[Cite as Skorvanek v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-8328.]




JOHN M. SKORVANEK                                     Case No. 2014-00845

       Plaintiff                                      Magistrate Robert Van Schoyck

       v.                                             DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant



        {¶1} Plaintiff was at all times relevant an inmate in the custody and control of
defendant at the Pickaway Correctional Institution (PCI).              Plaintiff brings this action
claiming that defendant was negligent in failing to prevent an attack upon him by
another inmate, Scott Creech, on November 12, 2013.                    The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.
        {¶2} Plaintiff testified at trial that he arrived at PCI in December 2011, serving a
prison term for drug and alcohol-related offenses. (Plaintiff also acknowledged that
more recently he served another prison term in Kentucky for a drug-related offense.)
Plaintiff, who explained that he was paralyzed in an automobile accident, testified that
when he came to PCI he was placed in the Frazier Health Center, a nursing facility for
disabled or chronically ill offenders.
        {¶3} Plaintiff related that when he came to Frazier Health Center, he recognized
Creech because many years earlier, around 1989, they were both incarcerated at the
Allen Correctional Institution. Plaintiff stated that he and Creech, who were placed just
two or three beds apart from one another, made small talk and reminisced about playing
softball at Allen, and plaintiff came to learn that Creech had arrived at Frazier Health
Center just a few days before he did. Throughout most of the time that they lived in the
facility, plaintiff stated, he and Creech were on friendly terms and regularly socialized,
Case No. 2014-00845                         -2-                                DECISION


having only minor disagreements at times about what to watch on television. Plaintiff
recalled that he often brought coffee to Creech and that they played chess together a
couple of times. According to plaintiff, very few of the other inmates would talk to
Creech, and plaintiff took some pity on him. By plaintiff’s description, Creech would talk
about other inmates in a disparaging or hostile manner from time to time, and plaintiff
stated that he intervened to diffuse a couple of situations where Creech was especially
upset, but plaintiff stated that he never knew of Creech to physically act out on his
frustrations or dislike of others.
       {¶4} Plaintiff testified, though, that as time went on Creech became more
antisocial. Plaintiff recalled that Creech grew despondent over the fact that defendant
would not provide him with a knee replacement. Plaintiff also recalled that Creech, who
is white, expressed racist sentiments and increasingly wanted to be moved to a different
bed because he wanted to get away from the inmate in the next bed over, a black
inmate named Hines.         Plaintiff stated that in addition to having a walker and a
wheelchair, Creech had a metal cane, and there were times when Creech would tap on
the cane and remark how it could be used as a weapon. But, plaintiff admitted that he
never told any staff members what Creech said about the cane.
       {¶5} Plaintiff testified that Creech eventually told him he was thinking about doing
some harm to Hines. Plaintiff stated that he was concerned enough about the conflict
between Creech and Hines that he mentioned it to the nursing staff and suggested that
one of the inmates be moved to another bed. Plaintiff’s recollection was that Hines
ended up going to another medical facility in Columbus by the time the incident at issue
in this case occurred.
       {¶6} By plaintiff’s description, Creech became more withdrawn and barely said
anything, and he did not make much sense when he did speak. Plaintiff remembered
Creech telling him that he thought the nurses were talking about him. Plaintiff testified
that another inmate, Donnie Waldroop, informed him in October or November 2013 that
Case No. 2014-00845                            -3-                             DECISION


