[Cite as Lucero v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-5907.]

                                                        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




ARTURO LUCERO

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al.

       Defendants
       Case No. 2008-08019

Judge Clark B. Weaver Sr.
Magistrate Matthew C. Rambo

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} At all times relevant, plaintiff was an inmate in the custody and control of
defendants pursuant to R.C. 5120.16.                    On August 29, 2007, inmate Caldwell
approached plaintiff as he sat on his bunk on the second floor of the Chillicothe
Correctional Institution (CCI) housing unit F-2 talking to inmate Cruz and asked plaintiff
if he wanted to trade some beans for some rice. Plaintiff declined the offer and asked
Caldwell to leave, at which time Caldwell punched plaintiff in the face.                      Plaintiff
responded by pushing Caldwell, who then left the area. Plaintiff then removed his
“shower shoes” and put on his tennis shoes so as to be better equipped to defend
himself should Caldwell return. Caldwell returned several minutes later and cut plaintiff
in the face with a sharpened lid from an aluminum can, inflicting a six-inch laceration
extending from the left side of plaintiff’s mouth along his jaw line.             Plaintiff shoved
Caldwell, turned away from him, and Caldwell cut him on the back with the lid. Plaintiff
Case No. 2008-08019                        -2-                MAGISTRATE DECISION

swung an empty five-gallon bucket at Caldwell, who turned and ran.          Plaintiff
testified that after the attack, he used a towel to apply pressure to the wound on his
face, went downstairs, and reported the incident to Corrections Officer (CO) Pettit.
Plaintiff estimated that between five and ten minutes elapsed between the attack and
when he reported to Pettit. According to plaintiff, Pettit called the infirmary, infirmary
medical staff “checked him out” and sent him to a hospital outside of the institution for
treatment.
       {¶ 3} In order for plaintiff to prevail upon his claim of negligence, he must prove
by a preponderance of the evidence that defendants owed him a duty, that defendants’
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
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.
       {¶ 4} Defendants are not liable for the intentional attack on one inmate by
another unless it had adequate notice, either actual or constructive, of an impending
attack. Mitchell v. Ohio Dept. of Rehab. & Corr. (1995), 107 Ohio App.3d 231, 235.
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.
       {¶ 5} Plaintiff testified that he was familiar with Caldwell from living in F-2 with
him.   According to plaintiff, Caldwell stole from other inmates and was “trouble”
generally. Plaintiff stated that the inmates in F-2 often fought and argued and that he
Case No. 2008-08019                         -3-                 MAGISTRATE DECISION

had wanted to move out of F-2 prior to being attacked by Caldwell. To that end, plaintiff
testified that he sent a “kite” to Unit Sergeant Christman, on August 17, 2007, wherein
he requested that he be moved to another housing unit because he and Caldwell
“almost got into a fight.” (Plaintiff’s Exhibit 1.) The document offered into evidence by
plaintiff was a photocopy, not the original kite.     Although it appears that Christman
signed it, plaintiff stated that he did not receive a response to the kite. Plaintiff further
testified that he had not had any physical altercation with Caldwell before August 29,
2007, only arguments and disagreements. Even so, plaintiff argues that the kite should
have put defendants on notice of an impending attack by Caldwell.
       {¶ 6} CO Nathan Pettit testified that he was assigned as a “second shift” CO in
F-2 at the time of the incident. Pettit stated that his shift started at 2:00 p.m. and ended
at 10:00 p.m. According to Pettit, F-2 is a dormitory style housing unit that houses
approximately 280 inmates on two floors. Pettit stated that the unit has bunk beds
arranged in rows in one large room on each floor and that the inmates are permitted to
move freely about the room and between the two floors. Pettit testified that one other
CO is on duty with him during the second shift and that when “rounds” are made, one
CO checks the first floor and the other checks the second, although occasionally one
CO would check both floors. According to Pettit, the purpose of “rounds” is to ensure
the safety and security of the inmates.
       {¶ 7} Pettit testified that he was on duty with CO Dale Jones on the day of the
incident, and that they made several rounds prior to the incident and had no warning
that Caldwell would attack plaintiff. A copy of the relevant page of the F-2 log book from
the day of the incident shows that Pettit made rounds at 2:14 p.m., 2:39 p.m., and 3:07
p.m., that Jones made rounds alone at 3:31 p.m. and that, at 3:41 p.m., plaintiff reported
to the CO desk and was bleeding. (Defendants’ Exhibit A.)
       {¶ 8} Christman testified that he was the corrections sergeant normally
stationed in F-2 during the same time of the incident, but was not working on the day
that it occurred.   Christman described the institutional “kite” system as follows: an
Case No. 2008-08019                         -4-                 MAGISTRATE DECISION

