[Cite as Morrison v. Ohio Dept. of Rehab. & Corr., 2017-Ohio-2696.]

{¶1} Plaintiff, an inmate in the custody and control of defendant, the Ohio 

Department of Rehabilitation and Correction (ODRC), brings this action claiming that 

defendant was negligent in failing to prevent an attack upon him by another inmate, 

James Hunt, on August 5, 2013. Plaintiff also claims that Corrections Officer (CO) 

Connie Carpenter engaged in a civil conspiracy with Hunt to injure plaintiff. Plaintiff 

requests that the court determine CO Carpenter’s civil immunity. The issues of liability 

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

The court also tried the issue of CO Carpenter’s civil immunity. 

{¶2} Plaintiff testified that in 2012, he was convicted of attempted pandering. As 

a result of that conviction, plaintiff was required to register as a sex offender. Plaintiff 

stated that he was subsequently placed in defendant’s custody at the Richland 

Correctional Institution (RiCI) in the 4 lower housing unit. Plaintiff testified that after 

arriving at RiCI, two inmates, who were also brothers, questioned plaintiff about his 

criminal charges that led to his incarceration. According to plaintiff, the two inmates 

personally know CO Hinberger who was assigned to work the third shift. As a result, 

plaintiff wrote an informal complaint regarding the incident. Plaintiff stated that he later 

learned that CO Hinberger was disciplined as a result of the informal complaint. Plaintiff 

JAMES F. MORRISON 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF 

REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2015-00653 

Magistrate Gary Peterson 

DECISION OF THE MAGISTRATE 
Case No. 2015-00653 -2- DECISION 

asserted that he subsequently learned that at that time CO Hinberger and 

CO Carpenter were engaged in an intimate relationship. 

{¶3} Plaintiff testified that he was subsequently reassigned to the 5 lower housing 

unit where CO Carpenter worked as a relief officer on Sunday and Monday nights. 

Plaintiff reported that third shift inmate porters spent an inordinate amount of time 

socializing with third shift COs, including CO Carpenter. According to plaintiff, CO 

Carpenter frequently made derogatory comments about him, verbally harassed him, 

and referenced legal arguments that were made during his criminal appeal. Plaintiff 

described one such instance of harassment that occurred on July 29, 2013, where 

CO Carpenter awoke him by stating: “You fat mother fucker! Get up! Take your lazy ass 

to work!” Plaintiff stated that CO Carpenter also called him a “one clicker” and made the 

sound of a clicking noise, which he believed to be a reference to arguments made 

during the appeal of his criminal conviction. 

{¶4} Plaintiff testified that after returning from his work assignment on July 29, 

2013, he wrote an informal compliant detailing the manner in which CO Carpenter woke 

him earlier in the morning. Plaintiff reports that on August 2, 2013, Lieutenant Drew 

Crago addressed the informal complaint in writing by noting that CO Carpenter denies 

all wrongdoing but was nevertheless advised to be professional in her duties. 

{¶5} Plaintiff testified that on August 5, 2013, at approximately 4:15 p.m., inmate 

Hunt physically struck him with a lock. Plaintiff stated that it was obviously an act of 

retaliation for writing an informal complaint regarding CO Carpenter’s actions. Plaintiff 

explained that he believed CO Carpenter to be involved because of her actions, her 

verbal attacks, and her interest in his criminal conviction. Following the attack, plaintiff 

learned that two inmates, one of whom was Hunt, were placed in segregation for the 

attack and that the Ohio State Highway Patrol (OSHP) initiated an investigation of the 

attack. Finally, plaintiff testified that an incident report regarding the attack was not 

completed and that no suspects were listed in the notification to the OSHP. 
Case No. 2015-00653 -3- DECISION 

{¶6} Trooper Bryan Butler testified that he began working for OSHP in 1997 and 

that he currently works as a detective in what is considered the central office. Trooper 

Butler stated that he was previously assigned to conduct investigations at RiCI for 

approximately a three-year period. Trooper Butler recalled that during that time period, 

he was assigned to conduct an investigation wherein plaintiff was the victim of a 

physical attack by another inmate. According to Trooper Butler, staff at RiCI reported to 

him that plaintiff, while he was using the restroom, was attacked by an unknown inmate 

who had used a lock and a sock to strike him. Trooper Butler stated that as a result, he 

commenced an investigation of the attack. 

