[Cite as Current v. Dept. of Rehab. & Corr., 2018-Ohio-4147.]




TERRY CURRENT                                          Case No. 2016-00488JD

        Plaintiff                                      Judge Patrick M. McGrath

        v.                                             JUDGMENT ENTRY

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

        Defendant

        {¶1} On March 20, 2018, the magistrate issued a decision recommending
judgment in favor of defendant. 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).” After receiving two extensions of time,
plaintiff timely filed his objections and the trial transcript on May 24, 2018. The court
granted defendant, the Ohio Department of Rehabilitation and Correction, leave to file a
response to plaintiff’s objections, and defendant timely filed its response on June 14,
2018.
        {¶2} In this case, plaintiff claims that while he was incarcerated in defendant’s
custody and control at London Correctional Institution (LCI), another inmate attacked
and injured him on March 25, 2011, due to the negligence of defendant.

        Objection 1: The Magistrate’s finding the record failed to establish, by
        actual or constructive notice, Plaintiff was in danger of physical attack is
        erroneous, not supported by the evidence and is contrary to law.
        {¶3} Plaintiff argues that the record in this case demonstrates that defendant had
actual, as well as constructive, notice that plaintiff was in danger because he was a
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known police informant. Defendant argues that plaintiff, nor any of the detectives or
investigators he worked with as an informant, told defendant that plaintiff felt threatened
or in fear for his safety at LCI.
       {¶4} While the court recognizes that plaintiff worked as an informant for law
enforcement while incarcerated, and his status as an informant may have placed him in
danger, there is no evidence that the attack on March 25, 2011, was related to plaintiff’s
status as an informant. Further, plaintiff did not identify who attacked him, and the two
inmates that he had active separation orders with were not incarcerated at LCI between
January 2010, when plaintiff returned to prison, and March 25, 2011, when plaintiff was
attacked. There is no evidence in the record that the March 25, 2011 attack on plaintiff
was related to plaintiff’s work as an informant.
       {¶5} Moreover, during plaintiff’s time as an informant, he was asked at least four
times whether he felt threatened, and each time he declined to ask for protective
custody. (Trial Transcript, p. 64, lines 11-22, p. 72, lines 10-15, p. 73, lines 10-17).
Defendant was not informed by plaintiff or anyone else that plaintiff was in danger at
LCI. Detective Juanita Vetter testified that she worked with plaintiff while he was an
informant, and that plaintiff’s sister expressed concern for the safety of plaintiff and
other relatives within the prison system approximately a dozen times prior to the attack
on March 25, 2011.       (Transcript, p. 21-22, lines 16-24, 1-24).   However, the court
agrees with defendant that Detective Vetter did not communicate any concerns
plaintiff’s sister may have had for plaintiff’s safety to LCI employees. Id. Detective
Vetter informed Matt Crisler, an LCI investigator, that plaintiff was providing information
to her, but never informed Mr. Crisler that plaintiff felt threatened or unsafe. As such,
plaintiff’s first objection is OVERRULED.
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       Objection 2: The Magistrate erred in not allowing Detective Vetter to
       answer an initial question concerning whether knowledge of a prisoner
       cooperating with law enforcement places the inmate in danger of physical
       attack in prison.
       {¶6} Plaintiff argues that Detective Vetter was not permitted to answer a question
on direct examination regarding whether knowledge of a prisoner cooperating with law
enforcement places an inmate in danger of physical attack in prison. Defendant claims
that the magistrate overruled a defense objection, and permitted Detective Vetter to
respond to the question from plaintiff’s counsel.
       {¶7} Beginning at page 23 of the trial transcript, plaintiff’s counsel asks Detective
Vetter the following question: “And you’re aware of the fact that if you’re known as – in
prison parlance as a snitch, that can place you in considerable danger?” Defense
counsel objects, and a discussion of the objection and question to Detective Vetter
continues from page 23 through page 31. At page 31, the magistrate states to plaintiff’s
counsel that he “can go ahead and solicit this opinion testimony.” (Trial Trans., p. 31,
lines 18-19). Defense counsel makes the same objection to the testimony, and the
magistrate allows the witness to respond.
       {¶8} Detective Vetter testified that she was “not exactly sure how to answer that
question. I’ve worked with a number of inmates and some of them are in jeopardy.
They don’t care if people know they’re informants, other people do. It’s a case-by-case
basis. So you’re asking me if just because you’re an informant, are you automatically in
jeopardy? I honestly don’t have an opinion about that.” The court finds that Detective
Vetter was permitted by the magistrate to answer the question, thus there is no error.
As such, plaintiff’s second objection is OVERRULED.
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       Objection 3: The Magistrate erred in finding there was insufficient
       evidence to establish prisoners at the London Correctional Institution were
       aware Plaintiff was an informant (a snitch).
       {¶9} Plaintiff argues that defendant knew that plaintiff was an informant for both
the Geauga and Logan County Sheriffs’ Offices because defendant’s staff arranged
conferences and visits for Sheriffs’ Detectives with plaintiff. Further, plaintiff argues that
inmates knew of plaintiff’s activities as an informant, evidenced by the fact that a City of
Urbana police report posted on a bulletin board in the prison library identified Current as
an informant. Defendant argues that plaintiff never set forth any evidence that the
inmates at LCI knew he was an informant.
       {¶10} The court agrees with defendant that there is not sufficient evidence in the
record to demonstrate that inmates at LCI knew he was an informant. There was no
evidence presented about the City of Urbana police report other than the fact it was
posted in the prison library. There is no evidence of how long the report was posted,
who posted it, or if other inmates saw the posting. As such, plaintiff’s third objection is
OVERRULED.

