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

[Cite as Vickers v. Ohio Dept. of Rehab. & Corr., 2018-Ohio-3125.]

KATIE VICKERS, etc. Case No. 2017-00654JD

Plaintiff Judge Patrick M. McGrath

Magistrate Robert Van Schoyck

v.

DECISION

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION

Defendant

{¶1} On March 23, 2018, defendant filed a motion for summary judgment

pursuant to Civ.R. 56(B). Plaintiff filed a memorandum in opposition on April 17, 2018.

On April 19, 2018, defendant filed a motion to strike plaintiff’s memorandum as untimely

under L.C.C.R. 4(C). The motion for summary judgment is now before the court for a

non-oral hearing pursuant to L.C.C.R. 4(D).

{¶2} Civ.R. 56(C) states, in part, as follows:

{¶3} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. No evidence or stipulation may be considered except as

stated in this rule. A summary judgment shall not be rendered unless it appears from

the evidence or stipulation, and only from the evidence or stipulation, that reasonable

minds can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being entitled to

have the evidence or stipulation construed most strongly in the party’s favor.” See also

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean

United, Inc., 50 Ohio St.2d 317 (1977).

Case No. 2017-00654JD -2- DECISION

{¶4} Plaintiff, individually and as the representative of the estate of James

Oglesby, brings this action for wrongful death and survivorship. As set forth in the

complaint, Oglesby was at all times relevant an inmate in the custody and control of

defendant at the Toledo Correctional Institution (ToCI). Plaintiff alleges that on August

18, 2013, Oglesby and other inmates were in an outdoor area of the ToCI compound

during a recreation period when fellow inmates Shawn Daviduk and Ronald Shaffer,

who were “wielding baseball bats,” attacked Oglesby. Corrections Officer John Searle

was allegedly monitoring the outdoor recreation area at the time and learned of the

attack, but proceeded indoors “away from the attack” to summon assistance from other

officers, including Corrections Officer Christina Hernandez, who had been monitoring

the indoor recreation area. According to the complaint, Hernandez responded to

Searle’s call for assistance but “[n]o direct aid was rendered to Oglesby until the attack

ceased.” It is undisputed that Oglesby was transported to a local hospital where he died

three days later, on August 21, 2013.

{¶5} Plaintiff claims that Oglesby’s injuries and death “were a direct result of the

failure of Defendants providing dangerous weapons without supervision to inmates who

assaulted the decedent.” More specifically, plaintiff claims that defendant was negligent

or grossly negligent in providing bats to inmates, failing to “adequately screen the

inmates” who had access to the bats, and failing to properly supervise inmates using

the bats, and plaintiff also claims that defendant was negligent in its hiring, training, and

supervision of Corrections Officers Searle and Hernandez.

{¶6} “To establish negligence, a plaintiff must show the existence of a duty, a

breach of that duty, and injury resulting proximately therefrom.” Taylor v. Ohio Dept. of

Rehab. & Corr., 10th Dist. Franklin No. 11AP-1156, 2012-Ohio-4792, ¶ 15. “In the

context of a custodial relationship between the state and its prisoners, the state owes a

common-law duty of reasonable care and protection from unreasonable risks.” Jenkins

v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-787, 2013-Ohio-5106, ¶

Case No. 2017-00654JD -3- DECISION

8. “This rule, however, does not make the state an insurer of inmates safety.” Doss v.

Dept. of Rehab. & Corr., 10th Dist. Franklin No. 99AP-661, 2000 Ohio App. LEXIS 1254

(Mar. 28, 2000), citing Williams v. S. Ohio Corr. Facility, 67 Ohio App.3d 517, 526 (10th

Dist.1990). “‘Reasonable care is that degree of caution and foresight an ordinarily

prudent person would employ in similar circumstances.’” Literal v. Dept. of Rehab. &

Corr., 2016-Ohio-8536, 79 N.E.3d 1267, ¶ 15, quoting McElfresh v. Ohio Dept. of

Rehab. & Corr., 10th Dist. Franklin No. 04AP-177, 2004-Ohio-5545, ¶ 16.

{¶7} In its motion for summary judgment, defendant argues, in part, that under

the doctrine of discretionary immunity, it is immune from liability for the claims that

pertain to “its decisions relating to screening its inmates, providing recreation items to

inmates, and inmate supervision.”

{¶8} “The state of Ohio has consented to ‘have its liability determined * * * in

accordance with the same rules of law applicable to suits between private parties.’”

