[Cite as Morris v. Dept. of Rehab. & Corr., 2020-Ohio-612.]



KRISTOFFER MORRIS                                      Case No. 2018-00492JD

       Plaintiff                                       Judge Patrick M. McGrath
                                                       Magistrate Gary Peterson
       v.
                                                       DECISION
DEPARTMENT OF REHABILITATION
AND CORRECTION

       Defendant

        {¶1} Plaintiff Kristoffer Morris has filed objections to a magistrate’s decision
recommending judgment in favor of Defendant Department of Rehabilitation and
Correction (DRC). Without leave of court, DRC has filed a memorandum in opposition.

    I. Background
        {¶2} On March 20, 2018, Morris sued DRC, alleging that, on or about December
10, 2017, he was assaulted by an inmate (Inmate Torrez) who was housed in the
general population at Toledo Correctional Institution and that DRC’s negligence that
allowed Inmate Torrez to be in the presence of Morris (an inmate in protective control)
proximately resulted in personal injury to Morris. The case proceeded to trial before a
magistrate.
        {¶3} On October 24, 2019, the magistrate issued a decision wherein he
recommended judgment in favor of DRC. On Morris’s motion, the court granted an
extension for Morris to file objections to the magistrate’s decision. On December 20,
2019, Morris filed written objections to the magistrate’s decision with an affidavit of
evidence. Morris presents seven objections:
        1) “The Magistrate erred when he failed to rule the Plaintiff’s status as a
            protective control inmate constitutes notice of danger of assault by general
            population inmates;”
Case No. 2018-00492JD                              -2-                                       DECISION


        2) “The Magistrate erred in failing to find due to the conduct of the correctional
            officers in TPU, in failing to follow accepted security practices based on
            administrative rules, policies, and general block orders, that the Defendant
            was negligent. Defendant’s Exhibit 3;”
        3) “The Magistrate erred in finding Morris not to be credible;”
        4) “The Magistrate erred when he failed to find that the Defendant was negligent
            in failing to observe the obvious presence of a general population inmate
            standing in an open gate to the Jpay kiosk room, which three officers failed to
            observe, giving Torrez clear access to the Plaintiff;”
        5) “The Magistrate erred in attributing the assault to a dispute between Plaintiff
            and Inmate Torrez, when in fact there were no threats pending and the
            assault would not have occurred without the total disregard of the Defendant’s
            correctional officers in failing to enforce protective custody orders, as well as
            other rules of the institution;”
        6) “The Magistrate’s findings in regard to the security video, Defendant’s
            Exhibit B, are not justified by an examination of the video; and”
        7) “The Magistrate’s decision is contrary to law and against the weight of the
            evidence.”
        {¶4} On ODRC’s motion, the court denied ODRC’s request for leave to file a
memorandum in opposition to Morris’s objections.                  However, on January 21, 2020,
without leave ODRC filed a “Memorandum Contra To Plaintiff’s Objections To The
Decision Of The Magistrate.” That same day—January 21, 2020—ODRC filed a copy
of a transcript of the trial, which DRC has represented is a transcript from the first day of
trial.1 Because ODRC filed its memorandum in opposition without leave (and thereby
contravened this court’s order), the court determines that ODRC’s “Memorandum

        1(Notice  of Filing of Trial Transcript filed on January 21, 2020.) For the purpose of adjudicating
Morris’s objections, besides considering Morris’s affidavit of evidence, the record, and admitted trial
exhibits, the court has reviewed the transcript filed by DRC.
Case No. 2018-00492JD                          -3-                                   DECISION


Contra To Plaintiff’s Objections To The Decision Of The Magistrate” of January 21,
2020, should be stricken.

