Opinion
No. 89-06500.
Decided December 26, 1990.
Johnny L. Hernandez, pro se. Anthony J. Celebrezze, Jr., Attorney General, and Jeffrey R. Goldsmith, Assistant Attorney General, for defendant.
On April 23, 1990, this matter came to trial before Referee R. Michael Smith of this court. On November 2, 1990, the referee issued a report wherein it was recommended that defendant be found liable for the injuries, or some of them, of plaintiff. Civ.R. 53 states that "[a] party may, within fourteen days of the filing of the report, serve and file written objections to the referee's report." Defendant timely filed the following objections to the referee's report:
1. The referee improperly substituted his opinion for the expertise of prison officials in the daily operations of prisons and created a standard of care for prisons without due regard to the paramount concern for security;
2. The plaintiff failed to produce evidence on each and every element in his prima facie case since this trial was never bifurcated;
3. The report is against the manifest weight of the evidence since:
(a) the defendant was not negligent because it had no notice that an altercation was about to occur;
(b) the defendant's agent's actions did not fall below the appropriate standard of care by their maintaining control of the cellblock once the altercation began;
(c) the time interval for the entire altercation was a very short time.
Civ.R. 53(E)(2) provides that: "Upon consideration of the objections the court may: adopt, reject or modify the report; hear additional evidence; return the report to the referee with instructions; or hear the matter itself."
A hearing before a referee is not fair and complete until a judge, exercising independent and careful consideration, along with an opportunity to review objections, has acted upon the referee's report. Ivywood Apts. v. Bennett (1976), 51 Ohio App.2d 209, 5 O.O.3d 351, 367 N.E.2d 1205. The clear import of Civ.R. 53(E) is to provide litigants with a meaningful opportunity to register objections to a report of the referee before judgment is entered thereon, and a failure to provide such an opportunity to object is prejudicial error. Pinkerson v. Pinkerson (1982), 7 Ohio App.3d 319, 7 OBR 415, 455 N.E.2d 693. Practices which lead to "rubber stamping" of referees' reports should be avoided. Haag v. Haag (1983), 9 Ohio App.3d 169, 9 OBR 235, 458 N.E.2d 1297.
Civ.R. 53(E)(6) provides in pertinent part that:
"The court may adopt any finding of fact in the referee's report without further consideration unless the party who objects to that finding supports that objection with a copy of all relevant portions of the transcript from the referee's hearing or an affidavit about evidence submitted to the referee if no transcript is available."
Defendant has submitted no affidavit, but has submitted relevant portions of the transcript which it believes supports its objections.
The court, having considered all of the proceedings available to it, rejects the report of the referee (attached as an appendix) and finds that defendant is not liable for the injuries and damages of plaintiff.
In making the above decision, the court neither sustains nor overrules defendant's first objection inasmuch as it is merged into defendant's third objection. The court overrules defendant's second objection for the reason that we believe the court has inherent powers to grant plaintiff an additional opportunity to prove damages. We agree with defendant's third objection and find that the recommendation that defendant be found to be negligent is against the manifest weight of the evidence.
After reviewing the referee's report, the court determines that the referee neither concluded that defendant was negligent because it had notice that an altercation was about to occur, nor did he conclude that the entire altercation lasted only a short period of time. However, the referee did conclude that defendant breached a duty of reasonable care. The court agrees that the standard of care applied by the referee, while admittedly that which should be a goal, is in fact beyond the reasonable standard of care which, even if not followed, could not result in liability to defendant. The officers involved in this matter may or may not be subject to departmental disciplinary actions, but we do not believe their failure to risk personal assault violates any reasonable standard of care or could result in a finding of liability for their employer.
It follows that judgment is rendered for defendant and against plaintiff. The court will assume the costs of this action. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
Judgment for defendant.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.
APPENDIX Nov. 2, 1990
R. MICHAEL SMITH, Referee.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case requires a determination of whether, under particular circumstances, prison guards owe an affirmative duty of intervention to save an inmate from death or serious injury when he is attacked in their presence by other inmates.
All of the events giving rise to this cause of action occurred at the Southern Ohio Correctional Facility located near Lucasville, Ohio. Those involved were corrections officers and inmates assigned to cell block L-4. The cell block is comprised of two floors, each containing two rows of cells. The cell rows face each other across an open area and each row is connected to the one below by a flight of stairs.
