Literal v. Dep't of Rehab. & Corr.

• Decision Date: 30 December 2016
• Docket Number: No. 16AP–242.,16AP–242.
• Citation: 79 N.E.3d 1267,2016 Ohio 8536
• Parties: Timothy LITERAL, Plaintiff–Appellant, v. DEPARTMENT OF REHABILITATION AND CORRECTION, Defendant–Appellee.
• Court: Ohio Court of Appeals

79 N.E.3d 1267

2016 Ohio 8536

Timothy LITERAL, Plaintiff–Appellant,

v.DEPARTMENT OF REHABILITATION AND CORRECTION, Defendant–Appellee.

No. 16AP–242.

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 30, 2016.

On brief: The Tyack Law Firm Co., LPA, and Thomas M. Tyack, Columbus, for appellant. Argued: Thomas M. Tyack.

On brief: Michael DeWine, Attorney General, Eric A. Walker, Columbus, and Christopher L. Bagi, for appellee.

SADLER, J.

{¶ 1} Plaintiff-appellant, Timothy Literal, appeals from a judgment of the Court of Claims of Ohio in favor of defendant-appellant, Department of Rehabilitation and Correction ("DRC"). For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On May 22, 2013, appellant was serving a prison sentence for aggravated robbery at appellee's Oakwood Correctional Institution. On May 22, 2013, an inmate by the name of Michael Sholler assaulted appellant, breaking appellant's nose and elbow and causing a brain injury

that required hospitalization. On May 18, 2015, appellant filed a complaint against DRC in the Court of Claims alleging that DRC "knew or should have known Sholler posed a substantial and serious risk to Plaintiff and other inmates * * * due to his known history and propensity to engage in violent behavior towards others and the behavior Sholler was exhibiting prior to his attack upon Plaintiff." (Compl. at ¶ 18.) The complaint further alleges that DRC's negligence in failing to keep Sholler confined to his cell, pursuant to its own rules and the orders of its Rules Infraction Board ("RIB"), "directly and proximately caused Plaintiff to be viciously attacked by Sholler." (Compl. at ¶ 24.)

{¶ 3} Appellant testified about the assault in his deposition. According to appellant, he was housed in a cell on the second floor of unit West 2 at the time of the assault, a unit used for inmates in protective control ("PC"). Appellant estimated that there were approximately 70 or 80 inmates housed in the PC unit. Appellant recalled that inmate Sholler arrived at West 2 about three months before the assault. Sholler occupied a cell three or four cells up the hallway from appellant's cell. Though appellant came to know Sholler as "Mike" and had seen him in the hallways and in the chow hall, he had little contact with Sholler and did not know Sholler personally. (Appellant's dep. at 23.) Appellant testified that on the day of the assault, a correction officer ("C.O.") called count time at approximately 10:30 a.m., as was the custom. According to appellant, all inmates are to be in their cells during count time which typically lasts from 10:30 a.m. to 11:30 a.m. The only exceptions are the inmate porters who perform cleaning work in the common areas of the cell block during count time.

{¶ 4} Appellant testified that he was working as a porter that day performing cleaning duties throughout the unit. Appellant acknowledged that on occasion he provided chemical cleaners to other inmates in the unit for use in their cells, but he did not recall Sholler asking him for chemicals on the day of the assault. Appellant testified that as he walked past Sholler's cell, Sholler stepped out of his cell and into the hall saying "hey, Literal." (Dep. at 41.) Appellant recalled that as soon as he looked up, Sholler punched him. The next thing appellant remembered was waking up in the prison infirmary.

{¶ 5} DRC video surveillance equipment captured Sholler's assault on appellant. Appellant viewed the videotaped surveillance footage as he testified in his deposition, and he acknowledged that the video refreshed his recollection of the assault. According to appellant, the video shows him leaving the day room and walking up the hallway toward Sholler's cell. Appellant is shown carrying a bottle of cleaning fluid and handing it to Sholler before walking back toward the day room. The videotape recorded the time at 10:52:29. The video next shows Sholler walking toward the day room where he says something to appellant. Appellant testified that he could not remember what Sholler said to him, but in a statement appellant gave to a state trooper on June 11, 2013, appellant recalled that Sholler had said "hey, Timmy let me holler at you." (Dep. at 47.) At 10:54:56, the video shows Sholler punching appellant in the head and appellant falling to the floor.