   II. Law and Analysis
       A. A trial court is required to conduct a de novo review of a magistrate’s
          decision.
       {¶5} Civ.R. 53(D)(3)(b)    governs      objections   to    a   magistrate’s    decision.
Civ.R. 53(D)(3)(b)(i) provides: “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). If any party timely files objections, any other party may also file
objections not later than ten days after the first objections are filed. If a party makes a
timely request for findings of fact and conclusions of law, the time for filing objections
begins to run when the magistrate files a decision that includes findings of fact and
conclusions of law.” An objection to a magistrate’s decision “shall be specific and state
with particularity all grounds for objection.” Civ.R. 53(D)(3)(b)(ii).
       {¶6} If objections are filed to a magistrate’s decision, this court is required to rule
on the objections. Civ.R. 53(D)(4)(d). In ruling on objections, the court is required to
“undertake an independent review as to the objected matters to ascertain that the
magistrate has properly determined the factual issues and appropriately applied the
law.” Accord Mayle v. Ohio Dept. of Rehab. & Correction, 10th Dist. Franklin No. 09AP-
541, 2010-Ohio-2774, ¶ 15 (trial court’s standard of review of a magistrate’s decision is
de novo).    A magistrate’s decision “is not effective unless adopted by the court.”
Civ.R. 53(D)(4)(a). Pursuant to Civ.R. 53(D)(4)(b), whether or not objections are timely
filed, a court “may adopt or reject a magistrate’s decision in whole or in part, with or
without modification. A court may hear a previously-referred matter, take additional
evidence, or return a matter to a magistrate.”
Case No. 2018-00492JD                        -4-                                 DECISION


       B. ODRC is not liable for the intentional attack of one inmate by another,
          unless ODRC has adequate notice of an impending assault.
       {¶7} In Literal v. Dept. of Rehab. & Correction, 2016-Ohio-8536, 79 N.E.3d 1267
(10th Dist.), ¶ 15-16, the Tenth District Court of Appeals set forth the law that applies in
cases of an intentional attack of one inmate by another inmate, stating:
              To prevail on a negligence claim, [a plaintiff] must establish that
       (1) DRC owed him a duty, (2) DRC breached that duty, and (3) DRC’s
       breach proximately caused his injuries. Briscoe v. Dept. of Rehab. & Corr.,
       10th Dist. No. 02AP-1109, 2003-Ohio-3533, ¶ 20, citing Macklin v. Dept. of
       Rehab. & Corr., 10th Dist. No. 01AP-293, 2002-Ohio-5069. “In the context
       of a custodial relationship between the state and its inmates, the state
       owes a common-law duty of reasonable care and protection from
       unreasonable risks of physical harm.” McElfresh v. Dept. of Rehab. &
       Corr., 10th Dist. No. 04AP-177, 2004-Ohio-5545, ¶ 16, citing Woods v.
       Dept. of Rehab. & Corr., 130 Ohio App. 3d 742, 744-45, 721 N.E.2d 143
       (10th Dist.1998). “Reasonable care is that degree of caution and foresight
       an ordinarily prudent person would employ in similar circumstances.”
       McElfresh at ¶ 16. The state’s duty of reasonable care does not render it
       an insurer of inmate safety. Williams v. S. Ohio Corr. Facility, 67 Ohio
       App.3d 517, 526, 587 N.E.2d 870 (10th Dist.1990), citing Clemets v.
       Heston, 20 Ohio App.3d 132, 20 Ohio B. 166, 485 N.E.2d 287 (6th
       Dist.1985). “However, ‘once [the state] becomes aware of a dangerous
       condition[,] it must take reasonable care to prevent injury to the inmate.’”
       Watson v. Dept. of Rehab. & Corr., 10th Dist. No. 11AP-606, 2012-Ohio-
       1017, ¶ 8, quoting Briscoe at ¶ 20, citing Williams v. Dept. of Rehab. &
       Corr., 61 Ohio Misc. 2d 699, 583 N.E.2d 1129 (1991).
              The law of this district with regard to DRC liability for an assault by
       one inmate on another has been established in a number of decisions of
Case No. 2018-00492JD                       -5-                                 DECISION


