[Cite as Click v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-1407.]

                                                        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




GREGORY CLICK

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2009-02031

Judge Joseph T. Clark
Magistrate Matthew C. Rambo

JUDGMENT ENTRY




        {¶ 1} On October 12, 2010, the magistrate issued a decision recommending
judgment for defendant.
        {¶ 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 10, 2011, with leave of the court, plaintiff filed his
objections. On that same date, plaintiff also filed a poverty statement and an affidavit of
evidence pursuant to Civ.R. 53(D)(3)(b)(iii).1
        {¶ 3} On January 21, 2011, defendant filed a motion to strike plaintiff’s affidavit
of evidence. On January 27, 2011, plaintiff filed a response. Civ.R. 53(D)(3)(b)(iii),
states, in part: “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


1
 Plaintiff’s January 4, 2011 “third motion of plaintiff to extend time to prepare and file an affidavit of
evidence, an affidavit of indigency and to file objections” is DENIED as moot.
Case No. 2009-02031                                -2-                          JUDGMENT ENTRY

the evidence submitted to the magistrate relevant to that finding or an affidavit of that
evidence if a transcript is not available.”
        {¶ 4} In Wolfe v. Ohio Dept. of Rehab. and Corr., Franklin App. No. 10AP-443,
2010-Ohio-6180, the Tenth District Court of Appeals determined that a transcript of
proceedings is “unavailable” to the objecting party where proof of indigence is provided.
Id. at ¶14.     In accordance with the rule, plaintiff has provided satisfactory proof of
indigence and he has submitted his own affidavit of evidence relevant to his objections.
Therefore, defendant’s motion is DENIED.2
        {¶ 5} 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
worked as a mechanic in the garment shop at ACI on February 15, 2007. He claims he
injured his back when he was struck by rolls of fabric that fell from a shelf as other
inmates were taking inventory. The magistrate found that plaintiff failed to prove that he
had been struck by the rolls of fabric. Further, the magistrate found that even if plaintiff
had been struck, he failed to establish that the accident resulted from the absence of
due care on the part of defendant or that the accident was a proximate cause of his
back injury.
        {¶ 6} In reviewing plaintiff’s objections, “the court must conduct an independent
analysis of the underlying issues, undertaking the equivalent of a de novo determination
and independently assessing the facts and conclusions contained in the magistrate’s
decision.” Shihab & Assoc. Co. LPA v. Ohio Dept. of Transp., 168 Ohio App.3d 405,
2006-Ohio-4456, ¶13.
        {¶ 7} In his first and second objections, plaintiff argues that the magistrate erred
in failing to give proper weight to certain evidence favorable to the plaintiff. The court
disagrees.

2
 Plaintiff’s January 27, 2011 “motion to adopt an alternate procedure for indigent plaintiffs in accordance
with Rule 9(C), Ohio Rules of Appellate Procedure” is DENIED. See Civ.R. 1.
Case No. 2009-02031                          -3-                       JUDGMENT ENTRY

       {¶ 8} While the Interdisciplinary Progress Notes (Plaintiff’s Exhibit 9) provided
some evidence that plaintiff suffered from a back injury, plaintiff failed to convince the
magistrate that falling rolls of fabric caused his injury. Moreover, plaintiff’s affidavit
states that Mr. Ronald Ditto, an employee of ACI, testified that a medical report must be
completed for every accident but that he found no documentation regarding the accident
in his accident report files. (Defendant’s Exhibit G.) Therefore, upon review of plaintiff’s
affidavit and other documentary evidence, the court finds that the magistrate properly
weighed the evidence presented and determined that plaintiff failed to prove either that
the accident occurred or that he suffered an injury therefrom.
       {¶ 9} As to the evidentiary weight afforded to plaintiff’s Informal Complaint
Resolution dated February 16, 2007 (Defendant’s Exhibit F) and plaintiff’s Notification of
Grievance from February 23, 2007 (Defendant’s Exhibit E), the court finds that the
magistrate did not err.     The fact that Defendant’s Exhibits E and F have not been
acknowledged or signed by the proper officials from ACI supports the magistrate’s
conclusion that defendant never received these documents. Upon review of plaintiff’s
affidavit, other documentary evidence presented at trial, and the magistrate’s decision,
the court finds that the magistrate properly weighed the evidence presented and
determined that plaintiff failed to prove that defendant had received notice of any
accident involving plaintiff.
       {¶ 10} In his third objection, plaintiff argues that the magistrate erred in failing to
give proper weight to plaintiff’s witnesses. It is well-settled that the magistrate, as the
trier of fact, is in the best position to weigh the testimony and assess the credibility of
witnesses.    Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80.                 The
magistrate found that plaintiff’s testimony lacked credibility.      Further, the magistrate
determined that the inmates who testified on behalf of plaintiff provided inconsistent
testimony. According to plaintiff’s affidavit, plaintiff’s witnesses recalled hearing plaintiff
cry out, but that they did not see any rolls fall on plaintiff. Further, the magistrate noted
that one witness stated that several rolls of fabric fell on plaintiff; another said a “whole
Case No. 2009-02031                           -4-                       JUDGMENT ENTRY

shelf” fell on plaintiff; and a third testified that a single roll fell on plaintiff. Plaintiff’s
affidavit states that he testified that several rolls struck him while he was working. In
short, upon review of plaintiff’s affidavit and other documentary evidence presented at
trial, the court finds that the magistrate properly determined that the testimony of plaintiff
and his witnesses was not credible.
          {¶ 11} In his fourth objection, plaintiff asserts that the magistrate’s decision is
contrary to law and against the manifest weight of the evidence. The court does not
agree.
          {¶ 12} 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. Therefore, the objections are OVERRULED and the court
adopts the magistrate’s decision and recommendation as its own, including 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.



                                            _____________________________________
                                            JOSEPH T. CLARK
                                            Judge

cc:


Douglas R. Folkert                              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

JSO/cmd
Filed February 25, 2011
To S.C. reporter March 22, 2011
