Opinion

Dhalow v. Dept. of Rehab. & Corr.

  • 2010 Ohio 3749
Court
Ohio Court of Claims
Filed
Jul 22, 2010
Status
Published
On the bench
Rambo
Cited by
0 cases

The opinion

[Cite as Dhalow v. Dept. of Rehab. & Corr., 2010-Ohio-3749.]

Court of Claims of Ohio

The Ohio Judicial Center

65 South Front Street, Third Floor

Columbus, OH 43215

614.387.9800 or 1.800.824.8263

www.cco.state.oh.us

ABDURAHMAN MOHAMED DHALOW

Plaintiff

v.

DEPARTMENT OF REHABILITATION AND CORRECTION

Defendant

Case No. 2009-05137

Judge Alan C. Travis

Magistrate Matthew C. Rambo

MAGISTRATE DECISION

{¶ 1} Plaintiff brought this action alleging that an employee of defendant

assaulted him. The issues of liability and damages were bifurcated and the case

proceeded to trial on the issue of liability.

{¶ 2} As an initial matter, on April 23, 2010, defendant filed a motion to quash

the subpoena issued to Larry Greene. On April 26, 2010, defendant filed an affidavit

from Greene in support of the motion, wherein he states that he received the subpoena

on April 26, 2010, one day before trial, but that he was scheduled to attend a mandatory

training seminar on the day of trial. Upon review, defendant’s motion is GRANTED and

the subpoena issued to Larry Greene is hereby quashed.

{¶ 3} At all times relevant, plaintiff was an inmate in the custody and control of

defendant at the Southern Ohio Correctional Facility (SOCF) pursuant to R.C. 5120.16.

Plaintiff testified that on February 17, 2009, a “commissary day,” he was permitted to

purchase food items from the SOCF commissary. According to plaintiff, after he

purchased several items from the commissary, an inmate in the cell above his lowered

Case No. 2009-05137 -2- MAGISTRATE DECISION

a “line,” consisting of a sock tied to the end of a string, so that the two could exchange

and share commissary items. Plaintiff admitted that such a line is considered

contraband and not permitted under defendant’s rules. Plaintiff stated that during the

transaction, corrections officer (CO) Philip Markins walked by his cell, saw the line, and

“snatched” it before the other inmate had a chance to pull it back. Plaintiff testified that

as a result of Markins’ actions, he “disrespected” Markins by calling him “every name I

could think of.” According to plaintiff, Markins returned to the area shortly thereafter and

sprayed him with two cans of chemical mace. Plaintiff asserts that Markins’ actions

were unwarranted and excessive.

{¶ 4} Plaintiff further testified that after the incident Markins wrote a conduct

report wherein he alleged that after he passed plaintiff’s cell, he heard plaintiff call for

“help”; that when he returned to plaintiff’s cell, plaintiff attempted to throw a cup of

unknown liquid on him; that he sprayed plaintiff with a short burst of mace; that plaintiff

again tried to throw the liquid at him; that he administered another short burst of mace;

and that plaintiff then dropped the cup. (Plaintiff’s Exhibit 2.) The Rules Infraction

Board (RIB) subsequently found plaintiff guilty of violating institutional rules by

attempting to throw an unknown substance on Markins. However, on appeal, the

warden’s assistant, Larry Greene, overturned the RIB decision. (Plaintiff’s Exhibit 1.) In

his written decision, Greene found that the video recording of the incident showed

Markins spray plaintiff without provocation; that the video did not show plaintiff

attempting to throw liquid on Markins. Greene also states that the RIB withheld the

video from plaintiff even though it was used by defendant as evidence against him.

{¶ 5} A review of the video shows the “line” described by plaintiff hanging in

front of his cell; a CO picking up the line and walking away from plaintiff’s cell; the CO

returning to plaintiff’s cell less than 10 seconds later; the CO raising his arm and

pointing it into plaintiff’s cell twice; and the CO leaving the area. From beginning to end

the incident lasted approximately 30 seconds. Neither plaintiff nor the interior of his cell

Case No. 2009-05137 -3- MAGISTRATE DECISION

can be observed on the video and the court is unable to precisely determine what

occurred. (Defendant’s Exhibit L.)