       Objection 4: The Magistrate erred in admitting Exhibits 3 and 4 for limited
       purposes, the document having been properly authenticated as well as
       containing statements against interest.
       {¶11} Plaintiff claims that the magistrate erred when he admitted plaintiff’s
Exhibits 3 and 4 for limited purposes. Plaintiff argues that these exhibits, letters written
by Carl Simmons, were properly authenticated and can be admitted without limitation
under Evid.R. 804(B)(3). This rule allows admission of hearsay evidence if it contains
statements against interest. However, as defendant argues, Evid.R. 804(B)(3) permits
an exception to the hearsay rule only if the declarant is unavailable. In this case, there
was no showing made that the declarant, Carl Simmons, was unavailable to testify at
trial. As such, plaintiff’s fourth objection is OVERRULED.
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       Objection 5: The Magistrate’s erred in excluding Plaintiff’s sister’s
       testimony concerning what she told Detective Levan concerning Plaintiff’s
       safety.
       {¶12} Plaintiff argues that the magistrate improperly sustained an objection
during Alice Hauser’s, plaintiff’s sister, testimony regarding her concerns about plaintiff’s
safety at LCI. In proffered testimony, Ms. Hauser testified that she expressed concerns
about the safety of plaintiff to Keith Levan and Juanita Vetter. Keith Levan was a
detective at the Logan County Sheriff’s Office and, as discussed above, Juanita Vetter
was a detective at the Geauga County Sheriff’s Office.
       {¶13} The court agrees with defendant that this evidence was not relevant, as
neither of these individuals are employees of defendant. Further, Detective Levan did
not testify at trial, and there was no evidence he communicated any of this information
to defendant. Plaintiff’s fifth objection is OVERRULED.

       Objection 6: The Magistrate erred when he excluded testimony regarding
       information Plaintiff provided Detective Vetter concerning a cellular phone
       possessed and used by Inmate Rosebrook while in the London
       Correctional Institution.
       {¶14} In his sixth objection, plaintiff argues that the magistrate erred when he
sustained objections “to questions concerning Plaintiff providing information to Detective
Vetter about an illegal cell phone use by Inmate Rosebrook which was passed on to
London by Detective Vetter.” (Objections, p. 17). A review of the trial transcript shows
that the magistrate sustained objections to this line of questioning on redirect
examination because it exceeded the scope of defendant’s cross-examination.
       {¶15} The court finds that the magistrate did not err in excluding this information.
Even if there was an error, the evidence shows that plaintiff was an informant while at
LCI, and defendant knew he was an informant.              This evidence was established
throughout trial, and in its response defendant states “there is no dispute that Current
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was an information for law enforcement, and DRC was aware of this.” (Response, p. 9).
As such, plaintiff’s sixth objection is OVERRULED.

         Objection 7: The Magistrate’s Decision is against the manifest weight of
         the evidence and is contrary to law.
         {¶16} Plaintiff generally argues that the evidence in this case supports only one
conclusion; that defendant is liable.       The court reviewed the trial exhibits, the
magistrate’s decision, and the trial transcript excerpts provided by plaintiff, and finds
that the magistrate did not err in his decision. As such, plaintiff’s seventh objection is
OVERRULED.
         {¶17} Upon review of the record, the magistrate’s decision, and plaintiff’s
objections, the court finds that the magistrate properly determined the factual issues
and appropriately applied the law. Therefore, plaintiff’s objections are OVERRULED
and 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 defendant. 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.




                                           PATRICK M. MCGRATH
                                           Judge

Filed September 12, 2018
Sent to S.C. Reporter 10/12/18
