[Cite as Johnson v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-8141.]




DANIEL JOHNSON                                        Case No. 2014-00768

       Plaintiff                                      Magistrate Robert Van Schoyck

       v.                                             DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant



        {¶1} Plaintiff, an inmate in the custody and control of defendant, brings this action
for negligence arising from an accident in which he fell from an upper bunk bed and was
injured on November 18, 2013. The issues of liability and damages were bifurcated and
the case proceeded to trial on the issue of liability.
        {¶2} Plaintiff testified at trial that the accident occurred while he was serving a
prison term, which began in 2010, for having a weapon under disability.               Plaintiff
acknowledged that he previously served an 18-month term for drug possession, and
that he recently returned to prison on another weapon under disability conviction.
        {¶3} Plaintiff testified that in 2005, before he was ever incarcerated, he had an
acute episode of swelling in his legs resulting from blood clots, and he was diagnosed at
that time with deep vein thrombosis (DVT), a chronic condition. Plaintiff stated that he
has taken daily prescription blood thinners ever since and he expects to remain on them
for the rest of his life. Plaintiff related that he has a heightened risk of harm from cuts or
bruises due to the blood thinners. Plaintiff also testified that he has type 2 diabetes.
        {¶4} Plaintiff recounted that soon after entering defendant’s custody in 2010, he
was assigned to the Allen Correctional Institution (ACI), where he received regular care
and treatment for his medical conditions, and at one point he suffered another blood clot
episode for which he ended up in an outside hospital. Plaintiff stated that the medical
Case No. 2014-00768                         -2-                                  DECISION


personnel at ACI issued him a lower bunk restriction around the time that he arrived
there, and that he continued to hold such a restriction throughout the entire time he
spent there; a copy of plaintiff’s long-term lower bunk restriction was admitted into
evidence as Plaintiff’s Exhibit 1.
       {¶5} Plaintiff related that defendant eventually transferred him to the Warren
Correctional Institution (WCI), where he was issued another lower bunk restriction and
accordingly assigned to a lower bunk in the 3A housing unit. According to plaintiff, he
subsequently was ticketed for having wine in his cell, and, as a result, he was moved to
the 3D housing unit, which was considered a “sanctions unit.”              It was plaintiff’s
testimony that after he reported to the 3D housing unit on October 24, 2013, he told
Corrections Officer Bridget Lee about his lower bunk restriction, and she consequently
made some effort to get him a lower bunk that was located in a four-man cell and was
occupied at that time by an inmate who was known by the nickname “Tight White.”
According to plaintiff, however, when Lee went to that cell and told that inmate that she
wanted him to move, the inmate became loud and argued with Lee, making clear that
he did not want to move.        From plaintiff’s recollection, Corrections Officer James
Weybright, who typically was also on duty during that shift, was not in the unit at that
particular time.   Plaintiff stated that Lee relented and came back to talk with him,
apparently at a two-man cell where she had initially assigned him to an upper bunk
when he first arrived in the unit. From plaintiff’s testimony, Lee basically ordered him at
that point to go ahead and take the upper bunk in that cell, so he entered the cell and
nothing further happened.
       {¶6} Plaintiff testified that the lower bunk in this cell was occupied at that time by
an inmate that he had never met before named Luck, who also had a lower bunk
restriction. Plaintiff denied telling Lee or anyone else that he was satisfied with the
upper bunk, and also denied that Lee or anyone else ever asked him to sign a form
Case No. 2014-00768                         -3-                                  DECISION


waiving his lower bunk restriction. Plaintiff testified that after he moved into the cell he
did not say anything about the matter to any staff members the rest of the day.
       {¶7} Plaintiff testified initially that he did go on to complain to approximately four
staff members at one time or another before the date of the accident, but they all
referred him to other employees and nothing happened. Plaintiff was cross-examined
about this in detail, however, and he acknowledged that he did not talk to his unit
manager nor his case manager, he never sought relief through the institutional
grievance process, he never used the institutional “kite” system to write to anyone about
this, and he never communicated with anyone in the medical department, where he
visited at least once a day for medication and other care and treatment, and which had
issued the lower bunk restriction.      Plaintiff recalled trying to say something to an
unidentified corrections officer or other employee during the second shift one day,
apparently about a lower bunk that plaintiff had seen opening up across the way, but
that individual just kept walking past the cell. Plaintiff also recalled another time when
the warden made rounds through the unit and he asked the warden about getting a
lower bunk, but the warden referred him to the unit manager or his case manager.
Plaintiff stated that the unit manager, a Ms. Battles, was “kind of mean” and apparently
that is why he did not talk to her about the bunk issue.
       {¶8} Plaintiff testified that in the early morning of November 18, 2013, while he
was asleep atop the upper bunk, he felt himself start to roll out of bed and he tried to
catch himself but was unable. Plaintiff stated that his head struck a metal locker box
when he fell, cutting his forehead near the right eye, and the rest of his body hit the
concrete floor. Plaintiff recounted that Luck alerted a corrections officer, and that when
the officer asked him to get up off the floor, he had trouble standing, so the officer told
him to wait until medical personnel arrived. Plaintiff recalled that medical personnel
came to the cell and took him to the medical department where he underwent an
Case No. 2014-00768                         -4-                                 DECISION


