[Cite as Williams v. Dept. of Rehab. & Corr., 2018-Ohio-3604.]




NATHANIEL WILLIAMS, ADMR., etc.                        Case No. 2016-00125JD

       Plaintiff                                       Judge Patrick M. McGrath
                                                       Magistrate Robert Van Schoyck
       v.
                                                       DECISION
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant



        {¶1} Before the court are written objections to a magistrate’s decision filed on
May 25, 2018, by plaintiff Nathaniel Williams and motions with attachments that the
parties have filed.         For reasons set forth below, the court holds that Williams’s
objections should be overruled, that the parties’ motions should be granted, that the
magistrate’s decision should be adopted, and that judgment should be rendered in favor
of defendant Ohio Department of Rehabilitation and Correction (ODRC).

    I. Background and Procedural History
        {¶2} Nathaniel Williams, individually and as the administrator of the estate of
Na’Taun Montrell Williams, has brought a wrongful-death action against ODRC.
Williams’s case arises from the death of Na’Taun Montrell Williams, who, at the time of
his death, was an inmate at Ross Correctional Institution (RCI). Williams died after
another inmate, Carl Hall, stabbed Williams during a fight between Williams and Hall on
June 27, 2011.
        {¶3} On February 22, 2016, Nathaniel Williams, through counsel, sued ODRC,
alleging wrongful death based on negligence and “intentional tortious conduct.” The
court appointed Robert Van Schoyck, an attorney admitted to practice in Ohio, as a
magistrate in the cause without limitation of authority specified in Civ.R. 53(C). In its
entry of appointment, the court stated that “Civ.R. 53 shall govern the proceedings and
Case No. 2016-00125JD                         -2-                            DECISION


the decision of the magistrate” and that objections to the magistrate’s decision, if any,
“shall be filed as provided in Civ.R. 53(D)(3)(b).”
       {¶4} The court, through an order issued by Magistrate Van Schoyck, bifurcated
issues of liability and damages for trial. Upon ODRC’s motion for judgment on the
pleadings, the court granted in part and denied in part ODRC’s motion. On October 16-
17, 2017, Magistrate Van Schoyck conducted a trial on the issue of liability.       In a
decision issued on April 27, 2018, Magistrate Van Schoyck found that “plaintiff failed to
prove his claim by a preponderance of the evidence.” (Magistrate’s Decision, 28.) And
Magistrate Van Schoyck recommended judgment in favor of ODRC.              (Magistrate’s
Decision, 28.)
       {¶5} After Magistrate Van Schoyck issued his decision, the parties submitted the
following filings to the court:
   (1) objections filed on May 25, 2018, by Nathaniel Williams to Magistrate
       Van Schoyck’s decision of April 27, 2018;
   (2) a motion filed on June 4, 2018, by ODRC that is labeled “Defendant’s Motion For
       Leave Instanter To File Response To Plaintiff’s Objections To Decision Of The
       Magistrate”;
   (3) a response filed on June 4, 2018, by ODRC that ODRC contemporaneously filed
       with its motion for leave instanter;
   (4) a motion filed on June 6, 2018, by Nathaniel Williams that is labeled “Plaintiffs’
       [sic] Motion For Leave To File Reply To Defendant’s Response to Plaintiffs’ [sic]
       Objections To Decision of The Magistrate Instanter”;
   (5) a reply filed on June 6, 2018, by Nathaniel Williams that Williams filed
       contemporaneously with a motion for leave instanter.

