[Cite as Watson v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-5908.]

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

BERNARD WATSON 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2009-08080 

Judge Joseph T. Clark 

Magistrate Matthew C. Rambo 

MAGISTRATE DECISION

{¶ 1} 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. 

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

defendant at the Allen Correctional Institution (ACI) pursuant to R.C. 5120.16. Plaintiff 

alleges that on December 18, 2008, at approximately 2:30 p.m., inmate Tam Ally 

assaulted him. The testimony and evidence adduced at trial shows that Ally acted 

erratically prior to attacking plaintiff and that corrections officers (COs) were aware of 

his behavior. Plaintiff alleges such knowledge constituted notice of an impending 

assault and that defendant failed to act on such notice and prevent the assault. 

{¶ 3} 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. 2009-08080 - 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. 

{¶ 4} 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. 

{¶ 5} Former inmate Eric Charles Murray was incarcerated at ACI in the 4B 

housing unit at the time of the incident and shared a cell with Ally on the second floor of 

the unit. The transcript of Murray’s deposition was introduced in lieu of his live 

testimony. (Plaintiff’s Exhibit 12.) That testimony, coupled with that of CO Jon 

Alexander establishes the events of December 17 and 18, 2008, as set out below. 

{¶ 6} The night before the incident, Ally did not sleep. He instead spent the 

night pacing the floor in the cell between the door and window, and “shadow boxing” the 

mirror and his coat. Murray stated that Ally would not speak to him and that he acted as 

if he were waiting for something or someone. 

{¶ 7} The next morning at 5:30 a.m. when the door to the cell was opened so 

that Murray could go to work in the ACI kitchen, Ally sprinted out of the cell, down the 

stairs, and outside the unit. Murray went to work and returned some time between 8:00 

a.m. and 8:30 a.m. to find Ally repeating his actions of the night before; that is, shadow 

boxing and pacing about the cell. Murray reported Ally’s behavior to Alexander who 
Case No. 2009-08080 - 3 - MAGISTRATE DECISION

went to the cell, observed Ally’s behavior, found it “strange,” and called the shift captain 

and the “psych” department. At approximately 11:00 a.m., during “count” 

time, Ally used his and Murray’s locker box and other items to barricade the cell door 

and stood in the middle of the cell in a “defensive” position. After count was over, 

Alexander ordered Ally to report to the shift captain’s office. Ally returned from the 

captain’s office a short time later and removed the barricade. However, Ally’s behavior 

remained erratic. At approximately 1:30 p.m., Alexander was directed by mental health 

treatment staff to send Ally to them; however, Ally refused to communicate with 

Alexander and remained standing atop a locker box in his cell in a defensive posture. 

Shortly thereafter, a second CO ordered Ally to report to the mental health department. 

Ally seemed to comply with the order and left the building for a short time, but he did not 

report to the mental health department. At approximately 2:15 p.m., Ally returned to the 

unit, at which time he approached a cell where a group of inmates, including plaintiff, 

were conversing. Ally grabbed the door of the cell and swung it shut, striking plaintiff. 

Plaintiff wrestled Ally to the ground and restrained him until COs and other staff 

responded to the scene. 

{¶ 8} John Alberts was the shift captain on duty at the time of the incident. 

Alberts stated that prior to attacking plaintiff, Ally was sent to his office by a CO for 

“acting peculiar.” Alberts testified that he does not specifically remember talking to Ally, 

but that the normal procedure in such instances is to ask the inmate if he intended to do 

harm to himself, other inmates, or to staff. If the answer is “no,” then the inmate is 

referred to the “psych” department for assessment, when possible, and sent back to his 

housing unit. Alberts stated that he did not remember any particular problems with Ally. 

{¶ 9} James LaPoint is the current Clinical Director of Mental Health 

Administration for ACI. LaPoint testified that he is the custodian of Ally’s mental health 

records and that he reviewed those records in preparing for trial. (Plaintiff’s Exhibit 6.) 

According to LaPoint, Ally was evaluated by mental health professionals on December 

18, 2008 but, prior to that, his last referral to the mental health department had been in 
Case No. 2009-08080 - 4 - MAGISTRATE DECISION

1993, although there was a note in his records from a 2005 parole hearing. LaPoint 

opined that, based upon his position as the Clinical Director of Mental Health 

Administration for ACI, the behavior exhibited by Ally prior to the incident with plaintiff 

did not require “immediate intervention” by mental health staff, and that Ally’s actions 

were not necessarily uncommon for inmates at ACI. 

{¶ 10} Plaintiff, Murray, Alexander, CO David Burkholder, and inmates Darryl 

Gray, Mario Odom, and Ralph Bringht all testified that prior to the events of December 

17, and 18, 2008, they were not aware of any unusual or violent behavior by Ally. 

{¶ 11} Recently, in a similar case, the Tenth District Court of Appeals stated that 

defendant’s knowledge that an inmate “was not taking his medication, mumbled to 

himself, and was acting erratically, does not translate into actual or constructive notice 

that [he] posed a risk of violence or that his attack on [a fellow inmate] was 

forthcoming.” Hughes v. Ohio Dept. of Rehab. & Corr., Franklin App. No. 09AP-1053, 

2010-Ohio-4736, ¶15. The court further noted that there was no evidence that 

defendant was aware of any threats of violence by the assailant against any other 

inmate, including the victim. Id. 

{¶ 12} Based upon the above testimony, the court finds that defendant did not 

have either actual or constructive notice of an impending attack by Ally on plaintiff. The 

testimony demonstrates that while Ally’s behavior may have been erratic before the 

attack, he was not violent or dangerous and did not demonstrate a threat to himself or 

fellow inmates. Accordingly, judgment is recommended in favor of defendant. 

 A party may file written objections to the magistrate’s decision within 14 days of 

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 
Case No. 2009-08080 - 5 - MAGISTRATE DECISION

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). 

 _____________________________________ 

 MATTHEW C. RAMBO 

 Magistrate 

cc: 

 

Eric A. Walker 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Richard F. Swope 

6480 East Main Street, Suite 102 

Reynoldsburg, Ohio 43068 

MR/cmd

Filed November 10, 2010 

To S.C. reporter December 1, 2010