examination. A Medical Exam Report prepared at that time by a nurse was admitted
into evidence as Plaintiff’s Exhibit 10.
       {¶9} Corrections Officer Bridget Lee testified that at the time relevant to this case
she worked as a relief officer at various posts throughout WCI, and on Thursdays she
worked in the 3D housing unit. According to Lee, when plaintiff transferred into that
housing unit he did not notify her that he had a lower bunk restriction, nor did she
otherwise know about that. Lee stated that she assigned plaintiff to a two-man cell
where his new cellmate, an inmate named Roy Luck, had a lower bunk restriction,
meaning that plaintiff would have to take the upper bunk.
       {¶10} Lee testified that shortly after she made this assignment, the count officer
for that shift, Latonia Thomas, called and said that plaintiff had a lower bunk restriction
and that plaintiff should be assigned to a lower bunk in a certain four-man cell in the
same housing unit. Lee’s recollection is that when she started walking over to the four-
man cell to have one of the inmates there swap beds with plaintiff, plaintiff told her that
he was fine and would stay put. Lee denied that there was any argument between her
and any inmate from the four-man cell.
       {¶11} Lee testified that it was her understanding that an inmate could waive a
lower bunk restriction by signing an “against medical advice” form, and that when
plaintiff told her the upper bunk was acceptable to him, she told him he would need to
go to the medical department and sign one of those forms. Lee stated that when
plaintiff prepared to leave the unit later that day for “pill call,” a designated time when
inmates can visit the medical department to receive medication, she told plaintiff to sign
the form while he was there. Indeed, Lee recalled that when plaintiff returned, he told
her that he had done so. Lee stated that she did not call the medical department for
verification, nor did she ever see any documentation that plaintiff had signed the form.
Lee made a note in the unit logbook to document plaintiff’s move into the two-man cell,
Case No. 2014-00768                           -5-                               DECISION


but did not note anything about plaintiff waiving his lower bunk restriction. (Plaintiff’s
Exhibit 9.)
       {¶12} According to Lee, plaintiff never said anything to her about his bed
assignment after that time. Lee was certain that there were lower bunks available in the
housing unit between the time plaintiff moved there and when he fell.
       {¶13} Corrections Officer James Weybright testified that at the time relevant to
this case he worked as a relief officer at various posts throughout WCI, and that around
that time he and Lee worked the second shift together in the 3D housing unit at least
once a week. Weybright stated that he has no memory of plaintiff being transferred into
that housing unit, though, nor any memory of an inmate arguing with Lee around that
time. Weybright testified about a corrections officer’s responsibility to support his or her
partner, and that if he had been aware of an inmate disrespecting Lee he would have
gotten involved.
       {¶14} Latonia Thomas testified that at the time relevant to this case she worked
as the second shift count officer at WCI, meaning that she was responsible for tracking
inmate movement in and out of the institution, as well as the inmates’ placement and
bed assignments within the institution. Thomas recalled being involved with plaintiff’s
move into the 3D housing unit, explaining that she received a call from a Lieutenant
Tally with the Rules Infraction Board (RIB), notifying her that plaintiff was being
disciplined and needed to be moved to that housing unit, which was set aside for
inmates under disciplinary sanctions.       Thomas stated that she consequently made
arrangements for plaintiff to be transferred to that unit and she identified a two-man cell
for him in which an upper bunk was available. As Thomas described, there was a chart
in the count office to track inmates’ bed assignments, and there were stickers denoting
inmates with lower bunk restrictions. Thomas acknowledged that initially she failed to
notice that plaintiff had a lower bunk restriction.
Case No. 2014-00768                         -6-                                 DECISION


