Opinion
2023-00108AD
04-05-2023
ANTONIO L. TUCKER, JR. Plaintiff v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant
Sent to S.C. Reporter 6/21/23
MEMORANDUM DECISION
FINDINGS OF FACT
{¶1} Antonio Tucker, Jr. ("plaintiff), an inmate, filed a complaint against the defendant, Ohio Department of Rehabilitation and Correction ("ODRC"). Plaintiff related on October 22, 2022, at defendant's Ohio State Penitentiary ("OSP"), he stuck his hand through the cuff port. Defendant grabbed plaintiffs hand, twisted his finger, and pushed plaintiffs hand back into the cell. Plaintiff contends that defendant's actions caused him injury to his finger which resulted in months of swelling and discomfort.
{¶2} Plaintiff seeks $2.00 in medical fees. Plaintiff was not required to submit the $25.00 filing fee.
{¶3} Defendant submitted an Investigation Report denying liability in this matter. Defendant asserts that plaintiff refused to remove his hand from the cuff port and a corrections officer had to forcibly remove plaintiff's hand so they could close the cuff port. Plaintiff was charged and found guilty by the Rules Infraction Board ("RIB") of violating Rule 20, physical resistance to a direct order; and Rule 21, disobedience of a direct order. Due to plaintiff's insubordination, they were authorized to use necessary force to control the plaintiff and that the amount of force used was minimal and proportionate to plaintiff's actions. Defendant argues that they would not be liable for an intentional tort of the corrections officer and that review of discretionary decisions by the RIB are outside the jurisdiction of the court. Finally, defendant alleges that plaintiff's prayer for relief can not be sustained. Defendant notes that plaintiff was never charged the $2.00 medical fee, thus he has not suffered any financial loss.
{¶4} Plaintiff filed a response to the Investigation Report, wherein he stated that he is not asking for reimbursement of his $2.00 medical fee, as he acknowledges that he was never charged. Instead, plaintiff argues that his complaint is based around 8th Amendment violations and filed under 42 U.S. Code § 1983. Plaintiff further states that his claim involves issues of appropriate supervision, racial discrimination, use of force, and failure to follow ODRC policy. Plaintiff asserts that they never asked for a prayer amount in the complaint, but that he is seeking $15,000. Plaintiff further states that his lawsuit is not against ODRC, but rather a specific correctional officer, Officer Rodgers.
CONCLUSIONS OF LAW
{¶5} As an initial matter, plaintiff attempts to amend his complaint in his response to defendant's Investigation Report. In plaintiffs complaint he stated that the total for his claims was "None, besides the $2.00 medical fee." Plaintiff then attempted to change this prayer amount in his response to the Investigation Report. There, plaintiff states that he never asked for $2.00 in reimbursement, instead he never put a prayer amount and is actually seeking $15,000. Plaintiff is not able to alter his complaint after the Investigation Report has been filed. Therefore, plaintiffs attempt to amend his complaint is DENIED.
{¶6} In his response to defendant's Investigation Report, plaintiff states "my lawsuit is not with ODRC it is with C/O S. Rogers of ODRC." The court is governed by R.C. 2743.02. R.C. 2743.02(E) states: "The only defendant in original actions in the court of claims is the state." Because C/O S. Rogers is an employee of the state, she is not a proper party in this action. Only ODRC is a proper party as they are a state agency. Therefore, as far as plaintiff's response can be construed to an amended complaint naming C/O S. Rogers as a party in this case, it is DENIED.
{¶7} Under the Eighth Amendment to the U.S. Constitution, prison officials have a duty to provide humane conditions of confinement, ensuring that inmates receive, among other things, adequate food. Farmer v. Brennan, 511 U.S. 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Additionally, inmate complaints regarding the conditions of confinement are treated as claims arising under Section 1983, Title 43, United States Code. State ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 91, 637 N.E.2d 306 (1994). To the extent the complaint can be construed as raising a challenge to the conditions of confinement, such a claim is not actionable in the Court of Claims. Payne v. Mohr, No. 2:11-CV-00831 (S.D. Ohio Oct. 6, 2011); Thompson v. Southern State Community College, 10th Dist. No. 89AP-114 (June 15, 1989); Burkey v. S. Ohio Corr Facility, 38 Ohio App.3d 170, 528 N.E.2d 607 (10th Dist. 1988).
{¶8} 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 Coll. of Med., 78 Ohio App.3d 302, 604 N.E.2d 783 (10th Dist. 1992). Furthermore, it is 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 Correctional Inst, 10th Dist. No. 92AP-1230 (December 29, 1992).
{¶9} While plaintiff alleged that defendant's personnel violated prison regulations and procedures. It is clear from the complaint that plaintiff sought to impose liability upon defendant for alleged violations of internal regulations and procedures. However, defendant's internal rules, policies, procedures, and regulations 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); Peters v. Dept. of Rehab. & Corr, 10th Dist. No. 14AP-1048, 2015-Ohio-2668. Accordingly, there is no claim for relief based upon the violation of internal rules and policies. Triplett v. Warren Corr. Inst, 10th Dist. No. 12AP-728, 2013-Ohio-2743, ¶ 10.
