Booth v. Ohio Dept. of Rehab. & Corr.
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[Cite as Booth v. Ohio Dept. of Rehab. & Corr., 2005-Ohio-7018.]
IN THE COURT OF CLAIMS OF OHIO
www.cco.state.oh.us
DANIEL BOOTH :
Plaintiff
:
v.
:
CASE NO. 2004-01419
Judge Joseph T. Clark
Magistrate Steven A. Larson
OHIO DEPARTMENT OF
:
MAGISTRATE DECISION
REHABILITATION AND CORRECTION
Defendant
: : : : : : : : : : : : : : : : :
:
{¶ 1} Plaintiff brought this action against defendant alleging
that he sustained personal injury as a result of the conduct of
defendant’s employee, Guy Adams.
The issues of liability and
damages were bifurcated and the case proceeded to trial before a
magistrate on the issue of liability and the civil immunity of
defendant’s employee.1
{¶ 2} At all times relevant to this action, plaintiff was an
inmate in the custody and control of defendant’s Southeastern
Correctional Institution (SCI) pursuant to R.C. 5120.16.
alleges
that
Adams,
a
food
service
coordinator
at
Plaintiff
SCI,
used
unnecessary force against him during an incident that occurred on
January 28, 2003, when plaintiff was completing his assigned
kitchen duties in Adams’ area.
{¶ 3} On the date of the incident, plaintiff was working the
first shift and had just completed serving breakfast to the general
1
At the conclusion of the trial, the court agreed to allow the record to
remain open for presentation of additional evidence and testimony.
The
proceedings were reconvened and concluded at a later date.
Case No. 2004-01419
inmate population.
-2-
MAGISTRATE DECISION
Plaintiff contends that a conflict began when
he attempted to get his own breakfast, but Adams was unwilling to
serve him.
The testimony at trial established that kitchen workers
were routinely served their meals after the general population had
eaten and the workers had completed their duties.
The evidence
also establishes that, in this instance, Adams refused to serve
plaintiff because he thought that plaintiff had already eaten.
Plaintiff protested, and Adams did allow him to take a tray of
food.
However, plaintiff contends that when he reached into a
nearby cooler to obtain some juice, Adams shut the door on his
hand.
{¶ 4} As a result of being refused the juice, plaintiff sought
intervention by a corrections officer on duty, but was told that
the matter had to be resolved with Adams.
Plaintiff testified that
he was walking away from that conversation, with his breakfast tray
in hand, when he observed Adams coming toward him.
Plaintiff
stated that Adams’ head was turned and that he was looking over his
right shoulder talking to another inmate.
Plaintiff contends that
he tried to avoid Adams but that he nevertheless collided with him,
causing
food
to
spill
on
Adams’
clothing.
Plaintiff
further
maintains that he began to step backward, away from Adams, but that
Adams continued to move toward him.
Plaintiff testified that he
apologized to Adams, but that Adams raised two long metal serving
ladles that he had in his hand and struck plaintiff with them in
the left side of the face, causing injury to his ear, neck, and
jaw.
(Plaintiff’s Exhibits 2, 3, 4, 5.)
{¶ 5} In order to prevail upon a claim of negligence, plaintiff
must prove by a preponderance of the evidence that defendant owed
him a duty, that it breached that duty, and that the breach
Case No. 2004-01419
-3-
proximately caused his injuries.
MAGISTRATE DECISION
Armstrong v. Best Buy Company,
Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-2573, citing Menifee v. Ohio
Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.
Ohio law
imposes a duty of reasonable care upon the state to provide for its
prisoners’ health, care and well-being.
Clemets v. Heston (1985),
20 Ohio App.3d 132, 136.
{¶ 6} In this case, the duty owed is that which is set forth
under
the
Ohio
Administrative
Code
with
respect
to
the
circumstances under which defendant’s employees are authorized to
use force against an inmate.
Specifically, former Ohio Adm.Code
5120-9-01 provides in pertinent part:
{¶ 7} “(A) As the legal custodians of a large number of inmates,
some of whom are dangerous, prison officials and employees are
confronted with situations in which it is necessary to use force to
control inmates.
This rule identifies the circumstances when force
may be used lawfully.
{¶ 8} “(B) ***
{¶ 9} “(C) There are six general situations in which a staff
member may legally use force against an inmate:
{¶ 10}
“(D) ***
{¶ 11}
“(1) Self-defense from an assault by an inmate;
{¶ 12}
“***
{¶ 13}
“(E) The superintendent, administrator, or staff member
of a correctional institution is authorized to use force, other
than deadly force, when and to the extent he reasonably believes
that such force is necessary to enforce the lawful rules and
regulations of the institution and to control violent behavior.”
{¶ 14}
This court has previously noted that “corrections
officers have a privilege to use force upon inmates under certain
Case No. 2004-01419
conditions.
***
-4However,
such
MAGISTRATE DECISION
force
must
be
used
in
the
performance of official duties and cannot exceed the amount of
force which is reasonably necessary under the circumstances.
***
Force may be used to control or subdue an inmate in order to
enforce the institution’s rules and regulations.
***
Obviously,
‘the use of force is a reality of prison life’ and the precise
degree of force required to respond to a given situation requires
an exercise of discretion by the corrections officer.”
