Gladden v. Grafton Correctional Inst.
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[Cite as Gladden v. Grafton Correctional Inst., 2004-Ohio-7301.]
IN THE COURT OF CLAIMS OF OHIO
FRED GLADDEN :
Plaintiff
:
v.
:
CASE NO. 2003-12191
Judge Fred J. Shoemaker
Magistrate Steven A. Larson
:
MAGISTRATE DECISION
GRAFTON CORRECTIONAL
INSTITUTION
:
Defendant
: : : : : : : : : : : : : : : : :
{¶ 1} Plaintiff brought this action alleging that defendant was
negligent in failing to prevent one of its employees, Corrections
Officer (CO) Barry Smith, from using unnecessary force against him
during a pat-down search.
The issues of liability and damages were
bifurcated and on October 19, 2004, the case proceeded to trial at
Grafton Correctional Institution (GCI) on the issue of liability
and the civil immunity of CO Smith.
{¶ 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.
Plaintiff has alleged that while leaving the chow hall on
March 27, 2003, CO Smith was overly aggressive during a pat-down
search and that CO Smith’s unlawful contact with plaintiff’s groin
area caused broken blood vessels, swelling, and excruciating pain.
{¶ 3} According to plaintiff, he was ordered to put his hands on
the wall and spread his legs, whereupon CO Smith aggressively
patted down his chest and abdomen, and then grabbed plaintiff’s
underwear and pants, pulling them upward into his buttocks with
such force that plaintiff’s heels came off the floor.
Plaintiff
Case No. 2003-12191
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MAGISTRATE DECISION
testified that after CO Smith patted down his ankle, he came
straight up his leg and struck him in the testicles.
{¶ 4} Plaintiff stated that he almost fell to the floor from the
pain and that he asked CO Smith why he hit him.
plaintiff, CO Smith smirked and walked away.
According to
Plaintiff walked back
to his dorm, but reported to sick call one hour later because of
pain.
{¶ 5} Upon returning to the dorm after sick call, plaintiff was
instructed by another CO to fill out an incident report at the
captain’s office.
Plaintiff filed the report and again returned to
his dorm where two inmates advised him to talk to Connie Cook, the
duty officer.
Plaintiff testified that when he went to speak with
CO Cook, she was involved in a conversation with another CO; and
that he walked back to his dorm instead of waiting because he was
in a great deal of pain.
{¶ 6} According to plaintiff, he was prescribed pain relief
medication when he went to sick call on the day of the incident and
was instructed to return if pain persisted.
Two days later,
plaintiff returned to the infirmary where he was prescribed more
pain medication.
The nurse also gave plaintiff a groin support
device and told him to apply ice to the area.
pass to see a doctor.
Plaintiff received a
On March 31, 2003, plaintiff used his pass
to go to the medical station but when he arrived he was told that
he could not see the doctor until April 2.
On that day, the doctor
wrote a 30-day prescription for indomethacin, a medication for pain
and swelling.
{¶ 7} Plaintiff sent two “kites” to the Ohio State Highway
Patrol
(OSHP)
incident.
requesting
that
they
investigate
the
pat-down
OSHP Trooper Scott Widder was assigned to investigate
Case No. 2003-12191
plaintiff’s allegations.
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MAGISTRATE DECISION
During the investigation, plaintiff did
not provide the names of any witnesses to the incident.
Trooper
Widder testified that in the initial incident report, he listed the
offense as an assault because plaintiff’s allegation placed the
offense in that category.
(Plaintiff’s Exhibit 2.)
Although
Trooper Widder did not believe there was sufficient evidence to
conclude that an assault had occurred, he felt it necessary to
speak
with
a
prosecutor.
According
to
Trooper
Widder,
the
prosecutor did not take the case because no intent to harm or
injure could be shown.
{¶ 8} Inmate Pablo Soto testified that on March 27, 2003, he was
working in the chow hall for the evening meal, that he was about
five feet from where the search of plaintiff occurred, and that he
had a clear view of the incident.
According to inmate Soto, the
pat-down was very aggressive and ended with CO Smith’s striking
plaintiff in the testicle area.
Prior to the pat-down, inmate Soto
did not see plaintiff acting aggressively or making any abrupt
movements.
After the pat-down, plaintiff and CO Smith exchanged a
few words, then plaintiff exited the chow hall.
Inmate Soto said
that due to the din in the hall, he could not hear the words that
were exchanged.
On cross-examination, inmate Soto admitted that he
never reported the incident and did not speak to Trooper Widder
during the OSHP investigation.
{¶ 9} Inmate William Thomas stated that he was sitting about 810 feet away from plaintiff during the March 27, 2003, incident.
He testified that during the pat-down, plaintiff was cooperative
and did not struggle with CO Smith.
According to inmate Thomas, CO
Smith hit plaintiff between his legs and they had words before
plaintiff left the chow hall.
On cross-examination, inmate Thomas
Case No. 2003-12191
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MAGISTRATE DECISION
admitted that he did not come forward as a witness to the incident
and that plaintiff did not ask him to speak with Trooper Widder.
Inmate Thomas also testified that inmates take contraband from the
chow hall and that it is common for COs to pat-down inmates as they
are leaving the hall.
Additionally, he admitted that inmates do
hide contraband in their groin area.
{¶ 10}
At the time of the incident, Barry Smith had been a CO
at GCI for approximately ten years.
