[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 and Correction (ODRC), at the Allen-Oakwood 

Correctional Institution (AOCI). He brings this negligence action based on an assault by 

a fellow prisoner. More specifically, plaintiff’s complaint asserts 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 was going to be assaulted. He 

further alleges that a corrections officer read a note plaintiff 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 note out loud and in failing 

to protect him from Daniels. 

{¶2} The case proceeded to trial at AOCI. In addition to his own testimony, 

plaintiff presented the testimony of maintenance repair worker Danny Owens, inmate 

Michael Simonson, correction officer Angela Martin, and state trooper David Schultz. 

ODRC presented the testimony of corrections officers David Ashby and Matthew 

Giddens. For the following reasons, the magistrate finds plaintiff proved his claim by a 

preponderance of the evidence and recommends judgment in plaintiff’s favor. 

Findings of Fact 

CRAIG MYERS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF 

REHABILITATION AND CORRECTION 

 Defendant

Case No. 2019-00261JD 

Magistrate Scott Sheets 

DECISION OF THE MAGISTRATE 
Case No. 2019-00261JD -2- DECISION 

{¶3} The magistrate makes the following factual findings and, to a degree, 

explains the evidentiary bases underlying the findings. In citing to particular testimony 

as supporting a factual finding, the magistrate found it credible 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 plaintiff and was present 

on July 4, 2017, saw plaintiff emerge from his cell bloody in the face. In addition to 

Simonson’s testimony, the evidence established that Trooper Schultz’s investigation led 

to criminal assault charges being filed against Daniels. 

{¶5} Plaintiff paid no medical bills but did suffer temporary injuries, specifically 

abrasions and swelling on his head and face as a result of Daniels’ assault. Owens 

testified that, while present at plaintiff’s Rules Infraction Board (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 Daniels’ assault of plaintiff, 

testified he reviewed photos of plaintiff’s injuries which depicted a swollen forehead, 

abrasions, red marks, and a missing tooth. The photos themselves were not presented 

and plaintiff presented no evidence, other than Owens’ testimony, connecting the 

conditions depicted in these photographs to the assault. 

{¶6} Schultz also testified that plaintiff’s injuries had mostly healed by the time he 

met with him, which occurred a few weeks after the assault. Plaintiff did not present any 

medical records or other documentary evidence which demonstrated the extent or 

severity of his injuries. He presented no medical testimony and 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 officers were present in 

the housing unit and, at times, near plaintiff. Plaintiff and Simonson testified regarding 
Case No. 2019-00261JD -3- DECISION 

these threats as well as plaintiff’s attempt to communicate with corrections officers 

Naughten and Woods. 

{¶8} Plaintiff failed to establish that corrections officers heard the 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 because they were obvious 

and because, in the case of Daniels, an unspecified officer was fifteen feet away when 

Daniels threatened plaintiff. However, even Simonson admitted that the day room was 

loud and that he could not be sure that anyone overheard Daniels’ threats. 

{¶9} Prior to the assault, plaintiff made unspecified statements to corrections 

officers regarding threats by unspecified inmates; he communicated 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 testified as to what plaintiff 

actually told corrections officers on July 4, 2017. Schultz testified 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 injured inmate, 

which he passed to correction officer Naughten who read the note aloud in front of other 

inmates, and this led to the threats by Daniels and other inmates. 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 the 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 assault. 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 inmate, they are never to read 

it out loud and the officer is to go to a closed off area to read the kite. 
Case No. 2019-00261JD -4- DECISION 

{¶11} Though Martin admitted that she did not know the reason underlying this 

instruction, the fact that the instruction was given the day after plaintiff’s assault is 

compelling circumstantial evidence which indicates that corrections officers read 

plaintiff’s note. It is also important that plaintiff told both 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 story based on the instruction 

given to officers. 

