The opinion
[Cite as Gilmore v. Ohio Dept. of Rehab. & Corr., 2022-Ohio-3652.]
EMMANUEL GILMORE Case No. 2021-00515JD
Plaintiff Judge Patrick E. Sheeran
Magistrate Gary Peterson
v.
ENTRY GRANTING DEFENDANT’S
OHIO DEPARTMENT OF MOTION FOR SUMMARY JUDGMENT
REHABILITATION AND CORRECTION
Defendant
{¶1} On August 1, 2022, Defendant filed a motion for summary judgment pursuant
to Civ.R. 56(B). Plaintiff did not file a response. The motion for summary judgment is
now before the Court for a non-oral hearing pursuant to Civ.R. 56 and L.C.C.R. 4(D). For
the reasons that follow, Defendant’s unopposed motion for summary judgment is
GRANTED.
{¶2} Civ.R. 56(C) states, in part, as follows:
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, 821 N.E.2d 564,
¶ 6, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977). “[T]he
Case No. 2021-00515JD -2- ENTRY
moving party bears the initial responsibility of informing the trial court of the basis for the
motion, and identifying those portions of the record before the trial court which
demonstrate the absence of a genuine issue of material fact on a material element of the
nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264
(1996). To meet this initial burden, the moving party must be able to point to evidentiary
materials of the type listed in Civ.R. 56(C). Id. at 292-293.
{¶3} According to the complaint, at all times relevant, Plaintiff was an inmate in the
custody and control of Defendant. Although not a beacon of clarity, it appears that Plaintiff
brings this claim arising out of an alleged excessive use of force that occurred on or about
April 29, 2021. The complaint provides that Plaintiff was taken to the ground, placed in
hand restraints, repeatedly assaulted, repeatedly punched in the face, sprayed with OC
(chemical) spray, and his head was slammed into the wall. Plaintiff seeks an unspecified
amount in damages.
{¶4} “Allegations of use of unnecessary or excessive force against an inmate may
state claims for battery and/or negligence.” 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 harmful or offensive. * * * Ohio courts
have held that, in a civil action for assault and battery, the defendant has the burden of
proving a defense of justification, such as the exercise of lawful authority.” 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. “However, ‘the use of excessive force by one privileged to use force on
another may constitute battery.’” Russell v. Ohio Dept. of Rehab. & Corr., 10th Dist.
Franklin No. 19AP-424, 2019-Ohio-4695, ¶ 11, quoting Shadler v. Double D. Ventures,
Inc., 6th Dist. Lucas No. L-03-1278, 2004-Ohio-4802, ¶ 19.
{¶5} “To prevail on a negligence claim, a plaintiff must establish the existence of a
duty, a breach of the duty, and an injury resulting proximately therefrom.” Woodbridge v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 19AP-321, 2020-Ohio-891, ¶ 30.
Case No. 2021-00515JD -3- ENTRY
“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.
{¶6} “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.
Ohio Adm.Code 5120-9-01 provides, in part:
(C) Guidelines regarding the use of force. * * *
***
(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
(f) Controlling or subduing an inmate in order to stop or prevent self-inflicted
harm.
Case No. 2021-00515JD -4- ENTRY
{¶7} “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.’” Brown at ¶ 16.
“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.’” Id., quoting Ohio Adm.Code 5120-9-01(C)(1)(b).
“‘Excessive force’ means ‘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.’” Russell, 2019-Ohio-4695, at ¶ 14, quoting Ohio Adm.Code 5120-9-01(B)(3).
{¶8} In support of its motion for summary judgment, Defendant submitted an
affidavit from corrections officer Kent Wallace. Wallace avers as follows:
“5. On April 29, 2021, I was working as a corrections officer at the Toledo
Correctional Institution.
“6. At about 1:50 pm that day, I was working with Corrections Officer Tipton and
attempting to move [Plaintiff] to a new cell.
“7. [Plaintiff] was upset about moving to a new cell, he became aggressive, and he
began closing the distance between Officer Tipton and him.
“8. I told [Plaintiff] to grab his property and move to his new cell.
“9. [Plaintiff] ignored me and continued to close the distance between Officer
Tipton and him.
“10. Officer Tipton told [Plaintiff] to stop, and I told [Plaintiff] to place his hands on
the wall. [Plaintiff] ignored these requests.
“11. [Plaintiff] closed the distance between he and Officer Tipton and began
throwing closed fist strikes at Officer Tipton’s facial area.
“12. [Plaintiff] continued to disobey all directives to stop, and he continued his
assault on Officer Tipton while physically resisting my attempts to stop his assault on
Officer Tipton.
Case No. 2021-00515JD -5- ENTRY
“13. I took [Plaintiff] to the ground while he yelled, ‘I’m going to fucking kill you
bitch!’
“14. As [Plaintiff] continued to yell that he was going to ‘fuck us up’ and kill us, I
continued to tell him to stop resisting and to cuff up.
“15. I feared that if I did not subdue [Plaintiff], he would cause serious physical
harm to Officer Tipton or me.
“16. I continued giving directives for [Plaintiff] to stop resisting and place his hands
behind his back while he continued yelling threats.
“17 I delivered closed fist strikes to [Plaintiff’s] face and body in an attempt to
subdue him, and once additional staff arrived to assist, I was able to secure [Plaintiff] in
hand restraints.
“18. As a result of [Plaintiff’s] assault, two officers received outside medical
treatment.
“19. Neither Officer Tipton nor I used any excessive force in our interaction with
[Plaintiff], nor did I witness any excessive force used by any other DRC staff.
“20. I used the minimum amount of force reasonably required to gain compliance
of [Plaintiff] and to ensure my own safety and that of Officer Tipton. The force used was
consistent with DRC policy.” Defendant’s motion for summary judgment, Exhibit A.
{¶9} Defendant also filed Wallace’s use of force report and a copy of Defendant’s
policy on the use of force.
{¶10} As stated previously, Plaintiff did not respond to Defendant’s motion for
summary judgment. Civ.R. 56(E) provide, in relevant part:
When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or
denials of the party's pleadings, but the party’s response, by affidavit or as
otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the party does not so respond, summary
judgment, if appropriate, shall be entered against the party.
Case No. 2021-00515JD -6- ENTRY
{¶11} Based upon the uncontroverted affidavit testimony from Wallace, the Court
concludes that the force used on Plaintiff on April 29, 2021, was justified and reasonable.
There is no dispute that Plaintiff refused to comply with orders to stop approaching the
officers. There is also no dispute that Plaintiff struck Tipton in the face with a closed fist
and continued to strike Tipton despite orders to cease. Even when Wallace took Plaintiff
to the ground, Plaintiff continued to threaten and resist the officers. The officers are
privileged to use force for self-defense from a physical attack and for defense of another
from physical attack. The officers are also privileged to use force when necessary to
control or subdue an inmate who refuses to obey prison rules, regulations, or orders.
Here, the officers’ actions were necessary to control and restrain Plaintiff, who had
attacked Tipton and refused to obey orders. The officers used the least amount of force
necessary to ensure their safety and the force used was therefore privileged.
{¶12} 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. As
a result, Defendant’s motion for summary judgment is GRANTED and judgment is hereby
rendered in favor of Defendant. 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 E. SHEERAN
Judge
Filed September 26, 2022
Sent to S.C. Reporter 10/13/22