[Cite as Myers v. Ohio Dept. of Rehab. & Corr. , 2020-Ohio-3862.]

{¶1} Plaintiff is an inmate in the custody and control of defendant, Ohio Department of Rehabilitation an d Correction (ODRC), at the Alle n-Oakwood Correctional Institution (AOCI). He brings this negligence act ion based on an assault by a fellow prisoner. More specifically, plaintiff’s complaint as serts that his cellmate at the time, Brock Daniels (Daniels), assaulted him on July 4, 2017. Plaintiff asserts that, prior to the assault, he notified two corrections officers that he wa s going to be assaulted. He further alleges that a corrections officer read a note plaintif f authored such that other inmates could hear the contents of the note, which resulted in the assault by Daniels. Plaintiff alleges that ODRC acted negligently in reading the no te out loud and in failing to protect him from Daniels. {¶2} The case proceeded to trial at AOCI. In addition to his own te stimony, plaintiff presented the testimony of maintenance repair worker Danny Owens, inmate Michael Simonson, correction officer Angela Martin, and state t rooper David Schultz. ODRC presented the testimony of corrections officers David Ashb y and Matthew Giddens. For the following reasons, the magistrate finds plain tiff proved his claim by a preponderance of the evidence and recommends judgment in plaint iff’s favor.

Findings of Fact CRAIG MYERS

Plaintiff

v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

Defendan t Case No. 2019-00261JD

Magistrate Scott Sheets

DECISION OF THE MAGISTRATECase No. 2019-00261JD -2- DECISION

{¶3} The magistrate makes the following factual findings and, to a d egree, explains the evidentiary bases underlying the findings. In cit ing to particular testimony as supporting a factual finding, the magistrate found it credib le based on first hand

observation. {¶4} Brock Daniels assaulted plaintiff on July 4, 2017. In addition to plaintiff’s testimony, Simonson, who resided in the same housing unit as pl aintiff and was present on July 4, 2017, saw plaintiff emerge from his cell bloody in t he face. In addition to Simonson’s testimony, the evidence established that Trooper Sch ultz’s investigation led to criminal assault charges bei ng filed agains t Daniels. {¶5} Plaintiff paid no medical bills but did suffer temporary injuri es, specifically abrasions and swelling on his head and face as a result of Dani els’ assault. Owens testified that, while present at plaintiff’s Rules Infraction B oard (RIB) hearing shortly after the assault, he observed injuries to plaintiff’s face as well as a boot print on the right side of plaintiff’s face. Schultz, who investigated Dani els’ assault of plaintiff, testified he reviewed photos of plaintiff’s injuries which depi cted a swollen forehead, abrasions, red marks, and a missing tooth. The photos themselv es were not presented and plaintiff presented no evidence, other than Owens’ testimon y, connecting the conditions depicted in these photographs to the assault. {¶6} Schultz also testified that plaintiff’s injuries had mostly hea led by the time he met with him, which occurred a few weeks after the assault. Pl aintiff did not present any medical records or other documentary evidence which demonstrate d the extent or severity of his injuries. He presented no medical testimony an d failed to describe his injuries. Plaintiff presented no evidence of medical diagnosis or treatment. {¶7} Inmates, including Daniels, overtly threatened plaintiff prior to the assault by Daniels, during which time an unknown number of corrections off icers were present in the housing unit and, at times, near plaintiff. Plaintiff and Simonson testified regardingCase No. 2019-00261JD -3- DECISION

these threats as well as plaintiff’s attempt to communicate wit h corrections officers Naughten and Woods. {¶8} Plaintiff failed to establish that corrections officers heard t he threats by Daniels or other inmates. The only testimony on the issue came from Simonson who

testified that officers should have been aware of the threats b ecause they were obvious and because, in the case of Daniels, an unspecified officer was fifteen feet away when Daniels threatened plaintiff. H owever, even Simonson admitted that the day room was loud and that he could not be sure that anyone overheard Daniel s’ threats. {¶9} Prior to the assault, plaintiff made unspecified statements to corrections officers regarding threats by unspecified inmates; he communica ted some degree of apprehension regarding a possible assault, but nothing specific about Daniels. Though both plaintiff and Simonson testified to plaintiff’s attempted communications with corrections officers Woods and Naughten about the threats being made and his apprehension of an assault, neither Simonson nor plaintiff test ified as to what plaintiff actually told corrections officers on July 4, 2017. Schultz te stified that, though plaintiff told him he had expressed concern about an assault, he had not indicated he was going to be assaulted by Daniels. {¶10} Prior to the assault, plaintiff authored a note regarding an in jured inmate, which he passed to correction officer Naughten who read the not e aloud in front of other inmates, and this led to the threats by Daniels and other inmat es. Plaintiff testified to this fact. In addition, Simonson, Martin and Schultz testified respectively that plaintiff told them the same, consistent story regarding the reading of t he note before the assault by Daniels, shortly after the assault by Daniels on the way to the hospital, and weeks later when Schultz interviewed plaintiff about the assaul t. Further, Martin testified that, at roll call the day following the assault, she and her fellow officers were instructed that, when they receive a “snitch kite” from an inma te, they are never to read it out loud and the officer is to go to a closed off area to re ad the kite.Case No. 2019-00261JD -4- DECISION