{¶7} Trooper Butler testified that during the course of investigating the attack on 

plaintiff, he began investigating whether the crime of complicity was also committed. 

Trooper Butler stated that CO Carpenter was the primary suspect of the investigation 

concerning complicity; however, Trooper Butler added that he began the investigation 

concerning complicity due to plaintiff’s representations that CO Carpenter directed or 

conspired with Hunt to carry out the attack. Trooper Butler added that due to the 

allegations made by plaintiff, he was obligated to expand the investigation’s scope to 

include an investigation into an alleged crime of complicity. 

{¶8} Trooper Butler testified that on February 21, 2014, he interviewed CO 

Carpenter. Trooper Butler reported that CO Carpenter stated that she heard that Hunt 

and other inmates discussed plaintiff’s crime and stated that he needed to have his ass 

beat. Trooper Butler added that he did not know whether CO Carpenter knew that 

information before or after Hunt attacked plaintiff. Trooper Butler testified that he did not 

find any corroborating evidence to substantiate plaintiff’s allegation that CO Carpenter 

directed or conspired with Hunt to attack plaintiff. Trooper Butler stated that he 

completed his report and submitted it to the county prosecutor’s office, which he said is 

standard practice. 
Case No. 2015-00653 -4- DECISION 

{¶9} CO Carpenter testified that she began working as a CO for ODRC in 2009 

and began at RiCI on January 1, 2012. CO Carpenter reported that in 2013, she was 

assigned to work the third shift, from 10 p.m. to 6 a.m. CO Carpenter stated that she 

worked as a relief officer in the dormitory housing units and worked in 5 lower housing 

unit on Sundays. CO Carpenter explained that inmate porters perform their cleaning 

duties during the third shift and that Hunt was assigned to work as a dorm porter during 

July and August 2013. CO Carpenter acknowledged that both she and Hunt are from 

the same residential area and that she knows of Hunt’s family, although she denied 

personally knowing him or his family. CO Carpenter testified that she did not complete 

a nexus form, a form documenting personal relationships between an inmate and a CO, 

because she does not personally know Hunt. 

{¶10} CO Carpenter denied making derogatory comments to plaintiff, denied 

verbally harassing him, denied calling him lazy, and denied calling him a one clicker—

an apparent reference to his criminal case. CO Carpenter testified that she was 

unaware of plaintiff’s criminal charges prior to the attack and denied being disciplined as 

a result of any complaint written by plaintiff. Regarding the report that she heard that 

inmates were discussing plaintiff’s criminal case, CO Carpenter testified that she 

learned after the attack occurred that inmates were discussing plaintiff’s case and 

reported that to Trooper Butler. CO Carpenter denied ever personally overhearing 

inmates discuss plaintiff’s criminal charges or discuss attacking him. CO Carpenter 

added that if she had overheard such a conversation, she would have reported it to the 

shift captain. 

{¶11} “To recover on a negligence claim, a plaintiff must prove by a 

preponderance of the evidence (1) that a defendant owed the plaintiff a duty, (2) that a 

defendant breached that duty, and (3) that the breach of the duty proximately caused a 

plaintiff’s injury.” Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 05AP357, 2006-Ohio-2531, ¶ 10. “In the context of a custodial relationship between the state 
Case No. 2015-00653 -5- DECISION 

and its prisoners, the state owes a common-law duty of reasonable care and protection 

from unreasonable risks.” Jenkins v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin 

No. 12AP-787, 2013-Ohio-5106, ¶ 8. “Although the state is not an insurer of the safety 

of inmates, once it becomes aware of a dangerous condition it must take reasonable 

care to prevent injury to the inmate.” Briscoe v. Ohio Dept. of Rehab. & Corr., 10th Dist. 

