[Cite as Mack v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-2877.]




LEVIO D. MACK                                         Case No. 2014-00317

        Plaintiff                                     Magistrate Robert Van Schoyck

        v.                                            DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

        Defendant



         {¶1} Plaintiff, an inmate in the custody and control of defendant at the Marion
Correctional Institution (MCI), brought this action for negligence arising from an incident
in which another inmate attacked and injured him on December 21, 2013. The issues of
liability and damages were bifurcated and the case proceeded to trial on the issue of
liability.
         {¶2} Plaintiff testified that, at the time of trial, he had been living at MCI for about
three years, following several years of incarceration at other institutions. Plaintiff stated
that around 8:00 p.m. on December 21, 2013, he was on the telephone in the corner of
the dayroom in his housing block, K Block, talking to his brother. Plaintiff related that
the block housed up to 128 inmates, and that many of them were in the dayroom at that
point, socializing or otherwise spending some time out of their cells. Plaintiff testified
that he felt something on his shoulder, and when he looked up he saw an inmate by the
name of White, who told him to shut up and said “you don’t want none of this gangster
shit.” According to plaintiff, White had a pair of scissors in his hand and made stabbing
motions toward him. Plaintiff testified that he jumped up from his seat and tried to guard
or defend himself as best he could against the attack from White.
         {¶3} Plaintiff testified that Corrections Officer Douglas Dunham had been seated
at a desk nearby, and that when the commotion began Dunham stood up and yelled
Case No. 2014-00317                         -2-                               DECISION


“Mr. White, stop.” Plaintiff recalled that White turned to Dunham and said something,
but continued acting aggressively toward plaintiff, and Dunham then left and went into
the hallway that separated K Block from an adjacent housing block. As plaintiff recalled,
he positioned himself such that there was a cart between him and White, and he was
about to pick up a chair with which to defend himself when multiple corrections officers
arrived at the scene. Plaintiff stated that one officer told him to stop, and another told
White to stop, but White was not compliant. As plaintiff described, officers ended up
physically subduing White and taking him to the ground.
         {¶4} Plaintiff testified that as a result of White’s attack, he sustained
approximately six cut or stab wounds on his neck, shoulder, head, and back. Plaintiff
stated that a nurse came to the scene to examine him, and from there he was taken to
the infirmary, where his wounds were cleaned, and later he was taken to an outside
hospital, where two of the wounds were treated with one stitch apiece.
         {¶5} According to plaintiff, White had lived in a cell next to his own, but they
never had any problems previously. Plaintiff stated that he never spoke with White
again.
         {¶6} Samuel Bulgin testified that he has been incarcerated at Marion since 2012,
and that he lived in K Block at the time of this incident. According to Bulgin, when the
incident occurred he was at a table socializing with other inmates after a card game,
about ten feet away from the telephone plaintiff was using. Bulgin testified that he saw
some movement near the telephone and initially thought it was just horseplay, but later
he realized White was punching at plaintiff and had something shiny in his hand. Bulgin
also testified that he heard White repeatedly say “you think you can ride for free,” but
that he did not know what that meant and he did not know what prompted the attack.
Bulgin stated that he had not noticed which direction White came from before initiating
the attack.
Case No. 2014-00317                         -3-                                 DECISION


       {¶7} Bulgin recalled that the corrections officer who had been sitting behind the
desk came out from behind it and gave White commands to back away, but White said
“you don’t want none of this.” Bulgin stated that other officers eventually entered the
housing block, and although White continued to act aggressively with the weapon,
officers eventually took him to the ground and subdued him. Bulgin stated that he could
not remember how long it had taken for the officers to respond to the block, nor could
he recall how many officers responded.
       {¶8} Willie Davis testified that he has been incarcerated at MCI for more than
three years, and that he lived in K Block at the time of this incident. Davis testified that
he was at a table just a few feet away from where it occurred. Davis stated that plaintiff
was talking on the telephone in the corner of the dayroom, near the door that opened to
the hallway.      Davis stated that White came down the stairs, walked through the
dayroom, came up behind plaintiff, and it appeared that White then started punching
plaintiff, but Davis later realized plaintiff was being stabbed. Davis stated that plaintiff
appeared to be in shock, but stood up and defended himself.
       {¶9} Davis testified that Corrections Officer Dunham had been sitting at a desk
very close to where the altercation began. According to Davis, Dunham got up and
yelled at White repeatedly, ordering him to stop and put the weapon down. Davis
testified that once other corrections officers entered the housing block, they attempted
to physically restrain White, and although he resisted their efforts, they were able to
take him to the ground and subdue him. Davis stated that he did not know prompted
White’s attack.
       {¶10} Saul Nolen testified by way of deposition. (Plaintiff’s Exhibit A.) Nolen
testified that when this incident occurred, he had been an inmate at MCI since 2008 and
he lived in K Block. Nolen testified that he had been playing cards with some other
inmates and had just gotten up to go to the ice machine when the incident occurred.
Nolen stated that plaintiff was using the telephone that was located next to the door.
Case No. 2014-00317                         -4-                                DECISION


