[Cite as Morris v. Dept. of Rehab. & Corr. , 2020-Ohio-612.]

{¶1} Plaintiff Kristoffer Morris has filed objections to a magistrat e’s decision recommending judgment in favor of Defendant Department of Rehab ilitation and Correction (DRC). Without leave of court, DRC has filed a memo randum in opposition.

I. Background {¶2} On March 20, 2018, Morris sued DRC, alleging that, on or about December 10, 2017, he was assaulted by an inmate (Inmate Torrez) who was housed in the general population at Toledo Correctional Institution and that DRC’s negligence that allowed Inmate Torrez to be in the presence of Morris (an inmat e in protective control) proximately resulted in personal injury to Morris. The case pr oceeded to trial before a magistrate. {¶3} On October 24, 2019, the magistrate issued a decision wherein h e recommended judgment in favor of DRC. On Morris’s motion, the court granted an extension for Morris to file objections to the magistrate’s dec ision. On December 20, 2019, Morris filed written objections to the magistrate’s decis ion with an affidavit of evidence. Morris presents seven objections: 1) “The Magistrate erred when he failed to rule the Plaintiff’s status as a protective control inmate constitutes notice of danger of assau lt by general population inmates;” KRISTOFFER MORRIS

Plaintiff

v.

DEPARTMENT OF REHABILITATION AND CORRECTION

Defendan t Case No. 2018-00492JD

Judge Patrick M. McGrath Magistrate Gary Peterson

DECISIONCase No. 2018-00492JD -2- DECISION

2) “The Magistrate erred in failing to find due to the conduct of the correctional officers in TPU, in failing to follow accepted security practic es based on administrative rules, policies, and general block orders, that the Defendant was negligent. Defendant’s Exhibit 3;” 3) “The Magistrate erred in finding Morris not to be credible;” 4) “The Magistrate erred when he failed to find that the Defend ant was negligent in failing to observe the obvious presence of a general populat ion inmate standing in an open gate to the Jpay kiosk room, which three of ficers failed to observe, giving Torrez clear access to the Plaintiff;” 5) “The Magistrate erred in attributing the assault to a disput e between Plaintiff and Inmate Torrez, when in fact there were no threats pending a nd the assault would not have occurred without the total disregard of the Defendant’s correctional officers in failing to enforce protective custody orders, as well as other rules of the institution;” 6) “The Magistrate’s findings in regard to the security video, Defendant’s Exhibit B, are not justified by an examination of the video; an d” 7) “The Magistrate’s decision is contrary to law and against th e weight of the

evidence.” {¶4} On ODRC’s motion, the court denied ODRC’s request for leave to file a memorandum in opposition to Morris’s objections. However, on J anuary 21, 2020,

without leave ODRC filed a “Memorandum Contra To Plaintiff’s Ob jections To The Decision Of The Magistrate.” That same day—January 21, 2020—OD RC filed a copy of a transcript of the trial, which DRC has represented is a tr anscript from the first day of

trial. 1 Because ODRC filed its memorandum in opposition without leave (and thereby contravened this court’s order), the court determines that ODRC ’s “Memorandum

1 (Notice of Filing of Trial Transcript filed on January 21, 2020 .) For the purpose of adjudicating Morris’s objections, besides considering Morris’s affidavit of evidence, the record, and admitted trial exhibits, the court has reviewed the transcript filed by DRC.Case No. 2018-00492JD -3- DECISION

Contra To Plaintiff’s Objections To The Decision Of The Magistr ate” of January 21, 2020, should be stricken.

II. Law and Analysis A. A trial court is required to conduct a de novo review of a m agistrate’s decision. {¶5} Civ.R. 53(D)(3)(b) governs objections to a magistrate’s decisio n. Civ.R. 53(D)(3)(b)(i) provides: “A party may file written objec tions to a magistrate’s decision within fourteen days of the filing of the decision, wh ether or not the court has adopted the decision during that fourteen-day period as permitt ed by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, an y other party may also file objections not later than ten days after the first objections a re filed. If a party makes a timely request for findings of fact and conclusions of law, the time for filing objections begins to run when the magistrate files a decision that include s findings of fact and conclusions of law.” An objection to a magistrate’s decision “ shall be specific and state with particularity all grounds for objection.” Civ.R. 53(D)(3) (b)(ii). {¶6} If objections are filed to a magistrate’s decision, this court is required to rule on the objections. Civ.R. 53(D)(4)(d). In ruling on objection s, the court is required to “undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appro priately applied the

law.” Accord Mayle v. Ohio Dept. of Rehab. & Correction , 10th Dist. Franklin No. 09AP541, 2010-Ohio-2774, ¶ 15 (trial court’s standard of review of a magistrate’s decision is de novo). A magistrate’s decision “is not effective unless ado pted by the court.” Civ.R. 53(D)(4)(a). Pursuant to Civ.R. 53(D)(4)(b), whether or not objections are timely filed, a court “may adopt or reject a magistrate’s decision in whole or in part, with or without modification. A court may hear a previously-referred ma tter, take additional evidence, or return a matter to a magistrate.”Case No. 2018-00492JD -4- DECISION

