Opinion
Case No. 2019-00352JD
02-20-2020
JERONE MCDOUGALD Plaintiff v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant
Magistrate Scott Sheets
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
{¶1} Before the court is defendant's December 16, 2019 motion for summary judgment. On December 23, 2019, plaintiff filed a motion for leave to file for summary judgment which contains arguments in opposition to defendant's motion for summary judgment. On December 30, 2019, plaintiff filed another motion which seems to request that the court consider his December 23, 2019 motion as a response to defendant's motion for summary judgment. The court hereby construes plaintiff's December 23, 2019 motion as a response to defendant's motion for summary judgment. Consequently, plaintiff's December 23 and December 30, 2019 motions are DENIED as moot. On February 19, 2020, plaintiff filed a motion seeking leave to further supplement his response to defendant's motion for summary judgment. Plaintiff offers no explanation for the late timing of his motion and provides no justification for allowing him to further respond after the motion for summary judgment has been fully briefed. Having failed to demonstrate good cause, plaintiff's February 19, 2020 motion is DENIED.
{¶2} Plaintiff's complaint asserts defendant acted negligently in failing to retain surveillance video concerning his medical treatment (or lack thereof) after defendant's employees applied force to plaintiff on May 2, 2016. Defendant asserts the statute of limitations and/or discretionary immunity bars plaintiff's claims. For the reasons stated herein, the court grants defendant's motion for summary judgment.
Civ.R. 56(C) states, in part, as follows:
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 Dresher v. Burt, 1996-Ohio-107, 75 Ohio St.3d 280 (1996). In Dresher, the Ohio Supreme Court held, "the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." A "movant must be able to point to evidentiary materials of the type listed in 56(C)." Id. at 292.
{¶3} When the moving party has satisfied its initial burden, Civ.R. 56(E) imposes a reciprocal burden on the nonmoving party. It states:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit. The court may permit affidavits to be supplemented or opposed
by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon mere allegations or denials of his 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 seeking and opposing summary judgment, parties must rely on admissible evidence. Keaton v. Gordon Biersch Brewery Rest. Group, 10th Dist. No. 05AP-110, 2006 Ohio 2438, 2006 Ohio App. Lexis 2287, ¶18.
Facts
{¶4} As required, the following facts are stated in a light most favorable to plaintiff. Given the nature of plaintiff's claims and defendant's arguments on summary judgment, the relevant facts are limited. On May 2, 2016, defendant's employees applied force to plaintiff, an inmate at defendant's Southern Ohio Correctional Facility, by using OC spray on him. Plaintiff was taken to the facility's medical department that same day. On December 1, 2017, plaintiff requested and viewed video footage of the use-of-force. However, defendant did not retain the video footage of plaintiff's medical treatment and/or interactions with medical staff. Defendant's policy requires it to retain video footage for 14 days unless the video is part of an official investigation. After 14 days, new video is recorded-over existing video. Though the use-of-force was investigated, plaintiff's subsequent medical treatment was not. Thus, per defendant's policy, the video of plaintiff's medical treatment was not retained.
{¶5} Plaintiff filed his complaint on March 14, 2019 asserting defendant acted negligently in failing to retain the video of his medical treatment. Plaintiff does not allege that defendant willfully and/or intentionally destroyed the video. Further, he does not seek recovery for improper medical care. Rather, he maintains that defendant acted negligently in failing to retain the video in violation of its own policies.
Law and Analysis
{¶6} R.C. 2743.16(A) provides that, "civil actions against the state * * * shall be commenced no later than two years after the date of accrual of the cause of action." Normally, a cause of action accrues at the time the wrongful act giving rise to the suit is committed. Marok v. Ohio State Univ., 10th Dist. No. 13AP-12, 2014 Ohio 1184, ¶ 25. Though Ohio does recognize a discovery rule in certain circumstances, the Ohio Supreme Court has not extended it to general negligence actions. Id.; Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 180 (1989).
{¶7} Here, it is undisputed that defendant's internal records retention policy required defendant to retain the video of plaintiff's medical treatment for 14 days, after which time it was recorded-over by other video due to server space limitations. Thus, any cause of action accrued, at the latest, on May 16, 2016, the date upon which the video was erased per defendant's retention policy.
{¶8} Plaintiff provides no legal basis for the discovery rule's application to his claims in this case. However, even if the discovery rule applied, it provides that a cause of action accrues when "the plaintiff discovers, or in the exercise of reasonable care should have discovered" that he was injured by the alleged wrongful conduct. Marok at ¶ 25. Thus, "constructive knowledge of facts, rather than actual knowledge of their legal significance, is enough to start the statute of limitations running under the discovery rule." Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009 Ohio 2523, ¶ 30. Here, by plaintiff's own admission, he did not request to view the video until December 1, 2017, almost 19 months after the May 2, 2016 use of force. Again, defendant has a 14-day retention policy for video. Given the mandate of defendant's policy, the court finds that plaintiff had constructive knowledge of defendant's failure to retain the video and/or that, with the exercise of reasonable care, he should have discovered that the video was not retained by May 16, 2016.
{¶9} There is no genuine issue of material fact regarding the date of the use of force, defendant's failure to retain the video footage per its record retention policy, the date plaintiff first requested the video, or the date of plaintiff's filing of this action. Though the court finds the discovery rule does not apply to plaintiff's claims, the court also finds that it would not save plaintiff's claims if it were applicable. As plaintiff did not file the present case until March 14, 2019, the court finds that R.C. 2743.16(A)'s two-year statute of limitations bars plaintiff's claims. Finally, to the extent plaintiff challenges defendant's video retention policy, the court finds defendant is entitled to discretionary immunity. Hughes v. Ohio Dep't of Rehab. & Corr., 10th Dist. No. 09AP-1052, 2010-Ohio-4736, ¶ 16.
{¶10} Based on plaintiff's failure to file his claims within the statute of limitation and the application of discretionary immunity, the court finds defendant is entitled to judgment as a matter of law. Defendant's motion for summary judgment is GRANTED and plaintiff's claims are hereby DISMISSED with prejudice. All other pending motions are DENIED as moot. All previously scheduled 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.
/s/_________
PATRICK M. MCGRATH
Judge Filed February 20, 2020
Sent to S.C. Reporter 6/3/20