       this court including Baker v. Dept. of Rehab. & Corr., 28 Ohio App. 3d 99,
       28 Ohio B. 142, 502 N.E.2d 261 (10th Dist.1986); Watson; and Allen v.
       Dept. of Rehab. & Corr., 10th Dist. No. 14AP-619, 2015-Ohio-383. * * * In
       Watson, this court reiterated the legal standard applicable to such claims
       as follows:
                     The law is well-settled in Ohio that ODRC is not liable
              for the intentional attack of one inmate by another, unless
              ODRC has adequate notice of an impending assault.
              Mitchell v. Ohio Dept. of Rehab. & Corr., 107 Ohio App. 3d
              231, 235, 668 N.E.2d 538 (10th Dist.1995), citing Baker v.
              State, Dept. of Rehab. & Corr., 28 Ohio App. 3d 99, 28 Ohio
              B. 142, 502 N.E.2d 261 (10th Dist.1986). Notice may be
              actual or constructive, the distinction being the manner in
              which the notice is obtained rather than the amount of
              information obtained. Hughes v. Ohio Dept. of Rehab. &
              Corr., 10th Dist. No. 09AP-1052, 2010-Ohio-4736, ¶ 14.
              Actual notice exists where the information was personally
              communicated to or received by the party. Id. “Constructive
              notice is that notice which the law regards as sufficient to
              give notice and is regarded as a substitute for actual notice.”
              Id., citing In Re Estate of Fahle, 90 Ohio App. 195, 197, 105
              N.E.2d 429 (6th Dist.1950).
Id. at ¶ 9. See also Allen at ¶ 18.
       {¶8} Thus, applying the law as set forth in Literal, in this instance DRC is not
liable for Torrez’s intentional attack of Morris, unless DRC had adequate notice of an
impending assault.
Case No. 2018-00492JD                       -6-                                 DECISION


       1. First-Objection Issue: Whether the magistrate erred by failing to rule
          that Morris’s status as a protective control inmate constitutes notice of
          danger of assault by general population inmates.
       {¶9} According to the affidavit of evidence submitted by Morris’s counsel, at trial
Morris admitted on cross-examination that, although certain corrections officers were
present, he “did not tell them he was afraid of [Inmate] Torrez or that Torrez threatened
him. He did not use the kite system to notify the Defendant he was afraid or that he was
threatened. Morris said he never told anyone.” (Affidavit of Evidence, ¶ 32.) And in the
magistrate’s decision, the magistrate stated: “Indeed, there is no evidence that DRC
was ever aware that Torres threatened to harm plaintiff.” (Magistrate’s Decision, 8.)
       {¶10} Upon independent review, the court determines that the magistrate did not
err by failing to find that Morris’s status as a protective control inmate was sufficient to
conclude that ODRC had adequate notice of an impending assault. The court rejects
Morris’s proposition that an inmate’s status as a protective control inmate, as a matter of
law, constitutes adequate notice of an impending assault by another inmate. Morris’s
first objection is not well-taken.

       2. Second-Objection Issue: Whether the magistrate erred in failing to find
          that due to the correctional officers’ failure to follow accepted security
          practices based on administrative rules, policies, and general block
          orders, that DRC was negligent.
           Fourth-Objection Issue: Whether the magistrate erred when he failed to
           find that DRC was negligent in failing to observe the presence of a
           general population inmate standing in an open gate to the Jpay kiosk
           room.
           Fifth-Objection Issue: Whether the magistrate erred in attributing the
           assault to a dispute between Morris and Inmate Torrez and whether the
           assault would not have occurred without DRC’s correction officers’
           failure to enforce protective custody orders, and other rules of the
           institution.
       {¶11} Morris’s second, fourth, and fifth objections raise issues of negligence and
proximate cause. To establish a cause of action for negligence, a plaintiff “must show
Case No. 2018-00492JD                         -7-                                  DECISION


