The opinion
[Cite as Jenkins v. Ohio Dept. of Rehab. & Corr., 2023-Ohio-1382.]
IN THE COURT OF CLAIMS OF OHIO
ANDRE JENKINS Case No. 2021-00537JD
Plaintiff Magistrate Robert Van Schoyck
v. DECISION OF THE MAGISTRATE
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION
Defendant
{¶1} Plaintiff, an inmate in the custody and control of defendant, brought this action
claiming that a corrections officer at the Trumbull Correctional Institution (TCI) punched
him in the mouth on November 15, 2020. Defendant admitted liability for the use of force
but “dispute[d] that any negligence was the proximate cause of any alleged damages.”
(Pretrial Statement filed Nov. 1, 2022.) The case went to trial before the magistrate.
{¶2} Plaintiff testified at trial that the incident occurred while he was getting ice from
an ice machine in a common area of his housing unit at 6:35 a.m. Plaintiff stated that he
was not bothering anyone and was not in violation of any prison rules. Plaintiff recalled
hearing something behind him and turning in that direction at which point Corrections
Officer A. Figueroa struck him once in the mouth with a fist. According to plaintiff, Officer
Figueroa had several rings on his fingers, which exacerbated the harmful nature of the
contact. Plaintiff identified himself and Officer Figueroa in a surveillance video that
recorded the brief incident. (Defendant’s Exhibit A.) Plaintiff testified that after returning
to his cell and removing the face mask he was wearing due to the COVID-19 pandemic,
he discovered blood on the mask and realized his upper lip was cut.
{¶3} Plaintiff explained that he did not want any more problems with Officer
Figueroa, so he waited until the second shift officers arrived to report what happened and
request medical attention. When he did so, officers escorted him to the segregation unit
Case No. 2021-00537JD -2- DECISION
and directed him to fill out a Health Services Request form, he stated. Plaintiff felt that
he should have been given medical attention immediately but testified that he received
none that day.
{¶4} While he was in the segregation unit, plaintiff recalled, ‘white shirts’ (i.e.,
corrections supervisors) reviewed surveillance video footage to confirm what he reported.
But according to plaintiff, Officer Figueroa and prison officials went against department
policy by not treating this as a ‘use of force’ incident and following the procedure that
applies to such incidents. Plaintiff offered into evidence certain department policies
relating to the use of force. (Plaintiff’s Exhibits 1, 2.) In plaintiff’s view, the incident was
‘covered up’. Plaintiff stated, however, that TCI Investigator David Ritz met with him about
the incident and an Ohio State Highway Patrol trooper did so as well and prepared a
report. (Plaintiff’s Exhibit 7.) Plaintiff testified that he wished to have criminal charges
pressed against Officer Figueroa but the local prosecutor declined to do so.
{¶5} In terms of his physical harm, plaintiff testified that his lip swelled for some
time following the incident and continues to swell intermittently, more than two years later.
Plaintiff, who did not offer any expert or other medical testimony, feels he sustained nerve
damage or some other long-term harm. According to plaintiff, to the extent he has sought
medical attention for these ongoing symptoms that he ascribes to the incident, prison
medical personnel have told him to take an over-the-counter pain reliever. Plaintiff stated
he has not incurred any medical expenses.
{¶6} Plaintiff also described having significant emotional distress over what
happened, including constant worrying and feeling he is danger. Plaintiff related that
prison officials have placed him on ‘suicide watch’ six or seven times since the incident
and he has gone on multiple hunger strikes. Plaintiff acknowledged that he was already
receiving care for multiple mental health issues prior to the incident. Plaintiff testified that
he sought for defendant to transfer him out of TCI following the incident and on April 21,
2022, he was transferred to Mansfield Correctional Institution.