Creech said something to the effect that he thought plaintiff was having him followed or
surveilled, and that he was thinking about harming plaintiff. Plaintiff stated that Creech
completely stopped talking to him about 15 days before the attack, but plaintiff stated
that it did not concern him much.            As plaintiff stated, Creech never personally
threatened him, and in spite of what Waldroop told him, he was not in fear that Creech
would actually attempt to harm him. Testifying about Creech and the eventual attack,
plaintiff “never thought his actions would lead to this.” Plaintiff admitted that he never
told any of the staff about what he heard from Waldroop, nor could he recall telling any
of the staff that Creech had stopped speaking to him. Plaintiff also acknowledged that
he never told the unit manager of any concerns about Creech, nor did he ever submit
any written complaint or correspondence to any staff members about Creech.
       {¶7} Describing the incident, plaintiff testified that a little after 7:00 a.m. on
November 12, 2013, he was asleep in bed, lying on his back, and his mouth was open.
Plaintiff stated that he was suddenly awakened by a burning sensation in his throat and
face, and he was so startled that he thought the building had been struck by a plane.
Plaintiff testified that when he rolled over and tried to get up, he received a blow to the
forehead. According to plaintiff, he could barely see at first due to the burning sensation
in his eyes, but once he was able to open his eyes he observed Creech standing beside
the bed and he heard a nurse yell “Creech, put that down.”
       {¶8} Surveillance video shows that Creech had filled a mug with water and
microwaved it for approximately four minutes, and then Creech rolled his wheelchair
over to plaintiff’s bed and suddenly poured the water in plaintiff’s mouth and face before
striking plaintiff in the head with a cane. (Plaintiff’s Exhibit 9.)
       {¶9} Plaintiff recalled staff rushing to the scene and Creech being restrained.
Plaintiff testified that ice packs were placed on him at first, and then he was wheeled out
to a nursing station, where his clothes were removed. Plaintiff described feeling the
Case No. 2014-00845                               -4-                                     DECISION


skin around his neck peel away when the clothes were removed. Plaintiff stated that an
ambulance transported him to the Ohio State University Medical Center for treatment.
       {¶10} Inmate Donnie Waldroop testified by way of deposition.1 (Plaintiff’s Exhibit
11.)   Waldroop, who knew Creech only by the nickname Squeaker, stated that he
remembered when plaintiff and Creech arrived at Frazier Health Center around the
same time as one another, and to him it seemed like they socialized a lot and were
good friends. Waldroop remembered that there was one time when Creech told him “he
was going to get” plaintiff, and Waldroop got the impression that Creech may have
become jealous about how many friends plaintiff had made. Waldroop also recalled
plaintiff telling him about a month before the incident that he thought Creech was “up to
something,” acting weird, and turning away from plaintiff. But, according to Waldroop,
no one took Creech very seriously and he was not aware of anyone ever telling staff of
any concerns about Creech. Plus, as Waldroop explained, he understood that plaintiff
and Creech had known one another for many years. Waldroop also stated that from his
own interactions with Creech, such as one time when Creech gave him a Bible as a gift,
he thought Creech was a decent person. Reflecting on what ultimately happened,
Waldroop testified that from everything he knew he “would never have dreamed of it
happening.”
       {¶11} Waldroop stated that he was lying awake in bed, next to plaintiff’s bed,
when he saw Creech roll his wheelchair from the microwave toward the beds.
Waldroop related that he thought nothing of it, as inmates used the microwave all the
time to heat water for making coffee.                   Waldroop recounted that when Creech
commenced to pour the water on plaintiff, Creech said “it was for something [plaintiff
had] done or something.” Waldroop testified that he got out of bed and was going to
restrain Creech, but it was all over within seconds as Nurses Heather Hagan and Lisa



       1The   objections raised in the deposition transcript at pages 13 and 30 are OVERRULED.
Case No. 2014-00845                              -5-                                     DECISION