{¶ 6} Appellant testified that he never met or knew Sholler before Sholler moved into the cell block. In the three months Sholler occupied the nearby cell, appellant never had any problems with Sholler, never received a threat of any kind from Sholler, and had no fear of Sholler. Appellant testified that if he had any concerns about his safety around Sholler, he would have reported his concerns to a C.O. and would avoid getting "within arm's reach" of Sholler. (Dep. at 41.) According to appellant, the video confirms the fact he displayed no concern that Sholler had left his cell in the moments before the assault and no fear as Sholler approached him just seconds before the attack. Appellant testified that he never learned Sholler's reason for assaulting him, and he still has no idea why Sholler attacked him on May 22, 2013.

{¶ 7} On November 24, 2015, DRC filed a motion for summary judgment, pursuant to Civ.R. 56(B), arguing that it was entitled to judgment as a matter of law because appellant's deposition testimony proves that DRC did not have prior notice that Sholler would assault appellant. Appellant opposed the motion arguing that Sholler's documented history of fights with, and assaults on, other inmates combined with Sholler's other rule violations permit the inference that DRC knew or should have known that Sholler would assault him. In opposition to the motion for summary judgment, appellant submitted incident reports and RIB rulings dating back to July 2010 evidencing Sholler's prior violence towards other inmates. The incident reports also document the misconduct that prompted the RIB to temporarily confine Sholler to his cell for a period of ten days, up to and including the day of the assault on appellant.

{¶ 8} On March 1, 2015, the Court of Claims granted DRC's motion for summary judgment and entered judgment in favor of DRC. Appellant timely appealed to this court from the judgment of the Court of Claims.

II. ASSIGNMENT OF ERROR

{¶ 9} Appellant assigns the following error:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEPARTMENT OF REHABILITATION AND CORRECTIONS [sic] ON THE BASIS THAT THE DEPARTMENT OF REHABILITATION AND CORRECTIONS [sic] DID NOT HAVE ACTUAL KNOWLEDGE THAT INMATE SHOLLER INTENDED TO ATTACK MR. LITERAL, BASED ON SOME INTERACTION BETWEEN THEM FINDING THAT GIVEN THE CIRCUMSTANCES AND SHOLLER'S HISTORY OF VIOLENCE DID NOT PUT THE DEPARTMENT OF REHABILITATION ON "CONSTRUCTIVE NOTICE" THAT HE WAS A DANGER OR HARM TO THE PLAINTIFF OR OTHER PRISONERS IN THE INSTITUTION.

III. STANDARD OF REVIEW

{¶ 10} We review a summary judgment motion de novo. Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist.1994), citing Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). When an appellate court reviews a trial court's disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court's determination. Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107, 614 N.E.2d 765 (10th Dist.1992) ; Brown at 711, 622 N.E.2d 1153. We must affirm the trial court's judgment if any grounds the movant raised in the trial court support it. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41–42, 654 N.E.2d 1327 (9th Dist.1995).

{¶ 11} Pursuant to Civ.R. 56(C), 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 judgment as a matter of law." Accordingly, summary judgment is appropriate only under the following circumstances: (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 12} "[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 nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). " ‘The requirement that a party seeking summary judgment disclose the basis for the motion and support the motion with evidence is well founded in Ohio law.’ " Vahila v. Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), quoting Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). Thus, the moving party may not fulfill its initial burden simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Dresher at 293, 662 N.E.2d 264. Rather, the moving party must support its motion by pointing to some evidence of the type set forth in Civ.R. 56(C), which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. Id.

{¶ 13} If the moving party has satisfied its initial burden under Civ.R. 56(C), then "the nonmoving party * * * has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against...