{¶7} Plaintiff’s testimony also touched on some issues he had with the institutional
inspector of TCI in October 2020. While the details were not exactly clear, plaintiff testified
that the inspector gave some grievance documents to a unit manager who later permitted
or enabled an inmate to see them, thereby jeopardizing plaintiff’s safety. According to
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plaintiff, the failure to maintain the confidentiality of the grievance documents violated
department rules as well as his constitutional rights. It was not apparent that the matter
of the grievance documents was directly related to the incident with Officer Figueroa,
other than plaintiff characterizing both as examples of policies not being followed.
{¶8} Duane Gibson, R.N. testified that he is employed with defendant as a nurse,
and although he now works at a different facility, in 2020 he worked at TCI. Gibson went
over his education and professional experience, including having been licensed as a
registered nurse in the state of Ohio since 2008 and having worked for defendant since
2013. Gibson explained that his duties at TCI in 2020 included seeing patients at nurse’s
sick call visits, educating patients, passing out medication and administering preventative
medicine such as vaccines, and responding to emergencies. According to Gibson,
inmates can access medical care by submitting a Health Services Request form, or if they
need emergent care they can ask a corrections officer to summon medical attention.
{¶9} Gibson identified a Medical Exam Report that he prepared and signed,
reflecting that he assessed plaintiff on November 15, 2020, at 3:19 p.m. (Defendant’s
Exhibit B, p. 117.) Gibson had no specific recollection of the exam, and though he initially
stated that it probably occurred in the segregation unit, where a corrections supervisor
would have been present, on cross-examination he acknowledged that he could not
remember where it occurred. Gibson explained that the ‘Subjective Evaluation’ portion
of the Medical Exam Report includes information plaintiff would have provided, in this
instance stating that between 6:30 – 7:00 a.m. he was “punched in the face by a
corrections officer working my block.” Gibson wrote in the ‘Objective Physical Findings’
portion of the report that plaintiff was alert and oriented, and the inside of the upper lip
was red but there was no active bleeding and no other injuries were noted. Gibson
testified that if he observed bruising or swelling or a laceration, it would have been his
normal practice to document the same. Gibson stated that beyond performing this
assessment of plaintiff, he provided no other treatment.
{¶10} Gibson testified that one day later, on November 16, 2020, his coworker at
TCI, Betty Mulligan, R.N., prepared another Medical Exam Report reflecting her own
assessment of plaintiff that day. (Id. at p. 120.) As Gibson related, in the subjective
portion again it was documented that plaintiff reported being punched in the mouth by a
Case No. 2021-00537JD -4- DECISION
corrections officer, and objectively it was noted that plaintiff “pulled up his top lip to show
where he had been hit” and there was “[n]o evidence of cut, bleeding, or edema” (i.e.
swelling), and no other treatment was administered.
{¶11} Gibson discussed a note that he prepared on November 3, 2020, twelve
days before the incident, in connection with seeing plaintiff for a nurse’s sick call visit. (Id.
at p. 123.) As Gibson related, plaintiff’s preexisting conditions were noted at that time to
include diagnoses of intermittent explosive disorder, antisocial personality disorder, and
bipolar disorder for which plaintiff was on the mental health caseload.
{¶12} “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.” Miller v. Ohio
Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-12, 2012-Ohio-3382, ¶ 11. “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. “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.
{¶13} As to the theories of battery and/or negligence, defendant has admitted
liability for Officer Figueroa striking plaintiff, leaving to be determined what damages, if
any, were proximately caused by the use of force.
