Phillips v. Ohio Dept. of Rehab. & Corr.

[Cite as Phillips v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-7061.]

JULIUS PHILLIPS Case No. 2014-00644

Plaintiff Magistrate Robert Van Schoyck

v. DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION

Defendant

{¶1} Plaintiff, formerly an inmate in the custody and control of defendant at the

Marion Correctional Institution (MCI), brought this action alleging that on August 2,

2013, Corrections Officer John Sellers negligently inflicted injuries upon him through the

excessive use of force. The issues of liability and damages were bifurcated and the

case proceeded to trial on the issue of liability.

{¶2} At trial, plaintiff testified that on the afternoon of August 2, 2013, he went in

the bathroom of his dormitory at MCI and confronted another inmate who had been

stealing from him. According to plaintiff, an altercation ensued in which the other inmate

and an associate fought plaintiff and eventually struck him several times in the chest

and head with a broomstick. Plaintiff characterized his own actions during the

altercation as self-defense. Plaintiff stated that after the point at which he suffered a

particularly severe blow from the broomstick to the back of the head, he was “out of it”

and there is very little that he can recall after that occurred.

{¶3} Plaintiff stated that he remembered there being about four or five inmates in

the bathroom when the fight started, but he did not recall seeing the corrections officers

who responded to the scene or being in a struggle with Corrections Officer Sellers,

although he does recall being sprayed with pepper spray at some point. When shown

medical records indicating that he was seen that afternoon at the MCI infirmary and

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later at Marion General Hospital, plaintiff testified that he has no recollection of being at

either place. (Plaintiff’s Exhibits 4, 5.) Plaintiff stated that his memory returned

sometime later when he was at the Ohio State University Medical Center (OSUMC),

where he remained for several days. Plaintiff testified that he was diagnosed with

fractures of multiple facial bones, among other injuries. Plaintiff further testified that he

spent two weeks at defendant’s Franklin Medical Center after he left OSUMC.

{¶4} Burk Jordan, who testified that he has been an inmate in defendant’s

custody for 19 years, stated that he lived in the same dormitory as plaintiff and that he

witnessed part of the incident. Jordan recounted that upon hearing a commotion, he

went in the bathroom to see what was going on, and by that time Corrections Officer

Sellers had just entered the bathroom. Jordan stated that he also saw Corrections

Officer Tashico White standing outside the bathroom.

{¶5} Jordan testified that Sellers told plaintiff and the other two inmates to stop

and activated his “man down” alarm. According to Jordan, plaintiff stood with his hands

against the wall, but when Sellers subsequently gave plaintiff at least two orders to “cuff

up,” or put his hands behind his back so that he could be handcuffed, plaintiff failed to

comply and instead kept his hands on the wall and his back to Sellers. Jordan stated

that he even told plaintiff himself to cuff up, to no avail. Jordan recalled that the other

two inmates involved in the fight were against the wall at this point. Jordan testified that

plaintiff seemed “discombobulated,” as well as “mad” or “enraged.” Jordan also testified

that there did not appear to be anything physically wrong with plaintiff at that time and

he saw no blood on plaintiff, but that he did not know what had transpired during the

preceding fight.

{¶6} As described by Jordan, after about ten seconds Sellers grabbed plaintiff

around the waist and threw him to the ground. Jordan related that he had not seen

plaintiff wrestle or otherwise put up any resistance to Sellers, and he did not know

whether plaintiff had said anything to Sellers. Jordan testified that the side of plaintiff’s

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face struck the floor when he was taken to the ground, and blood ran out of his nose

and mouth onto the floor at that spot. Lieutenant Harper and another corrections officer

ran into the bathroom at that point, Jordan stated. Jordan could not recall what Harper

did, but he did have some recollection that pepper spray was administered.

{¶7} Tashico White testified that she was employed with defendant as a

corrections officer posted in the housing unit known as “5 Dorm” at MCI from June 2013

until August 2015. White explained that she is now employed with the United States

Postal Service.

{¶8} As White testified, there were about 115 inmates living in the dormitory and

she was the only officer posted there during her shift. White stated that she and Sellers

had been monitoring a hallway just outside the dormitory, and when she came back into

the dormitory she heard a commotion in the bathroom. White recalled looking into the

bathroom and seeing plaintiff collide with a wall, and from what she could see and hear

it appeared that a fight was in progress. White testified that she yelled across the

hallway to Sellers that there was a fight, and Sellers responded by immediately running

from the hallway into the bathroom.

