[Cite as Brown v. Ohio Dept. of Rehab. & Corr., 2015-Ohio-4395.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Yusuf Brown,                                        :

                Plaintiff-Appellant,                :
                                                                        No. 15AP-468
v.                                                  :              (Ct. of Cl. No. 2013-00158)

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


                                           D E C I S I O N

                                   Rendered on October 22, 2015


                Swope and Swope, and Richard F. Swope, for appellant.

                Michael DeWine, Attorney General, Eric A. Walker and
                Frank S. Carson, for appellee.

                            APPEAL from the Court of Claims of Ohio
TYACK, J.
        {¶ 1} Yusuf Brown is appealing from an adverse ruling in the Court of Claims of
Ohio. He assigns ten errors for our consideration:
                [1.] THE TRIAL COURT ERRED WHEN THE COURT
                FAILED TO CONSIDER THE AFFIDAVIT OF EVIDENCE,
                WHICH THE COURT ACKNOWLEDGED WAS RATHER
                COMPLETE, BUT DID NOT CONTAIN ALL OF THE
                EVIDENCE, CONTRARY TO CIV.R. 53(D)(3)(b)(iii), WHICH
                PROVIDES FOR AN AFFIDAVIT OF THE PARTIES'
                RECOLLECTION, WITHOUT PROVIDING FOR INPUT BY
                EITHER THE OPPOSING PARTY OR COURT, AS DOES
                APP.R. 9(C), OR REQUIRING EVERY FACT PRESENTED.

                [2.] THE TRIAL COURT ERRED IN SUSTAINING THE
                MAGISTRATE'S DECISION, ALLOWING THE PLAYING OF
No. 15AP-468                                                  2


           A DEPOSITION, WHEN THE DOCKET INDICATES IN-
           MATE NEWELL WAS SUBPOENAED FROM OAKWOOD TO
           ALLEN, LESS THAN A QUARTER OF A MILE AWAY.

           [3.] THE TRIAL COURT AND MAGISTRATE ERRED IN
           DENYING LIABILITY WHEN THE RECORD IS CLEAR
           THERE WAS AN INSTITUTIONAL SEPARATION BE-
           TWEEN NEWELL AND PLAINTIFF-APPELLANT BROWN
           AND THE DEFENDANT-APPELLEE ADMIT[S] THEY HON-
           ORED IT, SEPARATING THE INMATES FROM CONTACT
           IN THE SAME PRISON AND WITH THE KNOWLEDGE OF
           THIS, NEGLIGENTLY ALLOWED TWO SEPARATED IN-
           MATES TO COME INTO CONTACT, NOT ONCE, BUT
           TWICE, RESULTING IN INJURY TO THE PLAINTIFF-
           APPELLANT AND ERRED IN NOT FINDING DEFENDANT-
           APPELLEE LIABLE.

           [4.] THE TRIAL COURT ERRED IN SUSTAINING THE
           MAGISTRATE'S DECISION WHICH ERRONEOUSLY DID
           NOT RULE ON THE FAILURE TO PRODUCE ALL SECUR-
           ITY TAPES OF THE GYM, WHICH PREJUDICED
           PLAINTIFF-APPELLANT BECAUSE THE TAPES CON-
           FIRMED PLAINTIFF-APPELLANT'S TESTIMONY THAT
           THE DEFNDANT-APPELLEE FAILED TO PROTECT BOTH
           INMATES BY KEEPING THEM APART, PURSUANT TO R.C.
           2921.44(C)(3) AND (5), AND COMMON LAW, WHICH
           REQUIRE PROTECTION AND ABIDING BY LAWFUL
           REGULATIONS REGARDING SEPARATION OF INMATES.

           [5.] THE TRIAL COURT AND MAGISTRATE ERRED IN
           RULING CIV.R. 32(A)(3) PERMITTED THE USE OF THE
           DEPOSITION OF EMANUEL NEWELL.

           [6.] THE TRIAL COURT AND MAGISTRATE FAILED TO
           RULE ON OBJECTIONS IN THE DEPOSITIONS, IN TRIAL,
           OR IN THE FINAL DECISION.

           [7.] THE TRIAL COURT AND MAGISTRATE ERRED IN
           RULING THAT ADMINISTRATIVE REGULATIONS AND
           DEPARTMENT POLICY AS TO SEPARATIONS WERE
           DISCRETIONARY AND THAT DEFENDANT-APPELLLE
           HAD NO DUTY TO ENSURE SEPARATIONS BASED ON
           DISCRETIONARY IMMUNITY.

           [8.] THE TRIAL COURT AND MAGISTRATE ERRED IN
           PERMITTING OVER OBJECTION THE INVESTIGATION
No. 15AP-468                                                                           3


              REPORT, DEFENDANT'S EXHIBHIT A, DATED OCTO-
              BER 2, 2012.