(1) the existence of a duty, (2) a breach of duty, and (3) an injury proximately resulting
therefrom.” Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d
1088, ¶ 8, citing Menifee v. Ohio Welding Prod., Inc. (1984), 15 Ohio St.3d 75, 77, 15
OBR 179, 472 N.E.2d 707. In Jeffers v. Olexo, 43 Ohio St.3d 140, 143-144, 539 N.E.2d
614 (1989), the Ohio Supreme Court discussed proximate cause, stating:
              “Proximate cause is a troublesome phrase. It has a particular
       meaning in the law but is difficult to define. It has been defined as: ‘That
       which immediately precedes and produces the effect, as distinguished
       from a remote, mediate, or predisposing cause; that from which the fact
       might be expected to follow without the concurrence of any unusual
       circumstance; that without which the accident would not have happened,
       and from which the injury or a like injury might have been anticipated.’ 65
       C.J.S. § 103 Negligence pp. 1130-1131. * * *” Corrigan v. E. W. Bohren
       Transport Co. (C.A. 6, 1968), 408 F. 2d 301, 303.
              The rule of proximate cause “‘requires that the injury sustained
       shall be the natural and probable consequence of the negligence alleged;
       that is, such consequence as under the surrounding circumstances of the
       particular case might, and should have been foreseen or anticipated by
       the wrongdoer as likely to follow his negligent act.’” Ross v. Nutt (1964),
       177 Ohio St. 113, 114, 29 O.O. 2d 313, 314, 203 N.E. 2d 118, 120,
       quoting Miller v. Baltimore & Ohio Southwestern RR. Co. (1908), 78 Ohio
       St. 309, 325, 85 N.E. 499, 504. See, also, Pendrey v. Barnes (1985), 18
       Ohio St. 3d 27, 18 OBR 23, 479 N.E. 2d 383; cf. Strother v. Hutchinson
       (1981), 67 Ohio St. 2d 282, 21 O.O. 3d 177, 423 N.E. 2d 467.
Accord Black’s Law Dictionary 265 (10th Ed.2014) (defining proximate cause as a
“cause that is legally sufficient to result in liability; an act or omission that is considered
in law to result in a consequence, so that liability can be imposed on the actor”).
Case No. 2018-00492JD                        -8-                                 DECISION


       {¶12} Prison regulations “are primarily designed to guide correctional officials in
prison administration rather than to confer rights on inmates.” State ex rel. Larkins v.
Wilkinson, 79 Ohio St.3d 477, 479, 683 N.E.2d 1139 (1997). Violations of internal rules
and policies, however, may be used to support a claim of negligence. Triplett v. Warren
Corr. Inst., 10th Dist. Franklin No. 12AP-728, 2013-Ohio-2743, ¶ 10. But, even if DRC
corrections officers acted negligently, as Morris contends, negligence is without legal
consequence unless DRC’s purported negligence is a proximate cause of an injury.
See Whiting v. State Dept. of Mental Health, 141 Ohio App.3d 198, 202, 750 N.E.2d
644 (10th Dist.2001). Because in this instance DRC lacked adequate notice of an
impending assault, a requirement for the imposition of liability on DRC for the intentional
attack of Morris by Inmate Torrez, see Literal at ¶ 16, a legally sufficient cause is lacking
to result in a consequence that liability should be imposed on DRC. Morris’s second,
fourth, and fifth objections are not well-taken.