Nolen recalled that an announcement was made for inmates to go to the “pill call,” and
soon afterward he saw an inmate he knew as Tom White go walking toward the door as
if he was going to the pill call. Nolen stated that, from what he could see, it looked like
White started punching plaintiff, and only later did he learn that plaintiff was actually
being stabbed. According to Nolen, White kept asking plaintiff, “you think this is a
game?” Nolen stated that plaintiff repeatedly asked White what he was talking about.
       {¶11} Nolen testified that Corrections Officer Dunham, whom Nolen thought had
been in the hallway when this all started, ran toward White and told him to stop.
According to Nolen, however, White told Dunham to step back because this was some
“gangster shit,” and Dunham then went out the door and into the hallway.            Nolen
testified that he thought the altercation had been going on for about two or three
minutes before Dunham told White to stop. Nolen stated that about one minute later, a
Corrections Officer Richardson came from across the hall and also told White to stop.
Nolen testified that one of the officers activated a man down alarm, and once officers
responded they backed White into a corner and eventually restrained him. Nolen stated
that there were about seven or eight officers in total at the scene.
       {¶12} Corrections Officer Douglas Dunham, who stated that he has been
employed with defendant for approximately 20 years, testified that when the accident
occurred, his regular assignment was to supervise K Block during the second shift, from
2:00 p.m. to 10:00 p.m. Dunham stated that when the altercation started he was seated
at a desk about eight to ten feet away from the telephone that plaintiff was using.
Dunham explained that around that time of the evening, most inmates who lived in the
housing block were present, and usually there were a number of inmates in the
dayroom, and others were in their cells or the showers. He also stated that it can get
quite loud at that time of the evening.
       {¶13} Dunham testified that at 8:17 p.m., he heard a ruckus by the telephones
and immediately stood up and looked in that direction. Dunham stated that he saw
Case No. 2014-00317                            -5-                           DECISION


White appear to throw a punch at plaintiff, at which point he started giving White
commands to get away from plaintiff. Dunham further stated that he sent a call over his
radio with the message “signal three, K Block,” which went out to all the corrections
officers at MCI who were carrying radios. Dunham explained that he used the radio
rather than activating his man down alarm because it was faster, and he also explained
that it was a policy at MCI that he summon assistance either with the radio or the man
down alarm where there was an active inmate-on-inmate altercation, before physically
intervening. Dunham further explained that he was not equipped with a baton or OC
spray, per a policy set by prison officials.
       {¶14} Dunham testified that he got between the inmates and put his hand up to
block White, but White told him this was “gangster shit” and continued to act
aggressively. Dunham stated that he also unlocked the door, which was very close by,
so that officers responding to the radio call could get into the housing block, but he
stated that he never left the block. Dunham recalled that the first responders to arrive
were Corrections Officer Richardson, who worked across the hallway in M Block, and
Corrections Officer Hall, who worked in the gymnasium. Dunham testified that White
refused officers’ orders to get on the wall and he continued to move around
aggressively, and even after officers took White to the ground he continued to resist
until a Corrections Officer Mendoza administered a burst of OC spray.
       {¶15} Dunham stated that he did not know White had a weapon until White got
up, at which time Dunham observed what appeared to be half a pair of scissors on the
floor. According to Dunham, inmates are permitted to have scissors with blunted edges,
but this was a standard type that would have been considered contraband. Dunham
testified that he had no prior knowledge about White having the scissors, and that he
does not know where they came from. Dunham related that random cell searches, or
“shakedowns,” are conducted routinely to search for contraband, and they can also
occur when there is some specific information that would prompt a search of a particular
Case No. 2014-00317                         -6-                                 DECISION


cell or inmate. There is one random shakedown every day during the first shift and two
per day during the second shift, Dunham stated. According to Dunham, corrections
officers use a computer program to manage the shakedown schedule.
        {¶16} Dunham testified that there is a camera in the rear of K Block, on the first
floor range, pointed toward the front of the block, and he authenticated a DVD recording
of the incident that was captured by this camera. (Defendant’s Exhibit A.) Dunham also
authenticated an audio recording of the telephone call plaintiff was having when the
incident began, and he identified his voice on this recording. (Defendant’s Exhibit B.)
        {¶17} Jason Bunting, the Warden at MCI, testified that he has served in his
current role for more than four years, and has been employed with defendant for close
to 19 years in total.    Bunting testified that in the event of an altercation between
inmates, corrections officers are trained to first give verbal commands directing the
inmates to stop.     Bunting further testified that officers are trained to then request
assistance from other officers, and once backup has arrived, to physically break up the
altercation if necessary. In terms of how officers request assistance, Bunting testified
that they are permitted to either activate the man down alarm on their person, or call a
“signal three” over the radio, if one has been issued to them. As Bunting described, the
man down alarm sends a signal to the control room, indicating only the general location
in which it was activated, and then an officer in the control room will announce an alert
via loudspeaker stating the location and the name of the officer whose alarm was
activated. Bunting testified that an officer calling for assistance over the radio, however,
can immediately convey specific information about the location and circumstances of
the incident to others with radios, and in his experience the radio is decidedly more
efficient.
        {¶18} As for the manner in which officers respond to requests for assistance,
Bunting testified that there are phases of responders, such that officers stationed at
certain posts throughout the institution respond immediately when a request goes out,
Case No. 2014-00317                           -7-                                  DECISION


