, and Fourteenth Amendment[s]” to 

the United States Constitution for “refusing [plaintiff] medical 

care.” Amended Complaint, Doc. No. 32, p. 5.2

 This matter is now 

before the Court on the Motion for Summary Judgment of Defendants 

Shane Love, L.P.N. and Anthony Khoury, D.O., Doc. No. 66 (“Motion for 

Summary Judgment”). For the reasons that follow, it is RECOMMENDED

 

1 Plaintiff was formerly incarcerated at Noble Correctional Institution. 

Order, Doc. No. 55; Order, Doc. No. 59. 2 The Court previously dismissed other claims and parties. See Order, Doc. No. 

64; Order, Doc. No. 74. 

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that the Motion for Summary Judgment be GRANTED. 

 

I. BACKGROUND 

Plaintiff was booked into the Muskingum County Jail on March 1, 

2012. Deposition of Jeffrey Johnson, pp. 7, 9, attached as Exhibit A 

to the Motion for Summary Judgment (“Johnson Depo.”). On March 9, 

2012, while he was detained in that jail, plaintiff ate an apple 

crisp. Id. at 15-16. While eating this dessert, plaintiff began to 

choke. Id. at 15-17. He stood up, staggered forward and hit his head 

on jail bars, knocking him unconscious. Id. 

When plaintiff regained consciousness after some undefined 

period, he noticed that there was vomit next to him and that defendant 

Deputy Dale Fuller and other people were present. Id. at 16-19, 22. 

Defendant Fuller asked plaintiff if he was alright, someone else took 

pictures while another person collected parts of the apple core and 

stem from the vomit. Id. at 15-19, 23-24. 

At 12:10 p.m., defendant Love was called to the fourth floor and 

examined plaintiff who was found lying face down on the floor. 

Affidavit of Shane Love, L.P.N., ¶ 8, 10 attached as Exhibit B to 

Motion for Summary Judgment (“Love Affidavit”); Exhibit 1, p. 2, 

attached to Love Affidavit (notes made contemporaneously with 

defendant Love’s examination of plaintiff). Plaintiff told defendant 

Love that he was “OK.” Love Affidavit, ¶ 11; Exhibit 2, attached 

thereto. Defendant Love checked plaintiff’s vitals, which were all 

within normal limits. Love Affidavit, ¶ 12; Exhibit 2, attached 

thereto. Defendant Love’s progress notes taken contemporaneously with 

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the examination of plaintiff reflect that there were no signs or 

symptoms of injuries. Love Affidavit, ¶¶ 6-8, 13; Exhibit 2, attached 

thereto. Defendant Love instructed the second shift nurse to check on 

plaintiff. Love Affidavit, ¶ 14. The second shift nurse recorded 

normal vital signs and the accompanying progress note reflects that 

plaintiff voiced no complaints. Love Affidavit, ¶ 14; Exhibit 2, 

attached thereto. 

On March 15, 2012, plaintiff completed a “Request for Medical 

Treatment” form, which is required of all inmates at the Muskingum 

County Jail who seek medical attention. Love Affidavit, ¶ 4; Exhibit 

3, attached thereto. In response to that request, defendant Love 

examined plaintiff on March 16, 2012. Love Affidavit, ¶ 5. Defendant 

Love’s notes reflect that plaintiff reported that his throat was still 

a little sore from choking the previous week and that plaintiff has a 

small amount of blood when he gargles with salt water. Love 

Affidavit, ¶¶ 17-18; Exhibits 2 and 3, attached thereto. Defendant 

Love, however, noted that upon examination that he was unable to see 

any lesions or areas from which blood could be coming. Love 

Affidavit, ¶ 20; Exhibit 3, attached thereto. Although plaintiff 

experienced some pain when swallowing and at his Adam’s apple, 

plaintiff nevertheless stated that his throat was getting better. 

Love Affidavit, ¶ 17; Exhibit 2, attached thereto. For example, 

eating soft food did not bother plaintiff. Exhibit 3, attached to 

Love Affidavit. Every time he examined plaintiff, defendant Love 

discussed his findings with defendant Khoury. Love Affidavit, ¶ 21; 

Exhibits 2 and 3, attached thereto. After each of these updates from 

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defendant Love, defendant Khoury “assessed all of the information and 

formed a clinical diagnosis and treatment plan.” Affidavit of Anthony 

Khoury, D.O., ¶ 5, attached as Exhibit D to Motion for Summary 

Judgment (“Koury Affidavit”). This treatment plan was conveyed to 

defendant Love for implementation. Id. at ¶ 6. 

