UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

GARY L. MCCOY,

Plaintiff, Case No. 3:17-cv-432

vs.

DR. RODNEY L. CARLSON, et al., District Judge Thomas M. Rose

Magistrate Judge Michael J. Newman

Defendants.

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ORDER AND ENTRY: (1) GRANTING PLAINTIFF’S MOTION FOR EXPEDITED 

LIMITED DISCOVERY (DOC. 5); (2) DENYING PLAINTIFF’S MOTION TO FIND 

OHIO CIVIL RULE 10(D) INAPPLICABLE TO THIS CASE, BUT GRANTING 

PLAINTIFF’S ALTERNATIVE MOTION FOR AN EXTENSION OF TIME TO FILE 

AN AFFIDAVIT OF MERIT (DOC. 6); AND (3) GRANTING PLAINTIFF LEAVE -- UP 

TO AND INCLUDING MARCH 22, 2018 -- TO FILE AN AMENDED COMPLAINT 

WITH AN ATTACHED AFFIDAVIT OF MERIT

______________________________________________________________________________

This civil case is before the Court on two motions filed by Plaintiff: (1) a motion for 

expedited limited discovery; and (2) a motion seeking either a declaration that Ohio Civil Rule 

10(D) does not apply in federal court or, alternatively, seeking an extension of time to file an 

affidavit of merit as required by Ohio Civil Rule 10(D).

I.

Plaintiff brings this action, in part, pursuant to 42 U.S.C. § 1983 alleging a violation of 

his constitutional rights while in the custody of the Ohio Department of Rehabilitation and 

Corrections (“ODRC”). Doc. 1. While in the custody of the ODRC, Plaintiff had an open sore 

or wound on his foot which has allegedly resulted in the loss of his toes. Id. at PageID 3. 

Plaintiff also has a history of diabetes. Id. Plaintiff alleges that, while in custody, the ODRC and 

unidentified Defendants were deliberately indifferent to his serious medical needs. Id. at PageID 
2

3- 7. In addition to his constitutional claims under § 1983, he asserts, inter alia, a claim of 

medical negligence. Id. at PageID 7-9.

II.

With regard to the motion for expedited discovery, Plaintiff seeks to discover the names 

of individuals responsible for his treatment at an ODRC correctional facility so that those 

individuals can be properly added as defendants in the complaint and served with process. Doc. 

5. Plaintiff contends that he is in possession of medical records from the ODRC, but that the 

names of those providing treatment are either absent from the records or illegible and, therefore, 

discovery is required to identify the presently unidentified Defendants he names in the 

complaint. Doc. 5 at PageID 17.

Generally, no party may seek “discovery from any source before the parties have 

conferred as required by Rule 26(f)[.]” Fed. R. Civ. P. 26(d). Rule 26(d), however, provides an 

exception to the general rule if either the parties stipulate to such discovery or the court permits 

such discovery by order. Id. “Consequently, a district court has the discretion to permit 

discovery prior to a Rule 26(f) conference” upon a showing of good cause. Manny Film, LLC v. 

Doe, No. 2:15-CV-1050, 2015 WL 12732853, at *1 (S.D. Ohio Mar. 27, 2015). For good cause 

shown, and in the interest of justice, the undersigned GRANTS Plaintiff’s motion for expedited 

limited discovery so that he can discover the names of individuals who provided treatment to 

him while in custody.

III.

Next, with regard to his state law malpractice claim, Plaintiff seeks relief from Ohio Civil 

Rule 10(D), which states that, any “complaint that contains a medical claim . . . shall be 

accompanied by one or more affidavits of merit [from appropriate medical experts] relative to 

each defendant named in the complaint for whom expert testimony is necessary to establish 
3

liability.” Ohio Civ. R. 10(D)(2)(a). Although Plaintiff argues that Ohio Rule 10(D) is a 

procedural rule not applicable in federal courts, doc. 6 at PageID 19, judges in this district have 

found such rule substantive and applicable to medical malpractice claims. See, e.g., Bush v. 

United States, No. 1:13-CV-406, 2014 WL 661686, at *6 (S.D. Ohio Feb. 19, 2014), report and 

recommendation adopted, No. 1:13CV406, 2014 WL 1308512 (S.D. Ohio Mar. 31, 2014). 

Accordingly, the Court DENIES Plaintiff’s motion insofar as he seeks a finding that Ohio Rule 

10(D) does not apply in this federal action.

Alternatively, Plaintiff seeks an extension of time to comply with the requirements of 

Rule 10(D). Doc. 6. Ohio Civil Rule 10(D) contemplates the granting of an extension of time 

up to 90 days for good cause shown -- or beyond 90 days “if other circumstances warrant 

extension.” Finding good cause shown by Plaintiff, the undersigned GRANTS Plaintiff’s 

motion for an extension of time to comply with the affidavit of merit requirement in Ohio Civil 

Rule 10(D). Plaintiff shall file an amended complaint with attached affidavit(s) of merit on or 

before March 22, 2018. Plaintiff may seek a further extension of such date upon sufficiently 

showing that circumstances warrant a further extension.

IT IS SO ORDERED.

Date: January 5, 2018 s/ Michael J. Newman

Michael J. Newman

United States Magistrate Judge