[Cite as McCreery v. Ohio Dept. of Rehab. & Corr. , 2020-Ohio-2873.]

{¶1} Plaintiff, an inmate in the custody and control of defendant, O hio Department of Rehabilitation and Correction (ODRC), at the Warr en Correctional Institution (WCI), brings this action for negligence arising fr om an alleged attack upon him by fellow inmates. The issues of liability and damages wer e not bifurcated, and the case proceeded to trial. {¶2} At trial, plaintiff, who has been incarcerated since 2009, test ified that he

transferred from the Chillicothe Correctional Institution to th e Lebanon Correctional Institution (LeCI) approximately one year before he was attacke d. Plaintiff described LeCI as a “violent” prison where fights occur daily. Plaintiff related that within a couple of days of arriving at LeCI, several inmates approached him and demanded that he pay a fee to use the telephone, jpay machine, or access his commiss ary. Plaintiff stated that the inmates belong to a prison gang known as the gangster disciples, or the GDs, and that the gang was led by an inmate named Charles Reed, aka Chuck. Plaintiff related that the GDs, who were porters in the unit, controlled the housing block and that he commenced paying Reed for access to the telephone, jpay mach ine, and commissary. Reed and the GDs apparently increased their demand s of money and favors over the course of the year. {¶3} Plaintiff testified that Reed and the GDs “got into trouble” an d were moved out of the block. Plaintiff related that after Reed moved out, other inmates, whom he NICHOLAS C. MCCREERY

Plaintiff

v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

Defendan t Case No. 2019-00079JD

Magistrate Gary Peterson

DECISION OF THE MAGISTRATECase No. 2019-00079JD -2- DECISION

suspected to be affiliated with the GDs, frequently approached him demanding money, commissary items, or other favors. Plaintiff stated that he su bsequently stopped paying the GDs and Reed. Plaintiff testified that because he previous ly paid Reed to use the telephone, Reed had his wife’s telephone number and his wife be gan to receive menacing text messages demanding money and threatening to do ha rm to plaintiff if the

demands were not met. Plaintiff asserted that he believed that things were about to “get

bad.” {¶4} Plaintiff testified that because of the increased pressure, he discretely approached correction officer Johnson. Plaintiff explained tha t he needed to discuss the situation discretely to not alert any inmates that he may b e “snitching.” According to plaintiff, he provided Johnson “the details.” Plaintiff added that he informed Johnson that he was “going to get jumped.” Plaintiff clarified that he identified Charles Reed as the inmate responsible for putting a “hit” on him. Plaintiff t estified that Johnson responded by “laughing it off” and indicated that it was “above his pay grade.” Johnson apparently added that plaintiff needed to discuss the situation with the sergeant. Plaintiff testified that the following day, the sergeant was ma king rounds and that he discretely approached the sergeant to discuss the situation. P laintiff stated that he informed the sergeant that the inmates who were moved out of th e cell block were now “coming to get” him because he refused to pay them. According to plaintiff the sergeant responded by stating “man up and fight or fuck.” {¶5} Plaintiff testified that on October 20, 2018, the inmates in hi s block were released to chow at approximately 6:00 p.m. Plaintiff related that as he commenced heading to chow, he heard an inmate named Ziruolo call out “Hey , Nick. Hold up.” Plaintiff added that as soon as he reached the second range lan ding, which was apparently out of security camera view and out of view of the c orrection officers, he felt a stinging sensation on the side of his face and his ears start ed ringing. Plaintiff attempted to rapidly descend the stairs, but when he reached th e bottom, plaintiff didCase No. 2019-00079JD -3- DECISION

not see a correction officer at the desk. At that moment, plai ntiff decided that he needed to fight back to protect himself and commenced fighting Ziruolo, whom he believed was trying to hold him back. Plaintiff stated that he subsequently heard correction officers order the inmates to get on the ground. Pl aintiff believed that multiple inmates were involved with the attack, but he was unsure of the ir identities. Plaintiff was also unable to identify the weapon used in the attack and h e was not sure who was responsible for the cuts to his face as there were multiple inm ates near him when he

was struck in the face. {¶6} Following the attack, plaintiff was escorted to the infirmary f or medical treatment and thereafter transported to a local emergency room for additional medical

care. Plaintiff received 10 stiches in his face for two cuts. Plaintiff now has permanent scaring because of the attack. Plaintiff did not detail any ot her damage that he suffered

due to the attack. {¶7} After plaintiff returned from the emergency room, he was placed in segregation. Plaintiff relates that he was in the same segrega tion unit as Ziruolo. Plaintiff remained in segregation for nine days. At that time, plaintiff stated that he was still unware of who, in addition to Ziruolo, was responsible fo r the attack, and that inmate porters would stop by his cell and tell him that he need ed to deny that he knew anything about the attack. Plaintiff thereafter completed pape rwork requesting protective custody. Rather than grant plaintiff protective cus tody, plaintiff was

transferred from LeCI to WCI. {¶8} Plaintiff acknowledged that at no point prior to the attack did he ever write a kite, informal complaint resolution, or grievance to anyone at ODRC regarding either a need to be protected from an attack or a request for protective custody. Plaintiff explained that he did not do so because if he had, then the GDs or Reed would have discovered that he “snitched,” which would have put his safety in jeopardy. Plaintiff also completed a voluntary statement following the attack. (Defenda nt’s Exhibit B.)Case No. 2019-00079JD -4- DECISION

