[Cite as Franks v. Ohio Dept. of Rehab. & Corr., 2012-Ohio-3857.]




                                                        Court of Claims of Ohio
                                                                            The Ohio Judicial Center
                                                                    65 South Front Street, Third Floor
                                                                               Columbus, OH 43215
                                                                     614.387.9800 or 1.800.824.8263
                                                                                www.cco.state.oh.us



JERRY FRANKS

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

Case No. 2009-07415

Judge Joseph T. Clark
Magistrate Matthew C. Rambo

DECISION

        {¶ 1} On January 23, 2012, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On February 22, 2012, plaintiff filed a response. On February
24, 2012, defendant filed supplemental authority in support of its motion. Defendant’s
motion is now before the court for a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
Case No. 2009-07415                        -2-                                   ENTRY

have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
       {¶ 4} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the London Correctional Institution (LoCI). Plaintiff alleges that on May 5,
2009, he was moved from a cell on the lower level in housing unit D-1 to a cell on the
third floor in unit D-4. Plaintiff alleges that he suffers from Crohn’s disease and was
undergoing chemotherapy. He alleges that he visited the infirmary on May 6, 2009, to
secure a medical restriction that would require him to be housed in a cell where he
would not have to use stairs. Plaintiff alleges that instead of issuing him a temporary
medical restriction, as permitted pursuant to defendant’s policy, the nurse who
examined him in the infirmary scheduled him to see a doctor on May 9, 2009. Plaintiff
alleges that before he saw the doctor he fell while using the stairs and was severely
injured.
       {¶ 5} Plaintiff asserts that his condition constitutes a permanent disability and
that, as such, defendant had a duty to immediately grant him a medical restriction.
Plaintiff further asserts that defendant violated the Americans with Disabilities Act (ADA)
by not accommodating his permanent disability.
       {¶ 6} On July 16, 2010, the court granted judgment on the pleadings in favor of
defendant.   On April 28, 2011, the Tenth District Court of Appeals reversed and
remanded this case. The court of appeals held: that the pleadings do not establish that
defendant is a medical provider under R.C. 2305.113(E) or that the nurse mentioned in
the complaint is an employee of defendant, and therefore plaintiff was not required to
file an affidavit of merit pursuant to Civ.R. 10(D)(2); that defendant is not entitled to
discretionary immunity for the decision not to issue plaintiff a lower level restriction
because it was not a decision made to preserve order or security within LoCI; and that
plaintiff presented sufficient allegations regarding his ADA claim at that stage of the
Case No. 2009-07415                         -3-                                      ENTRY

proceedings to avoid dismissal. Franks v. Ohio Dept. of Rehab. & Corr., 195 Ohio
App.3d 114, 2011-Ohio-2048 (10th Dist.).
       {¶ 7} In its motion for summary judgment, defendant argues that all medical staff
providing care to plaintiff at all times relevant were employees of defendant, that the
care they provided met the accepted standard of medical care and treatment, and that
plaintiff cannot demonstrate that defendant failed to comply with the mandates of the
ADA.
       {¶ 8} In support of its motion, defendant provided the affidavits of J. Noble and
Kristine Rumer, R.N., N.P. With respect to plaintiff’s complaints regarding the issuance
of a medical restriction, Rumer states in her affidavit:
       {¶ 9} “1. I have personal knowledge of and I am competent to testify to the facts
contained in this Affidavit. In preparing this affidavit, I personally viewed [plaintiff’s]
inmate records, which included his medical records.
       {¶ 10} “2. I   am   currently   employed    by      [defendant]   as   the   Healthcare
Administrator (HCA) at [LoCI]. I have been employed with the state of Ohio since July
24, 2006. I was licensed as a Licensed Practical Nurse (LPN) in the state of Ohio on
August 18, 2003 * * *. I have been a Registered Nurse (RN) in the state of Ohio since
January 4, 2006 * * *. I have also been a Certified Nurse Practitioner (NP) in the state
of Ohio since November 17, 2011 * * *.
       {¶ 11} “3. Through my employment at LoCI, I have personal knowledge of
[defendant’s] and LoCI rules, regulations, protocols, policies and procedures regarding
inmate medical diagnosis, treatment and care, including medical restrictions.
       {¶ 12} “4. [Defendant] is required to provide medical services to inmates
pursuant to R.C. 5120.58 and O.A.C. 5120-9-60(A).              The medical staff - including
nurses and doctors - who provide medical services to inmates at LoCI are either
employed by [defendant] or working pursuant to a personal services contract with
[defendant].
Case No. 2009-07415                         -4-                                     ENTRY

