[Cite as Felton v. London Correctional Inst., 2011-Ohio-2621.]

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

ARTHUR FELTON 

 Plaintiff 

 v. 

LONDON CORRECTIONAL INSTITUTION 

 Defendant 

Case No. 2008-06211 

Judge Clark B. Weaver Sr. 

Magistrate Holly True Shaver 

MAGISTRATE DECISION

{¶ 1} Pursuant to Civ.R. 53, Magistrate Holly True Shaver was appointed to 

conduct all proceedings necessary for decision in this matter. 

{¶ 2} Plaintiff brought this action alleging negligence. The issues of liability and 

damages were bifurcated and the case proceeded to trial on the issue of liability. 

{¶ 3} At all times relevant, plaintiff was an inmate in the custody and control of 

defendant pursuant to R.C. 5120.16. Plaintiff alleges that on December 11, 2007, his 

bunkmate, Ron Miller, assaulted him. Plaintiff claims that defendant was negligent in 

failing to prevent the assault inasmuch as he had previously notified defendant’s 

employees that Miller had threatened to cause him “bodily harm.” 

{¶ 4} 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 defendant’s 

acts or omissions resulted in a breach of that duty, and that the breach proximately 

caused his injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-Ohio2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. Ohio 
Case No. 2008-06211 - 2 - MAGISTRATE DECISION

law imposes upon the state a duty of reasonable care and protection of its prisoners; 

however, the state is not an insurer of inmate safety. Williams v. Southern Ohio 

Correctional Facility (1990), 67 Ohio App.3d 517, 526. 

{¶ 5} Defendant is not liable for the intentional attack on one inmate by another 

unless it has adequate notice, either actual or constructive, of an impending assault. 

Mitchell v. Ohio Dept. of Rehab. & Corr. (1995), 107 Ohio App.3d 231, 235; Metcalf v. 

Ohio Dept. of Rehab. & Corr., Franklin App. No. 01AP-292, 2002-Ohio-5082. The 

distinction between actual and constructive notice is in the manner in which notice is 

obtained rather than in the amount of information obtained. Whenever the trier of fact is 

entitled to find from competent evidence that information was personally communicated 

to or received by the party, the notice is actual. Constructive notice is that notice which 

the law regards as sufficient to give notice and is regarded as a substitute for actual 

notice. In re Estate of Fahle (1950), 90 Ohio App. 195, 197. 

{¶ 6} Plaintiff testified that on December 4, 2007, he advised his Unit Sergeant 

(Sgt.), Ron Kelly, of his desire to be assigned to another cell because of problems that 

he was having with his bunkmate. Plaintiff further testified that, in response, Sgt. Kelly 

told him that he would inform his supervisor, Unit Manager Craig Cann, of plaintiff’s 

request. Plaintiff asserts that he spoke to Sgt. Kelly again on December 6, 2007, and at 

that time, Sgt. Kelly told him that he had informed Cann about the problem and that 

Cann was going to request that both plaintiff and Miller go to his office for counseling. 

On December 11, 2007, Miller assaulted plaintiff. According to plaintiff, he specifically 

told Sgt. Kelly prior to the assault that Miller had threatened him with physical harm. 

{¶ 7} Sgt. Kelly testified that he had been employed as a corrections officer for 

more than 20 years; that he had no independent authority to make bunk changes on his 

own; and that his usual procedure was to notify Unit Manager Cann when an inmate 

requested a bunk change. Sgt. Kelly recalled that plaintiff informed him that he and his 

bunkmate were having problems, but denied that plaintiff advised him that Miller had 
Case No. 2008-06211 - 3 - MAGISTRATE DECISION

threatened him with physical harm. Sgt. Kelly added that if plaintiff had told him that he 

felt threatened, Sgt. Kelly did have the authority to place plaintiff in isolation for his own 

safety. 

{¶ 8} Unit Manager Cann testified that his duties included overseeing the 

housing units and supervising both inmates and staff. Cann testified that he does not 

reassign every inmate who complains about a bunkmate. However, if an inmate 

complains that his bunkmate has threatened his safety, Cann’s normal practice would 

be to place the complaining inmate in isolation until a committee could meet to resolve 

the issue. Cann further stated that neither plaintiff nor Sgt. Kelly ever told him that Miller 

had threatened bodily harm. 

{¶ 9} Dr. Joan LeClair testified via deposition that she was licensed to practice 

psychology in the state of Ohio and that she was employed as the psychology 

supervisor for defendant during plaintiff’s incarceration. Dr. LeClair testified that plaintiff 

had been one of her patients throughout his incarceration, and that at one point in time, 

plaintiff had complained to her that he feared for his safety. However, after a review of 

plaintiff’s mental health records, Dr. LeClair discovered that the first time that he had 

complained to her about Miller was on January 16, 2008, which was after the December 

11, 2007 assault. 

{¶ 10} Based upon the testimony and evidence presented at trial, the court finds 

that defendant did not have either actual or constructive notice of an impending attack 

by Miller on plaintiff. The greater weight of the evidence demonstrates that although 

plaintiff did notify defendant’s employees that he desired a different bunkmate, he did 

not notify them that he felt threatened or that he was in fear of his physical safety prior 

to the assault. 

{¶ 11} For the foregoing reasons, the court finds that plaintiff has failed to prove 

his claim of negligence by a preponderance of the evidence and, accordingly, judgment 

is recommended in favor of defendant. 

 A party may file written objections to the magistrate’s decision within 14 days of 
Case No. 2008-06211 - 4 - MAGISTRATE DECISION

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). 

 _____________________________________ 

 HOLLY TRUE SHAVER 

 Magistrate 

cc: 

 

Stephanie D. Pestello-Sharf 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Arthur Felton 

123 South Huron Drive 

Oxon Hill, Maryland 20745 

HTS/cmd

Filed May 11, 2011 

To S.C. reporter May 26, 2011