[Cite as Magby v. Sloan, 2021-Ohio-3171.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
RONALD MAGBY, CASE NO. 2020-A-0045
Plaintiff-Appellant,
Civil Appeal from the
-v- Court of Common Pleas
BRIGHAM SLOAN,
WARDEN, et al., Trial Court No. 2018 CV 00608
Defendants-Appellees.
OPINION
Decided: September 13, 2021
Judgment: Affirmed
Ronald Magby, pro se, PID# A692-721, Lake Erie Correctional Institution, 501
Thompson Road, P.O. Box 8000, Conneaut, OH 44030 (Plaintiff-Appellant).
Timothy J. Bojanowski, Struck Love Bojanowski & Acedo, PLC, 3100 West Ray Road,
Suite 300, Chandler, AZ 85226 (For Defendants-Appellees, Chief Medical Officer
Gillespie, Medical Administrator L. Witt, Deputy Warden Pritchard, Medical Director
Reberra, Advanced Level Provider Swanson and Warden Brigham Sloan).
Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th
Floor, Columbus, OH 43215 and Mindy Worly, Assistant Attorney General, Criminal
Justice Section, Corr. Unit, 150 East Gay Street, 16th Floor, Columbus, OH 43215 (For
Defendants-Appellees, State Medical Director Cheryl Williams, Director Gary Mohr and
Warden Kimberly Clipper).
Gina DeGenova Bricker, Assistant Prosecutor, 21 West Boardman Street, 5th Floor,
Youngstown, OH 44503 (For Defendant-Appellee, Mahoning County Justice Center
Sheriff Jerry Greene).
MATT LYNCH, J.
{¶1} Plaintiff-appellant, Ronald Magby, appeals the Judgment Entry of the
Ashtabula County Court of Common Pleas, granting summary judgment in favor of
defendants-appellees, Cheryl Williams, L. Witt, M. Rebera, and Dr. S. Swanson, and
dismissing the Complaint. For the following reasons, we affirm the decision of the court
below.
{¶2} Magby is currently an inmate at the Lake Erie Correctional Institution in
Ashtabula County. Prior to his incarceration, Magby sustained third-degree burns which
require ongoing treatment for “growing pathogens,” swelling, discharging fluids, and
seeping blood in the area of his ears, neck, chest, and back. In September 2018, he filed
a Complaint for Preliminary Injunction/(TRO) Temporary Restraining Order against
Williams, Witt, Rebera, Dr. Swanson, and others. The Complaint alleged, inter alia, that
medical personnel failed to treat his medical condition and have shown deliberate
indifference to his serious medical needs in violation of the Eighth Amendment rights
under the United States Constitution.
{¶3} On January 31, 2019, the trial court dismissed the Complaint on the
pleadings.
{¶4} In Magby v. Sloan, 11th Dist. Trumbull No. 2019-A-0032, 2019-Ohio-4317,
this court reversed, in part, the judgment of the lower court to allow Magby’s Eighth
Amendment deliberate indifference/Section 1983 claims to proceed against Williams,
Witt, Rebera, and Dr. Swanson.
{¶5} Williams filed her Answer to the Complaint on December 12, 2019. Witt,
Rebera, and Dr. Swanson filed their Answer on December 13 and an Amended Answer
on December 17, 2019.
{¶6} On January 9, 2020, Magby filed a Motion for Extension of Time to File a
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Response in Opposition to the Defendant(s)[’] Amended Answer in which he asserted
“that his transportation to a[n] outside hospital for surgery remains ongoing and there
will be times where he will be unable to communicate such to the Court in the absen[ce]
of counsel.” Accordingly, he sought “a (30) day extension of time or in the alternative,
to hold the proceedings in abeyance until the completion of his surgery.”
{¶7} On March 18, 2020, the trial court referred the case to mediation scheduled
for June 18, 2020.
{¶8} On April 8, 2020, the trial court issued a scheduling order in which it ordered
that discovery be completed by June 10, 2020 and set the matter for pretrial on July 16,
2020, and for jury trial on August 18, 2020. Additionally, the court advised: “Any
dispositive motions may be filed at any time, but no later than the discovery deadline,
with the response due thirty (30) days thereafter the filing [sic], unless extended by the
Court, and the Court will rule without further hearing.”
{¶9} On June 4, 2020, the trial court, on the motion of Witt, Rebera, and Dr.
Swanson, rescheduled mediation for August 18, 2020.
{¶10} On July 8, 2020, Williams filed a Motion for Summary Judgment.
{¶11} On July 20, 2020, Witt, Rebera, and Dr. Swanson filed a Motion for
Summary Judgment and, on July 22, 2020, a Joinder in the Motion for Summary
Judgment of Defendant Williams.
