Gill v. Grafton Corr. Inst.Gill v. Grafton Corr. Inst.
Swope and Swope – Attorneys at Law, and Richard F. Swope, for appellant.
Richard Cordray, Attorney General, John P. Reichley, and Daniel R. Forsythe, for appellee.
APPEAL from the Court of Claims of Ohio.
FRENCH, J.
{¶1} Plaintiff-appellant, Ali Gill (“Gill“), appeals the judgment of the Court of Claims of Ohio in favor of defendant-appellee, Grafton Correctional Institution (“GCI“), on Gill‘s claim for compensatory dаmages for injuries he allegedly sustained in a fall. For the following reasons, we reverse.
{¶3} A bifurcated trial on the issue of liability was held before a magistrate on August 7, 2007. The magistrate issued a decision on June 12, 2009, recommending judgment for GCI. Although not expressly delineated, the magistrate‘s decision included findings of fact and conclusions of law. In part, the magistrate stated as follows:
Plaintiff testified that he is blind in his right eye and has had four surgeries on his lеft eye. As a result, he carries a permanent “non-smoking” restriction that prevents him from being placed in housing units where smoking is permitted because the smoke “bothers” his eyes. Plaintiff submitted a medical restriction form dated December 7, 2000, that states he “is to be placed in a non-smoking pod, when one is available“; it is further labeled “permanent.” * * * Plaintiff further testified that he has been granted accommodations under the Americans with Disabilities Act (ADA) bеcause of
his poor vision. These accommodations include being permitted to possess special magnifiers to aid in reading and being provided with a special badge that designates him as visually impaired. * * * * * * Plaintiff stated that smoking is permitted in D2, that the lights are shut off after the evening “count” at approximately 9:30 p.m., and that the “night lights” are not bright enough for him to see where he is going. * * *
The magistrate also cited testimony by Michelle Viets, RN, Healthcare Administrator for GCI, that the ” ‘when available’ designation on [Gill‘s] non-smoking medical restriction meant that the restriction was not medically necessary and that the inmate had simply made a request for a non-smoking housing assignment.”
{¶4} Noting the “when available” language in Gill‘s non-smoking restriction and the lack of Americans with Disabilities Act accommodations specifying that Gill was to be placed in a well-lit housing unit, the magistrate concluded that GCI did not owe Gill a duty to place him in either a non-smoking or well-lit housing unit and that Gill‘s placement in Unit D2 was not unreasonable. The magistrate further concluded that Gill did not act reasonably to ensure his own safety at the time of his fall because, although he was aware of his vision impairment and the location of the garbage can, he did not request assistance to travel to the restroom or to relocate the garbage can. Finally, the magistrate found that an inmate‘s claims regarding the conditions of his confinement arise under
{¶6} On September 28, 2009, the trial court summarily overruled Gill‘s objections, adopted the magistrate‘s decision, and entered judgment in favor of GCI. The court cited
{¶7} Gill filed a timely notice of appeal, and he presеntly raises the following assignments of error:
ASSIGNMENT OF ERROR NO. 1:
THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE [GILL] WITH A SETTLED 9(C) OR RULE 53 RECORD, [GILL] HAVING ESTABLISHED HIS INDIGENCY.
ASSIGNMENT OF ERROR NO. 2:
THE TRIAL COURT AND MAGISTRATE ERRED IN RULING [GCI] HAD NO DUTY TO PLACE A VISUALLY IMPAIRED INMATE IN A CELL OR A LIGHTED AREA SO HE WOULD NOT FALL OVER OBJECTS HE COULD NOT SEE.
ASSIGNMENT OF ERROR NO. 3:
THE TRIAL COURT AND MAGISTRATE ERRED AND ABUSED THEIR DISCRETION IN RULING [GILL] DID NOT CLAIM ACCOMMODATION UNDER HIS ESTABLISHED STATUS AS A VISUALLY IMPAIRED PERSON.
ASSIGNMENT OF ERROR NO. 4:
THE TRIAL COURT AND MAGISTRATE ERRED IN RULING [GILL‘S] KNOWLEDGE A GARBAGE CAN WAS IN THE AISLE PROTECTED [GCI] FROM LIABILITY WHEN IT WAS CLEAR [GILL] WAS PARTIALLY BLIND, IT WAS 3:00 A.M. AND THERE WAS NO ONE IMMEDIATELY AVAILABLE TO ASSIST [GILL].
ASSIGNMENT OF ERROR NO. 5:
THE TRIAL COURT AND MAGISTRATE ERRED IN RULING THE CLAIM WAS MADE AS DELIBERATE INDIFFERENCE UNDER TITLE 42, §1983, SINCE THE CLAIM WAS BASED
ASSIGNMENT OF ERROR NO. 6:
THE TRIAL COURT AND MAGISTRATE ERRED WHEN THEY RULED THE PERMANENT RESTRICTION AUTOMATICALLY TERMINATED WITHOUT NOTICE TO [GILL], THE CURRENT MEDICAL RESTRICTION POLICY HAD NOT GONE INTO EFFECT UNTIL JUNE 1, 2004, AND THERE BEING NO OTHER GUIDELINES OFFERED TO JUSTIFY [GCI‘S] POSITION AND EVIDENCE IS CLEAR THE RESTRICTION WAS HONORED UNTIL APPELLANT WAS PLACED IN SEGREGATION.
