[Cite as Watson v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-3879.]



                                                       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




BERNARD WATSON

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

        Case No. 2009-08080

Judge Joseph T. Clark
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 Allen Correctional Institution (ACI) pursuant to R.C. 5120.16. Plaintiff
alleges that on December 18, 2008, at approximately 2:30 p.m., inmate Tam Ally
assaulted him. The testimony and evidence adduced at trial shows that Ally acted
erratically prior to attacking plaintiff and that corrections officers (COs) were aware of
his behavior.      Plaintiff alleges such knowledge constituted notice of an impending
assault and that defendant failed to act on such notice and prevent the assault.
        {¶ 3} 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-
Case No. 2009-08080                         -2-                MAGISTRATE DECISION

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.
       {¶ 4} Defendant is not liable for the intentional attack on one inmate by another
unless it has adequate notice, either actual or constructive, of an impending assault.
Mitchell v. Ohio Dept. of Rehab. & Corr. (1995), 107 Ohio App.3d 231, 235; Metcalf v.
Ohio Dept. of Rehab. & Corr., Franklin App. No. 01AP-292, 2002-Ohio-5082. The
distinction between actual and constructive notice is in the manner in which notice is
obtained rather than in the amount of information obtained. 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. In re Estate of Fahle (1950), 90 Ohio App. 195, 197.
       {¶ 5} Former inmate Eric Charles Murray was incarcerated at ACI in the 4B
housing unit at the time of the incident and shared a cell with Ally on the second floor of
the unit.    The transcript of Murray’s deposition was introduced in lieu of his live
testimony.    (Plaintiff’s Exhibit 12.)   That testimony, coupled with that of CO Jon
Alexander establishes the events of December 17 and 18, 2008, as set out below.
       {¶ 6} The night before the incident, Ally did not sleep. He instead spent the night
pacing the floor in the cell between the door and window, and “shadow boxing” the
mirror and his coat. Murray stated that Ally would not speak to him and that he acted as
if he were waiting for something or someone.
       {¶ 7} The next morning at 5:30 a.m. when the door to the cell was opened so that
Murray could go to work in the ACI kitchen, Ally sprinted out of the cell, down the stairs,
and outside the unit. Murray went to work and returned some time between 8:00 a.m.
and 8:30 a.m. to find Ally repeating his actions of the night before; that is, shadow
Case No. 2009-08080                         -3-                 MAGISTRATE DECISION

boxing and pacing about the cell. Murray reported Ally’s behavior to Alexander who
went to the cell, observed Ally’s behavior, found it “strange,” and called the shift captain
and the “psych” department.
       {¶ 8} At approximately 11:00 a.m., during “count” time, Ally used his and Murray’s
locker box and other items to barricade the cell door and stood in the middle of the cell
in a “defensive” position. After count was over, Alexander ordered Ally to report to the
shift captain’s office.   Ally returned from the captain’s office a short time later and
removed the barricade. However, Ally’s behavior remained erratic. At approximately
1:30 p.m., Alexander was directed by mental health treatment staff to send Ally to them;
however, Ally refused to communicate with Alexander and remained standing atop a
locker box in his cell in a defensive posture. Shortly thereafter, a second CO ordered
Ally to report to the mental health department. Ally seemed to comply with the order
and left the building for a short time, but he did not report to the mental health
department. At approximately 2:15 p.m., Ally returned to the unit, at which time he
approached a cell where a group of inmates, including plaintiff, were conversing. Ally
grabbed the door of the cell and swung it shut, striking plaintiff. Plaintiff wrestled Ally to
the ground and restrained him until COs and other staff responded to the scene.
       {¶ 9} John Alberts was the shift captain on duty at the time of the incident.
Alberts stated that prior to attacking plaintiff, Ally was sent to his office by a CO for
“acting peculiar.” Alberts testified that he does not specifically remember talking to Ally,
but that the normal procedure in such instances is to ask the inmate if he intended to do
harm to himself, other inmates, or to staff. If the answer is “no,” then the inmate is
referred to the “psych” department for assessment, when possible, and sent back to his
housing unit. Alberts stated that he did not remember any particular problems with Ally.
       {¶ 10}     James LaPoint is the current Clinical Director of Mental Health
Administration for ACI. LaPoint testified that he is the custodian of Ally’s mental health
records and that he reviewed those records in preparing for trial. (Plaintiff’s Exhibit 6.)
According to LaPoint, Ally was evaluated by mental health professionals on December
Case No. 2009-08080                        -4-                 MAGISTRATE DECISION

18, 2008 but, prior to that, his last referral to the mental health department had been in
1993, although there was a note in his records from a 2005 parole hearing. LaPoint
opined that, based upon his position as the Clinical Director of Mental Health
Administration for ACI, the behavior exhibited by Ally prior to the incident with plaintiff
did not require “immediate intervention” by mental health staff, and that Ally’s actions
were not necessarily uncommon for inmates at ACI.
       {¶ 11}    Plaintiff, Murray, Alexander, CO David Burkholder, and inmates Darryl
Gray, Mario Odom, and Ralph Bringht all testified that prior to the events of December
17, and 18, 2008, they were not aware of any unusual or violent behavior by Ally.
       {¶ 12}    Recently, in a similar case, the Tenth District Court of Appeals stated
that defendant’s knowledge that an inmate “was not taking his medication, mumbled to
himself, and was acting erratically, does not translate into actual or constructive notice
that [he] posed a risk of violence or that his attack on [a fellow inmate] was
forthcoming.” Hughes v. Ohio Dept. of Rehab. & Corr., Franklin App. No. 09AP-1053,
2010-Ohio-4736, ¶15.      The court further noted that there was no evidence that
defendant was aware of any threats of violence by the assailant against any other
inmate, including the victim. Id.
       {¶ 13}    Based upon the above testimony, the court finds that defendant did not
have either actual or constructive notice of an impending attack by Ally on plaintiff. The
testimony demonstrates that while Ally’s behavior may have been erratic before the
attack, he was not violent or dangerous and did not demonstrate a threat to himself or
fellow inmates. Accordingly, judgment is recommended in favor of defendant.
       {¶ 14}    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. 2009-08080                         -5-               MAGISTRATE 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).


                                           _____________________________________
                                           MATTHEW C. RAMBO
                                           Magistrate

cc:


Eric A. Walker                                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 November 10, 2010
To S.C. reporter December 1, 2010