       3. Third-Objection Issue: Whether the magistrate erred in finding that
          Morris was not credible.
       {¶13} In Siegel v. Univ. of Cincinnati College of Medicine, 2015-Ohio-441, 28
N.E.3d 612, ¶ 12 (10th Dist.), the Tenth District Court of Appeals stated: “‘Although the
trial court may appropriately give weight to the magistrate’s assessment of witness
credibility in view of the magistrate’s firsthand exposure to the evidence, the trial court
must still independently assess the evidence and reach its own conclusions.’ Sweeney
v. Sweeney, 10th Dist. No. 06AP-251, 2006-Ohio-6988, ¶ 15, citing DeSantis v. Soller,
70 Ohio App.3d 226, 233, 590 N.E.2d 886 (10th Dist.1990).” Thus, provided that this
court independently assess the evidence and reach its own conclusions, it is wholly
proper for the court to give weight to the magistrate’s assessment of the credibility of the
testimony of the parties’ witnesses and other evidence before the court. In this case,
the magistrate was in a position to view the witnesses, observe the demeanor of the
witnesses, gestures of the witnesses, and the voice inflections of the witnesses. See
Case No. 2018-00492JD                        -9-                                  DECISION


Hill v. Briggs, 111 Ohio App.3d 405, 411-412, 676 N.E.2d 547 (10th Dist.1996) (choice
between credible witnesses and conflicting testimony rests solely with a finder of fact
and a fact finder is free to believe all, part, or none of the testimony of each witness).
       {¶14} To support a finding that the Morris’s testimony lacked credibility, the
magistrate stated: “The video shows plaintiff, who had a razor in his right hand, moving
his hand from side to side, right where two straight line cuts are found on his head.
Plaintiff had no explanation for the cuts he received to his head and was unable to
provide an explanation for why he swiped the razor after the incident. The swipe is also
visible on the video. The magistrate cannot think of any legitimate reason why plaintiff
would use the razor on himself and is forced to conclude that that plaintiff’s testimony
thus lacks credibility.” (Magistrate’s Decision, 9.)
       {¶15} Upon de novo review of the evidence, the court concludes that Morris’s
third objection, which challenges the magistrate’s credibility determination, should be
overruled.

       4. Sixth-Objection Issue: Whether the magistrate’s findings regarding the
          security video (Exhibit B) are justified.
       The magistrate described the security video as follows:
               Defendant also submitted video of the attack. The video shows
       plaintiff being escorted to the kiosk where his hands are uncuffed and his
       legs are shackled to the stool. Two corrections officers and Torres are
       present in the area. Another inmate is escorted out of the area by one of
       the corrections officers. The corrections officer who escorted plaintiff to
       the kiosk turns way from plaintiff and moves toward his desk, which is
       located on the opposite side of a partition separating it from the kiosk.
       Immediately thereafter, Torres, who was waiting by the wall several feet
       away, approaches quickly and appears to strike plaintiff in the side of the
       head.    Plaintiff falls to the ground and Torres continues to attempt to
Case No. 2018-00492JD                          -10-                             DECISION


       punch him. Plaintiff’s right hand moves to his face and it appears plaintiff
       is gripping an object with his right hand; at no point does it appear that
       plaintiff is attempting to use the object to harm Torres or to defend himself.
       Rather, the video shows plaintiff moving his right hand back and forth
       along his head right where it was later observed that he had two straight-
       line cuts. Finally, the video shows plaintiff transfer the object to his left
       hand where he subsequently swipes the object away. The attack lasts
       approximately five seconds. Plaintiff continues to move on the ground
       following the attack. [TPU Escort Officer] Wallace was within a few feet of
       plaintiff during the entire incident.
(Magistrate’s Decision, 6-7.)
       {¶16} Morris contends that the video shows Torrez continuing to punch Morris in
the head and body, that it is impossible to determine, what, if anything, Morris had in his
hand or what he did with it, that Wallace acted promptly to stop the assault, and that it is
impossible to conclude that a razorblade caused the two lines on Morris’s forehead or
that Morris had the razorblade after he was struck and fell to the floor.
       {¶17} Upon independent review of the video, the court finds that Morris’s claims
are not wholly without merit. While the video does not clearly show what, if anything,
Morris had in hand or Morris cutting his forehead with a razor blade, the video does
show Morris’s hand engaged in a sweeping motion after the altercation, almost as if
Morris was swiping away an object. More importantly, however, the video does not
show that DRC had adequate notice of an impending assault by Torrez. Indeed, the
video shows Torrez quickly charging Morris when a corrections officer turned away from
Morris, thereby supporting a view that corrections officers did not have notice of
Torrez’s impending assault.
       {¶18} Morris’s sixth objection is not well-taken.
Case No. 2018-00492JD                       -11-                                  DECISION