Wassenaar v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 10AP-395, 2010-

Ohio-6125, ¶ 15, quoting R.C. 2743.02(A)(1). “‘The language in R.C. 2743.02 that “the

state” shall “have its liability determined * * * in accordance with the same rules of law

applicable to suits between private parties * * *” means that the state cannot be sued for

its legislative or judicial functions or the exercise of an executive or planning function

involving the making of a basic policy decision which is characterized by the exercise of

a high degree of official judgment or discretion. However, once the decision has been

made to engage in a certain activity or function, the state may be held liable, in the

same manner as private parties, for the negligence of the actions of its employees and

agents in the performance of [that activity or function].’” Wallace v. Ohio Dept. of

Commerce, 96 Ohio St.3d 266, 773 N.E.2d 1018, 2002-Ohio-4210, ¶ 35, quoting

Reynolds v. State, Div. of Parole & Community Servs., 14 Ohio St.3d 68, 471 N.E.2d

776 (1984), paragraph one of the syllabus. This doctrine is “commonly referred to as

Case No. 2017-00654JD -4- DECISION

sovereign or discretionary immunity * * *.” Bradley v. Ohio Dept. of Rehab. & Corr., 10th

Dist. Franklin No. 07AP-506, 2007-Ohio-7150, ¶ 17.

{¶9} “‘Prison officials are the acknowledged experts in the placement and

management of their prisoners.’” Watson v. Ohio Dept. of Rehab. & Corr., 10th Dist.

Franklin No. 11AP-606, 2012-Ohio-1017, ¶ 28, quoting Kordelewski v. Ohio Dept. of

Rehab. & Corr., 10th Dist. Franklin No. 00AP-1109, 2001 Ohio App. LEXIS 2730

(June 21, 2001). “[C]ourts have provided prison administrators ‘wide-ranging deference

in the adoption and execution of policies and practices that in their judgment are needed

to preserve internal order and discipline and to maintain institutional security.’”

Humphrey v. Lane, 89 Ohio St.3d 62, 69, 728 N.E.2d 1039 (2000), quoting Bell v.

Wolfish, 441 U.S. 520, 547 (1979); see also Brown v. Plata, 563 U.S. 493, 511 (2011)

(“Courts must be sensitive to the State’s interest in punishment, deterrence, and

rehabilitation, as well as the need for deference to experienced and expert prison

administrators faced with the difficult and dangerous task of housing large numbers of

convicted criminals.”). “[E]ach institution encounters health, safety, and security

concerns unique to its specific population. Accordingly, case law has consistently

recognized that prison officials should be granted deference in implementing rules

addressing those unique situations.” Briscoe v. Ohio Dept. of Rehab. & Corr., 10th Dist.

Franklin No. 02AP-1109, 2003-Ohio-3533, ¶ 16.

{¶10} Under the discretionary immunity doctrine, “ODRC is generally immune

from tort liability for decisions related to policies and procedures.” Scott v. Ohio Dept. of

Rehab. & Corr., 2013-Ohio-4383, 999 N.E.2d 231, ¶ 24 (10th Dist.). The Tenth District

Court of Appeals has held that “‘decisions relating to the allocation and location of

correctional staff concern prison security and administration and, as such, are executive

functions that involve a high degree of official discretion.’” McDougald v. Ohio Dept. of

Rehab. & Corr., 10th Dist. Franklin No. 17AP-776, 2018-Ohio-2315, ¶ 15, quoting

Hughes v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 09AP-1052, 2010-Ohio-

Case No. 2017-00654JD -5- DECISION

4736, ¶ 18. Similarly, decisions relating to an inmate’s classification or security status

concern prison security and administration and are executive functions that involve a

high degree of official discretion. Deavors v. Ohio Dept. of Rehab. & Corr., 10th Dist.

Franklin No. 98AP-1105, 1999 Ohio App. LEXIS 2338 (May 20, 1999). It has also been

held that discretionary immunity applied in a case where defendant’s employees

followed institutional policy on medical trash disposal, including inmate participation in

the disposal of trash, and there was no allegation of specific negligence on the part of

any prison employee. Scott at ¶ 25. “In other words, when adopting a policy or

procedure to ‘preserve internal order and maintain institutional security’ or by acting in

accordance with such a policy or procedure, ODRC (as a division of the sovereign)

enjoys immunity.” Frash v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-360, 59 N.E.3d

566, ¶ 23 (10th Dist.).

