[Cite as Glenn v. Dept. of Rehab. & Corr., 2011-Ohio-7009.]




                                                        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 GLENN

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

Case No. 2010-08187

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} As an initial matter, plaintiff’s August 16, 2011 motions to “convey and
subpoena” and for appointment of counsel are DENIED.             Additionally, defendant’s
August 17, 2011 motion to dismiss or, in the alternative, for the exclusion of evidence, in
limine, is also DENIED.
        {¶3} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the North Central Correctional Institution (NCCI) pursuant to R.C. 5120.16.
On June 24, 2008, shortly after arriving at NCCI, plaintiff was assaulted by inmate
Eugene McDonald and suffered severe injury to his left eye. Plaintiff testified that he
was in prison for murdering McDonald’s mother and sister. According to plaintiff, on the
day of the incident, he had just arrived at NCCI and he and his new “bunky” were on
their way to their housing unit when McDonald attacked him from behind.                  Plaintiff
stated that he knew McDonald was incarcerated but thought he was at the Toledo
Correctional Institution.     However, plaintiff admitted that he did not inform any of
defendant’s staff that McDonald was related to the victims of his crimes and did not
request a separation order from McDonald.           Plaintiff asserts that defendant was
negligent in transferring him to NCCI where McDonald was also incarcerated.
       {¶4} In order for plaintiff to prevail upon his claim 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 Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶8,
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.
       {¶5} 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.
       {¶6} Corrections Officer J. Shifer responded to the fight between plaintiff and
McDonald on June 24, 2008. Shifer testified that the men ignored his orders to stop
fighting and he had to use pepper spray to break up the fight. According to Shifer,
plaintiff had just arrived at NCCI earlier that day and he had no knowledge either of the
facts of plaintiff’s crimes or that McDonald was related to the victims of those crimes.
Shifer testified that he was not aware of any separation order for plaintiff and McDonald.
       {¶7} Corrections Captain D. Melton responded to an informal complaint that
plaintiff filed following the attack. Melton testified that he reviewed plaintiff’s file and
there was not a separation order with respect to plaintiff and McDonald.
       {¶8} W. Eleby is the Chief of defendant’s Bureau of Classification and
Reclassification. With respect to separation orders, Eleby testified that when inmates
enter into defendant’s custody, they are given the opportunity to identify possible threats
or conflicts with other inmates in defendant’s custody or with employees of defendant.
Eleby further testified that inmates can request separation orders at any time and that
such a request would initiate an investigation to determine if there are grounds for a
separation order.     Eleby stated that following the incident, he conducted an
investigation. According to Eleby, plaintiff never notified defendant that McDonald was
related to his victims or requested a separation order against McDonald. Eleby testified
that no separation order existed between plaintiff and McDonald prior to the incident,
but that he issued one for the two men afterward and that plaintiff was transferred to the
Belmont Correctional Institution as a result.
       {¶9} Based upon the foregoing, the court finds that defendant did not have notice
of an impending attack on plaintiff and is therefore not liable for plaintiff’s injuries.
Indeed, it is clear that defendant had no knowledge that McDonald was related to
plaintiff’s victims and that while plaintiff did know that McDonald was also in defendant’s
custody, he failed to make that fact known to defendant.
       {¶10} Accordingly, judgment is recommended in favor of defendant.
       {¶11} 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).



                                           _____________________________________
                                           MATTHEW C. RAMBO
                                           Magistrate

cc:


Amy S. Brown                                  Heidi C. James
Assistant Attorney General                    Assistant Attorney General
150 East Gay Street, 18th Floor               Crime Victims Assistance and Prevention
Columbus, Ohio 43215-3130                     150 East Gay Street, 25th Floor
                                              Columbus, Ohio 43215

Michael Glenn, #515-726
940 Marion-Williamsport Road
Marion, Ohio 43302



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