[Cite as Groves v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-1106.]



EUGENE GROVES                                         Case No. 2015-00309-AD

      Plaintiff                                       Deputy Clerk Daniel R. Borchert

      v.
                                                      MEMORANDUM DECISION
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

      Defendant


                                          FINDINGS OF FACT
        {¶1} Plaintiff, Eugene Groves, an inmate, filed a complaint against defendant,
Ohio Department of Rehabilitation and Correction (“ODRC”). Plaintiff asserted he was
forced to use “un-sanitary (sic) nail clippers that’s provided by the administration that at
lease (sic) 80 other inmates has to share…” Plaintiff argued as a result of having to use
these nail clippers the toes on his left foot became infected, blood under his toe nails
and fungus. Plaintiff contended a doctor working for ODRC stated “so what you want
me to do” when confronted with plaintiff’s infected toes.
        {¶2} Furthermore, plaintiff alleges ODRC’s policy of not allowing him to purchase
nail clippers because he is housed in 4B is discriminatory. No inmates are allowed to
purchase nail clippers who are housed in this unit.
        {¶3} Plaintiff provided this court with the case of W.J. Estelle, Jr. v. J.W. Gamble;
429 U.S. 97, 97 S. Ct. 285, 50 L. Ed.2d 251 (1976), which plaintiff asserted supported
his contentions. However, this case interprets the Eighth Amendment of the United
States Constitution and 42 U.S.C. 1983, causes of action which are not actionable in
this court. Accordingly, this case will not be taken into consideration.
        {¶4} Plaintiff filed a motion for default judgment based on defendant’s failure to
timely file the investigation report.
        {¶5} Defendant submitted the investigation report denying liability in this matter.
Defendant contended that the nail clippers in question were stored in a plastic container
Case No. 2015-00309-AD                       -2-              MEMORANDUM DECISION


with a lid and were replaced every 60 days. Defendant also asserted that “[P]laintiff has
been seen over fifty (50) times in medical for a physical and never complained about his
feet. Plaintiff was also advised to sign up for sick call if he was having issues, but failed
to do so. Plaintiff has not provided sufficient evidence to validate his claim that he
received a toenail infection from the clippers.”
       {¶6} Plaintiff filed another motion for default judgment again asserting defendant
did not timely submit the investigation report.
       {¶7} Plaintiff submitted a response to the defendant’s investigation report. He
stated he did go to sick call on March 10, 2015. He stated based on this visit the doctor
recommended he see a foot doctor, which plaintiff contends he did see on April 15th.
Plaintiff contended that the policy at defendant’s Southern Ohio Correctional Facility
(“S.O.C.F.”) should be similar to the policy at defendant’s Ohio State Penitentiary where
inmates are allowed to purchase nail clippers and then they are held by staff between
uses. Finally, plaintiff reiterated the arguments he made in his complaint.
       {¶8} Plaintiff submitted a letter from an inmate incarcerated at S.O.C.F. who
asserted the policy toward nail clippers had not changed.
                                          CONCLUSIONS OF LAW
       {¶9} Civ.R. 55(D) in pertinent part states:
       a) “No judgment by default shall be entered against this state...or agency...unless
the claimant establishes his claim...by evidence satisfactory to the court.”
       {¶10} A default judgment against the state may not be granted solely on
procedural errors made by the defendant. Upon review, plaintiff’s motions for default
judgment are DENIED. Chasteen v. Dayton Correctional Institution, 2011-01721-AD,
aff’d jud (2011).
              {¶11} The Supreme Court of Ohio has held that “[t]he language in R.C.
       2743.02 that ‘the state’ shall ‘have its liability determined***in accordance with
       the same rules of law applicable to suits between private parties***means that
Case No. 2015-00309-AD                     -3-               MEMORANDUM DECISION


