[Cite as Myers v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-3862.]




CRAIG MYERS                                           Case No. 2019-00261JD

       Plaintiff                                      Magistrate Scott Sheets

       v.                                             DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant
       {¶1} Plaintiff is an inmate in the custody and control of defendant, Ohio
Department of Rehabilitation and Correction (ODRC), at the Allen-Oakwood
Correctional Institution (AOCI). He brings this negligence action based on an assault by
a fellow prisoner. More specifically, plaintiff’s complaint asserts that his cellmate at the
time, Brock Daniels (Daniels), assaulted him on July 4, 2017. Plaintiff asserts that, prior
to the assault, he notified two corrections officers that he was going to be assaulted. He
further alleges that a corrections officer read a note plaintiff authored such that other
inmates could hear the contents of the note, which resulted in the assault by Daniels.
Plaintiff alleges that ODRC acted negligently in reading the note out loud and in failing
to protect him from Daniels.
        {¶2} The case proceeded to trial at AOCI.                  In addition to his own testimony,
plaintiff presented the testimony of maintenance repair worker Danny Owens, inmate
Michael Simonson, correction officer Angela Martin, and state trooper David Schultz.
ODRC presented the testimony of corrections officers David Ashby and Matthew
Giddens. For the following reasons, the magistrate finds plaintiff proved his claim by a
preponderance of the evidence and recommends judgment in plaintiff’s favor.




Findings of Fact
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       {¶3} The magistrate makes the following factual findings and, to a degree,
explains the evidentiary bases underlying the findings. In citing to particular testimony
as supporting a factual finding, the magistrate found it credible based on first hand
observation.
       {¶4} Brock Daniels assaulted plaintiff on July 4, 2017. In addition to plaintiff’s
testimony, Simonson, who resided in the same housing unit as plaintiff and was present
on July 4, 2017, saw plaintiff emerge from his cell bloody in the face. In addition to
Simonson’s testimony, the evidence established that Trooper Schultz’s investigation led
to criminal assault charges being filed against Daniels.
       {¶5} Plaintiff paid no medical bills but did suffer temporary injuries, specifically
abrasions and swelling on his head and face as a result of Daniels’ assault. Owens
testified that, while present at plaintiff’s Rules Infraction Board (RIB) hearing shortly
after the assault, he observed injuries to plaintiff’s face as well as a boot print on the
right side of plaintiff’s face.   Schultz, who investigated Daniels’ assault of plaintiff,
testified he reviewed photos of plaintiff’s injuries which depicted a swollen forehead,
abrasions, red marks, and a missing tooth. The photos themselves were not presented
and plaintiff presented no evidence, other than Owens’ testimony, connecting the
conditions depicted in these photographs to the assault.
       {¶6} Schultz also testified that plaintiff’s injuries had mostly healed by the time he
met with him, which occurred a few weeks after the assault. Plaintiff did not present any
medical records or other documentary evidence which demonstrated the extent or
severity of his injuries. He presented no medical testimony and failed to describe his
injuries. Plaintiff presented no evidence of medical diagnosis or treatment.
       {¶7} Inmates, including Daniels, overtly threatened plaintiff prior to the assault by
Daniels, during which time an unknown number of corrections officers were present in
the housing unit and, at times, near plaintiff. Plaintiff and Simonson testified regarding
Case No. 2019-00261JD                         -3-                                 DECISION


