Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
FINDINGS OF FACT
{¶1} Plaintiff, Carl Hagerman, an inmate, filed a complaint against defendant, Ohio Department of Rehabilitation and Correction ("ODRC"). Plaintiff alleged on March 10, 2016, at approximately 11:35 am, while he was housed at defendant's Southern Ohio Correctional Facility ("SOCF"), he engaged in a fight with other inmates. Plaintiff related after the fight he had another inmate's blood on him and he had been sprayed with Oleoresin Capsicum ("OC"). However, he was taken directly to segregation and not allowed to shower. Plaintiff asserted he had to wait five days to shower and he did not receive his property in a timely manner.
{¶2} Plaintiff seeks damages in the amount of $1,500.00, for ODRC's agent's refusal to allow him to shower to wash off the blood and OC for five days. Plaintiff was not required to submit the $25.00 filing fee.
{¶3} Plaintiff submitted a copy of a Conduct Report dated March 10, 2016, which revealed plaintiff voluntarily started a fight with another inmate, which resulted in plaintiff being OCed in order to break up the fight. Plaintiff was then sent to segregation.
{¶4} Defendant submitted an investigation report. Defendant asserted the issue raised by plaintiff was never addressed to the Inspector of Institutional Services. Furthermore, this court has no jurisdiction over decisions rendered by the Rules Infraction Board ("RIB"). Accordingly, plaintiff's claim should be denied.
{¶5} Plaintiff submitted a response to defendant's investigation report. Plaintiff asserted he did contact the Inspector of Institutional Services concerning this situation. He also related he requested a grievance form, but was denied since all his property was returned to him. Plaintiff evidenced this fact by submitting an Informal Complaint Resolution form dated March 12, 2016.
CONCLUSIONS OF LAW
{¶6} ODRC's 104-TAW-02(F)(4)(c) in pertinent part states:
"If an offender has been sprayed with pepper spray, the offender shall be decontaminated in the appropriate manner."
{¶7} ODRC's 104-TAW-03 VI.(B)2. In pertinent part states:
"Employees authorized to carry OC spry in the line of duty shall be instructed in its proper use, and appropriate decontamination procedures."
{¶8} 104-TAW-03 VI E. states:
"DPCS employees shall take appropriate measures, consistent with the approved training to decontaminate persons sprayed as soon as possible after the use of the OC spray. If the offender appears to be in need of medical assistance, such assistance shall be sought by the officers."
{¶9} OAC 5120-9-02(4) states:
"Medical staff shall examine all individuals upon whom force was used, and any individual who used force on an inmate. Medical staff shall prepare a written assessment of each individual examined. Whenever a person is injured and needs medical care a shift supervisor shall collect and report the names of staff and inmate witnesses. If the shift supervisor was directly involved in the force incident, statements shall be obtained by another supervisor not directly involved in the incident."
{¶10} Ohio law imposes a duty of reasonable care upon the state to provide for its prisoners' health, care, and well-being. Clements v. Heston, 20 Ohio App.3d 132, 136, 485 N.E.2d 287 (6th Dist. 1985). Reasonable or ordinary care is that degree of caution and foresight which an ordinarily prudent person would employ in similar circumstances. Smith v. United Properties, Inc., 2 Ohio St.2d 310, 209 N.E.2d 142 (1965).
{¶11} "To recover on a negligence claim, a plaintiff must prove by a preponderance of the evidence (1) that a defendant owed the plaintiff a duty, (2) that a defendant breached that duty, and (3) that the breach of the duty proximately caused a plaintiff's injury." Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 05AP-357, 2006-Ohio-2531, ¶ 10. "In the context of a custodial relationship between the state and its prisoners, the state owes a common-law duty of reasonable care and protection from unreasonable risks." Jenkins v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-787, 2013-Ohio-5106, ¶ 8. "This duty does not, however, make ODRC the insurer of inmate safety." Kordelewski. "Although the state is not an insurer of the safety of inmates, once it becomes aware of a dangerous condition it must take reasonable care to prevent injury to the inmate." Briscoe v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 02AP-1109, 2003-Ohio-3533, ¶ 20. "Reasonable care is that degree of caution and foresight an ordinarily prudent person would employ in similar circumstances, and includes the duty to exercise reasonable care to prevent an inmate from being injured by a dangerous condition about which the state knows or should know." McElfresh v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-177, 2004-Ohio-5545, ¶ 16.
{¶12} The credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The court is free to believe or disbelieve, all or any part of each witness's testimony State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548 (1964). The court finds plaintiff's statements persuasive, particularly in light that ODRC has not disputed plaintiff's allegations that he was sprayed with OC and covered with another inmate's blood, but was not seen by medical staff after the incident. Defendant's lack of defense shall be considered an admission as to the facts related by plaintiff.
{¶13} As trier of fact, this court has the power to award reasonable damages based on the evidence presented. Sims v. Southern Ohio Correctional Facility, 61 Ohio Misc.2d 239, 577 N.E.2d 160 (Ct. of Cl. 1988). Plaintiff asserted he was not checked by medical after the administration of OC and was not allowed to shower or wash up for approximately five days. This court does not doubt plaintiff experienced mental anguish by not being allowed to wash up after the incident. However, there is no evidence from which this court can infer plaintiff suffered any permanent injuries or that his mental anguish required ongoing treatment.
{¶14} Finally, plaintiff is not disputing the ruling of the RIB, a matter over which this court has no jurisdiction. See Blacker v. Ross Corr. Inst., 2010-09230-AD, 2011 Ohio-1773, citing Chasteen v. Dept. of Rehabilitation and Correction, 84-06323-AD (1985); Ryan v. Chillicothe Correctional Institution, 81-05181-AD (1981); Rierson v. Department of Rehabilitation and Correction, 80-06860-AD (1981).
{¶15} Consequently, judgment is rendered in favor of plaintiff in the amount of $500.00. CARL M. HAGERMAN Plaintiff
v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant Case No. 2016-00311-AD Deputy Clerk Daniel R. Borchert ENTRY OF ADMINISTRATIVE DETERMINATION
Having considered all the evidence in the claim file and, for the reasons set forth in the memorandum decision filed concurrently herewith, judgment is rendered in favor of plaintiff in the amount of $500.00. Court costs are assessed against defendant.
/s/_________
DANIEL R. BORCHERT
Deputy Clerk Filed 9/8/16
Sent to S.C. Reporter 5/17/17