[Cite as Alford v. Ohio Dept. of Rehab. & Corr. , 2022

- Ohio

- 3379.]

{¶1} Plaintiff Brian Alford (plaintiff) is an inmate in d efendant’s custody. Plaint iff

seeks recovery for injuries he alleges were sustained after another inmate assaulted him

on September 9, 2020. Trial took place remotely on August 2 3 , 2022. In addition to

plaintiff, Correction s Officer John Searle ( Searle ) , Institutional Inspector Michael Jenkins,

and Health Care Administrator Cheryl K losinski, all employees of defendant, testified.

S everal exhibits were admitted into evidence including a video of the incident, other

docume nts generated as a result of the incident , black and white photos of plaintiff’s

injuries, and a limited portion of plaintiff’s medical records . For the following reasons, the

magistrate hereby recommends judgment for defendant.

Findings of Fact

{¶2} The magistrate makes the following factu al findings. Plaintiff is an inmate in

defendant’s custody. While housed at defendant’s Toledo Correctional I nstitution and

while performing his institutional job cleaning the recreation area, plaintiff was the victim

of a sudden, unprovoked and unforese en assault by another inma te, Dwayne Nixon

( Nixon ) , on September 9, 2020.

{¶3} A video camera at TCI captured Ni xon’s assault on plaintiff. The silent video

depicts numerous people on a basketball court. Plaintiff can be seen talking to another

inmate near the basketball hoop at t he far end of the cour t that is opposite of the camera.

Plaintiff is to the right of the other i nmate. Nixon is standing among a group of men that BRIAN K. ALFORD

Plaintiff

v.

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION

Defendant Case No. 2020

- 00574JD

Magistrate Scott Sheets

DECISION OF THE MAGISTRATECase No. 2020

- 00574JD

- 2

- DECISION

is near the hoop closer to the camera. He can be seen, in a black shirt and black shorts,

standing near the top of the painted curved three

- point line. Searle can be seen at a desk

in the lower left corner of the video.

{¶4} At the same time that Nixon begins rapidly walking in plaintiff’s direction

,

plaintiff begins to walk away from the inmate with whom he was convers ating and toward

midcourt

. As plaintiff and Nixon get closer , they walk side by side for a moment before

Nixon suddenly lunges at plaintiff and pushes and/or punches plaintiff in the side and/or

back of the head, causing pl aint iff to fall down. Th e time stamp of the video reads 9:13:38

when Nixon extends his arms to attack plaintiff. Up until this point, Se arle ’ s back is turned

and/or he is facing the other inmates who are leaving the recreation area. Searle turns

his hea d and lo oks at plaintiff and Nixon, while plaintiff is falling to the ground, when the

video reads 9:13:39

.

{¶5} Searle then leaves his desk , at which point Nixon begins to walk away from

plaintiff, and walks toward Nixon before briefly leaving the area. After plaintiff gets to his

feet, plaintif f and Nixon approach each other and appear to exchange words. As plaintiff

runs away from Nixon , he sprays Nixon in the face with a spray bottle. Nixon chases

plaintiff and pushe s and/or punches plaintiff again as pla intiff goes offs creen. Two

correctio ns officers, including Searle , then almost immediately appear and confront Nixon

and begin handcuffing him.

{¶6} Plaintiff had never met Nixon before the assau lt and had never reported any

problem with or fear of Nixon

. Tho ugh Searle was present in the recre ation area at the

time of the attack , he had no forewarning of the assault, was not close to the two men

when the assault began and did not know it was happening until after plaintiff was initially

knocked to the ground. At the time h e approached the two inmates and began to

investigate, Searle did not know exactly what had transpired bet ween plaintiff and Nixon

.

