Skorvanek v. Ohio Dep't of Rehab. & Corr., Case No. 2014-00845

• Decision Date: 02 March 2017
• Docket Number: Case No. 2014-00845
• Citation: 2017 Ohio 2694
• Parties: JOHN M. SKORVANEK Plaintiff v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant
• Court: Ohio Court of Claims

2017 Ohio 2694

JOHN M. SKORVANEK Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant

Case No. 2014-00845

Court of Claims of Ohio

To S.C. Reporter May 5, 2017
March 2, 2017

Judge Patrick M. McGrath

DECISION

{¶1} Before the court are objections filed by plaintiff John Skorvanek to a decision issued by a magistrate of this court. The magistrate found that Skorvanek failed to prove by a preponderance of the evidence that defendant Ohio Department of Rehabilitation and Correction (ODRC) was negligent in failing to prevent an attack upon Skorvanek by another inmate, Scott Creech. Because the magistrate has properly determined the factual issues and appropriately applied the law related to Skorvanek's claim of negligence, the court determines that the magistrate's decision and recommendation should be adopted as its own and that judgment should be rendered in favor of ODRC.

Background

{¶2} On October 23, 2014, Skorvanek sued ODRC, asserting that on November 12, 2013, at about 7:00 a.m., Creech obtained a container of boiling water, poured it on Skorvanek's face and down his throat, hit Skorvanek with a cane, resulting in burns to Skorvanek's shoulders, neck, back, face, permanent scarring, loss of hearing, and permanent damage to Skorvanek's right ear. (Complaint at ¶ 3.) Skorvanek maintained that agents of ODRC were negligent "in failing to supervise, failing to protect, failing to control, in negligently allowing an inmate [Scott Creech] with a known propensity for violence and/or was observably mentally impaired, to be placed in [a second floor

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dormitory that, according to Skorvanek, contained "as many as 100 wheelchair patients"]." (Complaint at ¶ 4.) Skorvanek demanded a sum in excess of $25,000. ODRC answered Skorvanek's complaint, generally denying Skorvanek's claim of negligence.

{¶3} Pursuant to Civ.R. 53, the court appointed Robert Van Schoyck—an attorney admitted to practice in Ohio—as a magistrate in the cause without limitation of authority specified in Civ.R. 53(C). ODRC moved for summary judgment and the court denied the motion. The court bifurcated the matter for trial and set April 18, 2016 as a trial date.

{¶4} On March 28, 2016, the court, through Magistrate Van Schoyck, held a status conference with the parties. In an entry issued after the conference, the court noted that "with the agreement of the parties, another status conference is scheduled for April 1, 2016, at 10:30 a.m. in order to discuss a discovery issue involving the psychiatric records of inmate Scott Creech." (Emphasis sic.) (Order of the magistrate dated March 29, 2016.) No party moved to set aside the magistrate's order.

{¶5} Thereafter, on April 1, 2016, the court, through Magistrate Van Schoyck, held another status conference. Following the April 1st conference, the court issued an entry dated April 4, 2016, noting: "As background, this issue originates from a discovery request that plaintiff made for the records some time ago. Defendant objected to the request and did not produce the records. * * * As a result of the April 1, 2016 status conference, the court was informed that, on the basis of privilege, defendant maintains its objection to producing any of the psychiatric records. The court and counsel were in agreement that there should be an in camera review of the records." (Order of the magistrate dated April 4, 2016.) In the entry of April 4, 2016, the magistrate stated:

{¶6} It was agreed as a result of the conference, and is hereby ORDERED:

1) Defendant shall file the psychiatric records of inmate Scott Creech, under seal, on or before April 11, 2016, with a copy of this order attached to the envelope. It is hereby ORDERED that the records be

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restricted from public access, and that the records shall be maintained separately in the case file, under seal, along with a copy of this order attached. See Sup.R. 45(E);

* * *

3) It is anticipated that the court will reserve ruling on the privilege issue pending the April 18, 2016 proceedings, and allow the parties the opportunity at trial to present argument and evidence on that issue. Should it be determined ultimately that any portion of the records are not privileged, it is understood that the trial record may be held open for the presentation of additional evidence related to those limited matters.

(Emphasis sic.) (Order of the magistrate dated April 4, 2016.) No party moved to set aside the magistrate's order of April 4, 2016.