Copeland ordered Creech to stop and Corrections Officer Debra Long and other officers
ran to the scene.
      {¶12} Inmate George Borgmann testified by way of deposition.2                       (Plaintiff’s
Exhibit 12.) Borgmann, who stated that he moved to Frazier Health Center in February
2013 and was assigned to a bed near plaintiff’s, testified that Creech “wasn’t all there,”
that he was a “nut,” and that he always thought people were talking about him or looking
at him funny. The way Borgmann described, Creech had a habit of rolling up in his
wheelchair and telling other inmates threatening things or complaining that people were
talking about him, and he recalled hearing Creech say about a month or two before the
attack that he disliked plaintiff and was “going to get [plaintiff] for talking about me.”
Borgmann testified that he has spent more than 40 years in prison and in his experience
the things that Creech would say were the type of “normal, idle threats” that inmates
make all the time, and when Creech would say things like that to him, he just told
Creech to go away. Still, Borgmann testified that he had seen Creech use his cane
before to strike some weaker old men in the bathroom.
      {¶13} Borgmann stated that he never told the staff about anything Creech had
said or done, and while he speculated that other inmates might have talked to a
sergeant about Creech, he admitted that he did not know what was said and that he
could not identify anything specifically about Creech that was ever brought to the
attention of the staff. Indeed, Borgmann made clear that he limits his interactions with
everyone and keeps to himself.
      {¶14} When the incident took place, Borgmann testified, he was awakened by the
sound of screaming and when he looked up he saw Creech hitting plaintiff with a cane,
at which point Nurse Hagan ran in and broke it up.
      {¶15} Heather Hagan testified that she is employed with defendant as a
registered nurse and has worked at PCI for over ten years. Hagan explained that

      2The   objections raised in the deposition transcript at pages 16 and 29 are OVERRULED.
Case No. 2014-00845                         -6-                                 DECISION


Frazier Health Center is home to inmates with a variety of medical issues, including
inmates with end-stage diseases, inmates recovering from surgery, and inmates with
limited or declining physical abilities. As Hagan related, there are five levels of security
classifications for inmates in defendant’s custody, and inmates with levels one through
three are permitted at Frazier, while the higher security inmates at levels four and five
must go to the Franklin Medical Center in Columbus if they need this sort of specialized
care.
        {¶16} Hagan testified that she was acquainted with plaintiff and Creech, and as
far as she could recall both of them had been assigned to beds near one another in the
west bay of Frazier Health Center throughout their time there. According to Hagan,
plaintiff never told her about any concern for his safety or any desire to be separated
from Creech, nor did Creech ever indicate to her that he might harm someone, and she
was shocked by what occurred.        Hagan described a protocol that the nursing staff
follows when an inmate says he is going to hurt himself or others, in which case security
is contacted and the inmate is placed under constant watch, and similarly when an
inmate says he is scared for his safety the nurse will take the inmate to security. Hagan
stated that in addition to speaking with staff, inmates have the ability to communicate
with staff by the institutional “kite” system of written correspondence, and they can file
informal complaints through the institutional grievance process. Regarding the fact that
Creech had a cane, Hagan testified that in 2013 inmates at Frazier Health Center were
only allowed to have a cane pursuant to a doctor’s order, which Creech had. Hagan
also testified that microwaves have been available for inmate use since the facility
opened, and inmates use them frequently throughout the day.
        {¶17} When the incident began, Hagan stated, she was in the “chart room,” which
connects the east bay to the west bay.         Hagan testified that upon hearing Nurse
Copeland yelling from the west bay, she immediately ran that way and saw Copeland
pointing at the disturbance. Hagan stated that she saw Creech standing with a cane
Case No. 2014-00845                           -7-                                 DECISION


