[Cite as McCreery v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-2873.]




NICHOLAS C. MCCREERY                                  Case No. 2019-00079JD

       Plaintiff                                      Magistrate Gary Peterson

       v.                                             DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant

        {¶1} Plaintiff, an inmate in the custody and control of defendant, Ohio
Department of Rehabilitation and Correction (ODRC), at the Warren Correctional
Institution (WCI), brings this action for negligence arising from an alleged attack upon
him by fellow inmates. The issues of liability and damages were not bifurcated, and the
case proceeded to trial.
        {¶2} At trial, plaintiff, who has been incarcerated since 2009, testified that he
transferred from the Chillicothe Correctional Institution to the Lebanon Correctional
Institution (LeCI) approximately one year before he was attacked. Plaintiff described
LeCI as a “violent” prison where fights occur daily. Plaintiff related that within a couple
of days of arriving at LeCI, several inmates approached him and demanded that he pay
a fee to use the telephone, jpay machine, or access his commissary. Plaintiff stated
that the inmates belong to a prison gang known as the gangster disciples, or the GDs,
and that the gang was led by an inmate named Charles Reed, aka Chuck. Plaintiff
related that the GDs, who were porters in the unit, controlled the housing block and that
he commenced paying Reed for access to the telephone, jpay machine, and
commissary. Reed and the GDs apparently increased their demands of money and
favors over the course of the year.
        {¶3} Plaintiff testified that Reed and the GDs “got into trouble” and were moved
out of the block. Plaintiff related that after Reed moved out, other inmates, whom he
Case No. 2019-00079JD                      -2-                                DECISION


suspected to be affiliated with the GDs, frequently approached him demanding money,
commissary items, or other favors. Plaintiff stated that he subsequently stopped paying
the GDs and Reed. Plaintiff testified that because he previously paid Reed to use the
telephone, Reed had his wife’s telephone number and his wife began to receive
menacing text messages demanding money and threatening to do harm to plaintiff if the
demands were not met. Plaintiff asserted that he believed that things were about to “get
bad.”
        {¶4} Plaintiff testified that because of the increased pressure, he discretely
approached correction officer Johnson. Plaintiff explained that he needed to discuss
the situation discretely to not alert any inmates that he may be “snitching.” According to
plaintiff, he provided Johnson “the details.” Plaintiff added that he informed Johnson
that he was “going to get jumped.” Plaintiff clarified that he identified Charles Reed as
the inmate responsible for putting a “hit” on him.       Plaintiff testified that Johnson
responded by “laughing it off” and indicated that it was “above his pay grade.” Johnson
apparently added that plaintiff needed to discuss the situation with the sergeant.
Plaintiff testified that the following day, the sergeant was making rounds and that he
discretely approached the sergeant to discuss the situation. Plaintiff stated that he
informed the sergeant that the inmates who were moved out of the cell block were now
“coming to get” him because he refused to pay them. According to plaintiff the sergeant
responded by stating “man up and fight or fuck.”
        {¶5} Plaintiff testified that on October 20, 2018, the inmates in his block were
released to chow at approximately 6:00 p.m. Plaintiff related that as he commenced
heading to chow, he heard an inmate named Ziruolo call out “Hey, Nick. Hold up.”
Plaintiff added that as soon as he reached the second range landing, which was
apparently out of security camera view and out of view of the correction officers, he felt
a stinging sensation on the side of his face and his ears started ringing.        Plaintiff
attempted to rapidly descend the stairs, but when he reached the bottom, plaintiff did
Case No. 2019-00079JD                       -3-                                 DECISION