{¶12} ODRC’s standard procedure is that corrections officers should read and/or 

address notes such as the one plaintiff authored outside the presence of other inmates 

to avoid harm to the author. Martin testified to this procedure and its import. 

{¶13} In addition to speaking with a staff member as plaintiff did, there are 

several other ways an inmate can inform defendant of personal safety concerns which 

plaintiff did not utilize. Plaintiff never requested protective custody, nor did he file an 

informal complaint or grievance. Plaintiff also did not “refuse to lock” which would have 

resulted in plaintiff immediately seeing a shift officer. Ashby testified to these 

procedures. Plaintiff admitted that he did not use them. 

{¶14} ODRC issued both plaintiff and Daniels conduct reports based upon the 

assault. Giddens testified to this fact 

{¶15} Plaintiff averred that Daniels never assaulted him in an affidavit 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 preponderance 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 of 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 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. “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. “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. 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 ODRC 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, quoting 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 the manner in 

which the notice is obtained rather than the amount of information 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 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. 

{¶20} “Where it is certain that damages have resulted, mere uncertainty 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 fact and 

conclusions of law set forth above, the magistrate finds that plaintiff proved his claim by 

a preponderance of the evidence. Plaintiff was assaulted by his cellmate on July 4, 

2017 and sustained injuries as a result. Whether ODRC had notice of an impending 

assault is the critical issue. The magistrate finds that, though ODRC lacked actual 

notice of the impending assault, the greater weight of the evidence established that 

ODRC had constructive notice of an impending assault. 

{¶22} Initially, the magistrate finds plaintiff failed to prove actual notice by a 

preponderance of the evidence. Plaintiff did not use any kite, informal complaint 

resolution, grievance, or other written means to notify staff members 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. Further, Simonson’s 

testimony and the other evidence established, at most, the possibility that corrections 

officers overheard other inmates threatening plaintiff; it did not establish actual 

awareness of the threats being made by inmates. Finally, though plaintiff established 
Case No. 2019-00261JD -7- DECISION 

that he made statements to corrections officers regarding threats, plaintiff did not 

establish the content of these statements; this makes it impossible to determine whether 

plaintiff’s statements conveyed actual notice of an impending assault. 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 constitute adequate notice of 

an impending attack.) 

{¶23} The court, however, finds plaintiff established that ODRC had constructive 

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 of establishing actual notice, 

plaintiff did establish that he twice approached corrections officers regarding threats by 

other inmates. He also established that inmates threatened him repeatedly and that 

corrections officers were present in the housing unit dayroom area while these threats, 

which were not discrete, continued for an undetermined time. As Simonson testified, it 

was “obvious” that other inmates were angry with plaintiff. Most compelling was the fact 

that corrections officers read plaintiff’s note concerning an injured inmate in front of 

other inmates which resulted in threats being targeted at plaintiff. Also, the fact that 

ODRC did so in violation of its own procedure, which is in place for inmate safety, is 

also compelling. Given the existence of this policy, the magistrate finds that reading the 

note in front of other inmates would put the corrections officers on notice of some 

danger of assault to plaintiff. When considered with the threats made by other inmates 

and plaintiff’s attempt to twice inform corrections officers—one 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 is of little import primarily 
Case No. 2019-00261JD -8- DECISION 

because the evidence, including the testimony of Schultz, established that the assault 

occurred. More importantly, the affidavit in no way contradicts 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 offered virtually 

no testimony regarding the actual extent of his injuries, treatment, 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 plaintiff’s injuries had healed by 

the time he interviewed plaintiff. Therefore, the magistrate values plaintiff’s injuries, 

temporary swelling, and abrasions to his face, at $1,000.00. 

Conclusion 

{¶26} Based upon the foregoing, the magistrate finds that plaintiff proved his 

claim by a preponderance of the evidence and recommends judgment 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 timely 
Case 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 

Magistrate 

Filed June 8, 2020 

Sent to S.C. Reporter 7/28/20