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Baker v. Ohio Department of Rehabilitation and Correction8/1/2001
with this opinion.
AFFIRMED IN PART AND REVERSED IN PART.
Harsha, J., Concurring in part and Dissenting in part:
I concur in judgment and opinion in Parts II and III of the opinion's analysis. However, I dissent from Part I(A) because my reading of the complaint reveals that appellant has alleged facts that may state a cause of medical malpractice, but do not, as a matter of law, rise to the level of cruel and unusual punishment. In essence, appellant claims that Dr. Oppong's medical diagnosis and treatment has breached the duty to afford plaintiff reasonable medical care. Notwithstanding appellant's conclusion that Dr. Oppong's course of treatment amounts to cruel and unusual punishment, the Eighth Amendment does not constitutionalize claims that, although properly sounding in state tort law, do not rise to the level of deliberate indifference. See Warren v. Fanning (CA8 1991), 950 Fed 1370, Snipes v. Detalla (CA7 1996), 95 Fed 586 and Layne v. Vinzant (CA1 1991), 657 Fed 468.
Furthermore, I concur in judgment only in Parts I(B) and (C) of the opinion's analysis. Thus, I would allow the appellant to proceed solely on his claim of retaliation against Dr. Oppong for allegedly canceling orders for orthopedic devices because appellant complained about the adequacy of his treatment.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART AND REVERSED IN PART and the cause remanded to the trial court for further proceedings consistent with this opinion, costs herein taxed equally between the parties.
The Court finds that there were reasonable grounds for this appeal.
It is further ordered that a special mandate issue out of this Court directing the PICKAWAY COUNTY COURT OF COMMON PLEAS to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this Entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, P.J.: Concurs in Judgment and Opinion as to Assignments of Error II and III; Concurs in Judgment Only as to Assignment of Error I.
Harsha, J.: Concurs in Part and Dissents in Part with Opinion.
David T. Evans, Judge
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