UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

FRED PITZER, : NO.: 1:01-cv-00130

:

Plaintiff, :

: ORDER

v. :

:

CORRECTIONS MEDICAL SERVICES, :

et al., :

:

Defendants. :

Plaintiff Fred Pitzer, proceeding pro se and in forma

pauperis, alleges that he was denied medical care in violation of

the Eighth Amendment to the United States Constitution while

incarcerated at the Hamilton County Justice Center (“HCJC”)(doc.

12). Magistrate Judge Hogan issued a Report and Recommendation

(doc. 39) recommending that summary judgment be granted in favor of

Defendants Hamilton County, the Hamilton County Sheriff’s Office,

Sheriff Simon Leis, Jr., and HCJC Director of Corrections Joseph

Schmitz (collectively, “County Defendants”)(doc. 30). Pitzer

objected to the Report and Recommendation (doc. 47), and the County

Defendants have responded (doc. 49). The matter is now fully

briefed and ripe for decision. For the following reasons, Pitzer’s

objections will be overruled, and the Magistrate Judge’s Report and

Recommendation will be adopted in its entirety. 

I. APPLICABLE LEGAL STANDARD

Although a grant of summary judgment pursuant to Fed. R.

Civ. P. 56 is not a substitute for trial, it is appropriate "if the

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pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Id.; see also, e.g.,

Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962);

LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th

Cir.1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction

and Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir.1992)(per

curiam). In reviewing the instant motion, "this Court must

determine whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law." Patton v. Bearden, 8

F.3d 343, 346 (6th Cir.1993), quoting in part Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986)(internal quotation marks

omitted). 

The process of moving for and evaluating a motion for

summary judgment and the respective burdens it imposes upon the

movant and the non-movant are well settled. First, "a party

seeking summary judgment ... bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact[.]"

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also

LaPointe, 8 F.3d at 378; Guarino v. Brookfield Township Trustees,

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980 F.2d 399, 405 (6th Cir.1992); Street v. J.C. Bradford & Co.,

886 F.2d 1472, 1479 (6th Cir.1989). The movant may do so by merely

identifying that the non-moving party lacks evidence to support an

essential element of its case. See Barnhart v. Pickrel, Schaeffer

& Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir.1993). 

Faced with such a motion, the non-movant, after

completion of sufficient discovery, must submit evidence in support

of any material element of a claim or defense at issue in the

motion on which it would bear the burden of proof at trial, even if

the moving party has not submitted evidence to negate the existence

of that material fact. See Celotex, 477 U.S. 317; Anderson v.

Liberty Lobby, Inc., 477 U.S. 242 (1986). As the “requirement [of

the Rule] is that there be no genuine issue of material fact,” an

“alleged factual dispute between the parties” as to some ancillary

matter “will not defeat an otherwise properly supported motion for

summary judgment.” Anderson, 477 U.S. at 247-48 (emphasis added);

see generally Booker v. Brown & Williamson Tobacco Co., Inc., 879

F.2d 1304, 1310 (6th Cir. 1989). Furthermore, "[t]he mere

existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on

which the jury could reasonably find for the [non-movant]."

Anderson, 477 U.S. at 252; see also Gregory v. Hunt, 24 F.3d 781,

784 (6th Cir.1994). Accordingly, the non-movant must present

"significant probative evidence" demonstrating that "there is [more

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than] some metaphysical doubt as to the material facts” to survive

summary judgment and proceed to trial on the merits. Moore v.

Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir.1993); see

also Celotex, 477 U.S. at 324; Guarino, 980 F.2d at 405. 

Although the non-movant need not cite specific page

numbers of the record in support of its claims or defenses, "the

designated portions of the record must be presented with enough

specificity that the district court can readily identify the facts

upon which the non-moving party relies." Guarino, 980 F.2d at 405,

quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th

Cir.1989)(internal quotation marks omitted). In contrast, mere

conclusory allegations are patently insufficient to defeat a motion

for summary judgment. See McDonald v. Union Camp Corp., 898 F .2d

1155, 1162 (6th Cir.1990). The Court must view all submitted

evidence, facts, and reasonable inferences in a light most

favorable to the non-moving party. See Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H.

Kress & Co., 398 U.S. 144 (1970); United States v. Diebold, Inc.,

369 U.S. 654 (1962). Furthermore, the district court may not weigh

evidence or assess the credibility of witnesses in deciding the

motion. See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir.1994). 

Ultimately, the movant bears the burden of demonstrating

that no material facts are in dispute. See Matsushita, 475 U.S. at

587. The fact that the non-moving party fails to respond to the

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motion does not lessen the burden on either the moving party or the

Court to demonstrate that summary judgment is appropriate. See

Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-55

(6th Cir.1991). 

II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The facts relevant to the instant motion, drawn from the

pleadings and other submitted evidence and viewed through the

proper evidentiary standard, may be fairly summarized as follows.

On October 22, 1999, Pitzer, a current inmate at the Chillicothe

Correctional Institution, was arrested by members of the Cincinnati

Police Department and transported to the HCJC’s intake center. At

the intake medical screening, it was noted that Plaintiff suffered

from chronic asthma and required the use of an Albuterol Inhaler.

According to Pitzer’s HCJC medical records, he was provided with

adequate medications and the use of his inhaler throughout his

incarceration; furthermore, they reveal he was sent to the HCJC

Medical Treatment facility approximately thirty times during his

incarceration. Pitzer, however, contends that he was delayed or

completely denied receiving his medication numerous times, causing

him to pass out on at least one occasion. He also contends that

the HCJC staff’s failure to provide his medication forced him to

resort to contacting outside friends and family members who, in

turn, contacted prison or justice officials regarding his plight.

