[Cite as Whitmore v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-1409.]

                                                       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

MAGISTRATE DECISION




        {¶ 1} Plaintiff brought this action alleging negligence. The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.
        {¶ 2} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the London Correctional Institution (LCI) pursuant to R.C. 5120.16. This
case arises out of three separate incidents at LCI. Plaintiff alleges that on January 9,
2008, and again on January 13, 2008, he fell from upper bunks and suffered injury as a
result of defendant’s refusal to honor a medically prescribed lower bunk assignment.
Plaintiff also alleges that on May 12, 2008, corrections officers (COs) placed him in
handcuffs while conducting a “shakedown” of his cell, but failed to remove the handcuffs
upon returning him to his cell. Plaintiff alleges that the handcuffs were not removed until
six hours later.
        {¶ 3} In order for plaintiff to prevail upon his claims of negligence, he must prove
by a preponderance of the evidence that defendant owed him a duty, that defendant’s
acts or omissions resulted in a breach of that duty, and that the breach proximately
Case No. 2008-10366                         -2-                 MAGISTRATE DECISION

caused his injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-
2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. Ohio
law imposes upon the state a duty of reasonable care and protection of its inmates.
McCoy v. Engle (1987), 42 Ohio App.3d 204, 207-208. Reasonable care is defined as
the degree of caution and foresight that an ordinarily prudent person would employ in
similar circumstances. Woods v. Ohio Dept. of Rehab. & Corr. (1998), 130 Ohio App.3d
742, 745. The state is not an insurer of inmates’ safety, however. Moore v. Ohio Dept.
of Rehab. & Corr. (1993), 89 Ohio App.3d 107, 112.
       {¶ 4} On December 13, 2007, defendant’s medical staff issued plaintiff a lower
bunk restriction, effective for one year. (Plaintiff’s Exhibit 1.) Plaintiff testified that he
has had a number of such restrictions at various correctional institutions since entering
defendant’s custody. (Plaintiff’s Exhibits 1, 2, 3.) According to plaintiff, he received
such restrictions because he suffers from several maladies that make it difficult for him
to climb into an upper bunk, including tears in the biceps of each arm.
       {¶ 5} Plaintiff testified that he received the restriction at issue on December 13,
2007, and that institutional procedure requires defendant to forward such restriction to
personnel in the “count office” in his housing unit so that plaintiff can be assigned to a
lower bunk. However, plaintiff was not assigned to a lower bunk and he testified that on
January 9, 2008, he fell while attempting to climb into an upper bunk whereupon he
twisted his left leg and injured the back of his head in a fall. Plaintiff stated that the day
after the fall he was assigned to a lower bunk and felt “ok” after a few days. Plaintiff
admits that he never filed a complaint regarding his bunk assignment prior to his fall, but
that he may have mentioned his restriction to a nurse during a December 28, 2007,
medical appointment. On January 18, 2008, plaintiff initiated the grievance process by
filing an informal complaint which culminated in a March 13, 2008 decision from the
institutional inspector which states that “upon the count office receiving the restriction
Case No. 2008-10366                         -3-                 MAGISTRATE DECISION

you should have been moved to a bottom bunk. This issue has since been corrected.”
(Plaintiff’s Exhibits 4, 6.)
       {¶ 6} Plaintiff testified that, on January 13, 2008, four days after his initial fall,
plaintiff testified that he was sent to the “segregation” unit for disciplinary reasons.
According to plaintiff, he was placed in a cell with an inmate who already occupied the
lower bunk. Plaintiff stated that when he informed a CO of his lower bunk restriction,
the CO told him that the other inmate also had a lower bunk restriction and that if the
two inmates could not “work it out,” he was permitted to remove the mattress from the
upper bunk and place it on the floor to sleep. Plaintiff testified that he did so, but that on
January 22, 2008, it became very cold and he decided that he no longer wanted to
sleep on the floor. Plaintiff stated that he placed the mattress back on the upper bunk
and attempted to climb onto it, but fell and twisted his left knee as well as injuring his
lower back. Plaintiff testified that a nurse came to the cell that night to examine him.
(Plaintiff’s Exhibit 16.)
       {¶ 7} Regarding plaintiff’s fall on January 9, 2008, although plaintiff did not
inform the staff in his housing unit of his restriction, plaintiff’s testimony regarding the
process by which the restriction should have been forwarded to the unit staff combined
with the institutional inspector’s findings convinces the court that defendant’s employees
knew or should have known of plaintiff’s medical restriction.              Accordingly, such
employees had an affirmative duty to honor the restriction and their failure to do so
proximately caused plaintiff’s injuries. Accordingly, it is recommended that judgment be
rendered in favor of plaintiff with respect to the January 9, 2008 fall.
       {¶ 8} However, with regard to plaintiff’s January 22, 2008 fall, the court notes
that plaintiff is required to exercise a reasonable degree of care to ensure his own
safety. See Rose v. Ohio Dept. of Rehab. & Corr., Franklin App. No. 04AP-1360, 2005-
Ohio-3935, at ¶9. Upon moving into the segregation cell, plaintiff agreed to place his
mattress on the floor in lieu of sleeping on the upper bunk. Plaintiff was fully aware of
his own physical limitations, yet, when he decided that he no longer wanted to sleep on
Case No. 2008-10366                         -4-                MAGISTRATE DECISION

