The opinion
[Cite as Warren v. Ohio Dept. of Rehab. & Corr., 2023-Ohio-3258.]
IN THE COURT OF CLAIMS OF OHIO
DERRICK WARREN Case No. 2023-00338AD
Plaintiff Deputy Clerk Holly True Shaver
v. MEMORANDUM DECISION
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION
Defendant
{¶1} This matter is before the court for administrative determination pursuant to
R.C. 2743.10. The deputy clerk determines that plaintiff’s claim should be denied.
Background.
{¶2} Derrick Warren (“plaintiff”), an inmate, is in the custody of defendant, Ohio
Department of Rehabilitation and Correction (“ODRC”). Plaintiff is housed at the Lebanon
Correctional Institution (“LeCI”). Plaintiff alleges that Corrections Officer Anderson, an
ODRC employee, broke plaintiff’s finger by smacking a dining tray out of plaintiff’s hand,
following a meal. Plaintiff was examined by a registered nurse and no serious injuries
were noted.
{¶3} Plaintiff’s allegations were the subject of an Ohio Admin. Code 5120-9-03
use of force investigation conducted by LeCI’s inspector of institutional services. Both
plaintiff and Officer Anderson were interviewed, and the records from the nurse’s
examination were reviewed. Most importantly, a videotape of the dining hall where the
incident allegedly occurred was reviewed for all three meals on the day in question. It did
not show any altercation between plaintiff and Officer Anderson. Although the videotape
showed plaintiff, Officer Anderson does not appear. The inspector concluded that no
force was used against plaintiff. LeCI’s warden concurred in that conclusion, as did
ODRC’s chief inspector.
Case No. 2023-00338AD -2- MEMORANDUM DECISION
{¶4} Plaintiff nonetheless filed this case. A copy of the complaint was served on
ODRC, and ODRC responded with an R.C. 2743.10(B) investigation report describing the
use of force investigation just discussed. A copy of ODRC’s investigation report was
served on plaintiff but he has not responded.
Analysis.
{¶5} “Allegations of use of unnecessary or excessive force against an inmate
may state claims for battery and/or negligence. To prove a claim for battery, a plaintiff
must demonstrate that the defendant acted intending to cause a harmful or offensive
contact, and a harmful contact resulted.” Brown v. Dept. of Rehab. & Correction, 10th
Dist. Franklin No. 13AP-804, 2014-Ohio-1810, ¶ 13 (quoting Love v. City of Port Clinton,
37 Ohio St.3d 98,99, 524 N.E.2d 166 (1988); internal punctuation omitted). “To prove
actionable negligence, a plaintiff must show the existence of a duty, breach of that duty,
and injury proximately caused by the breach.” Id. at ¶ 14. “To meet his burden * * * plaintiff
need[s] to prove his claims by a preponderance of the evidence.” Haddix v. Ohio Dept.
of Rehab. & Correction, Ct. of Cl. No. 2019-00440JD, 2021-Ohio-1529, ¶ 5, Adopted
March 25, 2021 (Sheeran, J.). The “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.’” Id. (quoting Brothers v. Morrone-O'Keefe Dev. Co., LLC, 10th
Dist. No. 06AP-713, 2007-Ohio-1942, ¶ 49).
{¶6} Plaintiff has not met his burden. As to battery, ODRC presented evidence
that Officer Anderson did not act intending to cause a harmful or offensive contact—or
even act at all—towards plaintiff. As to negligence, ODRC’s duty is set by Ohio Admin.
Code 5120-9-01, and ODRC produced evidence rebutting a violation of that duty. Plaintiff
was given copies of ODRC’s evidence and an opportunity to respond to it but submitted
nothing. Although plaintiff’s complaint submitted under penalty of perjury is some
evidence, the deputy clerk finds that ODRC’s evidence is more persuasive and of greater
probative value. Judgment is therefore entered for ODRC.
{¶7} On another matter, on May 31, 2023, plaintiff filed a request for appointment
of counsel. “‘[A]n indigent litigant has a right to appointed counsel only when, if he loses,
he may be deprived of his physical liberty.’” Perotti v. Ohio Dept. of Rehab. & Corr., 61
Ohio App.3d 86, 91 (10th Dist. 1989), quoting Lassiter v. Department of Social Servs.,
Case No. 2023-00338AD -3- MEMORANDUM DECISION
452 U.S. 18, 26-27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). Plaintiff is not at risk of
losing his physical liberty as a result of any determination that may be made by the court.
Accordingly, plaintiff’s request for the appointment of counsel is DENIED.
DERRICK WARREN Case No. 2023-00338AD
Plaintiff Deputy Clerk Holly True Shaver
v. ENTRY OF ADMINISTRATIVE
DETERMINATION
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION
Defendant
{¶8} Having considered all the evidence in the claim file, and for the reasons set
forth in the memorandum decision filed concurrently herewith, judgment is rendered in
favor of defendant. Court costs are assessed against plaintiff.
HOLLY TRUE SHAVER
Deputy Clerk
Filed 7/25/23
Sent to S.C. Reporter 9/14/23