[Cite as Gibbons v. S. Ohio Correctional Facility, 2009-Ohio-7049.]

                                                         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




WILL GIBBONS

        Plaintiff

        v.

SOUTHERN OHIO CORRECTIONAL FACILITY

        Defendant
        Case No. 2007-09275

Judge J. Craig Wright
Magistrate Steven A. Larson

MAGISTRATE DECISION




        {¶ 1} 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.
        {¶ 2} As an initial matter, on November 17, 2008, defendant filed a motion to
quash all subpoenas filed by plaintiff for failure to tender witness fees. The court notes
that failure of service is not a proper basis for quashing a subpoena pursuant to Civ.R.
45(C)(3). Accordingly, defendant’s motion is DENIED. However, inasmuch as plaintiff
did not provide the appropriate witness fees, the court finds that the subpoenas were
not properly served pursuant to Civ.R. 45(B), and are therefore not enforceable.
        {¶ 3} At all times relevant, plaintiff was an inmate in the custody and control of
defendant, the Southern Ohio Correctional Facility (SOCF), pursuant to R.C. 5120.16.
Plaintiff testified that between October 9 and 12, 2007, he was “out” to The Ohio State
University Medical Center for surgery to repair a hernia.             According to plaintiff, he
returned to SOCF on Friday, October 12, 2007, and was placed in a “holding cell” for
the weekend where he was denied a shower, medical attention, clean clothes, and
Case No. 2007-09275                          -2-                 MAGISTRATE DECISION

clean bandages for his surgical wound. Plaintiff stated that on Monday, October 15,
2007, he refused to go to “general population” as ordered because he was in too much
pain to walk properly whereupon he was forced to remove his shoes and “marched” to
the segregation housing unit “J2.” Plaintiff testified that his cell in J2 did not have bed
sheets and that he was denied a shower and means to clean his surgical wound until
Wednesday, October 17, 2007. Plaintiff asserts that the medical care he received did
not meet the requisite standard of care, that employees of defendant used excessive
force against him by making him walk without shoes and with a recent surgical wound,
and that he was negligently denied bed sheets and a shower.
       {¶ 4} In order for plaintiff to prevail upon his claims 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 Company, 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 law imposes upon the state a duty of reasonable care and protection of its
inmates; however, this duty does not make defendant the insurer of inmate safety.
Mitchell v. Ohio Dept. of Rehab. & Corr. (1995), 107 Ohio App.3d 231, 235.
       {¶ 5} Chet Stambaugh testified that he has worked as a Corrections Officer
(CO) at SOCF for 12 years. According to Stambaugh, on October 15, 2007, he was
ordered to escort plaintiff to general population but plaintiff refused to go. Stambaugh
stated that when he reported plaintiff’s behavior he received orders from SOCF staff
physician to escort plaintiff to segregation in J2.       Stambaugh testified that he has
escorted inmates with medical problems in the past and has special training in such
escorts. Stambaugh stated that while he was escorting plaintiff, they had to stop “a few
times” for plaintiff to rest, but that he did not order plaintiff to remove his shoes, did not
notice plaintiff bleeding, and did not use any force against plaintiff.
Case No. 2007-09275                         -3-                MAGISTRATE DECISION

        {¶ 6} Richard Stoner is employed at SOCF as a Psychology Assistant 2. Stoner
testified that he remembered plaintiff talking to him during his “rounds” on October 15,
2007.    Stoner recalled that plaintiff made a general complaint about some medical
problems and that he called the SOCF medical department on plaintiff’s behalf.
However, Stoner further stated that he did not recall seeing plaintiff’s wound, or hear
plaintiff either complain about bed sheets, or assert that a CO used excessive force
against him.
        {¶ 7} In order to establish liability regarding his claim that he received improper
medical care, plaintiff must produce evidence to establish both the relevant standard of
care and proximate cause. See Bruni v. Tatsumi (1976), 46 Ohio St.2d 127. The
appropriate standard of care must be proven by expert testimony as to the ordinary skill,
care, and diligence a medical professional in the same medical specialty would exercise
in similar circumstances. Id. Plaintiff failed to provide expert medical testimony to
support his allegation that the medical treatment he received at SOCF was insufficient
or improper. Accordingly, that claim must fail.
        {¶ 8} Furthermore, to the extent that plaintiff alleges that employees of
defendant used excessive force against him, the court finds that plaintiff failed to
produce credible evidence that force was used against him during escort to J2.
Plaintiff’s testimony that he was forced to walk to J2 without shoes was not believable.
        {¶ 9} Finally, to the extent that plaintiff asserts claims based upon the conditions
he was subjected to in the holding cell and his cell in J2, inmate complaints regarding
the conditions of confinement are treated as claims arising under 42 U.S.C. 1983. State
ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 91, 1994-Ohio-37. It is well-settled that
such claims are not actionable in the Court of Claims. See Thompson v. Southern State
Community College (June 15, 1989), Franklin App. No. 89AP-114; Burkey v. Southern
Ohio Corr. Facility (1988), 38 Ohio App.3d 170. As such, it is recommended that those
claims be dismissed for lack of subject matter jurisdiction.
Case No. 2007-09275                         -4-                MAGISTRATE DECISION

         {¶ 10} For the foregoing reasons, it is recommended that judgment be rendered
in favor of defendant.
         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).



                                           _____________________________________
                                           STEVEN A. LARSON
                                           Magistrate

cc:


Christopher P. Conomy                          Will Gibbons
Assistant Attorney General                     Belmont County Jail
150 East Gay Street, 18th Floor                68137 Hammond Road
Columbus, Ohio 43215-3130                      St. Clarisville, Ohio 43950-8755

Magistrate Steven A. Larson

MR/cmd
Filed December 10, 2009
To S.C. reporter December 29, 2009