not see a correction officer at the desk.      At that moment, plaintiff decided that he
needed to fight back to protect himself and commenced fighting Ziruolo, whom he
believed was trying to hold him back.       Plaintiff stated that he subsequently heard
correction officers order the inmates to get on the ground. Plaintiff believed that multiple
inmates were involved with the attack, but he was unsure of their identities. Plaintiff
was also unable to identify the weapon used in the attack and he was not sure who was
responsible for the cuts to his face as there were multiple inmates near him when he
was struck in the face.
       {¶6} Following the attack, plaintiff was escorted to the infirmary for medical
treatment and thereafter transported to a local emergency room for additional medical
care. Plaintiff received 10 stiches in his face for two cuts. Plaintiff now has permanent
scaring because of the attack. Plaintiff did not detail any other damage that he suffered
due to the attack.
       {¶7} After plaintiff returned from the emergency room, he was placed in
segregation.   Plaintiff relates that he was in the same segregation unit as Ziruolo.
Plaintiff remained in segregation for nine days. At that time, plaintiff stated that he was
still unware of who, in addition to Ziruolo, was responsible for the attack, and that
inmate porters would stop by his cell and tell him that he needed to deny that he knew
anything about the attack.        Plaintiff thereafter completed paperwork requesting
protective custody.       Rather than grant plaintiff protective custody, plaintiff was
transferred from LeCI to WCI.
       {¶8} Plaintiff acknowledged that at no point prior to the attack did he ever write a
kite, informal complaint resolution, or grievance to anyone at ODRC regarding either a
need to be protected from an attack or a request for protective custody.            Plaintiff
explained that he did not do so because if he had, then the GDs or Reed would have
discovered that he “snitched,” which would have put his safety in jeopardy. Plaintiff also
completed a voluntary statement following the attack.            (Defendant’s Exhibit B.)
Case No. 2019-00079JD                        -4-                                   DECISION


Nowhere in the voluntary statement does plaintiff state that he informed anyone of an
impending attack prior to October 20, 2018.
       {¶9} Matthew Hansford testified that he has been employed at LeCI for 13 years
as both a correction officer and now a sergeant, a position he held in October of 2018.
Hansford related that he was the sergeant responsible for K block, where plaintiff was
assigned. Hansford described his duties as consisting of overseeing the inmates and
assisting them in any problems they may have.           Hansford explained that there are
several ways an inmate may contact him to report a problem: speaking with him during
daily round checks; sending kites to him through the kite system; and sliding kites under
the door to his office.
       {¶10} Hansford testified that plaintiff never reported to him that he was in fear of
an attack by another inmate and never asked to be moved out of the unit. Hansford
denied telling plaintiff to fight like a man or that nothing could be done to assist plaintiff.
Hansford added that plaintiff never sent a kite regarding a fear of being attacked and
that while performing rounds, he never talked to plaintiff about his fear of being
attacked. Hansford maintained that if an inmate states he is in fear for his safety, he
starts the paperwork for protective custody and that moving an inmate in that situation
can happen immediately. Hansford added that he does not fail to act when an inmate
claims he may be attacked because an inmate fight can compromise the safety of staff
members.
       {¶11} Jason Snyder testified that he is employed by ODRC as a correction officer
at LeCI and was so employed as the block officer in K block in October 2018. While
Snyder recalled seeing plaintiff in the block, he denied ever discussing with plaintiff
anything related to an impending attack by other inmates. Snyder explained that when
an inmate claims his safety is in danger, Snyder will contact a case manager.
       {¶12} Snyder recalled that K Block was being released for chow on October 20,
2018, when the attack involving plaintiff occurred. Snyder stated that he was positioned
Case No. 2019-00079JD                       -5-                                DECISION


