[Cite as Sudberry v. S. Ohio Corr. Facility, 2011-Ohio-7006.]




                                                         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



MR. JAMES D. SUDBERRY

        Plaintiff

        v.

SOUTHERN OHIO CORRECTIONAL FACILITY

        Defendant

Case No. 2011-08652

Judge Joseph T. Clark
Magistrate Matthew C. Rambo

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT


        {¶1} On October 11, 2011, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). Plaintiff did not timely file a response. The motion is now
before the court for a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
          {¶4} Plaintiff is an inmate in the custody and control of defendant pursuant to
R.C. 5120.16. Plaintiff alleges that he has been harassed, threatened, and assaulted
by several of defendant’s staff members and other inmates; including having water and
unknown bodily fluids thrown on him while he was in his cell.
          {¶5} Defendant argues that: it did not have notice of impending assaults upon
plaintiff by other inmates; its employees did not harass, threaten, or assault plaintiff; and
it investigated all complaints filed by plaintiff and found them to be baseless.
          {¶6} In support of its motion, defendant filed the affidavit of L. Mahlman, who
states:
          {¶7} “1.   I am employed by the Ohio Department of Rehabilitation and
Correction [DRC] as the institutional inspector at [defendant].
          {¶8} “2.   I have personal knowledge of the facts contained in this Affidavit and
am familiar with the underlying facts of this lawsuit, as well as the pleadings filed in
Court of Claims Case No. 2011-08652. Moreover, I have personally reviewed [DRC
and defendant’s] records regarding [plaintiff].
          {¶9} “3.   Plaintiff * * * is an inmate in the custody of DRC and he was
incarcerated at [defendant] at all times relevant to this lawsuit.
          {¶10} “4. The records show that [DRC, defendant] and [their] employees did not
harass or physically assault plaintiff as alleged in the complaint in this matter. Further, I
have no personal knowledge of such conduct ever occurring.
          {¶11} “5. The review of the records further show that [DRC and defendant] had
no prior knowledge of any impending issue between [plaintiff] and the other inmates as
alleged in the Complaint in this matter. Furthermore, [plaintiff] has made no requests for
protective custody since 2006.
          {¶12} “6. [DRC and defendant] diligently guards against potential hazards posed
to inmates, including altercations between inmates, and, at all times relevant to this
lawsuit, all employees were following the standard procedures for protecting inmates.
       {¶13} “7. [DRC and defendant have] properly investigated and responded to
[plaintiff’s] complaints of harassment and violence by staff and other inmates.”
       {¶14} 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 attack upon
that specific inmate. Hughes v. Ohio Dept. of Rehab. & Corr., Franklin App. No. 09AP-
1052, 2010-Ohio-4736, ¶14-15; see also 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, 197-198. In the case of inmate-on-inmate violence, notice is
lacking where defendant does not have any knowledge of prior problems, disputes, or
altercations between the victim and the assailant and institutional staff have no
indication that an attack is going to occur. Elam v. Ohio Dept. of Rehab. & Corr.,
Franklin App. No. 09AP-714, 2010-Ohio-1225, ¶11, citing Doss v. Ohio Dept. of Rehab.
& Corr. (Mar. 28, 2000), Franklin App. No. 99AP-661, and McDonald v. Ohio Dept. of
Rehab. & Corr., Franklin App. No. 02AP-735, 2003-Ohio-513.
       {¶15} Civ.R. 56(E) provides, in part:
       {¶16} “When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or denials of the
party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue for trial. If the
party does not so respond, summary judgment, if appropriate, shall be entered against
the party.”
       {¶17} Based upon the uncontested affidavit testimony presented by defendant,
the court finds that defendant did not have notice of impending attacks against or
harassment of plaintiff by other inmates.      The court further finds that, based upon
Mahlman’s uncontested affidavit, employees of defendant did not assault or harass
plaintiff.
        {¶18} Accordingly, defendant’s motion for summary judgment is GRANTED and
judgment is rendered in favor of defendant. All pending motions are DENIED as moot.
Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice
of this judgment and its date of entry upon the journal.



                                          _____________________________________
                                          JOSEPH T. CLARK
                                          Judge

cc:


Amy S. Brown                                 Mr. James D. Sudberry, #402-190
Assistant Attorney General                   Southern Ohio Correctional Facility
150 East Gay Street, 18th Floor              P.O. Box 45699
Columbus, Ohio 43215-3130                    Lucasville, Ohio 45699




Filed December 2, 2011
To S.C. reporter March 5, 2012