ASSIGNMENT OF ERROR NO. 7:
THE TRIAL COURT AND MAGISTRATE ERRED WHEN THEY FOUND NO NEGLIGENCE IN [GCI] IGNORING [GILL‘S] PERMANENT PHYSICAL IMPAIRMENT IN LIGHT OF HIS AMERICANS UNDER DISABILITY ACT, A PRIOR PERMANENT RESTRICTION AND CLEAR ACKNOWLEDGEMENT BY [GCI] HE WAS DISABLED.
{¶8} By his first assignment of error, Gill contends that the trial court erred by not considering his statement of proceedings, under either
{¶9}
* * * An 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 the magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available. With leave of court, alternative technology or manner of reviewing the relevant evidence may be considered. * * *
If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant‘s recollection. The statement shall be served on the appellee * * * who may serve objections or propose amendments to the statement * * *. The statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act prior to the time for transmission of the record pursuant to
App.R. 10 , and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal.
{¶10} Although
{¶11} The Supreme Court of Ohio has addressed the meaning of “unavailable” in the context of
{¶12} Relying on cases construing availability under
{¶13} After careful consideration, we discern no persuasive basis for concluding that, although a transcript is unavailable to an indigent appellant for purposes of
{¶14} A holding that a transcript is available, despite an indigent party‘s inability to pay for it, would also effectively preclude the indigent party from challenging the magistrate‘s findings of fact on appeal. In order to appeal the magistrate‘s findings of fact, the appellant must have first objected to those findings in the trial court; ” ‘if a party fails to object to a magistrate‘s finding or conclusion, that party waives the right to challenge the finding or conclusion on appeal.’ ” Patrick v. Ressler, 10th Dist. No. 04AP-149, 2005-Ohio-4971, ¶25, quoting Brott Mardis & Co. v. Camp, 147 Ohio App.3d 71, 2001-Ohio-4349, ¶22. In addition, where a party files objections to a magistrate‘s decision in the trial court, but does not support those objections with a transcript or affidavit, that party is precluded from arguing on appeal that the trial court erred in its
{¶15} A holding that an indigent party‘s inability to afford a transcript does not render the transcript unavailable for purposes of
{¶16} Upon review of the cited authorities and Gill‘s affidavit of indigency, we conclude that the trial court erred by concluding that the transcript of the liability trial before the magistrate was available, thus precluding Gill from utilizing an alternative method of putting the evidence before the court for purposes of ruling on Gill‘s objections to the magistrate‘s factual findings. Because this was the only basis given by the trial court for its rejection of Gill‘s statement of proceedings and its adoption of the magistrate‘s decision, we reverse the trial court‘s judgment. Nevertheless, we recognize that there remains a question as to whether Gill‘s statement of proceedings is an appropriate means of supporting his objections to the magistrate‘s decision, even where
{¶17} For these reasons, we sustain Gill‘s first assignment of error, as stated in this decision, reverse the judgment of the Court of Claims of Ohio, and remand this matter to that court for further proceedings. As a result, Gill‘s remaining assignments of error are rendered moot.
Judgment reversed and cause remanded.
CONNOR, J., concurs in judgment only.
SADLER, J., dissents.
SADLER, J., dissenting.
{¶18} Being unable to agree with the majority‘s disposition of appellant‘s first assignment of error, I respectfully dissent.
{¶19} The magistrate‘s decision in this matter was filed with the trial court on June 12, 2009. On June 17, 2009, appellant filed a motion seeking a 45-day extension of the time period for filing objections to the magistrate‘s decision, stating that the extension was necessary to determine whether funds were available to obtain the transcript necessary to support objections to the magistrate‘s decision. The trial court granted the extension, stating that appellant could file any objections to the magistrate‘s decision on or before August 10, 2009.
{¶20} On July 30, 2009, appellant filed a motion seeking a second extension of time for filing objections. The reason given for the extension was that appellant could not afford to pay for preparation of the transcript, and wished to instead prepare “a 9(C)
{¶21} Rather than filing an affidavit conforming with
{¶22} In his first assignment of error, appellant urges reversal based on the trial court‘s failure to provide him with a “settled [
{¶24} The trial court provided appellant with an opportunity to support his objections with an affidavit under
{¶25} I believe the only issue actually before us is whether appellant could have used an
{¶26} Arguably,
{¶27} Consequently, I would overrule appellant‘s first assignment of error, and would then address appellant‘s remaining assignments of error. Because the majority does not, I resрectfully dissent.