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Morris v. Department of Rehabilitation and Correction

Court of Claims of Ohio

October 24, 2019

KRISTOFFER MORRIS Plaintiff
v.
DEPARTMENT OF REHABILITATION AND CORRECTION Defendant

          Sent to S.C. Reporter 12/17/19

          DECISION OF THE MAGISTRATE

          GARY PETERSON, MAGISTRATE JUDGE

         {¶1} Plaintiff, an inmate in the custody and control of defendant, the Ohio Department of Rehabilitation and Correction (DRC), at the Toledo Correctional Institution (ToCI), brings this action for negligence arising from an alleged attack upon him by a fellow inmate. The issues of liability and damages were not bifurcated and the case proceeded to trial before the undersigned magistrate.

         {¶2} Plaintiff, who is serving a prison sentence for a variety of crimes, testified at trial that he has been designated as a protective custody (PC) inmate since 2005. Plaintiff explained that such a designation was necessary due to threats to his safety made by the victims of his criminal conduct for which he is imprisoned. Plaintiff has been in PC at several other DRC institutions and has been housed in PC at ToCI for the previous three years.

         {¶3} On December 10, 2017, plaintiff was in segregation, also known as TPU, for violations of inmate conduct rules. While in segregation, approximately two or three weeks before the incident that gives rise to this case, plaintiff became acquainted with inmate Julian Torres, a general population inmate who was a porter in the unit. Torres would perform general cleaning in addition to passing out food trays to the inmates in the segregation unit. Plaintiff explained that over the course of two or three weeks, he had many contacts with Torres including instances where Torres would stop by plaintiffs cell to talk. Plaintiff asked Torres for favors such as extra trays or to pass notes to other inmates in the segregation unit. Plaintiff acknowledged that inmates do not gratuitously perform acts of service and that as a result of his requested favors, he began to incur a debt of at least $25 to Torres. Ultimately, plaintiff informed Torres that he would not be able to repay the debt. Plaintiff stated that Torres was enraged and threatened to harm him if he did not pay. Torres referred to plaintiff as a bitch, snitch, and a PC hoe. Plaintiff admitted that he never informed anyone that Torres threatened him.

         {¶4} On December 10, 2017, corrections officer Don Stewart escorted plaintiff to the telephone cage. Plaintiff explained that normally he is handcuffed with his hands behind his back, but on this particular day, he was handcuffed with his hands in front of him. Plaintiff acknowledged that prior to being escorted to the telephone cage, he broke a razor blade and slid the blade under the ring on his finger. At some point thereafter, plaintiff removed the razor and put it in his right hand, where he attempted to conceal it from the corrections officers. Plaintiff asserted that he had the razor to protect himself from potential harm. Plaintiff stated that while he was locked in the telephone cage using the telephone, he was aware that Torres was walking around in the area, knew where Torres was while he was in the telephone cage, and saw Torres each time he walked toward him. Plaintiff acknowledged that Torres, who was set to be removed from segregation the following day, approached the cage and told him that he was not worried about the debt because it was quashed. Plaintiff added that in retrospect, Torres was attempting to get plaintiff to no longer guard against an attack.

         {¶5} After completing his telephone call, plaintiff was escorted to a kiosk where he could connect his tablet to access photographs, emails, music, and other approved media. Plaintiff denied seeing Torres near the kiosk even though he was standing nearby as shown on the video of the incident. Plaintiffs legs were shackled to the stool, which was near the kiosk, and plaintiff sat down to commence connecting his tablet to the kiosk. Plaintiff stated that he was facing forward but did not see Torres in the reflective surface above the kiosk.

         {¶6} Plaintiff testified that as soon as he began connecting his tablet to the kiosk, he felt a punch to the side of his head. Plaintiff was unable to recall how many times he was punched or how long the incident lasted. Plaintiff maintained that he lost consciousness after being hit and regained consciousness at a local hospital, although he was never diagnosed with a concussion and only remained at the hospital for less than one hour. Plaintiff testified that he suffered head, neck, and shoulder injuries because of the attack. Plaintiff acknowledged that after the incident he had straight line scratches on his head, but he did not know how he received those injuries. Plaintiff also did not know if he disposed of the razor blade during the incident, but he was able to recall that Torres was wearing gloves.