       {¶ 13} “5. [Defendant’s] Protocol B-19 - a true and accurate copy of which is
attached to this Affidavit as Exhibit 1 - governs the guidelines for the determination of
inmate medical restrictions. Protocol B-19 defines a medical restriction as a ‘medical
accommodation written by a physician or other advanced health care provider, used to
address a serious medical need’ and provides that ‘[m]edical restrictions are written only
to address health problems that are likely to cause severe or life threatening
consequences if the restriction is not implemented immediately.’ Of particular
importance to this case, Protocol B-19 does provide that ‘[n]urses may order temporary
medical restrictions for inmates with short term, acute illnesses (i.e. flu, colds) for a
maximum of three days.’
       {¶ 14} “6. Plaintiff * * * was admitted into the custody of [defendant] on or about
September 11, 1997, and was assigned to LoCI in London, Ohio at all times relevant to
this lawsuit. [Plaintiff’s] inmate records reflect that he fell down the stairs the morning of
May 9, 2009.
       {¶ 15} “7. The Complaint in this lawsuit alleged that [plaintiff] was seen by a
nurse in the prison infirmary on May 6, 2009, at which time he claims that his request for
a bottom range medical restriction was denied, but that the nurse scheduled an
appointment for him to see the doctor on May 9, 2009. [Plaintiff’s] inmate records do
not reflect that he was seen on that date, but instead, reflect that prior to the alleged fall
on May 9, 2009, [plaintiff] was last seen by prison medical staff on April 28, 2009.
       {¶ 16} “8. On May 9, 2009, prior to the time of the alleged fall, [plaintiff] had no
active medical restrictions. [Plaintiff] had had a previous medical restriction - which
restricted him to standing no longer than thirty minutes at one time - that expired
December 2, 2008.
       {¶ 17} “9. According to his inmate records, at approximately 8:30 a.m. on May 9,
2009, [plaintiff] reported that he had fallen down the stairs and was unable to move.
Prison medical staff examined [plaintiff] in the stairwell but were unable to assess the
Case No. 2009-07415                             -5-                                      ENTRY

extent of his injuries because he refused to move. Thereafter, [plaintiff] was transported
to the emergency room of the local hospital. Upon his return from the hospital, at
approximately 12:20 p.m. on May 9, 2009, [plaintiff] was admitted to the prison
infirmary. Thereafter, he was given first floor and bottom bunk medical restrictions for
nine months.
          {¶ 18} “10.                          Based on my training, education, experience
and review of [plaintiff’s] medical records, it is my opinion to a reasonable degree of
medical certainty, that the nurse’s decision not to issue [plaintiff] an immediate,
temporary medical restriction, prior to his alleged May 9, 2009, fall, met the acceptable
standards of medical care and treatment.”
          {¶ 19} With respect to plaintiff’s ADA claim, Noble states in his affidavit:
          {¶ 20} “1. I am currently employed by [defendant] as the Deputy Warden at
[LoCI].
          {¶ 21} “2. I have personal knowledge, and I am competent to testify to the facts
contained in this Affidavit.
          {¶ 22} “3. I have reviewed [plaintiff’s] inmate records. Such records reflect that
[plaintiff] reported that he fell down the stairs the morning of May 9, 2009.
          {¶ 23} “4. The last medical restriction prior to [plaintiff’s] fall, which restricted him
to standing no longer than thirty minutes at one time, had expired on December 2, 2008.
On the date of his fall, there were no current medical restrictions in [plaintiff’s] file.
          {¶ 24} “5. At no time during [plaintiff’s] incarceration did he ever request an
accommodation through the institutional [ADA] coordinator pursuant to Section E of
[defendant’s] policy 64-DCM-02.           This policy is available for inmate review and,
therefore, [plaintiff] should be familiar with it. A true and accurate copy of [defendant’s]
Policy 64-DCM-02 is attached hereto as Exhibit 1.
Case No. 2009-07415                          -6-                                      ENTRY