{¶12} On July 24, 2020, the trial court issued notice of a “summary judgment
hearing (no attendance required)” on August 31, 2020.
{¶13} On August 3, 2020, Witt, Rebera, and Dr. Swanson filed a Motion to
Continue the August 18, 2020 Mediation on the grounds that Magby’s responses to the
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Motion for Summary Judgment were due on August 7 with respect to Defendant Williams
and August 17 with respect to Witt, Rebera, and Dr. Swanson and that they anticipated
filing a Reply in support of their Motion for Summary Judgment.
{¶14} On August 6, 2020, the trial court continued the mediation without setting a
new date.
{¶15} On September 15, 2020, Williams filed a Motion to Stay or Reset Final
Pretrial and Trial Dates Pending Resolution of Motion for Summary Judgment, “to allow
time for the Court to review and issue its opinion on Defendant’s motion for summary
judgment.”
{¶16} Also on September 15, 2020, the trial court granted the defendants’ Motions
for Summary Judgment and dismissed the Complaint. The court noted that Magby did
not “file a response” to the pending motions. The court held:
Evidence and affidavits provided by defendants show plaintiff made
efforts to make the defendants aware of his medical needs, and that
in fact his medical needs were being addressed appropriately.
Plaintiff was not satisfied or in agreement with his course of treatment
prescribed. As the defendants state, it is uncontested that, other
than Dr. Swanson, none of the named defendants are doctors or
nurses treating plaintiff. * * *
Plaintiff has attached notes or “kites” he has sent to the prison
personnel complaining of his purported medical condition. The notes
or “kites” show the responses from the personnel stating plaintiff is
receiving daily treatment and regular visits to the doctor or nurses.
Plaintiff was seeing doctors regularly with a course of treatment and
a plan to address his concerns and medical needs. Plaintiff’s
condition has been monitored at least twice weekly. Defendants
have shown that plaintiff did receive surgery and further treatment
from providers as this case was pending.
Plaintiff has failed to give a factual rendering of what these
defendants have done to him or failed to do, entitling him to recovery.
The elements of a deliberate indifference claim include having a
serious medical claim that needs obvious attention, recognizable by
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a layperson who knows of and disregards the risk to inmate health
or safety. * * *
Everything before the court shows plaintiff was receiving continued
treatment before and during the pendency of this lawsuit. Plaintiff
has not been denied appropriate medical care. Nowhere does
plaintiff allege that the defendants took any action to deny him
medical care or treatment that was not prescribed by medical
personnel. Defendants were not in a position to deny him medical
treatment. Defendants have no authority to tell the doctors and
nurses treating plaintiff what was proper treatment for plaintiff.
{¶17} On October 1, 2020, Magby filed a Notice of Appeal. On appeal, he raises
the following assignment of error: “The trial court abused its discretion and violated
appellant Magby’s Fourteenth Amendment right to Equal Protection of the Law under the
United States Constitution and Article I, Section 10 of the Ohio Constitution when granting
the State Defendants’ Motions for Summary Judgment without giving Appellant the
opportunity to respond.”
{¶18} “Summary judgment is a procedural device to terminate litigation and to
avoid a formal trial where there is nothing to try.” (Citation omitted.) Norris v. Ohio
Standard Oil Co., 70 Ohio St.2d 1, 2, 433 N.E.2d 615 (1982). “When a motion for
summary judgment is made and supported as provided in this rule, an adverse party may
not rest upon the mere allegations or denials of the party’s pleadings, but the party’s
response, by affidavit or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If the party does not so respond, summary
judgment, if appropriate, shall be entered against the party.” Civ.R. 56(E). “A decision
granting or denying a motion for summary judgment is reviewed do novo.” A.J.R. v. Lute,
163 Ohio St.3d 172, 2020-Ohio-5168, 168 N.E.3d 1157, ¶ 15.
{¶19} “In all cases, a trial court is under an obligation to allow time for a full and
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fair response before ruling on a motion for summary judgment * * *.” Hooten v. Safe Auto
Ins. Co., 100 Ohio St.3d 8, 2003-Ohio-4829, 795 N.E.2d 648, ¶ 40. When, as here, “a
trial court does not hold an oral hearing on a summary judgment motion, Civ.R. 56
requires, as a matter of due process, that the nonmoving party receive notice of the
deadline date for the opposing party’s response to the summary judgment motion or of
the date on which the motion is deemed submitted for decision.” Id. at ¶ 17.