{¶11} Though Martin admitted that she did not know the reason underly ing this instruction, the fact that the instruction was given the day af ter plaintiff’s assault is compelling circumstantial evidence which indicates that correct ions officers read plaintiff’s note. It is also important that plaintiff told bot h Simonson and Martin about the reading of the note before the instruction to officers at roll call the following day; it demonstrates that plaintiff could not have fabricated this stor y based on the instruction given to officers. {¶12} ODRC’s standard procedure is that corrections officers should r ead and/or address notes such as the one plaintiff authored outside the pr esence of other inmates to avoid harm to the author. Martin testified to this procedur e and its import. {¶13} In addition to speaking with a staff member as plaintiff did, t here are several other ways an inmate can inform defendant of personal s afety concerns which plaintiff did not utilize. Plaintiff never requested protectiv e custody, nor did he file an informal complaint or grievance. Plaintiff also did not “refus e to lock” which would have resulted in plaintiff immediately seeing a shift officer. Ashb y testified to these procedures. Plaintiff admitt ed that he did not use them. {¶14} ODRC issued both plaintiff and D aniels conduct reports based up on the

assault. Giddens testified to this fact {¶15} Plaintiff averred that Daniels never assaulted him in an affida vit filed in Daniels’ criminal case about a year before he filed the present case. Plaintiff admitted

he authored the affidavit.

Conclusions of Law {¶16} Plaintiff bore the burden of proving his claim by a preponderan ce of the

evidence. As stated in Brothers v. Morrone-O’Keefe Dev. Co., LLC, 10th Dist. No. 06AP-713, 2007 Ohio 1942, 2007 Ohio App. Lexis 1762, ¶ 49: “[a] preponderance of the evidence is ‘the greater weight of the evidence * * * [it] means evidence that is more probable, more persuasive, or of greater probative value.”Case No. 2019-00261JD -5- DECISION

{¶17} “To establish negligence, a plaintiff must show the existence o f a duty, a breach of that duty, and injury resulting proximately therefrom .” Taylor v. Ohio Dept. of

Rehab. & Corr. , 10th Dist. Franklin No. 11AP-1156, 2012-Ohio-4792, ¶ 15. “In the context of a custodial relationship between the state and its p risoners, the state owes a common-law duty of reasonable care and protection from unreason able risks.” Jenkins v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 12AP-787, 2013-Ohio-5106, ¶ 8. “The state, however, is not an insurer of inmate safety and owes the duty of ordinary care only to inmates who are foreseeably at risk.” Franks v. Ohio Dept. of Rehab. &

Corr. , 10th Dist. Franklin No. 12AP-442, 2013-Ohio-1519, ¶ 17. “Rea sonable care is that degree of caution and foresight an ordinarily prudent pers on would employ in similar circumstances, and includes the duty to exercise reason able 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. 04AP177, 2004-Ohio-5545, ¶ 16. {¶18} “When one inmate attacks another inmate, ‘actionable negligence arises only where prison officials had adequate notice of an impending attack.’” Skorvanek v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 17AP-222, 2018-Ohio-3870, ¶ 29, quoting Metcalf v. Ohio Dept. of Rehab. & Corr ., 10th Dist. Franklin No. 01AP-292, 2002-Ohio-5082, ¶ 11; Watson v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 11AP-606, 2012-Ohio-1017, ¶ 9 (“The law is well-settled in Ohio that ODRC is not liable for the intentional attack of one inmate by another, unless ODR C has adequate notice of an impending assault.”). “‘Whether ODRC had or did not have notice is a question that depends on all the factual circumstances involved.’” Pate v. Ohio Dept. of Rehab.

& Corr ., 10th Dist. Franklin No. 18AP-142, 2019-Ohio-949, ¶ 12, quoti ng Frash v. Ohio Dept. of Rehab. & Corr ., 10th Dist. Franklin No. 14AP-932, 2016-Ohio-3134, ¶ 11.Case No. 2019-00261JD -6- DECISION

{¶19} “Notice may be actual or constructive, the distinction being th e manner in

which the notice is obtained rather than the amount of informat ion obtained.” Lucero v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 11AP-288, 2011-Ohio-6388, ¶ 18. “Whenever the trier of fact is entitled to find from competent evidence that information was personally communicated to or received by the party, the no tice is actual. Constructive notice is that notice which the law regards as suf ficient 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. {¶20} “Where it is certain that damages have resulted, mere uncertain ty as to the amount will not preclude the right of recovery.” Bemmes v. Pub. Emps. Ret. Sys. , 102 Ohio App.3d 782, 789 (10th Dist.1995).

