[Cite as Bugh v. Grafton Correctional Inst., 2009-Ohio-7031.]

                                                        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




RICHARD BUGH

       Plaintiff

       v.

GRAFTON CORRECTIONAL INSTITUTION

       Defendant
       Case No. 2005-08999

Judge J. Craig Wright
Magistrate Steven A. Larson

MAGISTRATE DECISION




        {¶ 1} On April 27, 2006, this court rendered summary judgment in favor of
defendant. On December 12, 2006, the Tenth District Court of Appeals reversed the
judgment of this court and remanded the case for further proceedings, stating in
relevant part:
        {¶ 2} “First, although the trial court properly found that it lacked jurisdiction to
consider any claims of constitutional violations or violations of federal civil rights law * * *
the trial court incorrectly applied [the doctrine of discretionary immunity in] Reynolds,
supra.1
        {¶ 3} “* * *
        {¶ 4} “what is at issue is whether defendant breached a duty to plaintiff when
procurement of plaintiff’s special footwear was delayed. * * *
        {¶ 5} “Second, the trial court erred by partially construing plaintiff’s cause of
action as a medical negligence claim.

        1
          Reynolds v. State, Div. of Parole & Community Servs. (1984), 14 Ohio St. 3d 68.
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        {¶ 6} “* * *
        {¶ 7} “Therefore, we hold that defendant failed to support its burden under
Civ.R. 56, and the trial court erred, as a matter of law, by granting summary judgment in
favor of defendant.”
        {¶ 8} Bugh v. Grafton Correctional Inst., Franklin App. No. 06AP-454, 2006-
Ohio-6641, ¶26-34.
        {¶ 9} In accordance with the judgment of the court of appeals, the case was set
for trial on plaintiff’s claim of negligence. The issues of liability and damages were
bifurcated and the case proceeded to trial on the issue of liability.2
        {¶ 10} At all times relevant to this action, plaintiff was an inmate in the custody
and control of defendant at the Grafton Correctional Institution (GCI) pursuant to R.C.
5120.16. Plaintiff testified that he suffers from severe arthritis and joint deterioration in
both of his feet. Plaintiff explained that in November 2001, he was examined by a
surgeon at Corrections Medical Center (CMC) who determined that he was not a
candidate for surgery.3 However, the doctor sent plaintiff to an orthopedic specialist to
be fitted for a pair of full-length, hard-sole boots with a “rocker bottom.” From November
2001 to August 2005, plaintiff was seen at both GCI and CMC to modify his orthopedic

        2
          On November 29, 2007, plaintiff filed a “request for appointment of counsel.” On November 30,
2007, defendant filed a response. “[A]n indigent litigant has a right to appointed counsel only when, if he
loses, he may be deprived of his physical liberty.” Perotti v. Ohio Dept. of Rehab. & Corr. (1989), 61 Ohio
App.3d 86, 91, quoting Lassiter v. Dept. of Social Services (1981), 452 U.S. 18, 26-27. Plaintiff is not at
risk of losing his physical liberty as a result of any determination that may be made by the court.
Accordingly, plaintiff’s motion for the appointment of counsel was DENIED at trial.

        3
          The court notes that although plaintiff presented testimony and exhibits regarding events that
occurred more than two years prior to the filing of his complaint on August 9, 2005, his claim is limited to
events that occurred on or after August 9, 2003, pursuant to R.C. 2743.16(A), which states, in relevant
part: “civil actions against the state permitted by sections 2743.01 to 2743.20 of the Revised Code shall
be commenced no later than two years after the date of accrual of the cause of action or within any
shorter period that is applicable to similar suits between private parties.”
Case No. 2005-08999                         -3-               MAGISTRATE DECISION

