[Cite as Kelly v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-7046.]



                                                        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



MICHAEL KELLY

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

Case No. 2009-06338

Judge Joseph T. Clark
Magistrate Matthew C. Rambo

JUDGMENT ENTRY

        {¶1} On October 7, 2011, the magistrate issued a decision recommending
judgment for plaintiff in an amount to be determined in a subsequent proceeding.
        {¶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).” Defendant timely filed objections.
        {¶3} Plaintiff was injured in a fight with another inmate by the name of Carlos
Castro. Plaintiff testified that he had fought with Castro once before and that when
Castro later moved into the cell next to his, plaintiff told his unit sergeant about the prior
fight and asked to be moved out of the block. According to plaintiff, Sergeant Lininger
told plaintiff he “wasn’t going anywhere.” (Decision at p. 3.) One or two weeks later,
Castro attacked plaintiff as he slept and stabbed him with a roofing nail.
        {¶4} Following a bench trial, the magistrate concluded: “[T]he court finds that the
conversation between plaintiff and Sergeant Lininger shortly before the attack, coupled
with the prior violent encounter between plaintiff and Castro, constitutes sufficient notice
Case No. 2009-06338                         -2-                                    ENTRY

to defendant of an impending attack. The court further finds that defendant breached its
duty of care to plaintiff inasmuch as no attempt was made to ensure plaintiff’s safety.”
(Decision at p. 4.)
       {¶5} In defendant’s first objection, defendant contends that the magistrate erred
in relying upon plaintiff’s testimony regarding the substance of his conversation with
Lininger. Defendant contends that due to certain inaccuracies and inconsistencies in
plaintiff’s testimony regarding other issues, the magistrate was required to disbelieve all
of plaintiff’s testimony. The court disagrees.
       {¶6} The trier of fact may believe or disbelieve all or any part of a witness’s
testimony and it is within the province of the trier of fact to determine what testimony is
worthy of belief and what is not. See, e.g., State v. Group, 98 Ohio St.3d 248, 2002-
Ohio-7247, ¶120; Warren v. Simpson (Mar. 17, 2000), Trumbull App. No. 98-T-0183.
       {¶7} Upon review of plaintiff’s entire testimony, the court does not perceive any
error on the part of the magistrate with respect to his assessment of plaintiff’s credibility
as it pertains to his conversation with Lininger. Lininger was not called as a witness in
this case. Accordingly, defendant’s objection is without merit.
       {¶8} Defendant next takes exception to the magistrate’s understanding of
Kimberly Frederick’s testimony. Frederick is the institutional inspector who investigated
plaintiff’s written complaint about the incident.     The magistrate stated:      “Frederick
concluded that there was no separation order for plaintiff and Castro but that Lininger
did not do an adequate job of informing plaintiff of his options if he was concerned about
another inmate. She further stated that if plaintiff informed Lininger that he felt his life
was in danger then he should have been placed in segregation or protective custody
immediately pending an investigation, but that she does not believe that plaintiff so
informed Lininger.” (Decision at p. 4.) (Emphasis added.)
       {¶9} Based upon the court’s review of the transcript, the magistrate did not
misrepresent Frederick’s testimony.
Case No. 2009-06338                         -3-                                     ENTRY

         {¶10} The merit of       defendant’s remaining objections depends upon a
determination by this court that the magistrate erred with respect to plaintiff’s credibility.
Accordingly, for the reason stated above, defendant’s remaining objections are without
merit.
         {¶11} In conclusion, 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.
         {¶12} Judgment is rendered for plaintiff in an amount to be determined at a
proceeding on the issue of damages.



                                           _____________________________________
                                           JOSEPH T. CLARK
                                           Judge

cc:


Christopher P. Conomy                         Rosel C. Hurley III
James P. Dinsmore                             12925 Shaker Boulevard
Assistant Attorneys General                   Cleveland, Ohio 44120
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

LP/dms
Filed December 19, 2011
To S.C. reporter March 20, 2012
