Gibson v. Ohio Dept. of Rehab. & Corr.

[Cite as Gibson v. Ohio Dept. of Rehab. & Corr., 2022-Ohio-1028.]

REGINALD GIBSON Case No. 2019-01160JD

Plaintiff Magistrate Scott Sheets

v. DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION

Defendant

{¶1} Plaintiff Reginald Gibson (plaintiff) is an inmate in defendant’s custody.

Plaintiff seeks recovery for injuries he alleges were sustained after his cellmate assaulted

him on August 15, 2018. Trial took place remotely on November 8, 2021. In addition to

plaintiff, Joanna Factor, Deputy Warden Corey Foster, Brenda Guice, Sergeant Matthew

Giddens (Sgt. Giddens), Ira Collier (Mr. Collier), Lieutenant Michael Ledesma (Lt.

Ledesma), and Stephanie Dysert, all employees of defendant, testified. In addition,

several exhibits were admitted into evidence including plaintiff’s institutional medical

records and records generated as part of defendant’s investigation of the incident. For

the following reasons, the magistrate hereby recommends judgment for plaintiff.

Findings of Fact

{¶2} The magistrate makes the following factual findings. Plaintiff is an inmate in

defendant’s custody. During July and August of 2018, and while housed at defendant’s

Allen-Oakwood Correctional Institution (AOCI), plaintiff shared a cell with another inmate,

Byron Harrington (Mr. Harrington). On August 15, 2018, plaintiff and Mr. Harrington were

in their cell when they got into a fight. Defendant investigated the incident and both

inmates were found guilty of rules infractions for fighting by the institution’s Rules

Infraction Board (RIB). Plaintiff’s testimony and multiple exhibits generated as part of

defendant’s investigation corroborate these facts. Several of defendant’s employees

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including Sgt. Giddens testified that they became aware of the fight between plaintiff and

Harrington. Additionally, Sgt. Giddens and Lt. Ledesma testified regarding the

investigation and RIB proceedings.

{¶3} Mr. Harrington both initiated the fight and acted as the primary aggressor; he

assaulted plaintiff. On August 15, 2018, plaintiff sat on his bed, the top bunk in the cell

he shared with Mr. Harrington, while he wrote with a pen and paper. Mr. Harrington

aggressively approached plaintiff, grabbed plaintiff’s leg, and pulled plaintiff off the top

bunk. While falling, plaintiff scratched Mr. Harrington’s neck with a pen with which he was

writing. Plaintiff restrained Mr. Harrington before Mr. Harrington pushed plaintiff who hit

his head at some point during the altercation. After the fight ended, plaintiff alerted a

corrections officer to what had occurred and both men were separated and handcuffed.

Plaintiff testified to the assault and the magistrate finds his testimony credible as to the

facts set forth above. Plaintiff was the only witness with first-hand knowledge who testified

regarding Harrington’s assault on him. In addition, plaintiff’s testimony is substantially

consistent with the version of events he provided to Sgt. Giddens, during the latter’s

interview of him after the incident, as reflected in Exhibit A and in the conduct report,

Exhibit I. Plaintiff’s testimony is also consistent with his statements at his hearing before

the RIB, contained in Exhibit G.

{¶4} To the extent plaintiff injured Mr. Harrington during the latter’s assault on

plaintiff, plaintiff’s actions were in reaction to and in defense of Mr. Harrington’s assault

on him. Again, plaintiff alone offered first-hand testimony regarding the assault. Though

Sgt. Giddens suggested plaintiff stabbed Mr. Harrington at trial, he was not present when

the assault occurred. Moreover, the opinion Sgt. Giddens offered at trial is inconsistent

with the contents of Exhibit A, his interoffice communication to Deputy Warden Foster,

generated as part of the investigation of the incident. It reflects plaintiff’s statements to

Sgt. Giddens during the investigation. They are consistent with the facts to which plaintiff

testified at trial, specifically that plaintiff scraped or scratched Mr. Harrington with his pen

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while being pulled off the top bunk. Exhibit A also contains Sgt. Giddens’ opinion, formed

at the time of the investigation, that Harrington acted as the aggressor on the day of the

assault.

