PATRICK E. SHEERAN, JUDGE
Sent to S.C. Reporter 12/8/21
Gary Peterson, Magistrate Judge
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
PATRICK E. SHEERAN, JUDGE
{¶1} On August 2, 2021, defendant filed a motion for summary judgment pursuant to Civ.R. 56(B). Plaintiff did not file a response. The motion is now before the court for a non-oral hearing pursuant to L.C.C.R. 4(D). For the reasons stated below, defendant's motion shall be granted.
Standard of Review
{¶2} Motions for summary judgment are reviewed under the standard set forth in Civ.R. 56(C), which states, in part:
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 summary 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.
"[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). To meet this initial burden, the moving party must be able to point to evidentiary materials of the type listed in Civ.R. 56(C). Id. at 292-293.
{¶3} If the moving party meets its initial burden, the nonmoving party bears a reciprocal burden outlined in Civ.R. 56(E), which states, in part:
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.
Factual Background
{¶4} According to the complaint, plaintiff is an inmate in the custody and control of defendant. On May 10, 2019, an unidentified person called plaintiff to the prison recreational yard at the Southeastern Correctional Institution (SCI). Complaint, ¶ 12. Upon arriving in the recreational yard, plaintiff was unable to identify or locate the person who called him to the recreational yard, and as a result, began to leave the recreational yard. Id. As plaintiff was leaving the recreational yard, an inmate named Topasna struck plaintiff in the head and face with a lock. Id. Plaintiff alleges that the family of the victim of plaintiff's crime paid Topasna to commit the attack. Id. Plaintiff claims that prior to the attack, he repeatedly warned defendant's staff of a "hit" that was placed on him, but defendant took no action. Id. Furthermore, plaintiff states that after he reported the incident, he was informed that the cameras in that area of the prison were not in working order. Id. Plaintiff further alleges that although he was the one who was attacked, he was punished for fighting. Id. Plaintiff, claiming to have suffered nerve damage, PTSD, and ongoing pain because of the incident, brings this action seeking to recover $500, 000. Complaint, ¶ 13-14.
{¶5} Defendant argues that plaintiff cannot prevail in this action because it had no notice, actual or constructive, of an impending attack. Further, defendant argues that a corrections officer witnessed both inmates fighting, rather than an attack as described by plaintiff.
{¶6} In support of its motion for summary judgment, defendant submitted the affidavit of Stanley Miller, the Institutional Inspector at SCI. In his position, Miller has access to inmates' records, including those records from inmates who request protective custody. Miller Aff., ¶ 1. According to Miller, whenever an inmate has concerns about other inmates, including fear of an impending attack from another inmate, they may use any of several ways to inform the staff at the prison. Id. at ¶¶ 5, 6. Miller avers that he reviewed the records concerning plaintiff and could not locate any kites, grievances, informal complaints, or other documentation submitted by plaintiff regarding Topasna or any records regarding impending attacks or "hits" on plaintiff. Id. at ¶ 6. Miller adds that there is no history of any conflict between the inmates and no separation order between the inmates prior to the attack. Id. Miller states there was nothing in plaintiffs inmate files that would indicate any impending attack against plaintiff. Id.
{¶7} Defendant also submitted the affidavit of Kolten Thornton, a corrections officer at SCI. Thornton was working in the recreational yard on the day of the incident. Defendant's Motion, Exh. A. According to Thornton, both inmates involved were punching each other and complied with his order to cease. Id. They were charged with fighting and taken to the Rules Infraction Board (RIB). Id. The RIB ruled that both inmates were guilty of fighting. Id.
Law and Analysis
{¶8} "To establish negligence, a plaintiff must show the existence of a duty, a breach of that duty, and injury resulting proximately therefrom." Taylor v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-1156, 2012-Ohio-4792, ¶ 15. "In the context of a custodial relationship between the state and its prisoners, the state owes a common-law duty of reasonable care and protection from unreasonable risks." Jenkins v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-787, 2013-Ohio-5106, ¶ 8. "The state, however, is not an insurer of inmate safety and owes the duty of ordinary care only to inmates who are foreseeably at risk." Franks v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-442, 2013-Ohio-1519, ¶ 17. "Reasonable care is that degree of caution and foresight an ordinarily prudent person would employ in similar circumstances, and includes the duty to exercise reasonable care to prevent an inmate from being injured by a dangerous condition about which the state knows or should know." McElfresh v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 04AP-177, 2004-Ohio-5545, ¶ 16.
{¶9} "When one inmate attacks another inmate, 'actionable negligence arises only where prison officials had adequate notice of an impending attack.'" Skorvanek v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 17AP-222, 2018-Ohio-3870, ¶ 29, quoting Metcalf v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 01AP-292, 2002-Ohio-5082, ¶ 11; Watson v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-606, 2012-Ohio-1017, ¶ 9 ("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."). "'Whether ODRC had or did not have notice is a question that depends on all the factual circumstances involved.'" Pate v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 18AP-142, 2019-Ohio-949, ¶ 12, quoting Frash v. Ohio Dept. of Rehab. & Corr ., 10th Dist. Franklin No. 14AP-932, 2016-Ohio-3134, ¶ 11.
{¶10} Based upon the uncontested affidavit testimony of Stanley Miller put forth by defendant, the court finds that defendant had no notice of an impending attack on plaintiff. Miller averred that is no record of plaintiff informing defendant's staff regarding a conflict with Topasna or regarding fears that an attack was impending due to his prior crime. Plaintiff never filed any documentation, including kites, grievances, or informal complaints, concerning an impending attack. Furthermore, there is no record that plaintiff requested any sort of protective custody from defendant prior to the incident. Moreover, there is no record of any history of conflicts between the inmates and no separation orders between the inmates prior to this incident.
{¶11} Plaintiff failed to submit any evidentiary materials outlined in Civ.R. 56 to dispute defendant's assertion that it did not have notice of an impending attack. Civ.R. 56(E) provides: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon 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." As stated previously, plaintiff did not respond to defendant's motion for summary judgment. As a result, the evidence submitted by defendant is uncontradicted.
{¶12} Accordingly, the court finds that there is no genuine issue of material fact regarding defendant's lack of notice of an impending attack on plaintiff. Based upon the undisputed evidence put forth by defendant, the court must conclude that defendant had no notice, actual or constructive, of an impending attack on plaintiff.
{¶13} Based upon the foregoing, it can only be concluded that there are no genuine issues of material fact, and defendant is entitled to judgment as a matter of law on plaintiff's claim. Accordingly, defendant's motion for summary judgment is GRANTED, and judgment is rendered in favor of defendant. All previously scheduled events are hereby VACATED. 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.