{¶ 6} Markins testified that after he picked up the line and walked away from

plaintiff’s cell, he heard plaintiff “holler” for help. According to Markins, yelling for help is

a well-known tactic that inmates use to get COs to come to the front of their cells, but

that he nevertheless responded out of concern that plaintiff may have been harming

himself. Markins testified that when he arrived in front of plaintiff’s cell, plaintiff was

holding a cup containing an unknown liquid and stated “that’s my line bitch,” “eat this

shit bitch.” Markins stated that he then administered “reactive force” and sprayed

plaintiff with mace to stop him from throwing the unknown liquid. According to Markins,

plaintiff made a second attempt to throw the liquid and he administered a second burst

of mace whereupon plaintiff dropped the cup and Markins left the range.

{¶ 7} Markins further testified that after he left the range, he notified his

supervisor of the incident and that plaintiff was subsequently removed from his cell and

taken to a segregation cell. Markins stated that the medical department was notified of

the incident and that a member of the medical staff examined plaintiff while he was in

segregation. (Defendant’s Exhibit J.) Markins testified that he then filed both a conduct

report and an incident report, and that he also filled out a use-of-force cover sheet.

(Plaintiff’s Exhibit 2, Defendant’s Exhibits D, E.) According to Markins, a use-of-force

committee reviewed the incident and found that he used appropriate force during the

incident and that the deputy warden of operations concurred with that finding.

(Defendant’s Exhibit F.)

{¶ 8} Linnea Mahlman is the Institutional Inspector for SOCF. Mahlman testified

that her duties include reviewing inmate complaints and grievances. She stated that

plaintiff filed a grievance following the incident and that she denied the grievance

because the incident was pending before both the RIB and the use-of-force committee.

According to Mahlman, the grievance process, the RIB, and the use-of-force committee

are separate processes within the institution. However, she also stated that she

Case No. 2009-05137 -4- MAGISTRATE DECISION

reviewed the video recording and conduct reports and that it was her opinion that

Markins acted properly.

{¶ 9} The Ohio Administrative Code sets forth the circumstances under which

force may be lawfully utilized by prison officials and employees in controlling inmates.

Ohio Adm.Code 5120-9-01(C) provides, in relevant part:

{¶ 10} “(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:

{¶ 11} “(a) Self-defense from physical attack or threat of physical harm;

{¶ 12} “(b) Defense of another from physical attack or threat of physical attack;

{¶ 13} “(c) When necessary to control or subdue an inmate who refuses to obey

prison rules, regulations or orders;

{¶ 14} “(d) When necessary to stop an inmate from destroying property or

engaging in a riot or other disturbance;

{¶ 15} “(e) Prevention of an escape or apprehension of an escapee; or

{¶ 16} “(f) Controlling or subduing an inmate in order to stop or prevent self-

inflicted harm.”

{¶ 17} The court has recognized that “corrections officers have a privilege to use

force upon inmates under certain conditions. * * * However, such force must be used in

the performance of official duties and cannot exceed the amount of force which is

reasonably necessary under the circumstances. * * * 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. (Internal citations

omitted.)

{¶ 18} Based upon the evidence adduced at trial, the court finds that Markins

was more credible than plaintiff. As a result, the court finds that Markins acted in self

Case No. 2009-05137 -5- MAGISTRATE DECISION

defense when he administered chemical mace against plaintiff and that such force was

not excessive. Accordingly, judgment is recommended in favor of defendant.

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).

_____________________________________

MATTHEW C. RAMBO

Magistrate

cc:

Amy S. Brown Abdurahman Mohamed Dhalow, #527-094

Kristin S. Boggs P.O. Box 45699

Assistant Attorneys General Lucasville, Ohio 45699

150 East Gay Street, 18th Floor

Columbus, Ohio 43215-3130

MR/cmd

Filed July 22, 2010

To S.C. reporter August 11, 2010

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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