Magistrate Gary Peterson
DECISION OF THE MAGISTRATE
{¶1} Plaintiff, an inmate in the custody and control of defendant, Ohio Department of Rehabilitation and Correction, brings this action for an alleged incident of excessive use of force that occurred on September 30, 2018, at the Southern Ohio Correctional Facility (SOCF). The issues of liability and damages were not bifurcated, and the case proceeded to trial.
{¶2} At trial, plaintiff testified that in April 2018, he transferred to SOCF from Mansfield Correctional Institution (MANCI), where he had spent the previous five years of his incarceration. While at MANCI, plaintiff submitted 22 informal complaint resolutions (ICR); in the year he was at SOCF, plaintiff submitted 34 ICRs, including many that he authored before September 30, 2018. Plaintiff acknowledged that before the incident of excessive use of force, he was on a hunger strike, did not feel safe at SOCF, and wanted to be transferred out of SOCF.
{¶3} Plaintiff testified that on September 30, 2018, he was attacked by correction officers Layne and Queen, and former correction officer Spriggs. Plaintiff related that the attack occurred in the medical infirmary, beginning at 9:55 a.m., and lasted through 10:11 a.m. Plaintiff stated that after the attack concluded, the officers then escorted plaintiff to the stairwell where they attacked him a second time; this second attack lasted for two or three minutes. Plaintiff did not provide details regarding what transpired during the attack, but he did describe the attack as horrific.
{¶4} Plaintiff testified that his left ear was bleeding following the attack. Plaintiff stated that he also suffered injuries to his right wrist, rotator cuff, lacerations to his face, a popped left ear, jaw injuries, numerous bruises, back injuries, and injuries to his heel, ankles, and torso. Plaintiff stated that he was in severe pain for 10 days, that he was denied medical care, and that he finally received medical care on October 10, 2018. Plaintiff added that he believes the two nurses who examined him failed to document his injuries. Plaintiff wrote a statement on October 4, 2018, but the statement captioned "hunger strike" only states that he was assaulted by Layne, Robinson, and two other correction officers whose names he does not know. He provides no other details about this alleged attack. Defendant's Exhibit D.
{¶5} Linea Mahlman, the institutional inspector at SOCF, testified that her job duties include, among other things, reviewing and investigating allegations like the one made by plaintiff. Mahlman stated that plaintiff submitted two ICRs dated October 3, 2018, although they were received in her office on October 11, 2018. One ICR focuses on plaintiff's request to transfer and a separation request from staff members (Defendant's Exhibit B); the second ICR alleges a use of force (Defendant's Exhibit C). Both ICRs list correction officers Layne, Robinson, and two other unknown officers as being responsible for the use of force. Defendant's Exhibits B & C. Plaintiff submitted a third ICR dated October 8, 2018, although it was received by Mahlman on November 20, 2018. Defendant's Exhibit E. In the ICR, plaintiff claims a "cover up" for the actions of Layne, Robinson, Allen Robinson, and an unknown nursing staff member. Id. In a notification of grievance dated October 18, 2018, plaintiff identifies Layne, Robinson, Allen Peters, and an unknown officer as the ones involved in the attack. Defendant's Exhibit F.
{¶6} James Layne testified that he was working as an escort officer on the first floor of the infirmary at SOCF on September 30, 2018. Layne denied that anyone attacked plaintiff while he was in the infirmary or in the stairwell. Layne stated that no one hit plaintiff, twisted his leg restraints, or pulled his handcuffs over his shoulders. Layne added that sometime later Malhman contacted him about an alleged unreported use of force, and at that point, he completed an incident report, wherein he wrote that plaintiff was escorted to medical for an appointment and no force was used. Layne did not know when he wrote the incident report, although he acknowledged that he dated the incident report September 30, 2018, the date of the alleged incident. Defendant's Exhibit I.