{¶14} “‘It is axiomatic that every plaintiff bears the burden of proving the nature and
extent of his damages in order to be entitled to compensation.’” Jayashree Restaurants,
LLC v. DDR PTC Outparcel LLC, 10th Dist. Franklin No. 16AP-186, 2016-Ohio-5498, ¶
13, quoting Akro-Plastics v. Drake Indus., 115 Ohio App.3d 221, 226, 685 N.E.2d 246
(11th Dist.1996). “As a general rule, the appropriate measure of damages in a tort action
is the amount which will compensate and make the plaintiff whole.” N. Coast Premier
Soccer, LLC v. Ohio Dept. of Transp., 10th Dist. Franklin No. 12AP-589, 2013-Ohio-1677,
¶ 17. “[D]amages must be shown with reasonable certainty and may not be based upon
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mere speculation or conjecture * * *.” Rakich v. Anthem Blue Cross & Blue Shield, 172
Ohio App.3d 523, 2007-Ohio-3739, 875 N.E.2d 993, ¶ 20 (10th Dist.).
{¶15} Upon review, the magistrate makes the following findings. On November 15,
2020, at 6:35 a.m. plaintiff was getting ice at the ice machine in a common area of his
housing unit. Several other inmates were in the common area at the time. Corrections
Officer Figueroa chatted with one of the inmates near the ice machine and gesticulated
with his arms and hands, including touching that inmate on the shoulder. After that
exchange, Figueroa started walking past plaintiff, whose back was to him, but Figueroa
then turned and approached plaintiff from behind. Plaintiff, having heard something
behind him, abruptly turned in Figueroa’s direction and Figueroa immediately jabbed him
in the face with his right fist. Figueroa next put his hand on plaintiff’s shoulder and can
be seen in the video speaking to plaintiff, seemingly apologizing although there is no
audio recording, and as Figueroa then walked away he put up his hands and continued
speaking to plaintiff.
{¶16} Plaintiff returned to his cell and upon removing his face mask discovered
blood and realized his upper lip had been cut. Having no major injury and not wanting
any trouble with Officer Figueroa, plaintiff did not seek any medical attention until later in
the day, after the corrections officers’ shift change, and when he did so the officers placed
him in the segregation unit pending an investigation into the circumstances of his injury.
Nurse Gibson’s testimony and documentary evidence established that he performed an
assessment of plaintiff at approximately 3:19 p.m. that day, at which time the upper lip
was red but there was no active bleeding, swelling, or laceration, and no further treatment
was needed. While plaintiff denied receiving any medical attention that day, it appears
that he did, and even if Gibson’s assessment was brief it was not out of proportion with
plaintiff’s minimal physical injury. The next day, another nurse assessed plaintiff, looked
at his upper lip, and found that there appeared to be no cut, bleeding, or swelling, and
again no further treatment was needed.
{¶17} In all, it appears more likely than not that plaintiff experienced some pain
from being punched in the mouth, sustaining a minor laceration, and experiencing some
temporary swelling, although the laceration and swelling were not severe enough to be
visible by the time Nurse Gibson saw him nearly nine hours later. While plaintiff thus
Case No. 2021-00537JD -6- DECISION
established having some physical harm, it was not proven to be severe or long-lasting.
Although plaintiff discussed having intermittent swelling and something like nerve damage
well over two years later, such long-term or permanent symptoms in these circumstances
fall into the category of a complicated medical subject that is outside the ordinary
knowledge of a layperson and therefore requires supporting expert testimony. See
Corwin v. St. Anthony Med. Ctr., 80 Ohio App.3d 836, 840-841, 610 N.E.2d 1155 (10th
Dist.1992) (“Where the permanency of an injury is obvious, such as the loss of an arm,
leg or other member, the jury may draw its own conclusions as to the measure of
damages; however, where an injury is not obvious, there must be expert evidence as to
the damage sustained, the probability of future pain and suffering or the permanency of
the injury.”); Schadhauser v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin Nos. 17AP-
794, 17AP-795, & 17AP-796, 2018-Ohio-3282, ¶ 11 (“In general, an issue that involves a
question of scientific inquiry that is not within the knowledge of [a] layperson is an issue
that requires expert testimony to prove.”).
{¶18} Plaintiff established that the incident caused him some emotional distress.