       5. Seventh-Objection Issue: Whether the magistrate’s decision is contrary
          to law and against the manifest weight of the evidence.
       {¶19} In State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),
discussing the concept of weight of the evidence, the Ohio Supreme Court stated:
“Weight of the evidence concerns ‘the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other. It
indicates clearly to the jury that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds, they shall find the greater
amount of credible evidence sustains the issue which is to be established before them.
Weight is not a question of mathematics, but depends on its effect in inducing belief.’
(Emphasis added.) Black’s, supra, at 1594.” Thompkins further states that, when an
appellate court reverses a trial court’s judgment on the basis that a verdict is against the
manifest weight of the evidence, the appellate court
       sits as a “‘thirteenth juror’” and disagrees with the factfinder’s resolution of
       the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S. Ct. at 2218, 72 L.
       Ed. 2d at 661. See, also, State v. Martin (1983), 20 Ohio App. 3d 172,
       175, 20 Ohio B. Rep. 215, 219, 485 N.E.2d 717, 720-721 (“The court,
       reviewing the entire record, weighs the evidence and all reasonable
       inferences, considers the credibility of witnesses and determines whether
       in resolving conflicts in the evidence, the jury clearly lost its way and
       created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered. The discretionary power to grant a new
       trial should be exercised only in the exceptional case in which the
       evidence weighs heavily against the conviction.”).
Thompkins at 387.       Since the Ohio Supreme Court issued Thompkins, the Ohio
Supreme Court has recognized that the Thompson standard of review for manifest
weight of the evidence applies in civil cases. Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, 972 N.E.2d 517, ¶ 17-23.
Case No. 2018-00492JD                       -12-                                 DECISION


       {¶20} Upon independent review, the court concludes that the magistrate’s
statement that “[i]nasmuch as plaintiff failed to establish that defendant had adequate
notice of an impending attack, plaintiff’s claim fails” is not contrary to law. Moreover, the
court cannot conclude that the magistrate lost his way and created such a manifest
miscarriage of justice so that a recommendation of judgment in favor of DRC should not
be followed.
       {¶21} Morris’s seventh objection is not well-taken.

   III. Conclusion
       {¶22} For reasons set forth above, the court concludes that ODRC’s
memorandum in opposition filed on January 21, 2020, should be stricken and that all of
Morris’s objections to the magistrate’s decision of October 24, 2019, should be
overruled.




                                           PATRICK M. MCGRATH
                                           Judge
[Cite as Morris v. Dept. of Rehab. & Corr., 2020-Ohio-612.]



KRISTOFFER MORRIS                                      Case No. 2018-00492JD

        Plaintiff                                      Judge Patrick M. McGrath
                                                       Magistrate Gary Peterson
        v.
                                                       JUDGMENT ENTRY
DEPARTMENT OF REHABILITATION
AND CORRECTION

        Defendant

         {¶23} For reasons set forth in the decision filed concurrently herewith, the court
sua sponte STRIKES defendant’s memorandum in opposition of January 21, 2020, and
OVERRULES plaintiff’s objections to a magistrate’s decision of October 24, 2019.
Because the magistrate has properly applied the law to the facts of the case, the court
adopts the magistrate’s decision and recommendations as its own.                  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.




                                                    PATRICK M. MCGRATH
                                                    Judge

Filed January 30, 2020
Sent to S.C. Reporter 2/21/20