       {¶15} According to Thomas, after plaintiff had gone to the 3D housing unit and
been placed by Lee in the upper bunk of the two-man cell, Lee made her aware over
the phone that plaintiff had a lower bunk restriction. Thomas testified that there were no
lower bunks available in the 3D housing unit at that time, so she told Lee to go to one of
the transitional four-man cells, none of which were occupied by inmates with lower bunk
restrictions, and swap out any one of the inmates there.               Thomas specifically
remembered from the phone call, however, that none of the inmates in those four-man
cells wanted to move because they did not want to share a cell with inmate Luck, and it
was at that point when plaintiff told Lee that he preferred to remain in the two-man cell.
       {¶16} Thomas related that an inmate with a lower bunk restriction was permitted
to occupy an upper bunk only on the condition that he go to the medical department and
sign an “against medical advice” form to voluntarily waive the restriction. According to
Thomas, the practice was that the medical department would forward a copy of the
signed form to the count office within a few days. Thomas recalled from the phone
conversation that Lee told her plaintiff was going to go to the medical department and
sign one of those forms. But, Thomas testified that she was not aware of the count
office ever receiving a copy of any such form for plaintiff from the medical department.
       {¶17} Thomas stated that if plaintiff had insisted on having his lower bunk
restriction honored, for her part she would have found a way to make it work. Thomas
also stated that she was sure there were lower bunks that became available in the 3D
housing unit during the ensuing time in which plaintiff lived there.
       {¶18} Corrections Officer Brant Kendrick testified that at the time relevant to this
case he worked as a relief officer at various posts throughout WCI. Kendrick recalled
that a little after midnight on November 18, 2013, while he made rounds through the 3D
housing unit, he heard plaintiff’s cellmate knock on the door of their cell. Kendrick
testified that the cellmate advised him that plaintiff had fallen, and when he looked
inside he observed plaintiff lying on the floor. When he asked plaintiff whether he was
Case No. 2014-00768                         -7-                                DECISION


okay, Kendrick stated, plaintiff told him no. Kendrick also recalled seeing a red mark on
plaintiff’s face.   Kendrick testified that he contacted a supervisor who, in turn,
summoned medical personnel.          Kendrick stated that he waited at the cell for
approximately three to four minutes before one of the medical staff members arrived
and took plaintiff to the infirmary. According to Kendrick, he never had any contact with
plaintiff prior to this incident, but he noted that he worked the third shift, when inmates
are typically asleep.
       {¶19} Kimberly Mockabee testified that she is employed with defendant as the
institutional inspector at WCI, and that her duties include investigating inmate
grievances, among other things. Mockabee stated that she initiated an investigation
upon receiving a grievance that plaintiff submitted after the accident, and ultimately she
found that plaintiff had a valid lower bunk restriction and thus under defendant’s policy
he should have been assigned a lower bunk. As part of her investigation, Mockabee
recalled, she at least spoke with Thomas and the acting health care administrator for
WCI.    Mockabee testified that when she finished her investigation she prepared a
Disposition of Grievance form, as well as a separate report to the warden which she
prepared due to the fact that she was making a recommendation. (Plaintiff’s Exhibit 7,
8.)
       {¶20} “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.” Rose v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 04AP-1360, 2005-Ohio-3935, ¶ 9.
“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
Case No. 2014-00768                        -8-                                DECISION


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. 04AP-
177, 2004-Ohio-5545, ¶ 16. “Prisoners, however, are also required to use reasonable
care to ensure their own safety.” Nott v. Ohio Dept. of Rehab. & Corr., 10th Dist.
Franklin No. 09AP-842, 2010-Ohio-1588, ¶ 8.
      {¶21} Upon consideration of the evidence presented at trial, the magistrate
makes the following findings. Plaintiff’s medical issues made it foreseeable that if he
was assigned to an upper bunk and fell out, he could seriously injure himself, and for
that reason the medical personnel at the institutions where he was incarcerated
exercised their professional judgment and issued him long-term lower bunk restrictions
that remained in effect throughout his time in custody.
      {¶22} On October 24, 2013, the RIB imposed a disciplinary sanction on plaintiff
by ordering that he be moved to the 3D housing unit for six months. When Count
Officer Thomas received notification of the RIB’s decision, she failed to take notice of
plaintiff’s lower bunk restriction and she identified an upper bunk for him in a two-man
cell, which he would share with inmate Luck. When plaintiff arrived at the 3D housing
unit, Corrections Officer Lee told him to take the upper bunk that Thomas had identified.
Plaintiff told Lee that he had a lower bunk restriction, and this was confirmed to Lee
over the phone by Thomas. As a result, Lee went to a four-man cell in the unit and
asked an inmate known by the nickname Tight White, who occupied one of the lower
bunks, to move to the upper bunk in the two-man cell with inmate Luck. Lee’s partner,
Corrections Officer Weybright, was on duty but was not in the vicinity. The inmate
known as Tight White argued with Lee and it was clear to plaintiff that the inmate did not
wish to share a cell with inmate Luck. Indeed, Thomas’s testimony established that
Case No. 2014-00768                         -9-                                DECISION