{¶5} Prior to the assault, plaintiff, on at least three occasions spoke to Sgt. Giddens

and/or Mr. Collier regarding hostility between he and Mr. Harrington. Plaintiff requested

that he be moved to a different cell. Plaintiff testified that he spoke to Mr. Collier and Sgt.

Giddens several times in July and August of 2018 about Mr. Harrington threatening him.

Exhibit G, plaintiff’s statement to the RIB regarding the assault, is consistent with plaintiff’s

testimony at trial. Exhibit A, which Sgt. Giddens prepared, indicates that he spoke to

plaintiff in July of 2018 regarding issues the latter was having with Mr. Harrington, that he

directed plaintiff to speak to Mr. Collier and that Mr. Collier spoke to both plaintiff and Mr.

Harrington about the situation. Exhibit A also states that on August 15, 2018, the day of

the assault, plaintiff sought out Sgt. Giddens because, per plaintiff, he and Mr. Harrington

were still not getting along and because Mr. Harrington was “still talking crazy to him.” On

the day of the assault, plaintiff sent a kite to Mr. Collier regarding the “volatile situation”

between he and Mr. Harrington. Though Mr. Collier indicated he did not see this kite on

the day of the incident, the kite does corroborate the fact that plaintiff spoke to Mr.

Giddens on the day of the assault. Finally, though both Sgt. Giddens and Mr. Collier

could not recall the specific number of times they spoke with plaintiff, they also could not

deny that he did speak to them on at least three occasions as corroborated by the exhibits

cited above.

{¶6} Mr. Harrington also had a history of hostility toward other inmates and staff.

Plaintiff and Sgt. Giddens both offered testimony on this fact. Sgt. Giddens’ statements

in Exhibit A regarding Mr. Harrington’s history are consistent with his opinion offered at

trial that Mr. Harrington was a “hot-head.”

{¶7} As a result of Mr. Harrington’s assault, plaintiff suffered a bump on his head,

an abrasion to his left shoulder, a small laceration on his right shoulder, and a scratch on

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his abdomen. Plaintiff experienced temporary pain and discomfort from his injuries.

Plaintiff testified to hitting his head. Plaintiff’s medical records from AOCI, specifically

Exhibits C and D, reflect these physical injuries were present when he was examined

immediately after the assault. Plaintiff experienced temporary pain and discomfort from

these injuries including a headache.

{¶8} Shortly after the incident, Plaintiff sought and received treatment for migraine

headaches. Plaintiff continued to receive treatment for migraine headaches after his

release from defendant’s custody and continued to experience migraines. However,

plaintiff failed to prove that Mr. Harrington’s assault caused his migraine headaches or

otherwise caused injuries to plaintiff that are permanent, chronic, or continuing. Plaintiff

testified that he experiences continuing migraine headaches that began after the assault,

that he continues to receive treatment, and that he is prescribed Imitrex for his headaches.

In addition, plaintiff’s institutional medical records, Exhibit J, reflect treatment for migraine

headaches, including the use of the prescription medication Imitrex. However, only

plaintiff attributed these headaches to the assault, specifically citing the fact that he hit his

head during the assault. Plaintiff is not a doctor and his opinion regarding the cause of

his migraine headaches is not credible and is entitled to minimal weight. Moreover,

plaintiff presented no medical expert testimony. Plaintiff’s medical records, Exhibits E

and J, include a radiological report from an x-ray of his skull conducted in September of

2018, which found no fractures and concluded that the x-rays of plaintiff’s skull were

unremarkable. Exhibits C and D, plaintiff’s medical records from the day of the assault

describe ostensibly superficial injuries. The pictures taken as part of Mr. Giddens’

investigation of the incident depict minor injuries. Exhibit G. Finally, plaintiff’s institutional

medical records indicate that plaintiff has a medical history that includes pulmonary

tuberculosis, hyperlipidemia, other chronic pain, and lipoma which plaintiff did not address

in claiming that the assault, as opposed to his other health problems, cause or contribute

to his migraine headaches. In short, though the greater weight of the evidence

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established that plaintiff suffers migraine headaches, it did not establish that Mr.