boots and to make necessary repairs. Over that period of time, plaintiff complained that
his boots were not rigid enough and that they deteriorated rapidly.
      {¶ 11} Plaintiff asserts that the medical department at GCI was “very lax” about
furnishing his prescribed boots and that at various times throughout his incarceration,
new or repaired boots were ordered but that defendant’s employees delayed the
delivery of the boots to him.    Plaintiff also asserts that he was repeatedly sent on
unnecessary “round trips” to CMC to be fitted for boots when his presence was not
required.
      {¶ 12} Defendant argues that plaintiff was seen by its medical staff every time
there was a problem with his boots, and that it did not breach its duty of care with regard
to the procurement of his medically-issued footwear.
      {¶ 13} Plaintiff brings this action alleging negligence.    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 it breached that duty, and that the breach
proximately caused his injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d
79, 81, 2003-Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio
St.3d 75, 77. Ohio law imposes a duty of reasonable care upon the state to provide for
its prisoners’ health, care, and well-being. Clemets v. Heston (1985), 20 Ohio App.3d
132, 136. Reasonable or ordinary care is that degree of caution and foresight which an
ordinarily prudent person would employ in similar circumstances.         Smith v. United
Properties Inc. (1965), 2 Ohio St.2d 310.
      {¶ 14} On August 14, 2003, plaintiff was examined by a podiatrist at CMC who
ordered one pair of “rigid rocker bottom soled boots.” On October 9, 2003, a “pick-up”
consult was written, wherein it was noted that plaintiff’s boots had arrived and that
plaintiff was to try them on and return them to the CMC orthotic clinic for rocker sole
modification. On October 30, 2003, a request was made to apply a 3/4 inch rocker
bottom sole. Plaintiff asserts that GCI received the boots on October 9 but that the
Case No. 2005-08999                         -4-                MAGISTRATE DECISION

boots were not sent for modifications until October 30. Plaintiff asserts that the delay
from October 9 to October 30 caused him “time and pain.”
        {¶ 15} On November 6, 2003, plaintiff’s boots were returned to GCI with rocker
bottom soles and repaired rubber heels. On December 4, 2003, plaintiff was seen at
CMC either for readjustment or to recast his feet for inserts. The notes from that visit
reflect that plaintiff had not received his new boots. On December 22, 2003, the Health
Care Administrator (HCA) at GCI noted that she received one pair of new molded
insoles and that she issued those to plaintiff along with his new boots.
        {¶ 16} On March 4, 2004, plaintiff complained that he could not tolerate his new
orthotics because the “depression” was too deep, and that the soles of his boots were
wearing out again. A doctor placed felted foam over the orthotics and advised plaintiff
to send a kite in one month if the orthotic with padding was not effective.
        {¶ 17} On May 27, 2004, plaintiff complained that the rocker soles were wearing
out again and that the orthotics were causing him pain. A new hard bottom rocker sole
was ordered to be reapplied and his orthotics were to be reevaluated. It was also noted
that the quartermaster was to issue plaintiff another pair of boots until repairs were
made to his original pair. On July 1, 2004, plaintiff was seen in the orthotics clinic at
CMC and his boots and orthotics were taken for repairs. On July 8, 2004, plaintiff
complained of pain in his great toe joints for which Motrin was prescribed. On July 15,
2004, plaintiff’s boots were returned with new heels and rocker soles. On July 20, 2004,
the boots were issued to plaintiff.
        {¶ 18} On October 28, 2004, plaintiff complained that the soles were detaching
from his boots again. On November 18, 2004, a new pair of boots was authorized for
plaintiff.
        {¶ 19} On November 24, 2004, plaintiff sent a kite to the podiatrist inquiring about
his boots. The kite was returned to him with a notation advising him to contact the HCA.
Case No. 2005-08999                          -5-                 MAGISTRATE DECISION