but officers at other posts, even if they are near the location of the request, would
remain at their post unless another wave of responders was requested.
       {¶19} Bunting also testified that all of the first wave responders who would have
come to assist Dunham were stationed at posts where they were authorized to carry OC
spray, so long as they had the proper training and certification. Bunting explained,
though, that OC spray is not allowed at every post, and Dunham’s post in K Block is one
of the posts where it is not allowed. Bunting testified that it is up to his discretion, as the
Warden, to make decisions about the deployment of OC spray at the institution.
       {¶20} Bunting testified about his decision-making process concerning the
deployment of OC spray. Bunting explained that historically there had been only a
minimal allowance of OC spray at MCI, but in recent years the inmate population has
increased significantly and he has elected to allow OC spray at some posts, primarily
being in areas where inmates tend to gather in large numbers. Bunting stated that he
weighs a number of factors in deciding where to allow OC spray, such as the status of
MCI as a medium/minimum level security institution, and the fact that, while OC spray
can enhance the safety and security of the institution, greater access to OC spray may
result in its misuse, either by corrections officers or by inmates taking it from officers
and using it against them. Overall, Bunting stated, he attempts to strike a balance and
allow for OC spray in enough areas that it can be an effective response tool. In the
case of a general population housing block, such as the one in which plaintiff lived,
Bunting stated that he has elected to not allow OC spray at those posts, where one
officer is assigned for each block, which house up to 128 inmates.
       {¶21} “To recover on a negligence claim, a plaintiff must prove by a
preponderance of the evidence (1) that a defendant owed the plaintiff a duty, (2) that a
defendant breached that duty, and (3) that the breach of the duty proximately caused a
plaintiff’s injury.” Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 05AP-
357, 2006-Ohio-2531, ¶ 10. “In the context of a custodial relationship between the state
Case No. 2014-00317                        -8-                               DECISION


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. “This duty does not, however, make ODRC the
insurer of inmate safety.” Kordelewski v. Ohio Dept. of Rehab. & Corr., 10th Dist.
Franklin No. 00AP-1109 (June 21, 2001). “Although the state is not an insurer of the
safety of inmates, once it becomes aware of a dangerous condition it must take
reasonable care to prevent injury to the inmate.” Briscoe v. Ohio Dept. of Rehab. &
Corr., 10th Dist. Franklin No. 02AP-1109, 2003-Ohio-3533, ¶ 20. “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.
       {¶22} “Where one inmate attacks another inmate, actionable negligence arises
only when there was adequate notice of an impending attack.” Lucero v. Ohio Dept. of
Rehab. & Corr., 10th Dist. Franklin No. 11AP-288, 2011-Ohio-6388, ¶ 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.” Watson v. Ohio Dept. of
Rehab. & Corr., 10th Dist. Franklin No. 11AP-606, 2012-Ohio-1017, ¶ 9. “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.
       {¶23} Upon review of the evidence presented at trial, the magistrate finds as
follows.   On December 21, 2013, at approximately 8:17 p.m., plaintiff was on the
telephone near the door at the front of his housing block when he was attacked by
Case No. 2014-00317                        -9-                                DECISION


