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

[Cite as Taper v. Ohio Dept. of Rehab. & Corr., 2023-Ohio-3259.]

IN THE COURT OF CLAIMS OF OHIO

JOSHUA TAPER Case No. 2022-00534AD

Plaintiff Deputy Clerk Holly True Shaver

v. MEMORANDUM DECISION

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION

Defendant

{¶1} Joshua Taper (“plaintiff”), an inmate, filed a complaint against defendant,

Ohio Department of Rehabilitation and Correction (“ODRC”). Plaintiff related on July 16,

2020, at defendant’s Lebanon Correctional Institution (“LECI”), he was hit in the head with

pepper mace balls by one of defendant's corrections officers (“CO”). Plaintiff related that

on July 25, 2020, LECI, he was chased and pushed into a desk by a CO. Plaintiff related

that on November 11, 2020, at LECI, he was in shower shoes and handcuffs when a CO

charged him and hit his head on a metal pipe. Plaintiff seeks damages in the amount of

$10,000.00. Plaintiff submitted the $25.00 filing fee.

{¶2} Defendant submitted an investigation report denying liability in this matter.

Defendant asserted that to the extent that plaintiff was attempting to bring a Section 1983

civil rights action or a violation of the 8th amendment of the US Constitution, this court

does not have jurisdiction. Defendant denied that force was used on plaintiff on July 16,

2020. Defendant stated that there was a use of pepper balls on other inmates that day,

but that plaintiff was not in an area where they exploded or were deployed. Defendant

attached a Nursing Medical Exam Report for plaintiff dated July 16, 2020, to its

investigation report which includes a subjective evaluation stating “I am fine. I don’t want

to be seen”. It further stated that plaintiff had no injuries.

{¶3} Defendant admitted that force was used on plaintiff on July 25, 2020, but

denied that the force was excessive or unreasonable. Defendant attached a form for a

Case No. 2022-00534AD -2- MEMORANDUM DECISION

July 25, 2020, incident, titled, “Ohio Department of Rehabilitation and Correction Deputy

Warden of Operations Review of Use of Force” to its Investigation Report which states:

“CO Place gave Inmate Taper, A715-070, several direct orders to remove his bowl

from the microwave and go to his cell; he did not comply, CO Place gave the

inmate several direct orders to turn around cuff up; he did not comply and

attempted to walk past CO Place. CO Place guided the inmate to the desk. CO

DiFrancisco assisted with handcuffing the inmate. No other force was used. All

involved were examined by medical.”

{¶4} Defendant also attached plaintiff’s medical evaluation, completed following

the use of force on July 25, 2020, to its investigation report. The evaluation states that

plaintiff denied any injuries and appeared well.

{¶5} Defendant admitted that force was used on plaintiff on November 11, 2020,

but denied that the force was excessive or unreasonable. Defendant attached a form for

a November 11, 2020, incident, titled, “Ohio Department of Rehabilitation and Correction

Deputy Warden of Operations Review of Use of Force” to its investigation report which

states:

“Inmate Taper, A715-070, was in the infirmary for a medical evaluation. The

inmate refused to cooperate with medical staff. The inmate attempted to leave the

exam room. CO Hartman put his hand up to stop the inmate and Sgt. Burns took

control of the inmate’s left arm. Sgt. Burns and CO Hartman attempted to escort

the inmate out of the exam room; the inmate pulled away and yelled, ‘fuck you

white boy.’ Sgt. Burns and CO Hartman guided the inmate to the wall; the inmate

attempted to push off the wall and continued to resist. Sgt. Burns and CO Hartman

placed the inmate on the floor; he complied. No other force was used. All involved

were examined by medical.”

{¶6} Defendant also attached a “Nursing Medical Exam Report” for plaintiff from

November 11, 2020, which stated that plaintiff was uncooperative with medical staff but

was well appearing.

{¶7} Plaintiff submitted a response to defendant's investigation report in which

plaintiff reasserted his claim and contended that the medical examinations reports

attached to the investigation report contained false statements.

Case No. 2022-00534AD -3- MEMORANDUM DECISION

{¶8} On February 1, 2023, former Deputy Clerk Daniel R. Borchert rendered a

memorandum decision finding in favor of defendant.

{¶9} On February 24, 2023, plaintiff filed a motion for court review because the

former deputy clerk did not order ODRC to file video evidence of the incidents of which

were the basis of plaintiff’s complaint.

{¶10} On March 23, 2023, Judge Patrick E. Sheeran issued an entry vacating the

former deputy clerk’s decision and remaining the case. In this decision, Judge Sheeran

stated that in administrative decisions, a deputy clerk shall review the best evidence.

Based on this assertion, the judge construed the motion for court review as a motion for

discovery which he granted. This case was then remanded to the administrative docket.

{¶11} On April 21, 2023, in accordance with Judge Sheeran’s March 23, 2023

entry, the former deputy clerk ordered ODRC to supply the court with video of the

incidents on July 16, July 25, and November 11, 2020.

{¶12} On May 31, 2023, ODRC filed a disc with relevant security videos. Upon

review of the videos, the court finds that they are consistent with the documents ODRC

filed with its investigation report.

{¶13} “To prove assault under Ohio Law, plaintiff must show that the defendant

willfully threatened or attempted to harm or touch the plaintiff offensively in a manner that

reasonably placed the plaintiff in fear of the contact.” Miller v. Ohio Dept. of Rehab. &

Corr., 10th Dist. Franklin No. 12AP-12, 2012-Ohio-3382. ¶ 11.

