Scott Sheets, Magistrate.
DECISION OF THE MAGISTRATE
Scott Sheets, Magistrate.
{¶1} Plaintiff, an inmate in defendant's custody, seeks damages based on an unprovoked use of force that allegedly occurred on November 26, 2021. Trial took place remotely. In addition to plaintiff, Institutional Inspector Felepa Lowery and Nurse Angela Peachock testified at trial. Documents related to plaintiff's grievance regarding the incident as well as his medical records from a November 29, 2021 visit with Nurse Peachock were admitted into evidence without objection as Exhibits A and B. For the following reasons, the magistrate finds that plaintiff failed to prove his claims and recommends judgment in defendant's favor.
Findings of Fact
{¶2} The magistrate makes the following factual findings based on the evidence presented at trial. On November 26, 2021, plaintiff was incarcerated at defendant's Trumbull Correctional Institution. On November 28, 2021, plaintiff reported that a new corrections officer kicked him in the left leg. Plaintiff indicated that the incident occurred on November 26, 2021 and that the corrections officer acted without provocation. On November 29, 2021, Plaintiff sought medical attention for his left shin and Nurse Peachock examined him. Other than plaintiff's subjective complaints of pain, Nurse Peachock found nothing wrong with plaintiff. The testimony of Plaintiff and Nurse Peachock as well as the contents of Exhibit A and B established the above.
{¶3} After plaintiff filed a grievance, TCI's institutional inspector investigated the incident and found that there was insufficient evidence to substantiate plaintiff's claims. While video of assaults is preserved, the inspector indicated that no video or witnesses supporting plaintiff's claim could be located. Further, the accused officer was not working in the area where plaintiff claimed the assault occurred on November 26, 2021. For training purposes, the accused officer accompanied a more experienced officer on November 26, 2021 and this more experienced officer did not witness the incident plaintiff described. Exhibit B reflects the investigation's results and Mr. Lowery testified regarding grievances, the preservation of video, and the contents and creation of Exhibit B.
Conclusions of Law
{¶4} To meet his burden at trial, plaintiff needed to prove his claims by a preponderance of the evidence. "A preponderance of the evidence is 'the greater weight of the evidence * * * [which] means evidence that is more probable, more persuasive, or of greater probative value.'" Brothers v. Morrone-O'Keefe Dev. Co., LLC, 10th Dist. Franklin No. 06AP-713, 2007-Ohio-1942, 2007 Ohio App. LEXIS 1762, ¶ 49.
{¶5} Plaintiff's complaint alleges unnecessary and/or excessive force and states claims for battery and/or negligence.
To prove a claim for battery, a plaintiff must demonstrate that the defendant "act[ed] intending to cause a harmful or offensive contact, and * * * a harmful contact resulted]." A defendant may defeat a battery claim by establishing a privilege or justification defense. However, "the use of excessive force by one privileged to use force on another may constitute battery."
To prove actionable negligence, a plaintiff must show the existence of a duty, breach of that duty, and injury proximately caused by the breach. The state owes a duty to inmates to reasonably care for the inmates' health, care, and well-being.
Brown v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13AP-804, 2014-Ohio-1810, ¶¶ 13-14.
{¶6} On the trial of a civil case, the weight to be accorded to the evidence and the credibility of the witnesses is primarily for the trier of the fact to determine. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The magistrate is the trier-of-fact in this case and must give appropriate weight to the evidence presented. The magistrate is free to believe all, part, or none of the testimony of any witness. See State v. Green, 10th Dist. Franklin No. 03AP-813, 2004-Ohio-3697, ¶ 24.
{¶7} Out-of-court statements offered to prove the truth of the matter asserted constitute hearsay, which is inadmissible absent some exception. Ohio Evid. R. 801 and 802. Hearsay within hearsay must also fit within a recognized exception to be admissible. Ohio Evid. R. 805. Exhibit B as well as statements contained therein constitute hearsay as neither the author of the report nor any of the witnesses who were interviewed testified at trial. However, Ohio Evid. R. 803(6) outlines the business records exception to the exclusionary hearsay rule. If authenticated and absent some indicia of untrustworthiness, a "report * * * in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge" is admissible "if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the * * * report." Id. Based on the testimony of Mr. Lowery, the magistrate finds that Exhibit B and the statements contained therein are admissible pursuant to Ohio Evid. R. 803(6).
Decision
{¶8} The court finds that plaintiff failed to prove his claims by a preponderance of the evidence. The greater weight of the evidence, in both quantity and quality, established that the incident plaintiff described on November 26, 2021 did not occur or did not occur as plaintiff described. Other than his own testimony, plaintiff offered no other evidence in support of his claims. Plaintiiff could not identify the corrections officer during his testimony at trial. Moreover, he admitted that he did not report the incident until 2 days after it occurred. At that time, he indicated he was kicked while, at trial, he indicated that the officer put him in a headlock and/or wrestling hold. Plaintiff offered no real explanation for his delay in reporting the alleged incident or the inconsistency between what he reported at the time and his testimony at trial. Moreover, he did not seek medical attention until 3 days after the incident and, despite reporting pain, did not appear bruised or otherwise injured. Yet, at trial, he seemed to suggest that the incident either had caused or might cause an asthma or heart attack. All of the above caused the magistrate to doubt both the accuracy and veracity of plaintiff's testimony. Finally, defendant's investigation found insufficient evidence to support plaintiff's claims. Of note, the inspector located no video or witnesses, including the officer partnered with the accused officer, that supported plaintiff's allegations.
{¶9} Based on the foregoing, the magistrate finds plaintiff failed to prove his claims by a preponderance of the evidence and recommends judgment in defendant's favor.
{¶10} 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).