{¶7} Teresa Hill testified that she works at SOCF as a registered nurse and was working in the infirmary on September 30, 2018. Hill stated that plaintiff never mentioned any alleged attack, that she never heard plaintiff asking for help, and that she would have documented plaintiff's physical injuries if she had seen them, but no such injuries are documented. Hill added that she is never left alone in the room with an inmate and that during the exam, plaintiff underwent an EKG, which generally takes 10-15 minutes to complete. Defendant's Exhibit J. Hill also reviewed plaintiff's nursing assessments and medical records dated October 1, October 3, October 4, October 10, and October 28, 2018. None of the records document physical injuries such as bruising, swelling, or facial lacerations. Defendant's Exhibits K, L, M, N, O, and U. The medical exam report dated October 10, 2018, provides that plaintiff is seen by medical because of his claim that he was attacked; however, there is no bruising or swelling noted, no injuries to his wrists or legs, and no noted difficulties raising his arms. Defendant's Exhibit N. The only noted issue is a small scab on plaintiff's heel. Id. The nursing assessment dated October 28, 2018, notes some redness of the ear, which Hill explained could have any number of causes including allergies, and some popping of the shoulder. Defendant's Exhibit U. Again, no swelling or bruising is noted. Id.
{¶8} Defendant also submitted video footage from the infirmary and still photos from that video. The video, which is composed of four different camera angles showing hallways in the medical infirmary, shows three correction officers escorting plaintiff into the medical room. Defendant's Exhibit T. Two medical staff members also enter the room with plaintiff; it appears that a medical staff member remains with plaintiff throughout the duration of plaintiff's time in the room as only one medical staff member exits at a time. Two other correction officers also enter the room at some point and exit prior to plaintiff leaving the room. There is an additional correction officer sitting at a desk down the hallway from the medical room. The door to the room appears to remain open the entire time. Fifteen minutes after entering the room, plaintiff and three correction officers exit and plaintiff is seen walking with the correction officers to the stairwell. After about a minute in the stairwell, plaintiff reappears on the video. There is no visible bruising or swelling, and no noticeable facial lacerations. After waiting against the wall in clear view of the video camera, plaintiff calmly walks down the hallway. At no point while his left ear is visible on the camera is there any blood noticeable on plaintiff's left ear. In one of the still photos from the video, plaintiff's left ear is visible and there is no noticeable blood as described by plaintiff. Defendant's Exhibit S. Plaintiff does not appear to be distressed or upset at any point on the video.
{¶9} "To prove assault under Ohio law, plaintiff must show that the defendant willfully threatened or attempted to harm or touch the plaintiff offensively in a manner that reasonably placed the plaintiff in fear of the contact." Miller v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-12, 2012-Ohio-3382, ¶ 11.
{¶10} It has also been held that "[a]llegations of use of unnecessary or excessive force against an inmate may state claims for battery and/or negligence." Brown v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13AP-804, 2014-Ohio-1810, ¶ 13. "To prove battery, the plaintiff must prove that the intentional contact by the defendant was harmful or offensive. * * * Ohio courts have held that, in a civil action for assault and battery, the defendant has the burden of proving a defense of justification, such as the exercise of lawful authority." Miller at ¶ 11; see also Brown at ¶ 13 ("A defendant may defeat a battery claim by establishing a privilege or justification defense.").
{¶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. Franklin No. 05AP-357, 2006-Ohio-2531, ¶ 10. "Ohio law imposes a duty of reasonable care upon the state to provide for its prisoners' health, care, and well-being." Ensman v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 06AP-592, 2006-Ohio-6788, ¶ 5.
{¶12} "The use of force is sometimes necessary to control inmates." Jodrey v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-477, 2013-Ohio-289, ¶ 17. "Correctional officers considering the use of force must evaluate the need to use force based on the circumstances as known and perceived at the time it is considered." Brown at ¶ 15, citing Ohio Adm.Code 5120-9-01(C). "[T]he precise degree of force required to respond to a given situation requires an exercise of discretion by the corrections officer." Ensman at ¶ 23. "In Ohio Adm.Code 5120-9-01, the Ohio Administrative Code sets forth the circumstances under which correctional officers are authorized to use force against an inmate." Id. at ¶ 6.
{¶13} Ohio Adm.Code 5120-9-01 provides, in pertinent part:
"(C) Guidelines regarding the use of force. * * *
"* * *
"(2) Less-than-deadly force. There are six general circumstances in which a staff member may use force against an inmate or third person. A staff member may use less-than-deadly force against an inmate in the following circumstances:
"(a) Self-defense from physical attack or threat of physical harm.