these threats as well as plaintiff’s attempt to communicate with corrections officers
Naughten and Woods.
       {¶8} Plaintiff failed to establish that corrections officers heard the threats by
Daniels or other inmates. The only testimony on the issue came from Simonson who
testified that officers should have been aware of the threats because they were obvious
and because, in the case of Daniels, an unspecified officer was fifteen feet away when
Daniels threatened plaintiff. However, even Simonson admitted that the day room was
loud and that he could not be sure that anyone overheard Daniels’ threats.
       {¶9} Prior to the assault, plaintiff made unspecified statements to corrections
officers regarding threats by unspecified inmates; he communicated some degree of
apprehension regarding a possible assault, but nothing specific about Daniels. Though
both plaintiff and Simonson testified to plaintiff’s attempted communications with
corrections officers Woods and Naughten about the threats being made and his
apprehension of an assault, neither Simonson nor plaintiff testified as to what plaintiff
actually told corrections officers on July 4, 2017. Schultz testified that, though plaintiff
told him he had expressed concern about an assault, he had not indicated he was going
to be assaulted by Daniels.
       {¶10} Prior to the assault, plaintiff authored a note regarding an injured inmate,
which he passed to correction officer Naughten who read the note aloud in front of other
inmates, and this led to the threats by Daniels and other inmates. Plaintiff testified to
this fact. In addition, Simonson, Martin and Schultz testified respectively that plaintiff
told them the same, consistent story regarding the reading of the note before the
assault by Daniels, shortly after the assault by Daniels on the way to the hospital, and
weeks later when Schultz interviewed plaintiff about the assault.             Further, Martin
testified that, at roll call the day following the assault, she and her fellow officers were
instructed that, when they receive a “snitch kite” from an inmate, they are never to read
it out loud and the officer is to go to a closed off area to read the kite.
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       {¶11} Though Martin admitted that she did not know the reason underlying this
instruction, the fact that the instruction was given the day after plaintiff’s assault is
compelling circumstantial evidence which indicates that corrections officers read
plaintiff’s note. It is also important that plaintiff told both Simonson and Martin about the
reading of the note before the instruction to officers at roll call the following day; it
demonstrates that plaintiff could not have fabricated this story based on the instruction
given to officers.
       {¶12} ODRC’s standard procedure is that corrections officers should read and/or
address notes such as the one plaintiff authored outside the presence of other inmates
to avoid harm to the author. Martin testified to this procedure and its import.
       {¶13} In addition to speaking with a staff member as plaintiff did, there are
several other ways an inmate can inform defendant of personal safety concerns which
plaintiff did not utilize. Plaintiff never requested protective custody, nor did he file an
informal complaint or grievance. Plaintiff also did not “refuse to lock” which would have
resulted in plaintiff immediately seeing a shift officer.        Ashby testified to these
procedures. Plaintiff admitted that he did not use them.
       {¶14} ODRC issued both plaintiff and Daniels conduct reports based upon the
assault. Giddens testified to this fact
       {¶15} Plaintiff averred that Daniels never assaulted him in an affidavit filed in
Daniels’ criminal case about a year before he filed the present case. Plaintiff admitted
he authored the affidavit.

Conclusions of Law
       {¶16} Plaintiff bore the burden of proving his claim by a preponderance of the
evidence. As stated in Brothers v. Morrone-O’Keefe Dev. Co., LLC, 10th Dist. No.
06AP-713, 2007 Ohio 1942, 2007 Ohio App. Lexis 1762, ¶ 49: “[a] preponderance of
the evidence is ‘the greater weight of the evidence * * * [it] means evidence that is more
probable, more persuasive, or of greater probative value.”
Case No. 2019-00261JD                      -5-                               DECISION


      {¶17} “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.
      {¶18} “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,
quoting 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 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.
Case No. 2019-00261JD                       -6-                                DECISION


      {¶19} “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.
      {¶20} “Where it is certain that damages have resulted, mere uncertainty as to the
amount will not preclude the right of recovery.” Bemmes v. Pub. Emps. Ret. Sys., 102
Ohio App.3d 782, 789 (10th Dist.1995).

