[Cite as Nott v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-5688.]

                                                        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




JACK NOTT

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2005-07950

Judge Clark B. Weaver Sr.
Magistrate Steven A. Larson

JUDGMENT ENTRY




        {¶ 1} On August 10, 2010, the magistrate issued a decision recommending
judgment for defendant.
        {¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).” Plaintiff timely filed his objections on August 16, 2010. On August 23,
2010, defendant filed a response.
        {¶ 3} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Grafton Correctional Institution (GCI) pursuant to R.C. 5120.16.
Plaintiff asserts that defendant was negligent in requiring him to wear metal, rather than
soft, leg restraints during a round trip to a medical appointment outside GCI and that, as
a result, he sustained an abrasion on his right ankle.
        {¶ 4} Based upon the evidence presented, the magistrate found that plaintiff
failed to prove by a preponderance of the evidence that defendant committed a breach
Case No. 2005-07950                         -2-                      JUDGMENT ENTRY

of its duty of care with respect to the manner in which it shackled plaintiff’s legs. The
magistrate specifically found: 1) that while defendant’s policy provides for the use of soft
restraints when a physician issues an inmate a “medical restriction” authorizing such
restraints, there was no evidence that plaintiff had received such authorization; 2) that
the corrections officers who escorted plaintiff on the trip did not have reason to know
that the metal restraints presented any danger to plaintiff; and 3) that plaintiff did not
exercise due care for his own safety to the extent that he failed to bring any concerns to
the officers’ attention.
       {¶ 5} In reviewing plaintiff’s objections, “the court must conduct an independent
analysis of the underlying issues, undertaking the equivalent of a de novo determination
and independently assessing the facts and conclusions contained in the magistrate’s
decision.” Shihab & Assoc. Co. LPA v. Ohio Dept. of Transp., 168 Ohio App.3d 405,
2006-Ohio-4456, ¶13.
       {¶ 6} In his first, third, and fourth objections, plaintiff argues that the magistrate
failed to consider his diabetes and other medical conditions and the “danger caused by
injuries to appendages of a chronic diabetic.”
       {¶ 7} However, the magistrate’s decision refers to plaintiff’s diabetes, and there
is no dispute that plaintiff suffered from several maladies at the time of the incident. The
magistrate concluded, though, that insofar as plaintiff contends that his health problems
should have prompted a physician to issue him a medical restriction for soft restraints,
he failed to present the expert testimony necessary for determining what a medical
professional of ordinary skill, care, and diligence in the same medical specialty would do
in similar circumstances. See Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 131-132.
The magistrate further concluded that the corrections officers who escorted plaintiff
during the trip did not have reason to know of any potential danger, whether from
plaintiff’s diabetes or otherwise, that might be created by shackling plaintiff’s legs in
metal restraints. Upon review, the court concludes that the magistrate did not err in
Case No. 2005-07950                        -3-                         JUDGMENT ENTRY

making these findings.
       {¶ 8} In his second objection, plaintiff asserts that the magistrate failed to
consider Ohio Adm.Code 5120:1-8-03(B), which provides, in relevant part:
       {¶ 9} “Each full service jail shall have written policies and procedures, and
practices which evidence, that the following minimum standards are maintained:
       {¶ 10} “* * *
       {¶ 11} “(8)                        Prisoners    in   physical   restraints   shall   be
personally checked by staff every ten minutes.” (Emphasis added.)
       {¶ 12} The General Assembly has defined the term “jail” to include “a jail,
workhouse, minimum security jail, or other residential facility used for the confinement of
alleged or convicted offenders that is operated by a political subdivision or a
combination of political subdivisions of this state.” R.C. 2929.01(R).
       {¶ 13} Plaintiff was not confined in a jail, but was instead confined at GCI, which
is a “prison” as defined in R.C. 2929.01(AA). (“‘Prison’ means a residential facility used
for the confinement of convicted felony offenders that is under the control of the
department of rehabilitation and correction * * *.”)    Therefore, the provisions of Ohio
Adm.Code 5120:1-8-03(B) are not applicable to the facts of this case.
       {¶ 14} Plaintiff’s fifth objection asserts that the magistrate’s decision is against
the manifest weight of the evidence. The court does not agree.
       {¶ 15} 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. 2005-07950                   -4-                   JUDGMENT ENTRY

                                     _____________________________________
                                     CLARK B. WEAVER SR.
                                     Judge

cc:


Eric A. Walker                         John C. Bucalo
Assistant Attorney General             1370 Ontario Street, Suite 330
150 East Gay Street, 18th Floor        Cleveland, Ohio 44113-1708
Columbus, Ohio 43215-3130

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

RCV/cmd
Filed October 13, 2010
To S.C. reporter November 18, 2010
