[Cite as Kelly v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-7046.]

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

MICHAEL KELLY 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2009-06338 

Judge Joseph T. Clark 

Magistrate Matthew C. Rambo 

JUDGMENT ENTRY

{¶1} On October 7, 2011, the magistrate issued a decision recommending 

judgment for plaintiff in an amount to be determined in a subsequent proceeding. 

{¶2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a 

magistrate’s decision within fourteen days of the filing of the decision, whether or not the 

court has adopted the decision during that fourteen-day period as permitted by Civ.R. 

53(D)(4)(e)(i).” Defendant timely filed objections. 

{¶3} Plaintiff was injured in a fight with another inmate by the name of Carlos 

Castro. Plaintiff testified that he had fought with Castro once before and that when 

Castro later moved into the cell next to his, plaintiff told his unit sergeant about the prior 

fight and asked to be moved out of the block. According to plaintiff, Sergeant Lininger 

told plaintiff he “wasn’t going anywhere.” (Decision at p. 3.) One or two weeks later, 

Castro attacked plaintiff as he slept and stabbed him with a roofing nail. 

{¶4} Following a bench trial, the magistrate concluded: “[T]he court finds that the 

conversation between plaintiff and Sergeant Lininger shortly before the attack, coupled 

with the prior violent encounter between plaintiff and Castro, constitutes sufficient notice 
Case No. 2009-06338 - 2 - ENTRY

to defendant of an impending attack. The court further finds that defendant breached its 

duty of care to plaintiff inasmuch as no attempt was made to ensure plaintiff’s safety.” 

(Decision at p. 4.) 

{¶5} In defendant’s first objection, defendant contends that the magistrate erred 

in relying upon plaintiff’s testimony regarding the substance of his conversation with 

Lininger. Defendant contends that due to certain inaccuracies and inconsistencies in 

plaintiff’s testimony regarding other issues, the magistrate was required to disbelieve all 

of plaintiff’s testimony. The court disagrees. 

{¶6} The trier of fact may believe or disbelieve all or any part of a witness’s 

testimony and it is within the province of the trier of fact to determine what testimony is 

worthy of belief and what is not. See, e.g., State v. Group, 98 Ohio St.3d 248, 2002-

Ohio-7247, ¶120; Warren v. Simpson (Mar. 17, 2000), Trumbull App. No. 98-T-0183. 

{¶7} Upon review of plaintiff’s entire testimony, the court does not perceive any 

error on the part of the magistrate with respect to his assessment of plaintiff’s credibility 

as it pertains to his conversation with Lininger. Lininger was not called as a witness in 

this case. Accordingly, defendant’s objection is without merit. 

{¶8} Defendant next takes exception to the magistrate’s understanding of 

Kimberly Frederick’s testimony. Frederick is the institutional inspector who investigated 

plaintiff’s written complaint about the incident. The magistrate stated: “Frederick 

concluded that there was no separation order for plaintiff and Castro but that Lininger 

did not do an adequate job of informing plaintiff of his options if he was concerned about 

another inmate. She further stated that if plaintiff informed Lininger that he felt his life 

was in danger then he should have been placed in segregation or protective custody 

immediately pending an investigation, but that she does not believe that plaintiff so 

informed Lininger.” (Decision at p. 4.) (Emphasis added.) 

{¶9} Based upon the court’s review of the transcript, the magistrate did not 

misrepresent Frederick’s testimony. 
Case No. 2009-06338 - 3 - ENTRY

{¶10} The merit of defendant’s remaining objections depends upon a 

determination by this court that the magistrate erred with respect to plaintiff’s credibility. 

Accordingly, for the reason stated above, defendant’s remaining objections are without 

merit. 

{¶11} In conclusion, upon review of the record, the magistrate’s decision and the 

objections, the court finds that the magistrate has properly determined the factual issues 

and appropriately applied the law. Therefore, the objections are OVERRULED and the 

court adopts the magistrate’s decision and recommendation as its own, including 

findings of fact and conclusions of law contained therein. 

{¶12} Judgment is rendered for plaintiff in an amount to be determined at a 

proceeding on the issue of damages. 

 

 _____________________________________ 

 JOSEPH T. CLARK 

 Judge 

cc: 

 

Christopher P. Conomy 

James P. Dinsmore 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Rosel C. Hurley III 

12925 Shaker Boulevard 

Cleveland, Ohio 44120 

LP/dms

Filed December 19, 2011 

To S.C. reporter March 20, 2012