Shorter v. Ohio Dept. of Rehab. & Corr.
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[Cite as Shorter v. Ohio Dept. of Rehab. & Corr., 2005-Ohio-3343.] IN THE COURT OF CLAIMS OF OHIO www.cco.state.oh.us JAMES E. SHORTER : Plaintiff : v. : CASE NO. 2003-04309 Judge J. Craig Wright Magistrate Steven A. Larson : MAGISTRATE DECISION OHIO DEPARTMENT OF REHABILITATION AND CORRECTION : Defendant : : : : : : : : : : : : : : : : : {¶ 1} Plaintiff brought this action against defendant alleging claims of retaliation and negligent hiring, retention supervision of Corrections Officer (CO) Timothy Follrod. and Plaintiff also asserts that he was assaulted by Follrod, that he was denied access to restroom facilities, and that his First Amendment rights were violated. Plaintiff further asserts that Follrod, Melody Lewis, Virginia Workman, Reginald Wilkinson, and Alan Lazaroff should not be entitled 2743.02(F) and 9.86. to civil immunity pursuant to R.C. The issues of liability and damages were bifurcated and the case proceeded to trial before a magistrate of the court on the issues of liability and civil immunity of defendant s officers and employees. {¶ 2} At all times relevant to this action, plaintiff was an inmate in the custody and control of defendant pursuant to R.C. 5120.16 at Madison Correctional Institution testified that on December 9, 2002, (MaCI). Follrod CO McQueen called him to the Jefferson-B Housing Unit to examine a purported gambling receipt found in plaintiff s possession. Follrod helped McQueen conduct a shakedown of plaintiff s cell and asked plaintiff for commissary Case No. 2003-04309 receipts to prove -2ownership of MAGISTRATE DECISION certain items. According to Follrod, plaintiff responded by stating, I don t have to show you shit. Plaintiff then grabbed some commissary receipts, threw them on his bed and stated, I m a real live killer, you re going to have to make it death row. Believing he had been threatened, Follrod placed plaintiff in handcuffs and escorted him to a holding cell. Plaintiff was later sent to isolation. After the incident, Follrod wrote plaintiff a ticket for two Class II rule violations: 1) disobeying a direct order; and, 2) making threats to a staff member. (Defendant s Exhibits A and C.) {¶ 3} Plaintiff testified that Follrod used the premise of looking for contraband as a way to retaliate against him for filing grievances and lawsuits for himself and other inmates. Plaintiff stated that the above-quoted remarks were rap lyrics and that after he sang, Follrod spun him around, placed him in handcuffs, slammed him against a wall, and then made him sit in a holding cell without access to a restroom. adjusted the segregation, ointment. Plaintiff further testified that Follrod handcuffs a nurse too tightly examined his and that wrists once and gave he was him in some Plaintiff also claims that defendant should have been aware of Follrod s violent tendencies and that plaintiff has suffered anxiety and depression as a result of Follrod s actions. {¶ 4} The Rules Infraction Board (RIB) found plaintiff guilty of both violations. (Defendant s Exhibit C.) affirmed on appeal. The RIB decision was (Defendant s Exhibits D-F.) {¶ 5} The magistrate finds that the crux of plaintiff s claim is that the RIB decision was erroneous. As a general rule, this court has no jurisdiction to review decisions of the RIB. Dept. of Rehab. & Corr. (1992), 80 Ohio App.3d 389. Saxton v. Ohio Case No. 2003-04309 -3- MAGISTRATE DECISION {¶ 6} To the extent that plaintiff alleges violations of his constitutional rights, actions against the state under Section 1983, Title 42, U.S.Code may not be brought in the Court of Claims because the state is not a person within the meaning of Section 1983. See, e.g., Jett v. Dallas Independent School Dist. (1989), 491 U.S. 701; Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio App.3d 170; White v. Chillicothe (Dec. 29, 1992), Franklin App. No. 92AP-1230. Correctional Inst. To the extent that plaintiff alleges that he was sent to isolation in retaliation for filing grievances and lawsuits, the Tenth District Court of Appeals has held that claims of retaliation are to be treated as an action for alleged violations of constitutional rights under Section 1983, Title 42, U.S.Code. Deavors v. Ohio Dept. of Rehab. & Corr. (May 20, 1999), Franklin App. No. 98AP-1105; Johnson v. Adult Parole Authority (Feb. 15, 2000), Franklin App. No. 99AP-522. Additionally, to the extent that plaintiff alleges that he was deprived of access to a restroom, inmate complaints regarding the conditions of confinement are treated as claims arising under Section 1983, Title 42, U.S.Code. State ex Schotten, 70 Ohio St.3d 89, 91, 1994-Ohio-37. rel. Carter v. Therefore, the magistrate concludes that this court lacks jurisdiction to consider plaintiff s claims of First Amendment violations, retaliation, and denial of access to a restroom. {¶ 7} In order for plaintiff to prevail upon his claim of negligence, he must prove by a preponderance of the evidence that defendant owed him a duty, that it breached that duty, and that the breach proximately caused his injuries. (1981), 67 Ohio St.2d 282, 285. Strother v. Hutchinson The standard of care is that which Case No. 2003-04309 -4- MAGISTRATE DECISION is reasonable and ordinary for the health, care and well-being of the prisoner. Clemets v. Heston (1985), 20 Ohio App.3d 132, 136. {¶ 8} Dr. Edward Okel, a licensed psychologist, testified that he began treating plaintiff for anxiety in July 2003. After reviewing plaintiff s medical records, Dr. Okel testified that although there was a December 26, 2002, reference in plaintiff s medical file regarding complaints of stress in dealing with a certain Sergeant Campbell, there was no mention of any incident with Follrod on December 9, 2002. {¶ 9} Lieutenant Jason Berchtold testified that he was chairman of the RIB and stated that there was no mention of an assault by Follrod in plaintiff s appeal of the RIB decision. {¶ 10} testified Virginia Workman, the institutional inspector at MaCI, that she had conducted an investigation regarding plaintiff s complaint that his right to