The management of the cells is accomplished from the "console area," which contains an electronic panel that controls all the doors in the cell block. The console area lies at the end of the cell rows and, from the vantage point of the control panel, one has an unimpeded view of all the cells in the block.
Near the control panel are doors opening into two recreational facilities, designated as the day room and the recreation room. Access to both rooms is controlled by those corrections officers stationed at the console area. Also nearby are the water fountain, corrections officers' bathroom and an ice machine. Stairs connecting the floors are located on each side of the console area.
On the evening of February 20, 1989, plaintiff Johnny L. Hernandez was returning to the console area after completing his assigned duties. He was accompanied by his friend, inmate William Figurroa. Both sought entrance into the day room.
Corrections Officers Carl Morgan and James Calloway were stationed in the console area. The officers were armed with truncheons, designated as PR-26 police batons, held to their belts by metal ring holsters. Officer Morgan was specifically assigned to operate the control panel and consequently had a silent alarm electronic device attached to his belt. The silent alarm is used to report an outbreak of violence and to summon additional corrections officers.
Approaching from another direction were inmates Miguel Ortiz and Gerard Valdez. Valdez was the cellmate of Johnny Hernandez and had been so assigned for the previous several years. As both pairs converged near the day room door, Valdez was sweating and appeared troubled. In the brief conversation that followed, Johnny Hernandez inquired whether Valdez was ill. Valdez rebuffed the solicitations, at which time Hernandez stepped back and began to turn away.
Suddenly, Ortiz moved forward and slashed at Johnny Hernandez with a knife. Figurroa shouted "cochillo," which is a Spanish word for "knife." Hernandez dodged the greater part of the knife stroke, receiving only a minor cut across the chest, then struck Ortiz in the face.
Both Officers Calloway and Morgan observed the genesis of this near deadly altercation. As Ortiz first stepped forward, Officer Morgan was four feet behind Johnny Hernandez. Officer Calloway was on the other side of the group, approximately six feet away. Neither officer had yet observed the knife.
Officer Morgan engaged his silent alarm and stepped into the center of the fray. He initially thought that a fight was occurring between Valdez and Ortiz. As he stepped toward them, Officer Morgan pushed Johnny Hernandez to the side and toward Ortiz. When Officer Morgan observed the knife, he became filled with apprehension. He immediately retreated, passing Officer Calloway and the console, and went down the stairs located on the opposite side of the floor. Officer Calloway continued to stand beside the console and did not attempt to intervene. Neither officer drew his police baton from the side holster.
Apparently, Officer Morgan fell while going down the stairs and injured his forearm.
Meanwhile, Valdez circled around behind Johnny Hernandez, jumped upon his back and sought to restrain his arms. Ortiz then began to repeatedly stab Hernandez's chest. Hernandez called for help and continued to resist.
William Figurroa pleaded with Officer Calloway to intervene. When Officer Calloway refused to act, Figurroa lifted the nearby chair and threw it. The chair struck Ortiz as well as the restrained Hernandez. Ortiz became momentarily distracted and sought to stab Figurroa. Valdez, however, called Ortiz back and instructed him to complete the task of killing Hernandez.
As Ortiz returned to his gruesome chore, Figurroa looked about for additional objects to throw. Finding none, he approached Officer Calloway and, with no resistance from him, reached forward and removed the officer's baton. Figurroa turned and struck Ortiz on the back of his head. The force of the blow dislodged Figurroa's grip on the baton and it bounced away from him.
Ortiz again turned and attempted to stab Figurroa with the knife. Figurroa ran past the control panel and down the stairs on the other side of the floor. Ortiz then returned his attentions to Hernandez. When Figurroa reached the bottom landing, he observed Officer Morgan standing there. He removed the officer's baton from his belt ring, again, without resistance or protest from the officer, and ran back up the stairs where he reentered the fray. This time, however, he deliberately jumped between the knife-wielding Ortiz and Johnny Hernandez. By the use of the baton, he kept Ortiz from inflicting additional stab wounds either upon Hernandez or himself.
Thereafter, a large contingent of officers arrived and subdued Ortiz and Valdez. Ortiz, Valdez and Figurroa were eventually placed in special control units. Hernandez was rushed to the nearby hospital where his nine stab wounds were successfully treated.