{¶11} In support of its motion, defendant submitted an affidavit from Gary Parker,

who avers that he served as the Major at ToCI from 2010 to 2014. In that role, Parker

states, he was responsible for the overall security operations at ToCI and was familiar

with institutional security policies. As Parker explains, ToCI policy permitted Level 3

inmates to participate at specified times in indoor and outdoor recreational activity,

including softball, and Oglesby, Daviduk, and Shaffer were all Level 3 inmates who

were permitted to participate in softball and other recreational activities on August 18,

2013. Parker states that his job responsibilities included determining the appropriate

level of correctional officer staffing, which included having one officer monitor indoor

recreational activity and having one officer monitor outdoor recreational activity. Parker

further states that it was acceptable under prison policy for one corrections officer to

monitor over 100 inmates during recreation. Parker also states that inmates going to

the recreation area were screened with a metal detector. By Parker’s testimony, he was

not aware of an inmate ever using a bat to assault anyone prior to this incident.

Case No. 2017-00654JD -6- DECISION

{¶12} Defendant also submitted an affidavit from Meredith Rinna, who avers that

during the relevant time period she served as the Unit Manager Chief at ToCI, in which

capacity she was responsible for the overall rehabilitative efforts for the inmates. Rinna

states that she is familiar with defendant’s policies regarding inmate classifications and

that she reviewed the inmate files of Daviduk and Shaffer. According to Rinna, Daviduk

and Shaffer were properly classified as Level 3 inmates at ToCI.

{¶13} Lastly, defendant submitted an affidavit from Corrections Officer John

Searle, who states that he was one of two officers monitoring the recreational activity of

inmates during the first shift on August 18, 2013. Searle states that it was the policy at

ToCI that Level 3 inmates were permitted to participate in indoor and outdoor

recreational activity at specified times. Searle relates that outdoor recreational activities

available to inmates included softball, among other things, and to that end inmates were

issued softballs, mitts, and two softball bats on August 18, 2013. According to Searle,

he did not see Daviduk and Shaffer attack plaintiff, nor did he have any knowledge that

they would do so. Rather, Searle explains that while monitoring the yard around 2:00

p.m. he observed an inmate, Oglesby, lying face down on the ground, which prompted

him to walk toward Oglesby and call out to get his attention. Searle states that when

Oglesby did not respond, he ran toward Oglesby and saw that he had been badly

injured. As Searle avers, he immediately radioed for assistance and other officers and

medical staff arrived quickly and attended to Oglesby. Searle avers that he later

learned that Daviduk and Shaffer, whom he states were Level 3 inmates, had assaulted

Oglesby with a softball bat. Searle recounts that he had been stationed in the

recreational area for more than six months leading up to the incident and had no

knowledge of inmates using a bat to assault anyone.

{¶14} In opposing defendant’s motion, plaintiff submitted the deposition testimony

of Corrections Officer Searle, taken in connection with a previous lawsuit that plaintiff

filed in federal court. Searle testified therein that he has worked as a corrections officer

Case No. 2017-00654JD -7- DECISION

since 2000, that he attended defendant’s training academy at that time, and that he

receives 40 hours of generalized training annually. Describing the supervision of

inmates in the recreation area, Searle stated that one corrections officer monitored the

indoor area while another monitored the outdoor area; another officer in a perimeter

patrol vehicle periodically monitored the outdoor area from beyond the fence; and, there

were multiple security cameras. Searle related that he and the officer with whom he

was partnered would periodically alternate between the indoor and outdoor posts during

their shifts, and they would communicate by radio and in person at the door. Searle

approximated that on any given day there would be anywhere from 100 to 300 inmates

at a time in the indoor and outdoor recreation areas combined. The outdoor recreation

area included a workout area, a track, three basketball courts, a handball court, and a

softball field, Searle testified. Searle stated that the equipment available for issue to

inmates for outdoor recreation included basketballs, medicine balls, soccer balls,

volleyballs, ab wheels, and jump ropes, as well as two softball bats, mitts, and softballs.

Although there were more softball bats locked away in storage, Searle stated,

institutional policy specified that no more than two could be issued. Searle, who related

that he inventoried the recreation equipment daily, stated that ToCI policy permitted the

use of softball equipment only by Level 3 inmates, such that the equipment was not

available to ToCI’s higher-security Level 4 inmates whose recreation periods were

separate from the Level 3 inmates.