      the state cannot be sued for its legislative or judicial functions or the exercise of
      an executive or planning function involving the making of basic policy decision
      which is characterized by the exercise of a high degree of official judgment or
      discretion.” Reynolds v. State, 14 Ohio St.3d 68, 70, 471 N.E.2d 776 (1984); see
      also Von Hoene v. State, 20 Ohio App.3d 363, 364, 486 N.E.2d 868 (1st Dist.
      1985).   “Prison administrations are provided ‘wide ranging’ deference in the
      adoption and execution of policies and practices that in their judgment are
      needed to preserve internal order and discipline and to maintain institution
      security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S. Ct. 1861, 60 L. Ed.2d 447
      (1979). Accordingly, plaintiff has not stated a cause of action based upon ODRC
      decision to place restrictions upon the purchase nail clippers by inmates in
      certain security levels.
      {¶12} Conditions of confinement have been held to be violations of Title 42
U.S.C. 1983. See Cotton v. Ohio Department of Rehabilitation and Correction, 10th
Dist. No. 13AP-935, 2014-Ohio-2619; Guillory v. Ohio Department of Rehabilitation and
Correction, 10th Dist. No. 07AP-861, 07AP-928, 2008-Ohio-2299.
      {¶13} It is “well established that the Court of Claims lacks subject matter
jurisdiction over alleged violations of constitutional rights and claims arising under 42
U.S.C. 1983.” Guillory at ¶12; Bleicher v. Univ. of Cincinnati College of Med. 78 Ohio
App.3d 302, 308, 604 N.E.2d 783 (10th Dist. 1992).
      {¶14} To establish a claim of medical malpractice, plaintiff “must show the
existence of a standard of care within the medical community, breach of that standard of
care by the defendant, and proximate cause between the medical negligence and the
injury sustained.” Taylor v. McCullough-Hyde Mem. Hosp., 116 Ohio App.3d 595, 599,
688 N.E.2d 1078 (12th Dist. 1996); citing Bruni v. Tatsumi, 46 Ohio St.2d 127, 131-132,
346 N.E.2d 673 (1976).
Case No. 2015-00309-AD                         -4-               MEMORANDUM DECISION


       {¶15} The exception to that rule is “in cases where the nature of the case is such
that the lack of skill or care of the physician and surgeon is so apparent as to be within
the comprehension of laymen and requires only common knowledge and experience to
understand and judge it ***.” Bruni at 130. However, the exception is limited in scope
and “[r]elatively few courts in Ohio have found the common knowledge exception
applicable so as to obviate the need for expert witness testimony on the malpractice
issue.” Buerger v. Ohio Dept. of Rehab. & Corr., 64 Ohio App.3d 394, 399, 581 N.E.2d
1114 (10th Dist. 1989).      Plaintiff’s allegation that his toe infection was the result of
unsanitary nail clippers is not the type for which this exception would apply.
       {¶16} In Buerger, the Tenth District Court of Appeals found the Bruni v. Tatsumi
standard applicable to a claim of medical malpractice brought by a prisoner. When a
plaintiff is alleging substandard medical treatment, expert medical opinion must be
provided to establish a prima facie case. Plaintiff may not simply rest upon allegations
of medical negligence as stated in his complaint.               See Saunders v. Cardiology
Consultants, Inc., 66 Ohio App.3d 418, 420, 584 N.E.2d 809 (1st Dist. 1990); Hoffman v.
Davidson, 31 Ohio St.3d 60, 61, 508 N.E.2d 958 (1987); Guth v. Huron Road Hospital,
43 Ohio App.3d 83, 84, 539 N.E.2d 670 (8th Dist. 1987). In the present claim, plaintiff
has failed to produce expert medical opinion regarding his allegation that he suffers a
toe infection as the result of using nail clippers.         The court has only his personal
testimony to prove such a contention. Neither the plaintiff’s testimony, nor the affidavits
of other inmates, provides sufficient evidence from which this court can determine
plaintiff did in fact suffer an infection from nail clippers.
       {¶17} “In order to recover against a defendant in a tort action, plaintiff must
produce evidence which furnishes a reasonable basis for sustaining his claim. If his
evidence furnishes a basis for only a guess, among different possibilities, as to any
essential issue in the case, he fails to sustain the burden as to such issue.” Landon v.
Lee Motors, Inc., 161 Ohio St. 82, 118 N.E.2d 147 (1954), paragraph six of the syllabus.
Case No. 2015-00309-AD                     -5-              MEMORANDUM DECISION


      {¶18} Plaintiff failed to prove, by a preponderance of the evidence, that his toe
nail infection was caused by the use of communal nail clippers. Accordingly, plaintiff’s
claim is DENIED.




EUGENE GROVES                               Case No. 2015-00309-AD

      Plaintiff                             Deputy Clerk Daniel R. Borchert

      v.
                                            ENTRY OF ADMINISTRATIVE
OHIO DEPARTMENT OF                          DETERMINATION
REHABILITATION AND CORRECTION

      Defendant



      Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.




                                             DANIEL R. BORCHERT
                                             Deputy Clerk

Entry cc:


Eugene Groves, #144-869                Stephen Gray, Chief Counsel
2001 East Central Ave                  Ohio Dept. of Rehabilitation and Correction
Toledo, Ohio 43608-0001                770 West Broad Street
                                       Columbus, Ohio 43222
Case No. 2015-00309-AD          -6-   MEMORANDUM DECISION




Filed 2/18/16
Sent to S.C. Reporter 3/18/16