B. ODRC is not liable for the in tentional attack of one inmate by another, unless ODRC has adequate notic e of an impending assault. {¶7} In Literal v. Dept. of Rehab. & Correction , 2016-Ohio-8536, 79 N.E.3d 1267 (10th Dist.), ¶ 15-16, the Tenth District Court of Appeals set forth the law that applies in cases of an intentional attack of one inmate by another inmate, stating: To prevail on a negligence claim, [a plaintiff] must establish that (1) DRC owed him a duty, (2) DRC breached that duty, and (3) DR C’s breach proximately caused his injuries. Briscoe v. Dept. of Rehab. & Corr.

, 10th Dist. No. 02AP-1109, 2003-Ohio-3533, ¶ 20, citing Macklin v. Dept. of

Rehab. & Corr. , 10th Dist. No. 01AP-293, 2002-Ohio-5069. “In the context of a custodial relationship between the state and its inmates, the state owes a common-law duty of reasonable care and protection from unreasonable risks of physical harm.” McElfresh v. Dept. of Rehab. &

Corr. , 10th Dist. No. 04AP-177, 2004-Ohio-5545, ¶ 16, citing Woods v. Dept. of Rehab. & Corr. , 130 Ohio App. 3d 742, 744-45, 721 N.E.2d 143 (10th Dist.1998). “Reasonable care is that degree of caution an d foresight an ordinarily prudent person would employ in similar circumstan ces.”

McElfresh at ¶ 16. The state’s duty of reasonable care does not render i t an insurer of inmate safety. Williams v. S. Ohio Corr. Facility , 67 Ohio App.3d 517, 526, 587 N.E.2d 870 (10th Dist.1990), citing Clemets v.

Heston , 20 Ohio App.3d 132, 20 Ohio B. 166, 485 N.E.2d 287 (6th Dist.1985). “However, ‘once [the state] becomes aware of a dang erous condition[,] it must take reasonable care to prevent injury to the inmate.’” Watson v. Dept. of Rehab. & Corr. , 10th Dist. No. 11AP-606, 2012-Ohio1017, ¶ 8, quoting Briscoe at ¶ 20, citing Williams v. Dept. of Rehab. &

Corr. , 61 Ohio Misc. 2d 699, 583 N.E.2d 1129 (1991). The law of this district with regard to DRC liability for an as sault by

one inmate on another has been established in a number of decis ions ofCase No. 2018-00492JD -5- DECISION

this court including Baker v. Dept. of Rehab. & Corr. , 28 Ohio App. 3d 99, 28 Ohio B. 142, 502 N.E.2d 261 (10th Dist.1986); Watson ; and Allen v. Dept. of Rehab. & Corr. , 10th Dist. No. 14AP-619, 2015-Ohio-383. * * * In

Watson , this court reiterated the legal standard applicable to such c laims

as follows:

The law is well-settled in Ohio that ODRC is not liable for the intentional attack of one inmate by another, unless ODRC has adequate notice of an impending assault. Mitchell v. Ohio Dept. of Rehab. & Corr. , 107 Ohio App. 3d 231, 235, 668 N.E.2d 538 (10th Dist.1995), citing Baker v. State, Dept. of Rehab. & Corr. , 28 Ohio App. 3d 99, 28 Ohio B. 142, 502 N.E.2d 261 (10th Dist.1986). Notice may be actual or constructive, the distinction being the manner in

which the notice is obtained rather than the amount of

information obtained. Hughes v. Ohio Dept. of Rehab. &

Corr. , 10th Dist. No. 09AP-1052, 2010-Ohio-4736, ¶ 14. Actual notice exists where the information was personally communicated to or received by the party. Id. “Constructive notice is that notice which the law regards as sufficient to give notice and is regarded as a substitute for actual notice.”

Id. , citing In Re Estate of Fahle , 90 Ohio App. 195, 197, 105 N.E.2d 429 (6th Dist.1950).