On December 2, 2004, he sent a kite to the HCA, and on December 4, 2004, she
advised him that he would be receiving new boots.
       {¶ 20} On January 6, 2005, plaintiff was seen in the orthotics clinic at CMC. On
January 23, 2005, plaintiff sent a kite to the HCA inquiring about his boots. On January
27, 2005, the HCA notified plaintiff that his boots had been ordered. However, plaintiff
points to a consultation request from January 6, 2005 where a new pair of boots was
ordered on that date, but the purchase order was not sent until January 27, 2005, the
same date that his kite was answered.          Plaintiff asserts that defendant’s failure to
promptly act upon the consultation request is another example of the delay he
encountered with his boots.
       {¶ 21} On May 18, 2005, plaintiff complained that his new boots did not fit. He
was advised that he would be sent on a round trip to CMC with his boots.
       {¶ 22} On June 1, 2005, plaintiff signed a “refusal to attend a medical
appointment” form. Plaintiff wrote, “I’ve been down repeated times, but the HCA here
ordered the wrong boots, and I don’t feel I should go through more pain for no reason.”
Plaintiff asserts that when he was sent on round trips to CMC, he was not fitted for
boots; rather, he would briefly talk to the orthotics specialist and that the boots would be
sent to him at GCI for a fitting at a later time. Plaintiff also testified that the round trips
were very painful for him because he remained shackled for long periods of time which
resulted in pain from arthritis in his hips and feet.
       {¶ 23} On August 8, 2005, a physician inquired about plaintiff’s boots on his
behalf and it was noted that because plaintiff had signed a refusal to attend his medical
appointment on June 1, 2005, no action was taken. On August 9, 2005, plaintiff filed his
complaint.
       {¶ 24} Plaintiff testified that at some point near the end of 2005, HCA Michelle
Viets got involved in his care. By the end of 2005, with the help of Viets, plaintiff finally
obtained two pair of boots with rigid carbon fiber plates that fit him correctly.
Case No. 2005-08999                         -6-                 MAGISTRATE DECISION

       {¶ 25} On cross-examination, plaintiff admitted that he had been told over the
past several years that he was required to go to CMC or Capital Prosthetics in
Columbus, Ohio on round trips to receive his orthopedic boots.
       {¶ 26} Michelle Viets, R.N., testified that she became HCA at GCI in February
2004. Viets testified that when special items, such as orthopedic boots, are ordered for
inmates, the podiatrist is required to inspect them and make sure that they are
appropriate before the nursing staff can issue them to the inmate. Viets also stated that
the podiatrist typically visits GCI one day per month. She also explained that GCI uses
vendors outside of the institution to manufacture orthopedic boots.
       {¶ 27} Viets explained that under normal circumstances, an inmate who requires
a pair of orthotic shoes is issued a new pair every two years. However, plaintiff’s boots
were wearing out more frequently. In addition, Viets stated that inmates are issued only
one pair of orthotic shoes.     However, because plaintiff had encountered so many
problems with his boots either wearing out or not fitting correctly, she contacted the
institutional inspector to get approval for plaintiff to be issued two pair of orthopedic
boots. Viets also testified that at the time plaintiff signed his refusal to attend a medical
appointment, there was no procedure in place to follow-up with the inmate. She added
that plaintiff took maintenance pain medication for preexisting issues throughout his
incarceration.
       {¶ 28} Based upon the evidence presented, the court finds that plaintiff has failed
to prove, by a preponderance of the evidence, that defendant breached its duty of
reasonable care. The court notes that plaintiff encountered much difficulty in obtaining
a pair of orthopedic boots that both fit him correctly and were durable. However, the
court finds that defendant’s staff exercised reasonable care when it responded to
plaintiff’s complaints about his boots. The court further finds that Viets’ testimony that
defendant’s staff was required to obtain the podiatrist’s approval before plaintiff’s boots
could be issued to him was credible. The court further finds that since the podiatrist
Case No. 2005-08999                        -7-                MAGISTRATE DECISION

was at GCI infrequently, a certain amount of delay in obtaining his approval was
reasonable. In addition, the court finds that plaintiff’s refusal to go to CMC on June 1,
2005, added to the delay that he encountered in acquiring his orthopedic boots.
       {¶ 29} For the foregoing reasons, the court finds that plaintiff has failed to prove
any of his claims by a preponderance of the evidence and, accordingly, judgment is
recommended in favor of defendant.
       {¶ 30} In light of this decision, plaintiff’s December 17, 2007 motion for leave to
clarify Plaintiff’s Exhibit 26 is DENIED as moot.
       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).



                                          _____________________________________
                                          STEVEN A. LARSON
                                          Magistrate

cc:
Case No. 2005-08999                  -8-            MAGISTRATE DECISION


Amy S. Brown                          Richard Bugh, #216-362
Brian M. Kneafsey Jr.                 2500 S. Avon Belden Road
Assistant Attorneys General           Grafton, Ohio 44044
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

Magistrate Steven A. Larson

HTS/cmd
Filed November 25, 2009
To S.C. reporter December 29, 2009