Searle walked away from plaintiff and Nixon to enlist the aid of his partner with

investigating the incident and securing the two inmates

.Case No. 2020

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- DECISION

Conclusions of Law

{¶7} Plaintiff’s complaint states a claim for negligence. As it relates to claims based

on o ne inmate’s assault of another, the 10th District has stated:

In order to prevail on a claim of negligence, “ a plai n tiff must establish

the existence of a duty, a breach of the duty, and an injury resulting

proximately therefrom. ” A p laintiff “ has the bur den to prove each element

of their negligence claim by a preponderance o f the evidence. ”

In regard to the “ custodial relationship between the state and its

inmates, the state owes a common

- la w duty of reasonable care and

protection from unreasonable risks of physical harm. ” Reasonable care is

defined as “ that degree of cauti o n and foresight an ordinarily prudent person

would employ in similar circumstances, and includes the duty to exercise

r easonable care to pre vent an inmate from being injured by a dangerous

condition about which the state knows or should know. ” However, w h ile

“ prison officials owe a duty of reasonable care and protection from

unreasonable risks to inmates, * * * they are n ot the ins urers of in mates ’

safety. ”

* * * [T]his court [has] discussed the legal standard with respect to

the liability of ODRC for an assault by one inmate on another. Specifically,

we noted “ [t]he law is well

- settled in Ohio that ODRC is not liable fo r the

inte ntional att ack of one inmate by another, unless ODRC has adequate

notice of an impending assault. ” Under Ohio law, “ [n]otice m ay be actual or

constructive, the distinction being the manner in which the notice is obtained

rather than the amount o f informat ion obtaine d. ” Id. In this respect, “ [a]ctual

notice exists where the information was personally communicated to or

received by the party, ” whereas “‘ [c]onstructive notice is that notice whichCase No. 2020

- 00574JD

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- DECISION

the law regards as sufficient to give notice and is regarded as a substi tute

for actual notice. ’” (citations omitted.)

Morris v. Ohio Dep ’ t of Rehab. & Corr

., 10 th Dist. No. 20AP

- 131, 202 1

- Ohio

- 3803, ¶¶ 30

-

32.

{¶8} As noted, plaintiff had the burden of proving his claim by a preponderance of

the evidence. Id. As stated in Brother s v. Morrone

- O’Keefe Dev. Co., LLC, 10th Dist. No.

06AP

- 713, 2007

- Ohio

- 1942, 2007 Ohio App. Lexis 1762, ¶ 49: “[a] p reponderance of the

evidence is ‘the greater weight of the e vidence * * * [it] means evidence that is more

probable, mo re persuasive, or of greater probative value. ’ ”

Decision

{¶9} The magistrate finds that plaintiff failed to prove his claims by a

prepondera n c e of the evidence. In this case, it is undisputed that defendant did not have

actual notice of an impending assau lt. Prior to the assault, pla intiff never had any fear of

his assailant, nor did he inform or alert defendant of any problem whatsoever bet w e en

him and his assailant. In fact, plaintiff did not know his assailant before the assault and

the assault itself happened without warning.

{¶10} T he magistrate also finds that defendant did not have constructive notice of

an impending assault . Though plaint i f f opined , in a very limited manner, that his assailant

had a known propensity for violence, he offered no actual e vidence, beyond his own

opinio n, sufficient to establish that his assailant had such a history. And again, plaintiff

and his assailant had n o previous history of any kind such that defendant would possess

notice that there might be i ssues if the two were allowed to comingle. In short , plaintiff

offered limited and vague assertions regarding his assailant’s history , which the

magistrate finds d id not establish that defendant had constructive notice. B ecause

defendant did not have not ice of an impending as sault, it had no duty to prote ct plaintiff

.

It , therefore, breached no duty in failing to protect plaintiff from the September 9, 2020

assa u l t.Case No. 2020

- 00574JD

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- DECISION

{¶11} Finally, Searle, once he became aware of the incident, approached the men

to investigate, at which point the incident appe ared to be over or, at least, under control

.

The magistrate cannot fault Searle for briefly walking away from the two inmates u n der

these circumstances to alert his partner and/or obtain his partner’s as sistance. After

plain tiff sprayed Nixon and Nixon began to attack plaintiff again , Searle and his partner

immediately intervene d . The magistrate finds that , under t hese cir c umst a nces, defendant

met its duty to protect plaintiff after Searle became aware of the altercation bet ween the

two men

.

{¶12} For the reasons stated above, the magist rate recommends judgment in

defendant’s favor.

{¶13} A party may file written objections to the magi s trat e ’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 objectio n s no t later than ten days after the first objections

are filed. A party shall no t assign as error on a ppeal 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 u nder Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically

objects to that factual finding o r legal conclusion within 14 days of the filing of the dec ision,

as required by Civ.R. 53(D)(3)(b).

SCOTT SHEETS

Magistrate

Filed August 31 , 2022

S ent to S.C. Reporter 9 /26/22