{¶10} The Court of Claims does not have jurisdiction over decisions of the Rule Infraction Board. Chatman v. Dept. of Rehabilitation and Correction, 84-06323-AD (1985); Ryan v. Chillicothe Institution, 81-05181-AD; Rierson v. Department of Rehabilitation, 80-00860-AD (1981).
{¶11} An inmate's appeal of an RIB decision does not relate to civil law, a proper subject for adjudication pursuant to Chapter 2743 of the Ohio Revised Code. Instead, the appeal relates to private rights and remedies involving criminal proceedings and penalties imposed by a disciplinary board. Therefore, it falls outside the Court's exclusive jurisdiction. Maynard v. Jago, 76-0581-AD (1977).
{¶12} Plaintiff alleges that defendant's conduct was intentional and discriminatory. To determine if defendant should bear responsibility for an employee's wrongful act, a finding must be made, based on the facts presented, whether the injury-causing act was manifestly outside the course and scope of employment. Elliott v. Dept. of Rehab. & Corr., 92 Ohio App.3d 772, 775, 637 N.E.2d 106 (10th Dist. 1994); Thomas v. Dept. of Rehab. & Corr., 48 Ohio App.3d 86, 89, 548 N.E.2d 991 (10th Dist. 1988); Peppers v. Dept. of Rehab. & Corr., 50 Ohio App.3d 87, 90, 553 N.E.2d 1093 (10th Dist. 1988). It is only where the acts of state employees are motivated by actual malice or other such reasons giving rise to punitive damages that their conduct may be outside the scope of their state employment. James H. v. Dept. of Mental Health & Mental Retardation, 1 Ohio App.3d 60, 439 N.E.2d 437 (10th Dist. 1980). The act must be so divergent that it severs the employer-employee relationship. Elliott, at 775, citing Thomas, at 89, Peppers, at 90.
{¶13} Malicious purpose encompasses exercising "malice," which can be defined as the willful and intentional design to do injury, or the intention or desire to harm another, usually seriously, through conduct that is unlawful or unjustified. Jackson v. Butler Cty. Bd. of Cty. Commrs., 76 Ohio App.3d 448, 453-54, 602 N.E.2d 363 (12th Dist. 1991), citing Teramano v. Teramano, 6 Ohio St.2d 117, 118, 216 N.E.2d 375 (1966); and Bush v. Kelley's Inc., 18 Ohio St.2d 89, 247 N.E.2d 745 (1969).
{¶14} The Supreme Court of Ohio established that an employer is liable for the tortious conduct of its employee only if the conduct is committed within the scope of employment and, if the tort is intentional, the conduct giving rise to the tort must facilitate or promote the business of which the employee was engaged. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991), citing Little Miami R.R. Co. v. Wetmore, 19 Ohio St. 110 (1869), and Taylor v. Doctors Hosp., 21 Ohio App.3d 154, 486 N.E.2d 1249 (10th Dist. 1985).
{¶15} Further, an intentional and willful tort committed by an employee for their own purposes constitutes a departure from the employment, so that the employer is not responsible. Szydlowski v. Dept. of Rehab. & Corr., 79 Ohio App.3d 303, 607 N.E.2d 103 (10th Dist. 1992), citing Vrabel v. Acri, 156 Ohio St. 467, 103 N.E.2d 564 (1952). The facts of this case, taken as plaintiff asserted, would constitute an intentional tort committed by defendant's employee performed for their own personal purposes. Following this rationale, plaintiff cannot maintain a cause of action against defendant for the intentional, malicious act of its employee. Therefore, plaintiffs claim as it relates to an intentional tort done by defendant's employee must be denied.
{¶16} In order to prevail in a claim for negligence, plaintiff must prove, by a preponderance of the evidence, that defendant owed him a duty, that defendant breached that duty, and that defendant's breach proximately caused his damages. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 8 citing Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).
{¶17} "The use of force is sometimes necessary to control inmates." Jodrey v. Ohio Dept. of Rehab. & Corr., 10th Dist. 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 v. Dept. of Rehab. & Corr., 10th Dist. No. 13AP-804, 2014-Ohio-1810 at ¶ 15, citing Ohio Adm. Code 5120-9-01 (C)(1). "[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. No. 06AP-592, 2006-Ohio-6788 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." Ensman at ¶ 6.
{¶18} 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."
{¶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." 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). (Internal citations omitted.)
{¶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's testimony. State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548 (1964). The court finds plaintiff's statement not particularly persuasive.
{¶22} ODRC's Use of Force Policy defines "force" as "the exertion or application of a physical compulsion or constraint." "Excessive force" is "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." Ohio Administrative Code 5120-9-01 (B)(3). A review of the case file reveals an appropriate use of force investigation was properly conducted in accordance with OAC 5120-9-01 and 5120-9-02 on July 16, 2020, July 25, 2020, and November 11, 2020.
{¶23} Here, defendant's Investigation Report indicated that the RIB heard and found plaintiff guilty of violating multiple prison rules. Plaintiff was instructed to withdraw his hand from the cuff port and refused to do so. At this point, the defendant had to use force to make plaintiff withdraw his hand. Based on these facts, plaintiff has failed to demonstrate that force was used in an excessive or unreasonable manner given the circumstances.
{¶24} Therefore, judgment is rendered in favor of defendant.
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶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 the defendant. Court costs are assessed against the plaintiff.