[Cite as Moore v. Ohio State Penitentiary, 2010-Ohio-4973.]

                                                        Court of Claims of Ohio
                                                                           The Ohio Judicial Center
                                                                   65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                    614.387.9800 or 1.800.824.8263
                                                                               www.cco.state.oh.us




WARD L. MOORE, JR.

       Plaintiff

       v.

OHIO STATE PENITENTIARY, et al.

       Defendants
       Case No. 2007-09658

Judge Joseph T. Clark
Magistrate Robert Van Schoyck

JUDGMENT ENTRY




        {¶ 1} On March 11, 2010, the magistrate issued a decision recommending
judgment for defendants, the Ohio State Penitentiary (OSP) and the Ohio State
Highway Patrol (OSHP).
        {¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).”
        {¶ 3} On March 23, 2010, plaintiff filed his objections. On April 1, 2010, the
court issued an entry directing plaintiff to provide the court with proof of service of the
objections upon defendants. On June 17, 2010, the court issued an entry granting
plaintiff’s motion for an extension of time to provide proof of service. On July 26, 2010,
defendants filed a response to plaintiff’s objections.
        {¶ 4} At all times relevant to this action, plaintiff was an inmate in the custody
and control of OSP pursuant to R.C. 5120.16. Plaintiff brought this action alleging that
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he was assaulted by an employee of OSP, Doug Carter, then a corrections lieutenant,
during an altercation between inmates and staff on November 8, 2007. The incident
occurred at pod A7, where plaintiff resided with seven other inmates. One of those
inmates, Ernie Marshall, initiated the conflict by complaining to Corrections Officer (CO)
Gordon and becoming aggressive about a “shakedown” that had been conducted of his
cell. Other inmates who had congregated in a common area became involved and
began shouting in support of Marshall. Assistance was summoned, and Marshall was
removed from the pod. However, other inmates continued their shouting and refused to
return to their cells. Plaintiff was one of the inmates who refused to return to his cell.
Ultimately, Carter took plaintiff to the ground and handcuffed him. Plaintiff has alleged
that Carter used excessive force against him, and that OSHP was negligent in its
investigation of the occurrence.
      {¶ 5} The magistrate found that Carter used lawful force against plaintiff in
accordance with Ohio Adm.Code 5120-9-01(C) and that such force was reasonable
under the circumstances.     Although there was conflicting testimony, the magistrate
found that plaintiff’s version of the incident lacked credibility and noted that plaintiff
admitted that he had refused direct orders to return to his cell and had argued with
officers in the context of a dangerous altercation between multiple inmates and staff in a
maximum security prison. The magistrate concluded that plaintiff failed to prove his
assault claim by a preponderance of the evidence. With respect to his claim against
OSHP, the magistrate found that plaintiff failed to present any evidence that would
support such a claim.
      {¶ 6} Plaintiff has filed multiple objections to the magistrate’s recommendation.
His fourth, fifth, sixth, seventh, eighth, tenth, eleventh, thirteenth, fourteenth, and
sixteenth objections concern factual findings with regard to credibility of witnesses and
details of the occurrence. Civ.R. 53(D)(3)(b)(iii) provides in pertinent part that: “[a]n
objection to a factual finding, whether or not specifically designated as a finding of fact
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under Civ. R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence
submitted to the magistrate relevant to that finding or an affidavit of that evidence if a
transcript is not available.” Plaintiff did not file either a transcript or an affidavit of the
relevant evidence as required by Civ.R. 53, therefore, the fourth, fifth, sixth, seventh,
eighth,   tenth,    eleventh,    thirteenth,    fourteenth,   and   sixteenth    objections   are
OVERRULED.
       {¶ 7} In plaintiff’s first objection, plaintiff argues that the magistrate erred by
allowing one of defendants’ employees to testify at trial after having heard the testimony
of all of the previous witnesses. To the extent that plaintiff contends that the magistrate
violated a pretrial order requiring the separation of witnesses, the record contains no
such order and in the absence of a transcript the court is unable to determine whether
such an order was made by the magistrate just prior to trial. Moreover, even if such an
order had been issued, the rules of evidence do not authorize exclusion of “an officer or
employee of a party that is not a natural person designated as its representative by its
attorney.” See Evid.R. 615(B)(2). Without a transcript, the court is unable to determine
whether    the     employee     at   issue     was   defendant’s    designated   representative.
Accordingly, plaintiff’s first objection is overruled.
       {¶ 8} In plaintiff’s ninth objection, plaintiff argues that defendant failed to
introduce certain videotaped evidence at trial. The record reveals that on April 2, 2008,
the court granted plaintiff’s motion to preserve a videotape allegedly made of the
incident in question “to the extent that such evidence exists,” but the record does not
reveal whether such evidence exists and, if it does, whether plaintiff demanded such
evidence in discovery. The absence of a trial transcript further handicaps the court in
determining any merit contained within plaintiff’s objection. Accordingly, plaintiff’s ninth
objection is OVERRULED.
       {¶ 9} Plaintiff’s second, third, fifteenth, and seventeenth objections take issue
with the magistrate’s ruling on OSP’s motion to quash subpoenas issued for three of its
employees, one former employee, and one inmate. The magistrate denied the motion
Case No. 2007-09658                           -4-                       JUDGMENT ENTRY

but found that the subpoenas were unenforceable.             The magistrate noted and the
record confirms that plaintiff failed to tender the appropriate witness fees and provided
incorrect service addresses for both the former employee and inmate. Therefore, the
magistrate did not err in determining that the subpoenas were not properly served in
accordance with Civ.R. 45(B).
         {¶ 10} Finally, plaintiff’s twelfth objection asserts that he was entitled to a free
transcript. The court addressed that issue in its April 1, 2010 entry, wherein it held that
there is no provision in the law for a free transcript to civil litigants. Therefore, plaintiff’s
twelfth objection is OVERRULED.
         {¶ 11} Having overruled each of plaintiff’s objections, the court adopts the
magistrate’s decision and recommendation as its own, including findings of fact and
conclusions of law contained therein. Judgment is rendered in favor of defendants.
Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice
of this judgment and its date of entry upon the journal.



                                            _____________________________________
                                            JOSEPH T. CLARK
                                            Judge

cc:


Peter E. DeMarco                                Ward L. Moore, Jr., #408-496
Stephanie D. Pestello-Sharf                     Southern Ohio Correctional Facility
Assistant Attorneys General                     P.O. Box 45699
150 East Gay Street, 18th Floor                 Lucasville, Ohio 45699
Columbus, Ohio 43215-3130

LH/cmd
Filed September 28, 2010
To S.C. reporter October 12, 2010
