Mruk v. Allen Correctional Inst. (Ohio 2009)

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TIMOTHY M. MRUK

Plaintiff v.
ALLEN CORRECTIONAL INSTITUTION

Defendant



Case No. 2007-05865
Judge Joseph T. Clark Magistrate Steven A. Larson ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT



On September 17, 2008, defendant filed a motion for summary judgment pursuant to Civ.R. 56(B). Plaintiff did not file a response. The motion is now before the court on a non-oral hearing pursuant to L.C.C.R. 4(D).
Civ.R. 56(C) states, in part, as fol ows:

"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 have the evidence or stipulation construed most strongly in the party's favor." See also


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Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317.
At all times relevant to this action, plaintiff was an inmate in the custody and control of defendant pursuant to R.C. 5120.16. Plaintiff's claims arise out of dental care that he received while in defendant's custody. Plaintiff asserts that he experienced dental problems fol owing a tooth extraction procedure he underwent on April 11, 2007, and that treatment of those problems was delayed for several months because defendant did not have a dentist on staff and had refused to convey him to an outside facility for treatment. Defendant argues that plaintiff received adequate dental treatment.
In support of its motion, defendant provided that affidavit of Alyson Amerson, who states:

"1. I am licensed as a dentist in good standing in the State of Ohio;

"2. Besides operating my own dental practice, I am currently contracted by Mid America to provide dental care and treatment for the Ohio Department of Rehabilitation and Correction ("D.R.C.") at [defendant];

"3. At [defendant], I supervise and have personal knowledge of the activities and duties relating to the dental care and treatment of inmates that are incarcerated at [defendant];

"4. I have personal knowledge, and I am competent to testify to the facts contained in this Affidavit;

"5. I have read the allegations set forth in the plaintiff's complaint;

"6. I have reviewed the medical file of [plaintiff];

"7. As of the signing of this affidavit, [plaintiff] has received dental care and treatment at [defendant] from March 27, 2007 until July 8, 2008;

"8. According to his dental file, [plaintiff's] dental care and treatment at [defendant] has met the appropriate standard of care;



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"9. The dental care [plaintiff] received at [defendant] did not proximately result in the injuries that he alleges in his complaint."

Plaintiff did not file any affidavit to dispute the averments made by Dr.
Amerson. Civ.R. 56(E) provides, in part:

"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."

In order to establish liability, plaintiff must produce evidence to establish both the relevant standard of care and proximate cause. See Bruni v. Tatsumi (1976), 46 Ohio St.2d 127. 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.
Based upon the undisputed affidavit provided by Dr. Amerson and in consideration of plaintiff's failure to provide the court with any evidence showing that a genuine issue of fact exists for trial, the court finds that defendant is entitled to judgment as a matter of law. Accordingly, defendant's motion for summary judgment is hereby GRANTED and judgment is rendered in favor of defendant. 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

Judge
cc:





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Brian M. Kneafsey Jr. Timothy M. Mruk, #R130-049 Daniel R. Forsythe 2338 North West Street Assistant Attorneys General Lima, Ohio 45802 150 East Gay Street, 18th Floor Columbus, Ohio 43215-3130 MR/cmd Filed January 12, 2009 To S.C. reporter February 10,
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