Id. at ¶ 9. See also Allen at ¶ 18. {¶8} Thus, applying the law as set forth in Literal

, in this instance DRC is not liable for Torrez’s intentional attack of Morris, unless DRC ha d adequate notice of an impending assault.Case No. 2018-00492JD -6- DECISION

1. First-Objection Issue: Whether the magistrate erred by faili ng to rule that Morris’s status as a protective control inmate constitutes notice of danger of assault by gene ral population inmates. {¶9} According to the affidavit of evidence submitted by Morris’s co unsel, at trial Morris admitted on cross-examination that, although certain cor rections officers were present, he “did not tell them he was afraid of [Inmate] Torrez or that Torrez threatened him. He did not use the kite sys tem to notify the Defendant he was afraid or that he was threatened. Morris said he never told anyone.” (Affidavit of Evidence, ¶ 32.) And in the magistrate’s decision, the magistrate stated: “Indeed, there is no evidence that DRC was ever aware that Torres threatened to harm plaintiff.” (Mag istrate’s Decision, 8.) {¶10} Upon independent review, the court determines that the magistra te did not err by failing to find that Morris’s status as a protective con trol inmate was sufficient to conclude that ODRC had adequate notice of an impending assault. The court rejects Morris’s proposition that an inmate’s status as a protective co ntrol inmate, as a matter of law, constitutes adequate notice of an impending assault by ano ther inmate. Morris’s first objection is not well-taken.

2. Second-Objection Issue: Whether the magistrate erred in fail ing to find that due to the correctional officers’ failure to follow accept ed security practices based on administrative rules, policies, and general block orders, that DRC was negligent. Fourth-Objection Issue: Whether the magistrate erred when he failed to find that DRC was negligent in failing to observe the presence of a general population inma te standing in an open gate to the Jpay kiosk

room. Fifth-Objection Issue: Whether the magistrate erred in attribu ting the assault to a dispute between Morris and Inmate Torrez and wheth er the assault would not have occurred without DRC’s correction office rs’ failure to enforce protective cust ody orders, and other rules o f the institution. {¶11} Morris’s second, fourth, and fifth objections raise issues of n egligence and proximate cause. To establish a cause of action for negligence , a plaintiff “must showCase No. 2018-00492JD -7- DECISION

(1) the existence of a duty, (2) a breach of duty, and (3) an i njury proximately resulting

therefrom.” Armstrong v. Best Buy Co. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 8, citing Menifee v. Ohio Welding Prod., Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 472 N.E.2d 707. In Jeffers v. Olexo , 43 Ohio St.3d 140, 143-144, 539 N.E.2d 614 (1989), the Ohio Supreme Court discussed proximate cause, s tating: “Proximate cause is a troublesome phrase. It has a particular meaning in the law but is difficult to define. It has been def ined as: ‘That which immediately precedes and produces the effect, as distingu ished from a remote, mediate, or predisposing cause; that from which the fact might be expected to follow without the concurrence of any unus ual circumstance; that without which the accident would not have ha ppened, and from which the injury or a like injury might have been anti cipated.’ 65 C.J.S. § 103 Negligence pp. 1130-1131. * * *” Corrigan v. E. W. Bohren Transport Co . (C.A. 6, 1968), 408 F. 2d 301, 303. The rule of proximate cause “‘requires that the injury sustaine d shall be the natural and probable consequence of the negligence alleged; that is, such consequence as under the surrounding circumstance s of the particular case might, and should have been foreseen or anticip ated by the wrongdoer as likely to follow his negligent act.’” Ross v. Nutt (1964), 177 Ohio St. 113, 114, 29 O.O. 2d 313, 314, 203 N.E. 2d 118, 12 0, quoting Miller v. Baltimore & Ohio Southwestern RR. Co . (1908), 78 Ohio St. 309, 325, 85 N.E. 499, 504. See, also, Pendrey v. Barnes (1985), 18 Ohio St. 3d 27, 18 OBR 23, 479 N.E. 2d 383; cf. Strother v. Hutchinson (1981), 67 Ohio St. 2d 282, 21 O.O. 3d 177, 423 N.E. 2d 467. Accord Black’s Law Dictionary 265 (10th Ed.2014) (defining proximate cause as a “cause that is legally sufficient to result in liability; an ac t or omission that is considered in law to result in a consequence, so that liability can be imp osed on the actor”).Case No. 2018-00492JD -8- DECISION

{¶12} Prison regulations “are primarily designed to guide correctiona l officials in prison administration rather than to confer rights on inmates.” State ex rel. Larkins v.