Nowhere in the voluntary statement does plaintiff state that he informed anyone of an impending attack prior to October 20, 2018. {¶9} Matthew Hansford testified that he has been employed at LeCI fo r 13 years as both a correction officer and now a sergeant, a position he held in October of 2018. Hansford related that he was the sergeant responsible for K blo ck, where plaintiff was assigned. Hansford described his duties as consisting of overs eeing the inmates and assisting them in any problems they may have. Hansford explain ed that there are several ways an inmate may contact him to report a problem: spe aking with him during daily round checks; sending kites to him through the kite syste m; and sliding kites under

the door to his office. {¶10} Hansford testified that plaintiff never reported to him that he was in fear of an attack by another inmate and never asked to be moved out of the unit. Hansford denied telling plaintiff to fight like a man or that nothing co uld be done to assist plaintiff. Hansford added that plaintiff never sent a kite regarding a fea r of being attacked and that while performing rounds, he never talked to plaintiff abou t his fear of being

attacked. Hansford maintained that if an inmate states he is i n fear for his safety, he starts the paperwork for protective custody and that moving an inmate in that situation can happen immediately. Hansford added that he does not fail t o act when an inmate claims he may be attacked because an inmate fight can compromis e the safety of staff

members. {¶11} Jason Snyder testified that he is employed by ODRC as a correct ion officer at LeCI and was so employed as the block officer in K block in October 2018. While Snyder recalled seeing plaintiff in the block, he denied ever d iscussing with plaintiff anything related to an impending attack by other inmates. Snyd er explained that when an inmate claims his safety is in danger, Snyder will contact a case manager. {¶12} Snyder recalled that K Block was being released for chow on Oct ober 20, 2018, when the attack involving plaintiff occurred. Snyder sta ted that he was positionedCase No. 2019-00079JD -5- DECISION

in front of the officer’s desk, ensuring that the inmates were heading to chow. Snyder stated that he looked up and saw plaintiff and inmate Ziruolo f ighting. Snyder reported that other officers disrupted the affray within 10 seconds. Sn yder wrote an incident report documenting the event. (Defendant’s Exhibit D.) {¶13} Daniel Gearhart testified that he has been employed by ODRC at LeCI and has held the position of a lieutenant for more than 10 years. Gearhart stated that his duties include safeguarding inmate movement between blocks and supervising other officers and inmates. Gearhart testified that plaintiff never reported to him that he was in fear for his safety and that he never received a kite from p laintiff about any impending attack. Gearhart added that if plaintiff had made such a claim , he would have immediately placed him in limited privilege housing. Gearhart observed the altercation between plaintiff and Ziruolo. Gearhart reported that he order ed the inmates to stop and that they complied with his order. Gearhart estimated that correction officers responded within seconds of when they were first observed fight ing on the stairwell. Gearhart added that no photographs were taken because of the am ount of bleeding plaintiff was experiencing. Gearhart recalled that later that day a female arrived at the prison and demanded to speak with him about the attack. Gearha rt later completed an incident report documenting the events. {¶14} Cory Krabbe testified that he has been employed by ODRC at LeCI for seven years, although he has held the position of case manager for the previous four years. Krabbe stated that his duties include conducting invest igations related to protective custody requests. Krabbe explained that inmates may directly request protective custody, they may request it from a correction offic er, or they may submit the request by kite. Krabbe added that the request could be made p rivately by the inmate by depositing the kite in the kite box and that there is no req uirement an inmate must meet before he may request protective custody.Case No. 2019-00079JD -6- DECISION

{¶15} Krabbe testified that plaintiff never requested protective cust ody or a bed move prior to October 20, 2018. Krabbe added that he did not n otice plaintiff in the block until this incident and that plaintiff requested protecti ve custody on October 26, 2018, which was after he was attacked. Krabbe reported that pl aintiff was transferred to a different institution rather than receive protective custody. {¶16} “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. {¶17} “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, citing 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. 11AP606, 2012-Ohio-1017, ¶ 9, (“The law is well-settled in Ohio tha t ODRC is not liable for the intentional attack of one inmate by another, unless ODRC ha s adequate notice of an impending assault.”). “‘Whether ODRC had or did not have notic e is a question thatCase No. 2019-00079JD -7- DECISION