William Figurroa was placed in administrative control for seven months. This sentence was imposed upon him for appropriating the officers' batons.
On March 29, 1989, Johnny Hernandez filed suit against defendant Department of Rehabilitation and Correction. The court appointed the undersigned referee to hear the matter and, on April 23, 1990, the case was tried on the issue of liability only. The cause is determined as follows based upon the evidence adduced at the hearing by the parties.
I
The difficulties inherent to a penal system and the management problem posed by inmate attacks against other inmates have not gone unnoticed. As set forth in Annotation, Liability of Prison Authorities for Injury to Prisoner Directly Caused by Assault by Other Prisoner (1972), 41 A.L.R.3d 1021, 1025:
"The prison environment has been a fertile ground for assaults, as it normally consists of confinement in close quarters and under unpleasant conditions of large numbers of persons, many of whom are predisposed to violence and frequently, to grudges, racial hatred, and homosexual jealousy. To these factors may be added the frequent impossibility of maintaining the desirable degree of isolation of the prisoners from each other, and the extreme difficulty of preventing them from fashioning weapons out of articles at hand, in which respect prisoners have demonstrated considerable ingenuity."
Thus, it has been rightly concluded that a jailer is not an insurer of the safety of inmates, especially where injury is caused by another inmate. See, e.g., Warren v. Ohio Dept. of Corrections (1987), 36 Ohio Misc.2d 18, 521 N.E.2d 861.
Despite these observations, liability may attach to the jailer, even for injuries intentionally inflicted by one inmate upon another, if it is determined that he violated a duty owed to his charge. The question of "[w]hether a duty exists depends largely on the foreseeability of the injury to one in the plaintiff's position." Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142, 539 N.E.2d 614, 616. And "[n]o one is bound to take care to prevent consequences, which, in the light of human experience, are beyond the range of probability." Id. at 143, 539 N.E.2d at 617.
As a threshold matter, plaintiff's assertion of negligence is premised upon the corrections officers' failure to act. The law applicable to allegations of nonfeasance, the essence of plaintiff's claim, is that defendant must have been subject to a specific duty requiring positive action in order for liability to attach. Likewise, a mere failure to act cannot be the basis for negligence under the common law unless some special relationship exists between the parties or unless circumstances exist that would impose an affirmative duty upon the defendant to act. Even supposing that a duty to act is shown, defendant would have the discretion not to act unless a special relationship existed under the circumstances. Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222, 525 N.E.2d 468.
That defendant was under an express duty to act is virtually undeniable, as a review of the applicable regulations, statutes and common law demonstrates. The Ohio Administrative Code, which has long provided the standards of care for situations involving the administration of prisons, prescribes the following actions in Ohio Administrative Code 5120-9-01(F) (Use of Force):
"The superintendent, administrator, or staff member is authorized to use force, including deadly force, when and to the extent he reasonably believes that such force is the least force necessary to do any of the following:
"* * *
"(2) Protect another against death or serious physical harm from the unlawful use of force by an inmate or another person when there is a reasonable belief that the protected person would be justified in using such force if able:
"* * *
"(4) Prevent or halt a felony about to be or being committed." (Emphasis added.)
Similarly, Ohio Administrative Code 5120-9-01(C) provides that a corrections officer is authorized to use force against an inmate for the:
"(2) Defense of third persons, such as other employees, inmates, or visitors, from an assault by an inmate;
"(3) Controlling or subduing an inmate who refuses to obey prison rules and regulations;
"(4) Prevention of a crime * * *."
Furthermore, the General Assembly has, through enactment of R.C. 2921.44, defined a corrections officer's dereliction of duty as a failure to act in those circumstances set forth in the regulations:
"(A) No law enforcement officer shall negligently do any of the following:
"* * *
"(2) Fail to prevent or halt the commission of an offense or to apprehend an offender * * *;
"(C) * * *
"(3) Fail to control an unruly prisoner, or to prevent intimidation of or physical harm to a prisoner by another." See Baker v. State (1986), 28 Ohio App.3d 99, 28 OBR 142, 502 N.E.2d 261.
R.C. 5145.01 requires that:
"The department of rehabilitation and correction shall maintain such control over prisoners committed to its custody as may prevent them from committing crime * * *." See, also, R.C. 5143.01; Jenkins v. Krieger (1981), 67 Ohio St.2d 314, 21 O.O.3d 198, 423 N.E.2d 856, interpreting and applying a similar statutory duty; McCoy v. Engle (1987), 42 Ohio App.3d 204, 207, 537 N.E.2d 665, 668.