              [9.] THE TRIAL COURT AND MAGISTRATE ERRED IN
              OVERRULING PLAINTIFF-APPELLANT'S MOTION TO
              COMPEL ALL SECURITY TAPES, INCLUDING THE TAPE
              OF THE GYMNASIUM ON THE MORNING OF SEP-
              TEMBER 28, 2012, AS WELL AS RIB TAPES AND RECORDS
              RELATED TO DONALD SOKE.

              [10.] THE TRIAL COURT'S AND MAGISTRATE'S DECI-
              SIONS AND RULINGS WERE CONTRARY TO LAW AND
              AGAINST THE WEIGHT OF THE EVIDENCE.

       {¶ 2} Brown was assaulted by Emanuel Newell despite orders to keep the two
inmates separated. The two inmates were both housed at Allen Oakwood Correctional
Institution as a result of protective custody units for inmates being consolidated by the
Ohio Department of Rehabilitation and Correction ("ODRC"). However, they were never
supposed to be in the same area of the prison at the same time.
       {¶ 3} On September 28, 2012, both men were in the gymnasium of the prison.
Apparently, the two inmates chose to have an encounter and went into a restroom
together, closing the restroom door behind them. Brown was bitten during the encounter
and required medical attention. The men had had a serious confrontation over ten years
earlier, which is why they were supposed to be kept apart.
       {¶ 4} Stated briefly, the evidence in the trial indicates that Brown and Newell
chose to go into a prison restroom to have a fight, even going to the point of posting a
lookout outside the restroom door. Brown got injured in the fight and now wants ODRC
to pay him because ODRC did not prevent the fight in which he willingly participated.
None of the evidence which was considered by the trial court or which was not admitted
at the trial changes this basic reality.   As a result, none of the assigned errors are
reversible errors.
       {¶ 5} Turning to the individual assignments of error, the trial court judge who
reviewed the magistrate's decision had sufficient information upon which to reach a final
verdict.
       {¶ 6} The first assignment of error is overruled.
No. 15AP-468                                                                             4


       {¶ 7} The trial court had the benefit of Newell's sworn testimony in making its
decision. We have no basis for finding that Newell's testimony at trial could have differed
from his earlier sworn statements. Newell consistently tried to blame Brown for the fight,
and Brown tried to blame Newell. Neither was without fault.
       {¶ 8} The second assignment of error is overruled.
       {¶ 9} The third assignment of error touches upon the central point.         Should
ODRC pay money to an inmate who disregards his obligation to stay away from another
inmate with whom he has a violent history? Should ODRC be financially liable to an
inmate who chooses to get into a fight, even to the point of going into a private area and
posting a lookout to assure the fight will not be interrupted? Our simple answer is "No."
Brown's injuries were the result of his own choice to have a fight. ODRC was not
obligated to protect him from himself.
       {¶ 10} The third assignment of error is overruled.
       {¶ 11} The security tape from the time frame when the fight occurred was entered
into evidence and is in the appellate record before us. There is no indication that Brown
was in any way injured because he was with Newell in the gymnasium earlier in the day.
Any other security tapes are irrelevant to the key issues.
       {¶ 12} The fourth assignment of error is overruled.
       {¶ 13} The same reasons which demonstrate that the second assignment of error
does not constitute reversible error apply to the fifth assignment of error.
       {¶ 14} The fifth assignment of error is overruled.
       {¶ 15} Similarly, the objections in the body of Newell's deposition do not touch
upon the key issue. Brown and Newell chose to fight and Brown was injured.
       {¶ 16} The sixth assignment of error is overruled.
       {¶ 17} The choice of an inmate to get into a fight does not somehow place strict
liability upon ODRC. Even if ODRC could somehow be seen as negligent for failing to
keep the two inmates apart, that negligence is more than overcome by Brown's choice to
engage in the fight and retire to a restroom to engage in the fight.
       {¶ 18} The seventh assignment of error is overruled.
No. 15AP-468                                                                             5


       {¶ 19} The investigative report mentioned in the eighth assignment of error did not
change the clear facts surrounding the fight. Its admission could not be considered
reversible error.
       {¶ 20} The eighth assignment of error is overruled.
       {¶ 21} The same reasons which apply to the fourth assignment of error apply to the
ninth assignment of error.
       {¶ 22} The ninth assignment of error is overruled.
       {¶ 23} As indicated earlier, the trial court's finding that ODRC was not liable to
Brown because Brown chose to engage in a fight with another inmate is in accordance
with the applicable case law and is fully in accord with the evidence.
       {¶ 24} The tenth assignment of error is overruled.
       {¶ 25} All ten assignments of error having been overruled, the judgment of the
Court of Claims of Ohio is affirmed.
                                                                         Judgment affirmed.
                               KLATT and DORRIAN, JJ., concur.
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