{¶20} According to the Civil Rules, “[r]esponses to motions for summary judgment
may be served within twenty-eight days after service of the motion.” Civ.R. 6(C)(1). The
trial court, in its April 8 scheduling order, afforded Magby thirty days to respond to the
defendants’ Motions for Summary Judgment. The court extended this period even further
by giving notice on July 24 of a nonoral hearing on August 31. The August 31 date is
fifty-four days after the filing of Williams’ Motion for Summary Judgment and forty-two
days after the filing of Witt, Rebera, and Dr. Swanson’s Motion for Summary Judgment.
To rule on the Motions prior to the expiration of these deadlines would have constituted
a denial of due process/the opportunity to respond. See, e.g., Bank of New York v.
Goldberg, 11th Dist. Geauga No. 2019-G-0204, 2019-Ohio-3998. Rather than ruling
prematurely, the trial court in the present case did not issue its decision until fifteen days
after the date set for nonoral hearing. Given the record before this court, there are no
grounds for concluding that the court infringed Magby’s due process rights by denying
him the opportunity to respond to the Motions for Summary Judgment.
{¶21} Magby argues on appeal that the trial court deprived him of the opportunity
to respond by ruling on the Motions for Summary Judgment on the same day that Williams
moved the court to continue the dates of the final pretrial and trial, “having appellant
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believing that a mediation hearing would be conducted to bring about a final resolution to
the Civil Complaint.” Appellant’s brief at 5. The points raised, however, have little bearing
on Magby’s ability to oppose summary judgment. Williams’ motion to continue the pretrial
and trial dates did not compromise Magby’s ability to respond to her Motion for Summary
Judgment which was filed fifty-four days earlier. The motion to continue was never ruled
upon but was rendered moot by the court’s summary judgment ruling which was issued
a little over an hour after the motion to continue was filed. Thus, there was no need to
respond to it. With respect to mediation, at the time the court ruled on summary judgment,
there was no mediation pending. The court essentially suspended mediation by
cancelling but not rescheduling it. Magby could not have reasonably believed that the
court would defer ruling on summary judgment until mediation concluded when the court
had suspended mediation for the purpose of ruling on summary judgment.
{¶22} Magby also contends that the Civil Rules were violated because the
defendants did not seek leave of court before filing their Motions for Summary Judgment
after the case had been set for pretrial and trial. Civ.R. 56(A) (“[i]f the action has been
set for pretrial or trial, a motion for summary judgment may be made only with leave of
court”). The record contradicts this assertion. All the defendants in this case sought and
obtained leave to file dispositive motions after the expiration of the stated deadline of
June 10, 2020.
{¶23} Finally, Magby’s Motion for Extension of Time to File a Response to the
Amended Answer filed on January 9, 2020, on the grounds that his medical treatment
interfered with his ability to communicate with the trial court, was wholly inadequate to
apprise the court that additional time would be needed to respond to summary judgment
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motions that would not be filed for another six months. Deadlines for opposing summary
judgment were fixed by the court in April and July. If compliance with these deadlines
was not practicable it was incumbent upon Magby to advise the court thereof and request
additional time.
{¶24} As noted by the defendants in their appellate briefs, there is abundant
authority supporting the grant of summary judgment in similar circumstances. Hudson v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 04AP-562, 2004-Ohio-7203, ¶ 17
(“[b]ased on the record before us, we cannot discern that [prior to the dismissal of the
case for failure to prosecute], appellant informed the court of her medical issues and need
for a continuance”); McGinnis, Inc. v. Lawrence Economic Dev. Corp., 4th Dist. Lawrence
No. 02CA33, 2003-Ohio-6552, ¶ 33 (“[a] trial court may grant a properly supported motion
for summary judgment if the nonmoving party does not respond, by affidavit or as
otherwise provided in Civ.R. 56, with specific facts showing that there is a genuine issue
for trial”); NDB Mtge. Co. v. Marzocco, 2d Dist. Montgomery No. 18824, 2001 WL
1346030, *11 (“[s]ince the Marzoccos did not respond by [the deadline for responding],
or indeed at any time thereafter, and never asked for a further continuance, the trial court
was certainly justified in ruling on the pending summary judgment motion”); Progressive
Cas. Ins. Co. v. Bryan, 11th Dist. Lake No. 93-L-188, 1994 WL 321203, *2 (summary
judgment was appropriate where “appellant did not respond to appellee’s motion for
summary judgment, and therefore, did not submit opposing evidentiary materials on any
of the issues for which it bore the burden of production at trial”).
{¶25} The sole assignment of error is without merit.
{¶26} For the foregoing reasons, the judgment of the Ashtabula County Court of
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Common Pleas is affirmed. Costs to be taxed against the appellant.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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