[Cite as Pate v. Dept. of Rehab. & Corr., 2019-Ohio-949.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Donald Pate, Jr.,                                       :

                 Plaintiff-Appellant,                   :
                                                                       No. 18AP-142
v.                                                      :          (Ct. of Cl. No. 2017-211)

Ohio Department of Rehabilitation                       :     (ACCELERATED CALENDAR)
and Correction,
                                                        :
                 Defendant-Appellee.
                                                        :



                                            D E C I S I O N

                                      Rendered on March 19,2019


                 On brief: Donald Pate, Jr., pro se.

                 On brief: [Dave Yost], Attorney General, and Howard H.
                 Harcha IV, for appellee.


                             APPEAL from the Court of Claims of Ohio

KLATT, P.J.

        {¶ 1} Plaintiff-appellant, Donald Pate, Jr., appeals from a judgment of the Court of
Claims of Ohio granting summary judgment to defendant-appellee, Ohio Department of
Rehabilitation and Correction ("ODRC").
I. Factual and Procedural Background

        {¶ 2} On March 7, 2017, Pate, an inmate at the Warren Correctional Institution
("WCI"), filed a complaint against ODRC. In the complaint, Pate alleged that he was
assaulted by Jason Goudlock, another inmate at WCI. He stated the Goudlock used a
clothing iron to beat him in the head and face. He claimed that ODRC negligently provided
Goudlock access to the clothing iron without securing or fixing it to any part of the standing
No. 18AP-142                                                                               2

structure of the housing unit. Pate further alleged that ODRC was aware that a clothing
iron could be used as a weapon because it had happened at other prisons. He sought to
recover for his injuries and pain and suffering and requested an award in excess of $50,000.
       {¶ 3} ODRC filed an answer on March 30, 2017. In December, ODRC filed a
motion for summary judgment. It argued that it could not be held liable for the intentional
attack by Goudlock on Pate because it did not have notice of any conflict between the two
inmates. In support of it motion, ODRC submitted two affidavits. Greg Craft, employed by
ODRC as a warden's assistant, stated in his affidavit that inmates are provided with access
to a clothes iron as part of the day-room activities. An inmate must present an ID card to a
corrections officer to obtain an iron and ironing board. Craft also stated that following the
incident between Goudlock and Pate, a separation order was issued to prevent Goudlock
and Pate from being housed in the same unit. Goudlock was ultimately transferred to
another institution.
       {¶ 4} In the second affidavit, Janet Smith, employed as a corrections specialist at
WCI by ODRC, stated that she has access to inmates' entire records. According to her, Pate
and Goudlock were housed in the same unit at Ross Correctional Institution from July 25,
2016 through October 30, 2016. They both arrived at WCI on December 5, 2016. Neither
Pate nor Goudlock had filed any complaints or grievances alleging misconduct by or fear of
the other. Both inmates had filed complaints and grievances in the past demonstrating they
were aware of the procedures. Smith stated that there was nothing in either file to alert
ODRC of a possible conflict between the inmates.
       {¶ 5} Pate opposed the motion for summary judgment. He argued that ODRC was
aware that clothes irons could be dangerous. In two different level three prisons, clothes
irons were secured to the standing structure of the prison to prevent the iron from being
used as a weapon. WCI, however, did not employ such safety measures. Pate argues that
the crucial question is whether ODRC had a duty to exercise reasonable safety measures to
secure the clothes iron to prevent its use in an assault. In support of his memorandum in
opposition, Goudlock submitted his own affidavit and the affidavit of Sean Swain, a fellow
inmate at WCI.
       {¶ 6} In his affidavit, Pate alleges that Goudlock had not exchanged his ID for the
clothes iron and that WCI staff had not realized that the clothes iron was missing and that
No. 18AP-142                                                                               3

Goudlock had it. He also stated WCI still does not secure clothes irons to the building
structure. In Swain's affidavit, he stated that he has been incarcerated since 1991. In the
1990s, Swain was at Mansfield Correctional Institution and that he personally witnessed
two assaults with the use of a clothes iron. He alleged that in response to these incidents,
clothes irons were secured to metal cables fastened to the walls of the prison. He further
indicated that when he was incarcerated at Toledo Correctional Institution the same
security measures with regard to clothes irons were installed in that prison.
       {¶ 7} The trial court granted ODRC's motion for summary judgment. It stated that
the crux of the case concerned the intentional attack on Pate. The trial court found that
Pate did not offer any evidence to rebut ODRC's evidence that it lacked notice of a potential
attack. Without notice, ODRC could not be held liable for Goudlock's actions.
II. The Appeal

       {¶ 8} Pate appeals and assigns the following the error:
              The Court committed error prejudicial to the Common-law
              rights of Appellant with granting summary judgment to
              Appellee.

       {¶ 9} A trial court must grant summary judgment under Civ.R. 56 when the moving
party demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party
is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one
conclusion when viewing the evidence most strongly in favor of the nonmoving party, and
that conclusion is adverse to the nonmoving party. Hudson v. Petrosurance, Inc., 127 Ohio
St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-
Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for summary
judgment is de novo. Hudson at ¶ 29. This means that an appellate court conducts an
independent review, without deference to the trial court's determination. Zurz v. 770 W.
Broad AGA, LLC, 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v. Westfall,
183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
       {¶ 10} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75
Ohio St.3d 280, 293 (1996). The moving party does not discharge this initial burden under
No. 18AP-142                                                                                4