Wilkinson , 79 Ohio St.3d 477, 479, 683 N.E.2d 1139 (1997). Violations o f internal rules and policies, however, may be used to support a claim of neglig ence. Triplett v. Warren

Corr. Inst. , 10th Dist. Franklin No. 12AP-728, 2013-Ohio-2743, ¶ 10. But, even if DRC corrections officers acted negligently, as Morris contends, neg ligence is without legal consequence unless DRC’s purported negligence is a proximate ca use of an injury. See Whiting v. State Dept. of Mental Health , 141 Ohio App.3d 198, 202, 750 N.E.2d 644 (10th Dist.2001). Because in this instance DRC lacked adeq uate notice of an impending assault, a requirement for the imposition of liabilit y on DRC for the intentional attack of Morris by Inmate Torrez, see Literal at ¶ 16, a legally sufficient cause is lacking to result in a consequence that liability should be imposed on DRC. Morris’s second, fourth, and fifth objections are not well-taken.

3. Third-Objection Issue: Whether the magistrate erred in findi ng that Morris was not credible. {¶13} In Siegel v. Univ. of Cincinnati College of Medicine , 2015-Ohio-441, 28 N.E.3d 612, ¶ 12 (10th Dist.), the Tenth District Court of Appe als stated: “‘Although the trial court may appropriately give weight to the magistrate’s a ssessment of witness credibility in view of the magistrate’s firsthand exposure to t he evidence, the trial court must still independently assess the evidence and reach its own conclusions.’ Sweeney v. Sweeney , 10th Dist. No. 06AP-251, 2006-Ohio-6988, ¶ 15, citing DeSantis v. Soller

, 70 Ohio App.3d 226, 233, 590 N.E.2d 886 (10th Dist.1990).” Thu s, provided that this court independently assess the evidence and reach its own concl usions, it is wholly proper for the court to give weight to the magistrate’s assessm ent of the credibility of the testimony of the parties’ witnesses and other evidence before t he court. In this case, the magistrate was in a position to view the witnesses, observe the demeanor of the witnesses, gestures of the witnesses, and the voice inflections of the witnesses. SeeCase No. 2018-00492JD -9- DECISION

Hill v. Briggs , 111 Ohio App.3d 405, 411-412, 676 N.E.2d 547 (10th Dist.1996) (choice between credible witnesses and conflicting testimony rests sole ly with a finder of fact and a fact finder is free to believe all, part, or none of the testimony of each witness). {¶14} To support a finding that the Morris’s testimony lacked credibi lity, the magistrate stated: “The video shows plaintiff, who had a razor in his right hand, moving his hand from side to side, right where two straight line cuts are found on his head. Plaintiff had no explanation for the cuts he received to his he ad and was unable to provide an explanation for why he swiped the razor after the in cident. The swipe is also visible on the video. The magistrate cannot think of any legit imate reason why plaintiff

would use the razor on himself and is forced to conclude that t hat plaintiff’s testimony thus lacks credibility.” (Magistrate’s Decision, 9.) {¶15} Upon de novo review of the evidence, the court concludes that M orris’s third objection, which challenges the magistrate’s credibility determination, should be

overruled.

4. Sixth-Objection Issue: Whether the magistrate’s findings reg arding the security video (Exhibit B) are justified. The magistrate described the security video as follows:

Defendant also submitted video of the attack. The video shows plaintiff being escorted to the kiosk where his hands are uncuf fed and his legs are shackled to the stool. Two corrections officers and T orres are present in the area. Another inmate is escorted out of the are a by one of

the corrections officers. The corrections officer who escorted plaintiff to the kiosk turns way from plaintiff and moves toward his desk, w hich is located on the opposite side of a partition separating it from the kiosk. Immediately thereafter, Torres, who was waiting by the wall sev eral feet away, approaches quickly and appears to strike plaintiff in the side of the head. Plaintiff falls to the ground and Torres continues to at tempt toCase No. 2018-00492JD -10- DECISION

punch him. Plaintiff’s right hand moves to his face and it app ears plaintiff is gripping an object with his right hand; at no point does it appear that plaintiff is attempting to use the object to harm Torres or to defend himself. Rather, the video shows plaintiff moving his right hand back an d forth along his head right where it was later observed that he had tw o straightline cuts. Finally, the video shows plaintiff transfer the obj ect to his left hand where he subsequently swipes the object away. The attack lasts approximately five seconds. Plaintiff continues to move on the ground following the attack. [TPU Escort Officer] Wallace was within a few feet of plaintiff during the entire incident. (Magistrate’s Decision, 6-7.) {¶16} Morris contends that the video shows Torrez continuing to punch Morris in the head and body, that it is impossible to determine, what, if anything, Morris had in his hand or what he did with it, that Wallace acted promptly to sto p the assault, and that it is impossible to conclude that a razorblade caused the two lines o n Morris’s forehead or