His duties as a CO included
supervising inmates, maintaining security within the institution
and conducting random pat-downs of inmates as they exited the chow
hall.
CO Smith testified that on the day of the incident, he
conducted roughly 40 pat-downs during the evening meal.
CO Smith
stated that pat-downs are used to search for hidden contraband and
to maintain safety in the institution.
{¶ 11}
CO Smith testified that he had been trained in the
proper pat-down procedure during his initial training at the
Correctional Training Academy in Columbus and that additional onthe-job training was provided by the institution throughout his
career.
CO Smith described the pat-down as a routine pat-down for
the purpose of self-protection and safety.
{¶ 12}
CO Smith stated that he followed the same pat-down
procedure with all inmates:
first the inmate is told to stand
against the wall and spread his legs, next the CO pats him down
beginning at the collar and moving to his shoulders, each arm, the
small of the back, around the belt and front, and finally down each
leg.
CO Smith said that he never struck plaintiff in the testicles
and that he did not pull plaintiff’s pants and underwear into his
buttocks during the pat-down of plaintiff.
Case No. 2003-12191
{¶ 13}
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MAGISTRATE DECISION
Darlene Krandall, the institution inspector at GCI for
the past 12 years, conducted the investigation of plaintiff’s
April 11, 2003, grievance.
Inspector Krandall spoke with numerous
witnesses and staff and, on April 24, 2003, concluded the following
in the disposition of grievance:
“*** I could find no witnesses
that saw or heard anything inappropriate during this alleged
incident.
You received a medical exam after you reported it and no
abnormal physical findings were noted.
*** I’ve had witnesses
comment during this investigation how they have witnessed you
walking across the yard like you are in great discomfort, but when
you feel you are out of sight from related staff, you act and walk
normally.
*** no conclusive evidence to support your allegations
against Officer Smith.
{¶ 14}
***.”
(Defendant’s Exhibit E.)
At the time of the incident, Eddie Young had been an
investigator at GCI for 15 years.
Mr. Young stated he was required
to conduct the in-service training at GCI, which covers proper patdown procedures.
He testified that the most important element of a
pat-down is a CO’s personal safety, and that he taught COs to make
a careful search of the groin area because this is one of the many
places contraband is hidden.
According to Mr. Young, a CO’s post
orders include conducting random pat-downs of inmates exiting the
chow hall because it is a high risk area for stolen contraband,
including
knives
and
other
weapons.
Mr.
Young
first
became
involved with the investigation of the March 27, 2003, incident
when he was stopped by plaintiff in the yard and asked about having
OSHP conduct an investigation.
Mr. Young was present during a
portion of plaintiff’s interview with Trooper Widder.
During that
interview, Trooper Widder asked plaintiff if he wanted to press
charges against CO Smith and plaintiff declined.
Case No. 2003-12191
{¶ 15}
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MAGISTRATE DECISION
In order to prevail on a negligence claim, plaintiff
must prove by a preponderance of the evidence that defendant owed
him a duty, that it breached such duty, and that the breach
proximately caused plaintiff’s injuries.
(1981), 67 Ohio St.2d 282, 285.
Strother v. Hutchinson
Ohio law imposes a duty of
reasonable care upon the state to provide for its prisoner’s
health, care and well-being.
Clemets v. Heston (1985), 20 Ohio
App.3d 132, 136.
{¶ 16}
In
considering
the
conflicting
testimony
of
the
witnesses, the court finds the testimony of CO Smith to be the more
credible.
Specifically, the court is persuaded that CO Smith was
properly trained in appropriate pat-down procedure, that on March
27, 2003, he conducted a routine pat-down, and that he did not
strike plaintiff in the testicles.
Additionally, plaintiff’s
credibility regarding his version of the March 27, 2003, incident
was undermined by the testimony of Trooper Widder and Inspector
Krandall,
wherein
both
investigators
reported
that
there
was
insufficient evidence of an assault and that after the incident no
physical injury could be shown.
{¶ 17}
Based upon the totality of the evidence presented and
assessing the credibility of the witnesses, the court finds that
plaintiff failed to prove that any unreasonable force was used by
CO
Smith
on
March
27,
2003.
The
weight
of
the
evidence
demonstrates that the pat-down was routine and that there was no
physical injury, despite plaintiff’s complaints of pain.
{¶ 18}
For the foregoing reasons, the court concludes that
plaintiff has failed to prove any of his claims by a preponderance
of the evidence.
defendant.
Accordingly, judgment is recommended in favor of
Case No. 2003-12191
{¶ 19}
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MAGISTRATE DECISION
In light of the above findings, the court concludes
that CO Smith did not act manifestly outside the scope of his
employment, with malicious purpose, in bad faith, or in a wanton or
reckless manner.
Thus, CO Smith is entitled to civil immunity
pursuant to R.C. 9.86 and 2743.02(F) and 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.
{¶ 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:
Fred Gladden, #A377-108
Grafton Correctional Institution
2500 S. Avon Belden Road
Grafton, Ohio 44044
Plaintiff, Pro se
Lisa M. Eschbacher
Assistant Attorney General
150 East Gay Street, 23rd Floor
Columbus, Ohio 43215-3130
Attorneys for Defendant
Emily A. Smith
Assistant Attorney General
Executive Agencies
30 East Broad Street, 26th Floor
Columbus, Ohio 43215-3006
Case No. 2003-12191
LM/cmd
Filed December 20, 2004
To S.C. reporter January 11, 2005
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MAGISTRATE DECISION
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