Decision {¶21} Upon review of the evidence and in light of the findings of fac t and conclusions of law set forth above, the magistrate finds that p laintiff proved his claim by a preponderance of the evidence. Plaintiff was assaulted by hi s cellmate on July 4, 2017 and sustained injuries as a result. Whether ODRC had noti ce of an impending assault is the critical issue. The magistrate finds that, thou gh ODRC lacked actual notice of the impending assault, the greater weight of the evid ence established that

ODRC had constructive notice of an impending assault. {¶22} Initially, the magistrate finds plaintiff failed to prove actua l notice by a preponderance of the evidence. Plaintiff did not use any kite, informal complaint resolution, grievance, or other written means to notify staff m embers at AOCI that he feared for his personal safety prior to the assault. In terms of written and/or more formal means of providing actual notice, plaintiff provided none. Fur ther, Simonson’s testimony and the other evidence established, at most, the poss ibility that corrections officers overheard other inmates threatening plaintiff; it did not establish actual awareness of the threats being made by inmates. Finally, thoug h plaintiff establishedCase No. 2019-00261JD -7- DECISION

that he made statements to corrections officers regarding threa ts, plaintiff did not establish the content of these statements; this makes it imposs ible to determine whether plaintiff’s statements conveyed actual notice of an impending a ssault. See Baker v. Dept. of Rehab. & Corr. , 28 Ohio App. 3d 99, 502 N.E.2d 261 (10th Dist.1986) (Vague statements about a need to be moved after being slapped in the face by another inmate where the plaintiff-inmate did not directly express his fear of an impending assault or expressly request protective custody were not sufficient to con stitute adequate notice of an impending attack.) {¶23} The court, however, finds plaintiff established that ODRC had c onstructive notice of an impending assault. As stated in Pate , whether notice exists depends on all the facts present in a particular case. Though falling short o f establishing actual notice, plaintiff did establish that he twice approached corrections of ficers regarding threats by

other inmates. He also established that inmates threatened him repeatedly and that corrections officers were present in the housing unit dayroom a rea while these threats, which were not discrete, continued for an undetermined time. A s Simonson testified, it was “obvious” that other inmates were angry with plaintiff. Mo st compelling was the fact that corrections officers read plaintiff’s note concerning an i njured inmate in front of other inmates which resulted in threats being targeted at plain tiff. Also, the fact that ODRC did so in violation of its own procedure, which is in plac e for inmate safety, is also compelling. Given the existence of this policy, the magis trate finds that reading the note in front of other inmates would put the corrections office rs on notice of some danger of assa ult to plaintiff . When cons idered with the threa ts made by other inmates and plaintiff’s attempt to twice inform corrections officers—on e of whom read the note— of concerns regarding the threat of an assault, the magistrate finds that ODRC had constructive notice of an impending assault on plaintiff. {¶24} While it is true that plaintiff authored the affidavit in which he stated the assault never occurred, the court finds plaintiff’s affidavit i s of little import primarilyCase No. 2019-00261JD -8- DECISION

because the evidence, including the testimony of Schultz, estab lished that the assault occurred. More importantly, the affidavit in no way contradict s the evidence, including Martin’s testimony, establishing that corrections officers read plaintiff’s note leading to

threats from other inmates. {¶25} As for damages, plaintiff presented very little evidence. He o ffered virtually no testimony regarding the actual extent of his injuries, treat ment, if any, of these injuries or the impact, if any, that the injuries had on him. Schultz testified to what pictures depicted but did not attribute any specific condition as depicted in these pictures to the assault. Moreover, Schultz testified that plai ntiff’s injuries had healed by the time he interviewed plaintiff. Therefore, the magistrate v alues plaintiff’s injuries, temporary swelling, and abrasi ons to his face, at $1,000.00.

Conclusion {¶26} Based upon the foregoing, the magistrate finds that plaintiff p roved his claim by a preponderance of the evidence and recommends judgmen t be entered in plaintiff’s favor in the amount of $1,000.00. {¶27} Note: the following requirements for filing objections have been tolled by the March 27, 2020 Order of Chief Justice of the Supreme Court of Ohio and the Governor’s declaration of a public health emergency until July 30, 2020 or the end of the emergency, whichever is sooner. See 03/27/2020 Administrative Actions, 2020-

Ohio-1166. {¶28} 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 conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timelyCase No. 2019-00261JD -9- DECISION

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).

SCOTT SHEETS Ma g istrate

Filed June 8, 2020 Sent to S.C. Reporter 7/28/20