Harrington’s assault caused plaintiff’s migraines.

{¶9} Plaintiff paid nothing for his medical treatment while he was incarcerated

including the medical treatment he received immediately following the assault. Plaintiff

offered no evidence that he paid any medical expenses.

Conclusions of Law

{¶10} Plaintiff’s complaint states a claim for negligence. As it relates to claims

based on one inmate’s assault of another, the 10th District has stated:

In order to prevail on a claim of negligence, “a plaintiff must establish

the existence of a duty, a breach of the duty, and an injury resulting

proximately therefrom.” A plaintiff “has the burden to prove each element

of their negligence claim by a preponderance of the evidence.”

In regard to the “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.” Reasonable care is

defined as “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.” 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.”

* * * [T]his court [has] discussed the legal standard with respect to

the liability of ODRC for an assault by one inmate on another. Specifically,

we noted “[t]he 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.” Under Ohio law, “[n]otice may be actual or

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constructive, the distinction being the manner in which the notice is obtained

rather than the amount of information obtained.” Id. In this respect, “[a]ctual

notice exists where the information was personally communicated to or

received by the party,” whereas “‘[c]onstructive notice is that notice which

the law regards as sufficient to give notice and is regarded as a substitute

for actual notice.’” (citations omitted.)

Morris v. Ohio Dep’t of Rehab. & Corr., 10th Dist. No. 20AP-131, 2021-Ohio-3803, ¶¶ 30-

32.

{¶11} As noted, plaintiff bore the burden of proving his claim by a preponderance

of the evidence. Id. As stated in Brothers v. Morrone-O’Keefe Dev. Co., LLC, 10th Dist.

No. 06AP-713, 2007-Ohio-1942, 2007 Ohio App. Lexis 1762, ¶ 49: “[a] preponderance of

the evidence is ‘the greater weight of the evidence * * * [it] means evidence that is more

probable, more persuasive, or of greater probative value.”

{¶12} To establish proximate cause relative to injuries that are “internal and

elusive, and are not sufficiently observable, understandable, and comprehensible”

plaintiff needed to present expert testimony. See Wright v. City of Columbus, 10th Dist.

No. 05AP-432, 2006-Ohio-759, ¶ 17-19.

Decision

{¶13} The magistrate finds that plaintiff proved his claims by a preponderance of

the evidence. There is no dispute regarding the duty of reasonable care defendant owed

plaintiff. Further, when all of the facts unique to this case are considered, the magistrate

finds that defendant had constructive notice of an impending assault because plaintiff

sought out Sgt. Giddens and Mr. Collier no less than three times regarding hostility

between he and Mr. Harrington and to request a bed move. Further, Sgt. Giddens knew

Mr. Harrington to be a “hot head” and Mr. Harrington also had a reputation for hostility

toward other inmates and staff. Because defendant had constructive notice of Mr.

Harrington’s impending assault, it had a duty to protect plaintiff from the assault. It

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breached this duty in failing to protect plaintiff from the August 15, 2018 assault. Further,

the August 15, 2018 assault proximately caused injuries, which were temporary and minor

as set forth herein in the magistrate’s findings of facts. Plaintiff paid nothing for the

treatment of these injuries. Though plaintiff’s injuries were temporary in nature, they did

involve pain and discomfort. As such, the magistrate values plaintiff’s injuries at

$1,000.00.

{¶14} For the reasons stated above, the magistrate recommends judgment in

plaintiff’s favor in the amount of $1,000.00.

{¶15} 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).

SCOTT SHEETS

Magistrate

Filed February 11, 2022

Sent to S.C. Reporter 3/29/22