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

[Cite as McDougald v. Ohio Dept. of Rehab. & Corr., 2021-Ohio-2407.]

JERONE MCDOUGALD Case No. 2019-00950JD

Plaintiff Magistrate Scott Sheets

v. DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION

Defendant

{¶1} Plaintiff Jerone McDougald (plaintiff) is an inmate in defendant’s custody

who resides at defendant’s Toledo Correctional Institution (TOCI) in Toledo, Ohio.

Plaintiff seeks damages for injuries he alleges were sustained when defendant’s

employee(s) used force on him on July 22, 2019. The case proceeded to trial via Zoom

videoconference. In addition to plaintiff, correction officers Mark Poupard (Mr. Poupard)

and Tashana Ford (Ms. Ford) and Nurse Hannah Krogel (Nurse Krogel) also testified.

Exhibits admitted into evidence included a copy of the video of the incident as well as a

copy of a packet of documents generated in connection with the incident and some of

plaintiff’s medical records. 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 July 22, 2019, plaintiff was incarcerated at TOCI. TOCI is a maximum-

security facility and houses only the highest security level inmates. On that day, plaintiff

resided in TOCI’s Transitional Programming Unit (TPU). The TPU houses TOCI’s

highest security inmates, inmates with rule violations who cannot be housed in the

facility’s general population. Plaintiff had a history of throwing bodily fluids, fecal matter

and/or other types of fluids on TOCI’s staff. Mr. Poupard was distributing food trays

toinmates including plaintiff. Mr. Poupard arrived at plaintiff’s cell and noticed plaintiff’s

cell door and window were covered in feces. Mr. Poupard informed plaintiff that he

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needed to clean up the feces to receive his food tray, which is distributed through a cuff-

port on the door. As plaintiff began to wipe down the cuff-port area, Mr. Poupard

opened it to give plaintiff his tray of food. At this time, Mr. Poupard observed a cup in

plaintiff’s hand that Mr. Poupard believed plaintiff intended to use to throw feces or

some other substance on him. Because of plaintiff’s history and in apprehension of

whatever might be in Mr. McDougald’s cup as he stood behind his feces smeared door,

Mr. Poupard deployed a short 2-3 second burst of oleoresin capsicum (“OC”) spray.

Mr. Poupard used a device known as a fogger, which disperses the OC spray in a wide,

fog-like pattern. The fogger is used in the TPU area because it is effective when

spraying through the cuff-port and into a cell, a situation during which precise aim is

difficult.

{¶3} After plaintiff dropped the cup, Mr. Poupard ceased using OC spray.

Another officer, Mr. Cleveland, then handcuffed plaintiff and he and Mr. Poupard

escorted plaintiff to the nearest shower to decontaminate him after the OC spray.

Plaintiff resisted Mr. Cleveland and Mr. Poupard as they escorted him to the shower,

attempting to turn and walk in the other direction. Several additional corrections officers

responded to the incident. While in the shower, plaintiff continued to resist and banged

his head on the shower wall. No one struck plaintiff. After about a minute, Mr.

Cleveland and several corrections officers escorted plaintiff out of the shower and to

TOCI’s medical unit while Mr. Poupard escorted another inmate out of the shower area.

The very next day, plaintiff threw fecal matter on Mr. Poupard.

{¶4} Mr. Poupard testified to the above. The magistrate finds Mr. Poupard

testified credibly. His answers were consistent, direct, and responsive. He spoke

factually and frankly and appeared sincere. He did not evade any question or issue.

{¶5} In addition, exhibits admitted into evidence corroborated Mr. Poupard’s

testimony. A portion of plaintiff’s discipline history indicates that plaintiff has thrown

substances on corrections officers several times. The video depicts plaintiff’s cell

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window covered in a substance consistent in appearance with fecal matter. Though it

does not offer a view inside plaintiff’s cell, what the video does show is consistent with

Mr. Poupard’s testimony. It shows the incident ended quickly atter Mr. Poupard

approached plaintiff’s cell and shows plaintiff being escorted out of the cell and toward

the shower area while plaintiff attempts to resist and walk away from Mr. Poupard and

Mr. Cleveland. The video also shows plaintiff being escorted out of the shower area. In

addition, Mr. Poupard and Mr. Cleveland completed use of force reports on the day of

the incident which also corroborate Mr. Poupard’s testimony. Finally, Ms. Ford, who

was one of the officers that responded, corroborated Mr. Poupard’s testimony in that

she testified regarding plaintiff’s continued resistance while in the shower and that no

one struck plaintiff; she indicated plaintiff was “jumping around.”