On June 27, 2012, plaintiff was transferred from the Muskingum 

County Jail to the Ohio Department of Rehabilitation and Corrections’ 

Correctional Reception Center (“CRC”). Plaintiff Depo., p. 75. An 

examination of plaintiff on that date revealed, inter alia, that his 

throat was normal. Exhibit 1, p. 1, attached to Plaintiff Depo. 

Thereafter, plaintiff was transferred to the Noble Correctional 

Institution (“NCI”). Plaintiff Depo., pp. 75-76. While at NCI, 

plaintiff had access to medical care and was examined by physicians 

and nurses. Id. at 76-78. Plaintiff did not ask for treatment for 

his throat. Id. at 82. 

On January 11, 2013, plaintiff, proceeding without the assistance 

of counsel, initiated this action under 42 U.S.C. § 1983. Complaint, 

Doc. No. 4. On June 4, 2013, plaintiff amended his complaint, naming 

various defendants, including the Medical Defendants, alleging civil 

rights violations “under the Fifth, Eighth, and Fourteenth 

Amendment[s]” to the United States Constitution for “refusing 

[plaintiff] medical care.” Amended Complaint, p. 5. 

On August 29, 2013, plaintiff was transferred to the FMC. Id. at 

75-76, 79-82. According to plaintiff, he simply asked to be 

transferred to the FMC; there was no medical reason why he left NCI. 

Id. at 76, 79-81. While at the FMC, plaintiff has talked to a 

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physician about pain in his throat and difficulty swallowing. Id. at 

81. However, no physician has ordered any diagnostic tests, x-rays or 

other studies of his throat. Id. at 81-82. 

The Medical Defendants move for summary judgment on plaintiff’s 

claims against them, which plaintiff opposes. Plaintiff [sic] Motion 

to Dismiss Defendant’s [sic] Motion for Summary Judgement [sic], Doc. 

No. 72 (“Memo. in Opp.”). With the filing of the Reply in Support of 

Motion for Summary Judgment of Defendants Shane Love, L.P.N. and 

Anthony Khoury, D.O., Doc. No. 75 (“Reply”), this matter is ripe for 

review. 

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). 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. 

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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 

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.” 

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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 

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). 

III. ANALYSIS 

Plaintiff alleges that the Medical Defendants denied him medical 

treatment in violation of his constitutional rights. Amended 

Complaint, p. 5. The Eighth Amendment3

 prohibits cruel and unusual 

punishment. To prevail on his claims against the Medical Defendants, 

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 Court will address each in turn. 

A. Objective Component 

The objective component requires that a plaintiff establish a 

 

3 Plaintiff may have been a pretrial detainee during some or all of the 

relevant time. See, e.g., Amended Complaint, pp. 5-6; Love Affidavit, ¶¶ 9-

20. A claim of deliberate indifference to the serious medical needs of a 

pretrial detainee arises under the Due Process Clause of the Fourteenth 

Amendment. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). 

However, the standard governing such claims is the same as that arising under 

the Eighth Amendment. Border v. Trumbull County Bd. of Comm’rs, 414 Fed. 

Appx. 831, 835 (6th Cir. 2011) (“It is well-established that the Eighth 

Amendment’s prohibition of cruel and unusual punishment provides the basis to 

assert a claim, under 42 U.S.C. § 1983, of deliberate indifference to a 

prisoner’s serious medical needs; a similar claim brought on behalf of a 

pretrial detainee is equally viable under the Due Process Clause of the 

Fourteenth Amendment.) (citing Phillips v. Roane County, Tenn., 534 F.3d 531, 

539 (6th Cir. 2008)). 

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“sufficiently serious” medical need. Farmer v. Brennan, 511 U.S. 825, 

834 (1994). In this case, the Medical Defendants argue that 

plaintiff’s allegations that he suffers from a prolonged sore throat 

from choking on an apple stem in a dessert is a relatively minor 

medical need that fails to establish the objective component of his 

claim. Motion for Summary Judgment, pp. 5-7. This Court agrees. 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 (6th Cir. 2013) 

(quoting Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008) (internal 

quotation marks omitted). However, when a plaintiff bases a claim on 

“‘the prison’s failure to treat a condition adequately, or where the 

prisoner’s affliction is seemingly minor or non-obvious,’” 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) (internal quotation marks omitted)). Plaintiff 

therefore bears the burden of establishing that his medical need is 

“sufficiently serious.” Santiago, 734 F.3d at 590. 