Although any or all of these provisions would establish a sufficient standard of care following the Court of Claims Act and Reynolds v. State (1984), 14 Ohio St.3d 68, 14 OBR 506, 471 N.E.2d 776, these requirements are nothing less than various codifications of the well-established common law "custodial negligence" rule that "a jailer (or other custodial personnel * * *) owes a duty to those in his custody to keep them safe and protect them from harm. The requisite standard of care is held to be that which is reasonable and ordinary for the health, care and well-being of the prisoner." Clemets v. Heston (1985), 20 Ohio App.3d 132, 136, 20 OBR 166, 169, 485 N.E.2d 287, 291; Justice v. Rose (1957), 102 Ohio App. 482, 3 O.O.2d 39, 144 N.E.2d 303; McCoy, supra; Jenkins, supra.
The general nature of the above statutes and regulations ordinarily creates only a general duty to the members of the public. However, a further review of the applicable cases indicates that, as a matter of long-established law, the jailer stands in a special relationship to the prisoner and it is this special relationship that requires the jailer to act affirmatively to aid and/or protect his prisoner. As stated in Clemets, supra, at paragraphs four and five of the syllabus:
"A law enforcement officer having custody of an arrestee or prisoner stands in a special relation to that person, toward whom he owes a duty of reasonable care and protection. * * *
"* * * Once the custodial relationship thus begins, the duty to act affirmatively to protect the arrestee from harm and provide for his care and safety continues for the duration of the relationship * * *." See, also, Justice, supra, 102 Ohio App. at 484-485, 3 O.O.2d at 40-41, 144 N.E.2d at 304-305; Jenkins, supra, 67 Ohio St.2d at 319, 21 O.O.3d at 200-201, 423 N.E.2d at 860; McCoy, supra, 42 Ohio App.3d at 207, 537 N.E.2d at 668. Fondern v. Dept. of Rehab. Corr. (1977), 51 Ohio App.2d 180, 5 O.O.3d 325, 367 N.E.2d 901; McAfee v. Overberg (1977), 51 Ohio Misc. 86, 5 O.O.3d 345, 367 N.E.2d 942; Restatement of the Law 2d, Torts (1965), Section 314A, Special Relations Giving Rise to Duty to Aid or Protect.
In conclusion upon this point, defendant owed Hernandez a duty of due care to keep him safe from an attack by another prisoner. Defendant was also under a duty to disarm Ortiz, and to keep him from harming another.
Defendant asserts, in essence, that the above standards of conduct do not create strict liability upon it for the mere occurrence of injury. More particularly, it is argued that, absent some sort of compelling advance notice of a plaintiff's danger that would reasonably require preventive action, defendant is not liable. In defendant's view, the events at issue comprise the kind of spontaneous altercation that almost never could be foreseen and/or prevented. See Davenport v. State (Sept. 14, 1977), Ct. of Cl. No. 77-0102, unreported; Baker, supra; Fisher v. Denton (May 23, 1979), Ct. of Cl. No. 77-0773, unreported; Woody v. Ohio Dept. of Rehab. Corr. (1988), 61 Ohio Misc.2d 275, 577 N.E.2d 1192. As set forth in Woody, supra, at 277, 577 N.E.2d at 1193:
"Defendant is not required to guard an inmate from harm due to a sudden attack from a third person when the circumstances do not raise such an expectation."
Defendant has stressed, both at trial as well as in the pretrial statement, that the appropriate analysis turns upon the power of the jailer to anticipate the danger and/or harm to the prisoner. The pivotal aspect of his argument is the implication that, in order to anticipate the peril, the jailer must have advance knowledge of the events or situation and, impliedly, no liability can ever arise from apparently spontaneous events, which are, by definition, unforeseeable. See Reeder v. S. Ohio Correctional Facility (Aug. 30, 1982), Ct. of Cl. No. 81-01924-AD, unreported; Annotation, Civil Liability of Sheriff or Other Officer Charged with Keeping Jail or Prison for Death or Injury of Prisoner (1950), 14 A.L.R.2d 353, 362.