free speech was violated when he was disciplined for singing a rap song. However, Workman stated that plaintiff did not assert that Follrod assaulted him or that he had been denied access to a restroom. testified that plaintiff filed an informal Workman further complaint, a notification of grievance, an appeal to the central office, and an appeal to the chief inspector regarding the free speech violation, but that no assault or deprivation of restroom access was mentioned in any of those documents. Workman added that no use of force report was written regarding any alleged assault of plaintiff by Follrod. {¶ 11} The determination of whether defendant breached a duty owed to plaintiff necessarily turns upon witness credibility. In determining the issue of witness credibility, the court considers the appearance of each witness upon the stand; his manner of Case No. 2003-04309 -5- MAGISTRATE DECISION testifying; the reasonableness of the testimony; the opportunity he had to see, hear, and know the things about which he testified; his accuracy interest, of memory; and bias, frankness if any; or lack of together circumstances surrounding the testimony. it; with intelligence, all facts and Adair v. Ohio Dept. of Rehab. & Corr. (1998), 96 Ohio Misc.2d 8, 11; See 1 Ohio Jury Instructions (1994), Section 5.30. {¶ 12} Applying these criteria to the testimony presented herein, the magistrate finds that plaintiff s assertion that he was assaulted by Follrod is not credible. Upon cross-examination, plaintiff admitted that he had not filed an informal complaint against Follrod and that he had not mentioned any assault by Follrod in his appeal of the decision of the RIB. Furthermore, plaintiff presented no medical records to support his claim that he sustained any injury on December 9, 2002. Upon review of the evidence presented at trial, the magistrate finds that plaintiff has failed to prove by a preponderance of the evidence that he was assaulted by Follrod on December 9, 2002. In addition, the magistrate finds that plaintiff has failed to prove his claims of negligent hiring, retention, and supervision by a preponderance of the evidence. The magistrate therefore recommends to the court that judgment be made in favor of defendant. {¶ 13} Regarding the issue of civil immunity, R.C. 2743.02(F) provides, in part: {¶ 14} A civil action against an officer or employee, as defined in section 109.36 of the Revised Code, that alleges that the officer s or employee s conduct was manifestly outside the scope of his employment or official responsibilities, or that the officer or employee acted with malicious purpose, in bad faith, or Case No. 2003-04309 -6- MAGISTRATE DECISION in a wanton or reckless manner shall first be filed against the state in the jurisdiction court to of claims, determine, which initially, has exclusive, whether the original officer or employee is entitled to personal immunity under section 9.86 of the Revised Code and whether the courts jurisdiction over the civil action. of common pleas have *** {¶ 15} R.C. 9.86 provides, in part: {¶ 16} *** no officer or employee [of the state] shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer s or employee s actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner. ***. (Emphasis added.) {¶ 17} The Tenth District Court of Appeals has stated: {¶ 18} Under R.C. 9.86, an employee who acts performance of his duties is immune from liability. in the However, if the state employee acts manifestly outside the scope of his or her employment or acts with malicious purpose, in bad faith, or in a wanton or reckless manner, the employee will be liable in a court of general jurisdiction. It is only where the acts of state employees are motivated by actual malice or other such reasons giving rise to punitive damages that their conduct may be outside the scope of their state employment. James H. v. Dept. of Mental Health & Mental Retardation (1980), 1 Ohio App.3d 60, 61. Even if an employee acts wrongfully, it does not automatically take the act outside the scope of the employee s employment even if the act is unnecessary, unjustified, excessive, or improper. Thomas v. Ohio Dept. of Rehab. & Corr. (1988), 48 Ohio App.3d 86. The act must be Case No. 2003-04309 -7- MAGISTRATE DECISION so divergent that its very character severs the relationship of employer and Restorations, employee. Inc. (1985), Wiebold 19 Studio, Ohio App.3d Inc. 246. v. Old World Thomson v. University of Cincinnati College of Medicine (Oct. 17, 1996), Franklin App. No. 96API02-260, at p. 13. {¶ 19} Based upon the totality of the evidence presented, the magistrate concludes that Timothy Follrod, Melody Lewis, Virginia Workman, Reginald Wilkinson, and Alan Lazaroff1 did not act manifestly outside the scope of their employment, with malicious purpose, in bad faith, or in a wanton or reckless manner. It is therefore recommended that the court issue a determination that these individuals are entitled to civil immunity pursuant to R.C. 2743.02(F) and 9.86 and that the courts of common pleas do not have jurisdiction over any civil actions that may be filed against them based upon the allegations in this case. {¶ 20} A party may file written objections to the magistrate s decision within 14 days of the filing of the decision. A party shall not assign as error on appeal the court s adoption of any finding or conclusion of law contained in the magistrate s decision unless the party timely and specifically objects to that finding or conclusion as required by Civ.R. 53(E)(3). ________________________________ STEVEN A. LARSON Magistrate Entry cc: 1 On February 3, 2004, the court granted defendant s motion to quash the subpoena of Warden Alan Lazaroff. Neither Lazaroff nor Reginald Wilkinson testified at trial. Case No. 2003-04309 -8- MAGISTRATE DECISION James E. Shorter, #190-169 Madison Correctional Inst. P.O. Box 740 London, Ohio 43140-0740 Plaintiff, Pro se Peggy W. Corn Assistant Attorney General 150 East Gay Street, 23rd Floor Columbus, Ohio 43215-3130 Attorney for Defendant HTS/cmd Filed June 27, 2005 To S.C. reporter June 29, 2005
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