{¶14} It has also been held that “[a]llegations 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 at ¶ 11.

{¶15} “To recover on a negligence claim, a plaintiff must prove by a

preponderance of the evidence (1) that a defendant owed the plaintiff a duty, (2) that a

defendant breached that duty, and (3) that the breach of the duty proximately caused a

plaintiff’s injury.” Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 05-AP-357, 2006-

Case No. 2022-00534AD -4- MEMORANDUM DECISION

Ohio-2531, ¶ 10. “Under Ohio law, the ODRC owes inmates a duty of reasonable care

and protection from unreasonable risks.” Id at ¶ 11.

{¶16} “The use of force is sometimes necessary to control inmates.” Jodrey v.

Ohio Dept. of Rehab. & Corr., 10th Dist. No. Franklin 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)(2). “[T]he precise degree of force required

to respond to a given situation requires an exercise of discretion by the corrections

officer.” Ensman v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 06AP-592,

2006-Ohio-6788, ¶ 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.” Ensman at ¶ 6.

{¶17} Ohio Adm.Code 5120-9-01 provides, in pertinent part:

“(C) Guidelines regarding the use of force. Force shall be used in accordance with

the following guidelines.

• **

(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.”

{¶18} In addition, prison regulations, including those contained in the Ohio

Administrative Code, “are primarily designed to guide correctional officials in prison

administration rather than to confer rights on inmates.” State ex rel. Larkins v. Wilkinson,

Case No. 2022-00534AD -5- MEMORANDUM DECISION

79 Ohio St.3d 477, 479, 683 N.E.2d 1139 (1997) citing Sandlin v. Conner, 515 U.S. 472,

481-482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Additionally, “even if defendant had

violated the Ohio Administrative Code, no cause of action would exist in this court. A

breach of internal regulations in itself does not constitute negligence. Horton v. Ohio Dep’t

of Rehab, & Corr., 10th Dist. No. 05AP-198, 2005-Ohio-4785, ¶ 29, citing Williams v. Ohio

Dept. of Rehab. and Corr., 67 Ohio Misc.2d 1, 3, 643 N.E.2d 1182 (1993).” Moore v. Ohio

Dept. of Rehab. & Corr., 10th Dist. Franklin No. 18AP-599, 2019-Ohio-767. Accordingly,

to the extent that plaintiff alleges that ODRC somehow violated internal prison regulations

and the Ohio Administrative Code, he fails to state a claim for relief.

{¶19} “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.’ 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.’ Ohio Adm. Code 5120-9-01(C)(1)(b).” Brown at ¶ 16. Also pertinent is Ohio Adm.

Code 5120-9-01-(B)(3), which defines “excessive force” as “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.”

{¶20} The court has recognized that “corrections officers have a privilege to use

force upon inmates under certain conditions. * * * Obviously ‘the use of force is a reality

of prison life’ and the precise degree of force required to respond to a given situation

requires an exercise of discretion by the corrections officer.” (Internal citations omitted.)

Mason v. Ohio Dept. of Rehab. & Corr., 62 Ohio Misc.2d 96, 101-102, 593 N.E.2d 482

(Ct. of Cl. 1990), quoting Thomas v. Ohio Dept. of Rehab. & Corr., 48 Ohio App.3d 86,

89, 548 N.E.2d 991 (10th Dist. 1988). See Ensman v. Ohio Dept. of Rehab. & Corr., 10th

Dist. Franklin No. 06AP-592, 2006-Ohio-6788.

{¶21} The credibility of witnesses and the weight attributable to their testimony are

primarily matters for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967), paragraph one of the syllabus. The court is free to believe, or disbelieve, all

or any part of each witness’ testimony. State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548

Case No. 2022-00534AD -6- MEMORANDUM DECISION

(1964). The court finds plaintiff’s statements regarding the incidents on July 16, July 25,

and November 11, 2020, not particularly persuasive.

{¶22} A review of the case file reveals an appropriate use of force investigation

was properly conducted in accordance with Ohio Adm.Code 5120-9-01 and 5120-9-02

on July 16, 2020, July 25, 2020, and November 11, 2020.

{¶23} It is well-settled that the court of claims does not have jurisdiction to hear

constitutional claims brought against the state. Bleicher v. Univ. of Cincinnati College of

Medicine, 78 Ohio App.3d 302, 604 N.E.2d 783 (10th Dist. 1992). It is also a well-

established principle of law that the state of Ohio is not a “person” within the meaning of

Section 1983, Title 42, U.S. Code; therefore, such actions cannot be brought against the

state. White v. Chillicothe Corr. Inst., 10th Dist. Franklin No. 92AP-1230, 1992 WL

394920 (Dec. 29, 1992). Therefore, to the extent that plaintiff’s claim can be construed

as a constitutional claim or a claim under Section 1983, this court is without jurisdiction.

{¶24} Therefore, judgment is rendered in favor of defendant.

JOSHUA TAPER Case No. 2022-00534AD

Plaintiff Deputy Clerk Holly True Shaver

v. ENTRY OF ADMINISTRATIVE

DETERMINATION

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION

Defendant

{¶25} 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.

Case No. 2022-00534AD -7- MEMORANDUM DECISION

Holly True Shaver

Deputy Clerk

Filed 6/27/23

Sent to S.C. Reporter 914/23