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. {¶18} “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. {¶19} Upon review of the evidence, the magistrate finds that plaintif f failed to prove his claim by a preponderance of the evidence. There is n o dispute that plaintiff was attacked by inmates shortly after his block was released to evening chow on October 20, 2018. During the attack, an unknown inmate used an unidentified weapon, resulting in cuts to plaintiff’s face that required stitches at a nearby hospital. Plaintiff identified inmate Ziruolo as one of the inmates responsible for the attack, although he was unsure of the role Ziruolo played. {¶20} At no point prior to the attack on October 20, 2018, did plaint iff write any kite, informal complaint resolution, grievance, or other writte n correspondence to staff members for ODRC indicating that he was in fear for his persona l safety. Indeed, plaintiff acknowledged as much explaining that he was concerned such a method of communication would result in other inmates labeling him a snit ch. {¶21} Plaintiff asserted that he verbally notified a correction offic er and a sergeant that he feared an impending attack upon his person. Pl aintiff explained that he informed Johnson and a sergeant that GD members and Reed were p ressuring him to pay to access basic inmate services and had a “hit” out on him. Allegations that plaintiffCase No. 2019-00079JD -8- DECISION

expressly informed defendant’s staff about an impending attack upon him are not entirely credible. As noted above, there is no contemporaneous written documentation where plaintiff indicated that he was in fear of an impending a ttack by another inmate. Furthermore, after the attack, plaintiff wrote a voluntary stat ement documenting the events that preceded the attack, but he did not include any ind ication that he ever informed anyone of an impending attack upon his person. (Defend ant’s Exhibit B.) Moreover, as plaintiff indicated in his testimony, he was conce rned he would be labeled a snitch if he wrote to or spoke with defendant’s staff members about his difficulties with Reed and the GDs. Therefore, it seems more likely that plainti ff never expressly informed defendant’s staff members that he feared an impending attack upon his person, even though he may have vaguely discussed general diffi culties he was having at that time with Reed and the GDs. In short, it was not estab lished that plaintiff informed defendant’s staff that he feared an impending attack u pon him. {¶22} Assuming plaintiff did inform defendant’s staff members about t he difficulties he was having with Reed and the GDs, such evidence , standing alone, does not support a conclusion that defendant had adequate notice of an impending attack upon plaintiff by Ziruolo and several unknown inmates. Baker v. Dept. of Rehab. &

Corr. , 28 Ohio App. 3d 99, 502 N.E.2d 261 (10th Dist.1986) (Vague st atements about a need to be moved after being slapped in the face by another inm ate where the plaintiffinmate did not directly express his fear of an impending assaul t or expressly request protective custody, were not sufficient to constitute adequate notice of an impending attack.). Additionally, plaintiff was unable to identify the i nmates involved in the attack, except for Ziruolo—an inmate whom plaintiff never claimed to ha ve mentioned to defendant’s staff prior to the attack. There is no doubt that plaintiff never informed anyone that he feared an attack by Ziruolo or the other unident ified inmates. See Williams v. Southern Ohio Corr. Facility , 10th Dist. Franklin No. 89AP-1411, 67 Ohio App.3d 517, 526 (“If [the attack] was a surprise to [the inmate ], how could it beCase No. 2019-00079JD -9- DECISION

foreseeable to prison officials?”). In addition, it was not es tablished that Ziruolo was

associated with Reed or the GDs and that defendant knew of that association such that

it would be foreseeable that Ziruolo or the other unknown inmat es would attack plaintiff. Furthermore, plaintiff was not sure Ziruolo was responsible for the cuts to his face, which were the only injuries plaintiff identified at the trial. {¶23} Moreover, there is no evidence that Ziruolo and plaintiff had a hostile relationship or that defendant knew of any hostility between th e two. Likewise, there is no evidence that Ziruolo has a history of violence against inma tes such that defendant should have known that he was likely to attack plaintiff. In s hort, plaintiff did not present evidence that defendant had adequate notice of an impending att ack upon his person by Ziruolo and several unknown inmates. {¶24} Finally, it should be noted that plaintiff’s complaint contains a claim concerning lost property related to the attack. Plaintiff did not present any evidence for the magistrate to consider. {¶25} Based upon the foregoing, the magistrate finds that plaintiff f ailed to prove his claims by a preponderance of the evidence. Therefore, it i s recommended that judgment be entered in favor of defendant. {¶26} 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 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).Case No. 2019-00079JD -10- DECISION

GARY PETERSON Ma g istrate Filed March 31, 2020 Sent to S.C. Reporter 5/8/20