       {¶ 25} “6. Since no ADA accommodation had been requested, and because
there was no current medical restriction in place for [plaintiff] on the date of his fall, there
was no reason for [defendant] to place [plaintiff] on the bottom range.”
       {¶ 26} In response to defendant’s motion, plaintiff filed his own affidavit and
copies of relevant documents from his inmate medical file.            Plaintiff avers: that he
suffers from Crohn’s disease, severe muscle spasms, a “bad” left knee, neurological
weakness, and underwent chemotherapy; that he has had several medical restrictions
in the past, including lower range and lower bunk restrictions; that when he was moved
on May 5, 2009 from a lower level to the third floor, he informed corrections officers and
“those in control” of his various ailments and difficulty climbing stairs; that he was seen
by a nurse on May 6, 2009, who decided not to grant his request for a restriction despite
his ailments and difficulty climbing stairs; that he fell on May 9, 2009, because of his
weakened condition; and that after his fall, he was issued the desired restrictions. The
court notes that plaintiff also makes statements regarding the appropriateness of the
treatment he received from the nurse on May 6, 2009, and regarding the knowledge and
state of mind of corrections officers in the area. However, such statements do not
comply with Civ.R. 56(E) and will not be considered by the court.
       {¶ 27} A review of the medical records provided by plaintiff show no record of
plaintiff visiting the LoCI infirmary on May 6, 2009, rather there is evidence that plaintiff
visited the infirmary on April 28, 2009; however, the notes regarding that visit are
indecipherable. (Plaintiff’s Affidavit Exhibit 2, pg. 4.) Furthermore, there is no record of
plaintiff having a medical restriction at the time of his fall, and no record that he
requested an ADA accommodation.
       {¶ 28} “Medical claim” is defined in R.C. 2305.113(E)(3) as “any claim that is
asserted in any civil action against a physician, podiatrist, hospital, home, or residential
facility, against any employee or agent of a physician, podiatrist, hospital, home, or
residential facility, or against a licensed practical nurse, registered nurse, advanced
Case No. 2009-07415                           -7-                                       ENTRY

practice nurse, physical therapist, physician assistant, emergency medical technician-
basic, emergency medical technician-intermediate, or emergency medical technician-
paramedic, and that arises out of the medical diagnosis, care, or treatment of any
person.”
       {¶ 29} Pursuant to R.C. 2743.02(A)(2), if plaintiff can prove that “an officer or
employee [of the state], as defined in section 109.36 of the Revised Code, would have
personal liability for the officer’s or employee’s acts or omissions but for the fact that the
officer or employee has personal immunity under section 9.86 of the Revised Code, the
state shall be held liable in the court of claims in any action that is timely filed * * *.”
       {¶ 30} R.C. 109.36 states, in part:
       {¶ 31} “(A)(1) ‘Officer or employee’ means any of the following:
       {¶ 32} “(a) A person who, at the time a cause of action against the person arises,
is serving in an elected or appointed office or position with the state or is employed by
the state.
       {¶ 33} “(b) A person that, at the time a cause of action against the person,
partnership, or corporation arises, is rendering medical, nursing, dental, podiatric,
optometric, physical therapeutic, psychiatric, or psychological services pursuant to a
personal services contract or purchased service contract with a department, agency, or
institution of the state.”
       {¶ 34} The court finds that plaintiff’s assertion that the unnamed nurse employed
by defendant who allegedly examined him prior to the fall improperly denied him a
medical restriction constitutes a medical claim. In order to establish liability for a such a
claim, plaintiff must produce evidence to establish both the relevant standard of care
and proximate cause.         See Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976).                   The
appropriate standard of care must be proven by expert testimony which must construe
what a medical professional of ordinary skill, care, and diligence in the same medical
specialty would do in similar circumstances. Id. Plaintiff failed to provide any testimony
Case No. 2009-07415                           -8-                                      ENTRY