{¶15} The yard was busy at the time of the incident, Searle recalled, and around

2:00 p.m. he was standing outdoors near the door to the indoor recreation area. Searle

testified that he was closely monitoring a basketball game that had become “heated,” as

he was concerned that a fight might break out. As in his affidavit, Searle testified that

he then noticed Oglesby lying face down near the workout area, so he walked in that

direction, and, upon realizing that Oglesby was in distress, he radioed for assistance.

Searle stated that he did not see a bat or know what had happened to Oglesby, other

Case No. 2017-00654JD -8- DECISION

than some trauma. Contrary to the allegations of the complaint, Searle stated that he

never went into the building to summon assistance and instead relied upon his radio

and stayed near Oglesby. Searle explained that it seemed any medical attention he

might attempt to provide could do more harm than good, so he focused on securing the

area to prevent any further harm to Oglesby or anyone else. Searle testified that his

partner that day, Corrections Officer Hernandez, had been monitoring the indoor

recreation area and responded to the scene, as did other officers, supervisory staff, and

medical staff, and Oglesby was placed on a backboard and transported away. Searle

stated that he was not familiar with either of the inmates, Daviduk or Shaffer, whom he

later learned to be the assailants, and had never spoken to either of them.

{¶16} Upon review, there is no dispute that the evidence presented by the parties

demonstrates that prison authorities had adopted basic policies and procedures relative

to the security and management of inmate recreation at ToCI. As a matter of policy,

Level 3 inmates at ToCI such as Oglesby, Daviduk, and Shaffer were permitted to

participate in recreation at specified times, designated by housing unit, and were

screened with a metal detector upon entering the recreation area. It was also

defendant’s policy at ToCI to maintain a set inventory of certain recreational equipment

available for issue to inmates, including a maximum of two softball bats available for

Level 3 inmates, but the policy prohibited bats from being issued to the higher-security

Level 4 inmates who recreated separately. Level 3 inmates using prison-issued

recreational equipment or otherwise partaking in recreation were to be supervised by

one corrections officer posted outdoors and another corrections officer posted indoors;

additionally, there were security cameras in the recreation area and another officer

conducted surveillance of the outdoor recreation area periodically from a patrol vehicle

beyond the fence. The ratio of inmates to the officers posted in the recreation area was

acceptable under institutional policy, according to Major Parker, the official responsible

for all security operations at ToCI at that time.

Case No. 2017-00654JD -9- DECISION

{¶17} Although it is alleged in the complaint that defendant failed to “adequately

screen the inmates” who had access to the softball bats, the undisputed evidence

demonstrates that Daviduk and Shaffer were properly classified at the same security

level as Oglesby and were permitted to have such access under prison rules. And,

there is no evidence to suggest that defendant had notice that Daviduk and Shaffer

would attack Oglesby, with a softball bat or otherwise. It is further alleged in the

complaint that defendant failed to properly supervise inmates’ use of softball bats, but

again the undisputed evidence demonstrates that the outdoor recreation area was being

monitored in accordance with institutional policy. Basic policy decisions such as these

are the kind for which defendant is immune from tort liability.

{¶18} Even if the court were to consider plaintiff’s untimely-filed memorandum

opposing summary judgment, which, as previously stated, defendant moved to strike,

plaintiff does not point to any evidence that defendant’s employees were negligent in

the way that they carried out such policies; indeed, the uncontroverted evidence shows

that defendant’s employees acted in accordance with institutional policies and

procedures in all material respects. Rather, plaintiff expressly states in her

memorandum that it is the policies themselves which are being challenged. Although

defendant is generally entitled to immunity from tort liability for adopting such policies,

plaintiff argues that defendant is not conferred with immunity in this case because,

according to plaintiff, the adoption of policies that permitted one corrections officer to

monitor 100 or more inmates in the outdoor recreation area, including their use of two

softball bats, amounted to “gross negligence.” Plaintiff “agrees that if [she] were

asserting a claim of simple negligence, the claim against DRC would likely fail”, but

plaintiff argues that a claim of gross negligence is not subject to the discretionary

immunity defense. As authority, plaintiff refers to the immunity provisions set forth in

R.C. Chapter 2744, which pertain to political subdivisions. The discretionary immunity

defense raised by defendant, however, arises from the language contained in R.C.