He avers that he was also threatened with retaliation as a result;

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significantly, however, the HCJC official who allegedly made this

threat is not a party to the instant suit. 

In support of their motion requesting summary judgment,

the County Defendants present evidence that all medical care for

inmates at HCJC from October 22, 1999 through March 3, 2000 – the

relevant time period at issue – was provided by Correction Medical

Systems, Inc. (“CMS”) and that all of the institution’s health care

workers were employees of CMS, rather than the Hamilton County

Sheriff’s Office. They aver that CMS medical staff enjoy sole

authority to render medical treatment and to prescribe and give

medications to inmates; no employee of the Hamilton County

Sheriff’s Department was ever authorized to administer any

medication to inmates. Furthermore, Defendants Leis and Schmitz,

by affidavit, deny any personal knowledge of the Plaintiff. In

recommending a grant of summary judgment to the County Defendants,

the Magistrate Judge agreed that Pitzer failed to produce any

evidence that would support holding the County Defendants liable

for the alleged constitutional violations.

In objection, Pitzer contends that state statutes mandate

Defendants Leis’s and Schmitz’s routine review of the institution

and its prisoners and that, accordingly, they did or should have

known of his medical condition and/or denial of medical care. He

further insists that these defendants were or should have been

aware of the numerous grievances he has filed complaining of the

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denial of medical care, of the “911" call made on his behalf, and

of the alleged retaliatory measures taken against him. At the very

least, Pitzer argues, sufficient issues of material fact exist to

preclude a grant of the County Defendant’s motion for summary

judgment. 

III. LAW AND DISCUSSION

Magistrate Judge Hogan’s Report and Recommendation

effectively canvassed the jurisprudence applicable to this matter.

A prison official may be held liable for denying humane conditions

of confinement, including proper medical care, only if “he knows

that inmates face a substantial risk of serious harm and disregards

that risk by failing to take reasonable measures to abate it.”

Farmer v. Brennan, 511 U.S. 825, 847 (1994). To state a viable

Eighth Amendment claim for denial of medical care under 42 U.S.C.

§ 1983, Pitzer, as a pretrial detainee, “must allege acts or

omissions sufficiently harmful to evidence deliberate indifference

to serious medical needs” and that such acts were performed under

color of law. Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also

Danese v. Asman, 875 F.2d 1239, 1243 (6th Cir. 1989)(holding that

Estelle framework is applicable to pretrial detainees). 

In the context of the instant case, Pitzer must show that

prison officials denied his reasonable requests for medical care in

the face of his obvious need, rendering him susceptible to undue

suffering or to a threat of tangible residual injury. See Byrd v.

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Wilson, 701 F.2d 592, 594 (6th Cir. 1983). In complaining of

medical treatment that was administered to him, he must demonstrate

that the treatment was so “woefully inadequate as to amount to no

treatment at all” before it constitutes an actionable claim.

Westlake v. Lewis, 537 F.2d 857, 860-61 n.5 (6th Cir. 1976).

Significantly, however, Pitzer bears the burden of showing that the

“deliberate indifference” standard is satisfied by objectively

demonstrating that the alleged deprivation was “sufficiently

serious” by demonstrating the effects of the delay in treatment. 

Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000); see also

Napier v. Madison County, Ky., 238 F. 3d 739 (6th Cir. 2001). “An

inmate who complains that delay in medical treatment rose to a

constitutional violation must place verifying medical evidence in

the record to establish the detrimental effect of the delay in

medical treatment to succeed.” Id., quoting Hill v. Dekalb Reg’l

Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994). 

Upon reviewing the record and Pitzer’s objections, the

Court concludes that the Magistrate Judge properly found that

Plaintiff failed to allege facts or present evidence that either

Defendant Leis or Defendant Schmitz, in their individual

capacities, had either direct involvement or actual knowledge of

his medical condition or of his requests for medical attention and

that the theory of respondeat superior could not be used to impose

liability on them merely because they served as supervisors of the

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facility. Furthermore, the Magistrate Judge’s conclusion that

Pitzer could not effectively maintain any of the claims against

Leis or Schmidt in their official capacities or against the

municipality is correct; the suit is, in effect, against Hamilton

County, Ohio, and “[i]t is firmly established that a municipality,

or as in this case a county, cannot be held liable under § 1983 for

an injury inflicted solely by its employees or agents.” Gregory v.

Shelby County, Tn., 220 F. 3d 433, 441 (6th Cir. 2000), citing

Monell v. Dept. of Social Servs., 436 U.S. 658,694 (1978). Befort

he may recover damages for these alleged violations from Hamilton

County, Pitzer bears the burden of proving that his “injuries were

the result of an unconstitutional policy or custom of the County.”

Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). Pitzer has

failed to highlight any specific policy leading to the deprivation

of his rights or present evidence establishing a pervasive pattern

of deliberate indifference on the part of the moving Defendants. 

In sum, the Court finds the Magistrate Judge’s Report and

Recommendation well reasoned and proper. Accordingly, Plaintiff’s

Objections (doc. 47) are OVERRULED. The Magistrate Judge’s Report

and Recommendation (doc. 39) is ADOPTED IN ITS ENTIRETY. The

Motion for Summary Judgment filed by Defendants Hamilton County,

Hamilton County Sheriff’s Department, Hamilton County Sheriff Simon

Leis Jr., and Hamilton County Justice Center Director of

Corrections Joseph Schmitz (doc. 30) is GRANTED. The Clerk is

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instructed to enter judgment in favor of these defendants on all

counts. As Corrections Medical Services, Inc. was not a party to

the instant motion, it remains a defendant in the case. 

SO ORDERED.

Dated: December 4, 2003 s/S. Arthur Spiegel 

S. Arthur Spiegel

United States Senior District Judge

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