to dispute that of Rumer that the nurse in question acted within the accepted standard
of care at all times. Accordingly, plaintiff’s claim based upon the denial of a temporary
medical restriction must fail.
       {¶ 35} With regard to plaintiff’s claim pursuant to the ADA, “[t]o prove a violation
of Title II of the ADA, a plaintiff must establish that: (1) he or she is a qualified individual
with a disability; (2) the defendant is subject to the ADA; and (3) the plaintiff was denied
the opportunity to participate in or benefit from the defendant’s services, programs, or
activities or was otherwise discriminated against by the defendant, by reason of the
plaintiff’s disability.” Wolfe v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-346,
2011-Ohio-6825, ¶16, citing Franks v. Ohio Dept. of Rehab. & Corr., 195 Ohio App. 3d
114, 2011-Ohio-2048 (10th Dist.), Thomson v. Ohio Dept. of Rehab. & Corr., 10th Dist.
No. 09AP-782, 2010-Ohio-416. A defendant discriminates against a qualified individual
with a disability if it denies him or her a reasonable accommodation. Wolfe at ¶16.
       {¶ 36} “Under the ADA, a ‘qualified individual with a disability’ is ‘an individual
with a disability who, with or without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential eligibility requirements for
the receipt of services or the participation in programs or activities provided by a public
entity.’ Further, a ‘disability’ is ‘a physical or mental impairment that substantially limits
one or more major life activities’ of the individual. ‘Major life activities include, ‘caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.’” (Citation omitted.) Franks at ¶19, quoting 42 U.S.C.
12131(2), 42 U.S.C. 12102(1)(A), 42 U.S.C. 12102(2)(A).
       {¶ 37} Title II of the ADA applies to state prisons and prisoners, and prisons thus
cannot use an inmate’s disability as a reason to bar that inmate from participating in or
receiving the benefits of recreation, medical services, or education and vocational
Case No. 2009-07415                         -9-                                     ENTRY

programs.     Pennsylvania Dept. of Corr. v. Yeskey, 524 U.S. 206, 209-210 (1998).
Therefore defendant is subject to the ADA. Furthermore, the court is satisfied that
plaintiff is a “qualified individual with a disability” based upon the statements contained
in his affidavit.
        {¶ 38} However, the court is not persuaded that plaintiff was denied a reasonable
accommodation for his disability. To the contrary, defendant has established that it has
a process through which plaintiff may request an accommodation for his disability and
an ADA coordinator tasked with reviewing such requests. Defendant provided affidavit
testimony from Noble that plaintiff never requested an accommodation. Indeed, while
plaintiff states in his affidavit that he informed several corrections officers of his medical
condition, he does not state that he requested an accommodation other than the
medical restriction. Accordingly, plaintiff’s claim pursuant to Title II of the ADA must
also fail.
        {¶ 39} Based upon the foregoing, defendant’s motion for summary judgment shall
be granted and judgment shall be rendered in favor of defendant.
Case No. 2009-07415                       - 10 -                                      ENTRY




                                              Court of Claims of Ohio
                                                                        The Ohio Judicial Center
                                                                65 South Front Street, Third Floor
                                                                           Columbus, OH 43215
                                                                 614.387.9800 or 1.800.824.8263
                                                                            www.cco.state.oh.us



JERRY FRANKS

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

      Defendant

Case No. 2009-07415

Judge Joseph T. Clark
Magistrate Matthew C. Rambo

JUDGMENT ENTRY

       {¶ 40} A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.       For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant.     All future events are VACATED.         Court costs are
assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment
and its date of entry upon the journal.



                                          _____________________________________
                                          JOSEPH T. CLARK
Case No. 2009-07415                - 11 -                               ENTRY

                                   Judge

cc:


Amy S. Brown                         Richard F. Swope
Assistant Attorney General           6480 East Main Street, Suite 102
150 East Gay Street, 18th Floor      Reynoldsburg, Ohio 43068
Columbus, Ohio 43215-3130

005
Filed April 23, 2012
To S.C. reporter August 24, 2012