none of the other inmates occupying the lower bunks were agreeable to such a move, in
particular because they did not want to live with inmate Luck.
      {¶23} The evidence tends to show that Lee merely asked inmates occupying
lower bunks to move rather than simply giving one of them a direct order to move and
insisting that they comply. It should not have been up for debate. Plaintiff was put in a
difficult position of either demanding over the vocal objections of other inmates that one
of them be moved and thereby putting himself at odds with them, or remaining with the
upper bunk to which he had already been assigned.           Under those circumstances,
plaintiff foreseeably could have faced negative consequences either way. Whether or
not Lee specifically ordered plaintiff to take the upper bunk, it is apparent that they had
some discussion after Lee failed to secure a lower bunk, and it appears that it resulted
in plaintiff tacitly accepting the upper bunk placement and diffusing any tension with the
other inmates. Contrary to defendant’s arguments, however, plaintiff cannot be said to
have freely chosen an upper bunk and assumed all risk, nor did he waive his right to a
lower bunk. Plaintiff also made some effort to try to obtain a lower bunk at a later date,
consistent with the fact that he had not chosen to waive his lower bunk restriction.
      {¶24} Defendant had a duty to provide plaintiff a lower bunk, as stated earlier,
and the evidence shows that defendant breached that duty. Defendant not only failed to
honor plaintiff’s lower bunk restriction at the time he was reassigned to the 3D housing
unit, or to at least promptly order another inmate to move as soon as the error was
discovered in a way that would not have pitted plaintiff against another inmate, but
defendant also failed to correct the error at any time before the accident even though
there were lower bunks that became available during that time. Plaintiff’s lower bunk
restriction remained in effect at all times, and even though the count office knew or
should have known about this it took no action to address plaintiff’s continued upper
bunk assignment.
Case No. 2014-00768                          -10-                                   DECISION


       {¶25} Plaintiff, however, also failed to exercise reasonable care for his own well-
being by not making a sufficient effort to try and obtain a lower bunk, despite more than
three weeks passing before the accident and the fact that he knew lower bunks were
coming available during that time. For certain, plaintiff did notify Lee of his lower bunk
restriction as soon as this matter arose. And, plaintiff’s testimony that he mentioned the
problem to the warden at some later date was credible, but plaintiff did not follow
through on the warden’s instruction to speak with the unit manager or the case
manager. Plaintiff had the ability to contact the unit manager and the case manager,
and he actually did so regarding another issue around that time, but he failed to raise
the bunk issue with them. It is apparent, particularly from plaintiff’s testimony on cross-
examination, that he cannot recall with any specificity who else he may have spoken
with. It seems that plaintiff at least attempted to speak with a corrections officer or
some other employee through the door of his cell during the second shift one day but
the employee kept walking by, although it is not clear whether that person even heard
plaintiff in the first place. It is clear that plaintiff did not attempt to communicate with any
staff members through the institutional kite system, nor did he file any complaint through
the grievance system prior to the accident.
       {¶26} Early on the morning of November 18, 2013, plaintiff had been asleep and
suddenly felt himself start to roll out of bed. Plaintiff tried to catch himself but was
unable. Plaintiff’s forehead struck a metal box and the rest of his body hit the concrete
floor. As a result, plaintiff suffered injuries as a natural and probable consequence of
both parties’ negligence. The precise nature and extent of plaintiff’s injuries are to be
addressed during the damages phase of this bifurcated proceeding.
       {¶27} Based upon the foregoing, and weighing plaintiff’s comparative negligence
against that of defendant, the magistrate finds that plaintiff has proven his claim of
negligence by a preponderance of the evidence. It is recommended that judgment be
Case No. 2014-00768                         -11-                                DECISION


entered in favor of plaintiff, with a 25 percent diminishment in any award for
compensatory damages.
        {¶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
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).




                                                ROBERT VAN SCHOYCK
                                                Magistrate

cc:
Richard F. Swope                              Christopher L. Bagi
6480 East Main Street, Suite 102              Assistant Attorney General
Reynoldsburg, Ohio 43068                      150 East Gay Street, 18th Floor
                                              Columbus, Ohio 43215-3130

Filed November 3, 2016
Sent to S.C. Reporter 12/15/16
