[Cite as Sage v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-4851.]



                                                        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




GORDON SAGE

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

Case No. 2010-03771

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 the close of proceedings, the record was left open for plaintiff to proffer
additional documents as evidence.                On June 22, 2011, plaintiff submitted eleven
documents for consideration. On June 23, 2011, defendant filed objections. The two
Conduct Reports and one Incident Report that plaintiff submitted were already admitted
into evidence at trial and will not be admitted again. The remainder of the documents
are medical records that the court will admit for the limited purpose of evidencing that
plaintiff was examined by defendant’s medical staff on the dates noted on the
documents. Said documents will be admitted as Plaintiff’s Exhibits 18-25.
Case No. 2010-03771                        -2-                MAGISTRATE DECISION

       {¶3} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Warren Correctional Institution (WCI) pursuant to R.C. 5120.16.
Plaintiff testified that on January 17, 2009, inmate Riley came to his cell and attacked
him and fractured his jaw. Plaintiff further testified that on March 16, 2009, inmate
Towson, a friend of Riley’s, started a fight with him during which his jaw was again
fractured. Plaintiff asserts that defendant had notice of an impending assault on both
occasions and failed to protect him. Plaintiff further asserts that the attack on January
17, 2009, would not have occurred if his cell door had been locked per defendant’s
policy at the time.
       {¶4} Lonnie Rarden was plaintiff’s cellmate at the time he was attacked by Riley.
Riley is Rarden’s nephew and former cellmate. According to Rarden, he and Riley were
cellmates for almost a year when, on November 23, 2008, they were involved in a
physical altercation that ultimately led to Riley being placed in segregation and Rarden
moving into a cell with plaintiff. Rarden stated that he returned from eating dinner on
January 17, 2009, to find that Riley had attacked plaintiff and attempted to steal items
from the cell.
       {¶5} Roger Tackett was employed as a corrections officer (CO) at WCI from
2006 through May 2011. Tackett testified that he observed the fight between plaintiff
and Riley on January 17, 2009, and that he issued a conduct report on each inmate for
fighting.   (Defendant’s Exhibits A, E.)   According to Tackett, the cell doors were
unlocked every thirty minutes or so to allow inmates to go to the dining room or to the
recreation area. Tackett’s conduct report for plaintiff states that Tackett observed Riley
enter plaintiff’s cell and fight with plaintiff. (Defendant’s Exhibit A.) Tackett further
testified that he was not aware of any prior problems between Riley and Rarden or Riley
and plaintiff, and had no knowledge of an impending assault on plaintiff by Riley.
Case No. 2010-03771                         -3-                MAGISTRATE DECISION

       {¶6} CO Roman Mulligan testified that he responded to the fight between plaintiff
and inmate Towson on March 16, 2009, and subsequently filed both a conduct and
incident report. (Defendant’s Exhibit B.) According to Mulligan’s report, he and another
CO observed plaintiff and Towson fighting in the “dayroom” and separated the two after
administering chemical spray.        Mulligan testified that he was not aware of prior
problems between plaintiff and Towson, and had no prior warning that Towson would
attack plaintiff.   In order for plaintiff to prevail upon his claim 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 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
prisoners; however, the state is not an insurer of inmate safety. Williams v. Southern
Ohio Correctional Facility (1990), 67 Ohio App.3d 517, 526.
       {¶7} Defendant is not liable for the intentional attack on one inmate by another
unless it has adequate notice of an impending attack upon that specific inmate. Notice
is lacking where defendant does not have any knowledge of prior problems, disputes, or
altercations between the victim and the assailant and institutional staff have no
indication that an attack is going to occur. Elam v. Ohio Dept. of Rehab. & Corr.,
Franklin App. No. 09AP-714, 2010-Ohio-1225, ¶10-11, citing Doss v. Ohio Dept. of
Rehab. & Corr. (Mar. 28, 2000), Franklin App. No. 99AP-661, and McDonald v. Ohio
Dept. of Rehab. & Corr., Franklin App. No 02AP-735, 2003-Ohio-513.
       {¶8} Based upon the testimony and evidence presented at trial, the court finds
that defendant did not have any notice of an impending attack on plaintiff by either Riley
or Towson. The court further concludes that defendant acted reasonably and pursuant
Case No. 2010-03771                         -4-                MAGISTRATE DECISION

to policy with respect to plaintiff’s cell being unlocked on January 17, 2009.
Accordingly, judgment is recommended in favor of defendant.
         {¶9} 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).



                                           _____________________________________
                                           MATTHEW C. RAMBO
                                           Magistrate

cc:


Daniel R. Forsythe                            Gordon Sage, #458-271
Kristin S. Boggs                              Mansfield Correctional Institution
Assistant Attorneys General                   P.O. Box 788
150 East Gay Street, 18th Floor               Mansfield, Ohio 44901-0788
Columbus, Ohio 43215-3130

MR/dms
Filed August 5, 2011
To S.C. reporter September 22, 2011