Plainly it was upsetting to be sucker-punched by a corrections officer who was supposed
to care for plaintiff’s well-being, and his account of being frightened and worrying that
something like this might happen again is understandable. It is not difficult to see how
this would have been a disturbing experience and plaintiff has established some measure
of emotional harm. But while plaintiff described having far more significant and long-term
harm that, according to him, entailed repeated suicidal ideation and refusing to eat, again
this is the sort of harm that is too difficult for a layperson to understand in the absence of
supporting, explanatory testimony from an expert witness. And while plaintiff was
apparently already under the care of mental health professionals, it was not clear that he
sought care from them to cope with his feelings about this incident. Still, the magistrate
is persuaded that the incident temporarily had a negative effect on plaintiff’s emotional
well-being to a degree that makes the damages in this case distinguishable from the
cases to which defendant compared this one in its closing argument.
{¶19} Accordingly, as to his claims of battery and/or negligence, plaintiff has by a
preponderance of the evidence established damages in the form of temporary physical
and emotional harm proximately caused by Officer Figueroa punching him. The
Case No. 2021-00537JD -7- DECISION
magistrate finds that plaintiff is entitled to damages for his temporary pain and suffering
in the amount of $3,500.
{¶20} To the extent plaintiff raised a claim of intentional infliction of emotional
distress (IIED), this claim requires proof that “(1) defendant intended to cause emotional
distress, or knew or should have known that actions taken would result in serious
emotional distress; (2) defendant’s conduct was extreme and outrageous; (3) defendant’s
actions proximately caused plaintiff’s psychic injury; and (4) the mental anguish plaintiff
suffered was serious.” Hanly v. Riverside Methodist Hosps., 78 Ohio App.3d 73, 82, 603
N.E.2d 1126 (10th Dist.1991). From the evidence presented, especially the video, it does
not appear Officer Figueroa intended to cause emotional distress nor should he have
necessarily known his action would result in emotional distress; rather, his conduct
appears to have been an instinctual response to the sudden movement plaintiff made
toward him in the unique environment of a correctional institution. Even if unreasonable
or unjustified, under the circumstances it was not so extreme and outrageous as to
support an IIED claim. And while it has been determined that plaintiff sustained some
emotional harm from the incident, from the evidence presented the magistrate is unable
to objectively determine that Figueroa’s action proximately caused plaintiff the severe,
debilitating degree of psychic injury necessary to sustain an IIED claim. Accordingly,
plaintiff failed to prove an IIED claim.
{¶21} Finally, regarding plaintiff’s contention that TCI’s institutional inspector failed
to maintain the confidentiality of grievance records in contravention of department policy,
violations of internal rules “are primarily designed to guide correctional officials in prison
administration rather than to confer rights on inmates.” State ex rel. Larkins v. Wilkinson,
79 Ohio St.3d 477, 479, 683 N.E.2d 1139 (1997). The violation of an internal policy does
not by itself furnish an inmate with a right of recovery. Wolfe v. Ohio Dept. of Rehab. &
Corr., 10th Dist. Franklin No. 15AP-128, 2015-Ohio-3985, ¶ 10. It was not established
that any violation of an internal policy on the confidentiality of grievance records was
connected to the incident with Officer Figueroa, let alone that there was any causal
relationship between the two. And in general plaintiff did not establish that any such policy
violation caused him any injury or loss. While plaintiff argued that his constitutional rights
were violated, “[i]t is well-established that the Court of Claims lacks subject-matter
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jurisdiction over alleged violations of constitutional rights * * *.” Guillory v. Ohio Dept. of
Rehab. & Corr., 10th Dist. Franklin Nos. 07AP-861 & 07AP-928, 2008-Ohio-2299, ¶ 12.
{¶22} Based upon the foregoing, it is recommended that judgment be entered for
plaintiff in the amount of $3,500.
{¶23} 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).
ROBERT VAN SCHOYCK
Magistrate
Filed March 22, 2023
Sent to S.C. Reporter 4/27/23