the floor, he made no attempt to alert staff of his decision and voluntarily attempted to
climb into the upper bunk. Therefore, the court finds that plaintiff’s fall on January 22,
2008, and any resulting injuries are attributable to his failure to take steps to ensure his
own safety. Accordingly, it is recommended that judgment be rendered in favor of
defendant with respect to plaintiff’s January 22, 2008 fall.
       {¶ 9} Turning to the third claim, plaintiff testified that on May 12, 2008, at
approximately 4:00 p.m., three COs came to his cell in the segregation unit to perform a
“shakedown.” Plaintiff stated that as part of the shakedown procedure, he and his
cellmate were required to place their hands behind their back and through the “cuff
port” in the cell door, at which time a CO placed handcuffs on their wrists. Plaintiff
testified that after being handcuffed, he and his cellmate were removed from the cell
while COs conducted the search. According to plaintiff, when the search was complete,
he and his cellmate were returned to the cell, the cell door was closed and the cuff port
was opened so that the handcuffs could be removed.             Plaintiff stated that a CO
removed the handcuffs from his cellmate but failed to remove the set that he was
wearing. Plaintiff testified that despite repeated attempts, he was unable to get the
attention of the COs as they moved on to shake down other cells in the unit.
       {¶ 10} According to plaintiff, he sat on his bed for approximately two hours with
his hands behind his back but then his cellmate helped him move his hands to the front
of his body to make himself more comfortable. Plaintiff stated that soon thereafter CO
Andrew Goodrich came to the cell to deliver the evening meal. Plaintiff testified that he
showed Goodrich that he was still handcuffed, but that Goodrich ignored him. Plaintiff
also testified that some time after the meal was served, Goodrich returned with a nurse
to dispense his prescription medication. Plaintiff claims that he showed the nurse that
he was still wearing handcuffs, but that he was again ignored. According to plaintiff,
throughout the evening he made repeated attempts to call staff members’ attention to
the fact that he was still wearing handcuffs, but could not get anyone’s attention.
Case No. 2008-10366                        -5-                 MAGISTRATE DECISION

       {¶ 11} Plaintiff testified that at approximately 10:00 p.m., as “second shift” was
ending, he noticed COs “scurrying around” looking for a missing set of handcuffs.
Plaintiff claims that Goodrich then came to his cell and asked him if he had the missing
handcuffs and plaintiff replied that he would only allow them to be removed by a “white
shirt” or superior officer. Plaintiff stated that this prompted the arrival of approximately
ten white shirts at which point the handcuffs were removed, he was interviewed
regarding the incident and examined by a nurse.
       {¶ 12} Goodrich testified that on May 12, 2008, he was working “second shift”
from 2:00 p.m. to 10:00 p.m. in the segregation unit and that he, CO Roland Jewell, and
CO Roberts performed a shakedown of plaintiff’s cell around 4:00 p.m. Goodrich stated
that he handcuffed both plaintiff and his cellmate prior to removing them from the cell,
and that when the shakedown was completed, he removed the handcuffs from plaintiff’s
cellmate but forgot to remove the set from plaintiff. Goodrich further stated that he
visited plaintiff’s cell throughout the evening, including “making rounds” approximately
every half hour, delivering “juice” and a tray of food, retrieving the tray, delivering
medication, and that on none of these occasions did plaintiff inform him that he was still
wearing the handcuffs. According to Goodrich, he did not observe the handcuffs on
plaintiff at any time and that at one point during his rounds he noticed plaintiff quietly
sitting on his bed reading a book.
       {¶ 13} According to Goodrich, he did not become aware that plaintiff was still
handcuffed until the end of his shift when he performed an inventory and noticed that a
set of handcuffs was missing. Goodrich testified that he and a number of other COs
began searching the unit and asking the inmates if they had the missing handcuffs.
After plaintiff showed CO Johnson that he was still wearing handcuffs, Goodrich ordered
plaintiff to the cuff port and removed the handcuffs. Goodrich testified that as a result of
the incident, defendant fined him one day’s pay for “losing tools” and transferred him out
of the segregation unit.
Case No. 2008-10366                          -6-                 MAGISTRATE DECISION

        {¶ 14} Jewell testified that he was working in a different area of the segregation
unit on May 12, 2008, but that when he passed out juice in plaintiff’s unit he did not
notice plaintiff wearing handcuffs and that plaintiff never attempted to inform him of that
fact.
        {¶ 15} Based upon the testimony presented at trial, the court finds plaintiff’s claim
that he tried to call attention to himself several times during the evening is not credible.
The court further finds that plaintiff purposefully hid his hands and the handcuffs from
the view of staff during the evening of May 12, 2008. Therefore, the court finds that
although Goodrich was negligent in failing to remove the handcuffs from plaintiff after
returning him to his cell, any injury plaintiff may have suffered thereafter is attributable to
his own failure to take steps to alert LCI staff that he was still wearing the handcuffs.
Accordingly, it is recommended that judgment be rendered in favor of defendant on
plaintiff’s third claim.
        {¶ 16} In sum, it is recommended that judgment be rendered in favor of plaintiff
on his negligence claim arising out of the fall from his bunk on January 9, 2008, and in
favor of defendant on his remaining claims.
        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. 2008-10366               -7-               MAGISTRATE DECISION

                                  MATTHEW C. RAMBO
                                  Magistrate

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

MR/cmd
Filed March 3, 2010
To S.C. reporter March 30, 2010