Here, plaintiff has offered no “verifying medical evidence” 

establishing a detrimental effect of any alleged failure to provide 

medical treatment. As an initial matter, the medical record does not 

establish a serious medical need. As recounted supra, plaintiff’s 

testimony and medical records establish that plaintiff advised 

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defendant Love that he was “OK” and voiced no complaints to the second 

shift nurse following the choking incident on March 9, 2012. Love 

Affidavit, ¶¶ 11, 14; Exhibit 2, attached thereto. During a March 16, 

2012 examination, defendant Love could find no areas of bleeding and 

plaintiff reported that his throat was doing better. Love Affidavit, 

¶¶ 17-18; Exhibits 2 and 3, attached thereto. Subsequent examination 

revealed no abnormalities and plaintiff sought no treatment for his 

throat while incarcerated at NCI. Plaintiff Depo., pp. 75-78, 82; 

Exhibit 1, attached thereto. 

Moreover, plaintiff has not offered any evidence from a medical 

professional establishing any detrimental effect of an alleged delay 

in medical treatment. Instead, plaintiff argues that the Medical 

Defendants did not “give a clear and proper examination of” his 

throat; that they denied physician visits; that there was pain and 

constant bleeding for 85 days; and that “none of these facts were 

recorded by the defendant’s, [sic] to protect their interest from a 

pending claims [sic].” Memo. in Opp., p. 2 (citing to “the records,” 

which the Court construes to be the 39-page handwritten diary or log 

attached thereto). These arguments fail for several reasons. First, 

these factual assertions and the handwritten log attached to the Memo. 

in Opp. are neither sworn nor made under penalty of perjury. Id. 

Under Rule 56, a party must support factual assertions with admissible 

evidence. Fed. R. Civ. P. 56(c), (e). Plaintiff’s pro se status does 

not relieve him of this obligation. See Viergutz v. Lucent Techs., 

No. 08-3626, 375 Fed. Appx. 482, at *485 (6th Cir. April 23, 2010). 

See also Johnson v. Stewart, No. 08-1521, 2010 U.S. App. LEXIS 27051, 

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at *6-7 (6th Cir. May 5, 2010) (“The liberal treatment of pro se

pleadings does not require lenient treatment of substantive law . . . 

and the liberal standards that apply at the pleading stage do not 

apply after a case has progressed to the summary judgment stage[.]”) 

(internal citations omitted); United States v. Brown, 7 Fed. Appx. 

353, at *354 (6th Cir. Mar. 19, 2001) (affirming grant of summary 

judgment where, inter alia, pro se litigant offered relevant factual 

allegations, but “did not file an affidavit to this effect nor did he 

sign any pleading under penalty of perjury”). Therefore, the Court 

cannot consider plaintiff’s unsworn assertions in opposing the Motion 

for Summary Judgment. See id. See also Harris v. J.B. Robinson 

Jewelers, 627 F.3d 235, 239 n.1 (6th Cir. 2010) (“‘[A] court may not 

consider unsworn statements when ruling on a motion for summary 

judgment.’”) (quoting Dole v. Elliott Travel & Tours, Inc., 942 F.2d 

962, 968-69 (6th Cir. 1991)). 

In addition, even if these allegations had been sworn, they do 

not qualify as “verifying medical evidence.” Plaintiff admits that he 

has no medical training and no education in any healthcare field. 

Plaintiff Depo., pp. 8, 64. Finally, to the extent that plaintiff now 

suggests that certain “facts” are not reflected in the medical 

records, plaintiff previously testified that he did not believe that 

defendant Shane would lie, i.e., falsify the medical records. Id. at 

31-32, 43, 69. 

In contrast, the Medical Defendants offer verifying medical 

evidence in support of the Motion for Summary Judgment. Defendant 

Love discussed his findings with defendant Khoury every time he 

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examined plaintiff. Love Affidavit, ¶ 21. Upon receiving these 

updates from defendant Love, defendant Khoury assessed the information 

and formed a clinical diagnosis and treatment plan, which he conveyed 

to defendant Love for implementation. Khoury Affidavit, ¶¶ 5-6. 

Defendant Love avers that he followed all treatment recommendations 

and orders given by defendant Khoury. Id. at ¶ 21. 