   II. Determination regarding the parties’ motions instanter.
       {¶6} ODRC has moved instanter for leave to file a response to Nathaniel
Williams’s objections and, without leave, ODRC has filed a response. Williams has
Case No. 2016-00125JD                        -3-                                   DECISION


moved instanter for leave to file a reply in support of his objections and, without leave,
Williams has filed a reply. ODRC asserts: “While Civ.R. 53 does not permit a party to
file a response to another party’s objections to a magistrate decision and
recommendation, neither does the rule prohibit a such response. Likewise, this Court’s
Rules and Local Rules do not specifically grant a response, but do not explicitly prohibit
such a response.      Therefore, it appears that this Court has discretion to allow a
response when appropriate.”       Williams raises a similar argument in support of his
motion instanter for leave to file a reply. The court is not persuaded by ODRC’s or
Williams’s interpretations of the relevant rules. However, as discussed below, the court
agrees to accept ODRC’s response and Williams’s reply.
       {¶7} Pursuant to R.C. 2743.03(D), the Ohio Rules of Civil Procedure “shall
govern practice and procedure in all actions in the court of claims, except insofar as
inconsistent with this chapter.”       Civ.R. 53(D)(3)(b) pertains to objections to a
magistrate’s decision.    According to Civ.R. 53(D)(3)(b)(i), 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). If any party timely files objections, any other party
may also file objections not later than ten days after the first objections are filed.” Under
Civ.R. 53(D)(3)(b)(i), objections to a magistrate’s decision are expressly permitted. But,
under Civ.R. 53(D)(3)(b)(i) a response to another party’s objections to a magistrate’s
decision and a reply in support of a party’s objections to a magistrate’s decision are not
expressly authorized. And a review of Civ.R. 53 discloses no provision contained in
Civ.R. 53 that expressly authorizes the filing of a response to another party’s objections
to a magistrate’s decision or the filing of a reply in support of a party’s objections.
       {¶8} Additionally, the Local Rules of the Court of Claims (L.C.C.R.) do not
expressly authorize a party to file a response to a party’s objections to a magistrate’s
decision or a reply in support of a party’s objections to a magistrate’s decision. See
Case No. 2016-00125JD                        -4-                                  DECISION


L.C.C.R. 4(C) (permitting a party to file a brief in opposition to a motion); L.C.C.R. 4(C)
(reply briefs or additional briefs “may be filed only upon a showing of the necessity
therefor and with leave of court”); L.C.C.R. 24(B)(1) (reparation appeals) (permitting a
party to file written objections within fourteen days of the filing of a magistrate’s decision
and permitting any other party to file objections not later than ten days after the first
objections are filed).
       {¶9} The court is cognizant that Ohio case law recognizes that Ohio trial courts
have discretion to consider motions instanter. See Howell v. City of Canton, 5th Dist.
Stark No. 2007CA00035, 2008-Ohio-5558, ¶ 11 (a decision to grant or deny leave to file
a motion instanter “rests in the trial court’s discretion”); Eady v. E. Ohio Gas, 9th Dist.
Summit C.A. No. 19598, 2000 Ohio App. LEXIS 1963, at *7-8 (May 10, 2000) (applying
an abuse-of-discretion standard of review to a trial court’s decision to deny a motion for
leave to file an answer instanter during a hearing). And Ohio case law also recognizes
that a trial court has discretion to consider a filing that is appended to a motion instanter.
In Ramos v. Khawli, 181 Ohio App.3d 176, 2009-Ohio-798, 908 N.E.2d 495, ¶ 70-71
(7th Dist.), the Seventh District Court of Appeals stated:

       One of the functions of an instanter motion is to allow the motion filed
       simultaneously therewith to be accepted as filed without further action by
       the movant; otherwise, the party would merely ask for leave to file in the
       future without filing the motion at the same time or seeking instanter
       leave.

       Even where a motion is merely attached to the instanter motion rather
       than separately filed, courts have held that a trial court is within its
       discretion to consider a pleading that is properly attached to a motion for
       leave to file instanter.

In this instance, because under Ohio case law a trial court has discretion to consider
motions instanter and filings that are appended to such motions, because no party has
opposed the other party’s motion for leave instanter or the filing attached to the other
party’s motion for leave instanter, and because it does not appear to the court that
Case No. 2016-00125JD                        -5-                                  DECISION


prejudice will result if the parties’ motions for leave instanter are granted and the filings
attached to the motions instanter are accepted, the court GRANTS the parties’ motions
for leave instanter and accepts the filings attached to the motions for leave instanter.