Decision
      {¶21} Upon review of the evidence and in light of the findings of fact and
conclusions of law set forth above, the magistrate finds that plaintiff proved his claim by
a preponderance of the evidence. Plaintiff was assaulted by his cellmate on July 4,
2017 and sustained injuries as a result. Whether ODRC had notice of an impending
assault is the critical issue. The magistrate finds that, though ODRC lacked actual
notice of the impending assault, the greater weight of the evidence established that
ODRC had constructive notice of an impending assault.
      {¶22} Initially, the magistrate finds plaintiff failed to prove actual notice by a
preponderance of the evidence. Plaintiff did not use any kite, informal complaint
resolution, grievance, or other written means to notify staff members at AOCI that he
feared for his personal safety prior to the assault. In terms of written and/or more formal
means of providing actual notice, plaintiff provided none.           Further, Simonson’s
testimony and the other evidence established, at most, the possibility that corrections
officers overheard other inmates threatening plaintiff; it did not establish actual
awareness of the threats being made by inmates. Finally, though plaintiff established
Case No. 2019-00261JD                       -7-                                DECISION


that he made statements to corrections officers regarding threats, plaintiff did not
establish the content of these statements; this makes it impossible to determine whether
plaintiff’s statements conveyed actual notice of an impending assault. See 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.)
       {¶23} The court, however, finds plaintiff established that ODRC had constructive
notice of an impending assault. As stated in Pate, whether notice exists depends on all
the facts present in a particular case. Though falling short of establishing actual notice,
plaintiff did establish that he twice approached corrections officers regarding threats by
other inmates. He also established that inmates threatened him repeatedly and that
corrections officers were present in the housing unit dayroom area while these threats,
which were not discrete, continued for an undetermined time. As Simonson testified, it
was “obvious” that other inmates were angry with plaintiff. Most compelling was the fact
that corrections officers read plaintiff’s note concerning an injured inmate in front of
other inmates which resulted in threats being targeted at plaintiff. Also, the fact that
ODRC did so in violation of its own procedure, which is in place for inmate safety, is
also compelling. Given the existence of this policy, the magistrate finds that reading the
note in front of other inmates would put the corrections officers on notice of some
danger of assault to plaintiff. When considered with the threats made by other inmates
and plaintiff’s attempt to twice inform corrections officers—one of whom read the note—
of concerns regarding the threat of an assault, the magistrate finds that ODRC had
constructive notice of an impending assault on plaintiff.
       {¶24} While it is true that plaintiff authored the affidavit in which he stated the
assault never occurred, the court finds plaintiff’s affidavit is of little import primarily
Case No. 2019-00261JD                           -8-                             DECISION


because the evidence, including the testimony of Schultz, established that the assault
occurred. More importantly, the affidavit in no way contradicts the evidence, including
Martin’s testimony, establishing that corrections officers read plaintiff’s note leading to
threats from other inmates.
       {¶25} As for damages, plaintiff presented very little evidence. He offered virtually
no testimony regarding the actual extent of his injuries, treatment, if any, of these
injuries or the impact, if any, that the injuries had on him. Schultz testified to what
pictures depicted but did not attribute any specific condition as depicted in these
pictures to the assault. Moreover, Schultz testified that plaintiff’s injuries had healed by
the time he interviewed plaintiff. Therefore, the magistrate values plaintiff’s injuries,
temporary swelling, and abrasions to his face, at $1,000.00.

Conclusion
       {¶26} Based upon the foregoing, the magistrate finds that plaintiff proved his
claim by a preponderance of the evidence and recommends judgment be entered in
plaintiff’s favor in the amount of $1,000.00.
       {¶27} Note: the following requirements for filing objections have been tolled by
the March 27, 2020 Order of Chief Justice of the Supreme Court of Ohio and the
Governor’s declaration of a public health emergency until July 30, 2020 or the end of
the emergency, whichever is sooner. See 03/27/2020 Administrative Actions, 2020-
Ohio-1166.
       {¶28} 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
Case No. 2019-00261JD                        -9-                              DECISION


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).




                                            SCOTT SHEETS
                                            Magistrate

Filed June 8, 2020
Sent to S.C. Reporter 7/28/20