"(b) Defense of another from physical attack or threat of physical attack.
"(c) When necessary to control or subdue an inmate who refuses to obey prison rules, regulations or orders.
"(d) When necessary to stop an inmate from destroying property or engaging in a riot or other disturbance.
"(e) Prevention of an escape or apprehension of an escapee; or
"(f) Controlling or subduing an inmate in order to stop or prevent self-inflicted harm."
{¶14} "Pursuant to Ohio Adm.Code 5120-9-01(C)(1)(a), correctional officers 'may use force only to the extent deemed necessary to control the situation.' Additionally, correctional officers 'should attempt to use only the amount of force reasonably necessary under the circumstances to control the situation and shall attempt to minimize physical injury.' Ohio Adm.Code 5120-9-01(C)(1)(b)." Brown at ¶ 16. Also pertinent is Ohio Adm.Code 5120-9-01(B)(3), which defines "excessive force" as "an application of force which, either by the type of force employed, or the extent to which such force is employed, exceeds that force which reasonably appears to be necessary under all the circumstances surrounding the incident."
{¶15} Upon review of the evidence, the magistrate finds that plaintiff failed to prove his claim by a preponderance of the evidence. Plaintiff failed to persuade the magistrate that force was used on him in the infirmary or stairwell at SOCF on September 30, 2018. Having determined that plaintiff failed to prove that force was used on him, his claim must fail.
{¶16} The magistrate finds that plaintiff's testimony regarding the force used on him was not credible. The identities of the correction officers involved and the number of correction officers involved evolved over time. Plaintiff's testimony at trial was inconsistent with the several ICRs he authored regarding both the identities and number of correction officers involved in the alleged use of force. Additionally, plaintiff's testimony lacked detail regarding the alleged use of force, including how it started and how he was able to compose himself enough to casually walk out of the infirmary and back to his cell.
{¶17} Furthermore, plaintiff described the attack as horrific and stated that it lasted at least 15 minutes followed by an additional attack lasting two or three minutes. However, such an attack could not have transpired while plaintiff was in the infirmary undergoing an EKG with medical staff—there simply was not enough time for the EKG to be completed and a 15-minute attack to be carried out while plaintiff was in the infirmary. As shown on the video, plaintiff remained in the infirmary exam room for approximately 15 minutes and an EKG generally requires about 10-15 minutes to complete. In short, plaintiff could not have been attacked for 15 minutes and completed an EKG lasting 10 to 15 minutes, when the video establishes that he was only in the exam room for about 15 minutes total.
{¶18} Moreover, video footage of plaintiff emerging from the exam room and waiting in the hallway undermines plaintiff's claim that he was horrifically attacked for 15 minutes. Indeed, plaintiff appears calm and casually walks down the hallway. Importantly, his left ear, which he testified was bleeding at that time, is visible on camera for an extended period of time and at no point can any blood be seen. There are no other visible scrapes, bruises, swelling, or cuts anywhere on plaintiff—including no visible facial lacerations that plaintiff described in his testimony. At no point does it appear that plaintiff is in any distress.
{¶19} Hill credibly testified that had she noticed any bruising, swelling, or other injuries such as facial lacerations, she or another medical staff member would have documented them. Nevertheless, the medical records do not record any bruising, swelling, facial lacerations, or any other injuries as described by plaintiff or that would be expected following a horrific 15-minute beating. Finally, Layne credibly testified that he merely escorted plaintiff to the infirmary and no force was used.
{¶20} Plaintiff requests that the court determine that the officers involved in the attack be stripped of their immunity. R.C. 9.86 and 2743.02(F). However, because the magistrate has concluded that plaintiff failed to establish that he was attacked, there is no basis for stripping the correction officers of their immunity.
{¶21} In short, the magistrate recommends that the court find that plaintiff failed to prove his claim by a preponderance of the evidence and that judgment be entered in favor of defendant.
{¶22} A party may file written objections to the magistrate's decision within 14 days of the filing of the decision, whether or not the court has adopted the decision during that 14-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. A party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion within 14 days of the filing of the decision, as required by Civ.R. 53(D)(3)(b).
/s/_________
GARY PETERSON
Magistrate Filed January 6, 2021
Sent to S.C. Reporter 3/23/21