Anderson v. Ohio Dept. of Rehab. & Corr. , 2020 Ohio 4437 ( 2020 )

[Cite as Anderson v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-4437.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Larey Charles Anderson, :
Plaintiff-Appellant, :
No. 19AP-734
v. : (Ct. of Cl. No. 2018-00469JD)
[Ohio] Department of Rehabilitation and : (ACCELERATED CALENDAR)
Correction,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on September 15, 2020
On brief: Larey Charles Anderson, pro se.
On brief: Dave Yost, Attorney General, and Timothy M.
Miller, for appellee.
APPEAL from the Ohio Court of Claims
NELSON, J.
{¶ 1} Larey Charles Anderson appeals from the judgment of the Ohio Court of
Claims in favor of the Ohio Department of Rehabilitation and Correction ("ODRC") after a
trial on his negligence claim. Because Mr. Anderson identifies no reversable error in those
proceedings, we affirm.
{¶ 2} Mr. Anderson is an inmate at the Allen Oakwood Correctional Institution in
Lima, Ohio. On December 17, 2016, as he was leaving the "Chow-Hall" of that facility, he
"slipped and fell" on allegedly "unsalted pavement" and landed "straight down on [his]
tailbone and right hip." Mar. 19, 2018 Complaint at 4. After receiving what he says was
inadequate medical treatment at the prison and then "suffering for over a year" from the
No. 19AP-734 2
injury, Mr. Anderson filed a negligence claim against ODRC in the Court of Claims. Id. at
4.
{¶ 3} During discovery, Mr. Anderson filed a motion to compel discovery under
Civil Rule 37, arguing that ODRC had not responded to his request for production of
documents and interrogatories. Dec. 24, 2018 Motion to Compel. ODRC responded by
arguing that Mr. Anderson had "not engaged in any reasonable efforts to resolve the matter"
before filing the motion, as required by the rule. Jan. 7, 2019 Memorandum Contra. Noting
the "minimal" details concerning a good faith effort to resolve the issue, the magistrate
nevertheless found that Mr. Anderson had "made at least some effort" by writing a letter to
opposing counsel. Jan. 29, 2019 Order of the Magistrate. Accordingly, the magistrate
sustained the motion and ordered counsel for ODRC to serve Mr. Anderson with responses
to his requests for production of documents and interrogatories within 21 days. Id.
{¶ 4} A month and a half later, on March 19, 2019, Mr. Anderson tried his
negligence claim to a magistrate. The magistrate concluded in a written decision that
Mr. Anderson had failed to demonstrate that ODRC had "breached its duty of reasonable
care." July 15, 2019 Decision at 6. Evidence, including "weather data," showed that "early
in the morning on the day of the accident, temperatures were below freezing and there was
some light freezing rain and snow"; the prison "consequently had a crew of inmates treat
the walkways early that morning." Id. The temperature rose to above freezing by 5:00 a.m.,
and "remained so until approximately 5:23 p.m.," when it once again dipped below freezing.
Id. Mr. Anderson's fall occurred "no later than 5:40 p.m.," and the "conditions were noted
to be misty, with no measurable precipitation." Finding that "the slippery condition that
caused plaintiff's fall developed in close proximity to the time of the accident," the
magistrate determined that ODRC had exercised reasonable care "to treat the walkways
relative to the overnight snow and freezing rain" and had no "actual or constructive notice
of the slippery condition that apparently developed many hours later and caused the
plaintiff to fall." Id at 7. The magistrate recommended judgment in favor of ODRC because
Mr. Anderson had "failed to prove his claim." Id. at 8.
{¶ 5} On August 12, 2019, Mr. Anderson filed objections to the magistrate's
decision, and also filed a motion seeking an "order directing the official court reporter, at
[the] state's expense, to prepare and file a complete transcript of the proceedings." The trial
No. 19AP-734 3
court ruled that it had "no obligation to provide a transcript at its own expense to an
indigent party in a civil matter," and denied the transcript request. Aug. 28, 2019 Entry.
{¶ 6} The trial court also overruled Mr. Anderson's objections to the magistrate's
decision, which it characterized as follows: "(1) the magistrate failed to correctly identify
the duty that ODRC owed to plaintiff * * *; (2) the magistrate erred in finding that plaintiff
failed to prove that ODRC breached its duty of reasonable care * * *; (3) the magistrate
erred in finding that ODRC did not have actual or constructive notice of the dangerous
conditions on the AOCI walkway at the time of plaintiff's fall * * *; and (4) the magistrate
improperly diminished the trial testimony of AOCI inmate John Matthews." Sep. 25, 2019
Decision at 3. The trial court rejected Mr. Anderson's assertion that a heightened standard
of care should apply in his case, as a standard of reasonable care applies in a premises
liability case "brought against by the state against an inmate." Id. at 4. The trial court found
no fault in the magistrate's conclusion that ODRC had no actual notice of the conditions
that led up to Mr. Anderson's fall, as no testimony indicated that "staff or inmates were
aware of slippery conditions on the walkway prior to [the] accident"; nor did ODRC have
constructive notice, as there had been no precipitation throughout the day and "the
temperature had been below freezing for less than twenty minutes" before the fall. Id. at 6.
Further, because the record lacked a transcript, the court found that it was "not permitted
to review the magistrate's determinations about the credibility or weight of Matthew[s]'s
testimony." Id. at 7. The trial court adopted the magistrate's decision and entered judgment
in favor of ODRC. Id. at 8.