    III. Nathaniel Williams’s written objections to the magistrate’s decision are not
         well-taken.
         {¶10} Nathaniel Williams presents this court with written objections to Magistrate
Van Schoyck’s decision. Civ.R. 53(D)(3)(b)(ii) provides: “An objection to a magistrate’s
decision shall be specific and state with particularity all grounds for objection.” And,
according to Civ.R. 53(D)(3)(b)(iii): “An objection to a factual finding, whether or not
specifically designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be
supported by a transcript of all the evidence submitted to the magistrate relevant to that
finding or an affidavit of that evidence if a transcript is not available.” Here, according to
the court’s docket, a transcript of the proceedings held on October 16-17, 2017 has
been filed.
         {¶11} Civ.R. 53(D)(4) governs a court’s action on objections to a magistrate’s
decision.     According to Civ.R. 53(D)(4)(a), a magistrate’s decision “is not effective
unless adopted by the court.” Pursuant to Civ.R. 53(D)(4)(d), if one or more objections
to a magistrate’s decision are timely filed, the court “shall rule on those objections.”
Here, upon Williams’s motion, the court permitted Williams to file objections to the
magistrate’s decision on or before May 25, 2018. And on May 25, 2018, Williams filed
written objections to the magistrate’s decision. Williams’s objections are thus timely
filed.
         {¶12} According to Civ.R. 53(D)(4)(d), in ruling on objections, a court “shall
undertake an independent review as to the objected matters to ascertain that the
magistrate has properly determined the factual issues and appropriately applied the
law.” When this court independently reviews objections to a magistrate’s decision, this
court may give weight to a magistrate’s assessment of witness credibility in view of a
Case No. 2016-00125JD                       -6-                                DECISION


magistrate’s firsthand exposure to the evidence.      See Siegel v. Univ. of Cincinnati
College of Medicine, 2015-Ohio-441, 28 N.E.3d 612, ¶ 12 (10th Dist.) (“‘Although the
trial court may appropriately give weight to the magistrate’s assessment of witness
credibility in view of the magistrate’s firsthand exposure to the evidence, the trial court
must still independently assess the evidence and reach its own conclusions.’ Sweeney
v. Sweeney, 10th Dist. No. 06AP-251, 2006-Ohio-6988, ¶ 15, citing DeSantis v. Soller,
70 Ohio App.3d 226, 233, 590 N.E.2d 886 (10th Dist.1990)”). Thus, in this instance, the
court properly may give weight to the magistrate’s assessment of the credibility of the
testimony of the parties’ witnesses and other evidence before the court.
      {¶13} Williams asks the court to rule on these objections:
   1. “The Magistrate’s Finding That Defendant Did Not Have Sufficient Notice, Actual
      or Constructive, To Be Liable For Williams’ Death is Contrary to the Greater
      Weight of the Evidence.” (Objections, 9.)
   2. “The Magistrate Erred in Finding That Any Contributory Fault Would Be Greater
      In Degree Than Any Fault Attributable to Defendant.” (Objections, 12.)

      A. Williams’s First Objection
      {¶14} Williams’s first objection presents the court with this issue: whether the
magistrate’s finding—namely, that ODRC did not have sufficient actual notice or
constructive notice so as to impute liability on ODRC for the death of Na’Taun
Williams—is supported by the greater of weight of the evidence. In his decision, the
magistrate stated:

          The greater weight of the evidence establishes that defendant did not
      have sufficient notice, actual or constructive, to be liable for the fatal
      injuries that [inmate Na’Taun Williams] sustained. There is no credible
      evidence that [inmate Carl Hall] ever threatened to harm Williams, much
      less that Williams or anyone else told prison staff that one or the other was
      in danger. Williams was the one perpetuating the dispute, and to notify
      staff of a problem would effectively have been to reveal his own
      misconduct in attempting to extort payment from Hall under a threat of
Case No. 2016-00125JD                        -7-                                  DECISION


       violence. When investigating the injury Hall sustained on May 24, 2011,
       [Lieutenant Joey Powers] specifically asked Williams about any
       involvement he had with Hall, but Williams lied and denied having
       anything to do with Hall.