raised over his head, but she did not see him strike plaintiff. By Hagan’s account, she
ordered Creech to drop the cane and she got in between Creech and plaintiff, and at
that time Creech dropped the cane. Hagan related that Corrections Officer Long then
arrived, followed by several other security staff members, including a Sergeant Byrum.
Hagan, who recalled that plaintiff’s upper body was wet and that there was a gash on
his head, testified that she prepared an incident report afterward. (Plaintiff’s Exhibit 4.)
       {¶18} Lisa Copeland testified that she is employed with defendant as a licensed
practical nurse and has worked at PCI for more than seven years. From Copeland’s
recollection, no inmate ever came to her before this incident and expressed concern
about Creech’s behavior, nor was she aware of any other nurses having problems with
Creech.
       {¶19} Copeland recalled that she was making rounds from bed to bed for the
morning pill call in the west bay, and she had just looked up toward a television on the
wall when she saw Creech standing up with his cane in the air. Copeland stated that
plaintiff yelled “oh my God, oh my God” and then Creech struck plaintiff in the head with
the cane. Copeland testified that she yelled at Creech, at which point Nurse Hagan and
then Corrections Officer Long ran to the scene, and she activated her “man down”
alarm, which caused other officers to respond. Copeland recalled that Hagan was the
first one to attend to plaintiff, and there were health aides who came in to assist.
Copeland explained that she was not able to leave her pill cart unattended, but when
Hagan asked for some gauze she was able to push the cart over and help. Copeland
remembered that plaintiff was bleeding and his clothes were wet. Afterward, Copeland
stated, she filled out an Incident Report. (Plaintiff’s Exhibit 5.)
       {¶20} Debra Long testified that she is now employed with defendant as a
licensed practical nurse at PCI, but from 2009 to 2011 she worked as a health aide in
Frazier Health Center and from 2011 to 2016 she worked there as a corrections officer.
As a corrections officer at that time, Long stated, she was responsible for providing
Case No. 2014-00845                        -8-                                DECISION


security throughout the facility, and she had to make rounds every 25 to 30 minutes
through the three bays (west, east, and north) which each had several rows of beds in
them. Long explained that the officers’ desk was in a central area between the bays.
Long testified that from the desk she could see through windows into the bays, which
altogether housed about 160 inmates at that time. Long indicated that inmates were
free to come up and talk to her, but that she never heard any complaints about Creech
before the attack, and she was not able to remember there ever being a prior inmate-
on-inmate altercation in the facility. Long also indicated that she had never before
known of an inmate to use hot water as a weapon, and she stated that inmates had
been using microwaves extensively since Frazier Health Center opened in 2009.
      {¶21} On the day of the incident, Long stated, she worked the first shift, from 6:00
a.m. to 2:00 p.m. Corrections officers are supposed to record when they make their
rounds in a log book, Long explained, and she authenticated a copy of a page from the
log book showing that she made rounds that morning at 6:02 a.m., 6:31 a.m., and 7:00
a.m. (Defendant’s Exhibit B.) As Long testified, the log book also includes a note from
her at 7:12 a.m. to document that the man down alarm had been activated. When
shown the surveillance video where Creech can be seen waiting by the microwave
while the water is being heated, Long identified herself, and the video shows that she
walked past Creech at that time, apparently while making rounds.
      {¶22} Long testified that she was walking through the chart room just off the west
bay when she heard Nurse Copeland yell. Long stated that she immediately ran into
the west bay and saw Creech standing by plaintiff’s bed, and she put Creech in
handcuffs.
      {¶23} Meredith Rinna testified that she is employed with defendant as the Mental
Health Administrator at the Toledo Correctional Institution (ToCI), where she has
worked in various roles for approximately 15 years. Rinna stated that in her current role
Case No. 2014-00845                           -9-                              DECISION


she spends some of her time treating inmates with mental illness, and as a licensed
independent social worker she is entitled to render mental health diagnoses.
      {¶24} Rinna testified that she is experienced in reviewing inmate mental health
files, and she explained that there is such a file for every inmate whether or not the
inmate is actually on the mental health caseload.       As Rinna related, every inmate
receives both a medical and a mental health evaluation when entering defendant’s
custody, and there are also similar evaluations performed when inmates are transferred
between institutions.   Rinna testified that the information obtained in these routine
evaluations goes into the inmate’s mental health file and is used for diagnostic and
other clinical purposes as may be necessary, but that the information is not used for
purposes of inmate security classification.
      {¶25} Rinna testified that inmates who are diagnosed as having a mental health
issue are placed on the mental health caseload, and the mental health files for these
inmates may be more extensive and include documents such as screenings, diagnostic
assessments, progress notes, and treatment. Rinna explained that the documents in
the mental health file are used by the mental health staff to guide their diagnosis and
treatment of the inmate, and with the possible exception of some high-level prison
officials, access to these documents is limited to only the mental health and medical
staffs. Rinna testified that she reviewed Creech’s mental health file, which was filed
under seal by defendant, and that the records contained therein are the type used
exclusively by the mental health staff for diagnosis and treatment.
      {¶26} Rinna also testified that each inmate has a disciplinary file and she
described the types of documents that this file may contain. Rinna authenticated a set
of disciplinary records from Creech’s file. (Plaintiff’s Exhibit 10.) According to Rinna,
every inmate who goes before the Rules Infraction Board (RIB) has some mental health
assessments or other mental health information included within their disciplinary
records, as mental health is taken into account in the RIB proceedings, and she
Case No. 2014-00845                         -10-                               DECISION


