Kelly v. Ohio Dept. of Rehab. & Corr. , 2011 Ohio 7046 ( 2011 )


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  • [Cite as Kelly v. Ohio Dept. of Rehab. & Corr., 
    2011-Ohio-7046
    .]
    Court of Claims of Ohio
    The Ohio Judicial Center
    65 South Front Street, Third Floor
    Columbus, OH 43215
    614.387.9800 or 1.800.824.8263
    www.cco.state.oh.us
    MICHAEL KELLY
    Plaintiff
    v.
    OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
    Defendant
    Case No. 2009-06338
    Judge Joseph T. Clark
    Magistrate Matthew C. Rambo
    JUDGMENT ENTRY
    {¶1} On October 7, 2011, the magistrate issued a decision recommending
    judgment for plaintiff in an amount to be determined in a subsequent proceeding.
    {¶2} Civ.R. 53(D)(3)(b)(i) states, in part: “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).” Defendant timely filed objections.
    {¶3} Plaintiff was injured in a fight with another inmate by the name of Carlos
    Castro. Plaintiff testified that he had fought with Castro once before and that when
    Castro later moved into the cell next to his, plaintiff told his unit sergeant about the prior
    fight and asked to be moved out of the block. According to plaintiff, Sergeant Lininger
    told plaintiff he “wasn’t going anywhere.” (Decision at p. 3.) One or two weeks later,
    Castro attacked plaintiff as he slept and stabbed him with a roofing nail.
    {¶4} Following a bench trial, the magistrate concluded: “[T]he court finds that the
    conversation between plaintiff and Sergeant Lininger shortly before the attack, coupled
    with the prior violent encounter between plaintiff and Castro, constitutes sufficient notice
    Case No. 2009-06338                         -2-                                    ENTRY
    to defendant of an impending attack. The court further finds that defendant breached its
    duty of care to plaintiff inasmuch as no attempt was made to ensure plaintiff’s safety.”
    (Decision at p. 4.)
    {¶5} In defendant’s first objection, defendant contends that the magistrate erred
    in relying upon plaintiff’s testimony regarding the substance of his conversation with
    Lininger. Defendant contends that due to certain inaccuracies and inconsistencies in
    plaintiff’s testimony regarding other issues, the magistrate was required to disbelieve all
    of plaintiff’s testimony. The court disagrees.
    {¶6} The trier of fact may believe or disbelieve all or any part of a witness’s
    testimony and it is within the province of the trier of fact to determine what testimony is
    worthy of belief and what is not. See, e.g., State v. Group, 
    98 Ohio St.3d 248
    , 2002-
    Ohio-7247, ¶120; Warren v. Simpson (Mar. 17, 2000), Trumbull App. No. 98-T-0183.
    {¶7} Upon review of plaintiff’s entire testimony, the court does not perceive any
    error on the part of the magistrate with respect to his assessment of plaintiff’s credibility
    as it pertains to his conversation with Lininger. Lininger was not called as a witness in
    this case. Accordingly, defendant’s objection is without merit.
    {¶8} Defendant next takes exception to the magistrate’s understanding of
    Kimberly Frederick’s testimony. Frederick is the institutional inspector who investigated
    plaintiff’s written complaint about the incident.     The magistrate stated:      “Frederick
    concluded that there was no separation order for plaintiff and Castro but that Lininger
    did not do an adequate job of informing plaintiff of his options if he was concerned about
    another inmate. She further stated that if plaintiff informed Lininger that he felt his life
    was in danger then he should have been placed in segregation or protective custody
    immediately pending an investigation, but that she does not believe that plaintiff so
    informed Lininger.” (Decision at p. 4.) (Emphasis added.)
    {¶9} Based upon the court’s review of the transcript, the magistrate did not
    misrepresent Frederick’s testimony.
    Case No. 2009-06338                         -3-                                     ENTRY
    {¶10} The merit of       defendant’s remaining objections depends upon a
    determination by this court that the magistrate erred with respect to plaintiff’s credibility.
    Accordingly, for the reason stated above, defendant’s remaining objections are without
    merit.
    {¶11} In conclusion, upon review of the record, the magistrate’s decision and the
    objections, the court finds that the magistrate has properly determined the factual issues
    and appropriately applied the law. Therefore, the objections are OVERRULED and the
    court adopts the magistrate’s decision and recommendation as its own, including
    findings of fact and conclusions of law contained therein.
    {¶12} Judgment is rendered for plaintiff in an amount to be determined at a
    proceeding on the issue of damages.
    _____________________________________
    JOSEPH T. CLARK
    Judge
    cc:
    Christopher P. Conomy                         Rosel C. Hurley III
    James P. Dinsmore                             12925 Shaker Boulevard
    Assistant Attorneys General                   Cleveland, Ohio 44120
    150 East Gay Street, 18th Floor
    Columbus, Ohio 43215-3130
    LP/dms
    Filed December 19, 2011
    To S.C. reporter March 20, 2012
    

Document Info

Docket Number: 2009-06338

Citation Numbers: 2011 Ohio 7046

Judges: Clark

Filed Date: 12/19/2011

Precedential Status: Precedential

Modified Date: 10/30/2014