in front of the officer’s desk, ensuring that the inmates were heading to chow. Snyder
stated that he looked up and saw plaintiff and inmate Ziruolo fighting. Snyder reported
that other officers disrupted the affray within 10 seconds. Snyder wrote an incident
report documenting the event. (Defendant’s Exhibit D.)
          {¶13} Daniel Gearhart testified that he has been employed by ODRC at LeCI and
has held the position of a lieutenant for more than 10 years. Gearhart stated that his
duties include safeguarding inmate movement between blocks and supervising other
officers and inmates. Gearhart testified that plaintiff never reported to him that he was
in fear for his safety and that he never received a kite from plaintiff about any impending
attack.     Gearhart added that if plaintiff had made such a claim, he would have
immediately placed him in limited privilege housing. Gearhart observed the altercation
between plaintiff and Ziruolo. Gearhart reported that he ordered the inmates to stop
and that they complied with his order.      Gearhart estimated that correction officers
responded within seconds of when they were first observed fighting on the stairwell.
Gearhart added that no photographs were taken because of the amount of bleeding
plaintiff was experiencing. Gearhart recalled that later that day a female arrived at the
prison and demanded to speak with him about the attack. Gearhart later completed an
incident report documenting the events.
          {¶14} Cory Krabbe testified that he has been employed by ODRC at LeCI for
seven years, although he has held the position of case manager for the previous four
years.      Krabbe stated that his duties include conducting investigations related to
protective custody requests.      Krabbe explained that inmates may directly request
protective custody, they may request it from a correction officer, or they may submit the
request by kite. Krabbe added that the request could be made privately by the inmate
by depositing the kite in the kite box and that there is no requirement an inmate must
meet before he may request protective custody.
Case No. 2019-00079JD                        -6-                             DECISION


       {¶15} Krabbe testified that plaintiff never requested protective custody or a bed
move prior to October 20, 2018. Krabbe added that he did not notice plaintiff in the
block until this incident and that plaintiff requested protective custody on October 26,
2018, which was after he was attacked. Krabbe reported that plaintiff was transferred to
a different institution rather than receive protective custody.
       {¶16} “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.” Jenkins
v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-787, 2013-Ohio-5106, ¶
8. “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
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.
       {¶17} “When one inmate attacks another inmate, ‘actionable negligence arises
only where prison officials had adequate notice of an impending attack.’” Skorvanek v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 17AP-222, 2018-Ohio-3870, ¶ 29,
citing Metcalf v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 01AP-292, 2002-
Ohio-5082, ¶ 11; Watson v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-
606, 2012-Ohio-1017, ¶ 9, (“The law is well-settled in Ohio that ODRC is not liable for
the intentional attack of one inmate by another, unless ODRC has adequate notice of an
impending assault.”). “‘Whether ODRC had or did not have notice is a question that
Case No. 2019-00079JD                       -7-                                 DECISION


depends on all the factual circumstances involved.’” Pate v. Ohio Dept. of Rehab. &
Corr., 10th Dist. Franklin No. 18AP-142, 2019-Ohio-949, ¶ 12, quoting Frash v. Ohio
Dept. of Rehab. & Corr., 10th Dist. Franklin No. 14AP-932, 2016-Ohio-3134, ¶ 11.
       {¶18} “Notice may be actual or constructive, the distinction being the manner in
which the notice is obtained rather than the amount of information obtained.” Lucero v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-288, 2011-Ohio-6388, ¶ 18.
“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.” Hughes v. Ohio Dept. of Rehab. & Corr.,
10th Dist. Franklin No. 09AP-1052, 2010-Ohio-4736, ¶ 14.
       {¶19} Upon review of the evidence, the magistrate finds that plaintiff failed to
prove his claim by a preponderance of the evidence. There is no dispute that plaintiff
was attacked by inmates shortly after his block was released to evening chow on
October 20, 2018. During the attack, an unknown inmate used an unidentified weapon,
resulting in cuts to plaintiff’s face that required stitches at a nearby hospital. Plaintiff
identified inmate Ziruolo as one of the inmates responsible for the attack, although he
was unsure of the role Ziruolo played.
       {¶20} At no point prior to the attack on October 20, 2018, did plaintiff write any
kite, informal complaint resolution, grievance, or other written correspondence to staff
members for ODRC indicating that he was in fear for his personal safety. Indeed,
plaintiff acknowledged as much explaining that he was concerned such a method of
communication would result in other inmates labeling him a snitch.
       {¶21} Plaintiff asserted that he verbally notified a correction officer and a
sergeant that he feared an impending attack upon his person. Plaintiff explained that he
informed Johnson and a sergeant that GD members and Reed were pressuring him to
pay to access basic inmate services and had a “hit” out on him. Allegations that plaintiff
Case No. 2019-00079JD                       -8-                                 DECISION


