[Cite as Lucero v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-1410.]

                                                        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




ARTURO LUCERO

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al.

       Defendants
       Case No. 2008-08019

Judge Clark B. Weaver Sr.
Magistrate Matthew C. Rambo

JUDGMENT ENTRY




        {¶ 1} Plaintiff brought this action alleging negligence. A trial was held on the
issue of liability, and on November 10, 2010, the magistrate issued a decision
recommending judgment for defendants.
        {¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).” On January 4, 2011, with leave of the court, plaintiff filed his objections.
A transcript of proceedings was filed on December 23, 2010, pursuant to
Civ.R.53(D)(3)(b)(iii). On January 7, 2011, defendants filed a response.
        {¶ 3} At all times relevant, plaintiff was an inmate in the custody and control of
defendants pursuant to R.C. 5120.16. Plaintiff alleges that on August 17, 2007, he sent
a “kite” to Unit Sergeant Christman wherein he requested that he be moved to another
housing unit because he and inmate Caldwell “almost got into a fight.” On August 29,
2007, Caldwell approached plaintiff and asked if he wanted to trade some beans for
Case No. 2008-08019                          -2-                       JUDGMENT ENTRY

some rice.    Plaintiff declined the offer and asked Caldwell to leave, at which time
Caldwell punched plaintiff in the face. Plaintiff responded by pushing Caldwell, who
then left the area. Caldwell returned several minutes later and cut plaintiff’s face and
back with a sharpened lid from an aluminum can. Plaintiff swung an empty five-gallon
bucket at Caldwell, who turned and ran away.
       {¶ 4} The magistrate determined that plaintiff failed to establish that defendants
had either actual or constructive notice that Caldwell was going to attack plaintiff
inasmuch as the “kite” produced by plaintiff did not appear genuine.
       {¶ 5} In his first objection, plaintiff asserts that the magistrate erred in “allowing
[plaintiff’s expert] to be questioned whether the signature could be a forgery and then
cutting off his response.” (Emphasis in original.) The court disagrees. A party, upon
cross-examination of an opposing party’s expert, may challenge the expert’s opinion by
inquiring about other possible conclusions that may be drawn from the same evidence.
See Smith v. Mitchell (1988), 35 Ohio St.3d 237, 239; Giles v. Yellow Cab Co. (1964), 1
Ohio App.2d 404, 407-8. Moreover, the magistrate did not base his finding solely upon
Christman’s testimony that the signature on the kite was not his. Indeed, the magistrate
heard testimony regarding defendants’ kite-processing requirements and found that
plaintiff’s kite did not contain any indicia that it had been processed. Plaintiff’s first
objection shall be overruled.
       {¶ 6} In his second and fourth objections, plaintiff argues that the magistrate
erred in accepting Christman’s testimony that he did not receive the kite, despite the
testimony of plaintiff’s expert that Christman’s signature on the kite was authentic.
However, it is well-settled that the magistrate, as a trier of fact, is in the best position to
weigh both the testimony and the credibility of witnesses.            Seasons Coal Co. v.
Cleveland (1984), 10 Ohio St.3d 77, 80. Upon review of the transcripts and other
documentary evidence presented at trial, the court finds that the magistrate properly
weighed the evidence in determining that plaintiff failed to establish either actual or
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constructive notice of an impending attack upon plaintiff by Caldwell. Plaintiff’s second
and fourth objections shall be overruled.
       {¶ 7} In his third objection, plaintiff argues that the magistrate erred by ignoring
plaintiff’s claim that defendants failed to provide adequate supervision of the inmates in
housing unit F-2, second floor. Plaintiff argues that had defendants’ corrections officers
(COs) observed the initial altercation between plaintiff and Caldwell, the two inmates
would have been placed in segregation and the second, more serious assault would not
have taken place.
       {¶ 8} The magistrate found that defendants’ COs were on their scheduled
rounds when the first incident took place but that they did not see the initial altercation
between plaintiff and Caldwell. The magistrate also found that F-2 housed some 280
inmates on two floors in a dormitory-style setting.
       {¶ 9} To the extent that plaintiff challenges staffing and employment decisions
made by defendants in supervising inmates within plaintiff’s housing unit, this court has
consistently held that defendants are immune from liability in negligence for such
decisions. Reynolds v. State (1984), 14 Ohio St.3d 68; Wozniak v Ohio Dept. of Rehab.
and Corr., Ct. of Cl. No. 2009-04505, 2010-Ohio-2648. Indeed, given the large number
of inmates assigned to F-2 and the size and configuration of the unit, it stands to reason
that even the most vigilant CO could miss a brief altercation between two inmates living
in the same general area.       Thus, while the magistrate did not expressly find that
defendants’ COs exercised due care in making their rounds on the date and time in
question, the obvious conclusion to be drawn from his factual findings and the totality of
the evidence presented is that defendants met the standard of care.             It is simply
unreasonable to expect that the defendants would maintain uninterrupted surveillance
of every inmate at all times. Plaintiff’s third objection shall be overruled.
       {¶ 10} In his fifth objection, plaintiff asserts that the magistrate’s decision is
contrary to law and is against the manifest weight of the evidence. The court disagrees.
In accordance with Civ.R. 53, the trial court must conduct a de novo review of the facts
Case No. 2008-08019                        -4-                       JUDGMENT ENTRY

and conclusions contained in the magistrate’s report and enter its own judgment. See
Shihab & Assoc. Co., L.P.A. v. Ohio Dept. of Transp., 168 Ohio App.3d 405, 2006-Ohio-
4456; Dayton v. Whiting (1996), 110 Ohio App.3d 115, 118. Upon review of the trial
transcript and other documentary evidence presented at trial, the court agrees with the
magistrate’s conclusion that Christman did not sign the kite.          As the magistrate
determined, the document does not contain any indicia that it had been processed
pursuant to defendants’ established procedure. Thus, defendants did not have either
constructive or actual notice that Caldwell would attack plaintiff. In short, the magistrate
correctly applied the law and properly weighed the evidence. Plaintiff’s fifth objection
shall be overruled.
       {¶ 11} Upon review of the record, the magistrate’s decision, the objections, trial
transcript, and other documentary evidence, the court finds that the magistrate has
properly determined the factual issues and appropriately applied the law. Therefore, the
objections are OVERRULED and the court adopts the magistrate’s decision and
recommendation as its own, including the findings of fact and conclusions of law
contained therein.    Judgment is rendered in favor of defendants.        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.



                                          _____________________________________
                                          CLARK B. WEAVER SR.
                                          Judge

cc:
Case No. 2008-08019               -5-                   JUDGMENT ENTRY


Eric A. Walker                     Richard F. Swope
Paula Luna Paoletti                6480 East Main Street, Suite 102
Assistant Attorneys General        Reynoldsburg, Ohio 43068
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

GWP/cmd
Filed March 1, 2011
To S.C. reporter March 22, 2011