authenticated a set of documents pertaining to Creech that fall into this category.
(Plaintiff’s Exhibit 3.) Rinna explained that all the documents in the disciplinary file,
even those that relate to mental health, may be accessed by any of defendant’s staff.
As opposed to the documents in a mental health file that Rinna explained were not used
for inmate classification purposes, she testified that the documents in a disciplinary file
play a significant role in the inmate classification process.
       {¶27} Rinna stated that her first contact with Creech came in 2008, when Creech
was an inmate at ToCI. Rinna related that she was the Warden’s Assistant at that time,
so she would see Creech on a daily basis while making rounds throughout the
institution. Rinna stated that Creech left ToCI at some point and moved to PCI and
Frazier Health Center, but he returned to ToCI after the incident in this case took place.
       {¶28} Rinna testified that Creech has been in defendant’s custody since 1981.
Rinna stated that Creech’s security classification was reviewed annually, and that in
2008 he was reduced to level two, and in 2009 he was reduced to level one, the lowest
classification, and he remained at level one through the time this incident occurred.
       {¶29} “To establish negligence, a plaintiff must show the existence of a duty, a
breach of that duty, and injury resulting proximately therefrom.” Taylor v. Ohio Dept. of
Rehab. & Corr., 10th Dist. Franklin No. 11AP-1156, 2012-Ohio-4792, ¶ 15. “In the
context of a custodial relationship between the state and its prisoners, the state owes a
common-law duty of reasonable care and protection from unreasonable risks.” Jenkins
v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-787, 2013-Ohio-5106, ¶
8. “The state, however, is not an insurer of inmate safety and owes the duty of ordinary
care only to inmates who are foreseeably at risk.” Franks v. Ohio Dept. of Rehab. &
Corr., 10th Dist. Franklin No. 12AP-442, 2013-Ohio-1519, ¶ 17. “Reasonable care is
that degree of caution and foresight an ordinarily prudent person would employ in
similar circumstances, and includes the duty to exercise reasonable care to prevent an
inmate from being injured by a dangerous condition about which the state knows or
Case No. 2014-00845                       -11-                               DECISION


should know.” McElfresh v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 04AP-
177, 2004-Ohio-5545, ¶ 16.
      {¶30} “Where one inmate attacks another inmate, actionable negligence arises
only when there was adequate notice of an impending attack.” Lucero v. Ohio Dept. of
Rehab. & Corr., 10th Dist. Franklin No. 11AP-288, 2011-Ohio-6388, ¶ 18; see also
Frash v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 14AP-932, 2016-Ohio-
360, ¶ 8. “Notice may be actual or constructive, the distinction being the manner in
which the notice is obtained rather than the amount of information obtained.” Watson v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-606, 2012-Ohio-1017, ¶ 9.
“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.” Hughes v. Ohio Dept. of Rehab. & Corr.,
10th Dist. Franklin No. 09AP-1052, 2010-Ohio-4736, ¶ 14.
      {¶31} Upon review of the evidence presented at trial, the magistrate finds as
follows. In December 2011, plaintiff and Creech moved into Frazier Health Center and
were assigned to beds near one another in the west bay of the facility. Plaintiff and
Creech, who were first acquainted around 1989, were on good terms and regularly
engaged in friendly conversation through at least the middle of 2013. Creech did not
talk as much to other inmates, but he was known to sometimes talk about how he
thought people were out to get him or that he simply did not like others, and his
behavior was considered by some to be strange.
      {¶32} A few weeks before the attack, Creech made comments to inmates
Borgmann and Waldroop, who were assigned to beds close to plaintiff and Creech, to
the effect that he was “going to get” plaintiff. Neither Borgmann nor Waldroop notified
staff about these remarks. Borgmann thought it was just the sort of idle talk that is
common in prison and which he heard from Creech on a number of occasions, and
Case No. 2014-00845                         -12-                                 DECISION