inmate White, who quickly stabbed plaintiff multiple times with a pair, or half a pair, of
scissors. Corrections Officer Dunham was seated at the officers’ desk nearby, and as
seen in the video from the security camera, Dunham got up approximately three
seconds after the attack commenced, he ran toward the altercation, and he got between
the two inmates and put his hand up to separate them.
      {¶24} As captured on the recording of plaintiff’s telephone call, Dunham yelled
“hey” early on, and within no more than ten seconds after the commotion began
Dunham had activated his radio and called for assistance, and Dunham continued to
yell “hey,” “get away,” and “White.”    Dunham also told White to “stop,” as plaintiff
recalled. From the time that Dunham ran from behind the desk and intervened, White
did back away from plaintiff, although he continued to act aggressively while holding the
weapon in his hand. The video shows that approximately 15 seconds after the attack
commenced, Dunham stepped a few feet away to unlock the door, at which time it
appears that White may have delivered or attempted to deliver another blow to plaintiff,
although nearly every wound that plaintiff sustained during this incident came in quick
succession at the very outset. As seen in the video, the first of several corrections
officers to respond to Dunham’s call for assistance arrived approximately 22 seconds
after the attack commenced. From there, there were no further hostilities between the
inmates and White was eventually subdued.
      {¶25} Defendant had no notice, constructive or actual, from which it knew or
should have known the attack was impending. Although White walked past Dunham’s
desk as he proceeded toward plaintiff to carry out the attack, White lived in this housing
block and was permitted to walk in that area, White was one of many inmates walking
around the dayroom at that busy time of the evening, and from the testimony of
Dunham and the inmates who were in the area it was established that White’s attack
came as a surprise, it was not apparent that White had a weapon on him before the
attack, and Dunham did not have reason to know that the attack was going to occur.
Case No. 2014-00317                        -10-                                DECISION


      {¶26} Additionally, Dunham’s response to the attack was reasonable. Dunham
swiftly intervened by running to the altercation, physically inserting himself between the
inmates, putting his hand up to hold White at bay, and yelling at White and giving him
verbal commands.      Dunham also timely requested assistance over the radio, in
accordance with the internal policy at MCI, and officers quickly responded to the scene.
Dunham never idly stood by or otherwise failed to act reasonably in response to the
circumstances that he faced. Contrary to plaintiff’s testimony that Dunham left the block
and went into the hallway, the video shows that Dunham never the left the block.
      {¶27} Although plaintiff argued that the use of OC spray would have helped
resolve the matter more quickly, per the policy at MCI Dunham was not allowed to have
OC spray at his post. The testimony of Warden Bunting showed that the decision on
where OC spray was allowed throughout the institution was a basic policy decision
characterized by a high degree of official judgment or discretion. The language in the
Court of Claims Act at R.C. 2743.02 providing that “‘the state’ shall ‘have its liability
determined * * * in accordance with the same rules of law applicable to suits between
private parties * * *’ means that the state cannot be sued for its legislative or judicial
functions or the exercise of an executive or planning function involving the making of a
basic policy decision which is characterized by the exercise of a high degree of official
judgment or discretion.”    Reynolds v. State, 14 Ohio St.3d 68, 70 (1984).         Prison
officials such as Warden Bunting are afforded “wide-ranging deference in the adoption
and execution of policies and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441
U.S. 520, 547 (1979). Accordingly, on the issue of whether Dunham should have been
equipped with OC spray, defendant is entitled to discretionary immunity.
      {¶28} As to the use of OC spray by the officers who responded to Dunham’s call
for assistance, the video demonstrates that once responders began arriving at the
housing block, White was separated from plaintiff, and plaintiff sustained no further
Case No. 2014-00317                         -11-                                DECISION


harm. It was not shown that the responders breached their duty of care toward plaintiff
at all, whether through their acts or omissions relative to OC spray or otherwise.
       {¶29} Plaintiff also argued that when the MCI control room relayed Dunham’s
signal three announcement over the loudspeaker, the wrong housing block was
identified as the location, and that this constituted negligence which resulted in a
delayed response. However, Dunham’s signal three announcement over the radio was
immediate and it directed the responders where to go.           Reviewing the video and
telephone recordings in conjunction with one another, it appears that responders began
arriving to the scene just before the control room made its announcement and that they
continued arriving thereafter, and, as previously stated, plaintiff sustained no further
harm from the time responders started arriving. Even if the control room misidentified
the location of the emergency, plaintiff cannot demonstrate any resulting harm.
       {¶30} Lastly, to the extent that plaintiff argued defendant was negligent in its
supervision of the housing block insofar as White was able to procure and use the
weapon, defendant had a policy of regularly inspecting the block for weapons and other
contraband and the evidence does not demonstrate that defendant failed to follow its
policy or that defendant otherwise failed to use reasonable care to prevent the presence
of such weapons. In short, White’s use of the weapon was not shown to have resulted
from negligence on the part of defendant.
       {¶31} Based on the foregoing, the magistrate finds that plaintiff failed to prove his
claims by a preponderance of the evidence. Accordingly, judgment is recommended in
favor of defendant.
       {¶32} 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
Case No. 2014-00317                         -12-                                DECISION


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).




                                                ROBERT VAN SCHOYCK
                                                Magistrate

cc:
Richard F. Swope                              Jeanna V. Jacobus
6480 East Main Street, Suite 102              Assistant Attorney General
Reynoldsburg, Ohio 43068                      150 East Gay Street, 18th Floor
                                              Columbus, Ohio 43215-3130

Filed March 24, 2016
Sent To S.C. Reporter 5/9/16