Case No. 2017-00654JD -10- DECISION

2743.02 and pertains to the immunity of the state. Where applicable, discretionary

immunity under R.C. 2743.02 precludes “tort liability” in general against the state. Scott,

2013-Ohio-4383, 999 N.E.2d 231, at ¶ 24; Wassenaar, 2010-Ohio-6125, at ¶ 16. The

doctrine thus precludes a claim of negligence or gross negligence that is based upon

the performance of an executive act “characterized by * * * a high degree of official

judgment or discretion.” Von Hoene v. State, Dept. of Rehab. & Corr., 20 Ohio App.3d

363, 364, 486 N.E.2d 868 (1st Dist.1985), quoting Reynolds, 14 Ohio St.3d at

paragraph one of the syllabus.

{¶19} In sum, reasonable minds can only conclude that ToCI had policies in

place permitting the Level 3 inmates involved in this case to participate in outdoor

recreation, including softball, under the supervision of one corrections officer posted in

the outdoor recreation area, in addition to any surveillance by the perimeter patrol

officer and security cameras. Plaintiff challenges the controlling policies as having been

adopted in a negligent or grossly negligent manner, but as a matter of law defendant is

immune from tort liability for adopting and acting in accordance with these policies

concerning prison security and administration. There is no genuine issue of material

fact to dispute that defendant’s employees complied with the applicable policies at all

times relevant. Summary judgment shall be entered in favor of defendant accordingly.

{¶20} Regarding the claims that defendant was negligent in its hiring, training,

and supervision of Corrections Officers Searle and Hernandez, to prove these claims “a

plaintiff must establish: (1) the existence of an employment relationship, (2) the

employee’s incompetence, (3) the employer’s actual or constructive knowledge of the

incompetence, (4) the employee’s act causing the plaintiff’s injuries, and (5) the

employer’s negligence in hiring, retaining, or supervising the employee as the proximate

cause of the plaintiff’s injuries.” Ball v. Stark, 10th Dist. Franklin No. 11AP-177, 2013-

Ohio-106, ¶ 76. “An underlying requirement in actions for negligent hiring, supervision,

and training is that the employee is individually liable for a tort or guilty of a wrong

Case No. 2017-00654JD -11- DECISION

against a third party, who seeks recovery against the employer.” Ford v. Brooks, 10th

Dist. Franklin No. 11AP-664, 2012-Ohio-943, ¶ 22.

{¶21} While plaintiff alleges in the complaint that “[a]fter learning of the attack,

Corrections Officer Searle proceeded into the building, away from the attack,” there is

no evidence whatsoever to substantiate this allegation. To the contrary, the evidence

presented by both parties establishes that Searle did not observe an attack and that

when he saw Oglesby lying on the ground he proceeded toward Oglesby and reacted

appropriately, promptly summoning a response from both medical and security staff.

There is no evidence to demonstrate that Searle saw an attack, much less that he acted

wrongfully upon seeing an attack. With respect to Corrections Officer Hernandez,

Searle’s affidavit and deposition testimony demonstrate that she was monitoring the

indoor recreation area at the time when Searle observed Oglesby and that when Searle

called over the radio for assistance, she responded accordingly.

{¶22} In short, the evidence submitted by the parties does not substantiate any

underlying tort or wrong on the part of Searle or Hernandez. In the absence of evidence

of some incompetence by Searle or Hernandez, reasonable minds must conclude that

plaintiff cannot prove the elements of a claim for negligent hiring, training, or

supervision.

{¶23} While the court is not without sympathy for plaintiff’s loss, based upon the

foregoing the court concludes that there are no genuine issues of material fact and that

defendant is entitled to judgment as a matter of law. Accordingly, defendant’s motion

for summary judgment shall be granted and judgment shall be rendered in favor of

defendant.

PATRICK M. MCGRATH

Judge

[Cite as Vickers v. Ohio Dept. of Rehab. & Corr., 2018-Ohio-3125.]

KATIE VICKERS, etc. Case No. 2017-00654JD

Plaintiff Judge Patrick M. McGrath

Magistrate Robert Van Schoyck

v.

JUDGMENT ENTRY

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION

Defendant

{¶24} A non-oral hearing was conducted in this case upon defendant’s motion for

summary judgment. For the reasons set forth in the decision filed concurrently

herewith, the court concludes that there are no genuine issues of material fact and that

defendant is entitled to judgment as a matter of law. As a result, defendant’s motion for

summary judgment is GRANTED and judgment is hereby rendered in favor of

defendant. Defendant’s motion to strike plaintiff’s memorandum opposing summary

judgment is DENIED as moot. All previously scheduled events are VACATED. Court

costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this

judgment and its date of entry upon the journal.

PATRICK M. MCGRATH

Judge

Filed July 30, 2018

Sent to S.C. Reporter 8/7/18