[Cite as Wallace v. Grafton Correctional Inst., 2010-Ohio-6608.]

                                                         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




RONNIE LEE WALLACE

        Plaintiff

        v.

GRAFTON CORRECTIONAL INSTITUTION

        Defendant
        Case No. 2008-11711

Judge Alan C. Travis
Magistrate Matthew C. Rambo

MAGISTRATE DECISION




        {¶ 1} Plaintiff brought this action alleging negligence. The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.
        {¶ 2} As an initial matter, on October 12, 2010, defendant filed a motion to
quash the subpoenas issued for Dr. John Roberts, Dr. Mark D’Onofrio, Patricia Davis,
and Riann Taylor. Defendant argues that the proper witness and mileage fees were not
tendered upon service of the subpoenas. The court notes that improper service or
failure of service is not a basis for quashing a subpoena pursuant to Civ.R. 45(C)(3).
Accordingly, defendant’s motion is DENIED. However, inasmuch as plaintiff did not
provide the appropriate witness fees, the court finds that the subpoenas were not
properly served pursuant to Civ.R. 45(B), and are therefore not enforceable.
        {¶ 3} At all times relevant, plaintiff was an inmate in the custody and control of
defendant pursuant to R.C. 5120.16. Plaintiff asserts that defendant was negligent in
failing to schedule him for medically prescribed physical therapy sessions. Defendant
Case No. 2008-11711                        -2-                MAGISTRATE DECISION

argues that plaintiff was scheduled for physical therapy sessions as prescribed but that
plaintiff refused to attend most of those sessions.
       {¶ 4} In order for plaintiff to prevail upon his claim of negligence, he must prove
by a preponderance of the evidence that defendant owed him a duty, that defendant’s
acts or omissions resulted in a breach of that duty, and that the breach proximately
caused his injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-
2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.
       {¶ 5} Plaintiff testified that he underwent a total right hip replacement in April
2003 at The Ohio State University Medical Center (OSUMC) and that he has used a
“walker” ever since. Plaintiff further testified that he received some physical therapy
after the surgery at OSUMC and at the Corrections Medical Center (CMC), before being
returned to defendant’s custody. According to plaintiff, he was prescribed a continuing
course of physical therapy which required him to periodically travel by bus from
defendant to CMC, a trip of approximately three hours, while secured in handcuffs and
shackles. Plaintiff stated that the trip caused him discomfort and that he felt that the
physical therapy which he received at CMC was not helpful. As such, plaintiff admitted
that after two such trips, he refused to go. Plaintiff testified that he instead tried to
persuade defendant’s medical staff to send him to a local area hospital for treatment,
but that his requests were denied.
       {¶ 6} Michele Viets, a registered nurse, currently serves as a regional nurse
coordinator for the Department of Rehabilitation and Correction; she was the Healthcare
Administrator for defendant during the time relevant to plaintiff’s claims. With regard to
the scheduling of physical therapy, Viets testified that a physician makes the initial
request for an inmate to receive physical therapy, then a Health Information Technician
employed by defendant contacts CMC, and CMC responds with a treatment schedule
based upon the original physician’s request. The inmate then travels via bus to CMC to
receive the treatment as scheduled.
Case No. 2008-11711                        -3-                 MAGISTRATE DECISION

       {¶ 7} Viets further testified that she reviewed plaintiff’s medical records in
preparation for trial and that there are several instances when plaintiff was scheduled to
travel to CMC for physical therapy but refused. Defendant’s Exhibit E is a summary of
plaintiff’s scheduled visits to CMC between August 7, 2002, and August 26, 2010. The
summary shows that plaintiff was scheduled for physical therapy 14 times between
August 8, 2003, and May 30, 2006, but that he missed seven of those appointments.
Additionally, Defendant’s Exhibits A, B, C, D, J, and K document plaintiff’s refusal to
attend scheduled physical therapy sessions.        According to Viets, inmates are not
required to attend the sessions if they express to staff that they do not want to attend.
       {¶ 8} Based upon the foregoing, the court finds that defendant scheduled
plaintiff for numerous physical therapy sessions as prescribed, but that plaintiff chose
not to attend many of those sessions. Accordingly, the court finds that defendant did
not commit a breach of its duty of care to plaintiff. Judgment is recommended in favor
of defendant.
       A party may file written objections to the magistrate’s decision within 14 days of
the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion within 14 days of the filing of the
decision, as required by Civ.R. 53(D)(3)(b).




                                          _____________________________________
                                          MATTHEW C. RAMBO
                                          Magistrate
Case No. 2008-11711                -4-              MAGISTRATE DECISION

cc:


Stephanie D. Pestello-Sharf         Ronnie Lee Wallace, #A140-221
Assistant Attorney General          Grafton Correctional Institution
150 East Gay Street, 18th Floor     2500 South Avon-Belden Road
Columbus, Ohio 43215-3130           Grafton, Ohio 44044

MR/cmd
Filed December 10, 2010
To S.C. reporter January 4, 2011