         {¶7} Kent Wallace testified that he has been employed by defendant for nearly three years and that on December 10, 2017, he was a TPU escort officer. Wallace escorted plaintiff from the telephone cage to the kiosk. Wallace did not recall seeing any general population inmates in the area at that time. Wallace was aware that PC inmates are to be separated from general population inmates. Wallace stated that he was aware that Torres was a general population inmate and that plaintiff was a PC inmate. Wallace maintained that he did not think Torres was a threat. Wallace completed an incident report documenting his recollection of the events (Plaintiffs Exhibit 4). Wallace acknowledged that he was disciplined following this incident (Plaintiff's Exhibit 3).

         {¶8} Don Stewart testified that he has been employed by defendant at ToCI for three years and that on December 10, 2017, he was assigned to the south and the west block in TPU. TPU is composed of inmates in segregation who were both general population inmates and PC inmates. Stewart's duties included conducting rounds and cell searches. Stewart acknowledged that institutional rules generally required that PC inmates be kept separate from general population inmates. Stewart did not know if plaintiff's cell door identified him as a PC inmate. Stewart did not believe that Torres was a threat to plaintiff and never heard plaintiff ever say he was in fear for his safety. Stewart testified that he responded to the commotion and kept the area secure until plaintiff was transported to the infirmary on a gurney. Stewart completed an incident report documenting his recollection of the events (Plaintiffs Exhibit 8).

         {¶9} Nicholas Zimmerman testified that he has been employed at ToCI for more than four years and was employed as a regular TPU officer on December 10, 2017. Zimmerman was aware that PC inmates are to be kept separate from general population inmates. Zimmerman stated that at the time of the incident, he did not know that plaintiff was a PC inmate and that he did not believe that Torres was a threat to plaintiffs safety. Zimmerman acknowledged that there are color coded tags on the cell doors identifying the inmates who are in PC. Zimmerman stated that he was escorting an inmate away from the kiosk and toward the telephone cage when the commotion commenced but did not see Torres attacking plaintiff. A still image taken from the video moments before the incident began shows plaintiff near the kiosk with Wallace, and Torres is nearby in the upper-right corner of the photograph. The image also shows a second inmate and Zimmerman who were exiting the area, proceeding toward the telephone cage (Plaintiffs Exhibit 7). Zimmerman stated that post orders did not require that Torres be locked down at that time. Zimmerman completed an incident report memorizing his recollection of the events (Plaintiffs Exhibit 6).

         {¶10} Jeff Brown testified that he is currently employed as a case manager at ToCI but was employed as a corrections officer on December 10, 2017. Brown was not involved with the incident but confirmed that PC and general population inmates should be separated. Brown stated that he never saw plaintiff and an inmate named Albert Clark together, although he acknowledged that they were both in the south unit at the same time albeit some distance apart and were not out of their cells at the same time.

         {¶11} Thomas Ernest testified that on December 10, 2017, he was employed at ToCI as the segregation control booth operator. Ernest explained that he controlled gate access to the area where plaintiff was attacked. Ernest stated that the general rule is that the area remains secured, meaning that the gates are closed, unless the corrections officers were providing inmates access to the kiosk or telephone or the porters were out cleaning-all of which was occurring at that time. Ernest added that the area where plaintiff was attacked is not the same area where the inmates are housed.

         {¶12} Jordan Reichenbaugh testified that he is employed as a lieutenant at ToCI and was so employed on December 10, 2017. Reichenbaugh was not working on December 10, 2017, but recalls counseling employees at ToCI on December 9, 2017, that as a matter of best practice, general population inmates and PC inmates should not be out of their cells at the same time and in the same place. Reichenbaugh confirmed that when a corrections officer removes an inmate from his ...


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