expressly informed defendant’s staff about an impending attack upon him are not
entirely credible. As noted above, there is no contemporaneous written documentation
where plaintiff indicated that he was in fear of an impending attack by another inmate.
Furthermore, after the attack, plaintiff wrote a voluntary statement documenting the
events that preceded the attack, but he did not include any indication that he ever
informed anyone of an impending attack upon his person. (Defendant’s Exhibit B.)
Moreover, as plaintiff indicated in his testimony, he was concerned he would be labeled
a snitch if he wrote to or spoke with defendant’s staff members about his difficulties with
Reed and the GDs.       Therefore, it seems more likely that plaintiff never expressly
informed defendant’s staff members that he feared an impending attack upon his
person, even though he may have vaguely discussed general difficulties he was having
at that time with Reed and the GDs.        In short, it was not established that plaintiff
informed defendant’s staff that he feared an impending attack upon him.
       {¶22} Assuming plaintiff did inform defendant’s staff members about the
difficulties he was having with Reed and the GDs, such evidence, standing alone, does
not support a conclusion that defendant had adequate notice of an impending attack
upon plaintiff by Ziruolo and several unknown inmates. Baker v. Dept. of Rehab. &
Corr., 28 Ohio App. 3d 99, 502 N.E.2d 261 (10th Dist.1986) (Vague statements about a
need to be moved after being slapped in the face by another inmate where the plaintiff-
inmate did not directly express his fear of an impending assault or expressly request
protective custody, were not sufficient to constitute adequate notice of an impending
attack.). Additionally, plaintiff was unable to identify the inmates involved in the attack,
except for Ziruolo—an inmate whom plaintiff never claimed to have mentioned to
defendant’s staff prior to the attack. There is no doubt that plaintiff never informed
anyone that he feared an attack by Ziruolo or the other unidentified inmates. See
Williams v. Southern Ohio Corr. Facility, 10th Dist. Franklin No. 89AP-1411, 67 Ohio
App.3d 517, 526 (“If [the attack] was a surprise to [the inmate], how could it be
Case No. 2019-00079JD                          -9-                               DECISION


foreseeable to prison officials?”). In addition, it was not established that Ziruolo was
associated with Reed or the GDs and that defendant knew of that association such that
it would be foreseeable that Ziruolo or the other unknown inmates would attack plaintiff.
Furthermore, plaintiff was not sure Ziruolo was responsible for the cuts to his face,
which were the only injuries plaintiff identified at the trial.
       {¶23} Moreover, there is no evidence that Ziruolo and plaintiff had a hostile
relationship or that defendant knew of any hostility between the two. Likewise, there is
no evidence that Ziruolo has a history of violence against inmates such that defendant
should have known that he was likely to attack plaintiff. In short, plaintiff did not present
evidence that defendant had adequate notice of an impending attack upon his person
by Ziruolo and several unknown inmates.
       {¶24} Finally, it should be noted that plaintiff’s complaint contains a claim
concerning lost property related to the attack. Plaintiff did not present any evidence for
the magistrate to consider.
       {¶25} Based upon the foregoing, the magistrate finds that plaintiff failed to prove
his claims by a preponderance of the evidence. Therefore, it is recommended that
judgment be entered in favor of defendant.
       {¶26} 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).
Case No. 2019-00079JD          -10-            DECISION



                               GARY PETERSON
                               Magistrate
Filed March 31, 2020
Sent to S.C. Reporter 5/8/20