{¶9} White stated that she activated her man down alarm and stood by the door

for about one minute, waiting for other officers to respond, and during this time she did

not see what was going on inside the bathroom. White remembered going in the

bathroom just before Lieutenant Harper, who responded within about 60 to 90 seconds,

she said. According to White, when she went in the bathroom plaintiff was standing

near the wash bay, he had blood all over his face, and he had his hands over his eyes.

White testified that Sellers placed plaintiff against the wall, gave plaintiff multiple orders

to cuff up, and tried to get plaintiff’s arms behind his back, but plaintiff repeatedly said

that he could not see and he kept his hands over his eyes. White related that around

the same time that Harper entered the bathroom, Sellers grabbed plaintiff and took him

to the ground, and at that time Harper asked her to make way for responding officers.

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White stated that she then exited the bathroom and monitored the dormitory. White

recalled seeing plaintiff, still bloody, being escorted out of the bathroom and into a

wheelchair. White authenticated an Incident Report that she prepared afterward.

(Defendant’s Exhibit A.)

{¶10} John Sellers testified that he was employed with defendant as a corrections

officer from 2009 to 2015, and that he worked at two other prisons before starting at

MCI one year before this incident. Sellers related that he now works for Abbott

Nutrition. Sellers testified that when he worked for defendant, he received annual

training on the use of force. Sellers also testified that defendant has a Use of Force

Policy, a copy of which he authenticated. (Defendant’s Exhibit J.) Sellers testified

regarding the hierarchy of force that may be used by corrections officers under

defendant’s training and policy, depending on the circumstances, and he stated that one

of the grounds upon which an officer may use force is when an inmate fails to comply

with orders.

{¶11} Sellers testified that on the day of the incident, he was posted in the

housing unit known as “4 Dorm,” across the hall from 5 Dorm. Sellers explained that he

heard White call out that there was a fight in progress and that she needed assistance,

so he responded to the scene. From Sellers’ recollection, when he entered the

bathroom plaintiff’s fists were clenched and there was blood on plaintiff’s shirt, although

he did not recall seeing blood on plaintiff’s face. Sellers stated that he identified himself

and gave plaintiff several direct orders to turn around and present his hands to be

cuffed, but plaintiff responded with obscenities and stated that he would not comply,

plaintiff stood in a boxing stance with one foot planted behind and one in front, and it

looked like plaintiff might take a swing at him. Sellers, who stated that he was alone in

the bathroom with a number of inmates, testified that he feared for his own safety and

the safety of others and, in light of plaintiff’s refusal to comply with orders, he used an

escort technique that he had been trained on to grab plaintiff by the triceps of one arm

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and guide him to the wall. According to Sellers, at no time did plaintiff ever tell him that

he could not see.

{¶12} Sellers testified that he was not carrying pepper spray, and he did not see

anyone else use pepper spray during the incident. Sellers’ testimony was that after he

put plaintiff against the wall, plaintiff wrestled with him and tried to pull away, and

plaintiff continued to ignore his commands to cuff up. Sellers stated that, in order to

gain control of plaintiff he placed plaintiff on the ground by putting his hands on plaintiff’s

triceps and using his body weight to pull plaintiff down, but even after that plaintiff

continued to resist until additional officers arrived, whereupon he was able to put

handcuffs on plaintiff. As Sellers testified, plaintiff was then escorted to the infirmary,

which is the standard procedure when there has been a use of force.

{¶13} Sellers testified that he prepared an Incident Report afterward, and he also

prepared a Conduct Report charging plaintiff with violating administrative rules,

specifically Rule 20 (“Physical resistance to a direct order”) and Rule 21 (“Disobedience

of a direct order”). (Defendant’s Exhibits B, D.)

{¶14} Lieutenant Craig Harper testified that he has been employed with

defendant for 20 years and was promoted to his current rank in 2011. Harper explained

that he now works at the London Correctional Institution, but at the time relevant to this

case he worked at MCI. As a lieutenant, Harper stated, he works under the shift captain

to assist in the operation of the prison, and he supervises the corrections officers and

sergeants working under him. Harper testified that he regularly receives training on how

to interact with inmates, including training on the use of force, and he described the

varying applications and degrees of force comprising the use of force continuum which

defendant uses to train its employees. Harper authenticated a copy of defendant’s Use

of Force Policy. (Defendant’s Exhibit J.)