(Emphasis added.) (Magistrate’s Decision, 23.) In accordance with Siegel at ¶ 12, this
court finds that, in view of Magistrate Van Schoyck’s firsthand exposure to the evidence,
Magistrate Van Schoyck’s assessment of the credibility of the evidence before him
should be given weight.
       {¶15} In State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),
discussing the concept of weight of the evidence, the Ohio Supreme Court stated:
“Weight of the evidence concerns ‘the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other. It
indicates clearly to the jury that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds, they shall find the greater
amount of credible evidence sustains the issue which is to be established before them.
Weight is not a question of mathematics, but depends on its effect in inducing belief.’
(Emphasis added.) Black’s, supra, at 1594.” Thompkins further states that, when an
appellate court reverses a trial court’s judgment on the basis that a verdict is against the
manifest weight of the evidence, the appellate court

       sits as a “‘thirteenth juror’” and disagrees with the factfinder’s resolution of
       the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S. Ct. at 2218, 72 L.
       Ed. 2d at 661. See, also, State v. Martin (1983), 20 Ohio App. 3d 172,
       175, 20 Ohio B. Rep. 215, 219, 485 N.E.2d 717, 720-721 (“The court,
       reviewing the entire record, weighs the evidence and all reasonable
       inferences, considers the credibility of witnesses and determines whether
       in resolving conflicts in the evidence, the jury clearly lost its way and
       created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered. The discretionary power to grant a new
       trial should be exercised only in the exceptional case in which the
       evidence weighs heavily against the conviction.”).
Case No. 2016-00125JD                      -8-                                DECISION


Thompkins at 387.      Since the Ohio Supreme Court issued Thompkins, the Ohio
Supreme Court has recognized that the Thompson standard of review for manifest
weight of the evidence applies in civil cases. Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, 972 N.E.2d 517, ¶ 17-23.
      {¶16} Upon the court’s independent review of the record before it, the court
agrees with the magistrate’s determination that no credible evidence is in the record to
support a conclusion that inmate Carl Hall threatened to harm Na’Taun Williams or that
Williams or anyone else told prison staff either Hall or Williams was in danger. The
court determines that the magistrate did not lose his way when he determined that
Williams failed to prove by a preponderance of the evidence that ODRC did not have
sufficient notice—actual or constructive—to be liable for the fatal injuries that Na’Taun
Williams sustained. And the court further determines that the magistrate’s decision
relative to the issue of actual notice and constructive notice is not against the manifest
weight of the evidence.
      {¶17} The court holds that Williams’s first objection should be overruled.

      B. Williams’s Second Objection
      {¶18} Williams’s second objection presents the court with this issue: whether the
magistrate erred when he found that any contributory fault would be greater in degree
than any fault attributable to ODRC. In the magistrate’s decision, the magistrate stated:

             Finally, although the magistrate sympathizes with the loss suffered
      by Williams’ family, even if plaintiff had proven some negligence on the
      part of defendant, Williams’ contributory fault would be greater in degree
      than any fault attributable to defendant, thus barring plaintiff from
      recovering damages. See R.C. 2315.33. Having already battered Hall
      once before and then making repeated, extortionary threats of further
      violence, it was Williams who followed through and launched an attack
      upon Hall on June 27, 2011. Plainly, Williams prompted and could have
      reasonably avoided the altercation. By failing to do so, he did not exercise
      reasonable care for his own safety. In [Williams v. Southern Ohio
      Correctional Facility, 67 Ohio App.3d 517, 526, 587 N.E.2d 870 (10th
Case No. 2016-00125JD                      -9-                               DECISION


       Dist.1990)], an inmate, Williams, had an ongoing dispute with another
       inmate, Lorraine. Williams approached Lorraine’s cell and attempted to
       strike Lorraine, and in the altercation Williams was allegedly poked in the
       eye and injured. It was held that Williams was contributorily negligent by
       choosing to put himself within reach of Lorraine and attempting to strike
       Lorraine. Here, inmate Williams was contributorily negligent in pressuring,
       threatening, and attacking Hall.

