GARY PETERSON MAGISTRATE JUDGE
Sent to S.C. Reporter 4/27/23
DECISION OF THE MAGISTRATE
GARY PETERSON MAGISTRATE JUDGE
{¶1} Plaintiff, an inmate in the custody and control of defendant, brings this action for negligence arising out of an incident where he was attacked by his cellmate, inmate Rashid Ali. The case proceeded to trial before the undersigned magistrate. For the reasons that follow, the magistrate finds that plaintiff failed to prove his case by a preponderance of the evidence.
Findings of Fact
{¶2} In January 2021, plaintiff was housed at the Grafton Correctional Institution (GCI) where he was assigned to share a cell with Rashid Ali. On January 11, 2021, plaintiff approached Derrick Randolph, a sergeant at GCI, and requested that he be moved to a different cell, commonly referred to as a "bed move." Randolph documented the conversation by creating a note in the RAP6 program, which is a program used by GCI staff to create notes regarding an inmate for GCI staff to refer to if necessary. In the note dated January 11, 2021, Randolph writes that plaintiff entered his office and requested a bed move, and when pressed as to what the problem was, plaintiff responded that he did not want to be there. Randolph concluded in the note that there was no administrative reason to move plaintiff at that time as he had recently been administratively moved. Defendant's Exhibit B. Randolph added that he only knew at that time that plaintiff and Ali were on different schedules.
{¶3} On January 13, 2021, plaintiff approached Stephanie Tepus, a unit manager at GCI regarding a bed move. After proceeding to Randolph's office, plaintiff, Tepus, and Randolph discussed plaintiffs request for a bed move. Tepus documented the discussion and events in a note dated January 13, 2021. Defendant's Exhibit B. In the meeting, plaintiff indicated that it was not working out between him and Ali, but plaintiff only stated that they were on different schedules as justification for a bed move. Id. When asked if there was an underlying issue, plaintiff provided that Ali did not want him in the cell, and they just do not want to be together. Id. Tepus and Randolph explained the process of requesting a bed move, and they stated that they would speak with Ali. Id. After speaking with Ali, Tepus wrote that both Ali and plaintiff agreed that there was no issue and that they "would be cool." Id.
{¶4} Shortly after the parties dispersed, Ali became upset while having a discussion with Randolph. Randolph called for assistance whereupon Ali was subdued and subsequently escorted to shift command to discuss his concerns. Randolph explained that protocol when an inmate is upset is to call for assistance and take the inmate to shift command. At that point, shift command will determine if the inmate is a threat whereupon he would be placed in restrictive housing or if determined not to be a threat, the inmate would be returned to his housing unit. Randolph stated that the verbal confrontation did not concern plaintiff and that it was later determined that Ali was not a threat.
{¶5} Plaintiff believed that Ali was going to be taken to restrictive housing and that the issue was resolved. However, after the lunch period, Ali returned to his cell. Shortly thereafter, Ali attacked plaintiff, causing injuries to his knee. Karen Kehoe, a corrections officer at GCI, discovered plaintiff lying on the ground and called for medical assistance. Randolph wrote a conduct report regarding the attack. Defendant's Exhibit C. Kehoe did not recall plaintiff informing her of difficulties or issues between plaintiff and Ali and did not recall plaintiff refusing to lock, a method that inmates may use to be placed in segregation.
{¶6} At no point prior to the attack did plaintiff request protective custody. When an inmate requests protective custody, the two inmates who are at issue are separated. Both inmates are then interviewed, and a form is filled out while GCI staff evaluate if protective custody is necessary. The inmates remain separated throughout the process. At no point did plaintiff state that he feared for his safety due to an impending attack by Ali. If he had, a similar process to that of requesting protective custody would have ensued.
{¶7} Prior to Ali attacking plaintiff on January 13, 2021, plaintiff had no issues with Ali. Indeed, plaintiff acknowledged in interrogatories and requests for admissions that prior to the attack, he was not afraid of his cellmate while stating only that the two were not getting along such that he needed a bed move. Defendant's Exhibit A.
{¶8} Following these events, plaintiff appeared before the Rules Infraction Board (RIB) where he discussed the attack by Ali. Defendant's Exhibit I. Before the RIB, plaintiff indicates that he did not have problems with Ali prior to the attack and that he was concerned about getting a bed move due to incompatibility issues. Id. Plaintiff added that he did not want to be in a cell with a drug addict. Id.
