[Cite as Felton v. London Correctional Inst., 2011-Ohio-2621.]

                                                        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




ARTHUR FELTON

       Plaintiff

       v.

LONDON CORRECTIONAL INSTITUTION

       Defendant
       Case No. 2008-06211

Judge Clark B. Weaver Sr.
Magistrate Holly True Shaver

MAGISTRATE DECISION




        {¶ 1} Pursuant to Civ.R. 53, Magistrate Holly True Shaver was appointed to
conduct all proceedings necessary for decision in this matter.
        {¶ 2} 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.
        {¶ 3} At all times relevant, plaintiff was an inmate in the custody and control of
defendant pursuant to R.C. 5120.16. Plaintiff alleges that on December 11, 2007, his
bunkmate, Ron Miller, assaulted him. Plaintiff claims that defendant was negligent in
failing to prevent the assault inasmuch as he had previously notified defendant’s
employees that Miller had threatened to cause him “bodily harm.”
        {¶ 4} 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-
2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. Ohio
Case No. 2008-06211                        -2-                 MAGISTRATE DECISION

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.
       {¶ 5} 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.
       {¶ 6} Plaintiff testified that on December 4, 2007, he advised his Unit Sergeant
(Sgt.), Ron Kelly, of his desire to be assigned to another cell because of problems that
he was having with his bunkmate. Plaintiff further testified that, in response, Sgt. Kelly
told him that he would inform his supervisor, Unit Manager Craig Cann, of plaintiff’s
request. Plaintiff asserts that he spoke to Sgt. Kelly again on December 6, 2007, and at
that time, Sgt. Kelly told him that he had informed Cann about the problem and that
Cann was going to request that both plaintiff and Miller go to his office for counseling.
On December 11, 2007, Miller assaulted plaintiff. According to plaintiff, he specifically
told Sgt. Kelly prior to the assault that Miller had threatened him with physical harm.
       {¶ 7} Sgt. Kelly testified that he had been employed as a corrections officer for
more than 20 years; that he had no independent authority to make bunk changes on his
own; and that his usual procedure was to notify Unit Manager Cann when an inmate
requested a bunk change. Sgt. Kelly recalled that plaintiff informed him that he and his
bunkmate were having problems, but denied that plaintiff advised him that Miller had
Case No. 2008-06211                           -3-                MAGISTRATE DECISION

threatened him with physical harm. Sgt. Kelly added that if plaintiff had told him that he
felt threatened, Sgt. Kelly did have the authority to place plaintiff in isolation for his own
safety.
          {¶ 8} Unit Manager Cann testified that his duties included overseeing the
housing units and supervising both inmates and staff. Cann testified that he does not
reassign every inmate who complains about a bunkmate.                However, if an inmate
complains that his bunkmate has threatened his safety, Cann’s normal practice would
be to place the complaining inmate in isolation until a committee could meet to resolve
the issue. Cann further stated that neither plaintiff nor Sgt. Kelly ever told him that Miller
had threatened bodily harm.
          {¶ 9} Dr. Joan LeClair testified via deposition that she was licensed to practice
psychology in the state of Ohio and that she was employed as the psychology
supervisor for defendant during plaintiff’s incarceration. Dr. LeClair testified that plaintiff
had been one of her patients throughout his incarceration, and that at one point in time,
plaintiff had complained to her that he feared for his safety. However, after a review of
plaintiff’s mental health records, Dr. LeClair discovered that the first time that he had
complained to her about Miller was on January 16, 2008, which was after the December
11, 2007 assault.
          {¶ 10} Based upon the testimony and evidence presented at trial, the court finds
that defendant did not have either actual or constructive notice of an impending attack
by Miller on plaintiff. The greater weight of the evidence demonstrates that although
plaintiff did notify defendant’s employees that he desired a different bunkmate, he did
not notify them that he felt threatened or that he was in fear of his physical safety prior
to the assault.
          {¶ 11} For the foregoing reasons, the court finds that plaintiff has failed to prove
his claim of negligence by a preponderance of the evidence and, accordingly, judgment
is recommended in favor of defendant.
          A party may file written objections to the magistrate’s decision within 14 days of
Case No. 2008-06211                         -4-                 MAGISTRATE DECISION

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).



                                          _____________________________________
                                          HOLLY TRUE SHAVER
                                          Magistrate

cc:


Stephanie D. Pestello-Sharf                   Arthur Felton
Assistant Attorney General                    123 South Huron Drive
150 East Gay Street, 18th Floor               Oxon Hill, Maryland 20745
Columbus, Ohio 43215-3130

HTS/cmd
Filed May 11, 2011
To S.C. reporter May 26, 2011