(Magistrate’s Decision, 27-28.)

       {¶19} In this instance, when the magistrate addressed the issue of Williams’s
contributory negligence, the magistrate seems to have determined that Williams failed
to prove negligence as evidenced by language used in the decision: “even if plaintiff had
proven some negligence on the part of defendant, [Na’Taun] Williams’s contributory
fault would be greater in degree than any attributable to defendant * * *.” (Emphasis
added.)    Because the magistrate determined that Williams failed to prove some
negligence on the part of ODRC, the magistrate’s determination regarding Williams’s
contributory negligence seemingly is unnecessary. See generally State ex rel. Luken v.
Corp. for Findlay Mkt. of Cincinnati, 135 Ohio St.3d 416, 2013-Ohio-1532, 988 N.E.2d
546, ¶ 25 (discussing principle of judicial restraint). And because, when the magistrate
discussed the issue of contributory negligence, the magistrate already had determined
that Williams failed to sustain his burden of proving negligence by ODRC, the
magistrate’s contributory-negligence determination essentially is moot or academic.
See State v. Carr, 5th Dist. Stark No. 2014CA00200, 2015-Ohio-1987, ¶ 11 (“Black’s
Law Dictionary (8 Ed.Rev.2004) 1029 defines ‘moot’ as, among other things, ‘[h]aving
no practical significance; hypothetical or academic’”).    The court finds that in this
instance the magistrate’s contributory-negligence discussion fails to be substantially
prejudicial.
       {¶20} Additionally, evidence submitted by plaintiff shows that plaintiff’s expert,
Roy T. Gravette, conceded that Na’Taun Williams could have avoided the altercation of
June 27, 2011.    During a deposition, when plaintiff’s counsel inquired of Gravette,
Case No. 2016-00125JD                       -10-                                 DECISION


whether,   in   Gravette’s   professional   opinion,    he   agreed   with   a   view   that
Na’Taun Williams could have avoided the altercation of June 27, 2011 that led to
Na’Taun Williams’s death, Gravette testified, “Yes, he could have avoided it.” (Plaintiff’s
Exhibit 28, Deposition of Roy T. Gravette, 93.) Thus, the plaintiff’s expert appears to
hold a professional opinion that is consistent with the magistrate’s view that “Williams
* * * could have reasonably avoided the altercation.”
      {¶21} Upon independent review, the court does not find that the magistrate erred
when he considered risks taken by Williams, which the magistrate considered to be
unjustified, alongside ODRC’s purported negligence.           The court determines that
Williams’s second objection should be overruled.

   IV. Conclusion
      {¶22} Accordingly, for reasons set forth above, the court holds that Williams’s
objections should be overruled.       Because Magistrate Van Schoyck has properly
determined the factual issues and appropriately applied the law, the court determines
that Magistrate Van Schoyck’s decision of April 27, 2018 should be adopted.




                                            PATRICK M. MCGRATH
                                            Judge
[Cite as Williams v. Dept. of Rehab. & Corr., 2018-Ohio-3604.]




NATHANIEL WILLIAMS, ADMR., etc.                        Case No. 2016-00125JD

       Plaintiff                                       Judge Patrick M. McGrath
                                                       Magistrate Robert Van Schoyck
       v.
                                                       JUDGMENT ENTRY
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant



        {¶23} On April 27, 2018, a magistrate issued a decision recommending judgment
for defendant. Plaintiff timely filed objections to the magistrate’s decision.
        {¶24} Upon review of the record, the magistrate’s decision and the objections, the
court finds that the magistrate has properly determined the factual issues and
appropriately applied the law. The court OVERRULES plaintiff’s objections and 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 defendant.
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.




                                                    PATRICK M. MCGRATH
                                                    Judge

Filed August 15, 2018
Sent to S.C. Reporter 9/7/18
