[Cite as Gill v. Grafton Correctional Inst., 2010-Ohio-4301.]

                                                          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




ALI GILL

        Plaintiff

        v.

GRAFTON CORRECTIONAL INSTITUTION

        Defendant
        Case No. 2005-09847

Judge Joseph T. Clark
Magistrate Steven A. Larson

JUDGMENT ENTRY




        {¶ 1} On June 12, 2009, the magistrate issued a decision recommending
judgment in favor of defendant.               On August 5, 2009, the court granted plaintiff an
extension of time to file objections to the magistrate’s decision and to prepare an
affidavit of evidence pursuant to Civ.R. 53(D)(3)(b)(iii). On August 27, 2009, plaintiff
filed objections and an App.R. 9(C) statement in support of the objections.                         On
September 28, 2009, the court overruled plaintiff’s objections and rendered judgment in
favor of defendant. On June 29, 2010, the Tenth District Court of Appeals reversed the
judgment of this court and remanded the case for further proceedings, stating in
relevant part:
        {¶ 2} “[W]e conclude that the trial court erred by concluding that the transcript of
the liability trial before the magistrate was available, thus precluding [plaintiff] from
utilizing an alternative method of putting the evidence before the court for purposes of
ruling on [plaintiff’s] objections to the magistrate’s factual findings. Because this was
the only basis given by the trial court for its rejection of [plaintiff’s] statement of
Case No. 2005-09847                         -2-                       JUDGMENT ENTRY

proceedings and its adoption of the magistrate’s decision, we reverse the trial court’s
judgment. Nevertheless, we recognize that there remains a question as to whether
[plaintiff’s] statement of proceedings is an appropriate means of supporting his objection
to the magistrate’s decision, even where a transcript is unavailable.” Gill v. Grafton
Correctional Inst., Franklin App. No. 09AP-1019, 2010-Ohio-2977, ¶16.
       {¶ 3} Civ.R. 53(D)(3)(b)(iii) provides, in part:
       {¶ 4} “An objection to a factual finding, whether or not specifically designated as
a finding of fact under Civ. R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the
evidence submitted to the magistrate relevant to that finding or an affidavit of that
evidence if a transcript is not available.” (Emphasis added.)
       {¶ 5} As defined by R.C. 2319.02, an affidavit is “a written declaration under
oath, made without notice to the adverse party.”
       {¶ 6} Upon review, the court finds that the App.R. 9(C) statement plaintiff filed
on August 27, 2009, in support of his objections to the magistrate’s decision is not an
“affidavit” and therefore does not comply with the requirements of Civ.R. 53(D)(3)(b)(iii).
Accordingly, the court finds that plaintiff has failed to properly support his factual
objections to the magistrate’s June 12, 2009 decision.
       {¶ 7} 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.            Judgment is rendered in favor of
defendant. 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.
Case No. 2005-09847                   -3-                   JUDGMENT ENTRY

                                     _____________________________________
                                     JOSEPH T. CLARK
                                     Judge

cc:


Janelle C. Totin                       John P. Reichley
Assistant Attorney General             Assistant Attorney General
Corrections Litigation                 150 East Gay Street, 18th Floor
150 East Gay Street, 16th Floor        Columbus, Ohio 43215-3130
Columbus, Ohio 43215

Richard F. Swope
6480 East Main Street, Suite 102
Reynoldsburg, Ohio 43068

MR/cmd
Filed August 11, 2010
To S.C. reporter September 9, 2010