Franklin No. 02AP-1109, 2003-Ohio-3533, ¶ 20. “Reasonable care is that degree of 

caution and foresight an ordinarily prudent person would employ in similar 

circumstances, and includes the duty to exercise reasonable care to prevent an inmate 

from being injured by a dangerous condition about which the state knows or should 

know.” McElfresh v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 04AP-177, 

2004-Ohio-5545, ¶ 16. 

{¶12} “Where one inmate attacks another inmate, actionable negligence arises 

only when there was adequate notice of an impending attack.” Lucero v. Ohio Dept. of 

Rehab. & Corr., 10th Dist. Franklin No. 11AP-288, 2011-Ohio-6388, ¶ 18; see also

Literal v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 16AP-242, 2016-Ohio-8536. 

“Notice may be actual or constructive, the distinction being the manner in which the 

notice is obtained rather than the amount of information obtained.” Watson v. Ohio 

Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-606, 2012-Ohio-1017, ¶ 9. 

“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.” Hughes v. Ohio Dept. of Rehab. & Corr., 

10th Dist. Franklin No. 09AP-1052, 2010-Ohio-4736, ¶ 14. 

{¶13} Upon review of the evidence, the magistrate finds that on August 5, 2013, 

plaintiff was using the restroom when Hunt struck plaintiff with a lock and a sock. 

Plaintiff did not testify, or present any evidence, that he anticipated the attack by Hunt. 
Case No. 2015-00653 -6- DECISION 

{¶14} The magistrate further finds that plaintiff failed to prove by a preponderance 

of the evidence that defendant had actual notice that Hunt would attack plaintiff. 

Plaintiff points to a statement in Trooper Butler’s report to demonstrate that CO 

Carpenter directed or conspired with Hunt to carry out the attack. The statement was 

that CO Carpenter heard that inmates, including Hunt, discussed plaintiff’s criminal 

conviction and indicated that he needed his ass beat. However, the statement does not 

establish that CO Carpenter was aware, prior to the attack, that Hunt or others plotted to 

attack plaintiff. Furthermore, CO Carpenter testified that she did not personally hear 

inmates discussing plaintiff’s criminal case and that she only learned through rumors 

that inmates discussed plaintiff’s criminal case. Moreover, CO Carpenter testified that 

she learned of the rumors after Hunt attacked plaintiff. 

{¶15} While there is some evidence that CO Carpenter and Hunt may have been 

familiar with each other, such familiarity does not establish that CO Carpenter directed 

or conspired with Hunt to attack plaintiff. CO Carpenter testified that she did not 

complete a nexus report regarding Hunt because she did not personally know Hunt. 

That they both previously lived in the same residential area does not contradict 

CO Carpenter’s statement, nor does it establish that CO Carpenter plotted with Hunt to 

harm plaintiff. Even assuming that CO Carpenter made derogatory comments toward 

plaintiff, verbally harassed plaintiff, or otherwise acted in an unprofessional manner as a 

CO, plaintiff failed to persuade the magistrate that CO Carpenter was involved in Hunt’s 

attack on plaintiff. Accordingly, plaintiff failed to prove that defendant or CO Carpenter 

had actual notice of Hunt’s attack on plaintiff. 

{¶16} Plaintiff did not argue that defendant had constructive notice of an 

impending attack; rather, as noted above, plaintiff argued that CO Carpenter directed or 

conspired with Hunt to attack plaintiff. Nevertheless, the magistrate finds that plaintiff 

failed to prove by a preponderance of the evidence that defendant had constructive 

notice of an impending attack. There is no evidence that Hunt exhibited violent 
Case No. 2015-00653 -7- DECISION 

tendencies or assaultive behavior toward plaintiff or any other inmate. Literal at ¶ 17. 

There is no evidence that Hunt threatened or acted violently toward plaintiff or any other 

inmate. Id; see also Frash v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 

14AP-932, 2016-Ohio-360. In short, plaintiff failed to prove that defendant had 

constructive notice of an impending attack. 