{¶15} Harper stated that he was alerted to the incident when an alarm was sent

out from the MCI control room. Harper recalled that he was in the captain’s office when

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that occurred, and he immediately ran to the scene. According to Harper, he looked

through a window as he approached the bathroom and saw plaintiff and Sellers

wrestling with one another while still standing, but by the time he got inside the

bathroom they were on the ground and plaintiff continued to wrestle, despite Sellers

giving orders to stop resisting. Harper testified that there were several other inmates in

the bathroom and the scene was somewhat chaotic, so he ordered the other inmates to

leave, and he testified that he announced to plaintiff who he was and he told plaintiff to

stop resisting. Plaintiff continued to struggle against Sellers, Harper stated, so he

administered a short burst of pepper spray toward plaintiff, lasting no more than one

second, and finally plaintiff stopped resisting. Harper testified that medical personnel

were requested for plaintiff, who had blood on his face, as it was standard policy to have

an inmate assessed following a use of force.

{¶16} Harper stated that he remained at the scene to make sure the dormitory

was secure, to gather information about what happened, and to make sure that no

responding officers were injured. Harper testified that he prepared an Incident Report

afterward. (Defendant’s Exhibit C.)

{¶17} “To recover on a negligence claim, a plaintiff must prove by a

preponderance of the evidence (1) that a defendant owed the plaintiff a duty, (2) that a

defendant breached that duty, and (3) that the breach of the duty proximately caused a

plaintiff’s injury.” Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 05AP-

357, 2006-Ohio-2531, ¶ 10. “Ohio law imposes a duty of reasonable care upon the

state to provide for its prisoners’ health, care, and well-being.” Ensman v. Ohio Dept. of

Rehab. & Corr., 10th Dist. Franklin No. 06AP-592, 2006-Ohio-6788, ¶ 5.

{¶18} In addition to stating a claim for negligence, allegations of unnecessary or

excessive force being used against an inmate may state a claim for battery. Brown v.

Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13AP-804, 2014-Ohio-1810, ¶ 13. “To

prove battery, the plaintiff must prove that the intentional contact by the defendant was

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harmful or offensive.” Miller v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.

12AP-12, 2012-Ohio-3382, ¶ 11. “A defendant may defeat a battery claim by

establishing a privilege or justification defense.” Brown at ¶ 13, citing Love v. Port

Clinton, 37 Ohio St.3d 98, 99 (1988).

{¶19} “The use of force is sometimes necessary to control inmates.” Jodrey v.

Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-477, 2013-Ohio-289, ¶ 17.

“Correctional officers considering the use of force must evaluate the need to use force

based on the circumstances as known and perceived at the time it is considered.”

Brown at ¶ 15, citing Ohio Adm.Code 5120-9-01(C). “[T]he precise degree of force

required to respond to a given situation requires an exercise of discretion by the

corrections officer.” Ensman at ¶ 23. “In Ohio Adm.Code 5120-9-01, the Ohio

Administrative Code sets forth the circumstances under which correctional officers are

authorized to use force against an inmate.” Id. at ¶ 6.

{¶20} Ohio Adm.Code 5120-9-01 provides, in pertinent part:

{¶21} “(C) Guidelines regarding the use of force. * * *

{¶22} “* * *

{¶23} “(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:

“(a) Self-defense from physical attack or threat of physical harm.

“(b) Defense of another from physical attack or threat of physical attack.

“(c) When necessary to control or subdue an inmate who refuses to obey prison

rules, regulations or orders.

“(d) When necessary to stop an inmate from destroying property or engaging in a

riot or other disturbance.

“(e) Prevention of an escape or apprehension of an escapee; or

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“(f) Controlling or subduing an inmate in order to stop or prevent self-inflicted

harm.”

{¶24} “Pursuant to Ohio Adm.Code 5120-9-01(C)(1)(a), correctional officers ‘may

use force only to the extent deemed necessary to control the situation.’ Additionally,

correctional officers ‘should attempt to use only the amount of force reasonably

necessary under the circumstances to control the situation and shall attempt to

minimize physical injury.’ Ohio Adm.Code 5120-9-01(C)(1)(b).” Brown at ¶ 16. Also

pertinent is Ohio Adm.Code 5120-9-01(B)(3), which defines “excessive force” as “an

application of force which, either by the type of force employed, or the extent to which

such force is employed, exceeds that force which reasonably appears to be necessary

under all the circumstances surrounding the incident.”

{¶25} Upon review of the evidence presented at trial, the magistrate finds as

follows. On August 2, 2013, plaintiff was an inmate assigned to the 5 Dorm dormitory at

MCI. Corrections Officer White was the only officer on duty in the dormitory during the

second shift that day. At approximately 4:30 p.m., White went to monitor the hallway

just outside the dormitory. At that time, plaintiff chose to enter the bathroom of the

dormitory and initiate a confrontation with another inmate whom plaintiff accused of

stealing. A two-on-one fight ensued in which the other inmate and his associate used a

broomstick as a weapon to inflict several severe blows to plaintiff’s head and upper

body.