Waldroop did not take Creech seriously and was completely surprised when Creech
carried out the attack. Even though Waldroop mentioned the comments to plaintiff, and
despite the fact that Creech stopped talking to plaintiff about 15 days before the attack,
plaintiff did not take it as a serious threat and he did not notify staff about it. Plaintiff
was not in fear of Creech attacking him, and when the attack did occur it was a surprise
to plaintiff. Indeed, plaintiff and Waldroop “never” thought Creech would do something
like that.
        {¶33} Around 7:10 a.m. on November 12, 2013, Creech filed a mug with water
and microwaved it for approximately four minutes, pausing briefly at one point to check
the temperature of the water. Creech then rolled himself in his wheelchair toward the
row of beds where he and plaintiff lived, he rolled up to plaintiff’s bed and stood up, and
he poured the hot water in the mouth and face of plaintiff, who had been asleep. As
plaintiff started to rise up out of bed, Creech quickly picked up his cane and swung it
twice at plaintiff’s head, inflicting a wound to the forehead. Nurse Copeland, who was
passing out medication nearby, immediately yelled at Creech and activated her man
down alarm.     At the same time, another inmate who can be seen in the video
approached Creech and told him to stop. Nurse Hagan, having heard Copeland yell,
ran in from the adjacent chart room and stood between Creech and plaintiff.
Corrections Officer Long ran to the scene as well and immediately put Creech in
handcuffs.    After Long arrived, a sergeant and five more corrections officers also
responded to the scene. Creech was removed from the area and plaintiff was provided
with medical attention for the burns to his skin and other injuries, ultimately being sent
out by ambulance to the Ohio State University Medical Center.
        {¶34} The attack upon plaintiff appears to have been a senseless act of violence
and the magistrate is sensitive to the serious injuries that plaintiff suffered. However,
defendant did not have notice, either actual or constructive, that the attack was
impending. From everything they knew, neither plaintiff, Borgmann, nor Waldroop felt
Case No. 2014-00845                           -13-                                  DECISION


that Creech posed a serious threat, and none of them notified a staff member about any
concern for plaintiff’s safety. Considering the information known to the three of them
and the fact that they were still surprised at the attack, it is difficult to say that
defendant’s employees, who knew nothing of the comments Creech made about
plaintiff, should have foreseen the attack.
       {¶35} While Borgmann testified that on some unidentified dates he saw inmates
speaking with an unknown sergeant, Borgmann could only speculate whether those
conversations concerned Creech, let alone what exactly was said. Plaintiff argues that
the fact that defendant did not call the sergeant at trial suggests that defendant had
something to hide, but plaintiff has the burden of proof in this case and had the ability to
subpoena witnesses. The evidence adduced at trial simply does not establish that any
threat to plaintiff’s safety was conveyed to the staff. Plaintiff did notify staff at an earlier
point in time that he was concerned Creech might harm inmate Hines, but his concern
was specifically about the safety of Hines, whom Creech apparently disliked at least in
part because of racial issues that played no role in the attack upon plaintiff.
       {¶36} Plaintiff also contends that Creech had a disciplinary history and mental
illness sufficient to put defendant on notice of an impending attack, but this is not borne
out by the evidence. Borgmann testified that he had witnessed Creech strike an inmate
with a cane in the restroom before, but even if that is true there is no evidence that the
staff knew about Creech ever using his cane as a weapon, nor is there any evidence of
him ever assaulting someone with hot water before. Plaintiff offered documents from
Creech’s disciplinary file dating back to the early 1980s, but the records do not remotely
suffice to alert defendant to any likelihood of Creech’s attack on plaintiff. For sure,
Creech had been disciplined for a variety of infractions, but those infractions were
accumulated over more than three decades in prison and nearly all of them were non-
violent in nature. And, based upon annual reviews of Creech’s security classification,
he was considered to be at the lowest possible security level.             There are records
Case No. 2014-00845                                -14-                                      DECISION