{¶17} To establish a civil conspiracy claim, plaintiff must establish “‘a malicious 

combination of two or more persons to injure another in person or property, in a way not 

competent for one alone, resulting in actual damages.’” Morrow v. Reminger & 

Reminger Co. LPA, 183 Ohio App.3d 40, 2009-Ohio-2665, ¶ 40 (10th Dist.), quoting 

Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 419. “An underlying 

unlawful act is required before a civil conspiracy claim can succeed.” Williams v. Aetna 

Fin. Co., 83 Ohio St.3d 464, 475 (1998). Having previously concluded that plaintiff 

failed to prove his claim for negligence by a preponderance of the evidence, the 

magistrate likewise concludes, for the reasons set forth above, that plaintiff failed to 

prove by a preponderance of the evidence that CO Carpenter conspired with Hunt to 

injure plaintiff. 

{¶18} Turning to the issue of CO Carpenter’s immunity, R.C. 2743.02(F) states, 

in part: 

{¶19} “A civil action against an officer or employee, as defined in section 109.36 

of the Revised Code, that alleges that the officer’s or employee’s conduct was 

manifestly outside the scope of the officer’s or employee’s employment or official 

responsibilities, or that the officer or employee acted with malicious purpose, in bad 

faith, or in a wanton or reckless manner shall first be filed against the state in the court 

of claims that has exclusive, original jurisdiction to determine, initially, whether the 

officer or employee is entitled to personal immunity under section 9.86 of the Revised 

Code and whether the courts of common pleas have jurisdiction over the civil action.” 

{¶20} R.C. 9.86 states, in part: 
Case No. 2015-00653 -8- DECISION 

{¶21} “[N]o officer or employee [of the state] shall be liable in any civil action that 

arises under the law of this state for damage or injury caused in the performance of his 

duties, unless the officer’s or employee’s actions were manifestly outside the scope of 

his employment or official responsibilities, or unless the officer or employee acted with 

malicious purpose, in bad faith, or in a wanton or reckless manner.” 

{¶22} “In accordance with R.C. 2743.02(F), the Court of Claims ‘has exclusive 

jurisdiction to determine whether a state employee is immune from liability under 

R.C. 9.86.’” Nix v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13AP-547, 

2014-Ohio-2902, ¶ 22, quoting Johns v. Univ. of Cincinnati Med. Assocs., 101 Ohio 

St.3d 234, 2004-Ohio-824, syllabus. 

{¶23} As stated previously, plaintiff failed to prove by a preponderance of the 

evidence that CO Carpenter conspired with Hunt to attack plaintiff. As a result, plaintiff 

failed to prove that CO Carpenter acted with a malicious purpose, in bad faith, or in a 

wanton or reckless manner. See Zidron v. Metts, 10th Dist. Franklin No. 15AP-1049, 

2017-Ohio-1118, ¶ 43, (holding that the burden of proof rests with the party seeking to 

disprove immunity). Accordingly, the magistrate finds that at all times relevant, 

Connie Carpenter acted within the scope of her employment with ODRC. 

{¶24} Based upon the foregoing, the magistrate finds that plaintiff failed to prove 

his claims by a preponderance of the evidence. Accordingly, judgment is recommended 

in favor of defendant. Additionally, it is recommended that the court issue a 

determination that Connie Carpenter is entitled to civil immunity pursuant to R.C. 9.86 

and 2743.02(F) and that the courts of common pleas do not have jurisdiction over any 

civil actions that may be filed against her based upon the allegations of this case. 

{¶25} 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 
Case No. 2015-00653 -9- DECISION 

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).

 GARY PETERSON 

 Magistrate 

cc: 

James F. Morrison, #A667-172 

1001 Olivesburg Road 

Mansfield, Ohio 44905 

Lee Ann Rabe 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Filed March 29, 2017 

Sent to S.C. Reporter 5/5/17