Defendant's description of, and reliance upon, such an advance, actual notice standard is misplaced under the circumstances of this case. Moreover, a closer review of the affirmative actions of the corrections officers here demonstrates that they fell below the applicable standard of care.
Those cases referenced do not describe an advance knowledge or notice requirement, although they do demonstrate an unwavering focus upon the jailer's knowledge and awareness at the moment when the inmate received his injury. Timeliness of the knowledge is considered only in relation to the jailer's opportunity to act. For example, as set forth in Justice, supra, and reiterated in countless cases, once there is "knowledge on the part of the [jailer] that there is danger that * * * injuries will be inflicted" upon one prisoner by another, the jailer is negligent if he fails, or as here, willfully refuses, to act for the prevention of such injury. Id., 102 Ohio App. at 484, 3 O.O.2d at 40, 144 N.E.2d at 304, quoting Annotation, supra, 14 A.L.R.2d at 362.
In Fisher v. Denton, supra, wherein a guard observed one prisoner repeatedly stabbing another, is most distinguishable. There, the prisoner had already been stabbed numerous times when the corrections officer became aware of the events. Also, the officer acted by shouting at the inmate to cease, which order the inmate immediately obeyed.
The guards here had no advance knowledge and could not reasonably have predicted that Ortiz and Valdez would attack Hernandez. There was nothing upon which foreseeability could hinge one month, one week or one hour before this incident began. However, the test to apply is not whether they knew in advance of the entire altercation, which misfocuses the inquiry and ignores the particular circumstances of this case. Instead, the test of foreseeability arises at the time when specific knowledge comes into the defendant's possession. Here, the corrections officers became aware immediately before the stabbings of what was about to occur. More particularly, the corrections officers knew with near certain knowledge, or should have known, that Ortiz was armed with a knife and was about to inflict death or serious injury upon someone. Within seconds, it became clear that the target of the attack was Hernandez.
This attack occurred over a period of three to five minutes and not, as asserted by defendant, over a mere few seconds.
One of the principal factual distinctions between the circumstances of the present case and those cited by defendant is that here, the victim inmate, as well as a fellow inmate, expressly cried out to the guards for help. When this occurs under particular circumstances, the failure to respond, whether characterized as nonfeasance, malfeasance or misfeasance, may provide a basis of liability. For example, in Jenkins, supra, the prisoner was confined upon conviction of a felony when the material in his jail cell caught fire. A fellow prisoner attempted to summon help by pounding on the cell wall and the jailer, after being apprised that his help was requested, sent word that no help would be forthcoming until after visiting hours were over. The prisoner was later found badly burned and dead from smoke inhalation. Id., 67 Ohio St.2d at 315, 21 O.O.3d at 198, 423 N.E.2d at 857-858. After a jury verdict in favor of plaintiff's decedent, the trial court entered a judgment non obstante veredicto for defendant. The matter was appealed and the court of appeals found that the failure to search the prisoner for matches and remove them from him prior to entry into the isolation cell, along with the failure to respond, constituted a cause of action in negligence.
A unanimous Ohio Supreme Court affirmed, but pointed out by way of footnote, that the prisoner would generally have been permitted to have cigarette smoking materials in his cell. Consequently, it was the failure of the jailer to act upon becoming aware that his help was requested that was described by the court as "sufficient evidence to enable the jury to conclude that the negligence of [the jailer] contributed proximately to [the prisoner's] death." Id. at 319, 21 O.O.3d at 201, 423 N.E.2d at 860.
The case here presents a more egregious example of nonfeasance than that of the Jenkins case. For here, the cry for help was not of the general amorphous variety, if such cry ever can be. And there was no range of probabilities within which the guards could speculate that the prisoner was making a nuisance complaint. Instead, the testimony indicates that Johnny Hernandez, along with Figurroa, cried out for help while the officers were only a few feet away, and while Ortiz stood before them armed with a knife, in clear violation of the law and regulations.
