Morris v. Dep't of Rehab. & Corr.

2020 Ohio 612

KRISTOFFER MORRIS Plaintiff v. DEPARTMENT OF REHABILITATION AND CORRECTION Defendant

Case No. 2018-00492JD

Court of Claims of Ohio

To S.C. Reporter February 21, 2020

January 30, 2020

Judge Patrick M. McGrath

Magistrate Gary Peterson

DECISION

{¶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;" 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 "MemorandumContra 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."

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 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.

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...