that Morris had the razorblade after he was struck and fell to the floor. {¶17} Upon independent review of the video, the court finds that Morr is’s claims are not wholly without merit. While the video does not clearly show what, if anything, Morris had in hand or Morris cutting his forehead with a razor blade, the video does show Morris’s hand engaged in a sweeping motion after the alter cation, almost as if Morris was swiping away an object. More importantly, however, the video does not show that DRC had adequate notice of an impending assault by To rrez. Indeed, the video shows Torrez quickly charging Morris when a corrections o fficer turned away from Morris, thereby supporting a view that corrections officers did not have notice of Torrez’s impending assault. {¶18} Morris’s sixth objection is not well-taken.Case No. 2018-00492JD -11- DECISION

5. Seventh-Objection Issue: Whether the magistrate’s decision i s contrary to law and against the manifest weight of the evidence. {¶19} In State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), discussing the concept of weight of the evidence, the Ohio Supr eme Court stated: “Weight of the evidence concerns ‘the inclination of the greater amount of credible

evidence , offered in a trial, to support one side of the issue rather t han the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, the y shall find the greater

amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its eff ect in inducing belief .’ (Emphasis added.) Black’s, supra, at 1594.” Thompkins further states that, when an appellate court reverses a trial court’s judgment on the basis that a verdict is against the manifest weight of the evidence, the appellate court sits as a “‘thirteenth juror’” and disagrees with the factfinde r’s resolution of the conflicting testimony. Tibbs , 457 U.S. at 42, 102 S. Ct. at 2218, 72 L. Ed. 2d at 661. See, also, State v. Martin (1983), 20 Ohio App. 3d 172, 175, 20 Ohio B. Rep. 215, 219, 485 N.E.2d 717, 720-721 (“The co urt, reviewing the entire record, weighs the evidence and all reason able inferences, considers the credibility of witnesses and determin es whether in resolving conflicts in the evidence, the jury clearly lost i ts way and created such a manifest miscarriage of justice that the convict ion must be reversed and a new trial ordered. The discretionary power to gr ant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”). Thompkins at 387. Since the Ohio Supreme Court issued Thompkins , the Ohio Supreme Court has recognized that the Thompson standard of review for manifest weight of the evidence applies in civil cases. Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17-23.Case No. 2018-00492JD -12- DECISION

{¶20} Upon independent review, the court concludes that the magistrat e’s statement that “[i]nasmuch as plaintiff failed to establish tha t defendant had adequate notice of an impending attack, plaintiff’s claim fails” is not contrary to law. Moreover, the court cannot conclude that the magistrate lost his way and crea ted such a manifest miscarriage of justice so that a recommendation of judgment in favor of DRC should not

be followed. {¶21} Morris’s seventh objection is not well-taken.

III. Conclusion {¶22} For reasons set forth above, the court concludes that ODRC’s memorandum in opposition filed on January 21, 2020, should be s tricken and that all of Morris’s objections to the magistrate’s decision of October 24, 2019, should be

overruled.

PATRICK M. MCGRATH Jud g e[Cite as Morris v. Dept. of Rehab. & Corr. , 2020-Ohio-612.]

{¶23} For reasons set forth in the decision filed concurrently herewi th, the court sua sponte STRIKES defendant’s memorandum in opposition of Janu ary 21, 2020, and OVERRULES plaintiff’s objections to a magistrate’s decision of October 24, 2019. Because the magistrate has properly applied the law to the fact s of the case, the court adopts the magistrate’s decision and recommendations as its own . Judgment is rendered in favor of defendant. Court costs are assessed again st plaintiff. The clerk shall serve upon all parties notice of this judgment and its da te of entry upon the journal.

PATRICK M. MCGRATH Jud g e

Filed January 30, 2020 Sent to S.C. Reporter 2/21/20 KRISTOFFER MORRIS

Plaintiff

v.

DEPARTMENT OF REHABILITATION AND CORRECTION

Defendan t Case No. 2018-00492JD

Judge Patrick M. McGrath Magistrate Gary Peterson

JUDGMENT ENTRY