Moreover, theirs was not a mere callous neglect to act, but a deliberate and calculated decision not to intervene, regardless of the consequences to the prisoner. Admittedly, they could not have acted to prevent the initial slash, but, as demonstrated by Officer Morgan's reactions, they knew with virtual certainty what would next occur, yet they withdrew and refused to act throughout the duration of the stabbings. In so doing, they abrogated their responsibility, imposed by common law, statute and regulation, to act in such circumstances, and became responsible for the foreseeable consequences of Ortiz's actions. Consequently, defendant failed to exercise that reasonable and ordinary care that the law requires for the prevention of unnecessary harm to inmate Hernandez and, as stated in Justice, supra, 102 Ohio App. at 485, 3 O.O.2d at 40-41, 144 N.E.2d at 304-305, the case comes within the ambit of those "cases where liability of the officer has been sustained for injuries inflicted by another prisoner [because] the facts show a willful and known neglect, in that the officer failed to prevent violence, which was known, or in the exercise of ordinary care should have been known, by him."
Defendant asserted at trial that the officers acted within the ambit of their given discretion under the circumstances. That corrections officers have considerable discretion in the enforcement of various statutes, ordinances and the like cannot be doubted. Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222, 525 N.E.2d 468. Likewise, a corrections officer must have a certain amount of discretion in determining how to perform his various functions. However, the cases and commentaries are of one accord that a special relationship exists between defendant and each inmate that gives rise to a "mandate * * * to take affirmative action on behalf of a specifically identified individual." Brodie v. Summit Cty. Children Services Bd. (1990), 51 Ohio St.3d 112, 119, 554 N.E.2d 1301, 1308. Discretion is negated where, as here, an affirmative duty to act is imposed by law within a well-defined special relationship.
II
Defendant presented several other pragmatic reasons why the guards were not obligated to act under the circumstances. A major contention was that the corrections officers had a responsibility to guard the control panel. In defendant's view, a fight may be a diversionary tactic, intended to lure a guard away from the control panel so that an inmate could then release the other prisoners from their cells. Such activities, it is argued, might easily precipitate a riot.
While the asserted need to man the control panel is most reasonable, it cannot stand as a sufficient justification for inaction in every circumstance. When, as here, there is an instant and compelling need to save an inmate from death or serious injury, those charged with the legal responsibility to do so cannot merely stand upon a policy concerned with an abstract potential, yet not necessarily actual, danger. There was no such danger present at the time Hernandez was attacked; nor was there evidence of any subjective belief by the officers that any prisoner sought access to the control panel. Moreover, the evidence indicates that concern for the control panel was of only secondary importance in the decision not to intervene, since the officer with the best opportunity to act left the floor altogether, passing the control panel on his way to the stairs. Finally, although there was no testimony upon this point, it seems incredible that a security concern of this degree could not be satisfied by the installation of a lock on the control panel that could render the panel inoperative without the proper key or code. The technology is sufficiently advanced that the cost of so simple a device is insignificant when compared to the life and well-being of an inmate.
The remaining issue is whether a guard ever has a duty to intervene where he cannot be assured of success and/or when acting would place his own life and well-being at risk. One cannot help but sympathize with this reasonable fear, doubtlessly shared by all corrections officers and their families. However, the job of corrections officer is, by definition, hazardous. The terms of employment are defined by the duties imposed through common law, statutes and regulations. The position requires, as a matter of law, that those so employed shall, under particular circumstances, utilize force, even deadly force, to control the inmate population. The jailer must, as a matter of law, disarm a knife-wielding inmate and it cannot matter whether the intended victim is another inmate, a civilian employee or visitor, or a fellow corrections officer. Unlike police officers that owe only a general duty of protection to the public, Sawicki, supra, the corrections officer has an affirmative duty, based upon the special relationship of custodian and inmate, to protect his charges so as to prevent, where reasonably possible, their death or serious injury.
Invariably, such inherent duties of the jailer require that he will be at risk of harm from his charges. Neither training nor the employment of various strategies can eliminate such risk and the necessity of an immediate response to certain violent situations must inevitably increase that risk of harm. Thus, employment as a corrections officer should only be sought by those with sufficient public spirit, courage, and sense of justice.
The degree of reliance by the inmates upon those who have custody of them is nearly complete. If the corrections officers do not protect them when danger arises then they are left to their own resources, be that little or much. Moreover, when those charged with the duty of protection stand by and refuse, rather than merely fail, to act under circumstances such as these, they send a signal of the most disturbing variety to those in greatest need of instruction.
Accordingly, it is recommended that judgment be rendered in favor of plaintiff and against the defendant and that the matter should proceed to a hearing for the determination of plaintiff's damages. Plaintiff is advised to obtain legal counsel for this most complex area of litigation.
So recommended.