Civ.R. 56 by simply making conclusory allegations. Id. Rather, the moving party must
affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that there
are no genuine issues of material fact and the moving party is entitled to judgment as a
matter of law. Id. If the moving party meets its burden, then the nonmoving party has a
reciprocal burden to set forth specific facts showing that there is a genuine issue for trial.
Civ.R. 56(E); Dresher at 293. If the nonmoving party does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party. Dresher at 293.
       {¶ 11} For an inmate to prevail on a negligence claim, a plaintiff must establish that
(1) ODRC owed him a duty, (2) ODRC breached that duty, and (3) ODRC's breach
proximately caused his injuries. Briscoe v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
02AP-1109, 2003-Ohio-3533, ¶ 20, citing Macklin v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 01AP-293, 2002-Ohio-5069. "In the context of a custodial relationship between
the state and its inmates, the state owes a common-law duty of reasonable care and
protection from unreasonable risks of physical harm." McElfresh v. Ohio Dept. of Rehab.
& Corr., 10th Dist. No. 04AP-177, 2004-Ohio-5545, ¶ 16, citing Woods v. Ohio Dept. of
Rehab. & Corr., 130 Ohio App.3d 742, 744-45 (10th Dist.1998). "Reasonable care is that
degree of caution and foresight an ordinarily prudent person would employ in similar
circumstances." McElfresh at ¶ 16. The state's duty of reasonable care, however, does not
render it an insurer of inmate safety. Williams v. S. Ohio Corr. Facility, 67 Ohio App.3d
517, 526 (10th Dist.1990), citing Clemets v. Heston, 20 Ohio App.3d 132 (6th Dist.1985).
But, "once [the state] becomes aware of a dangerous condition it must take reasonable care
to prevent injury to the inmate." Briscoe at ¶ 20.
       {¶ 12} The law is well-settled in this district with regard to ODRC's liability for an
assault by one inmate against another. As this court recently explained:
              When one inmate attacks another inmate, "actionable
              negligence arises only where prison officials had adequate
              notice of an impending attack." Metcalf v. Ohio Dept. of
              Rehab. & Corr., 10th Dist. No. 01AP-292, 2002-Ohio-5082,
              ¶ 11. This notice may be actual or constructive. Id. The
              distinction between actual and constructive notice is "the
              manner in which the notice is obtained rather than the amount
              of information obtained." Watson v. Ohio Dept. of Rehab. &
              Corr., 10th Dist. No. 11AP-606, 2012-Ohio-1017, ¶ 9. "Actual
              notice exists where the information was personally
              communicated to or received by the party." Id. Constructive
No. 18AP-142                                                                               5

              notice " 'is that notice which the law regards as sufficient to give
              notice and is regarded as a substitute for actual notice.' " Id.,
              quoting Hughes v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
              09AP-1052, 2010-Ohio-4736, ¶ 14. "Whether ODRC had or did
              not have notice is a question that depends on all the factual
              circumstances involved." Frash v. Ohio Dept. of Rehab. &
              Corr., 10th Dist. No. 14AP-932, 2016-Ohio-3134, ¶ 11.

Skorvanek v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 17AP-222, 2018-Ohio-3870,
¶ 29.
        {¶ 13} On appeal, Pate argues that ODRC should be determined to have actual or
constructive notice of an impending attack by inmates because he is incarcerated in a "tier
3A level" institution which houses violent inmates. He contends that ODRC also had notice
supplying an unsecured "Class 2 tool Iron" without supervision created a dangerous
condition because other institutions fasten clothes irons to the structure of the prison for
the protection of inmates and employees. Pate also alleges the affidavits ODRC submitted
in support of summary judgment were false because ODRC only allows policy or procedure
violation on informal complaints and grievances. He complains that the trial court's
decision removes any common-law or statutory duty from ODRC.
        {¶ 14} The record in this case fails to present any evidence indicating that ODRC
received actual notice that Gouldock would attack Pate. Pate does not claim that he or any
other inmate informed ODRC that Goudlock was threatening any type of violence. Instead,
Pate's arguments indicate that ODRC should be charged with constructive knowledge of an
attack because WCI allowed inmates to have access to unsecured clothes irons and because
WCI houses violent inmates. We disagree. The general nature of the prison and the use of
an unsecured clothes iron as a weapon at other institutions are not sufficient facts on which
it may be reasonably inferred that ODRC had constructive notice that a particular inmate
would assault another. In Doss, this court rejected the appellant's argument that ODRC
was negligent because it failed to secure a metal bar of an exercise machine so that it could
not be removed and used as a weapon in an attack. Doss v. Dept. of Rehab. & Corr., 10th
Dist. No. 99AP-661 (Mar. 28, 2000). Because there was no actual or constructive notice of
an impending attack provided to prison personnel, we determined that ODRC did not
breach its common law duty of care owed to the appellant. Id.
No. 18AP-142                                                                             6

      {¶ 15} In other cases, this court has looked at an inmate's prison record or behavior
preceding the attack to determine whether ODRC may be determined to have constructive
knowledge of an attack. See Skorvanek at ¶ 43; Literal v. Dept. of Rehab. & Corr., 10th
Dist. 16AP-242, 2016-Ohio-8536; Frash v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
14AP-932, 2016-Ohio-3134, ¶ 12.      Pate, however, failed to submit any evidence of
Goudlock's prison record and did not attest to Goudlock's behavior preceding the attack.
Because there is no evidence in the record that suggests Goudlock posed a risk of physical
violence toward other inmates, including Pate, ODRC did not have notice, either actual or
constructive, that an attack from Goudlock was going to occur.
      {¶ 16} Based on the foregoing, Pate's sole assignment of error is overruled. The
judgment of the Court of Claims of Ohio is affirmed.
                                                                      Judgment affirmed.

                           BROWN and SADLER, JJ., concur.
