[Cite as Vititoe v. S. Ohio Corr. Facility, 2011-Ohio-7049.]



                                                           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



CHARLES W. VITITOE

        Plaintiff

        v.

SOUTHERN OHIO CORRECTIONAL FACILITY

        Defendant

Case No. 2010-12800

Judge Joseph T. Clark
Magistrate Matthew C. Rambo

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

        {¶1} On November 2, 2011, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). Plaintiff did not file a response. The motion is now before the
court for a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Case No. 2010-12800                              -2-                                         ENTRY

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
        {¶4} Plaintiff is currently incarcerated at the Toledo Correctional Institution (ToCI)
and was previously in the custody and control of defendant pursuant to R.C. 5120.16.
Plaintiff alleges that he was attacked and severely injured by another inmate and that
defendant had notice of the impending attack.1
        {¶5} Defendant is not liable for the intentional attack on one inmate by another
unless it has adequate notice, either actual or constructive, of an impending attack upon
that specific inmate. Hughes v. Ohio Dept. of Rehab. & Corr., Franklin App. No. 09AP-
1052, 2010-Ohio-4736, ¶14-15; see also Mitchell v. Ohio Dept. of Rehab. & Corr.
(1995), 107 Ohio App.3d 231, 235; Metcalf v. Ohio Dept. of Rehab. & Corr., Franklin
App. No. 01AP-292, 2002-Ohio-5082. The distinction between actual and constructive
notice is in the manner in which notice is obtained rather than in the amount of
information obtained.       Whenever the trier of fact is entitled to find from competent
evidence that information was personally communicated to or received by the party, the
notice is actual. Constructive notice is that notice which the law regards as sufficient to
give notice and is regarded as a substitute for actual notice. In re Estate of Fahle
(1950), 90 Ohio App. 195, 197-198. In the case of inmate-on-inmate violence, notice is
lacking where defendant does not have any knowledge of prior problems, disputes, or
altercations between the victim and the assailant and institutional staff have no
indication that an attack is going to occur. Elam v. Ohio Dept. of Rehab. & Corr.,
Franklin App. No. 09AP-714, 2010-Ohio-1225, ¶11, citing Doss v. Ohio Dept. of Rehab.
& Corr. (Mar. 28, 2000), Franklin App. No. 99AP-661, and McDonald v. Ohio Dept. of
Rehab. & Corr., Franklin App. No. 02AP-735, 2003-Ohio-513.



        1
           On March 29, 2011, the court dismissed both plaintiff’s claim that defendant was negligent in
failing to place him in protective custody and his “deliberate indifference” claim.
Case No. 2010-12800                         -3-                                   ENTRY

       {¶6} In support of its motion, defendant filed the affidavits of L. Mahlman and
Tara Pinski. Mahlman states:
       {¶7} “1.   I am employed by the Ohio Department of Rehabilitation and
Correction (DRC) as the Institutional Inspector at [defendant].
       {¶8} “2.   I have personal knowledge of the facts contained in this Affidavit and
am familiar with the underlying facts of this lawsuit, as well as the pleadings filed in the
Court of Claims Case No. 2010-12800.
       {¶9} “3.   Plaintiff * * * is an inmate in the custody of DRC and he was
incarcerated at [defendant] at all times relevant to this lawsuit.
       {¶10} “4. DRC records show that [defendant’s] staff had no prior notice of an
impending attack by Inmate Mosley #523-521. Had [defendant] had any notice of any
such impending attack, precautions would have been taken to protect [plaintiff’s] safety.
       {¶11} “5. DRC [and defendant] diligently guards against potential hazards posed
to inmates, including altercations between inmates, and, at all times relevant to this
lawsuit, all employees were following the standard procedures for protecting inmates.”
       {¶12} Pinski states:
       {¶13} “1   I am employed by [DRC] as the institutional inspector at [ToCI].
       {¶14} “2. I have personal knowledge of the facts contained in this Affidavit and
have reviewed the pleadings filed in Court of Claims Case No. 2010-12800. Moreover, I
have personally reviewed DRC’s records regarding [plaintiff].
       {¶15} “3. [Plaintiff] is an inmate in the custody of DRC and is currently
incarcerated at ToCI. His inmate file is also located at ToCI.
       {¶16} “4. DRC records pertaining to [plaintiff] show that DRC had no prior notice
of any impending issue between [plaintiff] and the inmate who attacked him as alleged
in the Complaint in this matter.
       {¶17} “5. DRC diligently guards against potential hazards posed to inmates,
including altercations between inmates, and, at all times relevant to this lawsuit, all
employees were following the standard procedures for protecting inmates.”
Case No. 2010-12800                       -4-                                   ENTRY

          {¶18} Plaintiff’s complaint is unclear as to the date he was attacked, who
attacked him, and how defendant was on notice of such an attack. Based upon the
undisputed affidavit testimony presented by defendant, the court finds that defendant
did not have notice of an impending attack on plaintiff and is therefore not liable for
plaintiff’s injuries. Accordingly, defendant’s motion for summary judgment is GRANTED
and 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.



                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge

cc:


Ashley L. Oliker                            Charles W. Vititoe, #475-064
Emily M. Simmons                            Toledo Correctional Institution
Assistant Attorneys General                 P.O. Box 80033
150 East Gay Street, 18th Floor             Toledo, Ohio 43608
Columbus, Ohio 43215-3130

MCR/dms
Filed December 19, 2011
To S.C. reporter March 20, 2012
