[Cite as Whitmore v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-3218.]

                                                       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




RICHARD WHITMORE

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2008-10366

Judge Clark B. Weaver Sr.
Magistrate Matthew C. Rambo

JUDGMENT ENTRY




        {¶ 1} On March 3, 2010, the magistrate issued a decision recommending
judgment for plaintiff as to the first cause of action in plaintiff’s complaint and for
defendant as to the second and third causes of action.
        {¶ 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).” On March 10, 2010, plaintiff filed a motion “to extend time to secure” a
transcript and to file objections.         Defendant filed a memorandum contra addressing
plaintiff’s request for separate damages trials.
        {¶ 3} On March 18, 2010, the court issued an entry granting plaintiff an
extension of time until April 19, 2010, to file objections to the magistrate’s decisions. On
April 15, 2010, plaintiff filed his objections, an affidavit of indigency, and an affidavit of
evidence pursuant to Civ.R. 53(D)(3)(b)(iii).
        {¶ 4} Civ.R. 53(D)(3)(b)(iii) provides, in part:
Case No. 2008-10366                          -2-                        JUDGMENT ENTRY

       {¶ 5} “An objection to a factual finding, whether or not specifically designated as
a finding of fact 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.” (Emphasis added.)
       {¶ 6} However, Civ.R. 53 “does not provide the objecting party with an option to
file either a transcript or an affidavit.    An affidavit may be employed only where a
transcript of the proceedings is not available. A transcript is not unavailable merely
because the original stenographic notes have not been transcribed or because a party
elects not to order a transcript of the proceedings. Where a transcript can be produced,
the transcript is available and must be provided to the trial court in support of objections
to a magistrate’s decision.” Gladden v. Grafton Correctional Inst., Franklin App. No.
05AP-567, 2005-Ohio-6476.
       {¶ 7} Plaintiff does not allege that a transcript of proceedings in this case is
“unavailable” other than his assertion that he cannot afford to pay for it. Accordingly,
plaintiff’s affidavits of evidence and indigency filed on April 15, 2010, are STRICKEN
from the record.
       {¶ 8} Plaintiff asserts that the magistrate erred in his factual findings with regard
to both plaintiff being required to use a top bunk and the credibility of witnesses.
However, those objections are not supported by a transcript of the relevant evidence as
required by Civ.R. 53 and are therefore OVERRULED.
       {¶ 9} Plaintiff also asserts that the magistrate erred in concluding that defendant
was not liable to plaintiff for injuries plaintiff sustained as a result of being handcuffed for
approximately six hours.        Plaintiff contends that defendant is necessarily liable
inasmuch as defendant chose to discipline CO Goodrich for “losing tools,” in connection
with the incident. The magistrate rejected plaintiff’s argument and for the reasons set
forth in the magistrate’s decision, this objection is not well-taken.
Case No. 2008-10366                          -3-                     JUDGMENT ENTRY

          {¶ 10} The court determines that there is no error of law or other defect evident
on the face of the magistrate’s decision. Therefore, 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 the plaintiff on his first claim of
negligence and judgment is rendered in favor of defendant on the remaining claims.
The case will be set for trial on the issue of damages.



                                           _____________________________________
                                           CLARK B. WEAVER SR.
                                           Judge

cc:


Douglas R. Folkert                             Richard F. Swope
Assistant Attorney General                     6480 East Main Street, Suite 102
150 East Gay Street, 18th Floor                Reynoldsburg, Ohio 43068
Columbus, Ohio 43215-3130

KAH/cmd
Filed June 8, 2010
To S.C. reporter July 7, 2010
