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

[Cite as Little v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-7016.]

TRAYVONE LITTLE Case No. 2019-00725JD

Plaintiff Magistrate Scott Sheets

v. DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION

Defendant

{¶1} Plaintiff Trayvone Little (plaintiff) is an inmate in defendant’s custody at the

Marion Correctional Institution (MCI). Plaintiff seeks money damages for alleged

injuries to his back and neck that he alleges were sustained when defendant’s

employee(s) used force to subdue him on April 1, 2019. The case proceeded to trial via

Zoom videoconference. In addition to plaintiff, corrections officer Rock Nissen, Nurse

Jonathan Lehman and inmate Robert Allen also testified. Two videos of the incident

were entered into evidence. For the following reasons, the magistrate finds that plaintiff

failed to prove his claims and recommends judgment in defendant’s favor.

Findings of Fact

{¶2} On April 19, 2019, plaintiff was incarcerated at Toledo Correctional

Institution. On this day, plaintiff approached the facility’s medical area in order to obtain

regularly scheduled treatment for multiple sclerosis. The medical area has two doors,

one for inmates and one for employees. The incident that day unfolded quickly.

Plaintiff shook the door used by inmates to enter the medical area multiple times. A

corrections officer, Rock Nissen (Mr. Nissen), was in the hallway near plaintiff and he

and plaintiff had a brief verbal exchange regarding plaintiff’s attempt to gain entrance to

the medical area. The two’s exchange became heated. Plaintiff and Mr. Nissen both

testified to the above facts.

Case No. 2019-00725JD -2- DECISION

{¶3} Plaintiff then approached the employee entrance to the medical area, at

which point plaintiff abruptly turned and approached Mr. Nissen who extended his arm

and finger into plaintiff’s face without making contact. Officer Nissen believed that

plaintiff closed the distance quickly and ordered plaintiff to put his hands on the wall;

plaintiff complied. As Mr. Nissen attempted to handcuff plaintiff, both men went to the

ground. Plaintiff mostly laid on his side with Mr. Nissen at or near his back. Though Mr.

Nissen continued to hold plaintiff with at least one of his hands throughout the incident,

Mr. Nissen did not lay on plaintiff or strike him. In fact, no other force was used and the

incident quickly ended. Plaintiff was able to get to his feet with assistance and

defendant’s employees immediately escorted him into the medical unit. The

undersigned primarily relied on the videos, Exhibits C and D, in making the above

findings. However, as the video is silent, the undersigned also notes that both men

testified to some of these facts, such as the fact that Mr. Nissen ordered plaintiff to put

his hands on the wall.

{¶4} Plaintiff sustained no injuries as a result of the incident between he and

Mr. Nissen. Nurse Lehman testified he examined plaintiff immediately after the incident

and observed no injuries. Plaintiff stated during this examination that he was not

injured. This examination was memorialized in Exhibit E, the record of plaintiff’s

examination after the incident. Plaintiff provided no evidence that he sought treatment

for any injuries related to the incident and he introduced no evidence that he was

diagnosed with any injury after the incident. Plaintiff provided no expert testimony.

Plaintiff’s testimony that he experienced back pain, which he attributes to the incident,

directly conflicts with both the medical evidence and his statement immediately after the

incident. Thus, the magistrate finds plaintiff’s brief testimony regarding his injuries lacks

credibility and, at any rate, is outweighed by the medical evidence.

Case No. 2019-00725JD -3- DECISION

Conclusions of Law

{¶5} Plaintiff bore the burden of proving his claim by a preponderance of the

evidence. As stated in Brothers v. Morrone-O’Keefe Dev. Co., LLC, 10th Dist. No.

06AP-713, 2007-Ohio-1942, 2007 Ohio App. Lexis 1762, ¶ 49: “[a] preponderance of

the evidence is ‘the greater weight of the evidence * * * [it] means evidence that must

more probable, more persuasive, or of greater probative value.”

{¶6} Plaintiff’s allegations of unnecessary or excessive force state claims for

battery and/or negligence. As stated in Brown v. Dep’t of Rehab. & Corr., 10th District

No. 13AP-804, 2014-Ohio-1810, ¶¶ 13-14:

To prove a claim for battery, a plaintiff must demonstrate that the

defendant “act[ed] intending to cause a harmful or offensive contact, and

* * * a harmful contact result[ed].” A defendant may defeat a battery claim

by establishing a privilege or justification defense. However, “the use of

excessive force by one privileged to use force on another may constitute

battery.”

To prove actionable negligence, a plaintiff must show the existence of a

duty, breach of that duty, and injury proximately caused by the breach.

The state owes a duty to inmates to reasonably care for the inmates’

health, care, and well-being.

As also stated in Brown, “Ohio Adm. Code 5120-9-01 provides guidance for determining

whether a correctional officer's use of force is privileged and/or reasonable.” Id. at 15.

{¶7} Ohio Adm. Code 5120-9-01(B)(1) defines force as “the exertion or

application of a physical compulsion or constraint.” Correctional officers “considering the

use of force shall evaluate the need to use force based on the circumstances as known

and perceived at the time it is considered.” Force may be used “only to the extent

deemed necessary to control the situation.” Ohio Adm. Code 5120-9-01(C)(1). Among

other situations, corrections officers may use force in “[s]elf-defense from physical

Case No. 2019-00725JD -4- DECISION

attack or threat of physical harm.” Excessive force “exceeds that force which

reasonably appears to be necessary under all the circumstances surrounding the

incident.” Ohio Adm.Code 5120-9-01(B)(3).

{¶8} To establish proximate cause relative to his claimed injuries, plaintiff needed

to present expert testimony. See Wright v. City of Columbus, 10th Dist No. 05AP-432,

2006-Ohio-759, ¶ 17-19.

Conclusion

{¶9} It must be remembered that “[t]he use of force is an obvious reality of prison

life.” Brown, 10th District No. 13AP-804, 2014-Ohio-1810 at ¶ 15. The evidence at trial

established that plaintiff and Officer Nissen exchanged words in a heated fashion

relative to plaintiff’s attempt to enter the medical area, during which plaintiff then

approached the employee entrance to the medical area. After doing so, plaintiff

abruptly turned and approached Mr. Nissen quickly before being ordered to the wall and

taken to the ground with minimal force. The incident unfolded quickly.

{¶10} In short, Mr. Nissen perceived a threat based on plaintiff’s advance toward

him. Mr. Nissen did not deploy pepper spray or strike plaintiff. Instead, he used the

absolute minimum amount of force necessary, placing his hands on plaintiff before

taking plaintiff to the ground and holding him there for a very brief time to control the

situation and place cuffs on him. The incident ended quickly and resulted in no injury to

plaintiff who received immediate medical attention.

{¶11} The magistrate finds that Mr. Nissen acted reasonably under the

circumstances, did not violate the duty of reasonable care owed to inmates and did not

injure plaintiff. Moreover, the magistrate finds that Mr. Nissen acted with both

justification and privilege in applying minimal force to plaintiff whom he perceived to be

a threat.

Case No. 2019-00725JD -5- DECISION

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

claims by a preponderance of the evidence and recommends judgment in defendant’s

favor.

{¶13} 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).

SCOTT SHEETS

Magistrate

Filed November 20, 2020

Sent to S.C. Reporter 1/4/21