Sudberry v. Ohio Dept. of Rehab. & Corr. ( 2020 )

[Cite as Sudberry v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-4772.]
JAMES D. SUDBERRY Case No. 2019-00418JD
Plaintiff Judge Patrick M. McGrath
Magistrate Robert Van Schoyck
v.
ENTRY GRANTING DEFENDANT’S
OHIO DEPARTMENT OF MOTION FOR SUMMARY JUDGMENT
REHABILITATION AND CORRECTION
Defendant
{¶1} On June 1, 2020, defendant filed a motion for summary judgment
pursuant to Civ.R. 56. On June 18, 19, and 24, 2020, plaintiff filed responses to
defendant’s motion for summary judgment.1 On June 25, 2020, defendant filed a reply
in support of its motion for summary judgment. For the reasons stated below,
defendant’s motion shall be granted.
Procedural Background
{¶2} As a preliminary matter, the court notes that plaintiff filed several motions
between May 29, 2020 and June 17, 2020. In his May 29, 2020 motion for an extension
of time, plaintiff requests a 30-day extension to conduct discovery. However, the court
already extended the discovery deadline to June 30, 2020 in its May 20, 2020 order.
Accordingly, plaintiff’s motion for extension of time is DENIED as moot.
{¶3} On May 29, 2020, plaintiff filed a document labeled “Dispositive Motion,” in
which he expresses dissatisfaction with not receiving certain materials in discovery and
sets forth assertions on a variety of subjects not germane to the facts alleged in the
complaint. It is not clear what relief plaintiff seeks. Furthermore, a “dispositive motion”
is not provided for in the Ohio Rules of Civil Procedure. Accordingly, plaintiff’s motion is
DENIED as moot.
1
In plaintiff’s June 18, 2020 response, plaintiff requests a three-judge panel. However, plaintiff
never filed a motion for a three-judge panel in accordance with R.C. 2743.03(C)(1) and L.C.C.R. 5.
Case No. 2019-00418JD -2- ENTRY
{¶4} Lastly, on June 17, 2020, plaintiff filed a motion requesting discovery from
defendant and to consolidate his case with another that he has pending in this court. To
the extent plaintiff appears to make discovery requests in this document, requests for
discovery shall be served upon defendant not the court. Accordingly, to the extent the
motion requests discovery, it is DENIED as moot. To the extent plaintiff moves for
consolidation with case number 2019-01071, the court does not agree that
consolidating plaintiff’s cases is appropriate. Accordingly, the motion is DENIED. The
court will now address defendant’s motion for summary judgment.
Standard of Review
{¶5} Motions for summary judgment are reviewed under the standard set forth
in Civ.R. 56(C), which states, in part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed
in the action, show that there is no genuine issue as to any material fact
and that the moving party is entitled to summary judgment as a matter of
law. No evidence or stipulation may be considered except as stated in
this rule. A summary judgment shall not be rendered unless it appears
from the evidence or stipulation, and only from the evidence or stipulation,
that reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary
judgment is made, that party being entitled to have the evidence or
stipulation construed most strongly in the party’s favor.
“[T]he moving party bears the initial responsibility of informing the trial court of the basis
for the motion, and identifying those portions of the record before the trial court which
demonstrate the absence of a genuine issue of fact on a material element of the
Case No. 2019-00418JD -3- ENTRY
nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264(1996). To meet this initial burden, the moving party must be able to point to evidentiary
materials of the type listed in Civ.R. 56(C). Id. at 292-293.
{¶6} If the moving party meets its initial burden, the nonmoving party bears a
reciprocal burden outlined in Civ.R. 56(E), which states, in part:
When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or
denials of the party’s pleadings, but the party’s response, by affidavit or as
otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the party does not so respond,
summary judgment, if appropriate, shall be entered against the party.
Factual Background
{¶7} According to the complaint plaintiff is an inmate in the custody and control
of defendant and on January 8, 2019, he was in the gymnasium at the Lebanon
Correctional Institution (LeCI) when he was hit in the back of the head with a basketball.
(Complaint, ¶ 12.) Plaintiff alleges he reported the incident to a corrections officer, but
the officer stated that he or she did not see the incident. Id. Plaintiff further alleges that
the corrections officer did not write a conduct report or ticket for the unidentified inmate
who hit him with the basketball. Id.
{¶8} Plaintiff also alleges that on January 22, 2019, he again was hit in the
head with a basketball. Id. According to plaintiff, an unnamed “recreation worker porter
or gym worker or porter” hit him with the basketball and he reported it to a corrections
officer. Id. Plaintiff, claiming to have suffered a sore neck as a result of one or both
incidents, brings this action seeking to recover “1 Zillion” dollars. (Complaint, ¶ 13-14.)
{¶9} In support of its motion for summary judgment, defendant submitted the
affidavit of Brian Zielinski, the Activity Therapy Administrator at LeCI. Zielinski is
responsible for creating recreational programming for inmates at LeCI. (Zielinski Aff., ¶
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1.) According to Zielinski, at some point he and the LeCI Inspector reviewed video
footage of the incident that occurred in the gymnasium on January 8, 2019. Id. at ¶ 3.
The video showed plaintiff being hit in the back of the head with a basketball. Id.
However, Zielinski could not determine from the video whether the basketball was
thrown intentionally or accidentally. Id. Plaintiff never informed Zielinski that he was in
fear of a basketball being thrown at him before or after the incident. Id. at ¶ 4. Zielinski
was not aware of plaintiff informing any corrections officers that he was in fear for his
safety in the gymnasium. Id.
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} “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,
Case No. 2019-00418JD -5- ENTRY
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.
{¶12} Based upon the uncontested affidavit testimony put forth by defendant, the
court finds that defendant had no notice of an impending assault on plaintiff. It is
undisputed that plaintiff was hit in the head with a basketball in the gymnasium. It is
also undisputed that the video evidence reviewed by Zielinski did not show whether the
inmate hit plaintiff with the basketball intentionally or accidentally. Furthermore,
Zielinski averred that plaintiff never asserted that he was in fear of being assaulted with
a basketball in the gymnasium. Plaintiff has failed to submit any evidentiary materials
outlined in Civ.R. 56 to dispute defendant’s assertion that it did not have notice of an
impending assault. Accordingly, the court finds that there is no genuine issue of
material fact regarding defendant’s lack of notice of an impending assault on plaintiff.
Conclusion
{¶13} Based upon the foregoing, the court concludes that there are no genuine
issues of material fact and that defendant is entitled to judgment as a matter of law. As
a result, defendant’s motion for summary judgment is GRANTED and judgment is
hereby rendered in favor of defendant. All previously scheduled events are VACATED.
Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice
of this judgment and its date of entry upon the journal.
Case No. 2019-00418JD -6- ENTRY
PATRICK M. MCGRATH
Judge
Filed August 3, 2020
Sent to S.C. Reporter 10/2/20