{¶7} On April 11, 2016, ODRC filed under seal the mental health records of inmate Creech. In a notice accompanying its filing, ODRC stated: "All non-privileged records within inmate Creech's mental health file have already been extracted and produced to Plaintiff. The documents contained herein, filed under seal, consist entirely of privileged mental health records and are being produced to permit an in-camera inspection by the Court so that it can be determined whether a privilege would apply to these documents. The Department objects to counsel for either party being present or participating while the in-camera inspection is being conducted." ("Notice of Filing Documents Under Seal" filed April 11, 2016). That same day ODRC moved for a protective order "so as to protect the privileged confidential medical and mental health records of inmate Scott Creech (R117262)—a non-party to this case—who battered Plaintiff, former-inmate John Skorvanek (#634-067)."

{¶8} The next day—April 12, 2016—ODRC moved in limine, seeking to exclude certain portions of the deposition transcripts of inmate-witnesses George Borgmann and Donnie Waldroop and reasserting its objections that were made at the time of the taking of the depositions. Two days later—on April 14, 2016—Skorvanek filed a response in

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opposition to ODRC's motion in limine, urging that the "depositions should be read during trial and the court can then properly rule." Skorvanek further maintained in his response that ODRC's "use of a motion in limine is confusing to attack various questions and does not comport with the required means to argue objections to depositions."

{¶9} On April 18, 2016, the matter proceeded to trial to determine the issue of liability related to Skorvanek's complaint. Before opening statements, the court held a discussion with the parties' counsel about how trial should proceed. The court ultimately determined to keep the record "open" following the presentation of evidence, noting: "I think there would be an opportunity, as we had agreed, to keep the record open and put in further evidence then if [Creech's mental health records] are going to come in. If none of them are going to come in, then I think the record would stop with where we're at today and - it seemed like a fair plan." (Tr., 13.) Before Skorvanek rested his case, Magistrate Van Schoyck considered ODRC's motion in limine, issuing rulings pertaining to ODRC's objections to portions of the depositions of inmate-witnesses Borgmann and Waldroop. And at the close of the defense case, the magistrate reviewed the documents that ODRC had filed under seal and issued a ruling based on his in camera inspection of these documents. (Tr., 225-230.) ODRC ultimately withdrew its privilege argument concerning nine documents and the court determined that the rest of the documents were privileged, except an additional document that ODRC had already produced to Skorvanek. (Tr., 229-230.)

{¶10} After trial, on April 29, 2016, the court, through Magistrate Van Schoyck, issued an order that granted in part ODRC's motion in limine, granted in part ODRC's motion for a protective order, and that ordered the filing of post-trial briefs. No party moved to set aside the magistrate's order. On November 16, 2016, Magistrate Van Schoyck issued a decision finding that Skorvanek failed to prove his claims by a

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preponderance of the evidence and recommending the issuance of judgment in favor of ODRC.

{¶11} After the court granted Skorvanek's motions for extensions of time to file objections to the magistrate's decision, on January 17, 2017, Skorvanek filed nine objections, as well as an attendant memorandum. Nine days later, on January 26, 2017, ODRC filed a response to Skorvanek's objections, which it labeled "Defendant's Reply to Plaintiff's Objections." ODRC did not timely file any objections to the magistrate's decision of November 16, 2016.

Law and Analysis

{¶12} Civ.R. 53(D)(3)(b) concerns objections to a magistrate's decision. In accordance with Civ.R. 53(D)(3)(b)(i), 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). If any party timely files objections, any other party may also file objections not later than ten days after the first objections are filed." Civ.R. 53(D)(3)(b) does not expressly authorize a party to file a response to a party's objections.

{¶13} However, Civ.R. 53(D)(5) does permit a court to grant an extension of time to file objections, stating: "For good cause shown, the court shall allow a reasonable extension of time for a party to file a motion to set aside a magistrate's order or file objections to a magistrate's decision. 'Good cause' includes, but is not limited to, a failure by the clerk to timely serve the party seeking the extension with the magistrate's order or decision."

{¶14} Civ.R. 53(D)(3)(b)(ii) pertains to the nature of an objection, providing: "An objection to a magistrate's decision shall be specific and state with particularity all grounds for objection." According to Civ.R. 53(D)(3)(b)(iii), "[a]n objection to a factual finding, whether or not specifically designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence submitted to

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the magistrate relevant to that finding or an affidavit of that evidence if a transcript...