{¶ 7} On appeal to this court, Mr. Anderson does not pursue any of the objections
that he presented to the trial court. He does not directly challenge any findings of fact or
conclusions of law. Rather, he poses these two assignments of error: (1) "If the Court treats
pro se litigants differently, does it depart from its duty of impartiality and prejudice[] the
handling of a case as it relates to other litigants represented by counsel?" and (2) "Can a pro
se litigant prove a case of negligence if the defendant fails to provide discovery?" The
arguments in Mr. Anderson's briefing make clear that he believes the trial court failed to
remedy an alleged discovery violation by ODRC and thereby treated him differently from
how it would have treated a represented party, and we construe his assignments of error
accordingly. See Fields v. Stange, 10th Dist. No. 03AP-48, 2004-Ohio-1134, ¶ 5, fn. 1 ("we
No. 19AP-734 4
will construe the issues appellant raises as assignments of error so that we may decide this
case on its merits rather than on procedural grounds").
{¶ 8} The assignments appear to be interrelated, and we address them together.
According to Mr. Anderson, "the Defendant denied [him] discovery," causing an "unfair
trial" violative of due process. Appellant's Brief at 2. He believes that the Court of Claims
countenanced ODRC's (unspecified) evasions during discovery, thereby "depart[ing] from
its duty of impartial[ity]" because of bias against self-represented litigants. Id. at 3.
Mr. Anderson recounts the parties' motion practice and the ruling in his favor on the
motion to compel, but then asserts to us that "ODRC still refused to give him the discovery
materials necessary to prove his case." Id. at 4. He now urges that, "when defendant failed
to comply with [the] court order to produce discovery materials, the Plaintiff should have
been given an extension of his trial date, and defendant should have been sanctioned by the
Court." Id. at 5-6.
{¶ 9} The record, however, contains no indication that ODRC failed to comply with
the magistrate's order to provide Mr. Anderson with responses to his discovery requests.
The magistrate granted the motion to compel on January 29, 2019 and gave ODRC 21 days
to serve the responses upon Mr. Anderson. On February 15, 2019, Mr. Anderson filed a
notice declaring that he had "served a request upon Defendant [ODRC]" for his "Second Set
of Interrogatories." He filed no further motion to compel under Civil Rule 37, and we find
no record that he brought to the court's attention any alleged failure by ODRC to comply
with the discovery order. Moreover, on March 5, 2019, two weeks before the trial, the
magistrate noted that during the February 28 pretrial telephone conference with the
parties, "the court learned that the parties are prepared for trial as scheduled for March 19,
2019." Mar. 5, 2019 Order. The trial apparently proceeded on that basis. Compare, e.g.,
FV-I, Inc. v. Knecht, 10th Dist. No. 17AP-865, 2019-Ohio-5197, ¶ 26 (where appellant
"failed to file any transcript" of a hearing held by the magistrate, all of the magistrate's
findings of fact are presumed true and review is limited to legal conclusions), citing
Civ.R. 53(D)(3)(b)(iii) (objections "shall be supported by a transcript of all the evidence
submitted to the magistrate").
{¶ 10} If, as Mr. Anderson asserts, ODRC's failure to provide discovery deprived him
of a fair trial, he needed to alert the magistrate to that issue before and at trial, and he
No. 19AP-734 5
needed to return to the issue in his objections to the magistrate's decision. But we have no
record of such complaints, we are presented no trial transcript, and Mr. Anderson's
objections to the magistrate's decision do not broach that issue or even describe any gaps
in the evidence said to be attributable to ODRC's alleged failure to respond to discovery
requests. Mr. Anderson's objections as presented to the Court of Claims do not mention
discovery at all. See Aug. 12, 2019 Plaintiff's Objection to Magistrate's Decision.
{¶ 11} Civ.R. 53(D)(3)(b)(ii) provides that "[a]n objection to a magistrate’s decision
shall be specific and state with particularity all grounds for objection." And under
Civ.R. 53(D)(3)(b)(iv) (as applicable to pro se and represented litigants alike), apart from
matters of plain error, a party is precluded from pursuing on appeal to this court error
claimed in the trial court's adoption of any finding of fact or legal conclusion that the party
did not specifically identify in its objections from the magistrate's decision. Given that
Mr. Anderson's motion to compel was granted, and that there is no record of his having
raised a complaint about ODRC's response to the magistrate before trial or to the Court of
Claims afterward, and because nothing on the face of the magistrate's opinion revealed any
related deficiency, we find that he did not preserve the issue for further appeal. See FV-I,
Inc. at ¶ 31 (appellant "forfeited its 'notice' argument" by not "mak[ing] that argument in
its objections" to the magistrate), citing State ex rel. Food & Water Watch v. State, __Ohio
St.3d___, 2018-Ohio-555, ¶ 16 ("because FWAP and FWW did not raise an argument
relating to standing * * * in their objections to the magistrate's decision, the arguments have
been waived on appeal"); In re A.V., 10th Dist. No. 05AP-789, 2006-Ohio-3149, ¶ 22 ("We
do not find [appellant's] reference to this issue in her objections complies with the
specificity requirements of Civ.R. 53, and the failure to do so resulted in waiver of the
issue"); Trombley v. Trombley, 9th Dist. No. 17CA0012-M, 2018-Ohio-1880,
¶ 10 (reiterating that outside of plain error, "an appellant forfeits appellate review of any
issues not stated in her objections to the magistrate's decision").
{¶ 12} We overrule the assignments of error and we affirm the judgment of the Ohio
Court of Claims.
Judgment affirmed.
SADLER, P.J. and BRUNNER, J., concur.
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