Mason v.
Ohio Dept. of Rehab. & Corr. (1990), 62 Ohio Misc.2d 96, 101-102.
{¶ 15}
(Internal citations omitted.)
{¶ 16}
In this case, a tape of the incident, taken by a
security
camera
on
plaintiff’s evidence.
the
premises,
was
presented
(Plaintiff’s Exhibit 7.)
as
part
of
The tape clearly
shows that Adams struck plaintiff with the metal ladles.
However,
in order for the use of force to be justified, there must be some
evidence that plaintiff instigated physical contact with Adams.
The tape does not resolve that question and the testimony of
inmates and corrections officers who witnessed the incident is
conflicting as to whether plaintiff intentionally or accidentally
collided with Adams prior to his being struck.
of the case turns on witness credibility.
Thus, the gravamen
In that regard, the
court found the testimony of defendant’s investigator, Dave French,
to be the most reliable and persuasive.
{¶ 17}
Based upon the totality of evidence, the court is
persuaded that plaintiff did not collide with Adams accidentally.
The two had been swearing at one another; Adams had begrudgingly
served plaintiff breakfast; he had denied plaintiff any juice to
drink; and he had closed the cooler door on plaintiff’s fingers.
Plaintiff’s assertion that he attempted to avoid Adams but that
Case No. 2004-01419
-5-
MAGISTRATE DECISION
Adams walked directly into him lacks credibility.
Rather, the
weight of evidence compels the conclusion that plaintiff intended
to collide with Adams and to spill food on him.
For the same
reasons, the court is persuaded that Adams reasonably believed that
plaintiff intended to escalate the earlier conflict to a physical
altercation.
{¶ 18}
Thus, pursuant to former Ohio Adm.Code 5120-9-01, Adams
was lawfully entitled to use force against plaintiff either as a
means
of
self
defense
under
subsection
(D)(1)
or
to
control
plaintiff’s violent behavior under subsection (E).
{¶ 19}
code
However, the court is persuaded that Adams violated the
provisions
in
his
response
to
plaintiff’s
conduct.
Specifically, the videotape of the incident shows that plaintiff
was
backing
away
from
Adams
after
attempting to avoid further contact.
the
two
collided
and
was
It is also clear from the
tape that Adams continued advancing toward plaintiff and reached
out with the ladles to strike plaintiff.
Adams then turned away
from plaintiff and walked back toward the kitchen.
The act of
pursuing and striking plaintiff exceeded the amount of force that
was reasonably necessary under the circumstances, or that was
necessary
in
order
to
enforce
the
institution’s
rules
and
regulations.
{¶ 20}
For the foregoing reasons, the court concludes that
plaintiff proved his negligence claim by a preponderance of the
evidence.
Accordingly,
judgment
is
recommended
in
favor
of
plaintiff.
{¶ 21}
Regarding the issue of civil immunity, R.C. 2743.02(F)
{¶ 22}
provides, in part:
Case No. 2004-01419
{¶ 23}
-6-
MAGISTRATE DECISION
“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
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
***”
{¶ 24}
R.C. 9.86 provides, in part:
{¶ 25}
“*** 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.
{¶ 26}
***” (Emphasis added.)
In Thomson v. University of Cincinnati College of
Medicine (Oct. 17, 1996), Franklin App. No. 96API02-260, at p. 13,
the Tenth District Court of Appeals stated:
{¶ 27}
“Under
R.C.
9.86,
an
employee
who
performance of his duties is immune from liability.
acts
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
Case No. 2004-01419
-7-
MAGISTRATE DECISION
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
so divergent that its very character severs the relationship of
employer
and
employee.
Wiebold
Studio,
Inc.
v.
Old
World
Restorations, Inc. (1985), 19 Ohio App.3d 246.”
{¶ 28}
In this case, having found that Adams was lawfully
entitled to use reasonable force against plaintiff, but that he was
negligent in his attempt to do so, the court cannot find that Adams
acted manifestly outside the scope of his employment or that his
conduct was so divergent that it severed the employer-employee
relationship.
Additionally, while the evidence shows that Adams
acted unreasonably in response to plaintiff’s conduct, the court
does not find that Adams acted with malicious purpose, in bad faith
or in a wanton or reckless manner toward plaintiff.
It is
therefore recommended that in addition to rendering judgment in
favor of plaintiff, the court issue a determination that Adams is
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
him
based
upon
the
allegations in this case.
{¶ 29}
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
Case No. 2004-01419
-8-
MAGISTRATE 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
[Cite as Booth v. Ohio Dept. of Rehab. & Corr., 2005-Ohio-7018.]
Entry cc:
Richard F. Swope
6504 East Main Street
Reynoldsburg, Ohio 43068-2268
Attorney for Plaintiff
Randall W. Knutti
Douglas R. Folkert
Assistant Attorneys General
150 East Gay Street, 23rd Floor
Columbus, Ohio 43215-3130
Attorneys for Defendant
Information Copy:
John M. Gonzales
140 Commerce Park Drive
Westerville, Ohio 43082
LM/LH/cmd
Filed December 12, 2005
To S.C. reporter December 29, 2005
Attorney for Guy Adams
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