(¶9} Plaintiff subsequently received medical treatment for an injury to his knee and was sent to an outside medical facility for evaluation of his knee where he eventually underwent surgery to repair damage in his knee. Plaintiff continued to receive treatment for several months following the injury and surgery, but plaintiff was no longer using a cane to aid his walking as of November 2021.
Conclusions of Law and Analysis
{¶10} "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.
{¶11} However, while "'prison officials owe a duty of reasonable care and protection from unreasonable risks to inmates, * * * they are not the insurers of inmates' safety.'" Morris. v. Ohio Dept. of Rehab. & Corr ., 10th Dist. Franklin No. 20AP-131, 2021-Ohio-3803, ¶ 31. Internal citations omitted.
{¶12} "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.
{¶13} "Notice may be actual or constructive, the distinction being the manner in which the notice is obtained rather than the amount of information obtained." Lucero v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-288, 2011-Ohio-6388, ¶ 18. "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." Hughes v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 09AP-1052, 2010-Ohio-4736, ¶ 14.
{¶14} Plaintiff failed to prove by a preponderance of the evidence that defendant had notice, actual or constructive, of an impending attack. The evidence established that plaintiff never requested protective custody or informed defendant's staff that he feared for his safety prior to being attacked by Ali in his cell on January 13, 2021. Plaintiff acknowledged that he did not request protective custody or inform defendant's staff that he feared for his personal safety. Randolph, Tepus, and Kehoe all credibly testified that at no point did plaintiff ever inform them that he needed protective custody or that he feared for his safety.
{¶15} While plaintiff met with multiple staff members at GCI on at least two different occasions, plaintiff was primarily concerned with a bed move and did not indicate that he believed he was going to be attacked by Ali. Plaintiff vaguely referred to differing schedules and that the two were not getting along, but he did not detail the nature or substance of any such issues or communicate the same to defendant's staff. Indeed, plaintiff acknowledged in his requests for admissions that he was not afraid of Ali prior to the attack. When provided with an opportunity to explain what he told defendant's staff prior to the attack, plaintiff was only able to state that he and Ali were not getting along and that they had different schedules. Vague statements that the two inmates were not getting along, that the two inmates had different schedules, or that they needed a bed move do not rise to the level of adequate notice of an impending attack. Jackson v. Ohio Dept. of Rehab. & Corr ., 10th Dist. Franklin No.99AP-934, 2000 Ohio App.LEXIS 1671, * 9 (April 18, 2000) (finding no notice of an impending attack where the inmate did not request protective custody or directly express fear of an impending assault, but only made vague statements that he needed to get off the range or be moved off the range).
{¶16} Furthermore, there was no testimony or evidence regarding any previous instances of violence between plaintiff and Ali and there was no evidence that Ali has previously attacked other inmates or GCI staff such that it was foreseeable that he would also attack plaintiff. At the RIB hearing, plaintiff acknowledged that prior to Ali attacking him on January 13, 2021, the two had not had any issues. It appears that Ali's attack on plaintiff was unprovoked and unexpected both to plaintiff and to defendant's staff. After meeting with both Ali and plaintiff to discuss the inmates' desire for a bed move, both inmates indicated to Randolph and Tepus that they would "be cool."
{¶17} The magistrate acknowledges that following the meetings to discuss bed moves, Ali engaged in a heated conversation with Randolph. However, Randolph testified that the substance of the conversation did not concern plaintiff. After being sent to the shift command office, Ali returned to the housing unit indicating that it did not appear he was a threat at that time. There is simply no evidence before the court as to the nature of the dispute between Ali and Randolph such that it could be concluded that defendant should have foreseen an impending attack on plaintiff by Ali. While plaintiff was in no way responsible for provoking the attack by Ali, there is simply no credible evidence to support a conclusion that defendant had notice of an impending attack.
{¶18} Based upon the foregoing the magistrate finds that plaintiff failed to satisfy his burden of proof to establish that defendant had notice of an impending attack and that defendant breached its duty of reasonable care. Therefore, the magistrate recommends that judgment be entered in favor of defendant.
{¶19} 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).