inmate obtains and fills out a kite form, folds it, and seals it like an envelope; the inmate
gives the kite to a CO or other staff member, who then signs the kite and places it in the
“kite box”; the kites are sorted by a staff member and placed in the relevant staff
mailboxes for delivery; the kites are delivered to the relevant offices and staff members
and stamped “received”; the kites are logged into a ledger, and then forwarded to the
proper staff members for disposition.
       {¶ 9} Christman testified that the kite in question in this case, Plaintiff’s Exhibit
1, does not contain either a signature showing that it was delivered to a staff member
for placement in the kite box, or a stamp showing that it was “received” by Christman or
any other staff member. Christman further testified that it was not his signature that
appears on the kite, and he denied ever seeing the kite prior to trial. Christman could
tell the signature was not his because of the way the “t” in “Christman” was crossed,
and that it looked like a forgery. Christman further stated that had he received such a
kite, he would have begun an investigation into the problems between plaintiff and
Caldwell and notified his superiors.
       {¶ 10} Plaintiff called Ray Fraley to testify as to the authenticity of the signature
on the kite in question. Fraley testified that he was employed as a document examiner
by the Columbus Police Department from 1962-1983, and that he had provided expert
testimony in over 3,000 cases in Columbus and the surrounding area. Fraley stated
that his training included classes and seminars at the United States Secret Service
Academy, the United States Postal Inspector Lab, and the University of Louisville.
       {¶ 11} Evid.R. 702 provides:
       {¶ 12} “A witness may testify as an expert if all of the following apply:
       {¶ 13} “(A)                         The witness’ testimony either relates to matters
beyond the knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
Case No. 2008-08019                         -5-                 MAGISTRATE DECISION

       {¶ 14} “(B)                        The witness is qualified as an expert by
specialized knowledge, skill, experience, training, or education regarding the subject
matter of the testimony;
       {¶ 15} “(C)                        The witness' testimony is based on reliable
scientific, technical, or other specialized information. To the extent that the testimony
reports the result of a procedure, test, or experiment, the testimony is reliable only if all
of the following apply:
       {¶ 16} “(1)                        The theory upon which the procedure, test, or
experiment is based is objectively verifiable or is validly derived from widely accepted
knowledge, facts, or principles;
       {¶ 17} “(2)                        The     design   of   the   procedure,   test,   or
experiment reliably implements the theory;
       {¶ 18} “(3)                        The particular procedure, test, or experiment
was conducted in a way that will yield an accurate result.”
       {¶ 19} Additionally, “[i]t is a well settled rule in this state that, where the
genuineness of handwriting is involved, well attested standards of the hand of the
person whose writing is in question may be introduced for the purpose of comparison
with that which is disputed; and that this comparison may be made, not only by persons
who have seen the party write, or have acquired a knowledge of his hand by
corresponding or transacting business with him, but also by persons skilled in
handwriting, such as are usually called experts.” Bell v. Brewster (1887), 44 Ohio St.
690, 696.
       {¶ 20} Based upon his testimony, the court is convinced that Fraley is qualified to
testify as an expert in handwriting and document examination.
       {¶ 21} Fraley was provided with 15 of Christman’s signatures to compare with the
signature on Plaintiff’s Exhibit 1; 12 of which he described as “suitable” for examination
and comparison.      Fraley testified that based upon angle and letter formation, he
identified ten points of similarity between the examples and the signature in question.
Case No. 2008-08019                         -6-                 MAGISTRATE DECISION

Based upon his examination, Fraley opined that the signature on Plaintiff’s Exhibit 1
was that of Christman. Fraley stated that the fact that the exhibit is a copy does not
matter in this type of examination.
       {¶ 22} However, Fraley acknowledged that a signature can lose its original
characteristics when it is copied. When asked if it was possible that Plaintiff’s Exhibit 1
was created by cutting Christman’s signature from another document and pasting it on
the kite and then making the copy, Fraley stated that it was possible, but that he could
see no evidence of such a creation. Similarly, when asked if the signature could be a
forgery, Fraley stated that he had “no knowledge” of a possible forgery. In explaining
the differences between the “t” in “Christman” on the signature on Plaintiff’s Exhibit 1
and the examples as pointed out by Christman, Fraley stated that he considered such a
difference to be within the “normal variance” that can be present in an individual’s
signature.
       {¶ 23} Despite Fraley’s testimony, the court is not persuaded that the signature
on Plaintiff’s Exhibit 1 is that of Christman. Moreover, the document does not contain
any of the normal indicia to establish that it progressed through the CCI kite process
described by Christman. Thus, the court finds that defendants did not have notice,
either actual or constructive, that Caldwell was going to attack plaintiff. Accordingly, the
court finds that defendants are not liable for the injuries plaintiff sustained as a result of
the attack by Caldwell.
       {¶ 24} Based upon the foregoing, judgment is recommended in favor of
defendants.
       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
Case No. 2008-08019                        -7-                 MAGISTRATE DECISION

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).



                                          _____________________________________
                                          MATTHEW C. RAMBO
                                          Magistrate

cc:


Eric A. Walker                                 Richard F. Swope
Paula Luna Paoletti                            6480 East Main Street, Suite 102
Assistant Attorneys General                    Reynoldsburg, Ohio 43068
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

MR/cmd
Filed November 10,2 010
To S.C. reporter December 1, 2010