{¶26} Upon reentering the dormitory, White discovered the fight and shouted out

to Corrections Officer Sellers, who was in the hallway, and she activated her man down

alarm. Sellers ran to the bathroom, while White stood by the door and waited for

responders to arrive. The fight ended when Sellers entered the bathroom, but plaintiff,

unlike the other two combatants, continued to act aggressively and failed to comply with

Sellers’ instructions. Indeed, plaintiff crudely told Sellers that he would not comply.

There were numerous inmates in the bathroom at this point, but Sellers, having been so

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close to the dormitory to begin with, was the only staff member on the scene. The

witnesses’ varying recollections demonstrate the chaotic nature of the scene.

{¶27} After plaintiff failed to comply with multiple orders to turn and face the wall,

Sellers grabbed plaintiff by the triceps and guided him to the wall. Plaintiff physically

resisted Sellers and would not comply with orders to put his hands behind his back to

be cuffed, even at the urging of inmate Jordan. Sellers grabbed plaintiff by the triceps

of each arm and pulled plaintiff to the ground, where plaintiff continued to struggle

against Sellers and resist being cuffed. Lieutenant Harper, the second staff member to

respond, entered the bathroom at this time and ordered plaintiff to stop resisting.

Plaintiff’s belligerence was such that he continued resisting, however, until Harper

administered a short burst of pepper spray. Plaintiff was thereupon handcuffed by

Sellers. Plaintiff was seen by MCI medical personnel and was later transported to a

local hospital for treatment.

{¶28} Sellers was justified and privileged to use force based upon plaintiff’s

refusals to comply with orders, combined with plaintiff’s threatening body language and

demeanor. Whether or not plaintiff was disoriented from being struck in the head with

the broomstick, he was conscious and remained on his feet, he made defiant

statements and reacted toward Sellers in a way that was reasonably perceived as

threatening by Sellers, who knew nothing about what transpired during the fight and

was alone with many inmates in an unstable environment. Furthermore, the degree of

force used by Sellers was not excessive and satisfied the duty of reasonable care.

Sellers’ first objective when entering the bathroom was to de-escalate the situation, and

by his presence and commands he stopped the fight. Sellers then initially used verbal

commands with plaintiff, and when that proved ineffective he used minimal force to

guide plaintiff to the wall. Even though Sellers again used verbal commands in an effort

to handcuff plaintiff, plaintiff continued to resist, and only then did Sellers progress to

placing plaintiff on the ground.

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{¶29} There was some argument at trial about plaintiff having blood in his eyes

and thus not being able to see Sellers, but even if that were true it is of little

significance, as Sellers announced who he was upon entering the bathroom, plaintiff

could hear Sellers’ orders, and it was not shown that any visual impairment from having

blood in his eyes would have prevented plaintiff from complying with Sellers’ orders.

{¶30} Although Sellers is the only MCI staff member identified in the complaint, to

the extent that the issues at trial also included the actions of Harper the magistrate

makes the finding that Harper was justified and privileged to use force, and that the

force used by Harper was not excessive and satisfied the duty of reasonable care.

When Harper arrived, the situation in the bathroom remained somewhat chaotic and

plaintiff was on the ground struggling with Sellers. Harper initially used verbal

commands to try to get plaintiff to stop resisting and submit to being handcuffed, and

only after plaintiff refused those orders did Harper administer a short burst of pepper

spray.

{¶31} Lastly, even if plaintiff had proven that Sellers was not justified or privileged

in his use of force, one can only speculate whether plaintiff suffered any distinct injury

as a result. Plaintiff was badly beaten in the head and upper body with a weapon by

two other inmates before Sellers arrived, and credible evidence to differentiate the

cause of his injuries is lacking. Moreover, from Sellers’ description, plaintiff was not

thrown to the ground as plaintiff claims. While inmate Jordan claimed that plaintiff was

slammed to the ground face-first, Sellers’ account was more persuasive.

{¶32} Based on the foregoing, the magistrate finds that plaintiff failed to prove his

claims by a preponderance of the evidence. Accordingly, judgment is recommended in

favor of defendant.

{¶33} 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

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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).

ROBERT VAN SCHOYCK

Magistrate

cc:

Richard F. Swope Amy S. Brown

6480 East Main Street, Suite 102 James P. Dinsmore

Reynoldsburg, Ohio 43068 Assistant Attorneys General

150 East Gay Street, 18th Floor

Columbus, Ohio 43215-3130

Filed August 16, 2016

Sent To S.C. Reporter 9/29/16