{¶6} Plaintiff’s testimony contradicted some of the above facts. For instance,

plaintiff indicated that unidentified corrections officers struck him in the shower, took

issue with his discipline history and claimed that officers and medical staff made false

statements in their reports. However, the magistrate finds that his testimony lacked

credibility primarily because plaintiff testified evasively on cross-examination, often

refusing to answer yes or no questions directly, and also because of plaintiff’s

demeanor while testifying. His testimony as a whole failed to address many of the

relevant facts adequately and, at times, his testimony was inconsistent. For instance,

when being asked about his disciplinary history, plaintiff repeatedly testified that he had

been accused of throwing things on officers and that discipline records reflect what they

reflect and seemed to imply that some of the records’ contents might not be true before

eventually testifying “a lot” of the contents of the records were false. He later admitted

to at least throwing water on officers. Further, he denied smearing feces on his door

without offering any explanation for the substance seen on his cell window in the video.

Later, he indicated he might not recall and/or that his mental health was to blame.

Rather than focus on the facts of the incident, plaintiff repeatedly opined regarding

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violations of institution policy. Likewise, he continually pointed to what could not be

seen on video while at the same time failing to offer clear and direct testimony on what

could be seen on the video. Finally, plaintiff offered no evidence which corroborated his

version of events.

{¶7} Immediately after the incident, plaintiff was examined in TOCI’s medical

area. Plaintiff experienced temporary burning and discomfort associated with the

effects of pepper spray. He also had abrasions on his head and face, but he sustained

no permanent injury from the use of force. He paid nothing for medical care and his

temporary injuries required no further treatment. Plaintiff testified to the effect the

pepper spray had on him and parts of his medical records admitted into evidence

established the remainder of these facts. Plaintiff presented no evidence of any amount

paid for treatment.

Conclusions of Law

{¶8} To meet his burden at trial, plaintiff needed to prove his claims 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 is more probable, more persuasive, or of greater probative value.”

{¶9} Plaintiff’s complaint alleges unnecessary or excessive force and states

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.”

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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.

{¶10} 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

attack or threat of physical harm.” Ohio Adm. Code 5120-9-01(C)(2)(a). Force may

also be used “[w]hen necessary to control or subdue an inmate who refuses to obey

prison rules, regulations or orders.” Ohio Adm. Code 5120-9-01(C)(2)(c). 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).

Decision

{¶11} 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 greater

weight of the evidence, in both quantity and quality, established that plaintiff had a

history of throwing substances on officers. It also established that, on the day of the

incident, plaintiff’s celldoor was smeared with feces and that plaintiff had a cup in his

hand held in a such a manner that Mr. Poupard reasonably perceived it to be a threat.

He also reasonably feared that plaintiff may throw fecal matter or some other substance

on him. This occurred after Mr. Poupard directed plaintiff to clean up the feces smeared

on his cell door so that plaintiff could be given food. Mr. Poupard briefly sprayed plaintiff

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with OC spray only to the extent necessary to force plaintiff to drop the cup before

plaintiff was taken to the shower by Mr. Poupard and other corrections officers, during

which time he resisted officers’ efforts. Other than temporary discomfort resulting from

the effects of OC spray and some minor abrasions, the incident resulted in no injury to

plaintiff who received immediate medical attention.

{¶12} The magistrate finds that Mr. Poupard acted reasonably under the

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

plaintiff’s injuries, if any, were de minimus. The magistrate also finds that Mr. Poupard

acted with both justification and privilege in applying force to plaintiff. Finally, the

magistrate finds that none of the corrections officers used excessive force. Mr. Poupard

reasonably perceived plaintiff as a threat to his safety and used force only to the extent

necessary to counter the threat he perceived and to gain plaintiff’s compliance. The

other corrections officers applied virtually no force to plaintiff.

{¶13} 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.

{¶14} 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).

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SCOTT SHEETS

Magistrate

Filed May 17, 2021

Sent to S.C. Reporter 7/14/21