The Medical Defendants also offer the affidavit of Stephen Payne, 

M.D., a medical doctor licensed to practice medicine in the state of 

Ohio. Affidavit of Stephen Payne, M.D., ¶ 2, attached as Exhibit C to 

the Motion for Summary Judgment (“Payne Affidavit”). Dr. Payne 

reviewed plaintiff’s medical records from Muskingum County Jail and 

NCI and plaintiff’s deposition transcript. Id. at ¶ 3. Based on his 

education, training, experience and review of the record in this case, 

Dr. Payne opines, to a reasonable degree of medical probability, that 

plaintiff fainted after choking while swallowing food. Id. at ¶ 4. 

According to Dr. Payne, plaintiff did not sustain a serious injury and 

plaintiff was not a candidate for radiologic testing. Id. at ¶¶ 5-6. 

Based on his education, training, experience and review of the record 

in this case, Dr. Payne further opines, to a reasonable degree of 

medical probability, that the Medical Defendants met the applicable 

standards of care. Id. at ¶¶ 8-9. See also Khoury Affidavit, ¶ 11; 

Love Affidavit, ¶ 23 (both concurring to a reasonable degree of 

medical probability that the Medical Defendants met all applicable 

standard of care). Similarly, Dr. Payne avers, to reasonable degree 

of medical probability, that nothing the Medical Defendants did, or 

failed to do, caused any injury to plaintiff. Payne Affidavit, ¶¶ 10-

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11. Based on this record, plaintiff has failed to meet the objective 

prong of his claim. 

B. Subjective Component 

Even if plaintiff could satisfy the objective component of this 

analysis, he has not satisfied the subjective component. The 

subjective component requires that a plaintiff “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). Although officials may not deliberately 

disregard a medical need, “[m]edical malpractice does not become a 

constitutional violation merely because the victim is a prisoner.” 

Estelle, 429 U.S. at 106. Deliberate indifference “describes a state 

of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835. 

Nevertheless, “a plaintiff need not show that the official acted ‘for 

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

result.’” Comstock, 273 F.3d at 703 (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). 

Liability can result if a prison official “knows that inmates face a 

substantial risk of serious harm and disregards that risk by failing 

to take reasonable measures to abate it.” Farmer, 511 U.S. at 847. 

Here, plaintiff argues that the Medical Defendants failed to 

properly examine his throat and that he was repeatedly denied care by 

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a physician. Memo. in Opp., p. 2. However, these unsubstantiated 

allegations fall short of demonstrating that the Medical Defendants 

“subjectively perceived facts from which to infer substantial risk to 

the prisoner, that [they] did in fact draw the inference, and that 

[they] then disregarded that risk.” Comstock, 273 F.3d at 703. As 

recounted above, defendant Love examined plaintiff on the day that 

plaintiff choked and again within the week in response to plaintiff’s 

written “Request for Medical Treatment.” After the first examination, 

defendant Love also instructed the second shift nurse to assess 

plaintiff. Following each examination, defendant Love reported his 

findings to defendant Khoury. Defendant Khoury assessed the 

information, formed a diagnosis and developed a treatment plan, which 

was implemented by defendant Love. Far from establishing deliberate 

indifference, the uncontroverted affidavits of the Medical Defendants 

and Dr. Payne establish that the Medical Defendants properly responded 

and cared for plaintiff’s throat. 

Indeed, plaintiff does not criticize the medical assistance that 

has been administered. Plaintiff Depo., p. 40. Instead, plaintiff 

simply believes that he should have been provided with additional 

medical attention, including diagnostic testing and x-rays. Id. at 

40-41, 55-56, 97-98. However, “[w]here the plaintiff has received 

some medical treatment, ‘federal courts are generally reluctant to 

second guess medical judgments and to constitutionalize claims which 

sound in state tort law.’” Burgess v. Fischer, 735 F.3d 462, 476 (6th 

Cir. 2013) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 

1976)). Accordingly, plaintiff’s belief that he should have received 

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more testing amounts to nothing more than a difference of opinion, 

which is not actionable under the Constitution. In short, the Court 

concludes that plaintiff, having failed to satisfy either prong of his 

claim for deliberated indifference, has not established a 

constitutional violation on the part of the Medical Defendants. 

WHEREUPON, it is RECOMMENDED the Motion for Summary Judgment of 

Defendants Shane Love, L.P.N. and Anthony Khoury, D.O., Doc. No. 66, 

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). 

May 5, 2014 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge

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