evidencing that Creech was disciplined in 2002 for fighting with another inmate at the
Lebanon Correctional Institution, and that he was disciplined in 2000 for attempting to
strike another inmate with a lock attached to a belt at the North Central Correctional
Institution over the theft of some cigarettes, but these incidents were remote in time—by
more than ten years—from the attack on plaintiff and clearly do not constitute a pattern
of violence that could even arguably confer defendant with notice that the attack by
Creech was impending at any moment.
        {¶37} As with every inmate in defendant’s custody, there are mental health
records for Creech. As was addressed on the record at trial, defendant filed a set of
Creech’s records under seal which are privileged, although plaintiff was able to obtain
some non-privileged records related to Creech’s mental health.3 The evidence admitted
at trial about Creech’s mental health simply does not indicate that an attack by him was
impending. The mere fact that Creech had received some mental health care or been
diagnosed with depression, as noted in plaintiff’s post-trial brief, is no basis to conclude
that his attack was foreseeable. The testimony about Creech’s behavior demonstrates
that he was considered by some inmates to be odd or even a “nut,” as Borgmann
stated, but none of the witnesses feared him or thought his behavior suggested that he
would carry out this attack on plaintiff, and there was no testimony about the staff
having any behavioral problems with Creech.
        {¶38} Plaintiff also argues that defendant was negligent in its supervision of the
inmates at Frazier Health Center, but this is a facility housing around 160 sick or
disabled inmates classified at the lowest security levels.                  The evidence does not
demonstrate that any of defendant’s policies or procedures for the supervision of the
facility were violated, there was an officer’s desk in the middle of the facility through
which an officer could look through windows into the bays, officers made rounds

        3Having   reviewed the sealed records, it is the magistrate’s conclusion that even if the privilege
finding is later determined to have been in error, admitting the records into evidence would not change
the outcome of the proceedings.
Case No. 2014-00845                         -15-                                DECISION


regularly and in fact Corrections Officer Long walked through the west bay just before
the attack while Creech was at the microwave that was free for inmates to use,
including heating water for hot drinks. Until the moment that Creech rolled up and
poured the water on plaintiff, Creech had not engaged in any prohibited act.
Furthermore, Creech had a doctor’s order allowing him to have the cane with which he
struck plaintiff.   The attack was carried out within about seven seconds, Creech’s
misconduct was promptly detected, and the response from both the nursing staff and
the security staff, which had Creech in handcuffs a little more than 30 seconds after he
commenced the attack, was swift and effective.
       {¶39} Based on the foregoing, the magistrate finds that plaintiff failed to prove his
claims by a preponderance of the evidence. Accordingly, judgment is recommended in
favor of defendant.
       {¶40} 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).




                                                ROBERT VAN SCHOYCK
                                                Magistrate
Case No. 2014-00845                -16-                                DECISION


cc:
Richard F. Swope                     Christopher L. Bagi
6480 East Main Street, Suite 102     Eric A. Walker
Reynoldsburg, Ohio 43068             Assistant Attorneys General
                                     150 East Gay Street, 18th Floor
                                     Columbus, Ohio 43215-3130

Filed November 16, 2016
Sent to S.C. Reporter 12/22/16
