[Cite as Lucero v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-1410.]

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

ARTURO LUCERO 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al. 

 Defendants 

Case No. 2008-08019 

Judge Clark B. Weaver Sr. 

Magistrate Matthew C. Rambo 

JUDGMENT ENTRY

{¶ 1} Plaintiff brought this action alleging negligence. A trial was held on the 

issue of liability, and on November 10, 2010, the magistrate issued a decision 

recommending judgment for defendants. 

{¶ 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).” On January 4, 2011, with leave of the court, plaintiff filed his objections. 

A transcript of proceedings was filed on December 23, 2010, pursuant to 

Civ.R.53(D)(3)(b)(iii). On January 7, 2011, defendants filed a response. 

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

defendants pursuant to R.C. 5120.16. Plaintiff alleges that on August 17, 2007, he sent 

a “kite” to Unit Sergeant Christman wherein he requested that he be moved to another 

housing unit because he and inmate Caldwell “almost got into a fight.” On August 29, 

2007, Caldwell approached plaintiff and asked if he wanted to trade some beans for 
Case No. 2008-08019 - 2 - JUDGMENT ENTRY

some rice. Plaintiff declined the offer and asked Caldwell to leave, at which time 

Caldwell punched plaintiff in the face. Plaintiff responded by pushing Caldwell, who 

then left the area. Caldwell returned several minutes later and cut plaintiff’s face and 

back with a sharpened lid from an aluminum can. Plaintiff swung an empty five-gallon 

bucket at Caldwell, who turned and ran away. 

{¶ 4} The magistrate determined that plaintiff failed to establish that defendants 

had either actual or constructive notice that Caldwell was going to attack plaintiff 

inasmuch as the “kite” produced by plaintiff did not appear genuine. 

{¶ 5} In his first objection, plaintiff asserts that the magistrate erred in “allowing 

[plaintiff’s expert] to be questioned whether the signature could be a forgery and then 

cutting off his response.” (Emphasis in original.) The court disagrees. A party, upon 

cross-examination of an opposing party’s expert, may challenge the expert’s opinion by 

inquiring about other possible conclusions that may be drawn from the same evidence. 

See Smith v. Mitchell (1988), 35 Ohio St.3d 237, 239; Giles v. Yellow Cab Co. (1964), 1 

Ohio App.2d 404, 407-8. Moreover, the magistrate did not base his finding solely upon 

Christman’s testimony that the signature on the kite was not his. Indeed, the magistrate 

heard testimony regarding defendants’ kite-processing requirements and found that 

plaintiff’s kite did not contain any indicia that it had been processed. Plaintiff’s first 

objection shall be overruled. 

{¶ 6} In his second and fourth objections, plaintiff argues that the magistrate 

erred in accepting Christman’s testimony that he did not receive the kite, despite the 

testimony of plaintiff’s expert that Christman’s signature on the kite was authentic. 

However, it is well-settled that the magistrate, as a trier of fact, is in the best position to 

weigh both the testimony and the credibility of witnesses. Seasons Coal Co. v. 

Cleveland (1984), 10 Ohio St.3d 77, 80. Upon review of the transcripts and other 

documentary evidence presented at trial, the court finds that the magistrate properly 

weighed the evidence in determining that plaintiff failed to establish either actual or 
Case No. 2008-08019 - 3 - JUDGMENT ENTRY

constructive notice of an impending attack upon plaintiff by Caldwell. Plaintiff’s second 

and fourth objections shall be overruled. 

{¶ 7} In his third objection, plaintiff argues that the magistrate erred by ignoring 

plaintiff’s claim that defendants failed to provide adequate supervision of the inmates in 

housing unit F-2, second floor. Plaintiff argues that had defendants’ corrections officers 

(COs) observed the initial altercation between plaintiff and Caldwell, the two inmates 

would have been placed in segregation and the second, more serious assault would not 

have taken place. 

{¶ 8} The magistrate found that defendants’ COs were on their scheduled 

rounds when the first incident took place but that they did not see the initial altercation 

between plaintiff and Caldwell. The magistrate also found that F-2 housed some 280 

inmates on two floors in a dormitory-style setting. 

{¶ 9} To the extent that plaintiff challenges staffing and employment decisions 

made by defendants in supervising inmates within plaintiff’s housing unit, this court has 

consistently held that defendants are immune from liability in negligence for such 

decisions. Reynolds v. State (1984), 14 Ohio St.3d 68; Wozniak v Ohio Dept. of Rehab. 

and Corr., Ct. of Cl. No. 2009-04505, 2010-Ohio-2648. Indeed, given the large number 

of inmates assigned to F-2 and the size and configuration of the unit, it stands to reason 

that even the most vigilant CO could miss a brief altercation between two inmates living 

in the same general area. Thus, while the magistrate did not expressly find that 

defendants’ COs exercised due care in making their rounds on the date and time in 

question, the obvious conclusion to be drawn from his factual findings and the totality of 

the evidence presented is that defendants met the standard of care. It is simply 

unreasonable to expect that the defendants would maintain uninterrupted surveillance 

of every inmate at all times. Plaintiff’s third objection shall be overruled. 

{¶ 10} In his fifth objection, plaintiff asserts that the magistrate’s decision is 

contrary to law and is against the manifest weight of the evidence. The court disagrees. 

In accordance with Civ.R. 53, the trial court must conduct a de novo review of the facts 
Case No. 2008-08019 - 4 - JUDGMENT ENTRY

and conclusions contained in the magistrate’s report and enter its own judgment. See 

Shihab & Assoc. Co., L.P.A. v. Ohio Dept. of Transp., 168 Ohio App.3d 405, 2006-Ohio4456; Dayton v. Whiting (1996), 110 Ohio App.3d 115, 118. Upon review of the trial 

transcript and other documentary evidence presented at trial, the court agrees with the 

magistrate’s conclusion that Christman did not sign the kite. As the magistrate 

determined, the document does not contain any indicia that it had been processed 

pursuant to defendants’ established procedure. Thus, defendants did not have either 

constructive or actual notice that Caldwell would attack plaintiff. In short, the magistrate 

correctly applied the law and properly weighed the evidence. Plaintiff’s fifth objection 

shall be overruled. 

{¶ 11} Upon review of the record, the magistrate’s decision, the objections, trial 

transcript, and other documentary evidence, 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 the findings of fact and conclusions of law 

contained therein. Judgment is rendered in favor of defendants. 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. 

 _____________________________________ 

 CLARK B. WEAVER SR. 

 Judge 

cc: 

 
Case No. 2008-08019 - 5 - JUDGMENT ENTRY

Eric A. Walker 

Paula Luna Paoletti 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Richard F. Swope 

6480 East Main Street, Suite 102 

Reynoldsburg, Ohio 43068 

GWP/cmd

Filed March 1, 2011 

To S.C. reporter March 22, 2011